Gujarat Water Supply and Sewerage Board vs Kamalia Brothers and Co.

Abhilasha Kumari, J.—Rule. Mr. Sandeep N. Bhatt, learned Counsel, waives service of notice of Rule on behalf of the respondent.

This petition has been preferred, invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, with a prayer to issue a Writ of Certiorari or any other Writ or order, to quash and set aside the judgment and order dated 06.11.2008, rendered by the learned Presiding Officer and Joint District Judge, 2nd Fast Track Court, Rajkot, in Civil Miscellaneous Application No. 488 of 2007.

In order to appreciate the matter in controversy, a brief background of the case, as culled out from the material on record, would be necessary. The petitioner herein, is the Gujarat Water Supply and Sewerage Board (''the Board'' for short), established under the provisions of the Gujarat Water Supply and Sewerage Board Act, 1978, (''the Act'' for short), by the Government of Gujarat, under Notification No. GHY/79/35/WSB/3079. The respondent is a registered partnership firm, carrying on engineering and contract work. As per the averments made in the petition, the Executive Engineer, Public Health Works Division, Rajkot, Health and Family Welfare Department of the Government of Gujarat, issued a Work Order for execution of emergency work to lay down pipelines for water supply in Rajkot city, to the respondent. As there were some disputes regarding payment of the final bill, the respondent instituted Special Civil Suit No. 158 of 1977 on 07.10.1977 in the Court of learned Principal Senior Civil Judge, Rajkot, against the State Government, through the Chief Secretary, Gujarat, for recovery of an amount of Rs. 2,13,345=66 ps. along with interest at the rate of 12%, from the date of institution of the suit. The suit has been decreed, by judgment and decree dated 21.09.2007, rendered by the Trial Court, against the State Government.

It is the case of the petitioner that on 06.06.1979, the Act came into force, and as a result of the provisions of Section 18(3) thereof, the properties, assets, liabilities and responsibilities of the State Government stood transferred to the Board, and the Board is deemed to be substituted for the State Government as party to the proceedings. The record reveals that the State Government preferred an application under the provisions of Order 1, Rule 10 of the Code of Civil Procedure, 1908, with a prayer to delete it as defendant in the suit, and to join the Board instead. This application has been rejected by order dated 08.03.2000. No appeal has been preferred against this order by the State Government or the petitioner-Board, and ultimately, as stated above, the suit of the respondent came to be decreed, by judgment and order dated 21.09.2007. The Board filed an application for condonation of delay in filing an appeal against the above-mentioned judgment and order of the District Court, praying that the delay of 41 days that has occasioned for reasons stated therein, be condoned. This application has been rejected by the District Court, by passing the impugned order, giving rise to the filing of the petition.

Mr. Mehul H. Rathod, learned Counsel for the petitioner, has made lengthy submissions, the gist of which is reproduced below:

(a) The impugned order rejecting the application for condonation of delay filed by the petitioner-Board is grossly erroneous, as it ought to have been considered by the Court below that the delay occasioned in filing the appeal is minimal, and only of 41 days. The impugned order is unjust, arbitrary and violative of the relevant legal provisions inasmuch as the lower Appellate Court has not considered the vital aspect that the petitioner-Board is a party to the proceedings of the suit, since the rights and liabilities of the office of the Executive Engineer of the then Public Health Works Division, Rajkot of the Health and Family Welfare Department of the State Government, have been en-block transferred to the Board along with the properties, estates, rights, liabilities and obligations of the State Government, by virtue of the provisions of Sections 18 and 19 of the Act. The said order discloses total non-application of mind as it has been held therein that the Board is a third party and is not entitled to file an appeal without permission from the concerned Court, which observation is erroneous and not sustainable in law, being contrary to the provisions of Section 18(3) of the Act.

(b) By rejecting the application for condonation of delay, the Board has been deprived of the right of filing an appeal, and grave injustice has occasioned, as the officers of the petitioner-Board have all along defended the suit before the Trial Court. By virtue of the relevant statute, the petitioner is deemed to be a party to the proceedings, therefore, it has a legal right to file an appeal.

