nmw138-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.138 OF 2011 IN WRIT PETITION NO.2356 OF 2008 Mandakini Jankivallabh Melekar & Anr .. Petitioners Versus The State of Maharashtra & Ors .. Respondents Mr.S.S.Kanetkar for respondent No.4 and applicant in notice of motion. Mr.R.R.Bhosale, A.G.P for respondent Nos.1 to 3. CORAM: S.C.DHARMADHIKARI, J. DATE : 10th March 2011 P.C. Heard Mr.Kanetkar appearing for respondent No.4 and Mr.Bhosale appearing on behalf of respondent Nos.1 to 3. Although it is stated that the original petitioners and respondent No.5 are duly served, Mr.Kanetkar fairly states that the copy of this notice of motion together with affidavit in support was served on Mr.D.B.Sawant, Advocate who was then appearing for the petitioners. However, Mr.Sawant stated that as the subject writ petition has been disposed off way back in July 2008, he cannot nmw138-11.doc 2 accept service of the proceedings. Mr.Kanetkar fairly states that the original petitioners could not be served personally. However, there being an urgency pointed out and the ultimate order not prejudicing the original petitioners in any manner, I have proceeded to dispose of this notice of motion. 2 This motion seeks recall/modification of an order dated 8th July 2008 passed in the subject writ petition. 3 Mr.Kanetkar appearing in support of this notice of motion submits that the Court while disposing of the writ petition recorded agreement between the parties as crystalised in para 4 of the order. He submits that pursuant to this order, the Authorities were obliged to give effect to the arrangement between the parties. In other words, name of the original petitioner No.2 was required to be deleted from the country liquor licence. Further, the payment of 25% amount/share was also to be released in favour of the respondent No.4. nmw138-11.doc 3 4 However, the grievance of the respondent No.4 is that the Authorities have not deleted the name of the original petitioner No.2 and it continues to appear in the country liquor licence. Further, no accounts have been tendered to respondent No.4 till date and, therefore, it is not possible for her to ascertain as to whether the 25% share as recorded is released on the basis of the said accounts or otherwise. 5 During the course of hearing, Mr.Bhosale, learned A.G.P on instructions states that the Authorities in order to give effect to the arrangement recorded in the order of this Court, have directed deletion of the name of the original petitioner No.2 from the licence. He invites my attention to the fact that an order to that effect has been passed by the Collector, Greater Bombay on 20th January 2010. However, that order has been challenged by the original petitioner No.2 in an Appeal before the Commissioner of Prohibition and State Excise. That appeal is pending and the order is stayed till the hearing and final disposal of the same. nmw138-11.doc 4 6 After having perused the order dated 8th July 2008 in its entirety, I am of the opinion that the order recording the arrangement between the parties can always be given effect to by the respondent No.4 by adopting appropriate proceedings. Infact, in para 5 of the order, this aspect has been clarified. In my view, this notice of motion is not the appropriate proceeding to seek the relief that is being sought. In other words, the respondent no.4 is interested in enforcement and execution of the arrangement as recorded in the order of this Court in the subject writ petition. If she really seeks enforcement and also at the same time is asserting her right, title and interest in a property by demanding her share or otherwise, then, it is open for her to institute appropriate proceedings before the competent Court/Forum. In the garb of seeking a recall of the order passed in the writ petition, she cannot get any substantive relief. Leaving open all remedies to enforce and execute the arrangement recorded before this Court, this notice of motion is disposed off. No costs. (S.C.DHARMADHIKARI, J)