Supreme Court of India

RELIANCE INDUSTRIES LTD.versusPRAVINBHAI JASBHAI PATEL AND ORS.

Citation: 1997 INSC 629
Decided: 29 August 1997
Disposal: Appeal(s) allowed
Bench: S B MAJMUDAR

Holding

A difference of opinion between two judges hearing a review petition arising from a writ under Article 226 must be resolved by referring the matter to a third judge under Clause 36 of the Letters Patent; Order 47 Rule 6 CPC and Section 98(2) CPC do not apply.

Summary

The Supreme Court considered an appeal by Reliance Industries Ltd. against the Gujarat High Court’s dismissal of its review petition challenging a writ order passed under Article 226 that directed polluting industries to install effluent treatment. The division bench of the High Court had differed on the merits, and dismissed the review under Order 47 Rule 6 CPC. The Court held that, because the review arose from a decision rendered in the High Court’s original jurisdiction, the procedure prescribed by Clause 36 of the Letters Patent governing a division bench split must apply, requiring referral to a third judge, and that Order 47 Rule 6 and Section 98(2) CPC are inapplicable. Consequently the High Court’s order dismissing the review was set aside and the matter remanded for consideration by a third judge. The judgment also clarified the relationship between Rule 186 of the Gujarat High Court Rules, Section 98(3) CPC and the Letters Patent, affirming the supremacy of the special charter. The appeal was allowed.

Issues considered

When a review petition arising from a decision under Article 226 is heard by a division bench and the two judges differ, should the petition be dismissed under Order 47 Rule 6 of the CPC?
Does Section 98(2) of the CPC apply to such review proceedings, or does Section 98(3) and Clause 36 of the Letters Patent govern?
Is Rule 186 of the Gujarat High Court Rules consistent with Clause 36 of the Letters Patent and the CPC?
Is the review jurisdiction in a writ under Article 226 to be treated as the same original jurisdiction for procedural purposes?

Legislation cited

Code of Civil Procedure, 1908s. Order 47 Rule 5, s. Order 47 Rule 6, s. Section 122, s. Section 129, s. Section 4(1), s. Section 98(1), s. Section 98(2), s. Section 98(3)
Constitution of Indias. Article 226

Subjects

review petitionArticle 226Letters PatentClause 36Section 98 CPCRule 186 Gujarat High Court Rulesdifference of opinionthird judgeoriginal jurisdictionenvironmental pollutionpublic interest litigation

Judgment

A RELIANCE INDUSTRIES LTD.
v.
PRAVINBHAI JASBHAI PATEL AND ORS. •
AUGUST 29, 1997
B
[S.B. MAJMUDAR AND S. SAGHIR AHMAD, JJ.]

Constitution of India-Articles 226 and 227-Filing of writ peti-
tions-Review or w1it orders-Reviewing Bench differs on the question of
law/fact-Held, Proper procedure, was to refer the matter to third Judge for
C his opinion invoking clause 36 of the Letters Patent and not to dismiss the
review petition under Order 47 Rule 6--Rule 186 of the Gujarat High Cowt
Rules also does not lead to different conclusions for Section 98(2) of CPC
and the proviso thereto is not applicable in such a case-However such inap-
plicability of Section 98(2) does not render Rule 186 otiose as Section 98(3)
D would be applicable-Nature of the review jwisdiction is the same as the main
judgement-High Courts-Clause 36 Letters Patent of the Bombay High
Court-Rule 186 of the Gujarat High Court Rulei--Civil Procedure Code,
1908, Order 47 Rules 6 and 5 and Sections 4(1), 98(2), 98(3), 122 and 129.

Some agriculturist in the State of Gujarat filed public interest
E litigation before the High Court seeking di.rections against the industrial
undertaking discharging polluted effiuents in a canal leading to river
'Khari' rendering the water of the river unsuitable for agriculture, making
the agricultural lands infertile and the waters in wells impure. The said
writ petition was allowed by the High Court. The appellants thereafter filed
F a Special Leave Petition against the order of the High Court on the
grounds that they have already installed an effluent treatment plant and
that they were not covered by the order passed by the High Court. The
appellant thereafter filed a review petition before the High Court in
accordance with the direction of this Court in the said SLP. On a difference
of opinion between the Judges of the Division Bench hearing the review
G petition, in applying the procedure under Order 47 Rule 6, of the Code of
Civil Procedure, the review petition of the appellant was dismissed. Hence
this appeal against the order of the Division Bench of the High Court
dismissing the review petition.

H It was contended by the appellant that instead of dismissing the
636
RELIANCE INDUSTRIES LTD. v. P.J. PATEL 637

review petition on difference of opinion between the Judges, it ought to A
have referred the matter to the third Judge under Clause 36 of the Letters
Patent of the High Court of Bombay which was applicable to the High
Court of Gujarat. The appellant further contended that even in view of
Rule 186 of the Gujarat High Court Rules framed under clause 37 of the
Letters Patent, the provisions of Section 98 CPC got attracted and either B
under the proviso to Section 98(2) or under Section 98(3), the reference
ought to have been made to a third Judge.

The contention of the respondent was that that Section 98(2) CPC
was not applicable as the Judges hearing the review petition did not
disagree on the question of law but on the question of fact. It was further C
contended that the respondent that resorting to section 98(3) CPC would
render Rule 186 of the Gujarat High Court Rules otiose and that in case
Section 98(3) CPC attracted Clause 36 of the Letters Patent, that clause
could cover only those cases rendered by the High Court in its original
jurisdi<;tion or appellate jurisdiction.
D
Allowing the appeal, the Court

HELD : 1.1 Admittedly the High Court of Gujarat is governed by the
Letters Patent which earlier applied to its parent High Court of Bombay
and the original writ petition moved in the High Court by way of public E
interest litigation was under Article 226 of the Constitution of India
invoking the original jurisdiction of the High Court. The review petition
moved by the appellant-company stems from the aforesaid decision in the
writ petition. The two Judges of the High Court comprising the Division
Bench which was seized of the review petition, had to decide about the F
apparent error, if any, discernible from the judgment_ of the earlier
Division Bench passed in exercise of original jurisdiction of the High
Court. Consequently, if any difference of opinion arose between the two
Judges regarding the merit of the review petition, ex facie, clause 36 of the
Letters Patent got attracted. It is not possible to uphold the respondents' G
contention that even if clause 36 applied it could not cover review proceed·
ings arising out of decisions in writ petitions under Article 226 invoking
the original jurisdiction of the High Court. It is true that the aforesaid
clause of Letters Patent deals with the decisions of Division Benches
exercising original or appellate jurisdiction. The question of exercise· of
appellate jurisdiction does not arise in the present case. However, in view H
638 SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A of Order 47 Rule 5, CPC in substance a review amounts to reconsideration
of its own decision by the very same court. Review jurisdiction, therefore,
cannot be said to be some independent jurisdiction sought to be exercised
by the court dehors the nature of the jurisdiction exercised by it when the
judgment sought to be reviewed was rendered by it. As the decision sought
B to be reviewed in the present proceeding was rendered by the Division
Bench in exercise of its original jurisdiction, the review proceeding
emanating from the very same judgement would partake the character of
the very same exercise of original jurisdiction subject of course to the -
limitations of review power as enjoined by the well-settled fetters and
parameters for exercise of such review jurisdiction. Therefore the fetters
C of Order 47 Rule 6 CPC would not get attracted to the said review
proceedings as the wide sweep of the provisions of clause 36 of the Letters
Patent being the paramount charter applicable to the High Court of
Gujarat could not be whittled down by the provisions of Code of Civil
Procedure if they were in any way inconsistent with clause 36 of the Letters
D Patent. (647-D-G, 648-D-H, 649-A]