(c) The Board stands automatically substituted as defendant by operation of Section 18(3) of the Act, and is not a third party, and there is no need for the petitioner to prefer an application for grant of leave to appeal, or to state in the application that it was not a party to the suit, as has been observed in the impugned order.

(d) The observation of the lower Appellate Court, to the effect that the petitioner has not disclosed that it is not a party to the suit is improper, in view of the fact that the petitioner is automatically deemed to be a party-defendant in the suit, having stepped into the shoes of the State Government, therefore, the application of the petitioner ought to have been considered on merits, and the delay condoned.

In support of the above submissions, the learned Counsel for the petitioner has placed reliance upon a judgment of the Supreme Court in the case of Sub-divisional Officer, Mirzapur Vs. Raja Sri Niwas Prasad Singh,

Mr. Sandeep N. Bhatt, learned Counsel for the respondent, has strongly opposed the submissions made by the learned Counsel for the petitioner, and has supported the impugned order, by making the following submissions:

(i) The respondent is a contractor who was awarded a Work Order for laying of water-supply pipelines in Rajkot city. On account of disputes regarding payment of the final bill, he was constrained to approach the Civil Court by filing the suit for recovery of his dues. The suit was instituted on 07.10.1977, and has been decreed in favour of the respondent by judgment and decree dated 21.09.2007, passed by the Trial Court. The State Government is the defendant in the suit and at no point of time after coming in force of the Act, has the petitioner moved an application before the Trial Court for substituting it in place of the State Government, as defendant. The suit has been defended by the State Government through the Assistant Government Pleader from its inception to its decision. In fact, an application at Ex.122 was filed by the State Government for deletion of its name as defendant and for joining the Board in its place, but the said application was rejected by order dated 08.03.2000. Neither the State Government nor the petitioner have preferred an appeal against this order, which has attained finality. The petitioner has not brought to the notice of the Court by way of an application or oral submissions that it should be substituted in place of the State Government by virtue of the relevant provisions of the Act. The suit has been filed in the year 1977, the Act has come into force on 06.06.1979, and the suit has been decreed on 21.09.2007. From 1979 upto the final decision of the suit, the petitioner has not taken any steps to be joined as defendant, and the only defendant on record is the State Government. As such, the impugned order has been passed on a correct appreciation of the factual and legal position as the petitioner, who was not a party to the suit, could not have filed the application for condonation of delay, without leave of the Court.

(ii) Even otherwise, the State Government has defended the suit through the Assistant Government Pleader and there is no mention in the judgment and decree, that the suit was being defended by the advocate of the Board.

(iii) The respondent is being deprived of the fruits of the decree which has been passed in his favour after about 32 years, and in view of the above submissions, this Court may not interfere, in exercise of supervisory jurisdiction.

I have heard the learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

In the context of the abovementioned background, the issues raised herein, can now be addressed. It is an admitted fact that the suit has been filed in the year 1977, against the State Government. During the pendency of the suit, the Gujarat Water Supply and Sewerage Board Act, 1978, was enacted and came into force on 06.06.1979. The relevant provisions of the Act, insofar as the petitioner is concerned, are Sections 18 and 19 which are reproduced hereinbelow:

Vesting and transfer of property to the Board (1) From such different dates as may be specified, from time to time by the State Government (hereinafter in this section referred to as ''the appointed date''),-

(a) the properties assets (including water works, buildings laboratories, stores, vehicles, furnitures and other furnishing) specified in that behalf, which immediately before the appointed date were vested in the State Government for the purpose of the Gujarat Public Health Engineering Services, shall vest in and stand transferred to the Board; and

(b) the rights, liabilities and obligations of the State Government, whether arising out of any contract or otherwise, pertaining to the said Service, shall be the rights, liabilities and obligations of the Board.

(2) Such properties, assets, rights, liabilities and obligations shall be valued in such manner as the State Government may determine.

(3) Where immediately before the appointed date the State Government is a party to any legal proceedings with respect to any properties and assets transferred to the Board under Clause (a) of Sub-section (1) or with respect to any of the rights, liabilities or obligation, which have become the rights, liabilities or obligations of the Board, under Clause (b) of Sub-section (1), the Board shall be deemed to be substituted for the State Government as a party to those proceedings and the proceedings shall continue accordingly.

