{1} WP No.3728/2012
Drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3728 OF 2012
1. Smt.Manisha Bhimraj Patil PETITIONERS
Age-39 years, Occ-Service
At Present working as Assistant Teacher,
Navnirmit Residential School For
Scheduled Caste Candidates,
Chalisgaon, Tq-Chalisgaon
Dist-Jalgaon
2.
Smt.Pushpa Baburao Savkare
Age-39 years, Occ-Service
At Present Working as Assistant Teacher
Navnirmit Residential School for
Scheduled Caste Candidates, Chasligaon
Taluka-Chalisgaon, Dist-Jalgaon
5. Smt.Sangita Ramdas Wani
Age-39 years, Occ-Service
At Present Working as Assistant Teacher,
Sarvodaya Shikshan Prasarak Mandal
Sanchalit VJNT, Primary Ashram School,
Warkhede, Tq-Chalisgaon
Dist-Jalgaon
7. Smt.Shubhangi Popatrao Pawar
Age-31 years ,Occ-Service
At present working as Assistant Teacher,
Seva Sahakari Shikshan Prasarak
Mandal Sanchalit, VJNT Ashram School,
Pimparkhed Thanda, Tq-Chalisgaon
Dist-Jalgaon
9. Shri.Sahebrao Pratap Rathod
Age-39 years, Occ-Service
At present working as Assistant Teacher,
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{2} WP No.3728/2012
Savitribai Phule Government Girls Hostel,
Chalisgaon, Tq-Chalisgaon
Dist-Jalgaon
10. Shri.Shalikgram Khandu Patil,
Age-42 years, Occ-Service
At present working as Assistant Teacher,
Government Ashram School, Bhadane,
Taluka-Sakri, Dist-Dhule
11. Shri.Jaishankar Dadaji Patil,
Age-31 years, Occ-Service
At present working as Assistant Teacher,
Navnirmit Residential School for
Scheduled Caste Candidates, Chalisgaon
Taluka-Chalisgaon, Dist-Jalgaon
(Petitioners No.3, 4, 6, 8 and 12 are deleted as per order dated
22-06-2012)
VERSUS
1. The State of Maharashtra RESPONDENTS
Through its Principal Secretary,
Social Justice and Special Assistance
Department, Mantralaya, Mumbai-32
2. The Director,
VJNT, OBC and Welfare of Special Backward Class,
Maharashtra State, Pune-1
3. The Divisional Social Welfare Officer,
Jalgaon Division, Jalgaon
4. The Special District Social Welfare Officer,
Jalgaon Dist-Jalgaon
5. Shri.Sant Dnyaneshwar Shikshan Sanstha,
Islampur, Tq-Walva, Dist-Sangli
Through its Secretary,
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{3} WP No.3728/2012
6. Punyashlok Ahilyabai Holkar
Primary Ashram School,
Chondi, Tq-Jamkhed,
Dist-Ahmednagar
Through its Secretary,
7. Navnirmit Residential School for
Scheduled Caste Candidates,
Chalisgaon, Taluka-Chaligaon
Dist-Jalgaon,
Through its Head Master
.......
Mr. D.S.Bagul, Advocate for the petitioners
Mrs. A.V.Gondhalekar, AGP for respondent State
Mr. S.S.Chaudhary h/f Mr.V.M.Maney, Adv. for respondent No.5
ig .......
WITH
WRIT PETITION NO.6537 OF 2012
1. Bharat Hiraman Rathod PETITIONERS
Age-35 years, Occ-Labourer,
R/o Krushnanagar, Talegaon Tanda
Tq-Chalisgaon, Dist-Jalgaon
2. Ramesh Dharma Chavan
Age-35 years, Occ-Labourer
R/o Talegaon Tanda,
Taluka-Chalisgaon, Dist-Jalgaon
3. Prabhu Walmik Chavan
Age-65 years, Occ-Labourer
R/o Talegaon Tanda,
Tq-Chalisgaon, Dist-Jalgaon
VERSUS
1. The State of Maharashtra RESPONDENTS
Through its Principal Secretary,
Social Justice and Special Assistance
Department, Mantralaya, Mumbai-32
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{4} WP No.3728/2012
2. The Director,
VJNT, OBC and Welfare of Special Backward Class,
Maharashtra State, Pune-1
3. The Divisional Social Welfare Officer,
Nashik Division, Nashik
4. The Special District Social Welfare Officer,
Jalgaon Dist-Jalgaon
5. Banjara Magasvargiya Shikshan Prasarak Mandal
Talegaon Tanda, Tq-Chalisgaon
Dist-Jalgoan
Through its President,
Indal Bhagwan Chavan
6. Shri Sant Dnyaneshwar Shikshan Sanstha,
Islampur, Tq-Walva, Dist-Sangli
Through its Secretary,
7. Punyashlok Ahilyabai Holkar Primary
Ashram School, Chondi
Tq-Jamkhed, Dist-Ahmednagar
.......