1.2. Moreover, Letters Patent as applicable to the High Court of
Gujarat is a special law in force which confers special jurisdiction or power
and lays down special form of procedure prescribed therein for governing
the cases where the two Judges forming the Division Bench of the High
E Court differed on a question of law or fact. In view of the provisions of
Section 4(1) of CPC, clause 36 of the Letters Patent laying down the Special
Procedure for meeting such a contingency was required to be followed
without in any way being impeded or restricted or being cut across by the
procedural requirements laid down by Order 47 Rule 6 CPC. [649-C-D]
F
1.3. It is true that in exercise of the powers vested in the High Court
under clause 37 of the Letters Patent, rules have been framed by the High
Court for governing the procedure in matters dealt with by the High Court
in exercise of its diverse jurisdictions. The said rule-making power also
flows from the provisions of Sections 122 and 129 of CPC. However a mere
G look at Section 129 CPC shows that the rules framed by the High Court
cannot be inconsistent with the Letters Patent. Keeping in view this
statutory scheme, a conjoint reading of Rule 186 of the Gujarat High Court
Rules for deciding as to how the decisions of a Bench of two or more Judges
disposing of the writ petitions covered by the sweep of these provisions
H have to be processed. Section 98(1) does not conflict with any provisions
RELIANCE INDUSTRIES LTD. v. PJ. PATEL . 639
of the Letters Patent. By its very language, Section 98(2), CPC also would A
remain out of picture in such cases. Under these circumstances there
would remain only the residuary provision of Section 98(3), CPC which
clearly enjoins that nothing in the said section shall be deemed to alter
or otherwise affect any provision of Letters Patent of any High Court. This
, would necessarily need to a back reference to clause 36 of the Letters B
Patent which would remain the solitary provision applicable in the field
for resolving the procedural controversy in such a case. In shor_t when an
application to get reviewed the decision of a Division Bench of the High
Court rendered in exercise of its original civil jurisdiction in a petition
under Article 226 is moved in the High Court and if there is conflict of
decisions between the two Judges constituting the Review Bench, it is only C
clause 36 of the Letters Patent which would govern the same controversy.
Neither Order 47 Rule 6 CPC nor Section 98(2) CPC would apply to such
eventualities arising in these review proceedings.
[650-D, G, 651-H, 652-A, E-H]
Bhaidas Shivdas v. Bai Guiab, AIR (1921) PC 6, referred to. D
1.4. For the applicability of Section 98(2) CPC, the basic requirement
is that the Bench of the High Court consisting of two or more Judges must
be dealing with a case where there ·is a decision of the lower court which
is placed for consideration of the Division Bench of the High Court. E
Consequently, Rule 186 which is of general nature cannot get attracted so
far as original proceedings under Article 226 are concerned but this would
not render the said rule otiose as it would still require Section 98(3) CPC
to be followed in such a case and that in its turn would attract clause 36
of the Letters Patent. Thus for petition under Article 226, Section 98(1)
and (3), CPC can be pressed into service in given contingencies. This apart, F
Rule 186 will operate in its own vigour so far as decisions of Division
Benches of the High Courts dealing with petitions under Articles 227 and
228 are concerned. But even that apart, the mandate of Rule 186 itself
contemplates applicability of procedure of Section 98 CPC which enables
invocation of the procedure of clause 36 of the Letters Patent via Section G
98(3) CPC itself in cases where Section 98(2) does not apply as in the
present case. [656-D-F, 657-C-D]

2. The questions arising for decision in the review proceedings on
which the two Judges either differed in their opinions or did not concur
will have to be referred for the opinion of the third Judge of the High Court H
640 SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A as per Clause 36 of the Letters patent. For that purpose the remanded
review petition will have to be placed before two Judges to enable them to
state the points of their difference as per Clause 36 of the Letters Patent
for being placed for consideration of the third Judge. The Chief Justice of
the High Court is requested to assign the review petition to the appropriate
B Bench and thereafter to -the third Judge for deciding these remanded '
proceedings as per Clause 36 of the Letters Patent at the earliest. It is
obvious that the third Judge will be entitled to consider all the questions
arising out of the difference of opinion between the two Judges, whether
they are questions of fact or questions of law, and the review petition
ultimately will be decided in the light of the decision of the third Judge, as
C per the procedure laid down by Clause 36 of the Letters Patent. It is
obvious that if the ultimate decision in the review proceedings, as
remanded as per the order of this Court, goes against the appellant, it will
be open to the appellant to challenge the said final decision in accordance
with law. [658-B-E]
D CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5891-92
of 1997.

From the Judgment and Order dated 5/7.8.95, 24.10.96 and 25.10.96
of the Gujarat High Court in S.C.A. No. 770/95, M.C.A. No. 1939/95 in
E CA. No. 770/95.

T.R. Andhyarujina, Solicitor General, Soli J. Sorabjee, Kapil Sibal,
Harish N. Salve, Dushyant A. Dave, R. Sasiprabhu, R. Sanjanwala, Ravi
Gandhi, Shyam Devan, Anees Ahmad, Anil Kumar Singh, M. Raval, Ms.
H. Wahl, Ms. S. Hazarika, H.S. Parihar, Gopal Jain, Kuldeep S. Parihar,
F Vijay Panjwani, Anip Sachthey & H. Munshi for the appearing parties.

The Judgment of the Court was delivered by

S.B. MAJMUDAR, J. Leave granted in Special Leave Petitions
G challenging the judgment and order dated 24th and 25th October 1996
passed by the Division Bench of the High Court of Gujarat in Miscel-
laneous (Civil) Application No. 1939 of 1995.

· By consent of learned advocates of parties the appeals were taken
up for final hearing. In these appeals by special leave the appellant-com-
H pany has brought in challenge the judgment and order dated 24th and 25th
RELIANCE INDUSTRIES LTD. v. P.J.PATEL(S.B. MAJMUDAR,J.] 641

October 1996 passed by the Division Bench of the High Court of Gujarat A
in Miscellanceous Civil Application No. 1939 of 1995 arising from Special
Civil Application No. 770 of 1995. Apart from the merits of the controversy
raised by the appellant-company against the aforesaid judgment, it is
necessary to note at the outset one important procedural question which
arises for consideration in these appeals. It runs as under : B
"When in review proceedings arising out of the decision of the
Division Bench of two learned Judges of the High Court rendered
in a writ petition under Article 226 of the Constitution of India
which is in the nature of original proceedings, the two learned
Judges deciding the review petition differ on questions of fact or C
law, whether a reference to a third learned Judge is required to
be made for disposal of the review petition as per the minority
opinion of the three learned Judges or whether on difference of
opinion between them on these questions, the petition is required
to be dismissed under Order XLVII Rule 6, Code of Civil Proce-
dure, 1908 ('CPC' for short), keeping the order sought to be D
reviewed untouched."

