* 1 * C.P. 418.2010 21.10.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO. 418 OF 2010 IN WRIT PETITION NO. 3595 OF 2010 M.S. College of Master in Management Studies ....... Petitioners : V/S : All India Council for Technical Education and anr. .....Respondents * * * * * Mr. Girish Kulkarni a/w. Mr. Hrishikesh Amembal i/by. Sandeep Waghmare, Advocate for the petitioners. Mr. Shailesh Naidu a/w. Mr. S.G. Takkar i/by. Mr. R.A. Rodrigues, Advocate for respondent no.1. * * * * * CORAM :- SMT. R.P. SONDURBALDOTA, J. 21 October, 2010. P.C. : 1. Considering the extent of the submissions advanced on the contempt petition at the stage the admission, the same is taken up for final hearing. 2. The petitioner-society is a minority institution which conducts courses of management studies. It also runs several * 2 * C.P. 418.2010 21.10.2010 schools, high-schools, colleges including professional colleges. It proposed to start a new course of Master in Management Studies and hence filed the application dated 26.12.2008 before respondent no.1-All India Council for Technical Education (AICTE) for permission to establish the Master of Management Studies College at Kausa-Mumbra, District-Thane. The proposal was rejected on the ground that the building plans, specially for the college building, had not been authenticated by the Competent Authority. Therefore, the petitioner filed Writ Petition No.8147 of 2009 challenging the ground of rejection of the application. The petition was disposed off by the Division Bench of this Court by its order dated 11.11.2009 directing respondent no.1 to re-consider the application for the academic year 2009-10 on its own merits with a clarification that the application shall not be rejected on the ground that the building plans are not approved by the Competent Authority. The respondents were directed to hear the petitioner and take a decision afresh on/or before 28.02.2010. Accordingly, respondent no.1 heard the petitioner and once again rejected the application. * 3 * C.P. 418.2010 21.10.2010 Then, the petitioner filed second petition, being Writ Petition No. 3595 of 2010 which came to be disposed off by the order dated 29.06.2010. By the said order, the rejection of the application by respondent no.1 dated 17.03.2010 was set aside and following directions given : (i) The application of the petitioner be considered as per old “ norms. (ii) The concerned respondent is expected to consider the decision of this Court dated 11th November, 2009 rendered in Writ Petition No. 8147 of 2009. (iii) Respondent to verify whether the deficiencies noticed in the earlier proposal/application submitted by the petitioner and those were informed to the petitioner by the respondents vide communication dated 25th February, 2010 are rectified by the petitioner. (iv). The petitioner is directed to make e-payment of Rs. 40,000/- within a period of two days from today.” The time granted by the above order to respondent no.1 to reconsider the application was till 13.07.2010. 3. Respondent no.1, however, on 16.07.2010 filed Review Petition No.166 of 2010 submitting that certain relevant facts * 4 * C.P. 418.2010 21.10.2010 had not been brought to the notice of the Court by either sides during the hearing of Writ Petition No.3595 of 2010. These facts were that from 06.02.2010 a new procedure had been introduced by respondent no.1 in regard to the applications under the consideration and the procedure earlier in existence had been discontinued. Respondent no.1 in the review petition, expressed its readiness and willingness to reconsider the application/proposal of the petitioner dated 26.12.2008, in the light of the decision of the Court dated 11.11.2009 passed in Writ Petition No.847 of 2009, as well as, the decision dated 29.06.2010 passed in Writ Petition No. 3595 of 2010. The difficulty, however, in the way of respondent no.1 was that the order dated 29.06.2010 directs respondent no.1 to re-consider the proposal of the petitioner dated 12.03.2010 and not 26.12.2008. It is common ground that on 12.03.2010 there was no fresh application submitted by the petitioner. What was done on that date was only re-submission of the application dated 26.12.2008 online as required by the new procedure. Respondent no.1 desired to have a clarification in respect of the application that was to be * 5 * C.P. 418.2010 21.10.2010 considered. The next difficulty in the way of respondent no.1 was that the direction no.1 in the order dated 29.06.2010 required respondent no.1 to consider the petitioner’s application as per the old procedure when the committee constituted as per the old procedure was no more in existence, with a new committee having been established as per the new procedure. With the clarifications as sought, respondent no.1 expressed its willingness to consider the application by the new