State vs Hindo Open Sugar Mills and Others

Beri, C.J.—Seven petitions under Article 226 of the Constitution of India were presented before learned Single Judge of this Court challenging the validity of the notification dated November 28, 1972, whereby the petitioners were directed to operate their Power Crushers of Khandsari Units in the reserved area only after February. 1973 and to restrain their working to one shift of 8 hours each within the specified hours. Inter alia the grounds of challenge were that the restrictions imposed by this order were violative of the fundamental rights of the petitioners being unreasonable restrictions placed on their right to carry on that business of manufacturing Khandsari Sugar. The aforesaid applications were admitted by the learned Single Judge. After , hearing the learned Advocate General, Additional Advocate General and others on behalf of the Government the learned single Judge by his order dated 17-1-1973 ordered that it will be in the interest of justice if the operation of the notification No. F. 2 (41) Ind/7l Volume I, dated 28-11-1972 was staved subject to the condition that an Inspector, if appointed by the Government, supervised the purchase of sugarcane by the petitioners at the place where the sugarcane was purchased and weighed. The petitioners were to comply with the condition of purchasing only three hundred quintals of sugar cane per day. It was expected "that the Government shall issue permit to the petitioner to start functioning from day after tomorrow." Against this interim order these seven Special Appeals have been preferred u/s 18 of the Rajasthan High Court Ordinance. The office has raised an objection that there appeals are not maintainable. A notice was issued to the petitioners. They have appeared before us to support tide office objection.

Mr. Raj Narain, learned Additional Advocate General urged that that order under appeal has practically determined the controversy between the parties because the petitioners can purchase and crush sugarcane after 1st February, 1973 and therefore it was a decision on merits of the case. He placed reliance on Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, ; Dewaji Vs. Ganpatlal, Shri Radhey Shyam Vs. Shyam Behari Singh,

Mr. M. B. L. Bhargava representing three petitioners urged that it was clearly an interlocutory order which is not covered by the word ''judgment'' as employed in Section 18 of the Rajasthan High Court Ordinance, and so no appeal lay. He placed reliance on Tarapore and Co., Tarapore and Co. Vs. V/O Tractors Export, Moscow and Another, and Southern Roadways (P.) Ltd. Vs. P. Methurai Veeraswami (died) M. Dhanapalan and Others,

Mr. R. K. Rastogi appearing on behalf of the other respondents supported the contention of Mr. M. B. L. Bhargava and placed reliance on Shri Prakash Chand Agarwal and Others Vs. Hindustan Steel Ltd.,

Material portion of Section 18 of the Rajasthan High Court Ordinance reads as follows:

Section 18: Appeal to the High Court from Judges of the Court.-- (1) An appeal shall lie to the High Court, from the judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of re-visional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence u/s 43 or in the exercise of criminal jurisdiction) of one Judge of the High Court.

The crucial word which calls for Interpretation is the word ''judgment'' employed in Section 18 (1). The word ''judgment'' also occurs in Clauses 15 and 39 of the Letters Patent of the Madras High Court which received a close and careful consideration of the five learned Judges of that Court in Southern Roadways (P.) Ltd. Vs. P. Methurai Veeraswami (died) M. Dhanapalan and Others, They observed that true import of the word judgment, or the tests by which any judicial order can be regarded as a judgment is that it should be the determination of right and liability. The word ''determination'' itself indicated that such right as has been adjudicated upon must have been so adjudicated finally, so far as the controversy between the parties in the Court was concerned. In their opinion the word ''judgment'' employed in Article 133 of the Constitution has the same connotation as in clauses 15 and 39.

In Asrumati Devi''s case it has been observed:

"A final judgment is an adjudication which conclusively determines the rights of the parties with regard to all matters in issue in the suit, whereas a preliminary or interlocutory judgment is a decree by which the right to the relief claimed in the suit is decided but under which further proceedings are necessary before a suit in its entirety can be disposed of. Save and except final and preliminary judgments thus defined, all other decisions are ''orders'' and they do not come within the description of ''judgments'' under the relevant issue of the Letters Patent." (Emphasis ours),

It is not necessary to examine any other case for the simple reason that the basic ingredients of the word ''judgment'' have been authoritatively laid down by the Supreme Court in the above decision. The small Question which arises for our consideration is whether the order passed by the learned single Judge on 17th January, 1973 is a judgment against which an appeal, is competent u/s 18 of the Rajasthan High Court Ordinance. Our answer to the question is plainly in the negative. Our reasons are that the order operates subject to the ultimate decision of the rights of the parties in regard to the validity of the notification of 28th November. 1972. Specific conditions have been imposed by the learned single Judge under which this order has been passed. All arguments against the advisability or otherwise of such an order are irrelevant for the purposes of deciding the question whether the order appealed against is a judgment or an interlocutory order. The grievance of the learned counsel which he more than once emphasised was that this order settled the fate of the 7 petitions in favour of the petitioners. The crucial question whether the notification is valid, and the fundamental rights of the petitioner are violated or not remains to be derided. The operation of the impugned notification has been kept in abeyance until the basic questions were decided. In our opinion, it is a clear case of an interlocutory order being assailed in appeal u/s 18 of the High Court Ordinance, which Is not permissible. The order of 17-1-1973 is not a judgment and these seven appeals, therefore, are not maintainable. The office objection is upheld.

These 7 appeals are accordingly dismissed with costs.