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Gerald Joseph Saldanha and ors. Vs. State of Maharashtra and ors. and Bombay Municipal Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberReview Petition No. 8 of 1985 in Appeal No. 81 of 1979 in Misc. Petition No. 1406 of 1978 with Appea
Judge
Reported in1986(1)BomCR491
ActsBombay High Court (Original Side) Rules, 1957 - Rules 871, 871(1) and 988; Constitution of India - Articles 136 and 226; Code of Civil Procedure (CPC) , 1908 - Sections 141 - Order 41, Rule 17; Code of Civil Procedure (CPC) (Amendment) Act, 1976; Urban Land (Ceiling and Regulation) Act, 1976 - Sections 20(1)
AppellantGerald Joseph Saldanha and ors.
RespondentState of Maharashtra and ors. and Bombay Municipal Corporation and ors.
Appellant AdvocateG.G. Kalsekar and ;V.P. Malvankar, Advs.
Respondent AdvocateA.V. Sawant, Adv. General and ;F.T. Siquandar, Adv. for respondent No. 1 and ;G.E. Vahanavati, Adv., i/b., Gagrat & Co. for respondent No. 4
DispositionPetition dismissed
Excerpt:
.....party - section 141 and order 41 rule 17 of code of civil procedure, 1908 - petitioners-appellants filed appeal which was disposed of on merits - petitioners absent at time when appeals taken up for hearing - contended that court should not have proceeded to dispose of appeal on merits but should have dismissed appeal for default - after amendment of rule 17 court not precluded from disposing of appeal on merits even in absence of parties - court either can dismiss appeal for default for non-appearance of party or council or dispose of same on merits - revision petition dismissed. - - ' sub-rule (1) of rule 871 clearly mentions that review petition shall be filed with any necessary modifications. we are unable to accept this contention, firstly for the reason that special leave..........a decree or order may apply for a review of judgment. it is stated that the petitioners who have filed review petition have not filed special leave petition. we have no material before us to hold one way or the other on this aspect even if the petitioners were not parties to an appeal, if some have preferred an appeal, a review petition cannot be entertained on a ground common to both the review petition and the appeal. there is, however, no provision which directs that a review petition already filed should be dismissed and not considered on merits on the ground that some of the appellants have already preferred an application for grant of special leave to appeal. a full bench of allahabad high court in behari lal v. m.m. gobardhan lal : air1948all353 laid down 'the filing of an.....
Judgment:

A.G. Madhava Reddy, C.J.

1. This review petition is by the appellants in Appeal Nos. 81 of 1979 and 82 of 1979, disposed of on 1st August, 1984 by a Division Bench of which one of us (Chief Justice) was a party. That was a judgment common to two appeals. The other Review Petition No. 7 of 1985 was filed on the limited ground. It was contended therein that the assumption made in the judgment under review that Shri Kalsekar continued to be an Advocate on record, was not correct and a request was made to expunge certain observations in that judgment. That review petition was dismissed by us on 23rd September, 1985. Although the present review petition describes all the appellants as review petitioners, it is stated by Shri Kalsekar, learned Counsel appearing for petitioners that it is filed only on behalf of petitioners Nos. 9, 10, 11, 15, 18 and 23 and that Vakalatnama was filed in this review petition only on their behalf and that all the appellants were shown as petitioners in this review petition only because Rule 871 of the High Court Original Side Rules requires it. In our opinion, that Rule does not require all the appellants whose appeal has been dismissed should necessarily be shown as review petitioners when only some of them wish to file review petition. That rule reads as follows:

'871(1) An application for review shall be made by filing a memorandum or review, which shall, with any necessary modification, be in the form prescribed for the memorandum of appeal (Form No. 90).

(2) Rule 42 as to plaints shall, so far as applicable and with any necessary modifications, apply to a memorandum of review.'

