Allowed

The Jharkhand Bijli Vitran Nigam Ltd. through Prabhat Kumar Srivastava v. Vexcel Upkram Private Limited

Jharkhand HC17 Nov 2022LPA/242/2022

Case brief

AI extract

What is this about?

Intra-court appeal by the Jharkhand Bijli Vitran Nigam Ltd. challenging the maintenance of a writ petition. The Court held that the Facilitation Council was invalidly constituted with eight members despite Act's limit of five, rendering the award void ab initio.

What did the court decide?

The writ petitioner's appeal allowed; Single Judge's order and Council's award quashed; matter remitted.

The Jharkhand Bijli Vitran Nigam Ltd… — Contract and Commercial Disputes | Jharkhand HC (2022)

¶1

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶3

L.P.A. No. 242 of 2022 With I.A. No. 4921 of 2022 With I.A. No. 5383 of 2022

¶4

¶5

The Jharkhand Bijli Vitran Nigam Ltd. a Government Company registered under the Companies Act through its General Manager-cum-Chief Engineer, Electric Supply Area, Ranchi namely Prabhat Kumar Srivastava, S/o Sri Pyare Lal Srivastava, having its registered office: Engineering Building, Dhurwa, P.O. P.S. Dhurwa, Town & Dist: Ranchi. ..... Writ Petitioner/Appellant

¶6

Versus

¶7

Vexcel Upkram Private Limited through its proprietor Vinod Behl, S/o Late Ram Lal Behl, having its office at 1^st floor, Samridhi Complex, South Office para, P.O. & P.S.Doranda, District-Ranchi, State – Jharkhand.

¶8

... ...Respondent/Respondent

¶9

¶10

CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

¶11

¶12

For the Appellant : Mr. Sachin Kumar, Advocate For the Respondent : Mr. Krishna Murari, Advocate.

¶13

C.A.V on 12.07.2022 Pronounced on 17/11/2022 Per Sujit Narayan Prasad, J. :

¶14

The instant intra-court appeal under Clause 10 of the Letters Patent has been preferred against order/judgment dated 6^th December, 2021 passed by learned Single Judge of this Court in W.P. (C) No. 5957 of 2014 whereby and whereunder the writ petition was dismissed refusing to interfere with order dated 14^th July, 2014 passed by the Jharkhand Micro, Small & Medium Enterprises Facilitation Council (hereinafter referred to as

¶15

¶16

‘Council’), holding the writ petition not maintainable on the ground of availability of statutory remedy as provided under the provisions of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as ‘MSMED Act, 2006’).

¶17

2. The brief facts of the case, which are required to be enumerated, read as under:

¶18

The respondent was engaged in the work of meter reading/surveillance, computerized data logging, and preparation of consumer bill of erstwhile Jharkhand State Electricity Board vide work Order No. 61 dated 30.09.2002 for the period from 01.10.2002 to 30.09.2004, which was extended by the competent authority from time to time up-to 31.12.2010. The respondent after execution of the said work submitted claim before the Council for principal outstanding amount of Rs. 1,13,29,630/- and interest amounting to Rs. 1,09,03,255/- against the petitioner-company under the provisions of MSMED Act, 2006. The proceeding commenced and finally the Council, after hearing the parties, passed the award dated 14^th July, 2014 in Case No. JHMSEFC 03 of 2012, by which, the petitioner was directed to pay alleged principal outstanding amount inclusive of security deposit/performance guarantee/ incentive claim and due amount of Service Tax along with

¶19

¶20

interest at the rate of three times of bank rate of Reserve Bank of India and further to pay compound interest with monthly interest from the date of amount due for payment to the appellant till final payment is made under Section 16 of the MSMED Act, 2006.

¶21

The writ petitioner being aggrieved with the award preferred the writ petition being W.P. (C) No. 5957 of 2014. The learned Single Judge, taking into consideration the fact of availability of statutory remedy, dismissed the writ petition with liberty to the petitioner to avail the legal remedies as available to it in law, which is the subject matter of present intra-court appeal.

