1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.5329 OF 2009 Jai Dayanand Baba Maschya Vyavsai Sahakari Sanstha Ltd., Tembhurni, through its Chairman ..PETITIONER VERSUS The State of Maharashtra & ors. ..RESPONDENTS Mr D. R. Irale Patil, Advocate for the petitioner; Mr K.J. Ghute Patil, A.G.P. for respondents no.1 to 3; K.J. Suryawanshi, Advocate for respondent no.4. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 14th January, 2010 PER COURT : This is a petition under Article 226 of the Constitution of India which is filed as a sequel to the decision of the Division Bench of this Court, to which one of us (A.V. Potdar, J. was a member) in Writ Petition No.2188 of 2009, by judgment dated 15.4.2009. By this petition under Article 226 of the Constitution of India the petitioner prays for recalling/quashing "ex parte order" dated 15.4.2009 passed in Writ Petition No.2188 of 2009 and also prays for issuing directions to join the petitioner as a respondent 2 to the aforesaid petition. The petitioner also prays for recalling the order dated 15.4.2009 passed by this Court in Writ Petition No.2188 of 2009 and direct the respondents to decide the claim for allotment of Jivarkha tank on the basis of the proceedings dated 5.12.2008 afresh giving opportunity to the petitioner society. 2. In order to decide this petition it would be necessary to refer to certain facts. It appears that in the year 2007 the contract of fishing in the Jivarkha tank came to be allotted to the present respondent no.4. The petitioner being aggrieved by the aforesaid order by which the fishing contract came to be awarded to respondent no.4, filed an appeal before the Deputy Director of Fisheries. The Deputy Director of Fisheries by his judgment/order dated 26.5.2008 dismissed the aforesaid appeal. The petitioner being thus aggrieved by the dismissal of his appeal filed revision before the Commissioner of Fisheries. The Commissioner of Fisheries by its decision dated 30.9.2008 allowed the revision filed by the petitioner herein and directed the respondent-authorities to decide the question of awarding fishing contract afresh. As a result of the order of the revisional authority the earlier contract which came to be awarded to the petitioner stood cancelled. It appears that pursuant to the orders of the revisional authority, the District Selection Committee in its meeting dated 5.12.2008 considered the proposal of the present petitioner and the fourth respondent and unanimously recommended that the fishing contract be awarded to respondent no.4. It also appears that as per the 3 instructions issued by the Government, prior approval of the Commissioner of Fisheries was required to be obtained before execution or awarding the fishing contract. Accordingly, in the resolution of the selection committee dated 5.12.2008 the Committee directed that the proposal be forwarded to the competent authority for seeking the approval. It also appears that the petitioner corresponded with the competent authorities requesting them to consider the proposal of the petitioner as expeditiously as possible. Since nothing in the matter was done by the competent authority, the petitioner filed Writ Petition No.2188 of 2009 in this Court praying therein for issuance of a writ of mandamus directing respondent no.2 to issue allotment order in favour of the petitioner society as per the resolution passed by the District Committee on 5.12.2008. Looking to the nature of the relief which was sought, the present petitioner was not joined as a party to the proceedings. 3. Mr D.R. Irale Patil, learned Counsel for the petitioner has urged before us that the respondent no.4 had not joined the present petitioner as a respondent to the petition and, therefore, in that light of the matter the judgment of this Court, dated 15.4.2009, in Writ Petition No.2188 of 2009 is an " ex parte order". Since the petitioner was a necessary party to the petition, the petitioner ought to have been joined as a respondent. The learned A.G.P. on behalf of respondents no.1 to 3 and Shri K.J. Suryawanshi, learned Counsel for respondent no.4 have opposed the petition and have submitted that the present petitioner was not a 4 necessary party to the petition filed by respondent no.4. The limited relief which respondent no.4 as a petitioner had sought in Writ Petition No.2188 of 2009 was for directing the respondents to implement the resolution which was passed in the meeting held on 5.12.2008. It is also urged before us that the resolution of the District Committee had not been challenged by the present petitioner and the present petitioner has no locus standi to file the present petition. 5. Shri D.R. Irale Patil, learned Counsel for the petitioner has placed reliance on the judgment of the Supreme Court in Mahesh Yadav & anr. vs. Rajeshwar Singh & ors., (2009) 2 Supreme Court Cases 205. Our attention has been invited to paragraph 15 of the aforesaid judgment, which reads thus :- "The proviso appended to Order 9 Rule 13 of the Code of Civil Procedure postulates that when an ex parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, the court is not powerless to do so. If an application for setting aside the ex parte decree was maintainable at the instance of the appellants, we fail to understand as to why a separate suit was required to be filed. When an ex parte decree is passed, the defendant may have more than one remedy. He may file a suit contending that the decree was obtained fraudulently. He may file an application under Order 9 Rule 13 of 5 the Code of Civil Procedure for setting aside the ex parte decree. He may prefer an appeal from the ex parte judgment and decree. In a given case, he may also file a review application." 6. In the present petition the sole question which falls for consideration is whether the present petitioner was a necessary party in Writ Petition No.2188 of 2009 filed by respondent no.4. Undisputedly the petitioner had challenged the awarding of the fishing contract in favour of fourth respondent by filing appeal and revision. Undisputedly also in the revision filed by the present petitioner the contract awarded to respondent no.4 came to be set aside and the competent authorities were directed to decide the question afresh. Pursuant to the aforesaid directions, the District Committee in its meeting held on 5.12.2008 recommended the name of the fourth respondent while reje3cting the proposal of the present petitioner. Undisputedly the resolution of the District Committee dated 5.12.2008 had not been challenged by the petitioner. The relief which the fourth respondent had sought in Writ Petition No.2188 of 2009 was limited to the extent of directing the respondents to give effect to its resolution dated 5.12.2008. In fact, that is the only direction issued by this Court of directing the respondents to act as per the resolution dated 5.12.2008. Since the proposal of the petitioner had been rejected and the petitioner had not been filed any proceedings for challenging the rejection of his proposal, according to us the present petitioner was not a necessary party to Writ Petition No.2188 of 2009 filed by the fourth 6 respondent. Whether the judgment of the Division Bench of this Court rendered in Writ Petition No.2188 of 2009 directing the issuance of work order in favour of the respondent no.1 could be faulted on the ground that there was no approval of Commissioner of Fisheries, is not a matter which can be gone into and decided by this Court. We are not sitting as either an appellate court or a court exercising review jurisdiction in respect of the judgment of the Division Bench of this Court, dated 15.4.2009, rendered in Writ Petition No.2188 of 2009. According to us, since the petitioner was not a necessary party to the aforesaid writ petition, the present petition is devoid of any merit and deserves to be dismissed. 7. Accordingly, this writ petition is summarily dismissed with no orders as to costs. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/wp5329.09