{"id":98179,"date":"2011-07-08T00:00:00","date_gmt":"2011-07-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lyka-vs-union-on-8-july-2011"},"modified":"2018-09-19T07:02:09","modified_gmt":"2018-09-19T01:32:09","slug":"lyka-vs-union-on-8-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lyka-vs-union-on-8-july-2011","title":{"rendered":"Lyka vs Union on 8 July, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Lyka vs Union on 8 July, 2011<\/div>\n
Author: Abhilasha Kumari,<\/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\nCA\/6923\/2011\t 45\/ 45\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCIVIL\nAPPLICATION - FOR INTERIM RELIEF No. 6923 of 2011\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 33 of 2011\n \n\n \n \nFor\nApproval and Signature:  \n \nHON'BLE\nSMT. JUSTICE ABHILASHA KUMARI\n \n \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=====================================================\n \n\nLYKA\nLABS LTD - Petitioner(s)\n \n\nVersus\n \n\nUNION\nOF INDIA - THROUGH SECRETARY & 2 - Respondent(s)\n \n\n=====================================================\nAppearance : \n \n \n\n\n \n\nMr.K.S.Nanavati,\nlearned Senior Advocate with Mr.Kunal Nanavati, learned advocate for\nNANAVATI ASSOCIATES for Petitioner \nMR HRIDAY BUCH,learned Central\nGovernment Standing Counsel for Respondents Nos.1 and\n2 \nMr.J.K.Shah,learned Assistant Government Pleader for Respondent\nNo.3 \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\nHON'BLE\n\t\t\tSMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 08\/07\/2011 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1.\tRule.\n<\/p>\n
Mr.Hriday Buch, learned  Central Government
\nStanding Counsel waives service of notice of Rule for respondents
\nNos.1 and 2. Mr. J.K.Shah, learned Assistant Government Pleader
\nwaives service of notice of Rule for respondent No.3. On the facts
\nand in the circumstances of the case, the application is being heard
\nand decided finally.\n<\/p>\n
2.\tThis
\napplication has been filed by the applicant, Original-petitioner in
\nthe writ petition, for grant of an interim mandatory injunction,
\npending the final hearing and decision of the petition. The prayers
\nmade in the application are as follows:\n<\/p>\n
“(a)\tthe
\nMamlatdar, Ankleshwar and the Collector, Bharuch, be ordered and
\ndirected forthwith to de-seal the petitioner’s factory situated at
\n4801\/B and 4802\/A, GIDC. Industrial Estate, Ankleshwar 393002 and to
\npermit the petitioner to continue to
\noperate the same;\n<\/p>\n
(b)\tthe
\nrespondents, their agents, servants and subordinates be restrained
\nfrom interfering in any manner with the continued operation of the
\nfactory of the petitioner situated at 4801\/B and 4802\/A, GIDC.
\nIndustrial Estate, Ankleshwar 393002;\n<\/p>\n
(c)\tad-interim
\nrelief in terms of prayers (a) and (b) above be granted; and<\/p>\n
(d)\tPass
\nsuch further and other interim and ad-interim orders, directions and
\nreliefs as may be thought fit appropriate by this Hon’ble Court in
\nthe facts and circumstances of the case.”\n<\/p>\n
3.\tThe
\napplicant is Lyka Labs Ltd., a Company registered under the
\nprovisions of the Companies Act, 1956. The brief facts that are
\nrelevant for the decision of the application, are as follows:\n<\/p>\n
3.1\tAccording
\nto the applicant, it manufactures 250 formulations, including
\nvarious life-saving drugs. Relevant to the present application  and
\nthe petition is the Flucort range of formulations (Medicines
\nmanufactured from a bulk drug), manufactured by it, from an imported
\ndrug known as Fluocinolone Acetonide (FA for short). FA is a
\nCorticosteroid, which exerts its action
\ntopically on the site of application, and is used in the manufacture
\nof dermatological formulations. The said bulk drug has not been
\nclassified as a life-saving bulk drug.\n<\/p>\n
3.2\tIn
\nexercise of powers conferred by the provisions of the Essential
\nCommodities Act, 1955, (“The Act” for short), and for the
\npurpose of controlling the prices of Drugs, the Government of India
\nhas issued Drugs (Prices Control) Orders, (“DPCO” for
\nshort); amongst others, DPCO 1970, (repealed on 31st
\nMarch 1979), DPCO 1979, (repealed on 26th
\nAugust 1987), and DPCO 1987, (repealed on 7th
\nJanuary 1995). According to the  applicant FA was not listed as one
\nof the seven price controlled Corticosteroids enumerated in the
\nSecond Schedule  at Serial Number XIX, under the Therapeutic Category
\n“Corticosteroids” in the DPCO 1979,  therefore,  the
\napplicant  did not apply for price fixation of the Flucort Range of
\nformulations and continued to sell them at the rates prevailing  at
\nthat time,  as fixed by the Government of India  under DPCO 1970.  By
\norder dated 20th
\nJune 1984, the Government of India,  in exercise of powers conferred
\nby sub-paragraph 1 of paragraph 13 of
\nDPCO 1979, fixed the prices of the formulations as specified in
\ncolumn 7 thereof, as the revised retail prices exclusive of local
\ntax. The applicant,  vide communication dated 7th
\nJuly 1984, addressed to the first respondent, asserted that FA was
\nnot a bulk drug specified in the Second Schedule  of the DPCO 1979,
\nhence the said respondent  did not possess the power or authority
\nto fix the retail price of its formulations.  The applicant  also
\nconveyed that they would  continue to  market  the formulations as
\nper  the price prevailing on 1st
\nApril 1979, when the DPCO 1979 came into  effect. The applicant sent
\nanother communication dated 7th
\nDecember 1984, reiterating   its earlier  contentions and sought a
\nreview  under the DPCO 1979. Some communication ensued between the
\napplicant and the first respondent, vide which the applicant  was
\nasked to furnish details regarding  the  manufacture, production and
\novercharging of the said formulations. By order dated 10th
\nJuly 1990, the first respondent informed the applicant that, based
\nupon the data made available by the applicant,  an  amount of
\nRs.678.73 lakhs has been calculated as being due from the applicant
\nunder paragraph 7(2) of DPCO 1979, in respect
\nof the bulk drug FA. In response, the applicant  again reiterated the
\ncontentions raised by  it earlier,  by letter dated 20th
\nJuly 1990. Ultimately, a demand of over rupees 18 crores, inclusive
\nof rupees 12 crores as interest, came to be made from the applicant,
\nby order dated 14th
\nSeptember 2005, in respect of the period from 1st
\n April 1979 to 25th
\nAugust 1987, in exercise of powers under paragraph 7(2) of DPCO
\n1979. The applicant had earlier filed a writ petition,  being SCA No.
