1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION REVIEW APPLICATION NO.: 40 OF 2010 IN WRIT PETITION NO.: 8007 OF 2009 *** Bharatmata Magasvargiya Sudhar Samiti and another. ... PETITIONERS. Versus Padmakar Chandrabhan Badge and others. ... RESPONDENTS. *** Mr. V. D. Salunke, Advocate for the Petitioners. Mr. V. V. Bhavthankar, Advocate for Respondent Nos.1 to 3. Mr. A. B. Kale, Advocate for Respondent No.4. *** CORAM: S. B. DESHMUKH & S. S. SHINDE, JJ. DATED:- 14th JULY, 2010. ORAL ORDER: 1. We have heard learned counsel for the 2 respective parties. 2. Rule, made returnable forthwith and heard finally by consent of the parties. 3. Few dates and events are required to be listed for disposal of this review petition filed on behalf of the Petitioners. Respondent Nos.1 to 3 in this review petition had filed writ petition No.8007 of 2009. Since we are dealing with the review petition, writ petition NO.8007 of 2009 is listed along with this review petition by the registry of this Court. Parties are well aware of this fact that writ petition No.8007 of 2009 seems to have been filed by the original writ petitioners on 11th of November, 2009. In that writ petition, three were the petitioners, who are now Respondent Nos.1 to 3 in this review petition. Writ petition 8007 of 2009 was filed under Article 226 of the Constitution of India and for direction to implement the judgment and order dated 31st January, 2006 passed by the Regional Director of Social Welfare, Aurangabad. In that writ petition, Respondent No.1 was Divisional Social Welfare Officer which was shown to have 3 been added by amendment. Since it was by amendment, to the writ petition, the name of Respondent No.1 was mentioned as Bharatmata Magasvargiya Sudhar Samiti, Dabhai Tq. Mangloorpeer, district Akola. Respondent No. 2, in that writ petition was arrayed as Late. Babasaheb Naik Mukh Badhir Nivasi Vidyalaya, Jalna through Secretary/ Headmaster Harishchandra Govardhan Naik R/oJalna district Jalna. Respondent No.3, in that writ petition, was shown as Special District Social Welfare Officer, Jalna. Divisional Social Welfare Officer, Aurangabad Division, Aurangabad was joined as Respondent NO.4 and by way of amendment. This amendment was with the leave of the Court and was carried out on 11th December, 2009. In this writ petition, para 14 shows the prayers made on behalf of the writ petitioners. Writ of mandamus was sought against Respondent Nos.1 and 2 directing them to implement the order dated 31.1.2006 passed by the Regional Director of Social Welfare, Aurangabad Division, Aurangabad in Appeal Nos. 6, 7 and 8 of 2004. Copy of the common judgment and order passed 4 in Appeal Nos. 6, 7 and 8 of 2004 is annexed with the said writ petition as Annexure-A (page 11). This writ petition was listed before the learned Division Bench of this Court on 27th November, 2009. On that day, learned A.G.P. sought time to take instructions. Mr. Kale waived for Respondent No.3. Matter was adjourned to 7th December, 2009. This petition was mentioned before the learned Division Bench of this Court on 9th December, 2009. Circulation was granted on 11th December, 2009 at 02.30 p.m. We have seen the order passed by this Court on 11th December, 2009. It appears that on that day Advocate Mr. Vivek Bhavthankar was present on behalf of the petitioners. Advocate Mr. A. B. Kale was present on behalf of Respondent No.3 and Mrs. R. K. Ladda, A.G.P. was present on behalf of Respondent No.4. On this date, matter was adjourned to 14th December, 2009. 4. On 14th December, 2009 learned Division Bench of this Court heard the parties. On 14th December, 2009 we have noticed that Advocate Mr. Vivek Bhavthankar was present on 5 behalf of Writ Petitioners. Advocate Mr. A. B. Kale was present on behalf of Respondent NO.3 and Smt. Rekha Ladda, A.G.P. was present on behalf of Respondent No.4. On that day, learned A.G.P. produced three communications on record dated 27th December, 2007, 21st August, 2009 and 10th December, 2009. They were taken on record and marked by letter “X”. Statement of learned A.G.P., on instructions, that stringent actions are initiated against the management for non-compliance of the order was recorded in para 3 of that order. In para 4 of the order, it was observed that the Chief Executive Officer, Zilla Parishad, Jalna shall take cognizance for non-compliance of the order passed by the Divisional Social Welfare Officer. Para 5 of the order refers deferment of the matter to 11th January, 2010. It is mentioned in para 6 of the order that counsel for Respondent No.3 shall communicate the order to the Chief Executive Officer, Zilla Parishad, Jalna. While parting from this order dated 11th of January, 2010 we have noticed that notice of the writ petition to Respondent No.1 i.e. Bharatmata Magasvargiya 6 Sudhar Samiti Dabhadi (management for short) and Respondent No.2 Kai. Babasaheb Naik Mukh Badhir Nivasi Vidyalaya, Jalna (Original Respondent Nos.1 and 2) before amendment was brought to the petition, was not directed by this Court. In substance, till 14th of December, 2009 original Respondent No.1 Bharatmata Magasvargiya Sudhar Samiti, Dabhadi and original Respondent No.2 Kai. Babasaheb Naik Mukh Badhir Nivasi Vidyalaya, Jalna were not noticed and consequently were not represented or present before this Court. 