{"id":26473,"date":"2011-09-09T00:00:00","date_gmt":"2011-09-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/windson-vs-in-on-9-september-2011"},"modified":"2016-09-25T23:24:15","modified_gmt":"2016-09-25T17:54:15","slug":"windson-vs-in-on-9-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/windson-vs-in-on-9-september-2011","title":{"rendered":"Windson vs In on 9 September, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Windson vs In on 9 September, 2011<\/div>\n
Author: H.K.Rathod,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nMCA\/2298\/2011\t 11\/ 11\tORDER \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nMISC.CIVIL\nAPPLICATION No. 2298 of 2011\n \n\nIn\n\n\n \n\nMISC.CIVIL\nAPPLICATION No. 722 of 2011\n \n\nIn\nSPECIAL CIVIL APPLICATION No. 10880 of 2010\n \n\n \n=========================================================\n\n \n\nWINDSON\nENTERPRISE THRO A K GHINAIYA THRO POA NAG - Applicant(s)\n \n\nVersus\n \n\nA\nM SOLANKI & 4 - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nASHISH M DAGLI for\nApplicant(s) : 1, \nNone for Opponent(s) : 1 -\n5. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 09\/09\/2011 \n\n \n\n \nORAL\nORDER<\/pre>\n
1.\tIn
\npresent application, learned advocate Mr. Ashish M. Dagli is
\nappearing for applicant and learned AGP Ms. Sachi Mathur is appearing
\nfor respondent state authorities.\n<\/p>\n
2.\tPrayers
\nmade in para-10(B) to 10(D) of present application are quoted as
\nunder:\n<\/p>\n
“10(B)\tThis
\nHon’ble Court may be pleased to allow this Misc. Civil Application be
\ndirecting respondents to forthwith release the amount of subsidy of
\npetitioner and also be pleased to direct the respondents to decide
\nthe representation of the applicant accordingly by releasing the
\namount with reasonable rate of interest in the interest of justice.\n<\/p>\n
10(C)\tThis
\nHon’ble Court may be pleased to allow this Misc. Civil Application by
\nfurther directing respondents to deposit the amount forthwith before
\nthis Hon’ble court subject to further outcome of the representation.\n<\/p>\n
10(D)\tPending
\nadmission, hearing and final disposal of this Misc. Civil
\nApplication, this Hon’ble Court may be pleased to direct respondents
\nto forthwith deposit the amount of subsidy and also be pleased to
\ndirect respondents to decide representation of the applicant and in
\nthe event the subsidy is released the same may be released with
\nreasonable rate of interest in the facts and circumstances of the
\npresent case.”\n<\/p>\n
3.\tIt
\nis necessary to note that in Special Civil Application No.10880 of
\n2010 on 9\/9\/2010 following order has been passed:\n<\/p>\n
“1.\tHeard
\nlearned advocate Mr.Ashish M. Dagli appearing on behalf of petitioner
\nand learned AGP Mr.Amit Patel on behalf of respondent – State
\nauthority.\n<\/p>\n
2.\tGrievance
\nof the present petitioner is that the representation made to the
\nCommissioner of Fisheries on 23.06.2009 has still remained as it is
\nand no answer is given. Thereafter, petitioner has approached
\nMinister, Fisheries by way of representation on 17.02.2010 with a
\nrequest to grant the amount of subsidy. Thereafter, petitioner has
\nagain approached to Commissioner of Fisheries by a letter dated
\n03.03.2010, where all the details have been given that how the amount
\nhas been distributed amongst fishermen and petitioner from State
\nAuthority.\n<\/p>\n
3.\tIn
\nlight of this background, though petitioner has made representations
\nand requested to pay the amount, which has been disbursed by the
\npetitioner to the fishermen on the basis of Government policy, for
\nthat there is no answer given by the respondent, therefore, present
\npetition is filed.\n<\/p>\n
4.\tIt
\nis directed to the respondent No.1 – Commissioner of Fisheries
\nto consider a representation dated 03.03.2010 alongwith a
\nrepresentation made on 17.02.2010 to the Minister, Fisheries and
\nearlier representation of 22.06.2009 made to the Commissioner of
\nFisheries and to examine the grievance on the basis of existing
\nGovernment policy at the prevailing time and to pass appropriate
\nreasoned order within 2 (Two) months from the date of receiving a
\ncopy of this order and to immediately communicate the decision to the
\npetitioner.\n<\/p>\n
5.\tIn
\nview of above observations and directions, present petition is
\ndisposed of without expressing any opinion on merits.\n<\/p>\n
Direct
\nservice is permitted.”\n<\/p>\n
4.\tThereafter
