TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 1183
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....dent No. 5. Preliminary Objection:- 2. When the matter is taken-up for hearing on admission and on I.A. No. 1/2021 for grant of stay, Mr. C. Aryama Sundaram, learned Senior Counsel appearing for respondent No. 5, would raise preliminary objection as to maintainability of writ appeal and submit that the impugned order dated 28-9-2021 is a pure and simple interlocutory order as contemplated by the proviso to Section 2(1) of the Act of 2006 and as such, the writ appeal is barred. He would further submit that the learned Single Judge has only considered the application for vacating stay and has modified the order dated 26-7-2021 by directing respondents No. 1 to 4 to proceed to finalise the project of putting up a freight terminal at the risk and cost of respondent No. 5 and subject to final adjudication of the case and as such, it is a pure interlocutory order and therefore writ appeal would not be maintainable and is liable to be dismissed. He would rely upon the Full Bench decision of this Court in the matter of Ajay Gupta v. State of Chhattisgarh and others AIR 2017 Chh 45 and the decision of this Court in the matter of Shrinivas Tiwari v. Preeti Rani Chouhan and others to buttre....
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....dered their rival submissions made herein-above and also went through the record with utmost circumspection. 6. The question whether the proviso to Section 2(1) of the Act of 2006 is an absolute bar to entertain an appeal against the interlocutory order without considering the scope of order and without considering whether the interlocutory order has decided the rights of parties and has an element of finality attached to it, came-up for consideration before the Full Bench of this Court in Ajay Gupta (supra) in which the issue was answered in paragraph 45 of the judgment and it has been held as under:- "45. In view of the majority judgment rendered, the question referred to the Full Bench is answered in the following terms: "We therefore answer the question referred to us by holding that proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 bars appeals against those interim orders which are totally interlocutory in nature, do not decide matters of moment and do not have an element of finality attached to them. Conversely, if the order vitally affects rights of the parties having bearing on the final adjudication of the case, then even tho....
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....-2021 along with admission of writ petition and I.A. No. 1 for grant of stay on that day, it is the case of the writ appellant herein that no notice was issued on the said application for vacating stay to the writ appellant herein. It has also been mentioned in paragraphs 31 & 54D and also in paragraphs 54X & 54AA of the writ appeal that opportunity to file reply to the application for vacating stay was not given and without affording any opportunity to file reply, the application for vacating stay has been heard and allowed and interim order dated 26-7-2021 was partly vacated, even though no urgency has been pleaded by respondent No. 5 by which the writ appellant have suffered great prejudice. 9. Thus, on perusal of records, following facts would emerge on the face of records:- 1. In the writ petition filed by the writ appellant questioning the IPA dated 8-4-2021, interim order was passed in presence of all the parties including respondent No. 5 on 26-7-2021 at the admission stage. 2. Return was filed by the official respondents No. 2 to 4 on 19-8-2021 and they did not seek vacation of interim order dated 26-7-2021, though reply to interim application was filed. 3. Return w....
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....idavit in a writ petition is an extremely valuable right of the parties and reasonable opportunity to file counter-affidavit has to be afforded to the parties before considering the writ petition/interlocutory application. 13. In the instant case, it is quite apparent that the application for vacating stay was taken-up for hearing for the first time on 28-9-2021, but it is the case of the writ petitioner that he has been deprived of an opportunity to file reply to that application and interim order granted on 26-7-2021 came to be vacated by granting that application and the official respondents have been granted liberty to go ahead with the project and to finalise the project of putting up a freight terminal at the risk and cost of respondent No. 5 which has not been claimed by the official respondents by making application for vacating stay or even by filing reply to the application for interim relief filed by the writ appellant. 14. However, a careful perusal of the impugned order would show that while considering the application for vacating stay, finding has been recorded by the learned Single Judge on merits of the matter though prima facie and thereafter, in the concluding ....
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....s of the racks the preference would be given to the petitioner. The reply filed by the railway wherein certain number of racks have been shown for the month of March nearby 412 do not appear to be exorbitant." 15. After hearing learned counsel for the parties at length and noticing the importance of rights of parties to make pleading in the writ petition and after going through the record, in view of the factual position noticed herein-above, particularly 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 o....
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....be restrained from further considering the application submitted by respondent No. 5 for construction of the purported PFT. 20. Mr. R.K. Gupta, learned counsel for respondents No. 2 to 4/Railways, would oppose the interim application and would submit that the writ appellant is not entitled for any interim relief and the application deserves to be rejected. 21. Mr. Sundaram, learned Senior Counsel for respondent No. 5, while opposing the submissions of Dr. Singhvi, learned Senior Counsel for the writ appellant, on interim stay of the impugned order, having filed caveat, would submit that the scope of interference against the order of the Single Judge in appeal is quite limited and the order impugned is a purely discretionary interlocutory order, it ought not to be stayed and/or interfered with. He would further submit that unless it can be shown that the discretion has been exercised wrongly or arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law or if the Court has considered irrelevant factors or has ignored relevant material available on record or has ignored relevant consideration, this Court being the appellate Court would no....