Amar Singh and Others Vs. Union Territory, Chandigarh and Others - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the administration had taken up a similar stand in that petition as well and the learned judge while dismissing the writ'petition observed as under :even if the entire case of the petitioner is taken to be correct, there is no escape but to conclude that only the infringement of contractual agreement is involved and not infringement of any fundamental right. although it appears to be a case of hardship for farmers who were earlier using sewage, water but keeping in view the larger interest of the health of the habitants of chandigarh, it appears that the act of the respondents in stopping the use of sewage water is well justifiable.order1. petitioners who are residents of village burail and own agricultural land there, have filed this petition under article 226 of the constitution challenging the action of the respondents in not allowing them to draw sullage water (untreated sewage) from the sewers of chandigarh administration.2. the case of the petitioners is that they own agricultural land in village burail in the union territory of chandigarh and have been irrigating their lands by lifting sulfage water through pump sets from the sewers of the respondent-administration on payment of certain charges. it is claimed by them that the respondents have been supplying them sullage water for the last three decades though the respondents have admitted that it was being supplied from the year 1979-80 onwards. this water was being supplied to the petitioners and other owners of agricultural land in the union territory of chandigarh at the rate of rs. 30/- per acre for every crop which was enhanced to rs.50/- and at present the rate was rs. 100/- per acre for each crop. according to the petitioners, the supply of sullage water was suddenly stopped on july 16, 1992 when the officials of the chandigarh administration closed down the manholes and the petitioners were told not to use their pump sets to lift sullage water and that if they did so, criminal proceedings would be initiated against them. the land of the petitioners is under acquisition and they have challenged the acquisition proceedings in this court by filing civil writ petition number 2086 of 1992 which is pending and their case is that the respondent-administration has deliberately stopped the supply of sullage water to them because they have challenged the acquisition proceedings in this court. the respondents, on the other hand, have pleaded that.sullage water i.e. untreated sullage. was allowed to be drawni by the petitioners and other farmers in the union territory through, their own pumping sets upto june 30, 1992 and that thereafter the use of such water has been stopped throughout the union territory as the chandigarh pollution control committee, departmentof environment, u. t., chandigarh has served a final notice on the chief engineer, public health, union territory, chandigarh (respondent no. 3) requiring him to stop the use of sullage water for irrigation purposes in the union territory as the same was resulting in pollution and contamination. it may be mentioned that sullage water that was being supplied to the farmers in the union territory though said to be somewhat treated, was not bacteria free and was emitting foul smell. according to the respondents, the grant of further permission to use sullage water would be in violation of ss. 25 & 26 of the water (prevention and control of pollution) act, 1974 and? the concerned officers would render themselves liable to prosecution under the provisions of the said act. it is further stated on behalf of the respondents that untreated sullage water for irrigation by drawing the same through pump sets from city sewers by the petitioners and other farmers can also not be permitted due to the reason that a sewage treatment plant has been set up by the chandigarh administration and this plant requires the entire untreated sullage for purposes of treatment so that the same can be supplied back to the city drinking and other purposes. moreover, the lands of the petitioners and some others are close to the residential area on the periphery of chandigarh adjoining the town of mohali and the residents of that area have been complaining of the foul smell emitted by sullage water. further, the case of the respondents is that supply of sullage water has been stopped not only to the petitioners but to all the farmers and land owners in the union territory of chandigarh and it is wrong on the part of the petitioners to aver that they alone have been singled out.3. after hearing the learned counsel for the parties, at length, i find that the petition has no merit and the same deserves to be dismissed. the respondent-administration has been supplying sullage water to the petitioner's and other farmers for irrigation purposes against charges as fixed by the department from time to time. there, thus, came into being a contract -- pure and simplebetween the chandigarh administration on the one hand and the farmers including the petitioners on the other in regard to the supply of sullage water. non-supply of sullage water can, at the most, be described as violation of a contractual obligation on the part of the administration and it is not the case of the petitioners that sullage water was being supplied to them under any statutory contract. when there comes into being a contract between the state and a citizen whether in writing or otherwise but is not under any statute, the relations between the parties are not governed by any constitutional provisions but by the contract itself which alone determines the rights and obligations of the parties inter se. in this sphere, the parties can only claim rights conferred upon them by the contract and for any alleged violation of such a contract, no writ or order can be issued under art. 226 of the constitution so as to compel the authority to remedy a breach of such a contract. any party feeling aggrieved by the alleged breach may pursue any remedy that may be available to it under the ordinary law.4. this apart, i am also of the opinion that chandigarh administration was justified j in stopping the petitioners and other farmers from drawing untreated sullage from its sewers as according to the provisions of the water (prevention and control of pollution) act, 1974, no person or any department of the state can without the previous consent of the state board constituted under the said act permit the discharge of sewage on any land and if permission is granted for such discharge without the consent of the board, the same constitutes an offence under the said' act. it appears that chandigarh administration has not been granted any permission by the state board for the supply of sullage water and the chief engineer, union territory, chandigarh has already received a notice for having violated the provisions of sections 25 and 26 read with sections 43, 44 and 48 of the said act. in such a situation, how can the administration be compelled to permit the discharge of sullage water from the sewers of chandigarh when its officers are being threatened with prosecution under the said act.5. a similar matter came up for hearing before j. s. sekhon, j. in civil writ petition no. 9500 of 1992 wherein also the land owners of village burail in the union territory, chandigarh had challenged the action of the respondent-administration in not allowing the farmers to irrigate their lands by drawing sullage water from the sewers of the administration. the administration had taken up a similar stand in that petition as well and the learned judge while dismissing the writ'petition observed as under :--'even if the entire case of the petitioner is taken to be correct, there is no escape but to conclude that only the infringement of contractual agreement is involved and not infringement of any fundamental right.'again, the learned judge held as under :--'the matter does not rest here as the utilization of water for irrigation purposes in the area of union territory, chandigarh would certainly result in pollution and contamination. thus, member secretary, chandigarh pollution control committee, department of enviornment, union territory, chandigarh, rightly gave notice anne-xure r1 dated 2-7-1992 to the superintending engineer, public health department, chandigarh to stop the utilization of sullage water for irrigation purposes besides direction that the entire sewerage discharge should be diverted to the chandigarh sewerage treatment plant. this notice further provides that if the administration fails to comply with the provisions of water (prevention and control of pollution) act within 30 days from the issue thereof, legal action shall be taken against the department. thus, this is added legal reason for stopping the use of sewage water for irrigation purpose. although it appears to be a case of hardship for farmers who were earlier using sewage, water but keeping in view the larger interest of the health of the habitants of chandigarh, it appears that the act of the respondents in stopping the use of sewage water is well justifiable.'i am in full agreement with the learned judge.6. in the result, the writ petition fails andthe same stands dismissed with no order as to costs.7. petition dismissed.