As the aforesaid question goes to the root of the matter we thought it fit
to hear the learned counsel for the respective parties· on this question at
the outset. E
Before coming to the grips of the said question it is necessary to note
a few introductory facts leading to the present proceedings.

A public interest litigation petition was moved in the High Court of
Gujarat by the two writ petitioners who were agriculturists having agricul-' F
tural lands in Kheda district of Gujarat State. Said petition was moved
under Article 226 of the Constitution of India. It was alleged that the
industries which had been set up in the industrial estates at Naroda, Vatva
and Odhav on the periphery of Ahmedabad city, were discharging their
polluted effluents into Kharicut canal which, in turn, leads to Khari river. G
It was further alleged that there are about 11 villages in Kheda district
whose only source of water for the purpose of agriculture is from Khari
river. Due to the water pollution caused by the said industries the water in
the Khari river was no longer suitable for agriculture. In addition thereto
the agricultural lands in these villages had lost their fertility and the water
drawn from the wells was having reddish colour even when it was from the H
642 SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A depth of about 300 ft. Various other allegations were made in the writ
petition which tried to cover in its sweep of attack about 756 industrial
units situated in the industrial estates of Gujarat Industrial Development
Corporation, situated at Naroda, Vatva and Odhav and also some of the
textiles units and processing units situated in or nearby Ahinedabad. In the
said writ petition the present appellant was also one of the contesting
B respondents. After hearing the parties concerned the Division Bench con-
sisting of B.N. Kirpal, CJ. (as he then was), and H.L. Gokhale, J., by its
order dated 5th/7th August 1995 allowed the writ petition and issued
various directions against the polluting industries concerned as detailed in
the same judgment. It is not in dispute between the parties that some of
c the industries covered by the said judgment came to this Court by way of
Special Leave Petitions which were dismissed by this Court. So far as the
· appellant is concerned it also challenged the very same judgment of the
High Court by filing Special Leave Petition (C) No. 24916of1995. A Bench
of two learned Judges of this Court consisting of Hon'ble K. Ramaswamy
D and B.L. Hansaria, JJ. passed the following order on 17th November 1995
in the Special Leave Petition of the appellant :

"The petitioner's specific case set up in this Court is that it has
already set up the affluent treatment plant as early as in 1985 at a
cost of Rs. 1.5 crore and that its case was mixed up with other
E cases. It is not discharging any affluent polluted waters into the
canal. If that be so, it would be open to the petitioner to make an
application in the High Court for appropriate review of the order
concerning the petitioner only. Counsel for the petitioner seeks for
and granted two months time."
F
Pursuant to the aforesaid order of this Court the appellant moved a review·
petition being Miscellaneous (Civil) Application No. 1939 of 1995 in the
Gujarat High Court seeking to get reviewed the main decision in the
Special Civil Application No. 770 of 1995 on the grounds raised in the
review petition. This review petition was heard by another Division Bench
G of the High Court consisting of H.L. Gokhale and M.S. Shah, JJ., as in the
meantime B.N. Kirpal, CJ., was elevated as Judge of this Court. The said
review petition was heard on merits by the aforesaid Division Bench of the
High Court. During the pendency of the review petition additional
evidence was also considered by the Bench as tendered by the contesting
H respondents. Ultimately by an order dated 24th October 1996 Gokhale, J.,
RELIANCE INDUSTRIES LTD. v. PJ. PATEL[S.B. MAJMUDAR,J.] 643

came to the conclusion that the review petition was required to be allowed A
as the appellant-company was not covered by the impugned directions
contained in the judgment in the writ petition. Said decision was rendered
by Gokhale, J. on various reasons mentioned therein. So far as the other
learned Judge M.S. Shah, J., was concerned, he took a contrary view and
passed an order of even date and came to the conclusion that the review B
petition was liable to be .dismissed on various grounds which appealed to
the learned Judge and as mentioned in his differing judgment. Then arose
the moot procedural question as to whether on difference of opinion
between the two learned Judges constituting the Review Bench reference
was required to be made to the third learned Judge for resolving the
conflict or whether the review petition was liable to be dismissed under 0. C
XLVII R.6, CPC. By their order dated 25th October 1996 both the learned
Judges constituting the Division Bench came to the conclusion that once
their was difference of opinion between the two learned Judges constituting
the Review Bench the only course open to them was to dismiss the review
petition as provided in O.XLVII R.6, CPC. As noted earlier, the aforesaid D
decision in the review petition resulted in Special Leave Petitions moved
by the appellant-company which have culminated into these appeals.

' It may be noted at this stage that after the aforesaid decision in the
review petition the appellant sought to withdraw the Special Leave Petition
filed by it earlier challenging the main order in the Special Civil Applica- E
tion No. 770 of 1995 decided on 5th/7th Augnst 1995. Consequently the
Special Leave Petition (C) No. 24916 of 1995 challenging the said order
was permitted to be withdrawn by this Court on 20th December 1996.

In view of the aforesaid development, therefore, the main controversy
which survives in these appeals centers round the legality of the order of F
the Division Bench of the High Court which dismissed the Miscellaneous
•, (Civil) Application No. 1939 of 1995. These appeals, therefore, will have
to be decided only with reference to the controversy centering round the
decision in the review petition moved by the appellant before the High
Court. G
So far as the challenge to the impugned decision in the review
petition is concerned it consists of two questions :

1. Whether the Division Bench of the High Court on a dif-
ference of opinion between the two learned Judges was jus- H
644 SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A tified in dismissing the review petition under O.XLVII R.6,
CPC.

2. If yes, whether on merits the review petition was required to
be allowed.

B
It is obvious that if it is held that on a difference of opinion between the
learned Judges constituting the Division Bench reference to third learned
Judge was required to be made then the second question would not survive
for our consideration at this stage. That would survive only if it is held that
the review petition was liable to be dismissed under O.XLVII R.6, CPC as
C has been done by the Division Bench in the impugned judgment. We,
therefore, now address ourselves to the consideration of the aforesaid
procedural question.

Shri Kapil Sibal, learned senior counsel appearing for the appellant
D submitted that when the hearing of the review petition resulted in dif-
ference of opinion between the two learned Judges constituting the Review
Bench, reference to third learned Judge should have been made as per
Clause 36 of the Letters Patent applicable to the High Court of Gujarat. 1
In this connection it was also submitted that even though rules were framed
by the High Court of Gujarat as per Clause 37 of Letters Patent the said
E rules especially Rule 186 thereof did not contra-indicate the said proce-
dural position. In this connection he submitted that as per Rule 186 of the
Rules framed by the High Court, the procedure of Section 98 of the CPC
got attracted for resolving this controversy. But even in such a case looking
at the conflicting decisions rendered by the two learned Judges in the
F review petition proviso to sub-Section (2) of Section 98, CPC required
reference of the question of law, on which there was difference of opinion,
for decision of the third learned Judge. It was alternatively contended by
Shri Sibal that in any case all questions of law and fact flowing from the
difference of opinion between the two learned Judges are required to be
referred to the third learned Judge for resolution of said difference of
G opinion as per Section 98 sub-Section (3) of the CPC read with Clause 36
of the Letters Patent. That in no case the Division Bench was justified in
dismissing the review Petition despite this conflict of opinions between the
two learned Judges, following the provisions of O.XLVII R.6, CPC. It was,
therefore, contended that the ultimate decision rendered by the Division
H Bench of the High Court on 24th and 25th October 1996 dismissing the
RELIANCE INDUSTRIES LTD. v. PJ. PA1EL[S.B.MAJMUDAR,J.) 645