Sub-rule (1) of Rule 871 clearly mentions that review petition shall be filed with any necessary modifications. When only some of the several appellants whose appeal is dismissed, seek a review of the judgment, they cannot be compelled to join the persons who do not wish to seek review as petitioners. If such persons are necessary parties, they could only be impleaded as respondents in the review petition. The petition is, therefore, defective inasmuch as the persons who do not wish to seek review have been impleaded as petitioners. The original Vakalatnama, said to have been filed by the Counsel, does not contain signatures of all those who have been described as petitioners in the review petition. Be that as it may, even some of the appellants could undoubtedly file a review petition. A preliminary objection to the maintainability of this review petition was raised by the respondents that some of the appellants having already filed an application for grant of special leave to appeal before the Supreme Court, a review petition does not lie. We are unable to accept this contention, firstly for the reason that special leave petition does not amount to an appeal as such unless special leave petition is allowed, the appeal is not registered, it could as well be dismissed in limine. But a more formidable reason is that the present review petition was filed on 29th November, 1984 when none of the appellants had filed even the special leave petition. A few of the appellants filed special leave petition much latter on 27-1-1985. Order XLVII, Rule 1 C.P.C. permits any person considering himself aggrieved by a decree or order from which no appeal is allowed, to file review petition on the ground mentioned in sub-clause (c) of Order XLVII, Rule 1(1). Sub-rule (2) of Rule 1 of Order XLVII no doubt places an embargo on this right by stipulating that only a party who is not appealing from a decree or order may apply for a review of judgment. It is stated that the petitioners who have filed review petition have not filed special leave petition. We have no material before us to hold one way or the other on this aspect even if the petitioners were not parties to an appeal, if some have preferred an appeal, a review petition cannot be entertained on a ground common to both the review petition and the appeal. There is, however, no provision which directs that a review petition already filed should be dismissed and not considered on merits on the ground that some of the appellants have already preferred an application for grant of special leave to appeal. A Full Bench of Allahabad High Court in Behari Lal v. M.M. Gobardhan Lal : AIR1948All353 laid down 'The filing of an appeal subsequent to the filing of an application for review does not make the hearing of the review application incompetent.' If that be the position, when an appeal is filed subsequent to the filing of the review petition, much more so a review petition would not become incompetent where none of the appellants have yet preferred an appeal. The Supreme Court in Thungabhadra Industries Ltd. v. Govt. of A.P., A.I.R. 1984 S.C. 1372 held:

'The crucial date for determining whether or not the terms of Order XLVII, Rule 1(1) Civil P.C. are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end.'

The preliminary objection to the maintainability of the review petition is rejected. We, therefore, proceed to consider the review petition on merits.

2. It is contended in this review petition that having regard to the fact that the appellants and their Counsel were both absent at the time when the appeals were taken up for hearing, the Court should not have proceeded to dispose of the appeals on merits, but should have, having regard to Rule 988 of the High Court Original Side Rules read with Order XLI, Rule 17, dismissed the appeals for default. We must point out at the outset the this contention ignore the amendments made by Amending Act, 1976 in section 141 C.P.C. in view of the amendment the provisions of the Code of Civil Procedure as such does not apply to proceedings under Article 226 of the Constitution; nor do they apply to an appeal arising out of any judgment made thereunder. Only because it is a civil proceeding, it could be argued on the strength of section 141 C.P.C. that C.P.C. applies. Any such argument is not tenable after the Amending Act of 1976 by which an explanation is added to section 141. After the amendment, section 141 reads as under:

'141. The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

Explanation.---In this section, the expression 'proceedings' includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.'

When section 141 of the Code of Civil Procedure specifically lays down that proceedings under Article 226 of the Constitution are not covered by it, the explanation added to Rule 17(1) of Order XLI will not apply to proceedings under Article 226 of the Constitution or appeal arising therefrom. Rule 17(1) of Order XLI after the amendment reads as follows:

'17(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

Explanation.---Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.'

