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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.2742 of 2008(O&M)
Date of decision: .9.2008
Haryana State Pollution Control
Board and another ...... Appellants
versus
Juglan Glue P.C.I.S. Ltd. .......Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
****
Present: Mr. J.P.Bhatt, Advocate for the appellants. Rakesh Kumar Garg, J .
CM No.8090-C of 2008 For the reasons mentioned in the application, delay of 70 days in filing the appeal is condoned.
CM stands disposed of.
RSA No.2742 of 2008 The respondent is a Co-operative Society and is running a glue industry since 1967. After coming into force of Water (Prevention and Control of Pollution)Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, no standards were prescribed for the industry of the respondent.
It is the case of the respondent that although his industry did not discharge any trade effluent which could cause pollution, yet as a matter of precaution it applied for consent to the appellants which was granted as per rules and it was found that the plaintiff-respondent was not discharging any trade effluent. Despite this, the employees of the appellants took samples from the industry of the respondent and false report was prepared and prosecution was launched against the respondent. Subsequently, the appellants advised and suggested the respondent to deposit litigation charges for the withdrawal of prosecution. As per the advise and suggestion and assurance of the appellants, respondent deposited a sum of Rs.7,500/- with the appellants on 28.3.1994 but despite that, the prosecution was not withdrawn by the appellants and subsequently the complaint filed by the appellants against the respondent was found to be false, which was dismissed by the Court of competent jurisdiction by acquitting the respondent. The respondent requested the appellants to refund the fee of Rs.7,500 deposited for withdrawal of the prosecution. The request of the respondent for refund of the amount was rejected by the appellants vide its letter dated 29.8.2002.
The respondent filed the present suit for declaration to the effect that the letter dated 29.8.2002 issued by defendants whereby the refund of the litigation charges has been declined by the defendants is totally wrong and illegal against law and facts on record, null and void and as such is liable to be set aside and as a consequential relief of mandatory injunction directing the defendants to refund the litigation fees received by the defendants for withdrawal of prosecution with interest @ 24% per annum from the date of deposit to the date of realization on the basis of evidence oral and documentary of every description.
The suit was contested by the appellants and it was submitted that the fee of Rs.7,500/- deposited by the respondent was not the fee for withdrawal of the prosecution, rather it was the litigation charges and they have forwarded the case of the respondent to the Government for withdrawal of the prosecution. However, the Government did not permit the withdrawal of prosecution. It was also asserted that the suit is not maintainable in the present form. The trial Court dismissed the suit filed by the respondent vide its judgement and decree dated 26.9.2006.
Feeling aggrieved against the aforesaid judgment and decree, the respondent filed an appeal before the District Judge, Hisar which was allowed vide judgment and decree dated 8.3.2008. The relevant part of the impugned judgment and decree passed by the District Judge, Hisar is reproduced as under:
"I have considered the rival contentions of the parties very carefully and I find that the respondents who are part and partial of the govt. and are discharging the sovereign duties, are not supposed to take a frivolous technical plea so as to non-suit the plaintiff. In this case, resolution, was passed to institute the suit for refund of the amount due to the violation of the promise given by the respondents. In this case, the Pollution Board has although taken Rs.7500/- for withdrawal of the prosecution on the plea of litigation expenses yet they have not fulfilled that promise. It is different matter that the appellant successfully faced that prosecution and was acquitted of the charges. Once the respondents were unable to fulfill their promise, they were not only morally bound but duty bound to refund this amount to the appellant, instead they have started taking one plea or another in order to defeat the claim of the appellant. Since it was a violation of the undertaking given by the respondents, the suit for mandatory injunction is fully maintainable.
Admittedly, the promise having not been fulfilled,the respondents are liable to refund the amount to the appellant and there is no necessity to file suit for recovery. The appeal being continuation of suit can very well be filed by the person who was authorized to file suit. The arguments that the appeal has been signed only by the advocate would not make any difference. Because the same advocate was representing the appellant before the trial court. The finding recorded by the trial court with regard to issues no.1 to 4 are hereby reversed. Resultantly, the suit of the plaintiff succeeds and a decree for mandatory injunction is passed in favour of the appellant and against the defendant/respondents to refund the amount of Rs.7500/- with 6% interest from the date of filing of the suit till the date of recovery. If this amount is not paid within three months then, the interest would be 12% per annum instead of 6% per annum. Thus, the appeal is accepted."
By way of this appeal, the Haryana State Pollution Control Board has challenged the impugned judgement and decree.