review petition is required to be set aside and the controversy, centering A
round the questions on which the two learned Judges had difference of
opinion, is required to be resolved by reference to third learned Judge for
being decided as per the majority decision in the light of the opinion of
the third learned Judge.
B
On the other hand learned Solicitor General Shri T.R. Andhyarujina,
appearing for respondent no. 4, Gujarat Pollution Control Board and Shri
Soli J. Sorabjee, learned senior counsel appearing for respondent no. 6,
Commissioner of Ahmedabad Municipal Corporation contended that the
procedure adopted by the Division Bench dismissing the review petition
was the correct procedure as proviso to sub-Section (2) of Section 98, CPC C
could not be pressed in service on the facts of the present case for the
simple reason that both the learned Judges had not disagreed on question
of law but had disagreed purely on question of fact, namely, whether the
appellant-industry was covered by the sweep of the main decision in
Special Civil Application No. 770 of 1995 or not and whether the appellant D
was a polluting industry or not. It was next contended that sub-Section (3)
of Section 98, CPC cannot apply to the facts of the present case as Rule
186 of the Gujarat High Court Rules clearly indicated the procedure to be
followed in such an eventuality and as that procedure was provided by
Section 98 sub-Section (2), CPC which was a complete Code in itself, the
said question could not be resolved by recourse to sub-Section (3) of E
Section 98, CPC as that would render the operation' of Rule 186 of the
Gujarat High Court Rules otios. It was next contended that even assuming
Section 98 sub-Section (3), CPC applied to the facts of the present case,
and consequently Clause 36 of the Letters Patent got attracted even then
the said clause on its own terminology could not cover the facts of the F
present case as the decision rendered in the review proceedings by the
Division Bench could not be said to be decision rendered in exercise of
original jurisdiction of the High Court and it was admittedly not a decision
rendered in exercise of appellate jurisdiction of the High Court. That
Clause 36 only covered those decisions which were rendered by the
Division Bench of the High Court either in exercise of original jurisdiction G
or in exercise of appellate jurisdiction. That review jurisdiction is an
independent jurisdiction which is different from the aforesaid two jurisdic-
tions and consequently such a decision was not at all covered by the sweep
of Clause 36 of the Letters Patent and even on that ground only Section
98 sub-Section (2), CPC applied and as the proviso to the said sub-Section H
646 SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A {2) CPC applied and as the proviso to the said sub-Section (2) could not
be invoked for resolving the factual controversy which has resulted in two
divergent opinions of two learned Judges of the Division Bench, hearing
the review petition, the only course open to the High Court was to dismiss
the review petition as enjoined by OXLVII R.6, CPC. Consequently no
B fault could be found with the decision of the High Court following the said
course.

In the light of the aforesaid rival contentions we now proceed to
consider this moot question posed for our consideration. It is not in dispute
between the parties that the High Court of Gujarat is governed by the
C Letters Patent which earlier applied to the parent High Court of Bombay
and on bifurcation on 1st May 1960 the said Letters Patent continued to
apply to the Gujarat High Court as a successor High Court to the erstwhile
High Court of Bombay. Letters Patent, therefore, are the charter which
would govern the proceedings in the High Court and the procedure to be
D followed by it for deciding matters falling within its jurisdiction. It is also
not in dispute between the parties that the original writ petition moved in
the High Court by way of public interest litigation was under Article 226
of the Constitution of India invoking original jurisdiction of the High Court.
It is that writ petition which got disposed of by the order dated 5th and
E 7th August 1995 passed by the Division Bench of the High Court. The
review petition moved by the appellant- company stems from the aforesaid
decision in the writ petition. This review petition was placed for final
disposal before a Bench of two learned Judges consisting of H.L. Gokhale
and M.S. Shah, JJ., as noted earlier. These two learned Judges of the High
Court were, therefore, constituting a Division Bench which was entrusted
F with the task of deciding about apparent error, if any, discernible from the
judgment of the earlier Division Bench passed in exercise of original
jurisdiction of the High-Court. Consequently if any difference of opinion
arose between the two learned Judges regarding the merit of the review
petition, ex facie, Clauses 36 of the Letters Patent got attracted. The said
G clause reads as under :

"36. Single Judges and Divisional Courts. - And we do hereby
declare that any function, which is hereby directed to be performed
by the said High Court of Judicature at Bombay in the exercise of
H its original or appellate jurisdiction, may be performed by any
RELIANCE INDUSTRIES LTD. v. PJ. PATEL [S.B. MAJMUDAR, J.] 647

Judge or any Division Court thereof, appointed or constituted for A
such purpose, in pursuance of section One hundred and eight of
the Government of India Act, 1915, and if such Division Court is
composed of two or more Judges, and the Judges are divided in
opinion as to the decision to be given on any point, such point shall
be decided according to the opinion of the majority of the Judges, B
if there shall be a majority, but if the Judges should be equally
divided they shall state the point upon which they differ and the
case shall then be heard upon that point by one or more of the
other Judges and the point shall be decided according to the
opinion of the majority of the Judges, who have heard the case
including those first heard it." C

It is not possible to agree with the contention of learned senior counsel
Shri Sorabjee for respondent no. 6 that even if Clause 36 applied it could
not cover review proceedings arising out of decisions in writ petitions under
Article 226 of the Constitution of India invoking original jurisdiction of the D
High Court. It is true that the aforesaid clause of Letters Patent deals with
the decisions of Division Benches exercising original or appellate jurisdic-
tion. Question of exercise of appellate jurisdiction does not arise in the
present case. Therefore, the short question is whether the decision
rendered by the Division Bench of the High Court in Special Civil Applica-
tion No. 770 of 19~5 allowing it as a public interest litigation petition in E
exercise of original jurisdiction of the High Court under Article 226 of the
Constitution of India would not lend colour of the very same original
jurisdiction to review proceedings arising out of that very judgment? It has
to be kept in view, that review petitions are not by way of appeals before
the superior Court but they are by way of requests to the same C<Jurt which F
· decided the matter, for persuading it to recall or reconsider its own
decision on grounds which are legally permissible for reviewing such
orders. As laid down by O.XLVII R.5, CPC as far as possible the same
two learned Judges or more Judges who decided the original proceedings
have to hear the review petition arising from their own judgment. Thus in G
substance a review amounts to reconsideration of its own decision by the
very same Court. When the Conn sits to review its own order, it obviously
is not sitting in appeal over its judgment but is seeking to have a fresh look
at its own judgment of course within the limits of review powers, but still
invoking for that limited purpose the very same jurisdiction which it
exercised earlier. It is axiomatic that if a Division Bench of two learned H
648 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A Judges deciding the appeal had exercised appellate powers and when its
decision is sought to be reviewed it can be said to be required to reconsider
its own decision within the limits of review jurisdiction but still in exercise
of the same appellate jurisdiction which it earlier exercised. Similarly when
a decision rendered in exercise of original jurisdiction by a Bench of two
learned Judges is sought to be reviewed the learned Judges exercising
B
review jurisdiction subject to the limitations inhering in such an exercise,
can be said to be called upon to reconsider their decision earlier rendered
in exercise of the very same original jurisdiction. In that review jurisdiction
takes colour from the nature of the jurisdiction exercised by the Court at
the time when the main judgment, sought to be reviewed, was rendered.
C Review jurisdiction, therefore, cannot be said to be same independent
jurisdiction sought to be exercised by the Court dehors the nature of the
jurisdiction exercised by it when the judgment sought to be reviewed was
rendered by it. As the decision sought to be reviewed in the present
proceedings was rendered by the Division Bench in exercise ofits original
D jurisdiction the review proceedings emanating from the very same judg-
ment would partake the character of the very same exercise of original
jurisdiction. It remained in the domain of original jurisdiction which could
be said to have been invoked by the appellant when it requested the Court
to review its earlier decision rendered in exercise of original jurisdiction.
It is, therefore, not possible to agree with the contention of learned senior
E counsel Shri Sorabjee for respondent no. 6 that the review proceeding in
the present case which was arising out of the decisiop. of the High Court
rendered in exercise of its original jurisdiction under Article 226 of the
Constitution of .India sought to invoke an independent and separate juris-
diction of the High Court which was neither original nor appellate. It must
F be held that both the learned Judges who heard the review petition arising
out of decision rendered by the High Court in exercise of its original
jurisdiction under Article 226 of the Constitution of India were also called
upon to exercise the very same original jurisdiction at the second stage,
and for the second time when they were to reconsider the legality of the
G very same decision subject of course to the limitations of review power as