¶22

3 . The petitioner has preferred the instant intra court appeal mainly on the ground of declaration of award to be void ab initio which cannot be said to be an award as per the provisions of MSMED Act, 2006 reason being that the composition of Jharkhand Micro, Small & Medium Enterprises Facilitation Council was not in accordance with the statutory provisions as contained under Section 21 of the MSMED Act, 2006 since the award/order was signed by altogether eight members including Chairman.

¶23

4. Serious objection has been raised on behalf of respondent raising preliminary objection by filing Interlocutory Application being I.A. No. 5383 of 2022 taking the ground that the issue which is now being

¶24

¶25

raised for declaration of the award to be void ab initio has never been raised before the learned Single Judge and as such the same is not available to the writ petitioner to raise before the intra-court appeal.

¶26

5 . In response to the averment made in the Interlocutory Application learned counsel for the writ petitioner-appellant has submitted that since the issue of jurisdiction is the thrust to declare the award to be void ab initio as such the same being a legal issue that can well be raised at this stage also.

¶27

It has further been submitted that such issue has got relevance since the very issue of coram of constitution of Council has been delved upon by the Division Bench of this Court in W.P. (C) No. 3699 of 2015, wherein this Court has declared the constitution of the Council constituted in pursuance to the provisions of Rule 4 of Rules, 2007 to be not in consonance with the provision of Section 21 of the MSMED Act, 2006. Therefore, according to learned counsel appearing for the writ petitionerappellant once Rule 4 of Rules, 2007 has been declared to be unconstitutional being not in consonance with the provision of the parent Act i.e., the MSMED Act, 2006, the very constitution of the Council consisting of members having more in number as is provided under Section 21 of the Act, 2006 will be declared to be invalid

¶28

¶29

and any decision made by such Council will also be declared to be invalid being contrary to the provision of Act, 2006.

¶30

It has further been stated that the Division Bench of this Court while dealing with the similar issue, wherein the award passed by the Council consisting of eight members was the subject matter, in L.P.A. No. 230 of 2019 decided on 3^rd January, 2022, placing reliance upon the order passed by the Division Bench of this Court in W.P.(C) No. 3699 of 2015, quashed and set aside the award/order by remitting the matter before the Council to the decide the matter in accordance with law. As such since the issue has already been settled, the preliminary objection with respect to jurisdiction, which is being raised on behalf of respondent, cannot be said to be proper and justified.

¶31

Learned counsel for the writ petitioner in the backdrop of aforesaid fact has submitted that in view of order passed by Division Bench of this Court in L.P.A. No. 230 of 2019, it is a fit case where award/order passed by the Council may be declared to be invalid.

¶32

6 . We have heard learned counsel for the parties, perused the documents available on record as also finding recorded by learned Single Judge in the impugned order.

¶33

¶34

7. Admitted fact in the case in hand is that Facilitation Council has passed the order holding the respondent entitled for the compensation to be paid by the writ petitioner. There is no dispute about the position of law that appeal is required to be filed against an order passed by the Facilitation Council by resorting to the provisions of Section 18 as provided under Section 19 of MSMED Act, 2006. The writ petitioner, admittedly, has challenged the award without taking recourse of the statutory remedy available under law and has approached this Court by filing writ petition invoking jurisdiction of this Court conferred under Article 226 of the Constitution of India.

¶35

The learned Single Judge has considered that aspect of the matter dismissed the writ petition granting liberty to the writ petitioner to avail the statutory remedy of appeal. The aforesaid order has been challenged by the writ petitioner by filing the instant intra court appeal.

¶36

8 . In the appeal, ground has been taken about illegality of the constitution of the Council which according to the writ petitioner is not in consonance with the provision of Section 21 of the MSMED Act, 2006.