\none Misc. Civil Application No.722 of 2011 has been preferred by
\npresent applicant wherein this Court has passed following order on
\n29\/3\/2011:\n<\/p>\n
\t“Heard
\nlearned advocates appearing on behalf of respective parties.\n<\/p>\n
\tIn
\nthis application, prayer made by applicant to direct opponent No.1 to
\ndecide and finalise claim of applicant as early as possible.\n<\/p>\n
\tIn
\nthis matter, while passing order in Special Civil Application
\nNo.10880 of 2010 on 9th September, 2010 in Para 4, which
\nis quoted as under, this Court has directed opponent No.1 to consider
\nrepresentations made by applicant.\n<\/p>\n
“4.\tIt
\nis directed to the respondent No.1 – Commissioner of Fisheries
\nto consider a representation dated 03.03.2010 alongwith a
\nrepresentation made on 17.02.2010 to the Minister, Fisheries and
\nearlier representation of 22.06.2009 made to the Commissioner of
\nFisheries and to examine the grievance on the basis of existing
\nGovernment policy at the prevailing time and to pass appropriate
\nreasoned order within 2 (Two) months from the date of receiving a
\ncopy of this order and to immediately communicate the decision to the
\npetitioner.”\n<\/p>\n
\tThe
\ngrievance of present applicant is that in spite of aforesaid
\ndirection issued by this Court, no decision has been taken by
\nopponent No.1 till date, therefore, applicant has filed present
\napplication for further direction.\n<\/p>\n
\tIn
\nlight of this background and considering  fact that more than six
\nmonths have passed and though this Court has directed opponent No.1
\nto consider representation of applicant on 9th September,
\n2010, even though opponent No.1 has not taken any decision in the
\nmatter. Therefore, being one more opportunity, it is directed to
\nopponent No.1 to comply with order passed by this Court on 9th
\nSeptember, 2010 in Special Civil Application No.10880 of 2010 as
\nearly as possible on or before 31st May, 2011 and
\ncommunicate decision to petitioner immediately, failing which, this
\nCourt will take serious view in this matter.\n<\/p>\n
\tIn
\nview of above observation and direction, present application is
\ndisposed of.”\n<\/p>\n
5.\tThereafter,
\nMisc. Civil Application No.1470 of 2011 is preferred in Misc. Civil
\nApplication No.722 of 2011 wherein this Court has passed following
\norder on 31\/5\/2011:\n<\/p>\n
\t“This
\nis an application for extension of time in deciding the
\nrepresentation preferred by the original petitioner.  It appears that
\nvide order dated 29.3.2011 learned Single Judge of this Court
\ndirected the Commissioner of Fisheries to consider representation
\ndated 3.3.2010 along with the representation made on 17.2.2010 to the
\nMinister, Fisheries and earlier representation of 22.6.2009 as early
\nas possible on 31.5.2011.  It is submitted that due to administrative
\nexigency the representations have not been yet decided.  The
\nauthorities have prayed for some more time.  In the interest of
\njustice, the time to consider the representation as ordered earlier
\nvide order dated 29.3.2011 is extended further upto 31.7.2011.  It is
\nexpected of the concerned authorities that by this period of time,
\nthe representations must be decided in accordance with law as earlier
\ndirected by the Hon’ble Court.  As soon as the representations are
\ndecided, the same shall be communicated to the petitioner.  The
\napplication stands disposed of.”\n<\/p>\n
6.\tThe
\ndispute between both parties are about the representation which is
\nnot decided by applicant till date inspite of direction issued by
\nthis Court.\n<\/p>\n
7.\tLearned
\nadvocate Mr. Dagli submitted that even time which has been extended
\nby this Court up to 31\/7\/2011, during that period also,
\nrepresentation is remained undecided.  Learned advocate Mr. Dagli
\nsubmitted that thereafter one month extension has been given from
\npresent applicant, even during that period also representation is not
\ndecided.\n<\/p>\n
8.\tIf
\nthat be so and if direction issued by this Court is not complied with
\nby opponents, then there is no sense in giving further directions to
\npresent opponents.  If directions issued by this Court is not
\ncomplied strictly by opponents then applicant is having a remedy to
\nfile contempt proceedings against present opponents and when such
\nalternative remedy is available to applicant for not following
\ndirections which has been issued by this Court, present kind of Misc.