-
enjoined by the well settled fetters and parameters for exercise of such
review jurisdiction. Once that conclusion is reached it becomes obvious
that fetters of O.XLVII R.6, CPC could not get attracted to the said review
proceedings as the wide sweep of the provisions of Clauses 36 of the
Letters Patent being the paramount charter applicable to the High Court
H of Gujarat could not be whittled down by the provisions of Code of Civil
RELIANCE INDUSTRIES LTD. v. PJ.PATEL[S.B.MAJMUDAR,J.) 649
i
Procedure if they were in any way inconsistent with Clause 36 of the Letters A
Patent.

As laid down by Section 4 sub-Section (1), CPC itself in the absence
of any specific provision to the contrary, nothing in the Code shall be
deemed to limit or otherwise affect any special or local law now in force B
or any special jurisdiction or power conferred, or any special form of
procedure prescribed, by or under any other law for the time being in
force. It cannot be disputed that Letters Patent as applicable to High Court
of Gujarat is a special law in force which confers special jurisdiction or
power and lays down special form of procedure prescribed therein for
governing the cases where the two learned Judges forming the Division C
Bench of the High Court differed on a question of law or fact. Under such
circumstances Clause 36 of the Letters Patent laying down the special
procedure for meeting such a contingency was required to be followed
without in any way being impeded or restricted or being cut across by the
procedural requirements laid down by O.XLVII R.6, CPC. The said D
·provision on its own would apply to those courts which were governed
strictly by the procedure of Code of Civil Procedure and had no provision
of Letters Patent Charter to fall back upon. In other words charter High
Courts governed by the Letters Patent which were original charter High
Courts or which were the successor High Courts like Gujarat High Court,
E
would be governed by the special procedure laid down by Clause 36 of the
Letters Patent and that would remain saved by the operation of Section 4
sub-Section (1), CPC noted above. It is, therefore, not possible to agree
with the reasoning of the High Court in the impugned judgment to the
effect that Clause 36 of the Letters Patent does not deal with a situation
where there is conflict of decisions between the two learned Judges of the F
Bench sitting in review against the earlier judgment of the Division Bench
of the High Court.

However learned senior counsel for the respondents vehemently
contended that Clause 37 of the same letters Patent directs that the High G
Court will be guided by the Civil Procedure Code in such contingencies
and in exercise of the said power available to the High Court under Clause
37 of the Letters Patent read with Sections 122 and 129 of CPC Gujarat
High Court had framed rules which would govern the present controversy.
Clause 37 of the Letters Patent reads as under : H
650 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A "37. Regulation of Proceedings. - And we do further ordain that it
shall be lawful for the said High Court of Judicature at Bombay
from time to time to make rules and orders for the purpose of
regulating all proceedings in civil cases which may be brought
before the said High Court, including proceedings in its Admiralty,
-
Vice-Admiralty, intestate, and matrimonial jurisdiction ·respective
B
: Provided always that the said High court shall be guided in
making such rules and orders as far as possible by the provisions
of the Code of Civil Procedure, being an Act passed by the
Governor General in Council, and being Act No. VIII of 1859, and
the provisions of any law which has been made amending or
c altering the same by competent legislative authority for India."

It is true that in exercise of the powers vested in the High Court under
Clause 37 rules have been framed by the High Court for governing the
procedure in matters dealt with by the High Court in exercise of its diverse
jurisdictions. Said rule making power also flows from the provisions of
D Sections 122 and 129 of CPC. However a mere look at Section 129, CPC
shows that the rules framed by the High Court cannot be inconsistent with
the Letters Patent. Said Section 129 reads as under :

"129. Power of High Courts to make rules as to their original civil
E procedure. - Notwithstanding anything in this Code, any High
court, not being the Court of a Judicial Commissioner, may make
such niles not inconsistent with the Letters Patent or order or
other law establishing it to regulate its own procedure in the
exercise ·of its original civil jurisdiction as it shall think fit, and
nothing herein contained shall affect the validity of any such- rules
F in force at the commencement of this Code."

Keeping ·in view the aforesaid statutory scheme we have to consider the
scope and ambit of Rule 186 framed by the High Court in this connection
and on which strong reliance was placed by learned senior counsel for the
G respondents. Rule 186 reads as under :

"186. Procedure in case of Difference of Opinion between Judges.-
In case of difference of opinion between the Judges composing the
Division Bench, the point of difference shall be decided in accord-
ance with the procedure referred to in Section 98 of the Civil
H Procedure Code."
RELIANCE INDUSTRIES LTD. v. P.J.PATEL[S.B. MA.JMUDAR,J.) 651

A mere look at the said rule shows that, amongst others, in the petitions A
under Article 226 decided by a Division Bench of two learned Judges of
the High Court if a difference of opinion arises between them the proce-
dure laid down by Section 98, CPC has to be followed. We may, therefore,
turn to Section 98, CPC. It reads as under :

"98. Decision where appeal heard by two or more Judges. (1) B
Where an appeal is heard by a Bench of two or more Judges, the
appeal. shall be decided in accordance with the opinion of such
Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judg- C
ment varying or reversing the decree appealed from, such decree
shall be confirmed :

Provided that where the Bench hearing the appeal is composed
of two or other even number of Judges belonging to a Court
consisting of more Judges than those constituting the Bench and D
the Judges composing the Bench differ in opinion on a point of
law, they may state the point of law upon which they differ and
the appeal shall then be heard upon that point only by one or more
of the other Judges, and such point shall be decided according to
the opinion of the majority (if any) of the Judges who have heard E
the appeal, including those who first heard, it.

(3) Nothing in this section shall be deemed to alter or otherwise
affect any provision of the Letters Patent of any High Court."