\n10354 of 2010, challenging the above stated demand. By order dated
\n14th
\nJuly 2010, the Court directed the applicant to prefer a
\nrepresentation to the first respondent, who was directed to consider
\nand decide the same in accordance with law, by passing a reasoned
\norder. The representation of the applicant  dated 14th
\nJuly 2010, has been rejected by order dated 10th
\nNovember 2010, which order has,  inter alia, been challenged  in the
\npetition (SCA No.33 of 2011). It may be noted that the petition,
\nafter extensive hearing, has been directed to be enlisted for final
\nhearing on 20th
\nJuly 2011,  by order dated 24th
\nJune 2011, of this Court. No interim relief  has been granted to the
\napplicant in the said petition. The present
\napplication has been affirmed on 27th
\nJune 2011. According to the applicant, it became  necessary to
\nurgently file the application and pray for restoration of the status
\nquo ante as, on the  morning of 25th
\nJune 2011, the third respondent, Mamlatdar, Ankleshwar, sealed the
\nfactory of the applicant, despite protests from the representatives
\nof the applicant.\n<\/p>\n
4.\tIn
\nthe above background, Mr. K.S Nanavati, learned Senior Advocate, has
\nmade elaborate submissions orally,  and has submitted written
\nsubmissions, as well. The gist of these submissions, in essence, is
\nas follows :\n<\/p>\n
(a)\tThe
\nact of sealing the Factory and dispossessing the Company is, on the
\nface of it,  without authority of law, oppressive, and arbitrary,
\nwith a view to causing harm to the applicant. The said action is
\nlacking in bonafides and is in breach of Articles 19(1)(g) and 300A
\nof the Constitution of India.\n<\/p>\n
\tIn
\nsupport of the above submission, reliance has been placed upon
\nExpress Newspapers Pvt.Ltd. v. Union of India,<\/a> (1986) 1 SCC
\n133 (Para 76).\n<\/p>\n
(b)\tThe
\nauthorities have failed to appreciate that as a consequence, three
\nhundred workers  have been rendered jobless and goods worth more than
\nRupees 40 crores, belonging to the applicant and other Companies, are
\nlying in the Factory at various stages of production, which would be
\ndamaged.\n<\/p>\n
(c)\tSection
\n150(b) and Section 153 of the Bombay Land Revenue Code, 1879 (“The
\nCode” for short) do not empower the authorities to take
\nforcible possession and lock the Factory. The power of forfeiture of
\nthe occupancy under Section 150(b)  does not empower the authorities
\nto close down the industry and deprive the applicant of its property.
\nThe power of forfeiture has to be exercised in terms of Section 153.
\nThe proviso to Section 153 is mandatory, and the power of forfeiture
\ncannot be exercised unless the conditions stipulated in clauses (a)
\nand (b) of the proviso to Section 153 are satisfied. These conditions
\nhave not  been satisfied because no action as prescribed by Sections
\n165 and 166, has been taken.\n<\/p>\n
(d)\tIt
\nis a settled principle of law that deprivation of property can only
\ntake place if there is a specific provision that so permits, and in
\nthe present case there is no such specific provision empowering
\nrespondent No.3 to seal the Factory.\tThe action of the respondents in
\ndispossessing the applicant has been taken in disregard of the
\nrequirements of the rule of law.\n<\/p>\n
\tIn
\nsupport of the above contentions reliance has been placed upon
\n(1)\tBishan Das v. State of Punjab, AIR<\/a> 1961 SC 1570
\n (Paras 11 to 14) and (2) Meghmala v. G.Narasimha Reddy,<\/a>
\n(2010) 8 SCC 383 (Paras 46 to\n<\/p>\n
49).\n<\/p>\n
(e)\tThe
\naction of the first respondent in raising the demand and sealing the
\nFactory of the applicant is ex facie unreasonable and lacking in
\nbonafides. The said demand was made on 10-07-1990. The applicant
\napproached the Bombay High Court by filing Writ Petition No.2250 of
\n1990 and, initially, protection was granted to it on 06-08-1990. The
\nsaid petition was later
\nwithdrawn with a view to approaching the Drug
\nPricing Liability Review Committee(“DPLRC” for short)
\nconstituted by the Central Government. While allowing withdrawal the
\nCourt made it clear that it was open to the Department to enforce the
\nrecovery. However, no action was taken by the respondents. The
\nproceedings before the DPLRC continued from 1996 to 2004 and the
\nReport was supplied on 17-07-2006. The Mamlatdar, thereafter, issued
\nnotices dated 17-12-2005, 16-01-2006, 26-09-2008 and 25-05-2010 under
\nthe Bombay Land Revenue Code,1879.\n<\/p>\n
(f)\tThe
\npetition filed by the applicant is pending final decision. It was
\ntaken up for final hearing on 23-24\/06\/2011, and has been adjourned
\nto 20-07-2011.  Apprehending that some coercive measures would be
\ntaken, the applicant served letter dated 23-06-2011 upon the third
\nrespondent. Despite the same, the said respondent, with the help of
\nthe police, threw out the workers and employees of the applicant and
\nsealed the Factory, even when chemically volatile goods were in the
\nprocess of various stages of reaction. This action of respondent No.3
\nis  illegal and arbitrary as the matter was in the process of being
\nheard by the Court. Sealing and dispossession of the Factory was
\nnot necessary  for undertaking the procedure of forfeiture of
\noccupancy under Section 150(b) read with Section 153 of the Bombay
\nLand Revenue Code. The said action is unprecedented, and has been
\ntaken with extreme prejudice, knowing fully well that it will result
\ninto heavy loses of the material lying in the Factory, belonging not
\nonly to the applicant but to other Companies; therefore, status-quo
\nante deserves to be restored, by issuing an interim mandatory
\ninjunction.\n<\/p>\n
\tIn
\nsupport of this submission, reliance has been placed upon Dorab
\nCawasji Warden v. Coomi Sorab Warden,<\/a> (1990) 2  SCC 117.\n<\/p>\n
(g)\tThe
\nentire  controversy  revolves around the issue whether the provisions
\nof DPCO 1979 were applicable to the bulk drug FA, from which the
\napplicant is  manufacturing the Formulation known as Flucort. The
\napplicant is in a position to demonstrate that the bulk drug FA has
\nnot been specified either in Schedule I or Schedule II of DPCO 1979,
\nand, therefore, is not covered by DPCO 1979, especially
\nparagraph 7 thereof.\tThe
\n price of the formulation,
\nFlucort, was  not determined under Paragraphs 10 to 13 of DPCO,1979
\nand the “allowed price” of the bulk drug  was not
\ninformed to the applicant. The Central Government never fixed the
\nprice of bulk drug FA,therefore, no liability can arise under DPCO,
\n1979.\n<\/p>\n
(h)\tThough
\nthe applicant submitted its representation and was heard by the first
\nDPLRC, it was not granted an opportunity of hearing before the Second
\n DPLRC  made its report, on the basis of which the order of demand
\nhas been issued.\n<\/p>\n
(i)\tWithout
\nadmitting any liability, the principle amount could have been claimed
\nonly in respect of the period subsequent to 26-06-1984, being the
\ndate on which the price of Flucort was  fixed  and notified,
\ntherefore, the liability, though disputed, would have to be
\nrecalculated.\n<\/p>\n
(j)
\nIn any case, under paragraph 7 of DPCO 1979, the authorities have
\ndiscretion to proceed under paragraph 7(2)(a) or paragraph 7(2)(b) if
\nthey comes to the conclusion that the Manufacturer was able to
\nprocure the bulk drug at a price lower than the “allowed price”
\nof the bulk drug. The Central Government has chosen to exercise
\npowers under paragraph 7(2)(b) by fixing the price of the
\nFormulation, by notification dated 20-06-1984. Thereafter, it is not
\nopen to direct recovery under paragraph 7(2)(a) from the year 1979.
