1 C.A. No. 619 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 619 OF 2010 in CONTEMPT PETITION NO. 130 OF 2008 in CONTEMPT PETITION NO. 24 OF 2006 in WRIT PETITION NO. 3615 OF 2000 Vijay Yeshwantrao Biradar, Age 32 years, Occu. Nil, R/o At Post Ravi, Tq. Mukhed, Dist. Nanded. Applicant V E R S U S 1) Shri Sanjaykumar Bantiya, Addl. Chief Secretary, Public Health Department, Mantralaya, Mumbai – 400 032. 2) Dr. D.S. Dakore, Director General of Health Services, St. Georges Hospital Compound, Dental College Building, 4th Floor, P.D’Mello Road, V.T. Mumbai 400 001. 3) Shri Radheshyam Mopalwar, Collector, Nanded. 4) Shri Gokul Maware, the then Chief Executive Officer, Z.P., Nanded, presently posted as C.E.O., Z.P., Sangali. 5) Shri Sudhir Thakare, Secretary, Rural Development and Water Resources Department, Mantralaya, Mumbai Respondents 2 C.A. No. 619 of 2010 – 400 032. 6) Shri Parimal Singh, Chief Executive Officer, Zilla Parishad, Nanded. Mr. A.S. Deshpande Advocate for the applicant Mr. V.B. Ghatge, A.G.P. for respondent No. 3 /State Mr. P.R. Patil, Advocate for respondent No. 6 CORAM : A.V. NIRGUDE, J. DATED : 25th January, 2011 ORAL JUDGMENT 1. This application is made for recalling of the order passed by this Court on 7th December, 2009, in Contempt petition No.130 of 2008 in Writ Petition No. 3615 of 2000. 2. On 26th March, 2003, the parties recorded the consent terms. The respondents interalia agreed in the consent terms that they would consider the case of the applicant on merits, for his suitability for appointment as Multipurpose Health Worker (MPW) in Zilla Parishad, Nanded. The applicant was not communicated the decision of the authority as to whether he was found suitable or not for the appointment. So, the applicant took up the Contempt Petition No. 24 of 2006. The respondents made a statement to the Court in that petition that the applicant’s claim for the employment was examined on merits and he was found not suitable. In this view of the statement, the Court held that there occurred no disobedience of the order passed by the Court in Writ Petition No. 3615 of 2000. Subsequent to this, the applicant searched the record and found that his case for employment was not considered on merits at all. He again 3 C.A. No. 619 of 2010 approached this Court in Contempt Petition No. 130 of 2008. At preliminary stage, the respondents appeared before the Court and submitted affidavits. On 7th December, 2009, the learned Single Judge, prima facie held that the respondents did make incorrect statement before the Court, while getting Contempt Petition No. 24 of 2006 disposed of. However, the learned Judge accepted the apology tendered to the Court. Nonetheless, the learned Judge directed to pay a costs of Rs. 10,000/- (Rs. Ten thousand) to the applicant. The learned Judge did not think it necessary to reopen the Contempt Petition No. 24 of 2006. The present application is made for recalling the order dated 7th December, 2009. 3. I asked the applicant's Advocate as to how application is maintainable before this Court. He contended that the Court has ample power to recall the earlier order, because the order is a mistake. He placed reliance on two Judgments of Supreme Court namely "Budhia Swain & others V. Gopainath Deb, 1999 AIR, SCW 1814" and "M.M. Thomas V. State of Kerla and another, 2000 AIR SCW 73". In the Judgment of M.M. Thomas's case (cited supra), the Supreme Court held that High Court as the Court of Record, must have inherent powers to correct its record. It is held further that if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power but a duty to correct it. The High Court in that regard has plenary powers. Even the Judgment in the case of Budhia Swain & others, (cited supra) reiterates this principle of law. In this Judgment, the point is discussed rather elaborately in para No. 6,7 & 8. They reads as under :- “6. Shri K.V. Vishwanathan, learned counsel for the appellant con-tended that power of the High Court to review the 4 C.A. No. 619 of 2010 judgment or order passed under the Act is circumscribed under Section 8C(2) and that existence of the conditions specified in the sub-section is since qua non for such exercise. Learned counsel further submitted that in the application filed by the State for review of the earlier judgment no such conditions had been highlighted. Alternatively, learned counsel submitted that the conces-sion envisaged in Section 8C(2) cannot be made out by implication as the concession should be express and direct. 