Decision of the State Government on the vesting of property to be final. Where any doubt or dispute arises as to whether any property or has vested in the Board u/s 18 or any rights, liabilities or obligations have become the rights, liabilities and obligations of the Board under that section, such doubt or dispute shall be referred to the State Government, whose decision shall be final.

As is evident from a reading thereof, especially Sub-section 3 of Section 18, the Board will step into the shoes of the State Government in respect of the assets, liabilities, obligations, properties and rights of the State Government and shall be deemed to be substituted for the State Government as a party to those proceedings where, immediately before the appointed date, the State Government is a party. From the material on record it is evident that even after the coming into force of the Act, the petitioner-Board did not take any steps to apprise the Trial Court regarding the relevant legal provisions. No application has been filed to set right the record of the Trial Court, or for substitution as party-defendant, in place of the State Government. The petitioner was aware of the provisions of the statute and that by virtue of the same, it has inherited the rights and liabilities of the State Government. Even so, the petitioner took no action to have the memorandum of parties amended, and let the Trial Court proceed with the suit in the form in which it was instituted, and with the array of parties as mentioned in the Plaint. A perusal of the judgment and decree dated 21.09.2007 reveals that the suit has been defended by the learned Assistant Government Pleader on behalf of the State Government. There is no material on record to show that at any stage, the petitioner made a prayer or advanced a submission to implead it was as party-defendant, though being fully aware of the fact that if the suit is decreed, it shall have to bear the liability.

It should be clarified at this stage that the relevant provisions of the Act, relied upon by the petitioner are not in issue in the present petition. What is under challenge is the order of the District Court, rejecting the application for condonation of delay filed by the petitioner. The main grounds for rejection are that the Board is not party to the suit and this fact was not disclosed by it in the application, and no leave to appeal as an aggrieved, third party, was prayed for, by it. There can be no doubt that by virtue of the provisions of Sub-section 3 of Section 18 of the Act, the Board is deemed to be substituted for the State Government as party in legal proceedings to which the State Government was party, immediately before the coming into force of the Act. The deeming provision is a legal fiction substituting the Board in place of the State Government in legal proceedings. However, the said provisions of the statute have to be given effect practically, palpably and substantially by apprising the concerned Court regarding the legal developments and position, and making the necessary changes in the record of the proceedings which are going on. The deeming provision does not state that the record of the legal proceedings being prosecuted by the State Government, is not to be amended accordingly. The said provision cannot be so construed, otherwise utter confusion would prevail, leading to multiplicity of litigation. The submission of the learned Counsel for the petitioner that the Board ''automatically'' became party defendant is not convincing in the face of the undisputed fact that no attempt was made by the Board to ensure that the relevant provisions of the Act are given practical effect on the record of the legal proceedings which were pending. Even if it is assumed that there is automatic substitution, at least the corresponding changes have to be carried out on the record of the proceedings, and the concerned Court apprised of this aspect, as this will not occur ''automatically'' but will involve some active participation and interest of the concerned party. As the petitioner has inherited the liabilities and rights of the State Government and has stepped into its shoes, the responsibility of giving full and proper effect to the provisions of Section 18(3) of the Act would fall upon it. The Court could not have substituted the Board without any submission to that effect being made by it, even though the Board had full knowledge of the factual and legal position and was aware of the consequences. As a result, the fact remains that the Board neither made an application, nor any submission, regarding its substitution in place of the State Government, and was not reflected as party on the record of the suit. The decree has, therefore, been passed against the State Government.

It is on record that the State Government had filed an application at Ex.122 in Special Civil Suit No. 158 of 1977 for deleting it as a defendant and substituting the Board in its place (wrongly mentioned as being filed by the petitioner in paragraph-4 of the petition). This application has been rejected by order dated 08.03.2000, a copy of which is annexed as Annexure-R1 (collectively) to the reply. Even after the rejection of the application at Ex.122 filed by the State Government, admittedly, neither the State Government, nor the petitioner-Board, challenged the said order, which has now attained finality.