\nEven otherwise, after the repeal of DPCO 1979, no action under Clause
\n4 of DPCO 1987 was permissible as no amount had “accrued on
\naccount of any action” under DPCO 1979 and action was taken for
\nthe first time on 10-7-1990.\n<\/p>\n
(k)
\nThat the applicant is not in a position to liquidate its property in
\nview of the Undertaking given to the Bombay High Court, which is
\nstill subsisting. The applicant has also made a representation dated
\n02-07-2011 which contains a proposal to make payment of
\nRs.5,73,49,357\/- within the time schedule specified therein.\n<\/p>\n
5.\tThe
\n applicant has a good prima facie case, and is likely to succeed. The
\nbalance of convenience is also in favour of the applicant. No harm or
\nprejudice would have resulted to the respondents had the applicant
\nbeen permitted to continue operating  the Factory. The applicant
\nwould suffer irreparable loss and injury if status-quo ante is not
\nrestored, therefore, the interest of justice would demand that the
\nprayers made in the application be granted.\n<\/p>\n
6.\tThe
\napplication has been strongly resisted by Mr.Hriday Buch, learned
\nCentral Government Standing Counsel, on behalf of the first
\nrespondent. The submissions made by him are summarised as under:\n<\/p>\n
(a)\tThe
\ngrant of relief as prayed for in  the application would amount to
\nfinally allowing the Writ Petition at the interim stage. The
\napplicant  has already prayed for the same relief in the  Writ
\nPetition by amending the prayers, therefore, the very same relief, in
\nthe nature of interim relief, may not be granted.\n<\/p>\n
(b)\tDuring
\nthe hearing of the main petition on 22-23\/6\/2011, the stand of the
\nfirst respondent was very clear and unambiguous. It was submitted, in
\nno uncertain terms, that the interim relief granted by the High Court
\nof Bombay vide order dated 16-12-1996, would not apply to the
\napplicant because the liability had arisen during the subsistence of
\nDPCO 1979  which is prior in point of time. The applicant has failed
\nto comply with the same by not depositing the “unintended
\nbenefit” accrued in the Drug  Prices Equalisation Account
\n(“DPEA” for short). At the time of hearing of the
\npetition the learned counsel for the applicant  did not press for
\ngrant of  interim relief, and his statement has been recorded in
\norder dated 24-06-2011. The applicant has been served with notice
\ndated 08-06-2011, issued by the third respondent, intimating  that
\nthe Factory would be sealed if the demand is  not met. It was in the
\nknowledge of the applicant that the Factory could be sealed even at
\nthe time of hearing the petition on 23-24\/06\/2011.The applicant had
\nprior notice of the sealing but did not challenge the notice dated
\n08-06-2011 before the appropriate forum. It would not now be open to
\nthe applicant to pray for similar relief, which was not consciously
\npressed at that point  of time.\n<\/p>\n
(c)\tInitially,
\nvide order dated 06-08-1990 of the High Court of Bombay, protection
\nwas granted to the applicant, which continued for many years.  The
\nDivision Bench of the High Court of Bombay, while permitting
\nwithdrawal of the petition filed by the applicant, has vacated the
\ninterim relief and has permitted the respondents to recover the
\namount, by following necessary procedure. As the demand is a very old
\none, and the total amount due from the applicant is almost nineteen
\ncrores, the respondents are within their rights in effecting recovery
\nof the said amount, as prescribed by law. The Factory of the
\napplicant has been closed\/sealed pursuant to the procedure followed
\nfor recovery of the demand. Hence, it is not open to the applicant to
\nchallenge the same before this court, more particularly as the
\napplicant has not preferred any Appeal or Revision, as contemplated
\nin  Chapter XIII of the Bombay Land Revenue Code, against any of the
\norders\/notices issued by the Mamlatdar.\n<\/p>\n
(d)\tThe
\ncontention of the applicant that respondent No.1 has no power to
\ndispossess and lock the Factory is erroneous, and per se contrary to
\nthe provisions of law. The demand has been raised by the first
\nrespondent under the DPCO 1979, read with various provisions of
\nsubsequent DPCOs. Further, the DPCO is enacted by the Central
\nGovernment in exercise of powers conferred upon it under Section 3 of
\nthe Essential Commodities Act.1955 (“The Act” for short).
\nIn view of the provisions of Section 7A of the  Act, power  is vested
\nin the Central Government to recover the amount as arrears of land
\nrevenue, as per  procedure prescribed under the provisions of the
\nBombay Land Revenue Code.\tAs per the Scheme of the Bombay Land
\nRevenue Code, arrears of land revenue shall be a paramount charge
\nwhich can be recovered from the land or anything attached or fastened
\nto the land by forfeiting the same and, thereafter, save the same
\nuntil the levy is satisfied. Further, an arrear of land revenue may
\nbe recovered by various processes and sale of immovable properties.
