Ashok Kumar Chhabra and Others vs Union Of India and Others

Jaspal Singh, J.—The petitioners who claim to be the owners of what is commonly known as Mobile Bitumen Concrete Mixing Plant filed a writ petition against the Union of India and Delhi Pollution Control Committee besides others for a direction to the respondents not to interfere in any manner in the working of that plant. It appears that the Supreme Court holding that the running of such plants was hazardous and noxious and Therefore required to be immediately stopped, had passed orders for relocation of such plants including the plant of the petitioners. The petitioners in the writ petition in question took the position that as they had adopted a modern technology with an inbuilt pollution control devices their plant could neither be held as hazardous nor noxious. Their grievance was that as their plant was non- polluting the authorities could not legally act under the Air Prevention and Control of Pollution Act, 1981.

On September 24, 1997 when the matter was taken up by Hon. Mr. justice Arun Kumar it was found that the impugned order was appealable and that the petitioners had actually filed an appeal but before a wrong Forum. A direct -corporation was thus given that another copy of the appeal be placed before the Appellate Authority which could decide the appeal on merit in accordance with law after affording an opportunity to the petitioners of personal hearing. Consequent upon that order the Counsel for the petitioners sought permission to withdraw the writ petition with liberty to seek appropriate remedy in case of any cause arising for the same. The writ petition was accordingly dismissed as withdrawn.

However, much after the dismissal of the writ petition, the petition- ers moved CM 108/97 alleging that although the appeal filed by the petitioners was still pending disposal, the authorities were taking steps to seal their unit and in that connection had issued orders on 10th December, 1997. They sought stay of the operation of the said order.

The C.M. came up before the learned Vacation Judge who, on 24th December, 1997, issued notice to the other side for 22nd January, 1998 and restrained the respondents in the meanwhile from sealing the unit. It is this application which is the subject matter of this order.

During arguments, the learned Counsel for the respondents took prelim- inary objection that the writ petition having been dismissed as with drawn, the application could not be moved and that since the application itself was not maintainable the order passed by the learned Vacation Judge de- served to be vacated. It was, however, not disputed that appeal by the petitioners was still pending disposal and that no application had been moved before the Appellate Authority for stay of the sealing order.

Though arguments were advanced on behalf of the petitioners that the order of sealing was bad in law, I need not go into the same for the reason that I do feel that the preliminary objection raised on behalf of the respondents deserves to be sustained. The writ petition having been dis- missed as withdrawn nothing survived. This being the position, the petitioners could not file the miscellaneous application for obtaining the relief as noticed above and if any authority is needed in support, reference may be made to the judgment of the Supreme Court in State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, . The following observations made in the said judgment are pertinent:

"The High Court''s order is not sustainable for yet another reason. Respondents'' writ petition challenging the order of dismissal had been finally disposed of on August 10, 1984, thereafter nothing remained pending before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated January 29, 1986 he could have filed a separate petition under Article 226 of the Constitution challenging the validity of the notice as it provided as separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondent''s application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning."

Keeping in view what has been noticed by me above the Civil Miscellaneous Application is dismissed and with that falls the order passed by the learned Vacation Judge on 24th December, 1997.

Application dismissed.