Judgment:
ORDER

1. Petitioners who are residents of village Burail and own agricultural land there, have filed this petition under Article 226 of the Constitution challenging the action of the respondents in not allowing them to draw sullage water (untreated sewage) from the sewers of Chandigarh Administration.

2. The case of the petitioners is that they own agricultural land in village Burail in the Union Territory of Chandigarh and have been irrigating their lands by lifting sulfage water through pump sets from the sewers of the respondent-Administration on payment of certain charges. It is claimed by them that the respondents have been supplying them sullage water for the last three decades though the respondents have admitted that it was being supplied from the year 1979-80 onwards. This water was being supplied to the petitioners and other owners of agricultural land in the Union Territory of Chandigarh at the rate of Rs. 30/- per acre for every crop which was enhanced to Rs.50/- and at present the rate was Rs. 100/- per acre for each crop. According to the petitioners, the supply of sullage water was suddenly stopped on July 16, 1992 when the officials of the Chandigarh Administration closed down the manholes and the petitioners were told not to use their pump sets to lift sullage water and that if they did so, criminal proceedings would be initiated against them. The land of the petitioners is under acquisition and they have challenged the acquisition proceedings in this Court by filing civil writ petition number 2086 of 1992 which is pending and their case is that the respondent-Administration has deliberately stopped the supply of sullage water to them because they have challenged the acquisition proceedings in this Court. The respondents, on the other hand, have pleaded that.sullage water i.e. Untreated sullage. was allowed to be drawni by the petitioners and other farmers in the Union Territory through, their own pumping sets upto June 30, 1992 and that thereafter the use of such water has been stopped throughout the Union Territory as the Chandigarh Pollution Control Committee, Departmentof Environment, U. T., Chandigarh has served a final notice on the Chief Engineer, Public Health, Union Territory, Chandigarh (respondent No. 3) requiring him to stop the use of sullage water for irrigation purposes in the Union Territory as the same was resulting in pollution and contamination. It may be mentioned that sullage water that was being supplied to the farmers in the Union Territory though said to be somewhat treated, was not bacteria free and was emitting foul smell. According to the respondents, the grant of further permission to use sullage water would be in violation of Ss. 25 & 26 of the Water (Prevention and Control of Pollution) Act, 1974 and? the concerned officers would render themselves liable to prosecution under the provisions of the said Act. It is further stated on behalf of the respondents that untreated sullage water for irrigation by drawing the same through pump sets from city sewers by the petitioners and other farmers can also not be permitted due to the reason that a sewage treatment plant has been set up by the Chandigarh Administration and this plant requires the entire untreated sullage for purposes of treatment so that the same can be supplied back to the city drinking and other purposes. Moreover, the lands of the petitioners and some others are close to the residential area on the periphery of Chandigarh adjoining the town of Mohali and the residents of that area have been complaining of the foul smell emitted by sullage water. Further, the case of the respondents is that supply of sullage water has been stopped not only to the petitioners but to all the farmers and land owners in the Union Territory of Chandigarh and it is wrong on the part of the petitioners to aver that they alone have been singled out.

