ra148.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. REVIEW APPLICATION NO.148 OF 2010 IN WRIT PETITION NO.566 OF 2009. Ahmednagar Cantonment Board, Ahmednagar. .. APPLICANT. VERSUS 1) Nandkumar Shivram Pawar, age 50 years, occu. Agril., r/o Siddhi Vinayak Colony, Savedi, Ahmednagar. (deceased). 2) Maluraj Dharamraj Auti, age 30 years, occu. business, r/o Patil Galli, Bhingar, (Ahmednagar Cantonment, Ahmednaagar). 3) Union of India, through Secretary, Ministry of Defence, New Delhi. 4) Secretary, Defence Ministry, New Delhi. .. RESPONDENTS. ... Shri D.V. Soman, Advocate for Applicant. Shri V.S. Bedre, Advocate for R.No.1 & 2-original petitioners in W.P. (Absent). Shri Alok Sharma, Standing Counsel for R.Nos.3 and 4 (R.Nos.1 & 2 in W.P.). Respondent No.1 dead. ... ra148.10 2 CORAM : V.R. KINGAONKAR & S.S. SHINDE,JJ. RESERVED ON: 6th January, 2011. PRONOUNCED ON: 25th January, 2011. PER COURT: (Per Shinde, J) 1. Heard the learned Counsel for the applicant and the learned Counsel for the respondents. 2. The review application has been filed seeking review of our earlier order dated 5th February, 2010 passed in Writ Petition No.566 of 2009.The applicant herein is the original respondent No.3. The respondents No.1 and 2 are original petitioners and respondents No.3 and 4 are original respondents No.1 and 2 in the petition. 3. This review application has been filed stating therein that, the contention of the petitioners in the Writ Petition that the proposal submitted by the petitioners for revision of Floor Space Index (for short, ra148.10 3 referred to as F.S.I.) in Ahmednagar Cantonment Board has already been forwarded to the appropriate authority and the decision is awaited, has created confusion and misrepresentation when writ petition was heard and disposed of. This Court, accepting the statement of the Counsel for the petitioners and respondent No.3, in para 2 of the order under review observed that - "proposal submitted by the petitioners for Revision of Floor Space Index in Ahmednagar Cantonment Board has already been forwarded to the appropriate authority. We are informed that final decision on the said proposal will have to be taken by the Secretary of the Defence Ministry or the General Officer of Commander". It was the assertion of the original petitioners that the proposal was submitted on 9th October, 2006. It is the case of the applicant that there is confusion in this regard and the matter was misrepresented before this Court. According to the applicant, on the proposal which was ra148.10 4 submitted by the respondents No.1 and 2 - original petitioners, there is recommendation of the Board presided over by Colonel, Lieutenant Colonel, the then CEO of the Cantonment Board and Ex-Vice President of Ahmednagar Cantonment Board and the proceedings of the said Board were also placed on record. According to the applicant, this resulted into confusion. It is the case of the applicant that in fact, there is no recommendation of the Cantonment Board, Ahmednagar but, it is recommendation of the Board constituted by the Army Authority as per the directions received from the Headquarters, Southern Command, Pune. It is the case of the applicant that the statement was made before this Court that it was the Cantonment Board which has recommended the proposal. However, in fact, the Cantonment Board did not recommend the said proposal of the original petitioners. However, it was the Army Board which recommended the proposal of the petitioners. It is the case of the applicant that the recommendation for any change in the F.S.I. and other things, the ra148.10 5 proposal should be sent by Cantonment Board as contemplated u/s 240 of the Cantonments Act, 2006. Therefore, the applicant submits that there was no recommendation of the proposal from the Cantonment Board. So there is no question of taking any decision by the present Respondents No.3 and 4. The Counsel for the applicant fairly concedes that the statement was made before this Court even on behalf of the Respondent No.3 at the time of hearing of Writ Petition that the proposal submitted by the petitioners for revision of F.S.I. in Ahmednagar Cantonment Board has already been forwarded to the appropriate authority and decision of the said authority is awaited. However, according to the Counsel for applicant, the correct position is that the proposal of the petitioners was recommended by the Board presided over by Colonel, Lieutenant Colonel, the then CEO of the Cantonment Board and Ex-Vice President of Ahmednagar Cantonment Board. However, the order under review came to be passed on the premise that the proposal submitted by the petitioners for revision of F.S.I. was ra148.10 6 recommended by the Cantonment Board, which is not the correct factual position. Therefore, the learned Counsel for the applicant would submit that this Court may recall its order dated 5th February, 2010 passed in Writ Petition No.566 of 2009. 4. Though, original petitioners i.e. respondents No.1 and 2 herein are served, none appears for them. Mr. Alok Sharma, Standing Counsel appears for respondents No.3 and 4. 5. We have given due consideration to the submissions advanced on behalf of the applicant and we are of the opinion that the order dated 5th February, 2010 passed in Writ Petition No.566 of 2009 needs to be recalled for the following reasons: 6. Perusal of the order under review clearly shows that the said order was passed relying on the statement of the Counsel for the petitioners and also the Counsel appearing for the respondent ra148.10 7 NO.3 in Writ petition. The present applicant is original respondent No.3 in writ petition. The statement was made on behalf of the applicant - original respondent No.3 that the proposal submitted by the petitioners for revision of F.S.I. in Ahmednagar Cantonment Board has already been forwarded to the appropriate authority. It was further informed to this Court that final decision on the said proposal will have to be taken by the Secretary of the Defence Ministry or the General Officer or Commander. Relying on the said statement, the order under review came to be passed. However, the Counsel for the applicant, at the cost of repetition, submitted that the proposal of the petitioners for revision of F.S.I. was not recommended by the Cantonment Board and said was recommended by the Board presided over by Colonel, Lieutenant Colonel, the then CEO of the Cantonment Board and Ex-Vice President of Ahmednagar Cantonment Board. We also find considerable force in the argument of the Counsel for the applicant that for recommendation of any change in the F.S.I. or ra148.10 8 other things, the proposal is required to be sent by Cantonment Board as contemplated u/s 240 of the Cantonments Act, 2006 and in case of the petitioners, the proposal was not sent by the Cantonment Board as contemplated under the Section 240 of the Cantonments Act, 2006. 7. In the light of above, we are convinced that the order dated 5th February, 2010 passed in Writ Petition No.566 of 2009 needs to be recalled. 8. We accordingly, recall the order dated 5th February, 2010 passed in Writ Petition No.566 of 2009 and restore the Writ Petition No.566 of 2009 to its original position. In paragraph 5 of the order under review, direction was given in respect of the amount of Rs.50,000/- deposited by the petitioners in this Court on 2nd March, 2009. This Court in para 5 observed that part of the amount of Rs.25,000/- be remitted to the High Court Bar Association Library, Bench at Aurangabad and the balance ra148.10 9 amount of Rs.25,000/- be made over to the petitioner No.1. If at all the original petitioners wish to claim the said amount of Rs. 25,000/- which was remitted to the High Court Bar Association Library, Bench at Aurangabad, the petitioners can make an application to the Secretary of the High Court Bar Association, Bench at Aurangabad. Thereafter the arrangement for such refund be made. The review application is allowed accordingly, and disposed of. [ S.S. SHINDE ] [V.R. KINGAONKAR] JUDGE JUDGE. ... PLK/*