5. After recording of these dates and events from the date of filing of writ petition No. 8007 of 2009, now we shall turn to the order dated 11th of January, 2010. It appears from the Farad sheet that writ petition No.8007 of 2009 was listed before this Court on 11th January, 2010. On that day, this Court records that due to paucity of time matters at serial Nos. 218 to 271 on the cause list of that day could not be taken up. Matters were adjourned, details have been given in the order dated 11th January, 2010. On that day, this writ petition No.8007 of 2009, in view of 7 the order passed on 11th January, 2010, was deferred to 10th February, 2010. On 10th February, 2010, this petition was heard by this Court and order is passed. This order runs in virtually two paragraphs. Third paragraph records disposal of the writ petition accordingly. Review of this order is sought on behalf of the review petitioner i.e. original Respondent Nos.1 and 2 in writ petition No.8007 of 2009. 6. This Review Petition was before this Court, after constitution of the Special Bench, on 26th April, 2010. On that day, after hearing learned counsel for the Review Petitioner, notice returnable on 9th of June, 2010 was directed. Advocate Mr. Hajare, instructed by Advocate Mr. A.B.Kale took notice for Respondent No.4. Mr. Bhavthankar, learned counsel accepted notice on behalf of Respondent Nos.1 to 3 (original writ petitioners). All the respondents were permitted to file reply, if they desire to do so. On 9th of June, 2010 matter was adjourned to 26th of June, 2010 at the request of learned counsel Mr. Bhavthankar for reply. 8 Thereafter, matter was adjourned from time to time and ultimately it was adjourned to 14th of July, 2010 i.e. today. 7. Today, we have heard learned counsel for the parties. In the foregoing paragraphs, we have noticed and recorded dates and events in writ petition and review petition as well. At the out set, we shall record that we are considering review petition filed on behalf of the petitioner. Original writ petition was filed by the writ petitioner under Article 226 of the Constitution of India. On behalf of the Review Petitioner contention is raised that they were not noticed by this Court, however, had engaged an Advocate on receipt of the information from the officer of the department concerned. They did not got time to file reply. According to counsel for the Review Petitioner, after order passed by the Divisional Social Welfare Officer dated 31st January, 2006 in three appeals (Appeal Nos. 6, 7 and 8 of 2004, common order) three contempt petitions were filed before this Cou4rt by the original writ petitioners. These contempt petitions were taken up before this Court, 9 heard by learned Single Bench of this Court and ultimately dismissed by the learned Single Bench. Counsel for the Review Petitioner makes a grievance that this dismissal has not been informed to the Court or brought to the notice of this Court by the writ petitioners at the time of order sought to be reviewed, dated 10th February, 2010 in Writ Petition No. 8007 of 2009. According to Review Petitioner, said order in contempt petitions is common order, passed in contempt petition Nos. 73, 74 and 75 of 2008. That common order Annexure-B is part of the record of this review petition. This order is passed on 2nd December, 2009. 8. Mr. Bhavthankar, learned counsel appearing for the Respondent Nos. 1 to 3 in Review Petition (original writ petitioners) took us to the writ petition. From para 11 he points out that statements are made that inspite of repeated requests by the writ petitioners the management did not obey the order dated 31st January, 2006, they were compelled to file contempt petitions in this High Court. This Court was pleased to issue notice in all contempt petitions to Respondent 10 Nos.1 and 2. The said respondents appeared in the contempt petitions and filed their reply. The said con tempt petitions are still pending. Pointing this para 11 from the original writ petition proper, Mr. Bhavthankar learned counsel points out that filing of the contempt petitions and pendency thereof before the learned Single Bench of this Court has been clarified/ averred in the writ petition itself. According to him, therefore, ground of suppression is not available to the review petitioner. Apart from this, review petitioners were represented before this Court in writ petition No.8007 of 2009 on 10th of February, 2010 i.e. when the order of which review is sought on behalf of the review petitioners, was passed. He, therefor,e submits that there is no case within the parameters of section 114 read with order 47 of the Code of Civil Procedure for reviewing the order passed by this Court on 10th February, 2010. Mr. Bhavthankar also points out affidavit in reply filed by Respondent Nos.1 to 3 in this review petition. This affidavit in reply 11 is sworn in by Mr. Padmakar Chandrabhan Badge, one of the original writ petitioners on 16th June, 2010. Mr. Bhavthankar points out para 4 of the reply affidavit. A statement is made that there is no suppression of facts on the part of Respondent Nos.1 to 3 (original writ petitioners). Para 11 of the writ petition is reiterated in this para 4 of the affidavit in reply. A statement is made, in para 4 of this reply, that writ petition was filed on 11th November, 2009 and contempt petitions were dismissed thereafter i.e. on 2nd December, 2009. He also points out para 9 of this reply affidavit. In this para 9 it is averred that review petitioners/ management had filed writ petition challenging impugned order of the Appellate Authority (dated 31st January, 2006) and after hearing parties and perusing the judgment learned Division Bench of this Court refused to grant interim relief. Such refusal was by speaking order. It is also further clarified that management filed L.P.A. and said appeal also came to be dismissed on 26th July, 2007. 