¶37

9 . A serious objection has been raised on behalf of respondent by filing an Interlocutory Application being I.A. No. 5383 of 2022 stating inter alia that the point

¶38

¶39

which was not raised before the learned Single Judge i.e., the point of very constitution of the Council under Section 21 of the Act, 2006 cannot be allowed to be agitated in the instant intra-court appeal.

¶40

10 . This Court, therefore, before dealing with the issue of legality and propriety of the constitution of Council, is required to answer –

¶41

“ As to whether the issue of jurisdiction can be allowed to be raised at the stage of intra-court appeal?”

¶42

11 . There is no dispute about the settled position of law that the issue of jurisdiction can be raised at any stage of the proceeding as the issue goes to the root of the lis .

¶43

Reference in this regard be made to the judgment rendered in Balvant N. Viswamitra & Ors Vs. Yadav Sadashiv Mule (Dead) through LRs & Ors. [(2004) 8 SCC 706] , in particular paragraph 9, which reads as under:

¶44

“9 .The main question which arises for our consideration is whether the decree passed by the trial court can be said to be “null” and “void”. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio . A defect of jurisdiction of the court goes to the root of the

¶45

¶46

matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.”

¶47

(emphasis supplied)

¶48

It is further settled position of law that even right decision by a wrong forum is no decision as has been held by Hon’ble Apex Court in Pandurang & Ors Vs. State of Maharashtra [(1986)4 SCC 436].

¶49

For ready reference, relevant paragraph 4 thereof is quoted as under:

¶50

“4. When a matter required to be decided by a Division Bench of the High Court is decided by a learned Single Judge, the judgment would be a nullity, the matter having been heard by a court which had no competence to hear the matter, it being a matter of total lack of jurisdiction. The accused was entitled to be heard by at least two learned Judges constituting a Division Bench and had a right to claim a verdict as regards his guilt or innocence at the hands of the two learned Judges. This right cannot be taken away except by amending the rules. So long as the rules are in operation it would be arbitrary and discriminatory to deny him this right regardless of whether it is done by reason of negligence or otherwise. Deliberately, it cannot be done. Negligence can neither be invoked as an alibi, nor can cure the infirmity or illegality, so as to rob the accused of his right under the rules. What can be done only by at least two learned Judges cannot be done by one learned Judge. Even if the decision is right on merits, it is by a forum which is lacking in competence with regard to the subject-matter. Even a “right” decision by a “wrong” forum is no decision. It is non-existent in the eye of law. And hence a nullity. The judgment under appeal is therefore no judgment in the eye of law. This Court in State of

¶51

¶52

M.P. v. Dewadas [(1982) 1 SCC 552 : 1982 SCC (Cri) 275 : AIR 1982 SC 800 : (1982) 3 SCR 81] has taken a view which reinforces our view. We, therefore, allow the appeal, set aside the order passed by the learned Single Judge, and send the matter back to the High Court for being placed before a Division Bench of the High Court, which will afford reasonable opportunity of hearing to both the sides and dispose it of in accordance with law, expeditiously. We wish to add that the Registry of the High Court was expected to have realized the true position and ought not to have created a situation which resulted in waste of court time, once for hearing the appeal, and next time, to consider the effect of the rules. No court can afford this luxury with the mountain of arrears which every court is carrying these days.”

¶53

The Hon’ble Apex Court further in the judgment rendered in A. Mohammad Yunus (Dead) by LRs Vs.

¶54

Food Corporation of India & Anr. [(2000) 0 Supreme

¶55

(SC)192] has been pleased to hold that if arbitrator has not been appointed as per agreement, the award would be said to be a quorum-non-judis .

¶56

Thus, it is evident that where a Court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio . The defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the Court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a Court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be

¶57

¶58

challenged at any stage, even in execution or collateral proceedings.

¶59

This Court, taking into consideration the aforesaid settled position, is of the view that the objection which has been raised by respondent for not allowing the writ petitioner to raise the issue of jurisdiction pertaining to validity of constitution of the Facilitation Council cannot be said to be substantial argument.

