Full Judgment
ORDER
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA
I.A. No. 19.
This is an application for clarification/modification of the order dated 09.08.2005, filed by the respondent No. 5.
1. The respondent No. 5-South Eastern Coalfields Ltd. Has filed the instant application seeking modification of the order dated 09.08.2005. A learned Division Bench of this Court, after hearing learned counsel appearing for the parties and also after having taken the affidavits filed by the Union of India, into consideration passed the following
ORDER
"The matter will be listed on 13th September, 2005. In the meanwhile, SECL will not break up any fresh area and adhere to all environmental safeguards as indicated in the order dated 13.06.2005 of the Government of India, Ministry of Environmental and Forests, F.C. Division."
2. The instant writ petition was dismissed for want of prosecution on 03.11.2009 by a learned coordinate Division Bench and thereafter, the same was restored to its file vide order dated 27.09.2010. During pendency of the petition, the respondent No. 5 filed the instant application on 14.03.2012 seeking clarification of the order dated 09.08.2005, on several grounds, stated in the application.
3. The matter came up before learned coordinate Division Bench. The learned coordinate Division Bench, vide order dated 02.05.2012, observed as under:
"In view of the provisions of Rule 40 of the Chhattisgarh High Court Rules, 2007, Registry is directed to list the matter before the appropriate Bench."
4. Thereafter, by order of Hon'ble the Chief Justice on administrative side, the instant application is listed before this Bench.
5. Shri Jagdeep Dhankar, learned Senior Counsel appearing with Dr. N.K.Shukla, learned Senior Advocate, Shri K.S.Bhati, Shri V.B.Singh and Shri R.K.Gupta, learned Advocates, for the applicant/respondent No. 5 would submit that in order to maintain judicial discipline and propriety, any order, even if it is of interim nature, has to be considered by the same Court. In support of his contention, Shri Dhankar would rely on decisions of the Supreme Court in Official Liquidator v. Dayanand and Others1, Tata Consultancy Service Ltd. v. State of A.P.2, and Harjeet Singh alias Seeta v. State of Punjab3.
6. We have perused Rule 40 of the Chhattisgarh High Court Rules, 2007 (for short `the Rules'), which reads as under:
"40. An application for modification, clarification, restoration or review of an order, of a subsequent bail application under Section 438/439 of the Code of Criminal Procedure, shall be listed before the same Coram:
Provided that if the same Coram is not available on account of retirement or for any other reason for a period of three months and:-
(1) if the matter relates to a Larger Bench then the same shall be listed before an equivalent Larger Bench of which one of the Members was a Member of the earlier Bench;
(2) if none of the Members of the earlier Bench is available then the application shall be listed before an equivalent regular Bench;
(3) in case of a Single Bench, except subsequent bail applications, the matter shall be listed before a regular Division Bench;
(4) in case of a Single Bench where the matter relates to a subsequent bail application under Section 438/439 of the Code of Criminal Procedure, the same shall be listed before the regular Single Bench."
7. On perusal of Rule 40 of the Rules, it appears that the Rules provide for modification, clarification, restoration or review of the order which has finally settled the rights or the lis between the parties has finally been adjudicated upon. It is manifest from the fact as provided in Rule 40 of the Rules, that bail applications under section 438 and 439 of the Code of Criminal Procedure, 1973 (for short `the Cr.P.C.') has to be listed before the same coram as the applications filed under section 438 and 439 of the Cr.P.C. are finally disposed of. However, applications filed under section 389 of the Cr.P.C. provides for suspension of sentence pending the appeal and releasing of the appellant on bail may not be listed before the same Bench since these applications are interim in nature in pending appeal under provisions of Rule 40 of the Rules.
8. We have carefully perused the ratio laid down by the Supreme Court in the aforestated cases, cited by learned counsel appearing for the applicant/respondent No. 5, wherein the Supreme Court has taken a consistent view that the final decision, which has settled the rights or adjudicated upon the lis, have to be given full respect to maintain credibility of the judicial institutions and the constitutional ethos.
9. The issue involved in the case is asto whether the order, which is interim in nature, and the life of interim order is till it is modified, clarified, vacated or till final order settling the issue or adjudicating the lis, is decided. The interim order cannot exist after the case has finally been decided. This is in order to maintain judicial propriety. In interim order, which is normally passed having regard to the fact and situation at the time of passing of the order, is subject to modification, clarification, review or reconsideration by a Bench, which is hearing the matter on merit according to the Roster and allotment, decided by Hon'ble the Chief Justice.
10. The Supreme Court, in Harjeet Singh (supra), held as under:
"9. The law on this aspect is well settled. In Shahzad Hasan Khan v. Istiaq Hasan Khan, while dealing with the subsequent bail application, this Court observed: (SCC p. 689, para 5)
"5. Normally this Court does not interfere with bail matters and the orders of the High Court are generally accepted to be final relating to grant or rejection of bail."
Thereafter, the Court stated that long- standing convention and judicial discipline require that subsequent bail application ought to have been placed before the same Judge who has passed earlier orders. Placing of such matter before the same Judge has its roots in principle as it prevents abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up; if successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders. The Court finally observed that judicial discipline requires that such matters should be placed before the same Judge, if he is available for orders. Same principle is required to be followed even for setting aside the order passed by the court granting bail on the ground of misrepresentation or misstatement or suppression of some facts."
11. A Constitution Bench of the Supreme court in V.C.Shukla v. State Through C.B.I.4, explained the difference between interlocutory order and final order, holding that the essential attribute in interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue, or which is made between the commencement of an action and the entry of the judgment, and the final order amounts to final adjudication between the parties, on merits.
12. In view of the aforesaid, we are of the considered opinion that Rule 40 of the Rules, contemplates modification, clarification, restoration, or review of an order i.e. final order which settles the dispute and the rights of the parties or adjudicate upon the lis between the parties. Thus, in the case on hand, for modification of an interim order passed earlier, the Bench hearing the matter on merit, will be the appropriate Bench to consider this application also.
13. It is trite law that if a Bench does not agree with the view taken by a coordinate Bench of equal strength, judicial discipline and practice requires that the issue be referred to the Larger Bench.
14. In view of the foregoing, we recommend Hon'ble the Chief Justice to place the matter before a Larger Bench under the provisions of Rule 35 of the Rules.
15. Registry is directed, accordingly.