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MCA/2298/2011 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION No. 2298 of 2011
In
MISC.CIVIL
APPLICATION No. 722 of 2011
In
SPECIAL CIVIL APPLICATION No. 10880 of 2010
=========================================================
WINDSON
ENTERPRISE THRO A K GHINAIYA THRO POA NAG - Applicant(s)
Versus
A
M SOLANKI & 4 - Opponent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Applicant(s) : 1,
None for Opponent(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 09/09/2011
ORAL
ORDER
1. In
present application, learned advocate Mr. Ashish M. Dagli is
appearing for applicant and learned AGP Ms. Sachi Mathur is appearing
for respondent state authorities.
2. Prayers
made in para-10(B) to 10(D) of present application are quoted as
under:
“10(B) This
Hon’ble Court may be pleased to allow this Misc. Civil Application be
directing respondents to forthwith release the amount of subsidy of
petitioner and also be pleased to direct the respondents to decide
the representation of the applicant accordingly by releasing the
amount with reasonable rate of interest in the interest of justice.
10(C) This
Hon’ble Court may be pleased to allow this Misc. Civil Application by
further directing respondents to deposit the amount forthwith before
this Hon’ble court subject to further outcome of the representation.
10(D) Pending
admission, hearing and final disposal of this Misc. Civil
Application, this Hon’ble Court may be pleased to direct respondents
to forthwith deposit the amount of subsidy and also be pleased to
direct respondents to decide representation of the applicant and in
the event the subsidy is released the same may be released with
reasonable rate of interest in the facts and circumstances of the
present case.”
3. It
is necessary to note that in Special Civil Application No.10880 of
2010 on 9/9/2010 following order has been passed:
“1. Heard
learned advocate Mr.Ashish M. Dagli appearing on behalf of petitioner
and learned AGP Mr.Amit Patel on behalf of respondent – State
authority.
2. Grievance
of the present petitioner is that the representation made to the
Commissioner of Fisheries on 23.06.2009 has still remained as it is
and no answer is given. Thereafter, petitioner has approached
Minister, Fisheries by way of representation on 17.02.2010 with a
request to grant the amount of subsidy. Thereafter, petitioner has
again approached to Commissioner of Fisheries by a letter dated
03.03.2010, where all the details have been given that how the amount
has been distributed amongst fishermen and petitioner from State
Authority.
3. In
light of this background, though petitioner has made representations
and requested to pay the amount, which has been disbursed by the
petitioner to the fishermen on the basis of Government policy, for
that there is no answer given by the respondent, therefore, present
petition is filed.
4. It
is directed to the respondent No.1 – Commissioner of Fisheries
to consider a representation dated 03.03.2010 alongwith a
representation made on 17.02.2010 to the Minister, Fisheries and
earlier representation of 22.06.2009 made to the Commissioner of
Fisheries and to examine the grievance on the basis of existing
Government policy at the prevailing time and to pass appropriate
reasoned order within 2 (Two) months from the date of receiving a
copy of this order and to immediately communicate the decision to the
petitioner.
5. In
view of above observations and directions, present petition is
disposed of without expressing any opinion on merits.
Direct
service is permitted.”
4. Thereafter
one Misc. Civil Application No.722 of 2011 has been preferred by
present applicant wherein this Court has passed following order on
29/3/2011:
“Heard
learned advocates appearing on behalf of respective parties.
In
this application, prayer made by applicant to direct opponent No.1 to
decide and finalise claim of applicant as early as possible.
In
this matter, while passing order in Special Civil Application
No.10880 of 2010 on 9th September, 2010 in Para 4, which
is quoted as under, this Court has directed opponent No.1 to consider
representations made by applicant.
“4. It
is directed to the respondent No.1 – Commissioner of Fisheries
to consider a representation dated 03.03.2010 alongwith a
representation made on 17.02.2010 to the Minister, Fisheries and
earlier representation of 22.06.2009 made to the Commissioner of
Fisheries and to examine the grievance on the basis of existing
Government policy at the prevailing time and to pass appropriate
reasoned order within 2 (Two) months from the date of receiving a
copy of this order and to immediately communicate the decision to the
petitioner.”