A conjoint reading of Rule 186 of the Gujarat High Court Rules and F
Sectio!l 98 of the CPC shows that it is the procedure of Section 98, CPC
which gets telescoped into Rule 186 of the Gujarat High Court Rules for
deciding as to how the decisions of a Bench of two or more learned Judges
disposing of the writ petitions covered by the sweep of these provisions
have to be processed. Shri Sorabjee, learned senior counsel for respondent
no. 6 was right when he contended that Rule 186 refers to the procedure G
of Section 98, CPC and does not import the provisions thereof. Ipsissimis
verbis. Let us, therefore, turn to .the procedural scheme envisaged by
Section 98, CPC. Section 98(1) .of CPC read with Rule 186 of the Gujarat
High Court Rules framed by the High Court would enjoin that where a
writ p_etition which, as discussed earlier, would include review petition H
652 SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A arising therefrom, is heard by a Bench of two or more Judges the said
petition has to be decided in accordance with the opinion of such Judges
or the majority thereof. Upto this stage, Section 98(1) does not conflict
with any other provision of Letters Patent. Then follows sub-Section (2) of
Section 98, CPC which lays down that where there is no such majority
B which concurs in a judgment varying or reversing the decree appealed
from, such decree shall be c~nfirmed. By its very language sub-Section (2)
of Section 98, CPC cannot apply to the decision rendered by a Division
bench of the High Court in exercise of its original civil jurisdiction as is
the present case. Reason is obvious. There is no question of confirming
decree of the lower Court when the Division Bench of the High Court
C decides original proceedings under Article 226 of the Constitution. Its
decision in the writ petition partakes the character of the decision of the
Court of first instance. Thereby the High Court decides for the first time
the questions in controversy between the parties and adjudicates upon
them as a Court of first instance. Consequently on the very language of
D sub-Section (2) of Section 98, CPC the said provision cannot get attracted
to cases where a Division Bench of the High Court decides writ petition
under Article 226 of the Constitution of India in exercise of its original civil
jurisdiction or for that matter review petition invoking the exercise of the
very same original jurisdiction as seen earlier. Consequently the proviso to
E sub-Section (2) of Section 98, CPC also would remain out of picture in
such cases. Under these circumstances there would remain only the
residuary provision of sub-Section (3) of Section 98, CPC which clearly
enjoins that nothing in the said Section shall be deemed to alter or other
wise affect any provision of Letters Patent of any High Court. This would
F necessarily lead to a back reference to Clause 36 of the Letters Patent
which would remain the solitary provision applicable in the field for
resolving the procedural controversy in such a case. In short when an
application to get reviewed the decision of a Division Bench of the High
Court rendered in exercise of its original civil jurisdiction in a petition
under Article 226 of the Constitution of India, is moved in the High Court
G and if there is conflict of decisions between the two Judges constituting the
Review .Bench, it is only Clause 36 of the Letters Patent which ·would
govern the said controversy. Neither O.XLVII R.6, CPC nor Section 98(2),
CPC would apply to such eventualities arising in these review proceedings.
Under these circumstances it has to be held even in the light of Rule 186
H read with Section 98 of the CPC that if the Division Bench of two learned
RELIANCE INDUSTRIES LTD. v. PJ. PATEL[S.B.MAJMUDAR,J.] 653

Judges hea:ing the reView petition arising out of proceedings earlier the A
review petition arising out or proceedings earlier decided under Article
226 of the Constitution of India, differ and do not come to an agreed
conclusion the procedure laid down by Clause 36 of the Letters Patent
would be the only procedure that has to be followed and it cannot be
whittled down or cut short by any other provision to the contrary as found B
it the CPC. We have already seen earlier that there is no such contrary
procedure laid down by the CPC but even if it were so such contrary
procedure seeking to whittle down the wide sweep of Clauses 36 of the
Letters Patent has to give way to the provisions of the charter in view of
the express saving provision of Section 4(1) of CPC read with Section 129 C
thereof. In this connection, we may profitably refer to a decision of the
Privy Council in the case of Bhaidas Shivdas v. Bai Guiab and Another,
AIR (1921) Privy Council 6. The question before the Privy Council was
whether Clause 36 of the Letters Patent of Bombay could be said to be
controlled by Section 98 of the CPC. In 1921 when Their Lordships of the
Privy Council were considering the question, Clause 36 of the Letters D
Patent applicable to the Bombay High Court made a special provision
regarding the procedure to be followed in case the Bench hearing the
appeal was composed of two or more Judges and the Judges were divided
in. opinion as to the decision to be given on any point. In such a case the
decision was to be rendered in the light of the opinion of the majority of E
the Judges. But if the Judges were equally divided, opinion of the senior
Judge was to prevail. Now that clause was directly in conflict with the
provisions of Section 98, CPC, as it then was on the Statute Book, which
contemplated that in case of such a difference of opinion between the two
learned Judges constituting the Bench the point of law was to be stated
arising from such difference of opinion for decision of the third learned F
Judge. Their Lordships of the Privy Council placing reliance on Section 4
sub-Section (1), CPC held that Clause 36 of the Letters Patent was not
controlled by Section 98 of the CPC and, therefore, it was the clause in the
Letters Patent which would govern the procedure to be followed in such a
case and not the procedure laid down by Section 98, CPC. It is of course G
true that rule analogous to Rule 186 of the Rules framed by the High Court
of Gujarat was not on the anvil of consideration of the Privy Council. But
the Privy Council considered Section 44 of the Letters Patent making an
express provision that the Letters Patent would be subject to legislative
powers of Governor General in Council. Despite that provision the H
654 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A aforesaid decision was rendered by the Privy Council. It will be profitable
to extract the observations of Lord Buckmaster who gave unanimous
opinion on behalf of the Privy Council in the following terms :

"That contention depends upon the construction of Letters
Patent of Bombay, under which the Court was constituted, and the
B Code of Civil Procedure, 1908. By Section 36 of the Letters Patent
it is provided that if the High Court is sitting in a division composed
of two or more Judges, and the Judges are divided in opinion as
to the decision. to be given on any point, the decision shall agree
with the opinion of the majority or the Judges; but if the Judges
c are equally divided, the opinion of the senior Judge shall prevail.

In this case it is quite clear. There were two Judges sitting; the
senior Judge was the Chief Justice; there was an equal division of
opinion; and under Section 36, in consequence, the plaintiff was
entitled to a decree in his favour.
D
It is, however, urged on behalf of the respondents that the
procedure in Section 36 is modified by the Code of Civil Proce-
dure, 1908, and it is pointed out that by Section 44 of the Letters
Patent there is an express provision which makes those Letters
E Patent subject to the legislative powers of the Governor-Genera\
in Council.

There are two sections in the Code of Civil Procedure which
are relevant to this dispute. The one is section 4 and the other is
section 98. Section 98 appears to have been the section under
F which the Judges acted. That section provides :

'That where the bench hearing the appeal is composed of two
Judges belonging to a Court consisting of more than two Judges,
and the Judges composing the Bench differ in opinion on a point
of law, they may state the point of law upon which they differ, and
G the appeal shall then be heard upon that point only by one or more
of the other Judges, and such point shall be decided according to
the opinion of the majority (if any) of the Judges who have heard
the appeal, including those who first heard it.'