7. Section 8C consists of three sub-sections. The first sub- section deals with the power of Forest Tribunal to review its order. It is the second sub-section which deals with the powers of the High Court to review. Hence, that sub-section alone is relevant for consideration in this case. For understanding the scope of Section 8C{2) we extract sub-section below : "(2) Notwithstanding anything contained in this Act, or in the Limitation Act, 1963 (Central Act 36 of 1963), or in any other law for the time being in force, or in any judgment, decree or order of any court or other authority, the Government, if they are satisfied that any order of the High Court in an appeal under Section 8A (including an order against which an appeal to the Supreme Court has not been admitted by that Court) has been passed on the basis of concessions made before the High Court without the authority in writing of the Government or due to the failure to produce relevant data or other particulars before the High Court or that an appeal against such order could not be filed before the Supreme Court by reason of the delay in applying for and obtaining a certified copy of such order, may, during the period beginning with the commencement of the Kerala Private Forests (Vesting and Assignment) Amendment Act, 1986 and ending on the 31st day of March 1987, make an application to the High Court for review of such order." 8. A Division Bench of the High Court of Kerala in State of Kerala v. Subramonian Namboodiri, (1992) 2 Kerala Law Times 300 has taken the view that a remedy of review under the sub-section is not available merely because the State feels that the decision is wrong on the merits, "Section 8C(2) envisages a review only if the decision of this Court had been made on the basis of a concession made before it without the authority in writing of the Custodian or the Government, or due to the failure to produce relevant data or other particulars before the 5 C.A. No. 619 of 2010 Tribunal or that an appeal against such decision could not be filed by reason of the delay in applying for and obtaining a certified copy of the decision." 4. The question now is, whether order passed by this Court in Contempt Petition No. 130 of 2008 on 7th December, 2009 was passed because of fraud practiced upon the Court; whether the Court itself committed a mistake which prejudiced a party; whether the Judgment was rendered by ignorance of a fact. The answer to all these questions are in negative. My learned brother consciously passed the impugned order accepting the apology of the respondents for committing contempt. He did not stop there, but he also imposed cost of Rs. 10,000/- (Rs. Ten thousand) on the contemnor. He thus, thought it fit not to take this matter further. He did not think it necessary to reopen the earlier Contempt Petition No. 24 of 2006. He in short decided to conclude this controversy vide his order. A matter of Contempt is always a question between the Court and the Contemnor. A Complainant cannot question the proprietary of an order which drops an application under Contempt of Courts Act or under the provisions of Article 215 of the Constitution. In this view, the present applicant cannot maintain the present application before this Court at all. The application stands rejected. 5. The learned Counsel appearing for the applicant contended that when the learned Single Judge held that the respondents had made incorrect statement while getting the Contempt Petition No. 24 of 2006 disposed of, he ought to have reopened the said proceedings. According to him, the learned Judge thus committed a mistake. In my view, the decision that was taken by the learned Single Judge cannot be said to be a mistake as contemplated by the Supreme Court in the above mentioned two Judgments. As mentioned above, the learned 6 C.A. No. 619 of 2010 Judge while appreciating the facts of the case thought it fit to pass that order and the proprietary of this order cannot be questioned before this Court. The argument of the learned Advocate appearing for the applicant that the learned Judge committed mistake is not acceptable. ( A.V. NIRGUDE, J. ) SDM* 619.10CA/25111/ok