Gaurishankar Mohanlal Vyas Died Through L.Rs. Purushottam Mohanlal Vyas v. Imamsaheb Ismail Saheb (Died) His L.Rs. Mehtab Imamsaheb And Other

1 CA 2250 of 2020

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD Civil Application No.2250 of 2020 With Civil Application No.2249 of 2020 In Review Application Stamp No.33941 of 2019 In Letters Patent Appeal No.304 of 2010 In Writ Petition No.1980 of 1998 Gaurishankar s/o Mohanlal Vyas, Died through legal representative Purushottam s/o Mohanlal Vyas, Age 74 years, Occupation : Lawyer, R/o B-708, Whispering Heights, Mind Space, Chincholi Bunder Road, Malad (West), Mumbai - 400 064. .. Applicant.

Versus

Imamsaheb s/o Ismail Saheb, Died his legal representatives Mehtab s/o Imamsaheb, Died, legal representative Putalibee w/o Mehtabsaheb Khoriwale, Died & deleted vide order dated 6-10-2016 And Others.

.. Respondents.

---- Shri. P.G. Karande, Senior Counsel, instructed by Shri. D.R. Bhadekar, Advocate, for the applicant.

Shri. Gaurav L. Deshpande, Advocate, for applicant from Civil Application No.2249 of 2020 (for intervention). ---- Coram: T.V. NALAWADE & M.G. SEWLIKAR, JJ.

Date: 20 FEBRUARY 2020

2 CA 2250 of 2020 ORDER:

1) The present application is fled for condonation of delay of 230 days caused in fling review application in respect of the decision given by this Court of Letters Patent Appeal No.304/2010. As there is huge delay and there is circumstance like one proceeding was fled in the Supreme Court to challenge the decision given in the Letters Patent Appeal by this Court but the said proceeding was withdrawn on 6-1-2020, the learned senior counsel for the applicant was asked to make out some case for review. For condonation of delay not only sufficient cause is requuired to be shown but some case is requuired to be made out in the main matter. The proceeding which was fled before the Supreme Court, was withdrawn and it cannot be said that the Apex Court had given liberty to approach this Court by fling proceeding like review application. Ordinarily, when decision is given by this Court, that decision needs to be challenged by fling appropriate proceeding in the Supreme Court.

3 CA 2250 of 2020 2) It can be said that no sufficient cause is shown for the delay caused in fling the proceeding in this Court in view of the aforesaid circumstances. The learned senior counsel for the applicant submitted that this Court has not considered the circumstance that the appellant wanted to use the provisions of the Maharashtra Regional and Town Planning Act and on that basis the appellant wanted to show that the appeal is tenable. On this point, it can be said that this point was raised and that point was also touched by this Court while deciding the Letters Patent Appeal. This point was never raised before the authority and even before the learned Single Judge of this Court. In Letters Patent Appeal it was not open to raise such point and only substantial quuestion of law could have been considered by this Court. Due to this circumstance it can be said that, this ground could not have been considered on merits.

3) The learned senior counsel for the applicant made some submission that one of the heirs of the tenant was dead when the proceeding was pending before the authority but without setting aside the abatement, the

4 CA 2250 of 2020 said heir was impleaded and this ground also ought to have been considered. The record shows that this point is considered by this Court. In regard to submissions made, this Court has gone through paragraphs 17,18,19,21 and 23 of the judgment delivered by this Court.

4) Though this Court had held that Letters Patent Appeal itself was not tenable and the decision given by the learned Single Judge needs to be treated as the decision given by using power under Article 227 of the Constitution of India, this Court has touched all the points which were raised in the Letters Patent Appeal. In view of these circumstances this Court holds that the submissions made by the learned senior counsel for the applicant cannot be considered as they are not within the scope of review powers.

5) The learned senior counsel for the applicant placed reliance on some observations made by this Court on the circumstance like abatement of proceeding in the case reported as 1998(3) Mh.L.J. 618 (Jayalaxmi Janardhan v. Lilachand). On other point like one more

5 CA 2250 of 2020 person had fled a proceeding like Civil Application No. 4006/2914 in Letters Patent Appeal No.229/2011 (Abdul Hamid v. Imamsaheb & Others) and this Court in order dated 5-5-2015 had entertained the proceeding even when no proceeding was fled before learned Single Judge to challenge the order made by the Maharashtra Revenue Tribunal, the Letters Patent Appeal was considered as tenable was argued. This circumstance also cannot be considered in the present matter as the Letters Patent Appeal No.229/2011 which was fled by Abdul Hamid is itself decided by judgment dated 4-2-2019 in respect of which the applicant wants to fle review petition.

In ordinary course, the decision of the Maharashtra Revenue Tribunal ought to have been challenged by fling writ petition before learned Single Judge under Article 227 of the Constitution of India but it appears that due to pendency of Letters Patent Appeal No.304/2010 the other Court had observed that such Letters Patent Appeal can be considered. The order, however, does show that the issue of maintainability of Letters Patent Appeal will have to be decided subsequuently and that can be seen in paragraph No.

6 CA 2250 of 2020 Application No.4006/2014. Thus, the submission made in this regard is misconceived.

6) The aforesaid circumstances show that present applicant is trying to keep the dispute alive. The applicant could have taken decision from the Supreme Court where he had actually fled proceeding for challenging the decision of this Court but it was withdrawn unconditionally by the applicant and this circumstance also cannot be ignored in view of the aforesaid circumstances. In the result, the application stands rejected. The intervention application is disposed of. Sd/- Sd/- (M.G. SEWLIKAR, J.) (T.V. NALAWADE, J.) rsl