1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR C.A.F. NO. 688/2009 IN First Appeal No. 112/2001 (Director of Mines Safety (Western Zone) VERSUS Haribhau Shivrampant Mahajan) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.K. Mishra, Assistant Solicitor General for the applicant. Shri M.G. Bhangde, Senior Counsel with Shri S.S. Joshi & Shri V.V. Bhangde, counsel for the respondent nos.7 to 10. Shri Masood Shareef, counsel for the R-1a to 1d & 2. CORAM : SMT. VASANTI A. NAIK, J. DATE : NOVEMBER 06, 2009. Though this civil application is filed for recalling the Civil Application No.1924/2007 and order passed on it on 23.03.2007, at the outset, it is submitted by Shri S.K. Mishra, the learned Assistant Solicitor General for the applicant that the application may be treated as one under Section 151 of the Code of Civil Procedure. The applicant was the appellant in First Appeal No.112/2001. The appeal was filed against the judgment and decree passed by the 4th Joint Civil Judge (Senior Division), Nagpur in Special Civil Suit No.358/1993 directing the State of Maharashtra to re-open the urban land ceiling inquiry in respect of Urban Land Ceiling Case No.1328/1976 and 100/1981 and to decide the same on 2 merits by giving an opportunity to the plaintiffs, i.e. present respondent nos.7 to 10, according to law. The trial Court had held that the orders passed by the State of Maharashtra including the revisional order were null and void. Since allotment of the land in favour of the applicant was cancelled by the judgment and decree dated 14.02.1996, the applicant had preferred First Appeal No.112/2001 against the same. The first appeal was pending before this Court for long and an application was filed by the appellant/applicant in March-2007 seeking permission to withdraw the appeal. This Court had permitted the applicant to withdraw the appeal by the order dated 23.03.2007 and had also granted liberty to the applicant to file appropriate proceedings before the appropriate forum. The first appeal was disposed of as withdrawn by the order dated 23.03.2007. The present application is filed by the applicant on 16.03.2009 for recalling the civil application for withdrawal of the appeal and the order passed thereon on 23.03.2007. It is the case of the applicant that the civil application was filed under the misconception of facts and in view of the legal opinion of the counsel appearing in the matter. It is the case of the applicant that during the 3 pendency of the first appeal, a communication was received by the appellant from the Urban Land Ceiling Authorities that the allotment made in favour of the appellant was not disturbed and the land still stood in the name of the appellant as per the record of the Urban Land Ceiling Authorities. On receipt of the said communication, it is the case of the applicants that the Department had received legal opinion from the counsel on 14.12.2006 who opined that if the plot still stands allotted in favour of the Department, then the Department can pursue the matter with the State Government for holding the possession of the property and for its development. It is further stated that in the opinion of the counsel for the applicant, there was no hitch or hindrance in making construction of plot no.103/2 even in case of withdrawal of the appeal or dismissal of appeal. It is stated in the present application that relying on this legal opinion, the Department agreed to file an application for withdrawal of First Appeal No.112/2001. It is the case of the applicant that the application for withdrawal of appeal was filed under a bona fide belief that the allotment of the plot made in favour of the applicant was maintained. It is stated in this application that after the withdrawal of the said appeal, the applicant received the communication from the Urban Land 4 Ceiling Authorities that the Department had withdrawn the appeal and, hence, the authorities were not in a position to help the applicant in any manner as the trial Court had declared that the allotment in favour of the applicant was null and void. In such circumstances, it is the case of the applicant that the applicant realised its mistake of withdrawing the appeal on misconception of facts and on the basis of the legal opinion given by the counsel. It is the case of the applicant that the order dated 23.03.2007 permitting the applicant to withdraw the appeal may be recalled as the application for permission to withdraw the appeal was filed under misconception of facts and no negligence could be attributed to the applicant. Shri S.K. Mishra, the learned counsel for the applicant reiterated these facts in his submissions and relied on the decision reported in 2006(3) SCC 699 to substantiate his submission that an order permitting withdrawal of an appeal could be recalled where the party had withdrawn the appeal or the proceedings mistakenly. According to the learned counsel for the applicant where the suit or proceedings were withdrawn due to the mistake of the party, the Court would not be powerless to set aside the order permitting the withdrawal of the suit or proceedings. 