H It is quite plain that those provisions create a totally distinct
RELIANCE INDUSTRIES LID. v. P.J.PATEL[S.B.MAJMUDAR,J.] 655

method of procedure in the event of difference between two Judges A
from that which was laid down by section 36. Under section 36 of
the Letters Patent the judgement of the Judge who was the senior
Judge would be the judgment which the parties before the Court
would have a right to obtain; under section 98, the judgment to
which they are entitled is the judgment of the majority of all the B
Judges who have heard the appeal; and this case shows that those
two provisions might produce a totally different result. If, there-
fore, section 98 controls section 36 the respondents would be
entitled to say that the proper procedure had been followed, and
that the appellant had no cause of complaint. But by section 4 of
the Code of Civil Procedure it is also provided that : C

'In the absence of any specific provision to the contrary,
nothing in this Code shall be deemed to limit or otherwise
affect any special or local law now in force, or any special
jurisdiction or power conferred, or any special form of pro- D
cedure prescribed by or under any other law for the time
being in force.'

There is no specific provision in section 98, and there is a
special form of procedure which was already prescribed. That form
of procedure section 98 does not, in their Lordships' opinion, E
affect.. ......."

Moreover the fact remains that by the enactment of Section 98(3), CPC
whatever doubt earlier remained in connection with this controversy was
put at rest by the Legislature and the view propounded by the Privy Council F
got statutory recognition by the amendment of Section 98 and the insertion
of sub-Section (3) thereof.

One contention of learned Solicitor General appearing for
respondent no. 4 in connection with the applicability of Rule 186 of the
Gujarat High Court Rules is required to be noted at this stage. He G
submitted that by the express language of Rule 186 of the Gujarat High
Court Rules the procedural gamut on difference of opinion between two,
learned Judges composing the Division Bench is required to be the same
as referred to in Section 98 of CPC which is a complete Code in itself and
consequently the procedure laid down under Clause 36 of the Letters H
656 SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A Patent would get excluded and if again the same procedure under Clause
36 is to be pressed in service via Section 98 sub-Section (3), CPC the very
Rule 186 would be rendered otios or a least at situation would arise where
for resolving this procedural conundrum we would be moving in a circle.
It is not possible to agree with this contention. The reason is obvious. Rule
B 186 is found in Chapter XVII of the Gujarat High Court Rules which deals
with 'Applications under Articles 226, 227 and 228 of the Constitution and
Rules for issue of Writs and Orders under the said Articles'. So far as
proceedings under Article 226 of the Constitution of India are concerned
they are original in nature. As we have seen earlier qua them Section 98(2),
C CPC would on its own language get out of picture as there would be no
[
occasion for the High Court exercising jurisdiction under Article 226, being
required to confirm the decree under challenge if there is no majority
which concurs in the judgment sought to be challenged before the High
court. For applicability of Section 98(2) the basic requirement is that the
D Division Bench of the High Court consisting of two or more learned Judges
must be dealing with a case where there is a decision of the Lower Court
which is placed for consideration of the Division Bench of the High Court.
Consequently Rule 186 which is of general nature cannot get attracted so
far as original proceedings under Article 226 are concerned but this would
not render the said Rule otios as it would still require Section 98(3), CPC
E to be followed in such a case and that in its turn would attract Clause 36
of the Letters Patent. Thus for petitions under Article 226 of the
Constitution of India Section 98(1) and Section 98(3), CPC can be pressed
in service in given contingencies. That apart, Rule 186 will operate in its
own vigour so far as decisions of Division Benches of the High Courts
F dealing with petitions under Articles 227 and 228 are concerned. It is
obvious that petitions under Article 227 seek to challenge subject to the
limits of jurisdiction of the High Court under that Article, the decisions
rendered by subordinate Tribunals. In these petitions if the Division Bench
of the High Court by majority does not concur in varying or reversing the
G subordinate Tribunal's judgment and order which is brought in challenge,
then Section 98(2), CPC may get attracted for confirming such judgment
of the lower Tribunal and in such a situation if the learned Judges
composing the Bench are equally divided on a point of law then the
procedure laid down by the proviso to sub-Section (2) of Section 98, CPC
H can be followed. It is well settled that proceedings under Article 227 are
RELIANCE INDUSTRIES LTD. v. P.J. PATEL[S.B.MATMUDAR,J.] 657

not by way of appeal before the High Court and, therefore, the High Court A
under Article 227 of the Constitution can interfere only on questions of law
and that too involving patent errors of law. When there is a differenct? of
opinion between the two learned Judges of the Division Bench hearing the
petition under Article 227 on such patent questions of law, then they can
refer the poiuts of law on which they differ for consideration of the third B
learned Judge as laid down by the proviso to sub-Section (2) of Section 98,
CPC. Consequently it cannot be said that Rule 186 would be rendered
totally nugatory or otios if it is held that procedure laid down by Section
98 sub-Section (2), CPC cannot be pressed in service in proceedings
emanating from petitions under Article 226 of the Constitution of India C
which are original in _nature and wherein no order of subordinate authority
is brought in challenge. But even that apart, mandate of Rule 186 itself
contemplates applicability of procedure of section 98, CPC which enables
invocation of the procedure of Clause 36 of the Letters Patent via Section
98 (3), CPC itself in cases where Section 98(2) does not apply as in the D
present case. Section 98(3), CPC, as seen earlier, clearly indicates that
Section 98 will not affect the substantive provisions of the Letters Patent.
Clause 36 of the Letters Patent is a substantive provision laying down the
procedure to be followed in contingencies contemplated by the said Clause.
That being the paramount clause will necessarily apply to all the E
proceedings decided by the High court. As observed by us earlier the said
result will follow apart from the operation of Section 98 sub-Section (3),
CPC also from the combined operation of the saving clause of Section 4(1),
CPC and Section 129 thereof.

Consequently it is not possible to agree with the conclusion to which F
the High Court reached. that because the two learned Judges of the High
Court deciding the review petition did not agree and gave contradictory
opinions regarding the merits of the review petition the decision of the
review petition had to be as laid down by O.XLVII R.6, CPC.
Consequently, the said decision of the High Court dismissing the G
Miscellaneous Civil Application No. 1939 of 1995, rendered on 25th
October 1996 cannot be sustained and will have to be set aside. As a logical
corollary to this decision of ours Miscellaneous Civil Application No. 1939
of 1995 is directed to be restored to the file of the High Court of Gujarat
with a direction that in view of the conflicting opinions expressed by the H
658 SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A Bench of the High Court consisting of H.L. Gokhale and M.S. Shah, JJ.,
who earlier heard the review petition, the questions arising for decision in
the review proceedings on which the aforesaid two learned Judges either
differed in their opiniqis or did not concur will have to be referred for
opinion of the third learned Judge of the High Court as per Clause 36 of
B the Letters Patent. For that purpose the remanded review petition will have
to be placed before the bench of H.L. Gokhale and M.S. Shah, JJ. to enable
them to state the points of their difference as per Clause 36 of the Letters
Patent for being placed for consideration of the third learned Judge. The
Hon'ble Chief Justice of the High Court is requested to assign the review
C petition to the appropriate Be.nch and thereafter to the third learned Single
Judge for deciding these remanded proceedings as per Clause 36 of the
Letters Patent at the earliest. It is obvious that the third learned Judge will
be entitled to consider all the aforesaid questions arising out of the
difference of opinion between the two learned Judges, whether they are
questions of fact or questions of law, and the review petition ultimately will
D be decided in the light of the decision of the third learned Judge, as per
the procedure laid down by Clause 36 of the Letters Patent. It is obvious
that if the ultimate decision in the review proceedings, as remanded as per
this order of ours, goes against the appellant it will be open to the appellant
to challenge the said final decision in accordance with law.
E
We may also mention at this stage one development which took place
during the pendency of these proceedings in this Court. By any order
dated 17th June 1997 a Division Bench of the High Court consisting ofB.C.
Patel and M.S. Shah, JJ. passed an order in Miscellaneous Civil Applica-
F tion No. 178 of 1997 in Special Civil Application No. 770 of 1995. That
decision is based on the main judgment in Special Civil Application No.
770 of 1995 which in its turn is sought to be got reviewed by the appellant
in the present proceedings which are now directed by us to be remanded
to the High Court .for a fresh decision. Consequently the observations made
by the aforesaid Bench of the High Court in its order dated 17th June 1997
G against the appellant will obviously abide by the final decision in the review
petition to be rendered pursuant to the present order of ours by the High
court and if the remanded review proceedings get decided against the
appellant the appellant will also be at liberty to challenge along with the
said decision in the review proceedings, also the decision rendered against
H the appellant by the High Court by its order dated 17th June 1997. It goes
RELIANCE INDUSTRIES LTD. v. PJ. PATEL [S.B. MAJMUDAR, J.] 659