committee, but, as per the old norms within a period of 3 weeks from that date. The review petition came be to be disposed off by the order dated 24.09.2010. The said order at paragraph-11 records agreement of the learned counsel for respondent no.1 to reconsider the application/proposal of the petitioner dated 26.12.2008 and the subsequent application dated 15.03.2010 by the present competent authority of respondent no.1 within a period of 3 weeks from the date of the order. It was clarified that the proposal was to be considered by respondent no.1 as per the directions given in the order dated 11.11.2009 and 29.6.2010 passed in the two writ petitions. Paragraph-13 of the order * 6 * C.P. 418.2010 21.10.2010 directed respondent no.1 to decide the application by following the procedure as agreed within a period of 3 weeks from the date of the order. In the intervening period, there had been two more orders passed by respondent no.1 i.e. the orders dated 23.04.2010 and 06.06.2010 rejecting the proposals of the petitioners, which orders came to be withdrawn by the learned counsel for respondent no.1. The application of the petitioner came to be finally disposed off by the order dated 07.10.2010 for the reasons stated in the order. 4. The petitioner contends in the present petition that the respondents are guilty of contempt of court for non-compliance of the order dated 29.06.2010 by failure to take decision on the application on/or before 13.07.2010 as directed in the order. The present contempt petition was filed on 09.08.2010 i.e. much after filing of the review petition by respondent no.1. It is submitted that though the review petition has been heard and disposed off by the Division Bench, at no point of time respondent no.1 had sought extension of time to comply with the direction in the order dated 29.06.2010. Therefore, according to the petitioner * 7 * C.P. 418.2010 21.10.2010 respondent no.1 is clearly in contempt of court for non- compliance with the order passed by this Court in Writ Petition No. 3595 of 2010. 5. The definition of civil contempt under Section 2(b) of the Contempt of Court’s Act, 1971 reads as follows :- 2(b). civil contempt” means wilful disobedience to any “ “ judgment, decree, direction, order, writ or other process of a court or wilful breac of an undertaking given to a court.” The definition requires that a person alleging contempt of court needs to establish two aspects. The first is that, there is disobedience of any judgment/decree or order of the court and the second is that such disobedience is wilful. The facts disclosed in the present proceedings indicate that one of the two ingredients i.e. of disobedience being wilful is missing. The facts of the case show that respondent no.1 was unable to comply with the order dated 29.06.2010, firstly on account of an error in the order itself and secondly on account of the change in the procedure to be followed for considering the application of the petitioner. On realising the situation, respondent no.1 filed the petition for * 8 * C.P. 418.2010 21.10.2010 review candidly accepting its own fault that it was for respondent no.1 to bring to the notice of the court the change in the procedure and constitution of a new committee as the competent authority. Infact, these facts were within the knowledge of the petitioner as well. Hence, the petitioner was also duty bound to bring the facts on record. Be that as it may, it was impossible for respondent no.1 to comply with the order without seeking clarifications and directions from the Court. Therefore, filing of review petition was a correct course of action on behalf of respondent no.1. The learned counsel for respondent no.1, submits that, with the disposal of the review petition the order dated 29.06.2010 passed on the writ petition stood merged with the order on the review petition and as such it does not survive independently. I find much substance in the submission advanced. Though the earlier order dated 29.06.2010 has not been completely set at naught by the order on the review petition, the same is required to be read alongwith the subsequent order. It has also been contended on behalf of the respondents that the time limit within which the application of * 9 * C.P. 418.2010 21.10.2010 the petitioner was to be considered, stood extended by the order on the review petition. The second submission is also required to be accepted in view of the facts and circumstances of the case. 6. Undoubtedly, the respondents ought to have filed the review application before expiry of the time granted to consider the petitioners application. Nonetheless on that ground alone, it cannot be said that it has wilfully violated the orders passed by this Court. The courts cannot take hypertechnical approach in such matters. Hence, the contempt petition is dismissed. [JUDGE]