Only Order XLI, Rule, 17(1) prohibited disposal of an appeal on merits in default of appearance of a party or his Counsel. As a result of this amendment, the Court is not now precluded from disposing of the appeal on merits even on the absence of the parties and is not obliged necessarily dismissing it for default. Whether to dispose of the appeal on merits or dismiss on merits when the appellant remains absent is the discretion of the Court. The Court either can dismiss the appeal for default for non-appearance of party and his Counsel or dispose of the same on merits. Reliance is, however, placed on Rule 988 of the High Court Original Side Rules to contend that C.P.C. applies notwithstanding the amendment to section 141 C.P.C. Rule 988 of the High Original Side Rules reads as under:

'988. In cases not provided for by the Code of Civil Procedure or by the Rules contained in Parts I, II and III, the present practice and procedure shall be followed, so far as they may be applicable and are not inconsistent with the said Code and the said Rules.'

It is necessary to note that Rule 988 applies only to the cases for which no provision is made by the Code of Civil Procedure. After 1977 amendment, the Code of Civil Procedure expressly laid down that the provision contained therein would not apply to petitions under Article 226 of the Constitution. Therefore, the existing practice will have to be followed. There is no existing practice of which we are aware which compels a Division Bench hearing an appeal against the order passed in a writ petition to be necessarily dismissed for default. In the circumstance in which these Appeals Nos. 81 and 82 of 1979 came up for final hearing, we do not think that they should have been necessarily dismissed for default and not disposed of on merits. Rule 988 only speaks of following the practice in vague in Court, but such a practice should not be inconsistent with what is said in the Code. Since C.P.C. has expressly excluded its application to proceedings under Article 226 of the Constitution by virtue of section 141 as it stands since 1976, any practice of disposing of appeal on merits cannot be said to be inconsistent with the provisions of Code of Civil Procedure. In fact it could not be the intention of the legislature to require the Court to necessarily dismiss the writ petitions and writ appeals in default by applying Order XLI, Rule 17. In specifically amending section 141 and expressly excluding all proceedings under Article 226 of the Constitution and the operation of the Code of Civil Procedure, to our mind the Legislature has specifically disclosed its intention to be otherwise. In any case that was a matter left to the discretion of the Court, to either dismiss it for default or dispose it off on merits. There is nothing in the Code of Civil Procedure or Rules governing writ petitions and writ appeals to enjoin the Court to necessarily dismiss them for default on failure of the party and Counsel in appearing in Court. The contention of the petitioners that the appeals should have been dismissed for default and should not have been disposed of on merits cannot be accepted.

3. We may at this stage refer to the fact that in the other Review Petition No. 7 of 1985 filed against the same judgment, a specific point was taken that Shri Kalsekar did not continue as an Advocate on record after Shri Bhore filed his appearance. We have rejected that contention and also that review petition. For the reasons stated there we hold that Shri Kalsekar, Advocate continued to be on record. Apart from the fact that Shri Kalsekar, Advocate continued to be on record, he sought two weeks adjournment on the ground that the other Advocate on record Shri Bhore was unable to be present to give him instructions. The matter was, therefore, adjourned to the following day i.e. 31st July, 1984 to enable Shri Kalsekar to be ready with matter. However, on 31st July, 1984 when the appeals were taken for bearing, appellant No. 6 who along with other appellants was fighting a public interest litigation, appeared before the Court and stated that Advocate Shri Kalsekar had returned the brief. He also tendered an affidavit. As stated in the judgment under review, 'the Court gathered from appellant No. 6 who was present in Court for some time for tendering his affidavit that Shri Kalsekar though not busy elsewhere was not appearing in the matter.' Though Shri Kalsekar now takes an exception to this statement in the judgment, in the affidavit filed contemporaneously all that was stated that he was busy in another Court. Appellant No. 6 who had filed the affidavit that day had neither stated so in his affidavit nor did he say so orally before the Court on that day that he had ceased to be on record in that case. As recorded in the judgment, he stated that Shri Kalsekar had returned the brief and not that he was busy. As laid down by the Supreme Court in State of Maharashtra v. Ramdas Shrinivas Nayak : 1982CriLJ1581 , the correctness of the recital in the judgment cannot be disputed. The Court declared:

'4.........Matters of judicial record are unquestionable. They are not open to doubt..............We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence...............

