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2016 DIGILAW 831 (ORI)

Jogeswar Bhoi v. State of Odisha

2016-09-19

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : B.R. SARANGI, J. This is an intra-Court appeal preferred by caveator appellants assailing the order dated 26.10.2015 passed by the learned Single Judge in W.P.(C) No.19266 of 2015 in allowing the writ application on the first day itself at the stage of fresh admission without giving any opportunity of hearing. 2. The factual matrix of the case is that the caveator appellants, who are elected representatives being the Sarpanchs of Tasaladihi and Tangarpalli Grama Panchayats in the district of Sundargarh, passed a resolution on 02.10.2015 for restricting the movement of multi-axle vehicles through the M.D.R. Road No.27 in the district of Sundergarh from Bankibahal to Sundergarh which includes MDR-27 (22 KMs), MDR-29 (13 KMs) and ODR (5 KMs). The Grama Panchayats are located in schedule areas and are governed by the provisions of Panchayat (Extension to the Scheduled Areas) Act, 1996. The resolutions of the Grama Panchayats were forwarded to the State Government to declare the road between Coalmines and Sundergarh as no traffic zone for the multi-axle vehicles (18/22 wheelers) in view of numerous accidents caused due to narrowness of road, traffic congestion and location of different offices, government establishments and district headquarter hospitals. Considering the number of representations received from the persons/organizations/Sundergarh Truck Owners’ Association, etc. to impose restriction on movement of multi-axle vehicles, especially 18 and 22 wheelers on Sundergarh to Taperia road under R&B Division, Sundergarh, the State Government in Commerce and Transport Department, vide its letter no.6785 dated 19.10.2015, on the recommendation of the EIC-cum-Secretary to Government, Works Department to impose restriction on plying of multi-axle vehicles (especially trailers of 18 and 22 wheelers or longer dimension) on the road from Sundegarh to Bankibahal considering inadequate crust, dilapidated condition of carriageway/culverts/deficient horizontal curves, etc., requested the Collector-cum-Chairman, RTA, Sundergarh to take immediate appropriate action as per Section 115 and other relevant sections as would be necessary under the M.V. Act, 1988 till improvement of the road. Assailing the said order, respondent no.6-M/s Biswajit Minerals Pvt. Ltd. filed WP(C) No.19266 of 2015 and the said writ petition was disposed of by order dated 26.10.2015, on the first day, without affording opportunity of hearing to the appellants, though the caveat petition lodged by the appellants was on record and the names of the counsel for the caveator-appellants had been shown in the cause list. 3. Mr. R.K. Rath, learned Senior Counsel appearing along with Mr. 3. Mr. R.K. Rath, learned Senior Counsel appearing along with Mr. Digambara Mishra, learned counsel for the caveator-appellants strenuously urged that the appellants, being people’s representatives, raised an objection for plying of multi-axle vehicles on the road in question and lodged a caveat before this Court with a prayer to give them opportunity of hearing in the event the order no.6785 dated 19.10.2015 passed by the Joint Secretary to the Government in Department of Commerce and Transport is assailed. It is further urged that the road in question being narrow, due to plying of multi-axle vehicles, the local commuters are facing a lot of difficulties and accidents are being caused frequently and, therefore, plying of such vehicles should be banned on the road in question. The specific submission of the learned Senior Counsel is that the appellants, although entered caveat, have been deprived of opportunity of hearing, inasmuch as, the learned Single Judge by the order impugned has disposed of the matter as a Vacation Judge on the first date of its listing. 4. Mr. B.K. Sharma, learned Standing Counsel for the Transport Department submitted that objection was raised at the time of disposal of the writ application by the learned Single Judge stating, that the writ application was premature in view of the fact that the letter dated 19.10.2015, which was the subject-matter of challenge annexed as Annexure-2, contained suggestion only for exercising jurisdiction under Section 115 of the Motor Vehicle Act, 1988 in case of requirement there under is satisfied, but the learned Single Judge without adhering to the same passed the order impugned. 