\nCivil Application is not maintainable in law.  This Court cannot
\nissue directions one by one so long representation is not decided by
\nopponents.  Once the directions issued by this Court, this Court
\ncannot monitor the function of opponents why the directions issued by
\nthis Court is not complied.  For that provision under Contempt of
\nCourt Act is available and for that applicant can approach to that
\nremedy.  However, it is also necessary to note that this Court has
\ndisposed of Special Civil Application No.10880 of 2010 on 9\/9\/2010.
\nEven subsequent Misc. Civil Application No.722 of 2011 is also
\ndisposed of by this Court on 29\/3\/2011.  Once the matter has been
\ndisposed of finally by this Court, present type of subsequent Misc.
\nCivil Application is not maintainable in law.\n<\/p>\n
9.\tThe
\ngrievance which has been voiced in present application, considering
\nprayer made by applicant in present application, it gives a fresh
\ncause of action to applicant.  In such circumstances when fresh cause
\nof action has been arise subsequent to the directions issued by this
\nCourt then such kind of Misc. Civil Application cannot be entertained
\nby this Court otherwise it creates confusion, complications and chaos
\nand there is no judicial finality or sanctity to such final order.
\nSimilar aspect has been considered by Hon’ble Apex Court in case of
\nState of U.P. Vs. Shri Brahm Datt Sharma and Another reported
\nin AIR 1987 SC 943. Head Note – ‘B’
\nand Para 10
\nare relevant, therefore, the same are quoted as under :\n<\/p>\n
“Head
\nNote ‘B’ : Constitution of
\nIndia, Art.226 – Writ Petition – Petitioner disposed of
\nfinally – Cannot be re-opened by means of miscellaneous
\napplication. [Civil P.C. (5 of 1908), S.11].\n<\/p>\n
Para
\n10 : The High Court’s\torder is not. Sustainable for yet
\nanother reason. Respondents’ writ petition challenging\tthe order\tof
\ndismissal  had  been  finally  disposed  of\ton 10.8.1984,  thereafter
\nnothing remained pending\t before\t the High  Court. No miscellaneous
\napplication could be filed  in the writ petition to revive
\nproceedings in respect of subsequent  events  after two years. If the
\nrespondent  was aggrieved by the notice dated 29.1.86 he could have
\nfiled  a separate  petition under Art. 226 of the Constitution
\nchallenging the validity of the notice as it provided a separate
\ncause  of action to him. The respondent was not entitled  to assail
\nvalidity of the notice before the High Court by means of  a
\nmiscellaneous application in the writ  petition  which had already
\nbeen decided. The High Court had no jurisdiction to entertain the
\napplication as no proceedings were  pending before it.  The High
\nCourt committed error in entertaining the respondent’s application
\nwhich was founded on a separate cause of action. When proceedings
\nstand terminated by final disposal  of  writ petition it is not open
\nto the  Court  to reopen the proceedings by means of a miscellaneous
\napplication in respect of a matter which provided a fresh cause  of
\naction.  If  this principle is not followed there  would  be
\nconfusion  and chaos and the finality of  proceedings  would cease
\nto have any meaning.”\n<\/p>\n
10.\tThe
\naforesaid decision has been considered by Apex Court in case of K.A.