5 Shri M.G. Bhangde, the learned Senior Counsel appearing on behalf of respondent nos.7 to 10 strongly opposed the prayer made in this civil application and submitted that it cannot be said that First Appeal No.112/2001 was withdrawn by the applicant by mistake or due to misconception of facts. It is submitted by the learned Senior Counsel that the facts leading to the withdrawal are stated for the first time in this civil application and they do not find place in the civil application filed by the applicant for withdrawal of the first appeal. It is then submitted by the learned Senior counsel that the applicant has merely stated the facts in the civil application but not a single document is produced along with the civil application to substantiate the facts. In such circumstances, according to the learned Senior Counsel, it cannot be gathered whether the decision to withdraw the first appeal was a conscious decision or was a decision mistakenly taken by the applicant. According to the learned Senior Counsel, this application is filed after a considerable period has lapsed from the date of passing of the order permitting the withdrawal of the appeal and it is very difficult to gather only from the statements of facts made in this civil application that the first appeal was withdrawn mistakenly or under the misconception of facts, specially 6 when it is not supported by any document so also the legal opinion which was allegedly tendered by the counsel for the applicant during the pendency of the first appeal and on the basis of which, it is alleged that the first appeal was withdrawn. The learned Senior Counsel submitted that in the facts of the present case, it cannot be said that the appeal was withdrawn either mistakenly or under the misconception of facts. Apart from the aforesaid submission, it is submitted on behalf of the respondent nos.7 to 10 by the learned Senior Counsel that the events which have occurred after the passing of the order on 23.03.2007 have made the situation irreversible and due to the events which occurred after the withdrawal of the appeal, it would not be in the interest of justice to exercise the discretion under Section 151 of the Code of Civil Procedure for granting the prayer made in this civil application. The learned Senior Counsel submitted that after the decree was passed by the trial Court, the same was executed by the respondent nos.7 to 10 by filing a Regular Darkhast and the possession of the land was taken by the respondent nos.7 to 10 through the bailiff of the Court. It is submitted on behalf of the respondent nos.7 to 10 that after the appeal was permitted to be withdrawn on 7 23.03.2007, there is an independent order of cancellation of allotment of the land in favour of the applicant by the order dated 21.01.2009. It is submitted by the learned Senior Counsel that there is a consequential order by the Collector, Nagpur on 16.06.2009 cancelling the allotment. The orders passed on 16.06.2009 and 21.01.2009, according to the learned Senior Counsel, clearly show that the applicant has no right to file the present application as the very same allotment which is now cancelled by the orders dated 21.01.2009 and 16.06.2009 was the subject matter of the civil suit which was decided against the applicant. It is then submitted on behalf of the applicant that after the first appeal was withdrawn on 23.03.2007, there was a registered partition deed effected by the respondent nos.7 to 10 and other family members. The respondent nos.7 to 10 and the other family members entered into a registered agreement of development with third parties on 23.01.2008. A registered power of attorney was also executed by the respondent owners and a part of the property was sold on 05.11.2008. The same part which was sold on 05.11.2008 was resold on 29.12.2008. The Nagpur Municipal Corporation has also sanctioned the plan for construction of the residential flat scheme on 03.03.2009. 8 Apart from the aforesaid facts, it is also submitted on behalf of the respondent nos.7 to 10 that after the appeal was withdrawn on 23.03.2007, the Urban Land (Ceiling and Regulation) Act, 1976 was repealed on 29.11.2007. It is submitted by the learned Senior Counsel that in view of the repeal of the Act of 1976, all proceedings which were to be taken up by the authorities under the Act pursuant to any orders made by the State Government stands abated. According to the learned Senior Counsel, since the allotment in favour of the applicant was cancelled by the judgment and decree and the State was asked to initiate fresh proceedings under the Urban Land Ceiling Act, the proceedings definitely abated in this case also. The learned Senior Counsel relied on the judgment of this Court reported in 2008(5) All M R 537 to substantiate his submission. It is then submitted on behalf of the respondent nos.7 to 10 that the State was a party to the suit filed by the respondent nos.7 to 10 and since the decree was also passed against the State Government, the State intended to challenge the judgment and decree in a first appeal. Since that first appeal was belatedly filed, the State had filed an application for condonation of delay in filing the appeal. This Court had dismissed the application for condonation of delay in filing 9 the appeal. The State Government had challenged the order passed by this Court on the application of condonation of delay in a Special Leave Petition before the Hon’ble Supreme Court. However, the Special Leave Petition was dismissed. In these circumstances, according