without saying that if and when such future challenges are levelled by the A
• appellant against any adverse decision in the remanded review proceedings
also against the order of the High Court dated 17th June 1997 the said
challenges will have to be processed and decided in accordance with law.
We make it clear that we make no observations on the merits of the
controversy between the parties, emanating from these proceedings and all B
the contentions raised by the contesting parties before us in the present
proceedings on merits of the controversy are kept open. They will remain
untouched one way or the other by the present order of remand.

So far as the delinked SLP arising out of the main judgment of the
High Court dated 5th and 7th August 1995 in Special Civil Application No. C
770 of 1995 is concerned, the only question which would survive for
consideration as submitted by learned senior counsel for the appellant
pertains to the liability of the appellant-company to contribute pro rata
towards the expenses to be incurred by the State of Gujarat, G.I.D.C. and
A.M.C. in laying separate/necessary pipelines and/or drains to carry the D
treated industrial effluent to Pirana for mixing the same with the treated
sewage before discharge into the river. The said direction issued in general
is found in paragraph 135(B)(ii) of the judgment. It was submitted that the
said question will remain a solitary question for consideration of this Court
in the SLP against the main judgment which has to await the decision in
the remanded review proceedings. If the remanded review proceedings E
ultimately result in favour of the appellant and it is held by majority of the
learned Judges deciding the remanded review petition that the appellant
is not a polluting unit at all then the aforesaid solitary question in
appellant's SLP may not survive for consideration of this Court. But if on
the other hand the remanded review petition gets dismissed by the majority p
decision subject to the appellant challenging the said decision before this
Court, the aforesaid solitary question will arise for consideration in the
delinked SLP ·of the appellant against the main judgment.

The learned senior counsel for the respondents on the other hand
contended that if the ultimate decision in the remanded review petition is G
against the appellant, the aforesaid solitary question would not survive for
consideration for two reasons - (i) the SLP against the main judgment
which was filed by. the appellant earlier is already withdrawn by the
appellant; and (ii) in the said withdrawn SLP at an earlier stage this Court
relegated the appellant for redressing its grievances, if any, by filing ap- H
660 SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A propriate review petition and when the appellant filed the review petition
it confined its challenge to two directions as found in the main judgment,
namely, paragraphs 135 (C)(xii) and 135 (A)(I)(v) of the operative part of
the said .judgment as mentioned in paragraphs 22 to 25 of the review
petition moved before the High Court pursuant to the liberty given by this .
B Court in the aforesaid SLP(C) No. 24916 of 1995 by its order dated 17th
November 1995. It was, therefore, contended by the learned senior counsel
for the respondent that the appellant in its wisdom confined its attack
against the impugned common main judgment only on the basis of the
aforesaid two contentions. It has, therefore, to be held that by necessary
implication it gave up its earlier challenge to the directions contained in
C paragraph 135(B)(ii) of the main judgment which deals with the pro rata
contribution by the Polluting units towards the cost of laying the pipelines
and consequently the fresh SLP raising the very same challenge against the
main judgment in Special Civil Application No. 770 of 1995 does not
survive and, therefore, the delinked SLP should be summarily rejected.
D Learned senior counsel for the appellant on the other hand con-
tended that even if remanded review petition is rejected this solitary
contention will survive for consideration as according to the appellant
directions contained in the main judgment at paragraph 135(B) will not
apply and similarly directions contained in paragraph 135(A)(I)(ii) will also
E not apply as the appellant discharge more than 25000 litres of water per
day but they have already got primary and secondary treatment plants since
long. As we have remanded the review proceedings for a fresh considera-
tion by the third learned Judge of the High Court, in our view, it will be
too premature to consider the delinked SLP on the aforesaid solitary
F contention which remains to be considered in the SLP against the main
judgment at this stage. Hence keeping all the contentions of the contesting
parties open, centering round the aforesaid solitary contention on which
the said SLP against the main judgment is sought to be pressed by the
appellant at a later stage, we have though it fit to delink the said SLP
awaiting the decision in the remanded proceedings.
G
As the remanded review petition pertains to proceedings decided in
1995 and as the SLP filed by the appellant against the said judgment is
kept pending by us awaiting the decision in the remanded review proceed-
ings, we request the High Court to dispose of the remanded review
H proceedings at its earliest convenience and preferably within a period of
RELIANCE INDUSTRIES LTD. v. PJ. PATEL [S.B. MA.JMUDAR, J.) 661

eight weeks from the receipt of a copy of this order at its end. A

·• Before parting with these appeals we may note that on the suggestion
of the Court, the appellant's counsel on instructions agreed to deposit with
respondents concerned Rs. 50 lakhs without prejudice to appellant's rights
and contentions in the delinked SLP and also the remanded review B
proceedings. This good gesture was made with a view to seeing that proper
pipelines are laid in the surrounding area of the industrial estate where
other admittedly polluting industries are operating. This deposit will be
considered to be a benevolent act on the part of the appellant, if it
ultimately succeeds in these litigations. We note this fair stand of the
appellant and direct it to deposit Rs.SO lakhs as agreed to before us, with C
respondents concerned for being utilised for the purposes indicated in the
main judgment in Special Civil Application No. 770 of 1995.

In the result these appeals are allowed to the aforesaid extent. In the
facts and circumstances of the case there will be no order as to costs. D

ORDER

This Special Leave Petition challenges the judgment and order dated
5th/7th August 1995 passed by the Division Bench of the High Court of E
Gujarat in Special Civil Application No. 770 of 1995. For the reasons stated
in our common judgment in Civil Appeals arising out of S.L.P. (C) Nos.
1456-57 of 1997 decided today this Special Leave Petition is delinked and
will stand adjourned sine die awaiting the decision in the proceedings
ordered to be remanded pursuant to the order in the aforesaid appeals. It F
will be open to the parties to intimate the Registry of this Court about the
disposal of the remanded review proceedings in the light of which the
aforesaid Special Leave Petition shall be placed for further orders before
an appropriate Bench of this Court after obtaining orde1 s from Hon'ble
the Chief Justice of India.

R.K.S. Appeals allowed.

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