3. After hearing the learned counsel for the parties, at length, I find that the petition has no merit and the same deserves to be dismissed. The respondent-Administration has been supplying sullage water to the petitioner's and other farmers for irrigation purposes against charges as fixed by the department from time to time. There, thus, came into being a contract -- pure and simplebetween the Chandigarh Administration on the one hand and the farmers including the petitioners on the other in regard to the supply of sullage water. Non-supply of sullage water can, at the most, be described as violation of a contractual obligation on the part of the Administration and it is not the case of the petitioners that sullage water was being supplied to them under any statutory contract. When there comes into being a contract between the State and a citizen whether in writing or otherwise but is not under any statute, the relations between the parties are not governed by any constitutional provisions but by the contract itself which alone determines the rights and obligations of the parties inter se. In this sphere, the parties can only claim rights conferred upon them by the contract and for any alleged violation of such a contract, no writ or order can be issued under Art. 226 of the Constitution so as to compel the authority to remedy a breach of such a contract. Any party feeling aggrieved by the alleged breach may pursue any remedy that may be available to it under the ordinary law.

4. This apart, I am also of the opinion that Chandigarh Administration was justified j in stopping the petitioners and other farmers from drawing untreated sullage from its sewers as according to the provisions of the Water (Prevention and Control of Pollution) Act, 1974, no person or any department of the State can without the previous consent of the State Board constituted under the said Act permit the discharge of sewage on any land and if permission is granted for such discharge without the consent of the Board, the same constitutes an offence under the said' Act. It appears that Chandigarh Administration has not been granted any permission by the State Board for the supply of sullage water and the Chief Engineer, Union Territory, Chandigarh has already received a notice for having violated the provisions of Sections 25 and 26 read with Sections 43, 44 and 48 of the said Act. In such a situation, how can the Administration be compelled to permit the discharge of sullage water from the sewers of Chandigarh when its officers are being threatened with prosecution under the said Act.

5. A similar matter came up for hearing before J. S. Sekhon, J. in civil writ petition No. 9500 of 1992 wherein also the land owners of village Burail in the Union Territory, Chandigarh had challenged the action of the respondent-Administration in not allowing the farmers to irrigate their lands by drawing sullage water from the sewers of the Administration. The Administration had taken up a similar stand in that petition as well and the learned Judge while dismissing the writ'petition observed as under :--

'Even if the entire case of the petitioner is taken to be correct, there is no escape but to conclude that only the infringement of contractual agreement is involved and not infringement of any fundamental right.'

Again, the learned Judge held as under :--

'The matter does not rest here as the utilization of water for irrigation purposes in the area of Union Territory, Chandigarh would certainly result in pollution and contamination. Thus, Member Secretary, Chandigarh Pollution Control Committee, Department of Enviornment, Union Territory, Chandigarh, rightly gave notice Anne-xure R1 dated 2-7-1992 to the Superintending Engineer, Public Health Department, Chandigarh to stop the utilization of sullage water for irrigation purposes besides direction that the entire sewerage discharge should be diverted to the Chandigarh Sewerage Treatment Plant. This notice further provides that if the Administration fails to comply with the provisions of Water (Prevention and Control of Pollution) Act within 30 days from the issue thereof, legal action shall be taken against the department. Thus, this is added legal reason for stopping the use of sewage water for irrigation purpose. Although it appears to be a case of hardship for farmers who were earlier using sewage, water but keeping in view the larger interest of the health of the habitants of Chandigarh, it appears that the act of the respondents in stopping the use of sewage water is well justifiable.'

I am in full agreement with the learned Judge.

6. In the result, the writ petition fails andthe same stands dismissed with no order as to costs.

7. Petition dismissed.