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PETITIONER: RELIANCE INDUSTRIES LTD.

       Vs.

RESPONDENT: PRAVINBHAI JASBHAI PATEL & ORS.

DATE OF JUDGMENT:       29/08/1997

BENCH: S. B. MAJMUDAR, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J.      Leave granted  in Special  Leave Petitions  challenging the judgment  and order  dated 24th  and 25th  October  1996 passed by the Division Bench of the High Court of Gujarat in Miscellaneous (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-company has  brought in  challenge  the judgment and  order dated  24th and 25th October 1996 passed by the  Division Bench  of the  High  Court  of  Gujarat  in Miscellaneous 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 :      ‘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 law, whether a reference      to  a   third  learned   Judge   is      required to be made for disposal of      the  review  petition  as  per  the      majority  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      Procedure, 1908  (‘CPC’ for short),      keeping the  order,  sought  to  be      reviewed untouched.’      As the  aforesaid question  goes to  the  root  of  the

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matter we thought it fit to hear the learned counsel for the respective parties on this question at the outset.      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 i n the High Court  of Gujarat  by the two writ petitioners who were agriculturists having  agricultural 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,  Vata and  Odhav on  the periphery  of  Ahmedabad city,  were   discharging  their   polluted  effluents  into Kharicut canal  which, in turn, leads to Khari river. 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. It 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 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, sited at Naroda, Vata and  Odhav and  also some  of the  textiles  units  and processing units  situated in  or hereby  Ahemdabad. In  the said writ petition the present appellant was also one of the contesting respondents.  After hearing the parties concerned the Division  Bench consisting  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 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.24916  of 1995. A Bench of two learned Judges of this Court consisting  of Hon’ble K. Ramaswamy 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      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  cases.   it   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."      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

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raised in  the review  petition. This  review  petition  was heard by another Division Bench 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  respondents. Ultimately by  an order dated 24th October 1996 Gokhale, J., came to the conclusion the appellant-company was not covered by the  impugned directions contained in the judgment in the writ petition.  Said decision was rendered by Gokahle, J. on various reasons  mentioned therein.  So  far  as  the  other learned Judge M.s. Shah, J., was concerned, he took a August 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 developments, therefore, the main controversy  which survives  in these  appeals  centers round the  legality of the order 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.      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 difference of      opinion  between  the  two  learned      Judges was  justified 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.      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 service for our consideration  at this stage. That would service only if it is  held that  the  review  petition  was  liable  to  be dismissed under  O.XLVI R.6  CPC as  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  submitted that when the hearing of the review petition resulted  in difference  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 . 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 rules especially Rule 186 thereof  did not  contra-indicate  the  said  procedural 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 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

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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 opinion as per Section 98 sub-Section (3)  of the  CPC read  with  Clause  36  of  the Letters Patent.  That is  no case  the  Division  Bench  was justified the  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  Bench of  the High  Court  on  24th  and  25th October 1996  dismissing the  review petition us required to be set  aside  and  the  controversy,  centering  round  the question 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.      On the  other had  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 Section 98, CPC 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 facts, 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  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 Section  98, CPC  as that  would render  the operation of  Rule 186  of  the  Gujarat  High  Court  Rules options. 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  present  case  as  the decision rendered  in the review proceedings by the Division Bench could  not be  said  to  be  a  decision  rendered  in exercise of  original jurisdiction  of the High Court and it was admittedly  not  a  decision  rendered  in  exercise  of appellants 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   or   in   exercise   of   appellate jurisdiction. That  review jurisdiction  is  an  independent jurisdiction which  is  different  from  the  aforesaid  two jurisdiction 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 (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  O.XLVII R.6, CPC. Consequently not fault could  be found  with the  decision of  the High Court following the said course.

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    In the  light of the aforesaid rival contentions we now proceed  to  consider  this  moot  question  posed  for  our consideration. It is not is dispute between the parties that the High  Court of Gujarat is governed by the 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 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 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 with the  task of  deciding about  apparent error,  it  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 merits of the review petition,  ex facie,  Clause 36 of the Letters Patent got attracted. The said 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  its      original or appellate jurisdiction,      may be  performed by  any Judge  or      any   Division    Court    thereof,      appointed or  constituted for  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,  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."      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

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proceedings arising out of decisions in writ petitions under Article 226  of the  Constitution of India invoking 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. Question of exercise of appellate jurisdiction does not  arise in  the present  case. Therefore,  the short question is  whether he  decision rendered  by the  Division Bench of  the High Court in Special Civil Application No.770 of 1995 allowing it as a public interest litigation petition in 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  Court which  decided the  matter, for persuding 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 won judgment. Thus in substance a review amounts to  reconsideration of  its own decision by the very same Court.  When the Court 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 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 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. Review jurisdiction,  therefore,   cannot  be   said  to   be  same independent jurisdiction sought to be exercised by the Court 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  of  its original jurisdiction  the review proceedings emanating from the very  same judgment  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 counsel  Shri Sorabjee for  respondent no.6  that the review proceeding in the present  case which  was arising  out of the decision 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 jurisdiction of the  High Court which was neither original not appellate.