5. Mahanadi Coalfields Ltd., which was not made a party in the writ petition, has been impleaded as respondent no.4 in the present writ appeal. Mr. J. Patnaik, learned Senior Counsel appearing along with Mr. B. Mohanty, learned counsel for respondent no.4 states that large quantity of crushed coal are being transported through multi-axle vehicles to augment revenue for the State as well as respondent no.4. He, however, admits that Mahanadi Coalfields Ltd. was not made a party in the writ application, but states that in view of transportation of large quantity of coal through multi-axle vehicles, the learned Single Judge was justified in passing the order impugned and this Court may not interfere with the same. 6. Mr. R.K. Mohanty, learned Senior Counsel appearing along with Mr. 6. Mr. R.K. Mohanty, learned Senior Counsel appearing along with Mr. S. Panigrahi, learned counsel for respondent no.6 brought to the notice of the Court by way of filing preliminary counter affidavit that after the order impugned was passed on 26.10.2015, the CRC & Special Secretary to the Government in Commerce and Transport Department communicated letter dated 31.10.2015 to the Collector-cum-Chairman, RTA, Sundergarh requesting not to take any action for the time being since the matter is under reconsideration by the Government so far as movement of multi-axle vehicles (especially trailers of 18 and 22 wheelers) in Sundergarh to Bankibahal. In view of this, he states that no cause of action survives for the parties and accordingly the writ appeal may be disposed of. 7. Having heard learned counsel for the respective parties and upon perusal of the records, this appeal is disposed of at the stage of admission with their consent. 8. There is no dispute that respondent no.6 filed W.P.(C) No.19266 of 2015 assailing the order contained in letter dated 19.10.2015 addressed to the Collector, Sundergarh imposing restriction on plying of multi-axle vehicles (especially trailers of 18 and 22 wheelers) on Sundergarh to Bankibahal road under R&B Division, Sundergarh in exercise of power under Section 115 of the M.V. Act. There is also no dispute that respondent no.6 is engaged in transportation of coal from the Mines to the Thermal Power Plant by using multi-axle vehicles. Mahanadi Coalfields Ltd. has also written a letter requesting the Collector-cum-Chairman, RTA, Sundergarh not to put any restriction on such transport of coals by multi-axle vehicles. 9. The appellants had filed a caveat before this Court to give them opportunity of hearing before passing any order in the matter and the name of the counsel had been shown in the cause list dated 26.10.2015, when the matter was taken up during Durga Puja holidays for admission. A petition for intervention was also filed by Smt. Mina Bhoi in Misc. Case No.18534 of 2015. The said intervention application was allowed and intervenor-petitioner was permitted to participate in the proceeding by impleading her as opposite party no.4 in the writ application. But, in case of the present appellants, no order was passed nor any opportunity was given nor the copy of the writ application was served on the learned counsel appearing on behalf of the caveator appellants. But, in case of the present appellants, no order was passed nor any opportunity was given nor the copy of the writ application was served on the learned counsel appearing on behalf of the caveator appellants. But, at the first instance on 26.10.2015, the order dated 19.10.2015 passed by the Joint Secretary to the Government in Commerce and Transport Department has been quashed and the writ application has been disposed of by the learned Single Judge sitting as a Vacation Judge. 10. As would be evident from the order impugned, the Court was conscious about the fact that Mahanadi Coalfields Ltd. was not a party in the writ application, though it was to maintain the road, and direction was given to the Collector of the district to monitor the same. The order impugned also indicates that the said order was passed without issuing notice to the MCL, which was not a party to the said proceeding, and it was left open for the MCL to be impleaded as a party and sought for variance of the order. Even though the order has been passed giving opportunity to the MCL to seek variance of the same, that ipso facto cannot take away the rights of the caveator-appellants to be heard in the matter. 