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2021 (11) TMI 1183 - HC - Indian LawsApplication for vacating stay filed by respondent No. 5 herein granted - respondent are allowed to finalize the project of putting up a freight terminal at the risk and cost of respondent No. 5 - opportunity to file counter affidavit not allowed - violation of principles of natural justice - HELD THAT - In view of the fact that the writ appellant could not have an opportunity to file counter-affidavit to the application for vacating stay filed by private respondent No. 5 which was his valuable right to file counter-affidavit of that application opposing it and to defend the interim order granted after hearing the parties by which he has suffered prejudice and further taking note of the fact that the writ appellant had promptly served copy of rejoinder to the respondents on 28-9-2021 and findings as noticed above have been recorded on the merits of the matter which has vital bearing on the final adjudication of writ petition as respondents No. 1 to 4 have been allowed to finalise the project of putting up a freight terminal though at the risk and cost of respondent No. 5 and subject to final adjudication of the writ petition we are of the considered opinion that the order impugned dated 28-9-2021 cannot be termed as a pure and simple interlocutory order within the meaning of proviso to Section 2(1) of the Act of 2006 and as such the writ appeal cannot be held to be barred in terms of paragraph 45 of the judgment of this Court in AJAY GUPTA VERSUS STATE OF CHHATTISGARH AND ORS 2017 (1) TMI 1827 - CHHATTISGARH HIGH COURT and consequently the writ appeal is held to be maintainable and the preliminary objection raised in this behalf qua the maintainability of appeal is hereby repelled.
Issues Involved:
1. Maintainability of the writ appeal. 2. Admission of the writ appeal. 3. Application for grant of ad-interim stay. Issue-wise Detailed Analysis: 1. Maintainability of the Writ Appeal: The primary issue was whether the writ appeal was maintainable under Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006. The respondents argued that the impugned order dated 28-9-2021 was a pure interlocutory order, thus barring the appeal. They cited the Full Bench decision in Ajay Gupta v. State of Chhattisgarh, which states that appeals are barred against interim orders that are purely interlocutory and do not decide matters of moment or have an element of finality attached to them. The appellant countered by stating that the interim order dated 26-7-2021 was passed with all parties present and that the application for vacating stay was taken up without granting them the opportunity to file a reply. This, they argued, deprived them of the right to respond, thereby making the order not purely interlocutory. They cited the Supreme Court decision in Shah Babulal Khimji v. Jayaben D. Kania to support their claim that the order affected their rights and had an element of finality. The court noted that the Full Bench in Ajay Gupta clarified that if an order vitally affects the rights of the parties and has a bearing on the final adjudication, it cannot be termed purely interlocutory. The court found that in this case, the appellant was deprived of the opportunity to file a counter-affidavit, which is a valuable right. Additionally, the order allowed the finalization of the project, affecting the appellant's rights. Therefore, the court held that the writ appeal was maintainable. 2. Admission of the Writ Appeal: Upon determining the maintainability, the court considered the admission of the writ appeal. The appellant argued that they had a prima facie case and that the impugned order affected their rights significantly. The court, after reviewing the records and submissions, found the appeal to be arguable on merits. Consequently, the writ appeal was admitted for hearing, and notices were issued to the respondents. 3. Application for Grant of Ad-Interim Stay: The appellant sought a stay on the impugned order, arguing that allowing the project to proceed would cause irreparable harm and render the appeal infructuous. The respondents opposed this, arguing that the order was discretionary and should not be interfered with unless shown to be arbitrary or perverse. They cited the Supreme Court's decision in Wander Ltd. v. Antox India (P) Ltd. and State of U.P. v. Ram Sukhi Devi to support their stance. The court, considering that the appellant was deprived of the opportunity to file a counter-affidavit and that the project finalization would cause irreparable harm, deemed it appropriate to stay the part of the impugned order allowing the project to proceed. The stay was granted until the next hearing date, and the respondents were given three weeks to file a reply to the application for stay. Conclusion: The court concluded that the writ appeal was maintainable as the impugned order was not purely interlocutory, admitted the writ appeal for hearing, and granted an interim stay on the project finalization. The case was listed for a subsequent hearing after three weeks, with respondents required to file their replies in the meantime.
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