(Per : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA) The present Misc. Civil Application has been filed for direction/modification as prayed in this application by the applicant-Dwarka Nagar Panchayat. In this application, the following prayers are made:
"(a) Admit this Misc. Civil Application.
(b) Allow this Misc. Civil Application by giving appropriate direction and remove the condition no. 15(ii), (iii) and (iv) of the order passed by this Hon'ble Court in its order dated 8.2.2012 and further be directed to regulate amount deposited be operated by the chief officer of the municipality and as per the provision of Municipality Act in the interest of justice.
(c) Use the amount lying in the joint account in any places for the development of the Dwarka Town.
(d) Grant such other and further relief(s) as deemed just and proper in the interest of justice."
2. Learned advocate Mr. Deepak Sanchela for the applicant has referred to the orders passed by this court from time to time and has mainly emphasised that the order was not a consent order and there was no consent given by Dwarka Nagar Panchayat or the Chief Officer. He also stated that the Chief Officer had no authority even to give the consent. He has also submitted that conditions Nos. 2, 3 & 4 of the order passed by this Court dated 8.2.2010 may be modified as it is contrary to the Municipal Account Code and it is required to be followed. He has strenuously submitted that, therefore, the order passed by this Court was without any consent and it was not a consent order. He has also tried to submit that there would be difficulty with the Panchayat with regard to the funds and therefore necessary direction/modification may be made.
3. Learned Sr. Counsel Mr. Tanna appearing with learned advocate Mr. Nandish Chudgar for respondents Nos. 1 to 3 has submitted that the order passed by this court has merged with the order of the Hon'ble Apex Court when the SLP filed against the order passed by this court has been dismissed. He pointedly referred to the said order of the Hon'ble Apex Court in SLP No. 33100-33101/2010 wherein it has been observed, "Having regard to the fact that the order impugned in the present special leave petition was passed on the basis of consent between the parties, we are not inclined to interfere with the impugned judgments. The Special Leave Petitions are dismissed accordingly."
4. Therefore, learned Sr. Counsel Mr. Tanna submitted that in view of this, now it cannot be urged that it was not a consent order. He submitted that, in fact, considering the facts of the matter, the amount which was lying was ordered by this court to be utilised for the public purpose and respondents Nos. 1 and 2 have not been permitted to have refund of the amount and therefore directions have been given by this court for utilising the fund for public purpose, to which no grievance can be made by the present applicant. He also submitted that it was a consent order and in fact in an order passed by the Division Bench, there is a specific reference also to this aspect when the Misc. Civil Application (for review) No. 810/2010 in Special Civil No. 2735/90 was filed and the order was passed by this court dated 13.5.2010. He therefore submitted that such contention is misconceived.
5. In view of the rival submissions, it is required to be considered whether the present application could be entertained.
6. Though such application has been filed for the direction for modification, in effect it is for review or recalling the order passed by this court against which SLP No. 33100-33101/2010 has been dismissed. The Hon'ble Apex Court in its order has also referred to this aspect that it was a consent order. In fact, Misc. Civil Application (for review) No. 810/2010 in Special Civil No. 2735/90 was preferred for this very purpose and this court, vide order dated 13.5.2010, had specifically mentioned about the resolution which was passed by the Municipality. Therefore, the submissions made by learned advocate Mr. Sanchela that the order was not a consent order or the Chief Officer had no authority cannot be accepted as it is too late in the day to entertain any such submission. In fact, the record itself speaks that after hearing all the concerned the order was passed and the directions have been issued for utilising the fund for public purpose though it was claimed by respondents Nos. 1 and 2. Therefore, instead of allowing the money being taken by the company, directions have been issued for utilising it for the public purpose in the interest of the people of Dwarka.
7. Another facet of the submission that the conditions are contrary to the Municipal Account Code and/or the Chief Officer has no authority is also without any merit as directions have been issued by this court in exercise of power under Art. 226 as well as considering the facts of the case and the Municipal Account Code does not have any such prohibition that without following such procedure in the court, even the High Court cannot issue necessary direction for working out the modalities for utilisation of the fund in public interest.
8. Therefore, as the order of this court has merged in the order of the Hon'ble Apex Court in SLP No. 33100-33101/2010, the present application cannot be entertained as there is no need for any modification or clarification.
9. With regard to any difficulty for the operation of the account, the Registrar, High Court of Gujarat, on administrative side, can take appropriate steps to take care of any such difficulty.
10. With the aforesaid observations, this Misc. Civil Application stands disposed of.
(Rajesh H. Shukla, J.) (N.V.
Anjaria, J.) (hn) Top