Mr. A.B.Girase, Advocate for the petitioners
Mrs. A.V.Gondhalekar, AGP for respondent State
Mr. Paresh B.Patil, Advocate for respondent No.5
Mr. S.S.Chaudhary, h/f Mr. V.M.Maney, Advocate for respondents No.
6 and 7
.......
[CORAM : R
. M. BORDE
AND
SUNIL P.DESHMUKH, J.J.]
th
OCTOBER, 2013
RESERVED ON : 7
nd
PRONOUNCED ON : 22
OCTOBER 2013
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{5} WP No.3728/2012
JUDGMENT (PER SUNIL P.DESHMUKH, J.):
1. Rule. Rule made returnable forthwith and heard finally by consent of the parties.
2. Banjara Magasvargiya Shikshan Prasarak Mandal, Talegaon Tanda, Taluka-Chalisgaon, Dist-Jalgaon, under its aegis, was running primary ashram school by the name Prabodhankar Thakare Prathmik Ashram Shala, Talegaon Tanda, Tq-Chasligaon Dist-Jalgaon. Petitioners, possessed of requisite qualifications, were appointed in their respective posts in said Ashram School, during the period from 1999 to 2004. Appointments of petitioners, in due course, were approved during 2004-2006. Their appointments are made permanent with effect from dates referred to in chart submitted by the petitioners at Exhibit-A.
3. Around 2009, Chief Executive Officer, Zilla Parishad, Jalgaon, on his visit, found certain irregularities and deficiencies in conducting the school and a report accordingly was submitted by him to the Director of VJNT, OBC, Social Welfare of Special Backward Class, Pune (Respondent No.2 herein). Subsequently, recognition granted to the school came to be withdrawn on ::: Downloaded on - 27/11/2013 20:28:53 ::: {6} WP No.3728/2012 23-08-2010, which according to the petitioners occasioned for not taking corrective steps with regard to deficient infrastructural facilities.
4. In the very order, respondent No.2 directed Special District Social Welfare Officer, Jalgaon (Respondent No.4 herein) to take appropriate steps for absorption of students in nearby Ashram school of Zilla Parishad and / or a recognized institution, with a further direction to take appropriate steps in respect of services of staff and to make report pursuant thereto.
5. Vide order dated 15-12-2010, respondent No.2 gave permission / no objection to absorb petitioners in other primary Ashram Schools recognized by the Government. The petitioners were accordingly absorbed under order dated 29-03-2011, at the places referred to in said order.
6. Petitioners, pursuant to said order dated 29-03-2011, have joined their posts at the respective places and were discharging duties sincerely and honestly. There was a subsequent direction to cause certain changes in the placement of the ::: Downloaded on - 27/11/2013 20:28:53 ::: {7} WP No.3728/2012 petitioners by the Secretary, Social Welfare and Special Assistance Department, Mantayalaya, Mumbai, pursuant to which placements underwent change, under order dated 18-06-2011 of respondent No.3. Petitioners had accordingly joined said places. There were further changes caused to order dated 18-06-2011, moving placements of some of the petitioners and according to these subsequent changes, petitioners have joined and are discharging their duties accordingly. Some petitioners have got benefit of couple convenience. Accordingly the petitioners have been working at their respective places.
7. Under Resolution dated 2nd January, 2012 Government purported to transfer the de-recognized and closed down Prabodhankar Thakare Prathamik Ashram School, Talegaon Tanda, Tq-Chalisgaon, Dist-Jalgaon then run by Banjara Magasvargiya Shikshan Prasarak Mandal, Talegaon Tanda, to Sant Dnyaneshwar Shikshan Sanstha, Islampur, Tq-Walva, Dist-Sangli at its Punyashlok Ahilyadevi Holkar Prathamik Ashram School, Chondi, Tq-Jamkhed, Dist-Ahmednagar, directing that the presently working staff, having approval, of the closed school be ::: Downloaded on - 27/11/2013 20:28:53 ::: {8} WP No.3728/2012 absorbed. Pursuant to which communications dated 06-04-2012 were issued to present petitioners.
8. Petitioners have questioned propriety, legality and validity of the Government Resolution dated 2nd January, 2012, and the actions pursuant thereto so also the order dated 06-04-2012, whereby Assistant Commissioner, Social Welfare, Jalgaon purported to relieve the petitioners considering that as if they are staff of the closed down Ashram School.