The
grievance of present applicant is that in spite of aforesaid
direction issued by this Court, no decision has been taken by
opponent No.1 till date, therefore, applicant has filed present
application for further direction.
In
light of this background and considering fact that more than six
months have passed and though this Court has directed opponent No.1
to consider representation of applicant on 9th September,
2010, even though opponent No.1 has not taken any decision in the
matter. Therefore, being one more opportunity, it is directed to
opponent No.1 to comply with order passed by this Court on 9th
September, 2010 in Special Civil Application No.10880 of 2010 as
early as possible on or before 31st May, 2011 and
communicate decision to petitioner immediately, failing which, this
Court will take serious view in this matter.
In
view of above observation and direction, present application is
disposed of.”
5. Thereafter,
Misc. Civil Application No.1470 of 2011 is preferred in Misc. Civil
Application No.722 of 2011 wherein this Court has passed following
order on 31/5/2011:
“This
is an application for extension of time in deciding the
representation preferred by the original petitioner. It appears that
vide order dated 29.3.2011 learned Single Judge of this Court
directed the Commissioner of Fisheries to consider representation
dated 3.3.2010 along with the representation made on 17.2.2010 to the
Minister, Fisheries and earlier representation of 22.6.2009 as early
as possible on 31.5.2011. It is submitted that due to administrative
exigency the representations have not been yet decided. The
authorities have prayed for some more time. In the interest of
justice, the time to consider the representation as ordered earlier
vide order dated 29.3.2011 is extended further upto 31.7.2011. It is
expected of the concerned authorities that by this period of time,
the representations must be decided in accordance with law as earlier
directed by the Hon’ble Court. As soon as the representations are
decided, the same shall be communicated to the petitioner. The
application stands disposed of.”
6. The
dispute between both parties are about the representation which is
not decided by applicant till date inspite of direction issued by
this Court.
7. Learned
advocate Mr. Dagli submitted that even time which has been extended
by this Court up to 31/7/2011, during that period also,
representation is remained undecided. Learned advocate Mr. Dagli
submitted that thereafter one month extension has been given from
present applicant, even during that period also representation is not
decided.
8. If
that be so and if direction issued by this Court is not complied with
by opponents, then there is no sense in giving further directions to
present opponents. If directions issued by this Court is not
complied strictly by opponents then applicant is having a remedy to
file contempt proceedings against present opponents and when such
alternative remedy is available to applicant for not following
directions which has been issued by this Court, present kind of Misc.
Civil Application is not maintainable in law. This Court cannot
issue directions one by one so long representation is not decided by
opponents. Once the directions issued by this Court, this Court
cannot monitor the function of opponents why the directions issued by
this Court is not complied. For that provision under Contempt of
Court Act is available and for that applicant can approach to that
remedy. However, it is also necessary to note that this Court has
disposed of Special Civil Application No.10880 of 2010 on 9/9/2010.
Even subsequent Misc. Civil Application No.722 of 2011 is also
disposed of by this Court on 29/3/2011. Once the matter has been
disposed of finally by this Court, present type of subsequent Misc.
Civil Application is not maintainable in law.
9. The
grievance which has been voiced in present application, considering
prayer made by applicant in present application, it gives a fresh
cause of action to applicant. In such circumstances when fresh cause
of action has been arise subsequent to the directions issued by this
Court then such kind of Misc. Civil Application cannot be entertained
by this Court otherwise it creates confusion, complications and chaos
and there is no judicial finality or sanctity to such final order.
Similar aspect has been considered by Hon’ble Apex Court in case of
State of U.P. Vs. Shri Brahm Datt Sharma and Another reported
in AIR 1987 SC 943. Head Note – ‘B’
and Para 10
are relevant, therefore, the same are quoted as under :
“Head
Note ‘B’ : Constitution of
India, Art.226 – Writ Petition – Petitioner disposed of
finally – Cannot be re-opened by means of miscellaneous
application. [Civil P.C. (5 of 1908), S.11].