\nThe procedure has been initiated in the year 2005 and has culminated
\nin sealing of the Factory, as the applicant has not paid the amount
\ndue from it,  in spite of several notices being served.\n<\/p>\n
(e)
\nThe contention that the procedure, as contemplated under Section 165
\nof the Bombay Land Revenue Code is not followed is erroneous and
\nmisleading. In fact, the said provision provides for the procedure
\nfor effecting sale of the property and issuance of a Notification.
\nThe record of the petition clearly establishes that a Notice, as
\ncontemplated under Section 152 of the Bombay Land Revenue Code, was
\nserved upon the applicant as far back as on 17-12-2005. A bare
\nreading of the said notice clearly reveals that if the amount
\nmentioned therein is not paid on, or before, 23-01-2006, procedure
\nfor forfeiture and sale shall be carried out. Again, on 26-09-2008, a
\nsimilar Notice was issued.  The same has not been produced on the
\nrecord of the petition but has been referred to in other documents
\nannexed to the petition. On 16-07-2008 and 01-01-2009, the Collector,
\nBharuch has informed the Mamlatdar, Ankleshwar, to effectively and
\nexpeditiously  effect the recovery proceedings from the applicant.
\nThe Mamlatdar was, therefore, specifically authorized to do the
\nneedful. Further,  Notices as contemplated under Section 154 of the
\nBombay Land Revenue Code were issued on 09-02-2009 and on 05-09-2009,
\nwhich is evident from the record of the petition. A similar notice
\nwas issued on 24-05-2010. Again on 09-03-2010 and 05-07-2010, notices
\nas contemplated under Section 200 of the Bombay Land Revenue Code
\nhave been issued wherein it has specifically been mentioned that if
\nthe amount mentioned therein is not paid, the authority shall enter
\ninto the premises, forfeit the same and carry out the distraint sale.
\nLastly, on 08-06-2011 the applicant was specifically informed that
\nthe Factory is required to be sealed  during the process of
\nforfeiture and distraint sale. The applicant was, therefore, aware
\nabout the impending action.  It is in furtherance of the procedure
\ninitiated for recovery of arrears of land Revenue that the Factory
\npremises of the applicant have been locked\/sealed However, the
\nauthorities had specifically permitted cold storage and other
\nimportant areas of the Factory premises to continue. The same have
\nnot  been disturbed in the interest of the stock stored by the
\napplicant.\n<\/p>\n
(f)\tAs
\nper the Major Law Lexicon by  P.Ramanath Iyer, 4th
\nEdition, 2010, forfeiture has several meanings, one of which is that
\n“forfeiture is the divesture of specific  property without
\ncompensation in consequent of some default or act forbidden by law”
\nand “the compulsory surrender of property for fault to comply
\nwith a contract of law”. The word “forfeiture”
\nmeans  the fact of losing or becoming liable to deprivation of goods,
\nin consequence of a crime, offence or breach of engagement. The word
\n“forfeiture” is used in the sense of deprivation of
\nlosing of rights or extinction of rights. Thus, during
\nthe process of recovery of the demand, wide powers of forfeiture and
\ndistraint sale are conferred upon the authorities under the Code, to
\nrecover as an arrear of land revenue; therefore, it is completely
\nincorrect to say that there is no power to seal\/lock the Factory of
\nthe applicant.\n<\/p>\n
(g)\tThe
\nBombay Land Revenue Code is a complete Code with regard to the
\narrears of land revenue and confers wide powers of forfeiture and
\ndistraint sale.  By no stretch of imagination can it be said that the
\nsaid power does not include the power to lock\/seal and\/or attach the
\nland. If such a contention, as raised by the applicant, is accepted,
\nthe same would render the whole procedure laid down in the Bombay
\nLand Revenue Code, redundant and unworkable.\n<\/p>\n
(h)\tThe
\ndecisions relied upon by the learned advocate for the applicant would
\nnot apply to the present case, especially when the action of the
\nauthorities is permitted by law, and such action  has been taken by
\nfollowing the procedure and process prescribed by law.\n<\/p>\n
(i)\tThe
\napplicant has not shown any willingness to deposit even the principle
\namount of Rs.678.73 lakhs in order to show its bonafides, against its
\nliability of more than nineteen  crores. Therefore, no discretionary
\nrelief may be granted in favour of the applicant, much less interim
\nmandatory relief.\n<\/p>\n
(j)\tThe
\nfirst respondent has no objection to opening the seal\/lock applied to
\nthe Factory of the applicant if the applicant makes the  deposit of
\nthe liability, which the applicant is not ready to do.\n<\/p>\n
(k)\tThe
\napplicant has completely failed to show that there is a prima facie
\ncase in its favour for grant of interim relief, much less mandatory
\ninterim relief. The action of forfeiture and  dispossessing are yet
\nto follow and the action of sealing has taken place after about 21
\nyears therefore, the balance of convenience does not be  in favour of
\nthe applicant.\n<\/p>\n
(l)\tThe
\n issue, today, is not whether to open the lock  but whether the
\napplicant  was liable to pay the amount that is demanded from it. If
\nthe applicant pays the amount and thereafter succeeds in the
\npetition, the said amount with 15% interest, shall be refunded to the
\n applicant; therefore, there is no question of irreparable loss being
\nfaced by the applicant.  Further,in view of the provisions of
\nsub-section (4) of Section 7-A of the Act, the applicant is not
\nlikely to suffer any irreparable loss.\n<\/p>\n
(m)\tMr.Hriday
\nBuch, learned Central Government Standing Counsel, has relied upon
\nUnion of India v. Cynamide India Ltd., AIR<\/a> 1987 SC 1802 in
\norder to contend that price fixation is not the function nor the
\nforte of the Court and that Legislative action, plenary  or
\nsubordinate, is not subject to rules of natural justice. It is
\nsubmitted that in the present case, the applicant has been heard by
\nthe DPLRC and its representations have been considered. Notices have
\nbeen issued to the applicant  regarding the recovery proceedings,
\ntherefore, it cannot be said that it was not aware regarding the
\nprocedure adopted under the Bombay Land Revenue Code.\n<\/p>\n
(n)\tReferring
\nto Mukesh Kishanpuria v. State of West Bengal,<\/a> 2010(2) GLH 200  it
