1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL APPLICATION NO. 1771 OF 2010 IN WRIT PETITION NO.6881 OF 2009 Vishwanath s/o Rangnath Ingle. Applicant. V E R S U S The Chief Executive Officer Cantonment Board, Aurangabad, Dist. Aurangabad. Respondent. Mr. M. R. Andhale, advocate for the applicant. Mr.D.V. Soman, advocate for the respondent. CORAM : S. B. DESHMUKH, J. DATE : 9th February, 2010. PER COURT :- 1. Heard learned counsel Mr. Andhale for the applicant and Mr. Soman for the respondent sole. 2. Applicant seeks main prayer which is reproduced herein below ‘B’. ‘B’. That judgment and order dated 03.02.2010 passed in writ petition No.6881/2001 may be called back for examination and verification of the matter. 3. Prayer clause ‘C’ and ‘D’ are interim reliefs. This civil application is filed on 06.02.2010. Circulation was asked for. After hearing both the counsel, it was granted. That is how, I have heard today counsel for respective parties. 4. Principal prayer which I have reproduced herein below seeks recalling of the order passed by this Court in writ petition No.6881/2009 dated 03.02.2010. Counsel Mr. Andhale, submitted that on three grounds, he is 2 seeking recalling of the order which are reproduced herein below :- 1. That, property which is the subject matter of the writ petition No. 6881/2009, had not been acquired by the respondent by following due procedure laid down under the provisions of Land Acquisition Act, 1894. 2. Second ground raised is non compliance of section 110 of the Cantonment Act, 1924. 3. Third ground urged is pertaining to submission of GLR number, not mentioned on the copy of map of which is on record (page 38) of the compilation. 5. Indisputably, in the case on hand land is not acquired by the board by following land Acquisition Act, but then having considered the controversy in the case on hand, in my view this ground does not help applicant. In my earlier order, no where it was claimed by the respondent that land is acquired. This ground cannot be accepted for recalling of the order. 6. I have considered section 110 of the Cantonment Board Act, 1924 which is reproduced herein below :- S. 110.ACQUISITION OF IMMOVABLE PROPERTY. “When there is any hindrance to the permanent or temporary acquisition upon payment of any land required by a (Board), for purposes of this Act, the (Central Government) may, at the request of the (Board), (procure the acquisition thereof) under the provisions of the land Acquisition Act, 1894 (I of 1894), and, on payment by the (Board) of the compensation awarded under that Act and of the charges incurred by the Government in connection with the proceedings, the land shall vest in the (Board).” 3 7. I have given due consideration to the submission of the counsel Mr. Andhale for applicant and to section 110. In my view, this ground also does not help the present petitioner seeking recalling of the order. 8. Third ground raised by the counsel for the petitioner is that, copy of the map which is placed on record (page 38), no where makes mention of the GLR number. I have considered the submission, I have seen the map A-2. In my view, this submission also requires to be rejected in view of controversy among the parties and order passed by this court which is sought to be recalled. 9. Mr. Andhale, learned counsel for the applicant, submitted that order passed by this court in writ petition No.6881/2009, makes some incorrect observations. He points out paragraph No.3 of the order passed in writ petition No.6881/2009. Observation of this court which is assailed by the counsel Mr. Andhale reads “the prayers I have minutely considered, for the reason the mentioning in the claim i.e. cause title of the suit that” it is a suit for declaration and perpetual injunction, is not correct.” This is the finding recorded by this court based on the copy of plaint, produced on record. If the applicant is aggrieved by finding of this court, he may resort to appropriate remedy. This ground, however, is not legal, valid for recalling of the order. I am of the considered view that this observation made by this Court are perfectly legal, justified and in view of the copy of the plaint made available at the time of passing order which is a part of the record of writ petition itself. Mr. Andhale, learned counsel also drew my attention to paragraph No.6 of the order passed by this Court. Statement made by learned counsel Mr. Andhale and Mr. Soman 4 are mentioned in concluding paragraph of this order. According to Mr. Andhale, these observations of this Court are incorrect. It is not possible to concede the submissions of learned counsel for the applicant. What is recorded by this court is submission of learned counsel Mr. D.V. Soman based on the copy of judgment of learned Single Judge passed in Second Appeal which forms part of the record. With this, learned counsel Mr. Andhale, submitted that Hyderabad Tenancy Act, 1950 is made applicable to suit property on 15.06.1950. I have recorded statement of learned counsel Mr. Andhale. 10. Mr. Soman, learned counsel opposes the application vehemently. According to him, this application is not maintainable and be dismissed. 11. Application seeking recalling of the order, modification of the order, etc. in fact, are the application seeking review of the order. Review can be sought by the party in view of section 114 of the Code of Civil Procedure r.w. Order 47 of the Code of Civil Procedure. Division Bench of this Court at Goa (to which I myself is party) has taken a view pertaining to such expression or application termed as application for recalling, modification etc. In this view of Division bench, in my view, present application filed by the applicant is nothing but an appeal of the order passed by this Court dated 03.02.2010. I have anxiously considered the submission, examined civil application in view of Section 114, Order 47 of the Code of Civil Procedure. In my view, there is no ground made out for review of the order. 5 12. Civil application seeking review stands dismissed without any order as to costs. However, it is made clear that all observations made by this Court in writ petition No.6881/2009 are pertaining to issue of temporary injunction to be granted under Order 39 Rule 1 and 2 of Code of Civil Procedure. In other words, trial court shall decide the suit in accordance with the material brought on record, and without being influenced by the observations, since they are primafacie, only for the purpose of Order 39 Rule 1, 2 of Code of Civil Procedure. Mr. Andhale, learned counsel for the applicant seeks suspension of the order passed by this Court in writ petition No.6881/2009 and civil application No.1771/2010. Since both the orders have passed by this court, in my view, such submission can be considered. I have heard Mr. Soman, learned counsel for respondent on this point. He opposed submission. Since order on civil application, I am passing today, i.e. on 09.02.2010, I am inclined to suspend both the orders i.e. Order passed in Writ Petition No.6881/2009 and in Civil application No.1771/2010 for a period of eight weeks from today i.e. till 07.04.2010. ( S. B. DESHMUKH ) JUDGE. ..... aaa/1771.10