Para
10 : The High Court’s order is not. Sustainable for yet
another reason. Respondents’ writ petition challenging the order of
dismissal had been finally disposed of on 10.8.1984, thereafter
nothing remained pending before the High Court. No miscellaneous
application could be filed in the writ petition to revive
proceedings in respect of subsequent events after two years. If the
respondent was aggrieved by the notice dated 29.1.86 he could have
filed a separate petition under Art. 226 of the Constitution
challenging the validity of the notice as it provided a separate
cause of action to him. The respondent was not entitled to assail
validity of the notice before the High Court by means of a
miscellaneous application in the writ petition which had already
been decided. The High Court had no jurisdiction to entertain the
application as no proceedings were pending before it. The High
Court committed error in entertaining the respondent’s application
which was founded on a separate cause of action. When proceedings
stand terminated by final disposal of writ petition it is not open
to the Court to reopen the proceedings by means of a miscellaneous
application in respect of a matter which provided a fresh cause of
action. If this principle is not followed there would be
confusion and chaos and the finality of proceedings would cease
to have any meaning.”
10. The
aforesaid decision has been considered by Apex Court in case of K.A.
Ansari & Anr. V/s. Indian Airlines Ltd. reported
in 2008 (15) Scale 620.
The relevant is Para 16, which is quoted as under :
“16.
It is trite that a party is not entitled to seek a review of a
judgment merely for the purpose of rehearing and a fresh decision of
the case. It needs little emphasis that when the proceedings stand
terminated by final disposal of the writ petition, it is not open to
the Court to reopen the proceedings by means of miscellaneous
application in respect of a matter which provides fresh cause of
action. If this principle is not followed, there would be confusion
and chaos and the finality of proceedings would cease to have any
meaning. (See: State of Uttar Pradesh Vs. Brahm Datt Sharma &
Anr.1 ). At the same time, there is no prohibition on a party
applying for clarification, if the order is not clear and the party
against whom it has been made is trying to take advantage because the
order is couched in ambiguous or equivocal words.
17. Therefore,
the question for consideration in the instant case is whether the
miscellaneous application preferred by the first appellant could be
said to be founded on a fresh cause of action?
18. Having
bestowed our anxious consideration on the rival submissions, we are
of the opinion that keeping in view the terms of final order
dated 11th October, 2004, the miscellaneous application could not
be said to be founded on a separate or fresh cause of action so as to
fall foul of the aforenoted legal position viz. on termination
of proceedings by final disposal of writ petition, it is not open to
the court to reopen the proceedings by means of a miscellaneous
application in respect of a matter which provided fresh cause of
action. It is manifest that in direction No. (ii), the learned
Single Judge had clearly directed that the writ petitioners would be
entitled `to be posted to a post in equivalent scale held by them
when the letter dated 23rd April, 2003 was issued.’ The respondent –
Indian Airlines was obliged to obey and implement the said direction.
If they had any doubt or if the order was not clear; it was always
open to them to approach the court for clarification of the said
order. Without challenging the said direction or seeking
clarification, Indian Airlines could not circumvent the same on any
ground whatsoever. Difficulty in implementation of an order passed by
the Court, howsoever, grave its effect may be, is no answer for its
non-implementation. In our opinion, in the miscellaneous application,
no fresh relief, on the basis of a new cause of action, had been
sought. It was an application filed for pursuing and getting
implemented the relief granted in the writ petition, namely,
placement in appropriate grade in which he was placed at the time
when letter dated 23rd April, 2003, was issued. This was
precisely done by the learned Single Judge vide his order dated 4th
March, 2005. Without examining those factual aspects of the matter,
in our judgment, the Division Bench was in error in holding that
after the disposal of the writ petitions, miscellaneous application
was not maintainable and the only remedy available to the appellant
was to approach the authorities and if his interpretation was not
acceptable to them, then he could file a fresh writ petition.”
11. In
light of aforesaid observations made by Hon’ble Apex Court and
considering fact that this Court has disposed of main petition and
also disposed of subsequent Misc. Civil Application, present kind of
application cannot be entertained by this Court.
12. Accordingly,
present application is dismissed.
(H.K.RATHOD,
J.)
(ila)
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