The main legal point established in the judgment is that concessions made in previous proceedings do not bind parties in subsequent proceedings, and the exercise of revisional power must be within a reasonable time.

I.P. MUKERJI, J.

1. In 2004 the writ petitioners filed a writ application in this court (WP 460 of 2004) challenging the vires of the second proviso to Section 179 (2) (d) of the Kolkata Municipal Corporation Act, 1980. They also challenged a demand for Rs. 1,93,34,726/-. Learned Counsel appearing for the appellants/writ petitioners in that writ allegedly on a mistaken interpretation of the instruction given to him abandoned the point of vires. On 20th April, 2007, the writ application was disposed of, taking into account the above concession made by learned counsel.

2. After disposal of the first writ application, the appellants/writ petitioners applied before the first court to resile from the alleged statement of their learned Counsel in court. The court while disposing of the application on 31st August, 2007 simply recorded that the court, while disposing of the first writ application did not have any occasion to consider the validity of the said proviso to the said Act. It did not decide the issue as to whether this point had been deliberately withdrawn or was abandoned by learned Counsel due to inadvertence. Understandably, since there was no decision of this court on the issue the appellant could not take this point before the appeal court (APO 473 of 2017) on an appeal from the order dated 20th April, 2007. They also could not take the point because they did not urge it before the trial court.

3. But the question is whether they could have urged it in the instant writ (WP 1021 of 2011).

4. One part of the argument of Mr. Kapur is a little heavy. He says that the right to obtain a declaration that an Act is ultra vires is a fundamental right. Just because in a proceeding the point regarding validity of a proviso had been given up by a party, it does not mean he cannot take this point in another separate proceeding.

5. In Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. reported in 1985 (3) SCC 545 cited by learned Counsel, a writ application was filed on the Original Side of the Bombay High Court on behalf of the pavement dwellers against the proposal of the Government of Maharashtra and the Bombay Municipal Corporation to demolish their huts on the pavement or public roads. It appears that in an earlier writ on behalf of these pavement dwellers, it was contended in court that this action had not affected the fundamental rights of the petitioners. On the basis of their undertaking to vacate their dwellings by 15th October, 1981 and the state authorities not to demolish the structures by that date the writ application was disposed of. It was contended in the later case that this statement of learned Counsel operated as an estoppel preventing the pavement dwellers from “setting up their fundamental rights as defence to the demolition of the huts”. The Supreme Court ruled that there could be no estoppel against a fundamental right, even if such a right had been waived or conceded under a mistake of law or otherwise.

6. In Uptron India Ltd. v. Shammi Bhan & Anr. reported in 1998 (6) SCC 538 the Supreme Court opined that a wrong concession made by counsel on a question of law was not binding on the client. This point was affirmed by the Supreme Court in P. Nallammal and Anr. V. State reported in 1999 (6) SCC 559.

7. Therefore, we have two propositions of law. In an ordinary litigation between two parties a law point concerned with facts may not be taken or in other words may be given up. If it is so a party is not normally allowed to re-agitate the same point at that stage of the proceeding or at a higher stage like an appeal. (See Radha Sundar Dutta v. Mohd. Jahadur Rahim and others reported in AIR 1959 SC 24). The exception is when the point is a pure question of law and not taken in the first Court but not expressly given up (see Keshavlal Lallubhai Patel And vs Lalbhai Trikumlal Mills Ltd reported in AIR 1958 SC 512 and Additional Commissioner of Income-tax v. East Coast Floor Mills Pvt. Ltd. reported in AIR