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2012 DIGILAW 351 (JHR)

Damodar Valley Corporation v. Gautam Ferro Alloys

2012-03-12

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
JUDGMENT Heard learned counsel for the parties. 2. The appellant Damodar Valley Corporation(in short -Corporation) is aggrieved against one of the findings recorded in the order dated 29.03.2011 by which writ petition of the petitioner was allowed by the learned Single Judge after holding that the question of closure of unit by force majeure has already been decided by Member, Board of Revenue and according to the appellant-Corporation; Member, Board of Revenue has not decided that issue and, therefore, that part of the order may be set aside. 3. Learned counsel for the respondent-writ petitioner vehemently submitted that in fact the Pollution Control Board illegally passed the order of closure of the unit of the writ petitioner-respondent which was ultimately challenged before Member, Board of Revenue. After filing of writ petition being W.P.(C) No.5033 of 2005 before this Court by the writ petitioner, Member, Board of Revenue vide order dated 05.12.2006 clearly held that the order of the Pollution Control Board for closure of the unit of the writ petitioner was illegal. 4. However, so far as question whether the petitioner's unit was closed by the order of the Pollution Control Board amounts to closure by force majeure was not the subject matter before Member, Board of Revenue nor it could have been. 5. Learned counsel for the petitioner submitted that issue of closure of unit by force majeure or because of the reason of beyond control of the consumer was required to be decided by the Corporation only and the Corporation has already, illegally decided that issue against the writ petitioner and therefore, that issue also is required to be reconsidered by the Corporation in the light of the pleas taken by the writ petitioner. The petitioner apprehends that the Corporation may again decide the issue following its earlier decision and without considering the reasons and grounds raised by the writ petitioner that non-functional of unit of the petitioner was due to the illegal order passed by the third party and therefore, the closure of the unit of the writ petitioner was by force majeure. 6. 6. Since the issue of the closure of the petitioner's unit by force majeure was not before the Member, Board of Revenue nor it could have been even in the submission of the learned Counsel for the petitioner, therefore, we are of the considered opinion that even if the Corporation has already decided the issue of force majeure closure of the unit of the writ petitioner, even then, in view of the order passed by the learned Single Judge, which has been challenged before us, we are making it clear that the Corporation may decide the issue of the closure of the petitioner's unit by force majeure. So far as illegality in the order of the Pollution Control Board to close down the unit of the petitioner is concerned, that issue certainly attained finality by the order of the Member, Board of Revenue dated 5.12.2006. 7. In view of the above reasons, this appeal is allowed to the extent by holding that issue of the closure of the unit of the writ petitioner by force majeure has been decided by Member, Board of Revenue is set aside and even if the Corporation has already taken a decision on this issue, the Corporation may take a decision afresh on the same issue after giving full opportunity to the writ petitioner to take all pleas and to submit that the petitioner's unit remain closed by virtue of the illegal order and that amounts to closure of unit by force majeure. While doing so, may also consider the plea of the writ petitioner that in view of the Clause 4 of the agreement, the closure of the writ petitioner's unit was by the order of the Pollution Control Board which amounts to closure of unit of the writ petitioner by force majeure.