Reliance Industries Ltd. vs Pravinbhai Jasbhai Patel and Others

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 nut set 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), keeping the order sought to be reviewed untouched.

As the aforesaid question goes to the root of the 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 moved in the High Court of Gujarat by the two writ Petitioners who were conclurists having agricultural lands in eda 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 the industrial estates at Naroda, Vatva and Odhav on the periphery of Ahmedabad city, were discharging their polluted effluents into Kharicut canal which, In turn, leads to Khan 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. In addition thereto the agricultural lands in these villages had lost their fertility and the water drawn from the wells was having reddish color 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, situated at Naroda, Vatva and Odhav and also some of the textiles units and processing units situated in or nearby Ahmedabad. 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, C.J. (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 SLP (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 SLP of the Appellant:

The Petitioner's specific case set up in this Court 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 is 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 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, C.J., 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 that the review petition was required to be allowed as the Appellant-company was not covered by the impugned directions contained in the judgment in the writ petition. Said decision was rendered by Gokhale, J. on various; reasons mentioned therein. So far as the other learned Judge M.S. Shah, J., was concerned, he took a contrary view and passed an order of even date and came to the conclusion that the review petition was liable to be dismissed on various grounds which appealed to the learned Judge and as mentioned in his differing judgment. Then arose the moot procedural question as to whether on difference of opinion between the two learned Judges constituting the Review Bench reference was required to be made to the third learned Judge for resolving the conflict or whether the review petition was liable to be dismissed under Order XLVII Rule 6, Code of Civil Procedure. By their order dated 25th October 1996 both the learned Judges constituting the Division Bench came to the conclusion that once there was difference of opinion between the two learned Judges constituting the Review Bench the only course open to them was to dismiss the review petition as provided in Order XLVII Rule 6, Code of Civil Procedure. As noted earlier, the aforesaid decision in the review petition resulted in Special Leave Petitions moved by the Appellant-company which have culminated, into these appeals.

It may be noted at this stage that after the aforesaid decision in the review petition the Appellant sought to withdraw the SLP filed by it earlier; challenging the main order in the Special' Civil Application No. 770 of 1995 decided on 5th/7th August 1995. Consequently the SLP (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 of 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:

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 Order XLVII Rule 6, Code of Civil Procedure.

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 preference to third learned Judge was required to be made then the second question would' not survive for our consideration at this stage. That would survive only if it is held that the review petition was liable to be dismissed under Order XLVII Rule 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 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 in no case the Division Bench was justified in dismissing the review petition despite this conflict of opinions between the two learned Judges, following the provisions on Order XLVII Rule 6, Code of Civil Procedure. 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 is required to be set aside and the controversy, centering round the questions 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 hand 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 correct procedure as proviso to Sub-section (2) of 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 fact, 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 otios. 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 appellate 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 jurisdictions 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 Order XLVII Rule 6, Code of Civil Procedure. Consequently no fault could be found with the decision of the High Court following the said course.

In the light of the aforesaid rival contentions we now proceed to consider this moot question posed for our consideration. It is not in dispute between the parties that the High Court or 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 at 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 view 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, if 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, facie, Clause 36 of the Letters Patent attracted. The said clause reads as under:

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 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 the 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 persuading it to recall or reconsider its own decision on grounds which are legally permissible for reviewing such orders. As laid down by Order XLVII Rule 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 own 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 dehors 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 nor appellate. 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 Order XLVII Rule 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 provision of CPC 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 Order XLVII Rule 6, Code of Civil Procedure. The said division on its own would apply to those courts which were governed strictly by the procedure of CPC 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 on 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 CPC 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:

Regulation of Proceedings.- And we do further ordain that it shall be lawful for the said High Court of Judicature at Bombay from time to time to make rules and orders for the purpose of regulating all proceedings in civil cases which 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 jurisdictions. Said rule making power also flows from the provisions of Sections 122 and 129 of Code of Civil Procedure. 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:

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:

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 Code of Civil Procedure.

A mere 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, Code of Civil Procedure. It reads as under:

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 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 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.

(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 it 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 Rule 186 refers to the procedure of Section 98, CPC and does not import the provisions thereof ipsissimis verbis. Let us therefore, turn to the procedural scheme envisaged by Section 98, Code of Civil Procedure. Section 98(1) of CPC read with Rule 186 of the Gujarat High Court Rules framed by the High Court would enjoin that where a writ petition which, as discussed earlier, would include review petition arising there from, is heard 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 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 Court 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 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 Section 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 Order XLVII Rule 6, CPC nor Section 93(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 183 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 Code of Civil Procedure. 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 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 having 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 the case of AIR 1921 6 (Privy Council) 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 Code of Civil Procedure. 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 conflict with the provisions of Section 98, Code of Civil Procedure, 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 38 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, Code of Civil Procedure. 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 observations of Lord Buck master 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 remanded review proceedings at its 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 admittedly polluting industries are operating. This deposit 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 utilized 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.

ORDER

Special Leave Petition (c) No. 1455 of 1997

This SLP challenges the judgment and order dated 5th/7th August 1995 passed by the Division Bench of the High Court of Gujarat in Special Civil Application No. 770 of 1995. For the reasons stated in our common judgment in Civil Appeals arising out of S.L.P.(C) Nos. 1456-57 of 1997 decided today this SLP is delinked and will stand adjourned sine die awaiting the decision in the proceedings ordered to be remanded pursuant to the order in the aforesaid appeals. It will be open to the parties to intimate the Registry of this Court about the disposal of the remanded review proceedings in the light of which the aforesaid SLP shall be placed for further orders before an appropriate Bench of this Court after obtaining orders from Hon'ble the Chief Justice of India.