1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR MISC. CIVIL APPLICATION No. 749 OF 2010 IN WRIT PETITION No. 1238 OF 2010. Vinodkumar Shrivishnu Toshniwal -: VERSUS :- The Commissioner, Akola Municipal Corporation, Akola. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : AUGUST 12, 2010. Heard Shri M.G. Bhangde, learned Senior Counsel with Shri R.M. Bhangde, learned Counsel for applicant. Perused the application for review to which learned Senior Counsel has invited attention. In support of the contentions raised therein, three judgments of Hon'ble Apex Court are also pressed into service. One of the contentions is, paragraph no.9 in the order of the Municipal Commissioner has not been looked into by the Appellate Court (District Court) and therefore, the 2 matter at least needs remand for that purpose. Learned Senior Counsel states that this Court has though noted that contentions, has itself evaluated the position instead of permitting it to be done by the Appellate Court. With the assistance of learned Senior Counsel, I have perused the judgments. The judgment reported at (2002) 7 SCC 441 (Rattan Dev .vrs. Pasam Devi) in paragraph no.4 states that the First Appellate Court is duty bound to apply its mind to all evidence available on record and test the legality of findings arrived at by the Trial Court. If this is not done then the failure to discharge judicial obligation itself give arise to a substantial question of law and hence Second Appeal deserves to be admitted. Judgment reported at 2009 (4) Scale 182 (Nicholas V. Menezes .vrs. Joseph M. Menezes and others) in paragraph no.3 considers the situation in which the First Appeal was dismissed without calling for records and proceedings and without appreciation of pleadings and evidence. Again the Hon'ble Apex Court has pointed out the obligations of Appellate Court in the matter and as that procedure was not adopted by the High Court the orders of High Court was set aside and matter was remanded back to High Court. 3 Judgment reported at (2008) 3 SCC 181 (Arundhati @ Harshana .vrs. Iranna @ Veerendra) wherein the Hon'ble Apex Court has again reiterated the same law and found that when First Appeal was dismissed at admission stage itself without issuing notice to respondent, and without looking into the evidence and other material on record, the same was not proper. This Court has in its judgment dated 29.07.2010 found that notice issued by the Municipal Commissioner does not seek to execute only the judgment and decree. The further finding is, petitioner [present applicant] did not claim any lease deed or renewal in accordance with the law in their favour. The show cause notice mentioned absence of lease deed and that absence has therefore been construed as reference to absence of any right in them to continue to occupy and provisions of Section 92 of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Township Act, 1965. The sentence in paragraph no.9, “that petitioners ought to have insisted for appropriate lease deed in their favour for entering into a legal contract after the matter was disposed of by the Hon'ble Apex Court on 30.04.1997”, is in the background of the earlier part and it is only an observation to show that had there been any legal 4 right or entitlement in their favour, applicant/petitioner would have instead for such document. The sentence cannot be read torn from its context. In earlier part this Court has also found some errors committed by the learned District Judge, cannot be of any help before this Court in writ jurisdiction. This Court has examined the controversy in writ jurisdiction and has noticed absence of any title in favour of petitioner. I, therefore, find that effort of applicant now is to have fresh hearing in the guise of review, which is not permissible. No case is thus made out warranting interference in review jurisdiction. Application is rejected. No costs. JUDGE Rgd.