9. Respondents No.1 to 4 submitted affidavit in reply and purported to contend that the petitioners were temporarily absorbed in Primary Ashram Schools, nearby the closed Ashram School and relied on, for said purpose on clause No.7 appearing in the orders issued to stress that petitioners' absorptions are for temporary period. It is further contended that Government Resolution dated 02-01-2012 has been issued so that all the employees of the closed down Ashram School shall be absorbed by the transferee school, which is a stipulation according to the policy laid down under Government Resolution dated 01-08-2007. The respondents contend that the reliance placed on the Secondary ::: Downloaded on - 27/11/2013 20:28:53 ::: {9} WP No.3728/2012 School Code, of Tribal Development Department, is misplaced as the same would not hold good for Ashram Schools run by the Social Welfare Department. The respondents have contended that six employees of the closed Ashram School have already joined services at the transferee school and were being paid salary accordingly. The schools wherein the petitioners were temporarily absorbed have refused to take care of salary of the petitioners after 19-04-2012. The respondent purports to stiffly object to the request and conduct of the petitioners seeking payment without working at the transferred place.
10. Respondent No.5, the transferee institute, through its Secretary, has submitted its affidavit in reply and purports to support action of the Government referring to that the transfer is pursuant to the policy and further to that under the same, the teaching and non teaching staff of de-recognized / earlier institution has been handed over to respondent No.5, and refer to clause No.4 of Government Resolution dated 01-08-2007. The legality of the action is further sought to emphasized with reference to withdrawal of employees from the present petition, who have ::: Downloaded on - 27/11/2013 20:28:53 ::: {10} WP No.3728/2012 joined respondent No.6 school of respondent No.5 at the transferred place. Respondent No.5 further contends that investments have been made for running the school at transferred place. Having regard to same, it has been requested to reject the writ petition.
11. We have perused Government Resolution dated 1st August, 2007. It is issued in respect of voluntary transfer of private institutions' residential Ashram School to another institution.
Under caption, "the conditions for transfer of primary and secondary residential schools" conditions bearing clauses No.1 to 9 have been stipulated. Relevant extract of said Government Resolution is reproduced herein below.
'kklu fu.kZ; % Lo;alsoh laLFksekQZr pkyfo.;kr ;s.kk&;k dks.kR;kgh fuoklh vkJe 'kkGsps LFkykarj.k rlsp O;oLFkkiu vU; nql&;k laLFksdMs gLrkarj.k lacaf/kr laLFksP;k LosPNsuqlkj dj.;kl iq<hy 3 (rhu o"kZ) o"kkZi;Zar dks.kR;kgh izdkjps vuqnku ns; gks.kkj ukgh ;k vVhl v/khu jkgwu 'kklukdMwu ijokuxh ns.;kr ;sbZy- rlsp ,dk fof'k"V fBdk.kh vkJe'kkGk eatwj dsyh vlsy v'kk fBdk.kh 10 fd- eh- ifjljkr iz'kkldh; vFkok lks;hP;k dkj.kkLro lnj vkJe'kkGk LFkykarjhr dj.ks xjtsps vkgs vls 'kklukps er >kY;kl] ::: Downloaded on - 27/11/2013 20:28:53 ::: {11} WP No.3728/2012 izdj.kfugk; xq.koRrsP;k vk/kkjs xq.kkuqdzes fopkj d#u 'kkGk vU; fBdk.kh LFkykarjhr dj.;kl iq<hy vVhaP;k v/khu jkgwu ijokuxh ns.;kr ;sbZy-