Learned counsel for the appellants has argued that an amount of Rs.7,500/- deposited by the respondent was not the fee for withdrawal rather it was the litigation charges and the case of the plaintiff was forwarded to the Government for withdrawal of the prosecution as per the guidelines but the Government did not permit the withdrawal of the prosecution and the appellant was not competent to withdraw the complaint against the respondent and hence, they are not at fault. It was further argued by the learned counsel for the appellants that the suit for mandatory injunction is not maintainable and the plaintiff-respondent should have filed the suit for recovery. An objection has also been raised to the maintainability of the appeal on the ground that the resolution to file the appeal has not been attached with the grounds of appeal as resolution has been passed later on i.e. 22.11.2006 whereas the appeal was filed on 9.11.2006. On the basis of the above arguments, learned counsel for the appellants has raised the following substantial question of law:-
" Whether the suit as well appeal filed by the respondent are maintainable.?"
I have heard learned counsel for the appellants and perused the record. However, I find no force in the arguments raised by the learned counsel for the appellants.
Admittedly, there was a policy Ex.D1 vide which the procedure has been laid down for withdrawal of the cases and in compliance of the assurance given by the appellant-Board and the procedure prescribed in the document Ex.D1, the plaintiff-respondent deposited a sum of Rs.7,500/- for withdrawal of the prosecution against him. This procedure has been laid down by the appellant-Board and it has also been admitted that the Board recommended for withdrawal of the case to the Government. Another important factor which is relevant to be mentioned is that, in fact, the respondent stood acquitted in the complaint/prosecution case by a Court of competent jurisdiction. The only plea taken by the appellants is that the Government has not allowed the withdrawal as they were not competent to withdraw the complaint and therefore, they are not at fault. The appellant-Board has not substantiated its arguments by placing on record the reasons on the basis of which the Government did not allow withdrawal. Even the order of the Government declining to allow the withdrawal of the case against the respondent has not been placed on record of the case. Even otherwise, the appellant-Board is an autonomous body which has been created under a statute. It was the Board who had initiated the complaint against the respondent and it was for the appellant- Board to withdraw the complaint against the respondent. There is no evidence on record to prove that permission of the Government was necessary for withdrawal of complaint against the respondent. Thus, the letter dated 29.8.2002 issued by the appellant-Board whereby the request of the respondent for refund of litigation charges has been declined has been rightly held to be illegal.
As far as the objection of the appellants with regard to the maintainability of suit for mandatory injunction being for recovery of money is concerned, the same is liable to be rejected. The suit filed by the respondent is not a suit for recovery simpliciter. In fact the respondent has filed a suit for declaration to the effect that the letter dated 29.8.2002 issued by the appellant-Board declining its request for refund is illegal and as a consequential relief a mandatory injunction has been sought against the appellants to refund the litigation fee. The judgement cited by the learned counsel for the appellants in the case of State of Haryana v. Dr. Prem Singh Mann, 1996 (3) PLR 799 is not applicable to the facts of the case.
The other objection of the appellants regarding maintainability of the appeal on the ground that there was no resolution by the respondent-Company to file the appeal on the date of filing of the appeal i.e. 9.11.2006 is also liable to be rejected. Undisputedly, resolution was passed by the respondent-Company on 22.11.2006. Thus, it was merely an irregularity which cannot come in the way of the Court for granting relief. The Hon'ble Supreme Court of India in the case of Uday Shankar Triyar v. Ram Kalewar Prasad Siingh and another AIR 2006 SC 269 has held as under:-
"17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maid to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:-
i) whether the Statute prescribing the procedure, also prescribes specifically the consequence of non- compliance.
ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
iii)where the non-compliance or violation is proved to be deliberate or mischievous;
iv)where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
v) In case of Memorandum of Appeal there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant."
Thus, in view of the above well settled proposition of law, there is no merit in the said objection raised by the appellants. Even otherwise the resolution authorising to file appeal dated 22.11.2006 was passed. It is not disputed that while instituting the suit in the trial Court, the respondent- Company has placed on record a resolution of the Company to institute the legal proceedings against the appellant-Board. It is well settled proposition of law that appeal is a continuation of a suit therefore, if powers have been given by a company to a person to institute suits and other legal proceedings that power will also include the power to file appeals and revisions. In my above view, I am supported by a judgement of this Court in the case of National Fertilizers Ltd. Bathinda v. Municipal Committee, Bathinda and another 1982 PLR 322. In RSA No.1270 of 2004 (Municipal Council Bathinda v. Raj Kumar) decided on 27.7.2006, this Court after relying upon Uday Shankar Triyar's case (supra) has taken the view as under:
"Coming to the facts of the case, the resolution authorising the Executive Officer to file the suit has been proved before the lower appellate court and the plaint was duly signed by the pleader. It has also been established that the Municipal Committee was entitled to recovery a sum of Rs.3,11,000/- from the respondent along with interest thereon. The rights of the appellant, therefore, could not be defeated on this mere technicality. "
For the reasons stated above, I find no merit in the present appeal. No substantial question of law raises for the determination of this Court.
Dismissed.
September , 2008 (RAKESH KUMAR GARG) ps JUDGE