¶60

In view thereof the Interlocutory Application being I.A. No. 5383 of 2022, by which objection has been raised with respect to very constitution of Council, is hereby dismissed.

¶61

12 . This Court, after dealing with the aforesaid issue, is now proceeding to examine that how the award passed by the Council is without jurisdiction.

¶62

It is not in dispute that when a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other manner.

¶63

Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in State of Uttar Pradesh vs. Singhara Singh and Ors ., [AIR (1964) SC 358], wherein at paragraph 8 it has been held as under:

¶64

“....its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been 12 prescribed. The

¶65

¶66

principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted....”

¶67

Further the Hon'ble Apex Court in Babu Verghese

¶68

and Ors. vs. Bar Council of Kerala and Ors., [(1999) 3

¶69

SCC 422], at paragraphs 31 & 32 held as under:

¶70

“31.It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:

¶71

“[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.”

¶72

32.This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law.”

¶73

The Hon'ble Apex Court further in the judgment rendered in Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., [(2002) 1 SCC 633] , at

¶74

paragraph 27 held as under:

¶75

“..... it is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself....”

¶76

Reference in this regard also be made to the judgment rendered by the Hon'ble Apex Court in State of

¶77

¶78

Jharkhand & Ors. vs. Ambay Cements & Anr., [(2005)

¶79

1 SCC 368], wherein at paragraph 26 it has been held as under:

¶80

“....it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed.....”

¶81

Reference is also made to the judgment rendered by

¶82

the Hon'ble Apex Court in Zuari Cement Ltd. vs. Regional Director ESIC Hyderabad & Ors. [(2015) 7 SCC 690], wherein at paragraph 14 it has been held as under:

¶83

“14. As per the scheme of the Act, the appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, it was held that: (SCC p. 378, para 26)

¶84

26.... it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way.”

¶85

13 . Admittedly, Section of 21 of the Act, 2006 provides constitution of Council consisting of members not less than three but not more than five, as would appear from aforesaid provision, which reads as under:

¶86

“21 . Composition of Micro and Small Enterprises Facilitation Council.

¶87

¶88

(1) The Micro and Small Enterprise Facilitation Council shall consist of not less than three but not more than five members to be appointed from amongst the following categories, namely:--

¶89

(i) Director of Industries, by whatever name called, or any other officer not below the rank of such Director, in the Department of the State Government having administrative control of the small scale industries or, as the case may be, micro, small and medium enterprises; and

¶90

(ii) one or more office-bearers or representatives of associations of micro or small industry or enterprises in the State; and

¶91

(iii) one or more representatives of banks and financial institutions lending to micro or small enterprises; or

¶92

(iv) one or more persons having special knowledge in the field of industry, finance, law, trade or commerce.

¶93

(2) The person appointed under clause (i) of subsection (1) shall be the Chairperson of the Micro and Small Enterprises Facilitation Council.

¶94

(3) The composition of the Micro and Small Enterprises Facilitation Council, the manner of filling vacancies of its members and the procedure to be followed in the discharge of their functions by the members shall be such as may be prescribed by the State Government.”

¶95

Thus, it is evident that the provision of Section 21 of the Act, 2006 provides composition of the Council cannot be less than three or more than five members and if the Council has been constituted of members having less than three or more than five, it will be said to be contrary to the statutory provision and the thing which is contrary to the statutory provision will be said to suffer from a jurisdictional error.

¶96

¶97

14 . In the case in hand, order which was passed by the Council during the relevant time consists of eight members.

¶98

However, the constitution of Council consisting of eight members is contrary to the provision of Section 21 of the MSMED Act, 2006.

¶99

15 . It requires to refer herein that under the parent Act rule was formulated in the year 2007, known as “Jharkhand Micro and Small Enterprises Facilitation Council Rules, 2007, wherein it was provided, as would be evident from Rule 4 (repeal rule) that the constitution of Council will not be less than five and not more than nine members.

