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2010 DIGILAW 664 (BOM)

Meerabai Shankar Gajbhe v. Suman w/o. Parmeshwar Rangari

2010-04-30

A.H.JOSHI, PRASANNA B.VARALE

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Judgment A. H. JOSHI, J. :- On 9th December, 2009, this Court had issued notice for final disposal. 2. Rule. Rule is made returnable forthwith. Learned Adv. Mr. S. W. Sambre waives service for respondent no. 1, and learned AGP Mr. D. B. Yengal, for respondent nos.2 and 3. 3. This is an application filed by the Original Appellant in Letters Patent Appeal for review of Order dated 26th November, 2009 passed therein. 4. The points, which are pressed in service, can be summarized as below. It is argued that while deciding the Letters Patent Appeal, this Court has not considered whether:- [a] The learned Single Judge has wrongly relied upon the reported Judgment in case of Nimba Yadav Bhoi Vs. President, Standing Committee, Zilla Parishad, Jalgaon & others [ 2002(3) Mh.L.J. 466 ], which does not advert to the power available under Section 182 of the Bombay Village Panchayats Act, 1958, which permits the State Govt. to delegate the powers. [b] The Judgment of learned Single Judge impugned and the Judgment in case of Nimba Yadav Bhoi [supra] - both are based on a presumption that no such delegation exists, though permissible. [c] The Writ Petition filed before Single Judge was delayed by almost six months and intermittent developments were not brought to the notice of the Single Judge. [d] Election of the appellant - present applicant had occurred in the intervening period, and normal rule of law that the equity has to restore the litigant what he has suffered has no application to the election law and this aspect was not brought to the notice of learned Single Judge. [e] The Applicant has entered the office in view of disqualification of the writ petitioner and announcement of election. Applicant's entry in the office is, thus, independent, and applicant, who is duly elected, cannot be shunted out because the disqualification incurred by the writ petitioner has been set aside. Whether Writ Petitioner succeeds or not, but appellant who has entered the office, cannot be dislodged. [f] Since before the applicant filed Letters Patent Appeal, she was granted Leave to appeal. In the result, view of this Court expressed in para 5 of the Order dated 26th November, 2009 that appellant has no cause of action, meaning thereby that the appellant has no locus standi is an error of law. 5. [f] Since before the applicant filed Letters Patent Appeal, she was granted Leave to appeal. In the result, view of this Court expressed in para 5 of the Order dated 26th November, 2009 that appellant has no cause of action, meaning thereby that the appellant has no locus standi is an error of law. 5. To substantiate his contention in support of application, learned Adv. Mr. P. C. Madkholkar has placed reliance on following reported precedents:- [1] Pradyat Kumar Bose Vs. The Hon'bIe Chief Justice of Calcutta High Court, [ AIR 1956 SC 285 (VA3, C.5t April)], [2] Union of India & another Vs. P. K. Roy & others [ AIR 1968 SC 850 ) (V.55, C.172)], [3] Jyoti Basu & others Vs. Debi Ghosal & others [ AIR 1982 SC 983 ), [4] M. S. Jayaraj Vs. Commissioner of Excise, Kerala & ors. [ (2000)7 SCC 552 ], [5] NirmaI Jeet Kaur Vs. State of M.P. & another [ (2004)7 SCC 558 ], and [6] Shripad Anant Puranik Vs. The General Manager, B.E.S. & T. Undertaking & others [2009(6) ALL MR871]. 6. Heard learned Adv. Mr. P. C. Madkholkar for the applicant, learned Adv. Mr. S. W. Sambre for respondent no. 1 and learned AGP Mr. D. B. Yengal for respondent nos. 2 and 3 at length. 7. This Court has given peaceful consideration to all the grounds raised before us. 8. Prime question now argued is as to whether judgment delivered in case of Nimba Yadav Bhoi Vs. President, Standing Committee, Zilla Parishad, Jalgaon & others [ 2002(3) Mh.L.J. 466 ] (cited supra) is to be tested to be per incuriam on the ground that at that time, Bench did not take into account the availability of the power of the State Govt., to delegate seen in Section 182 of the Bombay Village Panchayats Act, 1958. 9. Section 182 is an enabling provision. 10. Whether delegation was actually done by the State Govt., is and was a question of fact. This fact was to be explored, pleaded, agitated and to be proved as a ground, primarily if available for defending the Writ Petition, but as the applicant was not a party to the Writ Petition hence in the Letters Patent Appeal. 11. This exercise has not been done. Though application for review was filed by the applicant herein in the Writ Petition, this point was not duly pursued. 11. This exercise has not been done. Though application for review was filed by the applicant herein in the Writ Petition, this point was not duly pursued. 12. Even during the course of argument in Letters Patent Appeal, this point was not argued and was not pursued. 13. Delegation being a question of fact, it is the duty and burden on the applicant to make her point good, which she has failed to do. 14. It has been brought to the notice of this Court that a query was made to the State Govt., by this Court asking whether any delegation under Section 182 was done by the State Govt. It is pertinent to note that this aspect was not brought to the notice of this Court while arguing the Letters Patent Appeal. In this background, the fact that once this Court had queried to the State Govt., about any delegation under Section 182 does not absolve the applicant of her duty to ascertain facts and raise such question only thereafter. 15. A question of fact, i.e., whether delegation was done has to be a foundation to rely upon Section 182, and not otherwise. This exercise is not done by the applicant, yet an intelligent argument is advanced without factual foundation thereto, whatsoever. 16. This Court is of considered view that the submission as to enabling provision under Section 182 of the Bombay Village Panchayats Act, 1958, is not available to the applicant. 17. Next ground to be dealt with is whether the Writ Petitioner, who has succeeded, can be denied relief, because the subject-matter relates to law concerning an elective office. 18. Applicant means to say that the law of restitution cannot apply to the elected Bodies and elective offices. 19. Applicant contends that because her entry in the office is on account of election, there cannot be restitution and the applicant would be entitled to continue in the office and that due to this fiction of law crafted by the applicant, the Writ Petition must fail, and hence the Letters Patent Appeal was liable to be allowed. 20. This argument is full of ingenuity. Applicant forgets the basic doctrine that law can do no wrong. 20. This argument is full of ingenuity. Applicant forgets the basic doctrine that law can do no wrong. If a party was wronged by any Executive action, restitution has to be done, and when such restitution is done, a person, who enters an elective office due to such interim arrangement, has to optionlessly demit it. 21. When it is well recognized that the rights in governance are legal rights, and are not constitutional rights, the right of an entrant like present applicant has to be ignored by the doctrine of lis pendens. 22. The submission of the applicant that status/office gained by her cannot be taken away or need not be demitted is not supported by any mandatory provision of law or a binding precedent. 23. The submission that the applicant cannot be dismembered from the office which has come to her share fortuitously is untenable. 24. We are, therefore, of the considered view that none amongst the grounds answer the basic ingredient of ground for review, namely an error apparent on the face of record. 25. The tenor of submissions advanced in support of review is as if an appeal is being argued. The grounds of appeal do not ipso facto, barring rarest of rare case, constitute grounds for review. 26. In view of the foregoing discussion, there is no error apparent on the face of record either of fact or whatsoever type correctible in an application for review. 27. As noted earlier, other grounds do not conform to the recognized grounds of review under Order 47, Civil Procedure Code, or generally. 28. In the circumstances, the Review Application has no merit, and is rejected with costs. Review dismissed.