to the learned Senior Counsel, the judgment passed by the trial Court in civil suit has attained finality as far as the State Government is concerned. This circumstance, according to the learned Senior Counsel, is an additional circumstance to reject the prayer made in the present civil application. The learned Senior Counsel submitted that it is a well settled principle of law that the Court would not entertain a proceedings wherein no effective order could be passed. According to the learned Senior Counsel all these subsequent developments have made the situation irreversible and in the facts and circumstances of the present case, no purpose would be solved in case this Court considers only the events which occurred prior to 23.03.2007 as it would be necessary in the interest of justice to also consider the events which took place subsequent thereto. The learned Senior Counsel relied on the decision reported in 2009(7) SCC 506 to substantiate his submission. The learned Senior Counsel submitted that in the present case, it would be 10 inequitable to grant any relief to the applicant over the respondents because the balance in this case clearly tilts against the applicant on weighing inequities pitted against equities on this date. The learned Senior Counsel relied on the decision reported in 2003(1) SCC 726 to substantiate this submission. In these circumstances, it is submitted on behalf of the respondent nos.7 to 10 that it would be necessary to dismiss the application filed by the applicant on merits as also in view of the subsequent developments which have made the situation irreversible. Shri Masood Shareef, the learned counsel for the respondent nos.1a to 1d & 2, adopted the submissions made on behalf of the respondent nos.7 to 10 by the learned Senior Counsel. On hearing the learned counsel for the parties and on perusal of the application and the reply filed thereto, it appears that this is not a fit case where this Court should exercise its discretion to grant the relief sought by this application. It is necessary to note that in the application for withdrawal of the appeal, though certain facts are stated, none of the facts stated in the present application find place in the same. If the facts stated in the present application which led to the plea of misconception of facts or a mistake 11 by the applicant had existed on the date of filing of the application for withdrawal, there was no hitch in incorporating at least some of them in the application for permission to withdraw the appeal. It is necessary to note that the facts leading to the misconception of facts and the alleged mistake committed by the applicant are stated in this civil application but not a single document is produced along with the civil application to substantiate those facts. Though, it is the case of the applicant that the appeal was withdrawn in view of the legal opinion of the counsel for the applicant, a copy of the communication/legal opinion by the counsel for the applicant is also not filed on record. In the reply filed by the respondent nos.7 to 10, the statements of facts made in this civil application are categorically denied and an objection is raised to the correctness of the same as no documents are filed along with the application. In spite of this reply, the applicant has not produced any documents on record to substantiate the statements of facts made in this civil application. It is also necessary to note that there is no statement in this civil application as to on what date the applicant secured the knowledge about the mistake committed by the applicant in withdrawing the appeal. 12 The appeal was withdrawn on 23.03.2007 and the present application is filed on 16.03.2009. It is also necessary to note that the respondents have categorically stated about the events which occurred after the withdrawal of the appeal on 23.03.2007 in their reply to show that the situation has now become irreversible. These subsequent events are also not controverted by the applicant. They could not have been, as most of them are supported by the documents which are issued either by the Government or by other parties. It is rightly submitted on behalf of the respondent by the learned Senior Counsel that the subsequent events need to be considered in this case as they would show that the facts and circumstances existing on the date of this order have made the situation irreversible and grave and serious prejudice would be caused to the respondents if the application filed by the applicant is allowed at this belated stage. This Court would not be powerless, in exercising the jurisdiction under Section 151 of the Code of Civil Procedure to set aside an order permitting withdrawal of the proceedings but the question is as to whether such a power should be exercised in the facts and circumstances of the present case. This Court, in its discretion would not exercise the power under Section 151 for two reasons, firstly because 13 the statements of facts in the present application are not substantiated by documents though a mention to those documents is made in the application and the facts are seriously disputed by the respondents and secondly in view of the subsequent developments which has made the situation irreversible. In the result, the civil application is dismissed. JUDGE APTE