7. So the Judge's record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else.'

We may add that so far as this case is concerned even in the affidavit filed contemporaneously, it was not asserted that Shri Kalsekar was on his legs before another Court. In fact what was stated was that he has returned the brief. In those circumstances, while one of the appellants was present in Court, the matter was taken up for hearing and disposed of on merits. In such a case even as laid down in Emmanuel S. Peters v. Alice Peters : AIR1976Delhi148 , on which reliance was placed by the learned Counsel for the petitioners, it cannot be held that there was default of appearance of party. The position where either the appellant or his Counsel appeared but has refused to make a submission or was unable to do so, would however, be different as was pointed out in the decision of the Delhi High Court in : AIR1976Delhi148 and in the judgment of the Supreme Court : [1963]2SCR733 . The litigation is pursued by a group of persons purporting to represent the interest of public in general. Each one of them was purporting to be acting in a representative capacity. Appellant No. 6 was as much representing public interest as anybody else and being present in the Court should have represented that all he wished to. We have no doubt in our mind, from what transpired that day and the previous day that the appellants were merely bent upon prolonging the proceedings and that was stoutly opposed by the respondents. In these circumstances the Court did not deem it expedient to dismiss the appeal for default or adjourn the matter and thought it expedient to dispose of the appeal on merits after hearing the respondent who was present. In fact the Court was obliged to hear and dispose of the matter on merits. In our view, it is not the intention of any procedure or practice prescribed followed by this Court to give an undue advantage to a party who is trying to prolong the proceedings and wastes the Court's time and put the respondent and his Counsel to unnecessary inconvenience. It will be sheer abuse of the process of Court to require the Court to dismiss the appeal in the circumstances stated in the judgment and the circumstances in which the appeals were dismissed in this case.

4. We may now examine if there is any merit in this review petition. The principal ground on which the review petition is pressed that some official correspondence of 1975-76 which passed between the Bombay Urban Industrial League for Development Programme, one Mr. Sadanand Varde, M.L.C; Maharashtra Slum Improvement Board and the Collector & Controller of Slums, was discovered after the judgment was rendered. According to the petitioners these documents would have had an important bearing on the matter in issue. These documents would, according to the appellants, substantiate their contention that the order of exemption made by the Government proceeded on an erroneous assumption as to the existence of vast extent of vacant site in the vicinity. These documents are four in number. One is a letter addressed by the Bombay Urban Industrial League for Development Programme, dated 22nd July, 1985 to Mr. Sadanand Varade, M.L.C., Bombay. In that letter there is a reference to Jaffar Baba Colony Residents Association taking up construction work with the help of the Maharashtra State Slum Improvement Board and the loan granted by the State Bank of India to Jaffar Baba Colony. There is no reference to Survey No. 416 which forms the subject matter of writ petition and writ appeals; nor is there any specific reference to Survey No. 6 in which the said Jaffar Baba Colony is supposed to be constructed. There is also no reference to any vacant site of 75,000 sq. yards which open space is said to be one of the factors that weighed with Government in granting the impugned exemption. The second document is a letter, dated 8th December, 1975, addressed by the Maharashtra Slum Improvement Board to the Secretary, Jaffar Baba Colony Residents Association, in which there is a reference to Survey No. 6. The Deputy Chief Executive Officer, Maharashtra Slum Improvement Board, in that letter stated that 'the site was personally shown by me to the Engineers of the Bombay Municipal Corporation and I do not see any reason why the work should not start.' He advised the Secretary of the Colony to get in touch with the concerned Engineers of the Corporation. There is no reference in this letter to the extent of 75,000 sq. yards said to be a vacant site. The third document is a letter, dated 18th December, 1976, addressed by the Stated Bank of India to the Collector and Controller of Slums, Bombay. In that letter they stated that they had received a letter of request to grant loans to individual members of the Jaffar Baba Colony Residents Association. The Collector was requested in that letter 'to inform us whether this case could be considered by you and administrative clearance granted by the Government.' The Collector and Controller of Slums, Bombay, was also requested to confirm if there is necessary Government machinery for recovering Bank's dues from the defaulters, if necessary. In this letter too, there is no reference to Survey No. 6 or to the extent of vacant site of 75,000 sq. yards. The last document is a letter dated 11th March, 1977 addressed by the Maharashtra Slum Improvement Board. The subject matter of this letter is Slum Renovation Scheme at Jaffar Baba Colony, Bandra, Bombay. In that letter, it was stated that 'out of 179 slum dwellers residing at that place 100 slum dwellers have already opened their accounts in your branch as per the information furnished by the Association.................. The Association has already started the work of 27 tenements and the value of the work done so far by them is Rs. 65,000/-.' The Bank of India, in that letter was requested to make the amount available so that further work which is stopped for the want of money may be taken up. It is clear that all these documents were in existence even before the writ petitions were filed. They were not produced either when the writ petitions were pending or in all these several years during which the writ appeals were pending disposal. It is stated that the petitioners could obtain these documents from a Voluntary Social Organisation known as 'BUILD' only on 22nd July, 1985. These documents on which reliance is sought to be placed form part of the correspondence between a public organisation. If the petitioners who are fighting public interest litigation had made diligent efforts, it would have been easily possible for them to secure these documents. These documents were filed along with affidavit dated 4th October, 1985 while the review petition itself was filed on 29th November, 1984. Even in the review petition, the existence of these documents was not mentioned. It is, however, significant to note that in the additional grounds of review petition filed in this Court on 11th June, 1985 the petitioners stated in para 4 as under:

