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IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANUBHA RAWAT CHOUDHARY, J.
M/s Amalgam Steel and Power Ltd. (formerly known as Adhunik Alloys and Power Ltd.) – Appellant
Versus
State of Jharkhand – Respondent
W.P. (Cr.) No. 283 of 2020
Decided on : 26-03-2021
Constitution of India, 1950 – Article 226 – Indian Penal Code, 1860 – Section 268 – Criminal Procedure Code, 1973 – Section 133, 133 (1) (a), 137(1), 143, 144 – Civil Procedure Code, 1908 – Order II – Assumption of jurisdiction – Grave miscarriage of justice and flagrant violation of law – Rightly initiated proceedings – Advancing his argument – Issue of maintainability – Whether impugned order is a conditional order as contemplated under section 133 (1) of Cr.P.C or is in nature of a final order directing Petitioner to restore water pipe line to Respondent No. 4 within 24 hours and show cause after as to why order be not enforced – Held, Court also finds that while exercising power under Section 133 of Code of Criminal Procedure, Respondent No. 2 has entered into purely private dispute between Petitioner and Respondent No. 4 – Respondent No. 2 initially tried to resolve dispute through mediation and having failed in his attempt, exercised power under Section 133 of Code of Criminal Procedure directing Petitioner to restore water supply to Respondent No. 4 through one of water pipelines as water supply through other one was already restored by Petitioner prior to passing of impugned order – Court finds that immediately after filing of this writ petition, Petitioner had informed Respondent No. 2 and certainly had no option but to participate in proceedings – However, as this Court has found that jurisdictional facts for exercise of power under Section 133 of Code of Criminal Procedure is absent, entire proceedings are vitiated for want of jurisdiction – Jurisdictional issue is decided in favour of Petitioner, there is no need to go into issue as to whether impugned order is in nature of final order or is just a conditional order – Writ petition allowed.
JUDGMENT :
1. Heard Mr. Jitendra Singh, learned Senior Advocate along with Mr. Rohitashya Roy, Advocate appearing on behalf of the Petitioner.
2. Heard Mr. S.D. Sanjay, learned Senior Advocate along with learned counsels Mr. Indrajit Sinha and Mr. Sumeet Gadodia, Advocates, appearing on behalf of the respondent No. 4.
3. Heard Mr. Deepankar Roy, Advocate appearing on behalf of the respondent-State, who has supported the arguments of Respondent No.4
4. This writ petition has been filed for quashing the order dated 04.12.2020 (Annexure-19) as contained in Memo No. 1539 passed by the Respondent No. 2 in Misc. Case No. 213 of 2020-21, passed under Section 133 of the Code of Criminal Procedure whereby the Petitioner company has been directed to restore the water supply to respondent No. 4, company.
A further prayer has been made to restrain the respondent No. 2 from interfering in any manner in commercial/private dispute between the Petitioner and respondent No. 4.
5. The foundational admitted facts are as under: -
b) Adhunik Power and Natural Resources Ltd. (Respondent No. 4) (hereinafter referred to as ‘APNRL’) is a company engaged in production of power.
c) The financial creditor of AAPL had initiated Corporate Insolvency Resolution Process against AAPL and ultimately on 07.12.2018, the National Company Law Tribunal, Kolkata Bench approved the resolution plan of the present management of the Petitioner.
d) Thereafter, the name of the Petitioner was changed from Adhunik Alloys & Power Ltd. to the present name i.e., Amalgam Steel and Power Ltd. (ASPL)
e) Consequently, present management took over AAPL along with its assets in December, 2018. The orders of NCLT have attained finality.
6. It has been stated by the writ Petitioner that the Petitioner paid an amount of Rs. 410 Crores as upfront payment in accordance with its resolution plan and thereafter the Petitioner has been continuously paying substantial amount.
7. It is the case of the Petitioner that the present management discovered that Respondent No. 4 has been using the Petitioner’s water pipeline and other related infrastructure for pumping water for its industrial requirement at its power plant at Padampur and the said usage of the water pipeline and related infrastructure by the respondent No. 4 had originated as an informal arrangement between the two companies, i.e. AAPL and Respondent No. 4, when both the companies had common promoters. It is further specific case of the Petitioner that respondent No. 4 had no right over the infrastructure of pipeline and the auxiliary facilities.
8. In this background, the Petitioner issued a notice dated 04.10.2019 (Annexure-1) to the Respondent No. 4 that the Petitioner was planning capacity expansion for which the Petitioner will require more water as well as its own land, on which respondent No. 4 is using the pipeline to pump the water. It was also stated that after 30 days period, the Petitioner would prohibit the usage of its pipeline on its land by the Respondent No. 4. Thereafter, there have been a few correspondences between the Petitioner and respondent No. 4 including proposal and counter proposals for settlement of inter-se dispute, but nothing materialized even till October 2020. The various correspondences between the Petitioner and respondent no. 4 have been placed on record of this case.
9. It is further the specific case of the Petitioner that the expansion plan is essential for the revival of the plant as per the resolution plan and the pipeline to the premises of respondent No. 4, which is going through the premises of the Petitioner, is a hindrance to the expansion plan which compelled the Petitioner to take aforesaid steps. The Petitioner ultimately disconnected the water pipelines through its premises to the Respondent no. 4 on 12.11.2020.
10. Thereafter the f
Proceedings under Section 133 Cr.PC require evidence of public nuisance; private disputes cannot be adjudicated under this provision.
The main legal point established in the judgment is the scope and procedure of Sec. 133 of Cr.P.C. in addressing public nuisance and the requirement for recording reasons for administrative decisions....
The main legal point established in the judgment is the unfairness of demanding arrears of water charges based on a resolution not acted upon, considering the executed contract and concluded transact....
The court emphasized the principle of fairness in contractual agreements and the importance of upholding executed contracts.
The central legal point established in the judgment is that the unauthorized use of Electricity Service Connection is to be determined in accordance with the provisions of the Electricity Act, 2003, ....
A writ of mandamus is discretionary and cannot be granted if the petitioner suppresses material facts or fails to establish a legal right.
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