1 RPW.142.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.142 OF 2010 IN WRIT PETITION NO.3275 OF 2010 M/s.Gaekwar Agriculture & Chemical Co.Ltd. & Anr. ...Petitioners Versus The Estate Officer, The Oriental Insurance Co.Ltd. & Anr. ...Respondents ...... Mr.V.A.Thorat, Sr.Counsel with Mr.A.Y.Sakhare, Mr.K.M.Naik, Mr.P.J.Thorat i/b M/s.Shelke & Co. for Petitioners. Mr.V.Y.Sanglikar for Respondents. ...... CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ. DATED:- JULY 23, 2010. P.C. 1. Heard Counsel for the parties. This is a Review Petition praying for recall of our order dated 28th April 2010 passed in Writ Petition No.3275 of 2010. The principal basis on which Review Petition is filed is on the assertion that after the dismissal of the Writ Petition, the Petitioner have come across communication dated 28th July 1995 issued under the signature of Manager of the Respondent Company addressed to the Petitioners in his capacity as N.O.C. Holders, C/o. The British Electric Insulating Co. (P) Ltd./the original occupants/allottees. The said letter reads thus: 2 RPW.142.10.sxw “EXHIBIT `B’ ORIENTAL INSURANCE COMPANY LIMITED, BOMBAY REGIONAL OFFICE NO.1, ORIENTAL HOUSE, 2ND FLOOR, 7, JAMSHEDJI TATA ROAD, BOMBAY-400 020. TEL.NO.2820494, TELEX NO.3125 & 2417. GRAM: OPGINSWEST FAX: 2851619. ESTATE DEPARTMENT 28TH jULY, 1995. BY HAND DELIVERY Mr.G.S.Shelke, N.O.C. Holders, C/o.The British Electric Insulating Co.(P) Ltd., 31, Dr.V.B.Gandhi Marg, BOMBAY – 400 023. Dear Sir, Re : Structural repairs to the building known as `Indian Mercantile Insurance Building (Kirti Building), 31, Dr.V.B.Gandhi Marg, Fort, Bombay-23. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - We invite your kind attention to original letter Fref.R-36/-/95 dated 20.07.95 addressed to you by M/s.Mahendra Velinkar & Associates, Architects and its copy endorsed to us in the above connection. It is learnt from the above referred letter of your Architect that you have stopped the structural repairs work of the above referred company-owned building as the tenants of the said building have not contributed their respective payments for the repairs of the above building. It is also learnt that unless and until all the installments of the payments are paid by the tenants of the above referred building, it will not be possible for you to continue the further work of the said building. As you are aware the necessary NOC was granted in favour of the NOC holders of the above referred building by us in anticipation that you would complete the structural repairs work of the said building without stopping the work in-between and as you have already started the work after getting our NOC, you cannot stop 3 RPW.142.10.sxw the work in-between till the entire structural repairs are carried out. If you were not in a position to collect the funds from the tenants for their respective share, you should not have demolished the entire structure of the said building. In view of the above, we once again request you to start the work immediately with the funds available with you and complete the same immediately and bring the said building in a safe condition. Please note that if you fail to start the work, you will be responsible for the consequences that may arise in the event of untoward incidence and we will be compelled to inform to the concerned higher authority for necessary action in the matter. We await your early confirmation for starting the necessary repairs work which is already stopped by you earlier. Thanking you, Yours faithfully, Sd/- MANAGER.” (emphasis supplied) 2. Placing emphasis on Paragraph 3 of this communication, it is argued that the Court may have to reconsider the conclusion reached while dismissing the Writ Petition especially in view of the opinion noted in Para 11 of the Judgment under review. In the said Para 11, we have noted that it would have been a different matter if the original building was to be demolished and new building was to be erected by the Tenants Association. In that case, perhaps, the question of dual ownership may have become relevant, in which case, the tenants could have contended that the Tenants Association is the owner of the structure. Taking clue from this observation and in view of the fact noted in the communication dated 28th July 1995, it 4 RPW.142.10.sxw is vehemently argued that the Court ought to consider the question as to whether the ownership of the structure remained with the Insurance Company at all so as to permit the Insurance Company to initiate action of taking recourse to provisions of Public Premises Act. The argument though attractive, will have to be stated to be rejected. In our opinion, the question as to whether the Tenants Association became the owner of the structure after reconstruction of the demolished structure is a question of fact. At best, it could be a mix question of fact and law. That question ought to have been clearly stated in response to the show cause notice issued by the Estate Officer. No such plea was ever taken before the Estate Officer nor before the Court in that behalf. On the contrary, we find force in the stand taken in the report dated 19th June 2002 where it is stated as under: “Occupants offered necessary cooperation for phased repairs. The repairs are proposed retaining the external load bearing walls and replacing the internal areas with suitable new framing system and material.” (emphasis supplied) 3. This presupposes that the entire structure was never demolished. Only the internal areas were suitably replaced so as to repair the structure to make it habitable. 4. We are also in agreement with the objection taken by the Counsel for the Respondents that such new plea cannot be permitted, that too, by way 5 RPW.142.10.sxw of Review Petition. Reliance is rightly placed on the decision of the Apex Court in the case of Union of India v. Paul Manickam & Anr. Reported in (2003) 8 SCC 342. In Paragraph 19 of this decision, the Apex Court has observed thus: “19. As noted supra, for the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu or the Union of India who were arrayed in the writ petition as parties. This appears to be a deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The High Court also transgressed its jurisdiction in entertaining the review petition with an entirely new substratum of issues. .......” (emphasis supplied) 5. Applying the principle expounded by the Apex Court which applies on all fours to the case in hand, the Review Petition in our opinion is ill- advised. Hence, the same deserves to be dismissed. 6. At this stage, Counsel for the Review Petitioners prays that in that case, the protection given to the Petitioners to enable them to carry the matter in Appeal before the Apex Court may be continued further, so that the Petitioners can take recourse to that remedy, if so advised. 7. In our order under review dated 28th April 2010, we had given enough time to the Petitioners but the Petitioners have utilised that time to 6 RPW.142.10.sxw file the present Review Petition. In the circumstances, we would agree with the Counsel for the Respondents that if at all indulgence is to be shown, the maximum four weeks time be provided to the Petitioners to take recourse to such remedy, as may be advised. Accordingly, it is ordered that the impugned decision of the Estate Officer be kept in abeyance for a period of four weeks from today, subject to the Petitioners complying with the conditions already emphasised in the earlier order. (R.M.SAVANT, J.) (A.M.KHANWILKAR, J.)