'The petitioners have now discovered some official documents (which with due diligence were not available to them earlier) which documents show that the respondent Government had as early as 1976 started implementing the scheme of rehabilitation of weaker sections, through its slum improvements Board and that the said '75,000 sq. yards of land' was a part of that scheme.

The petitioners submit that if these documents are brought to the notice of this Hon'ble Court, this Court would set aside the impugned exemption order, as the frequent exercise of power.'

If as stated in the additional grounds, these documents were discovered even by 11th June, 1985 then obviously the statement that they came to know about the exercise of all these documents from Mr. Sadanand Varde to whom a letter was addressed for the first time on 22nd July, 1985 Bombay Urban Industrial League for Development (BUILD) obviously cannot be correct. If the petitioners were already in possession of these documents, yet did not choose to file the same, these cannot be said to be the documents discovered subsequently so that they could be made the basis for filing the review petition. Further, to our mind, the submissions made by Shri Kalsekar that these documents would show that 75,000 sq. yards of land lying vacant adjacent to Survey No. 416 was erroneous, is not established by these documents. From the order of the Government it does not appear that exemption was granted on this assumption. Shri Kalsekar, however, argues that in answer to a question in this behalf on the floor of the Legislative Assembly, the then Minister had stated that some 75,000 sq. yards in the vicinity was available for developing a garden, it should be presumed that the assumed existence of this extent was the main ground on which the exemption was granted. We do not think such an assumption is warranted when the order granting exempting does not say so. In the affidavit filed in reply in the writ petition by Shri Karkhanis, it was stated in paragraph 5 that 'In the development Plan of Bombay, there is already a reservation of about 75,000 sq. yds. of land as garden adjoining the land in suit. Therefore, when the respondent No. 4 applied for exemption under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 for construction of hotel the State Government felt that it was not necessary to further covert this entire area into garden. The land holder could give a part of this land admeasuring about 7,000 sq. yds. to Bombay Municipal Corporation for development of garden and utilise the balance area for construction of an hotel.' That does not mean that there is a vacant site of 75,000 sq. yds. The other factors that were mentioned by Shri Karkhanis in his affidavit as weighing with the Government for granting exemption were considered by the learned Single Judge as also by the Division Bench in the judgment in appeal. In para 40 of the judgment in appeals considering the contention that the reasons on which the order was based were not germane to the order and were extraneous, the Court held:---

'40.......... .....the learned Judge has also negatived the said contention and in our view rightly. Reading the said reasons as set out in the said affidavit none of the reasons appears to us to be not germane or to be extraneous to the order made.'

