JUDGMENT Vikramajit Sen, J.

1. The Court of First Instance has considered the Preliminary Issue of the maintainability of the suit filed by the present Respondents keeping in view the provisions of Section 46 of the Air (Prevention and Control of Pollution) Act, 1981. It has also declined to grant any interim injunction. The First Appellate Court, however. has issued the injunction prayed for, restraining Defendants No.1 to 16 from using their furnaces for making pottery by burning unapproved and polluting fuels.

2. The fuels that can be used have been itemised in the Notification No. F.25(258)/SC/LC/DPCC/96/651 dated 27.8.1998. For convenience, this Notification is reproduced below:

"In pursuance of the provisions of clause (d) of Section 2 of the Air (Prevention and Control of Pollution) Act, 1981 (Nb.14 of 1981) read with Notification No.1egal 158 (4)/90 dated the 15th March, 1991 of the Central Pollution Control Board, the Delhi Pollution Control Committee hereby approves the following fuels as the "APPROVED FUELS" for the purposes of the said Act in the National Capital Territory of Delhi; namely :-

LIST OF APPROVED FUELS IN THE NATIONAL CAPITAL TERRItorY OF DELHI

1. Coal with low sulphur (S = 0.4%)

2. Fuel oil/LDO/LSHS/with low sulphur (S = 1.8%)

3. Motor gosoline (as per specifications given in the notification dated 2.4.90 of the Ministry of Environment and Forests, annexed hereto)

4. Diesel (as per specifications given in the notification dated 2.4.96 of the Ministry of Environment and Forests, annexed hereto).

5. Liquid Petroleum Gas (LPG)

6. Compressed Natural Gas (CNG)

7. Kerosene

8. Naptha (for power station)

9. Aviation turbine fuel (for air craft)

10. Fire wood (only for domestic use in rural ares and crematorium)

11. Bio-gas"

3. The Order dated 16.10.2001 of the Additional District Judge/First Appellate Court is only interlocutory in nature. A Revision is not maintainable against it after the amendment to the CPC and the exposition of the law is available in Shiv Shakti Coop. Housing Society, Nagpur vs. Swaraj Developers and Others, .

4. Counsel for the Petitioner states that the Revision has been filed prior to 1.7.2002. It is therefore necessary to revert to the provisions as they existed in the unamended Code. Section 115 prior and post the enforcement of the CPC (Amendment) Act, 1999 reads as follows:

LAW PRIOR TO THE ENFORCEMENT OF CPC (AMENDMENT) ACT, 1999.

S.115. Revision.-

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where--

(a) the Order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or oder against which an appeal lies either to the High Court or to any Court subordinate thereto.

Explanation: In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.

Present Provision S.115. Revision.-

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceedings.

(2) The High Court shall not, under this section, vary or reverse any decree or oder against which an appeal lies either to the High Court or to any Court subordinate thereto.

(3) A Revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the High Court.

Explanation.--In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceedings.

5. On a reading of the juxtaposed provisions of Section 115 of the CPC it will be easily discerned that two changes have been brought in. Firstly, the consideration is now irrelevant that the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made; secondly, it has now been clarified that a Revision shall not operate as a stay of a suit or other proceedings. The position that a Revision should be entertained only in respect of those orders which could have finally disposed of the suit or other proceedings has not been altered. In these circumstances since the proceedings are still pending this Revision is not maintainable. Moreover it has also been observed by the Apex Court in Shiv Shakti case, (supra) that the amendments are procedural in character and are therefore to be applied to all proceedings that have to be decided. In other words, the amendments have retrospective applicability.

6.Even at the point of time when this Revision had been instituted, it was not maintainable for the reason that the Trial Court has framed a preliminary Issue on the maintainability of the suit, and this order had not been challenged. Therefore, even if the decision of the Appellate Court were to be set aside it would not result in the suit being finally disposed of. In any event even if substantial justice has to be looked at, the Petitioners cannot be heard to contend that they can use fuels which are not covered/contained in the said Notification since that will have the effect of polluting the atmosphere.

7. It is next contended that even if the Revision is not maintainable a petition under Article 227 of the Constitution is maintainable. This question has also been considered in Shiv Shakti's case (supra) and the Hon'ble Supreme Court has made these observations :

"35. It was submitted by learned counsel for the appellants that even if the revision applications are held to be not maintainable, there should not be a bar on challenge being made under Article 227 of the Constitution. It was submitted that an opportunity may be granted to the appellants to avail the remedy.

36. If any remedy is available to a party under any statute no liberty is necessary to be granted for availing the same. If the appellants avail such remedy, the same shall be dealt with in accordance with law.

37. The appeals are dismissed. No costs".

8. In its more recent judgment rendered in Surya Dev Rai Versus Ram Chander Rai and other, , the Hon'ble Supreme Court has removed all possible doubts by posing the question - "is an aggrieved person completely deprived of the remedy of judicial review if he has lost at the hands of the original court and the Appellate Court, though a case of gross failure of justice having been occasioned can be made out?" This was answered in the following paragraphs:

"In Shiv Shakti Co-op. Housing Society, Nagpur Versus M/s. Swaraj Developers and others, (2003) 4 Scale 241, another two-Judges bench of this Court dealt with Section 115 of the CPC. The Court at the end of its judgment noted the submission of the learned counsel for a party that even if the revisional applications are held to be not maintainable, there should not be a bar on a challenge being made under Article 227 of the Constitution for which an opportunity was prayed to be allowed. The Court observed,-"if any remedy is available to a party, no liberty is necessary to be granted for availing the same."

We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled.

It is palpably clear that there is a misconception that the Apex Court has opined, in either of these cases, that the Revision should be converted to one under Article 227. In Shiv Shakti's case (supra) this very prayer appears to have been made, but was declined. The following observations in Vishesh Kumar v. Shanti Prasad, specifically refuse such prayers:

"I t has been urged by the appellant in Vishesh Kumar v. Shanti Prasad (Civil Appeal No.2844 of 1979) that in case this Court is of the opinion that a revision petition under Section 115, Code of Civil Procedure, is not maintainable, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We are unable to accept that prayer. A revision petition under Section 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other".

9.The Revision Petition is dismissed. Interim Orders are recalled.