\nis contended by Mr.Hriday Buch that the contention raised by the
\nlearned Senior Advocate for the applicant that there is no power
\nunder the Bombay Land Revenue Code to attach the Factory of the
\napplicant, is not correct as it has been held by the Supreme Court in
\nthe said judgment that, when wider powers have been conferred,
\nnarrower powers are automatically vested in the authority and the
\ncourt that has the power to grant regular bail also has the power to
\ngrant interim bail, pending final decision of the bail application.\n<\/p>\n
(o)\tReference
\nhas also been made to  Corporation Bank v. Saraswati Abharansala,<\/a>
\n(2009) 1 SCC 540 and a submission is advanced that a Statute
\nshould not be considered in a manner which would defeat its object
\nand the principle of purposive construction should be followed to
\nfind out the object of the Act. It is contended that to hold that
\nthere are no powers of attachment under the provisions of the Bombay
\nLand Revenue Code would amount to defeating the very object of the
\nStatute.\n<\/p>\n
(p)\tDistinguishing
\nthe case of Dorab Cawasji Warden v. Coomi Sorab Warden (Supra),<\/a>
\nrelied upon by the learned Senior Advocate for the applicant for
\ngrant of mandatory interim injunction, it is submitted that it was a
\ncase where the parties had over-reached the process of  law wherein
\nthe Supreme Court thought it fit, in the peculiar facts of the case,
\nto grant relief of mandatory interim injunction. It is contended by
\nMr.Buch that the factual scenario in the present case is totally
\ndifferent and the demand made upon the applicant is sought to be
\nrecovered for the past 21 years, for which proceedings have been
\ninitiated, therefore, the principles of law enunciated in Dorab
\nCawasji Warden v. Coomi Sorab Warden (Supra),<\/a> would have no
\napplication in the present case.\n<\/p>\n
(q)\tThe
\nlearned Central Government Standing Counsel, has also relied upon the
\nprinciples of law enunciated in judgment dated 13-05-2010, rendered
\nin Letters Patent Appeal No.1166 of 2008, arising out of Civil
\nApplication No.11373 of 2008, regarding grant of interim relief.\n<\/p>\n
7.\tUpon
\nthe strength of the above arguments it is urged that no relief as
\nprayed for, be granted to the applicant and the application be
\ndismissed, with costs.\n<\/p>\n
8.\tIn
\nrejoinder, Mr.K.S.Nanavati, learned Senior Advocate has largely
\nreiterated the submissions made by him earlier, and has brought to
\nthe notice of this Court certain orders passed by the Bombay High
\nCourt and the Supreme Court in other proceedings where interim relief
\nhas been granted to the petitioners therein. The same have been
\nperused by the Court and not found to be applicable to the facts
\nobtaining in the present case.\n<\/p>\n
9.\tMr.J.K.Shah,
\nlearned Assistant Government Pleader appearing for the third
\nrespondent has submitted that the said respondent is  acting as an
\nAgent of the first respondent, for effecting recovery of the arrears
\nof land revenue  under  the provisions <\/p>\n
of
\nthe Bombay Land Revenue Code. It is submitted that  on 08-06-2011, a
\nnotice has been issued by the Mamlatdar to the applicant, intimating
\nthat the Factory of the applicant would be sealed. The said notice
\ncould have been challenged by the applicant under the provisions of
\nSection 211 of the Bombay Land Revenue Code read with Rule 108 (6).
\nHowever, this  has not been done. The Mamlatdar has been authorised
\nby the Collector to exercise power for effecting recovery, in
\naccordance with the procedure prescribed  under the Bombay Land
\nRevenue Code. The third respondent has complied with all the
\nprovisions of the Bombay Land Revenue Code and a proposal has been
\nsent in respect of the procedure to be carried out under the
\nprovisions of Sections 165  and 166. Chapter XII of the Bombay Land
\nRevenue Code confers wide powers, including the power to effect
\nrecovery as arrears of  land Revenue.  The action of the 3rd
\nrespondent in sealing the Factory of the applicant has been taken in
\nfull compliance with the provisions of the Bombay Land Revenue Code.\n<\/p>\n
\tIn
\nsupport of the above contentions, reliance has been placed upon the
\nfollowing decisions:\n<\/p>\n
(1)\tA.M.Choksi
\nv. S.V.S.Bank Ltd.,<\/a> 1998(1) GLR 154<\/p>\n
(2)\tR.S.Joshi
\nv.Ajit Mills Ltd., (1977)(4) SCC 98<\/p>\n
(3)\tCommissioner
\nof Income Tax v. Hindustan Bulk \tCarriers,<\/a> (2003)3 SCC 57<\/p>\n
(4)\tChhotalal
\nV.Kakkad v. State of Gujarat, 1973 GLR \t279<\/p>\n
(5)\tUnion
\nof India v. Alok Kumar,<\/a> (2010)5 SCC 349<\/p>\n
10.\tI
\nhave heard learned counsel for the respective parties  at length and
\nin great detail, perused the averments made in the application  and
\ndocuments on record, and considered the  rival submissions advanced
\nat the Bar.\n<\/p>\n
11.\tAt
\nthe outset, it is necessary to make it clear that this application
\nhas been filed pending  the final adjudication of the main petition,
\nwherein similar prayers have been made. The specific prayer in the
\napplication is for grant of interim mandatory relief by restoring the
\nstatus-quo ante, directing the respondents to remove the seals
\napplied on the  Factory of the applicant and permit the applicant to
\ncontinue the process of manufacture.\n<\/p>\n
12.\tThe
\nmain ground of challenge to the action of sealing the Factory is to
\nthe effect that the provisions of Section 150(b) and 153 of the
\nBombay Land Revenue Code do not empower the authorities to take
\nforcible possession and lock the Factory. According to the learned
\nSenior Advocate, the proviso to Section 153 is mandatory and can only
\nbe  exercised if the conditions stipulated in clause (a) and (b) of
\nthe proviso are adhered to, namely, by following the procedure
\nenvisaged under Section 165 and 166  of the Bombay Land Revenue Code.
\nAccording to the learned Senior Advocate, there is no provision in
\nthe Bombay Land Revenue Code that empowers the respondents to seal
\nthe Factory. The petition has been permitted to be amended to include
\na necessary ground and a prayer for issuance of a   mandatory order
\nto this effect.\n<\/p>\n
13.\tThe
\nsubmission regarding whether the respondents have power under the
\nBombay Land Revenue Code to seal the Factory and whether such power
\nhas been legally exercised, is also in issue  in the Writ Petition.