\nAnsari & Anr. V\/s. Indian Airlines Ltd. reported
\nin 2008 (15) Scale 620.\n<\/p>\n
The relevant is Para 16, which is quoted as under :\n<\/p>\n
“16.\n<\/p>\n
It is trite that a party is not entitled to seek a review of a
\njudgment merely for the purpose of rehearing and a fresh decision of
\nthe case. It needs little emphasis that when the proceedings stand
\nterminated by final disposal of the writ petition, it is not open to
\nthe Court to reopen the proceedings by means of miscellaneous
\napplication in respect of a matter which provides fresh cause of
\naction. If this principle is not followed, there would be confusion
\nand chaos and the finality of proceedings would cease to have any
\nmeaning. (See: State of Uttar Pradesh Vs. Brahm Datt Sharma &
\nAnr.1 ). At the same time, there is no prohibition on a party
\napplying for clarification, if the order is not clear and the party
\nagainst whom it has been made is trying to take advantage because the
\norder is couched in ambiguous or equivocal words.\n<\/p>\n
17.\tTherefore,
\nthe question for consideration in the instant case is whether the
\nmiscellaneous application preferred by the first appellant could be
\nsaid to be founded on a fresh cause of action?\n<\/p>\n
18.\tHaving
\nbestowed our anxious consideration on the rival submissions, we are
\nof the opinion that keeping in view the terms       of final order
\ndated 11th October, 2004,     the miscellaneous application could not
\nbe said to be founded on a separate or fresh cause of action so as to
\nfall foul of the     aforenoted legal position viz. on   termination
\nof proceedings by final disposal of writ petition, it is not open to
\nthe court to reopen the proceedings by means of a miscellaneous
\napplication in respect of a matter which provided fresh cause of
\naction.      It is manifest that in direction No. (ii), the learned
\nSingle Judge had clearly directed that the writ petitioners would be
\nentitled `to be posted to a post in equivalent scale held by them
\nwhen the letter dated 23rd April, 2003 was issued.’ The respondent –
\nIndian Airlines was obliged to obey and implement the said direction.
\n  If they had any doubt or if the order was not clear; it was always
\nopen to them to approach the court for clarification of the said
\norder. Without challenging the said direction or seeking
\nclarification, Indian Airlines could not circumvent the same on any
\nground whatsoever. Difficulty in implementation of an order passed by
\nthe Court, howsoever, grave its effect may be, is no answer for its
\nnon-implementation. In our opinion, in the miscellaneous application,
\nno fresh relief, on the basis of a new cause of action, had been
\nsought.  It was an application filed for pursuing and getting
\nimplemented the relief granted in the writ petition, namely,
\nplacement in appropriate grade in which he was placed at the time
\nwhen letter dated 23rd April, 2003, was issued.  This was
\nprecisely done by the learned Single Judge vide his order dated 4th
\nMarch, 2005. Without examining those factual aspects of the matter,
\nin our judgment, the Division Bench was in error in holding that
\nafter the disposal of the writ petitions, miscellaneous  application
\nwas not maintainable and the only remedy available to the appellant
\nwas to approach the authorities and if his interpretation was not
\nacceptable to them, then he could file a fresh writ petition.”\n<\/p>\n
11.\tIn
\nlight of aforesaid observations made by Hon’ble Apex Court and
\nconsidering fact that this Court has disposed of main petition and
\nalso disposed of subsequent Misc. Civil Application, present kind of
\napplication cannot be entertained by this Court.\n<\/p>\n
12.\tAccordingly,
\npresent application is dismissed.\n<\/p>\n
(H.K.RATHOD,
\nJ.) <\/p>\n
(ila)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Windson vs In on 9 September, 2011 Author: H.K.Rathod, Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-26473","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nWindson vs In on 9 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/windson-vs-in-on-9-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Windson vs In on 9 September, 2011 - 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