Though Shri Kalsekar contends that the vacant site of 75,000 sq. yards was lying adjacent for being developed for garden was dominant ground for granting exemption, neither the Single Judge who dismissed the writ petitions nor the Division Bench which disposed of appeals, considered that aspect. We find that the Government took all the relevant factors into account. If retaining the site as garden was necessary, equally construction of a hotel to meet the growing demand of foreign and local tourists and others was a matter of public interest which had to be met. The exemption, it must be noted, was granted under section 20(1)(a) and not 20(1)(b) of the Urban Land (Ceiling and Regulation) Act, 976. Exemption under section 20(1)(a) is in the public interest and if there are two competing public interests it is for the appropriate Government to consider them. In any event that contention was considered by the learned Single Judge as well as by the Division Bench which disposed of the appeals. Even if the Court was wrong in its conclusions that cannot be a ground for review of the judgment.

5. Shri Kalsekar also contended that some of the additional grounds which were allowed to be raised by way of amendment were not considered by the Appellate Court. One such ground is that the Court did not take into account the Minister's answer given to a question tabled in the Legislative Assembly with regard to the existence of open site of 75,000 sq. yards available for the development of garden. This aspect has been dealt with above and does not call for any further comments. It was also urged that the exemption granted could have been cancelled because the condition prohibiting the transfer of land was breached. The allegation of the petitioners that there was a transfer of land is not supported by any substantial evidence. It is obvious that immovable property could be transferred only under a registered document. If there was such a transfer, the petitioners could have easily produced the document. In fact if there was contravention of any condition of exemption, they could very well have moved the Government for cancellation of exemption. In any case any such subsequent transfer, however, does not being itself vitiate the order of exemption. The petitioners have not even alleged that they have made any representation to the Government that any condition of exemption has been contravened and that the exemption should be cancelled for that reason. The petitioners cannot, therefore, make a grievance of such contention not being considered. It was also urged that some of the directions given by the Central Government in the matter of granting exemption were not followed by the State Government. But we find that the petitioners neither before the Single Judge nor even before the Appellate Court produced a copy of those directions. Although we specifically called upon Mr. Kalseker to produce a copy of the directions in this Court, he failed to do so. This contention must be stated to be rejected. It would be pertinent to note that even as on today, an extent of 75,000 sq. yards land stands reserved under the Approved Plan for the year 1984 for developing it into a garden. That some encroachments have been made thereon and some buildings have been constructed by others does not in any way militate against that land still being reserved under Approved Plan for development into a garden. When this fact was observed by the learned Advocate General, the review petitioners was not in a position to deny the same.

6. The learned Counsel for the respondent No. 4 also pointed out that out of two plots in Survey Nos. 416 and 417 which comprise of 62,820,49 sq. yards, 18,000 sq. yards have been handed over by them for being reserved as green belt, leaving a balance of 44,820.49 sq. yards. Out of this extent, while granting exemption, respondent No. 6 was directed to donate 7000 sq. yards to the Bombay Municipal Corporation to maintain a garden thereon at its cost. A further extent of 5,715.55 sq. yards was reserved for laying a garden. Another extent of 8455,22 from out of this area was set apart for laying a North-South road. In addition thereto 15% of the land which works out 3,520,78 sq. yards was reserved as recreation ground. In the aggregate 24,691.55 sq. yards was thus excluded, leaving, 62,820.49 sq. yards, only an extent of 19,051.10 Sq. yds. out of 62,820.49 sq. yds. for constructing a hotel. The exemption is granted subject to fulfilment of the above conditions. We, therefore, do not think that any relevant factor was ignored in granting exemption. The judgment in writ appeals does not call for interference by way of review.

7. The review petition is accordingly dismissed with costs.


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