\nTo render any finding upon such issues at this stage, would amount to
\npre-judging the petition.  Similarly, the legality and validity of
\nthe demand of the principle amount of Rupees 678.73 lakhs which has
\nescalated to about nineteen crores with interest, is also the subject
\nmatter of adjudication in the petition. Being conscious of the above
\nfacts, it would not be appropriate, at this stage, to enter into the
\nmerits of the case, insofar as the core issues involved in the
\npetition are concerned. The prayers made in the application  will,
\ntherefore, be considered in accordance with the established
\nparameters for grant of interim relief and  mandatory interim relief,
\n in the background of the legal and factual  position  obtaining in
\nthe case.\n<\/p>\n
14.\tIn
\nthe case of  Dorab Cawasji Warden v. Coomi Sorab Warden (Supra),
\nthe<\/a> factual matrix was entirely different to the one existing in the
\npresent case.   In that case,land was purchased by the parents of the
\nappellant and the appellant as joint owners, and a  building was
\nconstructed thereupon. By a Registered Deed of declaration,  it was
\ndeclared that the appellant had an undivided share in the property as
\njoint tenant and that the declarants had a right to sever the joint
\ntenancy at any time. After the death of the mother of the appellant,
\nthe appellant and his father agreed to hold the property as
\ntenants-in-common instead of joint tenants, each having an equal
\nundivided share therein so as to be able to dispose of his undivided
\nshare. The appellant’s father transferred his undivided half share in
\nthe property in favour of  another son, on his attaining majority.
\nThe appellant and his brother came to hold equal undivided one half
\nshare each as tenants-in-common in respect of the said property. The
\nbrother of the appellant was living with his father and the
\nappellant,  and it was only after his marriage that the two brothers
\noccupied different portions of the house with separate kitchens. The
\nappellant’s brother died intestate leaving behind his widow and two
\nminor sons (Respondents Nos.1 to 3). The sons sold their undivided
\nhalf share in the property to respondent No.4 and his wife. The
\npurchasers took possession of the property pursuant to the Sale Deed.
\nThe appellant filed a Suit, praying for a perpetual injunction
\nrestraining respondents Nos.1 to 3 from parting with possession of
\nthe property and\/or inducting any third party into it and from
\nrestraining the purchasers from entering into  it or taking
\npossession. The trial Court granted an interim mandatory injunction
\nrestraining respondent  No.4 from remaining in possession or enjoying
\n the suit property. In appeal, the High Court set aside the order
\ngranting injunction.  Since the purchasers had occupied the disputed
\nportion, the question for consideration was whether the appellant was
\nentitled to injunction in a mandatory form, directing the purchasers
\nto vacate the premises. There was a clause in the Agreement to sell,
\nto the effect that pending the completion of the sale if any Suit is
\nfiled by the appellant against the vendors and an injunction is
\nobtained restraining the vendors  from selling the property, then the
\nvendors shall have the option to keep the sale in abeyance and\/or
\ncancel and rescind the Agreement. In the above factual matrix, the
\nSupreme Court thought it just and necessary that a direction should
\ngo to the respondents to undo what they had done with knowledge of
\nthe appellant’s rights to compel the purchaser or to deny joint
\npossession.\n<\/p>\n
15.\tIn
\nthe present case, the demand of Rs.5,73,49,357 has been made upon the
\napplicant on 17-07-1990. As per paragraph 7(2)(a) of DPCO 1979, the
\napplicant could have deposited the amount into the Drugs Prices
\nEqualisation Account.  Had the applicant deposited the amount, and in
\nthe event of its success in the litigation, the respondents would
\nhave been bound to refund the said amount, with 15% interest. As the
\ndemand made by the first respondent was not met by the applicant,
\nproceedings under the provisions of the Bombay Land Revenue Code, to
\nrecover the amount as arrears of land revenue were initiated by
\nissuing notice under Section 152, on   17-12-2005. It is clearly
\nmentioned in the said notice that  if the amount is not paid before
\n23-01-2006, procedure for forfeiture and sale shall be carried out.
\nThereafter, another notice has been issued on 26-09-2008. On
\n16-07-2008 and 01-01-2009, the Collector, Bharuch has informed the
\nMamlatdar, Ankleshwar to effectively and expeditiously carry out the
\nthe recovery proceedings from the applicant. Notices under the
\nprovisions of Section 154 of the Bombay Land Revenue Code were issued
\non 09-01-2009 and on 05-09-2009. Another notice was issued on
\n24-05-2010. Again, on 09-03-2010 and 05-07-2010, notices under
\nSection 200 of the Bombay Land Revenue Code have been issued, wherein
\nit has been specifically mentioned that if the amount mentioned  is
\nnot paid, the authority shall enter into the premises and forfeit and
\ncarry out the distraint sale. Thereafter, on 08-06-2011, the
\napplicant has been specifically informed that the Factory is required
\nto be sealed during the process of forfeiture and distraint sale. By
\nissuing the  above-mentioned notices and following the  procedure
\nenvisaged under the provisions of the Bombay Land Revenue Code, stage
\nby stage, the applicant has been informed that the Factory is likely
\nto be sealed. This fact is very much within the knowledge of the
\napplicant.  None of the said notices have been challenged by the
\napplicant before the appropriate forum available under the Bombay
\nLand Revenue Code. As a consequence of the notice dated  08-06-2011,
\nthe Factory of the applicant has been sealed. In this factual
\nbackground, the submission of the learned Senior Advocate that the
\nFactory has been sealed all of a sudden with the help of Police
\npersonnel, does not inspire confidence. The notice dated 08-06-2010
\nhas not been placed on record by the applicant, though it is admitted
\nduring the course of hearing. A copy of the same has been produced by
\nthe learned Assistant Government Pleader. A perusal thereof makes it
\nclear that the applicant has been informed in clear terms that if it
\nfails to pay the  amount demanded, the Factory would be sealed. The
\napplicant was aware of the impending sealing of the Factory  even at
\nthe time of hearing of the petition on 23-24\/06-2011.\n<\/p>\n
16.\tIt
\nwould be fruitful, at this stage, to refer to certain judgments of
\nthe Supreme Court wherein the principles of law regarding grant of
\ninterim relief have been enunciated.\n<\/p>\n
17.\tIn
\nthe case of  Assistant Collector of Central Excise v. Dunlop India
\nLtd., AIR<\/a> 1985 SC 330, relying on the earlier decisions of the
\nSupreme Court in Titaghur Paper Mills Co.Ltd.v. State of Orissa,
\nAIR 1983 SC 603 and Union of India v. Oswal Woollen Mills
\nLtd., AIR<\/a> 1984 SC 1264, the Supreme Court held as under:\n<\/p>\n
\t“5.\n<\/p>\n