¶100

Subsequent to the aforesaid rule, an amended rule has come in the year 2017 by which the provision as contained under Rule 4 about composition of the Council by making it strictly in terms of the provision of Section 21 of the Act, 2006, wherein it has been provided that maximum number of members in the Council shall not be more than five.

¶101

16 . Issue regarding constitution of Council fell for consideration before Co-ordinate Bench of this Court wherein award passed by the Council was questioned. The Co-ordinate Division Bench of this Court in W.P. (C) No. 3699 of 2015 with analogous case vide order dated

¶102

¶103

05.03.2020 has held that constitution of coram of the Council being in the teeth of provision of Section 21 of the Act, 2006 to be invalid by taking into consideration the subsequent amendment by way of Rules, 2017.

¶104

For ready reference, paragraph 24 of the judgment is quoted as under:

¶105

“24. Having heard the learned counsels for the parties and upon going through the record, we find that Section 21 of the MSMED Act is clear and unambiguous in its terms, when it says that the Micro and Small Enterprises Facilitation Council shall consist of not less than three but not more than five members, to be appointed amongst the categories detailed under that section. There is no scope of any inclusion of more members in the Council as per Section 21 of the Act. Rule 4 of the 2007 Rules was in clear contravention of Section 21 of the MSMED Act, when it provided for the constitution of the Council with not less than five and not more than nine members in the Council, and in fact, pursuant to the said Rule, the Council was even constituted by the State Government with nine members. Clearly the constitution of the said Council was in accordance with Rule 4 of the 2007 Rules, whereas in clear contravention of Section 21 of the MSMED Act….”

¶106

17 . Further, this Court while dealing with the aforesaid issue in L.P.A. No. 230 of 2019 [M/s Heavy Engineering Corporation Limited Vs. The State of Jharkhand & Ors] has dealt with the issue and interfered with the award mainly on the ground that such award was passed by a Council consisting of eight members, as would appear from paragraph 17 thereof, which reads as under:

¶107

¶108

“17. This Court, after considering the order passed by Coordinate Division Bench of this Court on the validity of the provision, more particularly regarding the Constitution of Coram of the Council which was held to be invalid being found to be in the teeth of Section 21 of the Act, 2006, so far it relates to Rules, 2007 is concerned, is of the view that the order passed by the Council is declared to be illegal since is passed contrary to the parent Act, which provides a provision as under Section 21 of the Act, 2006 and the Rule of the year 2007, which has been held to be invalid.

¶109

Admittedly, the State Government has amended the provision of Rules, 2007 by bringing the amended Rules, 2017 but the impugned order which is the subject matter of the lis herein has been passed during the period when the provision of Rules, 2007 was in vogue and that is the reason, Mr. Manoj Tandon, learned counsel for respondent no. 2 has taken an additional ground that the Constitution of Council which was consisting of eight members cannot be said to be invalid since was constituted in terms of provision of Rules, 2007. However, the Co-ordinate Division Bench of this Court has considered Rules, 2007 to be invalid more so in the meanwhile amended Rule, 2017 has come as also even the parent Act, 2006 under Section 21, the composition of Coram of Council has been provided but admittedly the constitution of Coram was not in terms of Section 21 of the Act, 2006 and even then it was in terms of Rules, 2007 but the constitution of Council in terms of provision of Section 21 of the Act, 2006 cannot be said to be in consonance with the statutory provision as contained under the Act, 2006 as per the provision made under Section 21 thereof.

¶110

Therefore, according to our considered view, the constitution of Coram which admittedly was constituted of eight members cannot be said to be in terms of Section 21 of the Act, 2006 and as such the very constitution of Coram since it is in the teeth of Section 21 of the Act, 2006, cannot be said to be a proper constitution of Council, is held to be in the teeth of Section 21 of the Act, 2006.

