1701mca28.11.odt 1/4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR MISC. CIVIL APPLICATION (REVIEW) NO. 28 OF 2011 IN WRIT PETITION NO. 1681 OF 2006 (D) Anil D. Kataria & others :: APPLICANTS -: Versus :- State Transport Appellate Tribunal & another :: RESPONDENT ............................................................................................................................................................. Shri N. C. Phadnis, Advocate for the applicants. None for the respondents. ............................................................................................................................................................. CORAM : R. K. DESHPANDE, J. DATED : 17TH JANUARY, 2011. ORAL ORDER : 1. This application is filed seeking review of the judgment and order dated 05/01/2009 passed in writ petition No. 1681 of 2006. The relief claimed in the application is that the petitioner be permitted to agitate the question relating to Section 74(3) (a) of the Motor Vehicles Act and the same may be decided after hearing the applicants. 2. In writ petition No. 1681 of 2006, the petitioners had challenged the judgment and order dated 17/3/2006 passed by the State Transport Appellate Tribunal, Mumbai and the said writ petition was dismissed by the judgment and order dated 05/01/2009, on merits. 1701mca28.11.odt 2/4 3. The petitioners preferred letters patent appeal No. 207 of 2009 before this Court. The Division Bench of this Court in the letters patent appeal passed an order on 09/7/2009 as under: “Learned counsel for the appellants stats that the point pertaining to Section 74(3)(a) of the Motor Vehicles Act though raised in the petition has not been dealt with in the judgment in appeal. He, therefore, seeks leave to withdraw this petition with liberty to approach learned Single Judge again. The appeal is allowed to be withdrawn with liberty as prayed for.” 4. The petitioners filed civil application No. 2316 of 2009, it was styled as “Application for hearing of the petition as per the liberty granted by this Hon’ble Court in Letters Patent Appeal No. 207/2009”. This application was considered by the learned Single Judge, who had decided the writ petition. Para 4 of the said order dated 6/4/2010 is reproduced below: “It is apparent that the point was not pressed before this Court and hence, while delivering the judgment this Court was not called upon to consider it. The Division Bench of this Court has not set aside the judgment challenged before it in L.P.C. and has only permitted the present petitioners/applicants to withdraw their L.P.C. with liberty as sought for. Thus the question whether the matter can be re-heard on such issue is open before this Court. The judgment of this Court is not set aside and hence, this Court cannot hear the parties unless and until a case for review is made out. Applications as filed are not for review. In any case, the ground as raised is also not sufficient to review that judgment. The applications are, therefore, misconceived, same are accordingly rejected.” 5. Thus, it has been held that it was not an application for review and in any case the ground as raised is also not sufficient to review that judgment. The said 1701mca28.11.odt 3/4 application though not styled as application for review, it was considered to be an application for review and has been decided on its merits. 6. The petitioner against preferred L.P.A. No. 241 of 2010 challenging order dated 6/4/2010. The Division Bench of this Court on 30/8/2010 passed an order and has held as under:- “On the motion made by learned Counsel for the appellants, this letters patent appeal is allowed to be withdrawn with liberty to file a regular review application before the learned Single Judge. Letters Patent Appeal is disposed of as withdrawn.” 7. Now, this miscellaneous civil application for review has been preferred under Rule 23 Chapter IV of the High Court Appellate Side Rules, 1960. 8. Shri Phadnis, learned Counsel appearing for the applicant-petitioner has urged that the judgment and order dated 05/01/2009 passed by the learned Single Judge of this Court in writ petition No. 1681 of 2006 and writ petition No. 2388 of 2006 did not consider the question raised on the basis of the provisions of Section 74 (3)(a) of the Motor Vehicles Act, and therefore, liberty was granted in L.P.A. No. 207 of 2009 to the petitioners to approach the learned Single Judge. He further submits that the earlier civil application No. 2316 of 2009 was rejected on the ground that it was not an application for review and hence again in L.P.A. No. 241 of 2010, the Division Bench granted liberty to file review application before the learned Single Judge, and hence, this application has been moved for review. He submits that the question raised on the basis of provisions of Section 74(3)(a) of the Motor Vehicles Act is, therefore, required to be considered. 1701mca28.11.odt 4/4 9. It cannot be disputed that in L.P.A. No. 207 of 2009, the Division Bench has not set aside the judgment and order passed by the learned Single Judge on 05/01/2009 in writ petition No. 1681 of 2006. Similarly, in writ petition No. 241 of 2010 also neither the said judgment and order nor the order dated 06/4/2010 dismissing civil application No. 2316 of 2009, has been set aside. Perusal of the orders passed in both the letters patent appeals indicate that it is on the motion made by the learned Counsel for the petitioner that the L.P.A. Court permitted him to withdraw the LPAs with liberty to approach the learned Single Judge and to file review application. Though civil application No. 2316 of 2009 was not styled as an application for review, the learned Single Judge who has delivered the judgment has considered it to be an application for review and has rejected the same on the ground that the ground as raised is also not sufficient to review the judgment. In view of this, the present application is nothing but second application for review of the same judgment and order dated 05/01/2009 passed in writ petition No. 1681 of 2006. The second review application is not tenable, the same is, therefore, dismissed. JUDGE wwl