11. Section 148-A of the Civil Procedure Code, which is relevant for the purpose of the case, is extracted hereunder: “148A. Right to lodge a caveat— (1) Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof. (2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be, made, under subsection (1). (3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator. (3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator. (4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application. (5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.]” Section 141 of the Civil Procedure Code deals with miscellaneous proceedings. Explanation to Section 141 states as follows: “Explanation –In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.” Though the explanation to Section 141, C.P.C. excludes the proceedings under Article 226 of the Constitution of India, in Babubhai v. Nandalal, AIR 1974 SC 2105 it has been pointed out that the words “as far as it can be made applicable” in section 141 makes it clear that in applying the various provisions of the Code to proceedings other than those of a suit, the Court must take into account the nature of these proceedings and the relief sought. The object of Article 226 being to provide quick and inexpensive remedy to aggrieved parties, it was pointed out that if the procedure of a suit had to be adhered to in the case of writ petitions, the entire purpose of having a quick remedy would be defeated. It was further observed that a writ petition being essentially different from suit, it would be incorrect to assimilate and incorporate the procedure of a suit into writ proceeding. The procedure prescribed by the CPC is followed by the High Court in the exercise of its inherent jurisdiction under Article 226 of the Constitution not because of any compulsion to do so but because that procedure accords with the rules of natural justice. 12. The word “Caveat” has been defined in Random House Webster’s Dictionary of the Law as under: “caveat, n. 1. 12. The word “Caveat” has been defined in Random House Webster’s Dictionary of the Law as under: “caveat, n. 1. A warning or caution; admonition. 2. In certain legal contexts, a formal notice of interest in a matter or property; for example, a notice to a Court or public officer to suspend a certain proceeding until the notifier is given a hearing; a caveat filed against the probate of a will.” (Para 62)” In Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300 , the apex Court has also adhered to the meaning attached to the word “Caveat” as defined in Random House Webster’s Dictionary of the Law mentioned above. 13. Taking into consideration the meaning attached to the word “caveat” vis-à-vis the applicability of the same to the writ proceeding in view of the provisions contained in the Civil Procedure Code, it is the bounden duty on the part of respondent no.6 to serve a copy of the writ petition on the caveator-appellants and opportunity of hearing should have been given to them before the order impugned was passed. In the instant case, the matter having been disposed on the first day and at the first instance at the stage of fresh admission and adequate opportunity having not been granted to the caveator-appellants, we are of the considered view that the impugned order dated 26.10.2015 (Annexure-1) is liable to be quashed and is hereby quashed. The matter is relegated to the stage of fresh admission and remanded back to the learned Single Judge to adjudicate the same afresh in accordance with law by affording opportunity of hearing to all the parties. 14. The respondent no.6 being aggrieved by the action of the Transport Authority and State Administration in imposing restrictions on plying of multi-axle vehicles on the road in question vide letter dated 19.10.2015 approached this Court by filing W.P.(C) No.19266 of 2015. The learned Single Judge by order dated 26.10.2015, while allowing the writ petition at the first instance without affording opportunity to the caveator-appellants, quashed the said order dated 19.10.2015. But, the State Government in Commerce and Transport Department vide letter dated 31.10.2015 in Annexure-A/6 to the preliminary counter affidavit filed on behalf of respondent no.6 passed an order keeping the letter dated 19.10.2015 in abeyance till the Government takes a decision on reconsideration. But, the State Government in Commerce and Transport Department vide letter dated 31.10.2015 in Annexure-A/6 to the preliminary counter affidavit filed on behalf of respondent no.6 passed an order keeping the letter dated 19.10.2015 in abeyance till the Government takes a decision on reconsideration. Once the order dated 19.10.2015 imposing restriction has been quashed by allowing the writ petition by the learned Single Judge by judicial pronouncement, subsequent order dated 31.10.2015 in Annexure-A/6 for reconsideration of the order dated 19.10.2015 has no meaning at all. Therefore, in our considered view, the consequential order dated 31.10.2015 under Annexure-A/6 to the preliminary counter affidavit filed on behalf of respondent no.6 passed subsequent to order dated 26.10.2015 is also liable to be quashed and is hereby quashed. 15. Resultantly, the writ appeal is allowed. The judgment dated 26.10.2015 of the learned Single Judge passed in W.P.(C) No.19266 of 2015 is hereby quashed and the order dated 19.10.2015 stands revived. Any orders passed after 26.10.2015 being nullity is/are hereby quashed. No order as to cost.