¶111

¶112

Since the Hon’ble Apex Court in Balvant N. Viswamitra & Ors Vs. Yadav Sadashiv Mule (Dead)

¶113

through LRs (supra) has held that where a Court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the Court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a Court or an authority having no jurisdiction is a nullity. Therefore, according to our considered view the order passed by the Council is held to be nullity in the eyes of law .”

¶114

18 . However, another issue has been raised that in L.P.A. No. 230 of 2019 the State of Jharkhand was one of the respondents and as such there was a response of the State of Jharkhand regarding legality and propriety of the constitution of Council but in the given case the State of Jharkhand is not a party and hence the exact position of law i.e., the coram of the Facilitation Council cannot be adjudicated since the Facilitation Council has been constituted by the State of Jharkhand and as such it is only the State of Jharkhand which can give proper response regarding legality and propriety of the Council as to whether it is in consonance with the provision of Section 21 of the Act or not?

¶115

19. But we, after appreciating the aforesaid argument, are not at all impressed with the same reason being that the issue has already been decided by the Co-ordinate

¶116

¶117

Division Bench of this Court in W.P.(C) No. 3699 of 2015 wherein the validity of provision of Rules, 2007 was under challenge which contains a provision as under Rule 4 wherein provision has been made about the Coram of the constitution but the provision of Rule 2007 has been declared to be invalid having not been in consonance with the provision of Section 21 of the MSMED Act, 2006, as contained under paragraph 24 of the aforesaid judgment. Therefore, the moment the provision of Rule 2007 which contains a provision as under Rule 4 stipulates therein about the number of coram of facilitation council since has been declared to be invalid, therefore, it will be treated to be not in existence from the date when it has been promulgated. As such the implied meaning of the same will be that there is no provision of Rule 2007 which contains a provision as under Rule 4 stipulating therein about the number of coram of facilitation council. Therefore, in absence of any rule having not been formulated by the State of Jharkhand, the provision of Rule 21 of the MSME Act, 2006 will automatically be operative which provides the minimum as well as maximum number of coram of the facilitation council. 20. Even otherwise also if any law has been formulated and the aforesaid law if is in the teeth of the parent Act as

¶118

¶119

in the given case, the law which is not in consonance with the parent Act is required to be ignored.

¶120

However, such situation is not existing in the facts of the given case since herein provision of Rule 2007 containing therein the number of coram of constitution of facilitation council has already been declared invalid and as such any decision taken by the Facilitation Council, which is not in consonance with the provision Section 21 of the MSMED Act, 2006, will be said be invalid and void ab initio.

¶121

21 . This Court, in view of the aforesaid discussion, is of the considered view that since the similar issue has already been decided by this Court and as such there is no reason to take different view and therefore the award which is impugned in this intra court appeal is required to be interfered with on the ground of jurisdictional error of the Facilitation Council.

¶122

22 . It also requires to refer herein that the issue of jurisdiction of the Facilitation Council however was not agitated before the learned Single Judge and as such the said issue has not fell for consideration and in that view of the matter, the learned Single Judge has taken the ground to hold the writ petition not maintainable on the ground of statutory remedy available under law which cannot be said to suffer from patent illegality. But the

¶123

¶124

issue of jurisdiction based upon the quorum-non-judis is the thrust of argument in the instant intra-court appeal, which we have already considered in L.P.A. No. 230 of 2019, based upon the judgment passed by Co-ordinate Division Bench in W.P. (C) No. 3699 of 2015 & Analogous Cases, this Court has got no option but to interfere with the impugned order.

¶125

Accordingly, the instant intra-court appeal stands allowed.

¶126

23 . In consequence thereof, the order passed by the learned Single Judge dated 06.12.2021 in W.P. (C) No. 5957 of 2014 is quashed and set aside.

¶127

Resultantly, the order passed by the Council dated 14.07.2014 in Case No. JHMSEFC-03 of 2012 is hereby quashed and set aside.

¶128

The matter is remitted before the Council to

¶129

adjudicate the issue afresh in accordance with law.

¶130

24. Pending Interlocutory Applications stand