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it must  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 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  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 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 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 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  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,  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 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  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 :      "37.  Regulation  of  Proceedings.-      And we  do further  ordain that  it      shall be  lawful for  the  said  to      time to  make rules  and orders for      the  purpose   of  regulating   all      proceedings in  civil  cases  which

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    may be brought before the said High      Court, including proceedings in its      Admiralty,          Vice-Admiralty,      intestate,     and      matrimonial      jurisdiction respective  : 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      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 jurisdiction. Said rule  making power  also flows  from the  provisions of 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      procedure.-         Notwithstanding      anything in  this  Code,  any  High      Court, not  being the  Court  of  a      Judicial  Commissioner,   may  make      such rules  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 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 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   accordance  with  the      procedure referred to in Section 98      of the Civil Procedure Code."      A more  look at  the  said  rule  shows  that,  amongst others, in  the petitions  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 procedure 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)  where  an      appeal is  heard by  a Bench of two      or more Judges, the appeal shall be

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    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      judgment 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 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 be 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.           (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 Section  98 of  the CPC  shows that  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  Rules 186 refers to the procedure of Section 98,  CPC   and  does   not  import  the  provision  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  discussed earlier,  would include  review petition arising therefrom,  is head 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 with  lays down that where there is no such majority which  concurs in  a judgment  varying or reversing the decree appealed from, such decree shall be confirmed. By its very  language sub-Section (2) of Section 98, CPC cannot apply to  the decision  rendered by  a Division Bench of the High Courts  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   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 sub-Section  (2) of  Section 98,  CPC the  said provision

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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  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  Sections shall be  deemed to  alter or otherwise affect any provision of Letters  Patent of any High Court. This would 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 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 read with Section 98 of  the CPC  that if  the Division  Bench of  two learned Judges  hearing   the  review   petition  arising   out   of 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  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 circumstance it has to be held even in the light of Rule  186 read  with Section  98 of  the CPC  that if the Division Bench  of two  learned Judges  hearing  the  review petition arising  out of  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 in 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 at the wide sweep  of Clause  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 thereof. In this connection we may profitably refer to a decision of  the Privy  Council in  these  case  of  Bhaidas Shivdas V.  Bai Gulba  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 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 the Judges. But if the  Judges were  equally divided,  opinion of the senior Judge was  to prevail.  Now  that  clause  was  directly  in

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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  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 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  aforesaid decision was rendered  by the Privy Council. It will be profitable to extract  the   observation  of   Lord  Buckmaster  who  gave unanimous opinion  on behalf  of the  Privy Council  in  the following terms :           "That contention  depends upon      the  construction  of  the  Letters      Patent of  Bombay, under  which the      Court was constituted, and the 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 of      the Judges:  but if  the Judges 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 this favor.           It  is,   however,  urged   on      behalf of  the respondents that the      procedure in Section 36 is modified      by the  Code of Civil Procedure, of      the  Letters  Patent  there  is  an      express subject  to the legislative      powers of  the Governor-General  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 which      the  Judges   acted.  That  section      provides:-           ‘That where  the Bench hearing      the  appeal   is  composed  to  two      Judges   belonging   to   a   Court

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    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 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.’           It is  quite plain  that those      provisions   create    a    totally      distinct method of procedure in the      event  of  difference  between  two      judges from  that  which  was  laid      down by  section 36.  Under section      36  of   the  Letters   Patent  the      judgment 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 Judges      who have heard the appeal; and this      case   shows    that   those    two      provisions might  produce a totally      different  result.  If,  therefore,      section 98 controls section 36 that      the  proper   procedure  had   been      followed, and  that  the  appellant      head no  cause of complaint. But by      section 4  of  the  Code  of  Civil      Procedure  it   is  also   provided      that:-      ‘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      from of  procedure 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,      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 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  submitted  that  by  the  express

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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  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 options or at least a situation conundrum  we would  be moving  in a circle. It is not possible  to agree  with this  contention. The reason is obvious. Rule  186 is  found in  Chapter XVII of the Gujarat High Court Rules which deals with ‘Application under Article 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),  CPC  would  on  its  own language 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  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 can be followed. It is well settled that proceedings  under Article 227 are not by way of appeal before the  High Court  and, therefore, the High Court 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 difference 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 points  of  law  on  which  they  differ  for consideration of  the third  learned Judges  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  options if  it is  held  that procedure laid  down by  Section  98  sub-Section  (2),  CPC cannot be  pressed in  service in proceedings emanating from petition under  Article 226  of the  Constitution  of  India 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  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 proceeding 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 the High Court reached that because the two learned  Judges of  the High  Court deciding  the review petition  did  not  agree  and  gave  contradictory  opinion regarding the  merits of the review petition the decision of

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the review  petition had  to be  as laid down by O.XLVI R.6, CPC. Consequently,  the said  decision  of  the  High  Court dismissing the  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 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 opinions 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 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   petition  to  the appropriate Bench 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  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.      We may also mention at this stage one development which took place  during the pendency of these proceedings in this Court. By  an order dated 17th June 1997 a Division Bench of the High  Court consisting  of B.C. Patel and M.S. Shah, JJ. passed an order in Miscellaneous Civil Application 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 is 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  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   the appellant by  the High  Court by  its order  dated 17th June 1997. It  goes without  saying that  if and when June future challenges are levelled by the 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 to  clear  that  we  make  no observations on  the merits  of the  controversy between the parties,  emanating  from  these  proceedings  and  all  the contentions raised  by the  contesting parties  before us in

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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.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 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 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 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  against  the  appellant,  the aforesaid  solitary   question   would   not   survive   for consideration for two reasons - (1) the SLP against the main judgment which was filed by the appellant earlier is already withdraw 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 appropriate 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  paragraph 22  to 25 of the review petition moved before the High Court pursuant to the liberty given by  this 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 respondents 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 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.      Learned senior  counsel for  the appellant on the other hand contended  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)

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(I) (ii) will also 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 consideration 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  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 thought  it fit  to be  delink the  said SLP awaiting the decision in the remanded proceedings.      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 proceedings, we request the High Court  to dispose  review proceedings,  we request  the High Court  to dispose of the remanded review proceedings at is earliest  convenience and  preferably within  a period of eight weeks  from the receipt of a copy of this order at its end.      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 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 admitted polluting industries are  operating. This  deposits 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.50 lakhs as agreed to before us, with 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.