We repeat and deprecate the practice of granting interim order  which
\npractically  give the principal relief sought in  the petition for no
\nbetter reason than that a prima facie  case has been made out,
\n without being concerned about the  balance of convenience, the
\npublic interest  and a host  of   other  relevant
\nconsiderations. Regarding the practice of  some clever  litigants
\nof resorting to  filing writ  petitions in  far-away  courts  having
\ndoubtful jurisdiction, we had this to observe:\n<\/p>\n
\t“……\n<\/p>\n
Having regard to the fact that the registered office of the Company
\nis at Ludhiana and the principal respondents against  whom the
\nprimary relief is sought are at  New Delhi, one would  have expected
\nthe writ petition to be filed either in the High Court of Punjab and
\nHaryana  or \tin the Delhi High  Court. The writ petitioners however,
\nhave chosen the Calcutta High Court as the forum perhaps because one
\nof the interlocutory reliefs which is sought is in respect of a
\nconsignment of beef tallow which has arrived at the Calcutta Port. An
\ninevitable result of the filing of writ petitions  elsewhere than  at
\nthe  place where the concerned offices and the relevant records are
\nlocated is to delay prompt return and contest. We do not desire to
\nprobe  further into  the question  whether the writ petition was
\nfiled by design or accident in the Calcutta High  Court when the
\noffice of the Company is     in the State of Punjab and all the
\nprincipal respondents are in Delhi. But we do feel disturbed that
\nsuch writ petitions are often deliberately  filed in distant High
\nCourts, as part of a manoeuvre in a   legal battle, so as to render
\nit difficult for the officials at  Delhi to move applications to
\nvacate stay     where it becomes necessary to file such
\napplications”.\n<\/p>\n
     In
\nUnion of India  v.  Jain  Shudha  Banaspati Ltd.<\/a>(supra), Chandrachud,
\n CJ., A.P. Sen, R.  N. Misra, JJ. allowed an  appeal  against  an
\ninterim  order making the following observations:\n<\/p>\n
\t“After
\nhearing learned counsel for the rival parties, we  are of the opinion
\nthat the interim order passed by the High  Court on November 29, 1983
\nis not warranted since it virtually grants to the respondents a
\nsubstantial part of the relief claimed by  them in their writ
\npetition. Accordingly, we set aside the said order”.\n<\/p>\n
      We
\nhave come across  cases where the  collection  of public revenue has
\nbeen seriously jeopardised and budgets of Governments and Local
\nAuthorities affirmatively prejudiced to the point of precariousness
\nconsequent upon interim orders made  by courts. In fact,
\ninstances have come to our knowledge where Governments have been
\nforced to explore further sources for raising revenue, sources which
\nthey would rather well  leave alone in the public interest, because
\nof the stays granted by courts. We have come across cases where an
\nentire Service is left in a stay of flutter and unrest  because of
\ninterim orders passed by  courts, leaving the  work they are supposed
\nto do in a state of suspended animation. We have come across cases
\nwhere buses and lorries are being run under orders of court though
\nthey were either denied permits or their  permits had been cancelled
\nor suspended by Transport Authorities. We have come across cases
\nwhere liquor shops are being run under interim orders of court.  We
\nhave come  across  cases where the collection of monthly rentals
\npayable by Excise Contractors has been  stayed with the result that
\nat the and of the year the contractor has paid nothing but  made his
\nprofits from the shop and walked out. We have come across cases where
\ndealers in food grains and essential commodities have been allowed to
\ntake back  the stocks seized from them as if to permit them to
\ncontinue to indulge  in the very practices which were to be
\nprevented by the seizure. We have come across cases where land reform
\nand important welfare legislations have  been stayed by courts.
\nIncalculable harm has been done by such interim orders. All this is
\nnot to say that interim orders may never be  made against public
\nauthorities. There are, of course, cases which demand  that interim
\norders should be  made in the interests of justice. Where gross
\nviolations of the law and injustices are perpetrated or are about to
\nbe perpetrated, it is  the bounden  duty of  the court to intervene
\nand give appropriate interim relief. In cases where denial of interim
\nrelief may  lead  to  public  mischief,  grave irreparable private
\ninjury or  shake a citizen’s   faith  in the impartiality of public
\nadministration, a Court may well be justified  in granting interim
\nrelief  against public authority. But since the law  presumes that
\npublic authorities function  properly and  bonafide with due regard
\nto the public interest, a court must be circumspect in granting
\ninterim orders of far reaching dimensions or orders causing
\nadministrative, burdensome inconvenience or orders preventing
\ncollection of public revenue for no better reason than that  the
\nparties have  come to the  Court  alleging prejudice, inconvenience
\nor harm and that a prima facie case has been  shown. There can be and
\nthere are no hard and fast rules. But  prudence,\tdiscretion and
\ncircumspection are called for.  There are several other vital
\nconsiderations apart from the existence of a prima facie case. There
\nis the question of balance of convenience. There is the question of
\nirreparable injury.  There is the question of the public interest.
\nThere are many such factors worthy of consideration. We often wonder
\nwhy in the case (of) indirect taxation where the burden has already
\nbeen passed on to the consumer, any interim relief should at all be
\ngiven to the manufacturer, dealer and the like.”\n<\/p>\n
\t\t\t\t(emphasis
\nsupplied)<\/p>\n
18.\tThe
\nabove principles of law enunciated by the Supreme Court are extremely
\napt and squarely apply to the facts of the present case. From the
\nentire factual background of the case and a scrutiny of the
\nprovisions of law applicable, including those of the Bombay Land
\nRevenue Code, prima facie, no such  grave violation of law, as
\nalleged is apparent, so as to warrant the grant of mandatory interim
\nrelief to the applicant. The amount under demand, inclusive of
\ninterest has now reached the enormous figure of about nineteen
\ncrores. The initial demand has been made on 10-07-1990, and
\nproceedings for recovery of the demand as arrears of land revenue
\nhave been intimated on 17-12-2005, culminating in the sealing of the
\nFactory of the applicant, pursuant to the notice dated 08-06-2011.\n<\/p>\n
19.\tIt
\nis pertinent to note that ever since the year 1990, the applicant has
\nnot paid even a single rupee towards the demand, pending litigation,
\nleave alone a substantial sum or even the principle amount. During
\nthe course of hearing of the application, the applicant showed its
\ninability to pay even the principle amount upfront and it was
\nsubmitted that it has sent its own proposal to the first respondent.