9. Mr. A.B.Kale fairly concedes that reply 12 on behalf of Respondent No.4 is not filed. Mr. Kale, however, vehemently submitted that dismissal of contempt petitions or non- bringing this fact to the notice of this Court on 10th February, 2010 is altogether different matter. He submitted that order was passed by the Appellate Authority long time back i.e. on 31st January, 2006. Said oder was not implemented/ obeyed by the management (review petitioners). There was no other option left to the original writ petitioners but to seek redressal under Article 226 of the Constitution before this Court for implementation of the order dated 31st January, 2006. According to him, dismissal of contempt petitions is different matter. Citizens, in whose favour order is passed by the competent authority, can seek its implementation under Article 226 of the Constitution i.e. extraordinary power vested with this Court. He concluded his submission that for this reason entire judgment/ order of this Court dated 10th February, 2010 does not required to be reviewed. 10. We have noticed that writ petition was 13 filed before this Court under Article 226 of the Constitution of India. This Court, while exercising powers under Article 226 of the Constitution, is not confined to procedure. Neither such procedure is laid down under the Constitution of India. This Court, while exercising powers under Article 226 of the Constitution, may have its own procedure. Civil Procedure Code, 1908, being procedural Code, may be considered to be guide by this Court while exercising power under Article 226 of the Constitution, when review is sought by any of the party. With this, we have considered the substantive provision under section 114 of the Civil Procedure Code read with Order XLVII of the Civil Procedure Code. Order XLVII contemplates review of decree or order in certain circumstances or on certain grounds. These grounds can be listed: (i) From the discovery of new and important matter, or (ii) Evidence which, after the exercise of due diligence was not within his knowledge, or (iii) could not be produced by him at the time 14 when the decree was passed or order made, or (iv) on account of some mistake, or (v) error apparent on the face of the record, or (vi) any other sufficient reason. 11. We have made it clear to the parties that we are not hearing original writ petition No. 8007 of 2009. We have considered this review petition within the parameters of Article 226 and provisions of Civil Procedure Code which we have quoted in the foregoing paragraphs. Indisputably, common order passed in three contempt petitions is now part of this review petition Exhibit-B, and was not before learned Division Bench of this Court on 10th February, 2010. We are not impressed by the submissions on behalf of the petitioners that matter was adjourned from time to time. In our view, on 10th February, 2010 indisputably Annexure-B to this review petition i.e. common order, passed in contempt petition Nos.73, 74 and 75 of 2008 which was passed by learned Single Bench of this Court on 2nd December, 2009, much earlier to the date of the order sought to be 15 reviewed, was not before this Court. We find it necessary to record that contempt petitioners in these three contempt petitions i.e. Contempt Petition Nos. 73, 74 and 75 of 2008 were the writ petitioners before this Court in Writ Petition No.8007 of 2009. Suffice to notice that this order, which was not in existence on the date of filing of the writ petition, but was very well in existence on the date of passing of the order dated 10th February, 2010, could have been pointed out by the original writ petitioners to this Court. In our view, it was necessary to put-forth before this Court such factual information which was within the knowledge of the original writ petitioners and the contempt petitioners. This ground alone is sufficient, in our view, to review the order passed by this Court on 10th February, 2010. 12. While parting with this order, we shall record that we have not entered into merits of the writ petition No.8007 of 2009 neither expressed opinion. 16 13. Review petition is allowed in terms of prayer clause (B) and disposed of. No order as to costs. [S.S.SHINDE, J.] [S.B.DESHMUKH, J.] Dated:14/07/2010. ans/40 17 CRIMINAL WRIT PETITION NO.: OF 200 Date of decision: 14th JULY, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. THE HONOURABLE SHRI JUSTICE S. S. SHINDE. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No the fair copy of the judgment? Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE