IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER No 568 of 1999
For Approval and Signature:
Hon'ble MR.JUSTICE B.J.SHETHNA
============================================================
1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
————————————————————–
COMMISSIONER OF ELECTRICITY (ELECTRICITY DUTY)
Versus
RAMESHBHAI HARIBHAI PATEL
————————————————————–
Appearance:
1. Appeal from Order No. 568 of 1999
MR KC SHAH AGP for Petitioner No. 1
MR PR NANAVATI for Respondents No. 1-2
MR MD PANDYA for Respondent No. 3
————————————————————–
CORAM : MR.JUSTICE B.J.SHETHNA
Date of decision: 02/11/2001
ORAL JUDGEMENT
The appellant-original defendant No.1-Commissoner
of Electricity (Electricity Duty) of Gujarat State has
challenged in this appeal the impugned order dated
17.8.1999 passed by the 8th Joint Civil Judge (S.D.)
Vadodara granted application below Ex.5 in Special Civil
Suit No.211/99 in terms of para 16(1) of application Ex.5
till final disposal of the suit whereby the recovery
stayed. This appeal was straightaway admitted on
9.12.1999 and fixed for hearing immediately on 15.12.1999
but due to some or the other reason this could not be
heard till today. Be that as it may.
Learned AGP, Mr.K.C.Shah for the appellant
submitted that such recovery cannot be challenged before
the civil court and the civil court will have no
jurisdiction to entertain suit, therefore, civil court
ought not to have granted injunction. He further
submitted that whether it is manufacturing process or not
that question has to be decided by this court in a writ
petition filed by other persons, therefore, prima facie
view taken by the learned Trial Judge in favour of the
plaintiff cannot be sustained. He also submitted that
recovery of public revenue running into lakhs of rupees
has been stayed by trial court, which is not permissible
under law. In support of his submission Mr.Shah has
relied upon the order dated 20.02.2000 passed by my
learned Brother D.H.Waghela, J. in Special Civil
Application No.373/01 rejecting the prayer for interim
relief in view of the judgment of the Hon’ble Supreme
Court reported in AIR 1985 SC 330. Mr.Shah also
submitted that while allowing application Ex.5 learned
Trial Judge has practically decreed the suit. He,
therefore, submitted that the interim relief granted by
the trial court be vacated and they may be permitted to
disconnect the electricity connection or the
respondent-original plaintiff be directed to deposit the
entire amount due from them by way of electricity duty.
However, learned counsel Shri Nanavati for the
respondents-plaintiffs vehemently submitted that the
trial court has jurisdiction to entertain suit and when
the trial court found prima facie strong case in favour
of the plaintiff and that the balance of convenience was
also in their favour and the irreparable loss would have
been caused to the plaintiffs if the injunction was not
granted and in that view of the matter if the trial court
has granted injunction then this court should not
interfere with such order. He also submitted that
admittedly the unit of the respondent-plaintiffs is Small
Scale Industry (SSI) unit and the goods manufactured by
it is excisable because they are manufacturing the same,
therefore, no excise duty can be levied as the unit was
exempted from payment of electricity duty from 11.1.1996
to 12.11.2000. He also tried to rely upon the Gas
Cylinder Rules, 1981 under which they were granted
license to manufacture oxygen gas, wherein manufacturing
gas is defined. He submitted that if this court comes to
the conclusion that when there is a question of public
revenue then the court in its discretion can pass
conditional order of depositing electricity duty at a
reasonable rate.
This is a unique case where it would be difficult
for this court to go into the merits of the case because
except the present respondents-original plaintiffs no one
else had approached the civil court by way of suit and
other similarly situated persons have approached this
court by way of writ petitions under Article 226 of the
Constitution of India. Number of interim orders passed
by different Hon’ble Judges of this court have been
brought to my notice. In some cases blanket stay was
granted, in some cases no interim relief was granted and
in some cases interim relief granted on certain
conditions and the writ petitions are pending for final
disposal before this court. Under the circumstances, it
would not be proper for this court to express any opinion
about the merits of the case. However, when the trial
court granted unconditional interim relief in favour of
the respondents-plaintiffs then this court has to
consider as to whether the blanket interim relief granted
in favour of the respondents-plaintiffs be confirmed or
modified or set aside.
As stated earlier, different Hon’ble Judges of
this court while entertaining writ petitions passed
different types of interim orders. In some cases, this
court refused interim relief, in some cases, the interim
relief was granted on certain conditions and in few cases
blanket interim relief is granted.
It is true that in an almost identical case of
Sky Oxygen, learned Single Judge of this court refused
the interim relief in Special Civil Application
No.4415/99. In another writ petition being Special Civil
Application No.373/01 filed by Bharat Petroleum
Corporation Ltd. another learned Single Judge of this
court specifically rejected the prayer for interim relief
in view of the judgment of the Hon’ble Supreme Court
reported in AIR 1985 SC 330 but the fact which is not in
dispute is that in few cases this court granted interim
relief, some other judges of this court granted blanket
interim relief and in some cases interim relief is
granted on certain conditions directing the petitioners
to deposit specific amount.
Having regard to the peculiar facts and
circumstances of the case and the fact that in this case
the trial court has granted blanket interim relief, which
is in operation in favour of appellants-plaintiffs till
today in absence of any interim order passed by this
court in this appeal, I am of the considered opinion that
the impugned order passed by the trial court allowing
Ex.5 is required to be modified suitably with certain
conditions without expressing any opinion on the legality
and validity of the same.
Accordingly, this appeal is partly allowed to the
extent that the interim relief granted earlier by the
trial court in terms of para 16(1) of the application
Ex.5 is confirmed subject to the condition that the
respondents-plaintiffs shall deposit 50% of outstanding
amount of electricity duty with the appellants within one
month from today.
It is made clear that in case the
respondents-plaintiffs ultimately succeeds in the suit
then the said amount shall be refunded to them with
interest on it as ordered by the civil court.
(B.J.Shethna, J.)
*Pvv