\nThe Court is not concerned with such a proposal. The fact remains,
\nthat against the total demand of about Rupees nineteen crores, not
\neven a single rupee has been paid by the applicant. It was open to
\nthe applicant  to have deposited the amount in the DPEA as provided
\nin Paragraph 7(2)(a) of DPCO 1979. If the applicant is  successful
\nin the petition, the amount would have been refunded to it with 15%
\ninterest. Having consciously chosen not to  deposit the amount or pay
\nthe demand, the applicant can have no grouse if proceedings for
\nrecovery under the provisions of the Bombay Land Revenue Code are
\ninitiated. At no stage has the applicant challenged those proceedings
\nbefore the appropriate forum. Even the notice dated 08-06-2011
\nremains unchallenged, though there are remedies available under the
\nBombay Land Revenue Code itself.\n<\/p>\n
20.\tIt
\nis, therefore, clear that the applicant  was very well aware, all
\nthroughout, of the consequences that would follow if the demanded
\namount is not paid. The pendency of litigation in  a court of law or
\nfiling of the petition, in which  no interim relief has been granted
\nwould  not, of itself, justify the non-payment of the  huge and
\nlong-outstanding demand. The applicant was informed  on 08-06-2011
\nthat the Factory  would be closed in the process of recovery  as
\narrears of land revenue. If, today, 300 workers have been rendered
\njobless, as emphasised by the learned Senior Advocate, it is the
\napplicant alone that is responsible for creating such a situation.
\nThe respondents have nothing to do with the workers directly and any
\ngrievance that the workers may have can only be directed against the
\napplicant. Similarly, if there are goods of other Companies in the
\nfactory, it was open to the applicant to remove or return them, in
\nview of the fact that it had been informed by notice dated
\n08-06-2011, that the Factory would be sealed. It is not open to the
\napplicant at this stage, to take shelter behind the plea of the
\nworkers being rendered jobless, or goods of other Companies being
\ndamaged. No equity can be claimed on these counts by the applicant.
\nThe situation that has emerged is a result of the adamance of the
\napplicant  in refusing to pay a substantial portion of the demanded
\namount, during the pendency of the litigation.\n<\/p>\n
21.\tIn
\nthe above context, if mandatory interim relief as sought for by the
\napplicant  is granted, it would  virtually amount to allowing the
\nwrit petition and negating the demand made by the respondents, by
\nrendering at naught, the entire proceedings under the provisions of
\nthe Bombay Land Revenue Code.\n<\/p>\n
22.\tAs
\nalready made clear earlier, this Court would prefer not to enter into
\nthe merits of the case or adjudicate upon issues that have been
\nraised in the petition. For this reason, certain specific contentions
\nraised by the learned counsel for the parties and judgments cited by
\nthem, are not being specifically dealt with.\n<\/p>\n
23.\tNormally,
\nthe factors that should exist while considering an application for
\ngrant of interim relief are,  existence of a prima facie case,
\nbalance of convenience and irreparable loss to the party, if such
\nrelief is not granted. It may be noted that in matters of public
\nrevenue, the Court has to be extremely cautious while granting such
\nrelief. Much would depend on the facts of each case.\n<\/p>\n
24.\tIn
\nAssistant Collector of Central Excise v. Dunlop India Ltd.
\n(Supra), the Supreme Court<\/a> has held as below:\n<\/p>\n
\t“7.\n<\/p>\n
xxxxxxx Even assuming that the company had established a  prima facie
\n case, about which we do not express any  opinion, we do not think
\nthat it was sufficient justification for granting the interim orders
\nas was done by the High  Court. There  was no question of  any
\nbalance  of convenience being in favour of the respondent-Company.
\nThe balance of  convenience was certainly in favour of the Government
\nof India. Governments  are not  run on mere Bank Guarantees. We
\nnotice that very often some courts act as if furnishing a Bank
\nGuarantee would meet the ends of justice. No governmental business or
\nfor that matter no business of any kind can be run on mere Bank
\nGuarantees. Liquid cash is necessary for the running of a  Government
\nas indeed any other enterprise.   We consider that where matters of
\npublic revenue are concerned, it is of utmost importance to realise
\nthat interim orders ought not to be granted merely because a prima
\nfacie  case has  been shown.  More is  required.\t The balance of
\nconvenience must  be clearly  in favour of the making of an interim
\norder and there should not  be the slightest indication of a
\nlikelihood of  prejudice to the public interest. We are very
\nsorry to remark that  these considerations have not been borne in
\nmind by the High Court and interim order of this magnitude had been
\ngranted for the mere asking. The appeal is allowed with
\ncosts.”\t\t(emphasis supplied)<\/p>\n
25.\tApplying
\nthe above-quoted principles of law \t to the facts of the present
\ncase, in the considered view of this Court, the applicant  does not
\nsucceed in establishing a prime facie case. Similarly, the balance of
\nconvenience does not tilt in its favour. In view of the fact that the
\napplicant can deposit the demanded amount even today, which can be
\nrefunded to it with interest at the rate of 15% in case it succeeds
\nin the petition, it cannot be said that the applicant would  suffer
\nan irreparable loss.\n<\/p>\n
26.\tAnother
\naspect that cannot be ignored is that the demand is a very old one,
\nhaving been made as far back as in the year 1990. The proceedings
\nunder the Bombay Land Revenue Code have been initiated in the year
\n2005. The total demand from the applicant, inclusive of interest, is
\nalmost Rupees nineteen crores which is, by no means, a small amount.
\nMore important, it is public money that is due to the first
\nrespondent, unless  otherwise ruled by a Court of law. Considering
\nthe above aspects which also include the amount of public interest as
\nwell, no prima facie case can be said to exist in favour of the
\napplicant in order to grant mandatory interim relief and restore the
\nstatus-quo ante.\n<\/p>\n
27.\tAs
\na consequence of the above discussion, there does not exist any legal
\n or valid ground to grant the prayers made in the application.\n<\/p>\n
28.\tAs
\na culmination of the above discussion and for reasons stated
\nhereinabove,  no case is made  out for grant of interim relief, much
\nless mandatory interim relief,  in favour of the applicant.\n<\/p>\n
29.\tThe
\napplication is, therefore, dismissed. Rule is discharged. There shall
\nbe no orders as to costs.\n<\/p>\n
   \t\t           \t(Smt.Abhilasha Kumari,J)<\/p>\n
arg<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Lyka vs Union on 8 July, 2011 Author: Abhilasha Kumari, Gujarat High Court Case Information System Print CA\/6923\/2011 45\/ 45 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION – FOR INTERIM RELIEF No. 6923 of 2011 In SPECIAL CIVIL APPLICATION No. 33 of 2011 For Approval and Signature: HON’BLE […]<\/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-98179","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nLyka vs Union on 8 July, 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\/lyka-vs-union-on-8-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lyka vs Union on 8 July, 2011 - 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