It is also not disputed that at no stage of the proceedings, even after the rejection of the said application, did the petitioner-Board file an application, or informed the Trial Court that it has inherited the assets and liabilities of the State Government and is deemed to be substituted in its place by virtue of Section 18(3) of the Act as defendant, so the necessary changes be made in the record of the suit. On the contrary, it appears that the petitioner-Board chose to sit silently, till the suit was finally decreed and only thereafter, filed the application for condonation of delay.

Even though by virtue of the provisions of Section 18(3) of the Act, the petitioner is deemed to be substituted in place of the State Government in all legal proceedings, however, the said substitution has to be practically carried out on the record of the pending legal proceedings, in order to avoid complications and set the record straight. Not to do so would result in confusion, complications and multiplicity of litigation, as has occurred in the present case. The fact remains that the petitioner is not party to the suit, which has been defended by the State Government throughout, and the decree has been passed against the State Government.

It is in this background and context that the impugned order dated 06.11.2008, rejecting the application for condonation of delay filed by the petitioner, is required to be examined. One of the reasons that weighed with the lower Appellate Court was that the petitioner was not party to the suit and this aspect has not been disclosed by it, in the application for condonation of delay. Another ground is that the petitioner has not filed an application for leave to appeal against the judgment and decree as an aggrieved third party. In the factual matrix as detailed hereinabove, the reasons advanced by the lower Appellate Court for rejection of the application cannot be said to be factually incorrect, or unjustified. This aspect becomes even more evident from a perusal of the copy of the application for condonation of delay, which is annexed as Annexure-C, at running page 41 of the paper-book. In the memorandum of parties of the said application, the petitioner-Board is shown as the appellant, and there is no mention of the State Government. The body of the application does not contain even a single averment regarding the relevant provisions of the Act or why the petitioner, who was not party to the suit on record, is entitled to file the application. The fact that the Board has not been brought on the record of the suit as party is also not disclosed. Technically, the petitioner is a third party, in the sense that it is not a party to the suit, though may be the affected party. In this context, the reasons for rejection of the application as recorded in the impugned order, cannot be said to be erroneous.

The learned Counsel for the petitioner has placed strong reliance upon the judgment in The Sub-Divisional Officer (Compensation Officer) Mirzapur and Ors. v. Raja Srinivasa Prasad Singh (supra). A reading of the said judgment shows that the issue involved therein was factually different. The dispute centered around the assessment of compensation to Raja Srinivasa Prasad Singh under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (1 of 1951). By virtue of Section 343 thereof, the State Government was deemed to be a party to the proceedings. However, compensation was enhanced without notice to the State Government which had no knowledge of the objections filed by the erstwhile Zamindar and could not appear and contest the case. In this context, the Supreme Court examined the provisions of Section 343 of the said Act and came to the conclusion that the State Government can always appear without being joined, as it is deemed to be a party and as person interested party, it was incumbent upon the Compensation Officer to send an intimation of the date of hearing to the State Government, so that it could make arrangements for opposing the objections and before enhancement of compensation. In the case in hand, the petitioner is fully aware of the proceedings from the very inception. It has been submitted by the learned Counsel for the petitioner that even though the State Government was a party-defendant to the suit and the decree has been passed against the State Government, in effect, the officers of the petitioner-Board were defending the suit. The facts of The Sub-Divisional Officer (Compensation Officer) Mirzapur and Ors. v. Raja Srinivasa Prasad Singh (supra) are, not applicable to the present case as the petitioner, being fully aware of the legal and factual implications, took no steps to be brought on record as party-defendant in the suit.

In B.K. Muniraju Vs. State of Karnataka and Others, the Supreme Court has held as under:

It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

Guided by the above-mentioned principles of law and for the aforestated reasons, in the considered view of this Court, the impugned order suffers from no legal infirmity or manifest error, so as to invite interference from this Court in exercise of supervisory jurisdiction. The petition, therefore, fails and is dismissed. Interim relief, granted earlier, stands vacated. Rule is discharged. There shall be no order as to costs.