2009 Supreme(Bom) 1733

High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. SWATANTER KUMAR, THE HONOURABLE DR. JUSTICE D.Y. CHANDRACHUD & THE HONOURABLE MR. JUSTICE S.C. DHARMADHIKARI
D.R. Patil
Versus
State of Maharashtra & Others
WRIT PETITION NO.3068 OF 2009
Decided on : 16-12-2009

Headnote:Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971 - Section 3-K - Slum - Rehabilitation Authority Scheme - For development of slum - Petition raises challenge to Govt. Resolution setting up high powered committee - Held - Challenge to Govt. Resolution cannot be entertained at instance of petitioner - Petitioner suppressed withdrawal of his notice of motion for recalling/reviewing order of Division Bench - High powered committee set up by State Government in pursuance of decision of Full Bench - Full Bench decision of this Court in 2008 (1) Bom CR 1 (OS)(DB) challenged before Apex Court and pending - High Court (FB) cannot sit in judgment over its own decision rendered earlier - Petition dismissed. - Even if the constitutional challenge is raised, the conduct of the party raising it is a relevant factor. If the conduct is of such a nature as would disentitle him from invoking the discretionary and equitable jurisdiction of this Court under Article 226 of the Constitution of India then at his instance, the constitutional challenge need not be considered. This principle is fairly well-settled. See Pannalal Binjraj v. Union of India, 1956 DGLS (soft) 112 : AIR 1957 SC 397 and Chancellor v. Bijaynand Kar, 1993 DGLS (soft) 950 : AIR 1994 SC 579. It is equally well-settled that a person who has received a benefit under a statute is not entitled to challenge its constitutional validity see 1953 DGLS (soft) 68 : AIR 1953 SC 384 (Nain Sukh Das v. State of U.P. ). Further the jurisdiction of High Court under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. See 1975 DGLS (soft) 24 : AIR 1975 SC 1121 (Har Shankar v. Dy. Excise and Taxation Commissioner. The petitioner does not dispute that this petition is filed invoking Article 226 of the Constitution of India. The petitioner does not dispute that when his earlier petition No. 2284 of 2007 came up before the Division Bench on 5th December, 2007 both the Full Bench decision and the GR was in the field. The petitioner does not dispute that despite this, he did not challenge the GR and instead accepted the decision of this Court to approach the committee set up in pursuance of this GR. Therefore he on his own submitted to the jurisdiction of the committee and abided by the decision of this Court. That decision has gained finality because the order dated 5th December, 2007 passed by this Court has not been challenged further. Even the request to recall or review it is not pressed. In such circumstances the petitioner cannot turn around and in the garb of a constitutional challenge, seek to resile from the binding decision and order of this Court. The order dated 5th December, 2007 binds the petitioner, to say the least. Having been bound by it, at his instance the challenge to the GR dated 15th November, 2007 cannot be entertained. More so, when the petitioner has suppressed withdrawal of hi notice of motion for recalling/reviewing the order of the Division Bench in WP No. 2284 of 2007. Further he suppressed filing of Notice of Motion No. 78 of 2009 in the pending writ petition of the respondent No. 4 to this petition, viz., WP No. 1762 of 2006. The prayers in that motion and the present prayer for stay in this petition is identical. In such circumstances, the petitioner has suppressed relevant and material facts from this Court.

       Even otherwise, from the record it is that the State Government has set up the Committee not only because of the observations of the Full Bench but on account of its own statement before this Court. Mr. Nargolkar is right in his submissions that the statement of the learned Advocate General made on instructions, binds the State Government. The State Government has accepted the Full Bench decision and set up a High Powered Committee. It is not as if the Full Bench directed the Constitution of the Committee and the State acted in furtherance thereof. A proper and complete reading of the Full Bench decision demonstrates that the State Government has constituted the Committee of its own in due defence to the statement of the Advocate General and the observations of the Full Bench. This by itself does not mean that the Committee has been set up by this Court or in furtherance to this Court decision. Both Full Bench decision and the GR will have to be read as a whole. So read it is apparent that the GR dated 15th November, 2007 is issued by the State Government after taking into account the observations in the Full Bench decisions and the provisions of the relevant statute.

       Are informed that the Full Bench decision of this Court in Tulsiwadi ’s case is challenged before the Supreme Court and that challenge is pending on the own showing of the petitioner. Hence, judicial discipline demands that during the pendency of such a challenge we should not go into any lager and wider controversy. Therefore the issue as to whether this Court has taken over Legislative and Executive powers and functions of the State and whether the Full Bench decision violates the Doctrine of Separation of Powers enshrined in the Constitution must be properly raised and dealt with during the course of that challenge. This Full Bench cannot sit in the judgment over its own decision rendered earlier. That would be also impermissible and more so in the teeth of the pending challenge before the Supreme Court. Therefore leaving these wider issues open for being raised in the pending proceedings before the Supreme Court or in other appropriate case, we proceed to dismiss this petition. Accordingly, the petition is dismissed.