izkFkfed @ ek/;fed fuoklh 'kkGsP;k LFkykarjk.kklkBh vVh o 'krhZ 1- 'kklukus ekU; dsysY;k c`gr vkjk[kM;kizek.ks laLFksP;k vkJe'kkGsps fBdk.k vlY;kl o R;kBhdk.kh lacaf/kr laoxkZph yksdla[;k fud"kkizek.ks vlwu fon;kFkhZ la[;k iwjs'kh vkgs o loZ izdkjP;k ewyHkwr lks;h lqfo/kk fuoklh 'kkGslkBh miyC/k d:u nsr vkgs v'kk ifjfLFkrhr 'kkGsP;k LFkykarjkl ekU;rk nsrk ;s.kkj ukgh- ek= [kkyhy ckch y{kkr ?ksowu jkT; 'kklu @ lapkyd , [kkn;k fof'k"V ifjfLFkrhr LFkykarjkl ijokuxh nsbZy-
2- vkJe'kkGk T;kfBdk.kh dk;kZfUor vkgs v'kkfBdk.kh flapu izdYi vFkok brj lkoZtfud midze lq: gks.kkj vlrhy o R;klkBh lnjP;k tkxsps vf/kxzg.k dj.ks vko';d vlsy fdaok iwj] Hkwdai bR;knhlkj[;k uSlxhZd vkiRrhpk /kksdk vlsy fdaok 3- l/;k fuoklh 'kkGk T;kfBdk.kh vkgs R;k lHkksorkyph vusd xkos nqljhdMs olkgrhlkBh xsY;keqGs fdaok brj dkj.kakeqGs fuoklh 'kkGsP;k Vkiwr vlysyh yksdla[;k deh >kY;keqGs fuoklh 'kkGsrhy fon;kF;kZaph la[;k 50 % is{kk deh vlY;kl fadaok 4- T;kfBdk.kh fuoklh 'kkGk vlsy R;kfBdk.kh ewyHkwr lks;h mnk-
tfeuhph miyC/krk] oht o ik.;kph miyC/krk bR;knhckcr xaHkhj leL;k ::: Downloaded on - 27/11/2013 20:28:53 ::: {12} WP No.3728/2012 vlY;kl fadaok tkrh; r.kko] xVckthpk la?k"kZ bR;knh eksB;k izek.kkr ok<.ks ;klkj[;k lkoZtfud v'kkarrsP;k ?kVuk ?kMY;keqGs fuoklkh 'kkGsph fon;eku tkxk vlqjf{kr vlY;kl R;k ftYg;kr 10 fd-eh- P;k ifjljkrhy vU; fBdk.kh yksdla[;k o 'kkGk lq: dj.;kl izkFkfed o ewyHkwr lks;h lqfo/kk miyC/k vlY;kl R;kfBdk.kh LFkykarjkl ijokuxh 'kklukP;k iwoZ ijokuxhus] lapkyd] foTkkHkt o lapkyd] lektdY;k.k ;kaP;kdMwu fnyh tkbZy-
5- l/;k pkyw vlysY;k 'kkGsP;k fBdk.kh oht] ik.kh] bekjr] eSnku fdaok vU; LFkkfud viq&;k lks;heqGs fdaok LFkkfud izklafxd dkj.keqGs ,[kkn;k 'kkGsps LFkykarj R;kp 'kkGsP;k ifjljkr 10 fd-eh- ps varjkoj dj.ks vko';d vlY;kl oLrqfLFkrhpk vgoky izkIRk d:u ?ksowu 'kklukP;k iwoZ ijokuxhus lapkyd v'kh ijokuxh uohu fBdk.kh laLFksus dsysY;k ewyHkwr lqfo/kk y{kkr ?ksmu nsrhy-
6- T;kfBdk.kh laLFkk LFkykarjkph fouarh djhr vlsy o v-dz-1 e/;s uewn dsysY;k lks;h lqfo/kk izpfyr 'kkGsP;k fBdk.kh miyC/k ulsy o lacaf/kr laoxkZph fon;kFkhZ la[;k deh vlsy] 'kkGk @ laLFkk LFkykarjkP;k fBdk.kkiklwu ewyHkwr lks;h lqfo/kk miyC/k d:u nsr vlsy o lacaf/kr fBdk.k cgr vkjk[kM;ke/;s lekfo"V vlsy rj v'kk fBdk.kh 'kkGk LFkykarjkl eatwjh nas.;kpk 'kklu fopkj djsy-
7- ,[kkn;k fof'k"V ifjfLFkrhr ,[kkn;k 'kkGsps LFkykarj dj.;kl fof'k"V ckc Eg.kwu eatwjh ns.;kps vf/kdkj 'kklukps jkgrhy-
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8- dks.kR;kgh vkJe'kkGsps LFkykarj vU; fBdk.kh dsY;kl lacaf/kr laLFksyk
vuqnku ns; Bj.kkj ulY;kus R;k vkJe'kkGsrhy f'k{kd @ f'k{kdsrj deZpk&;kaps osru vnk dj.;kph tckcnkjh R;k njE;ku loZLoh laLFksoj jkghy-
9- 'kklukP;k ekU;rsf'kok; fuoklh 'kkGsps LFkykarj dsY;kl rs voS/k Bjfo.;kr ;kos o R;keqGs mnHko.kkjs fofo/k iz'u mnk- deZpkjh] LFkkoj taxe ekyeRrk o fon;kFkhZ la[;k ;kckcr jkT; 'kklukph dks.krhgh tckcnkjh jgk.kkj ukgh- lacaf/kr fuoklh 'kkGsph ekU;rk vkiksvki jnn let.;kr ;sbZy-
v'kk jnn >kysY;k 'kkGsps gLrkarj.k fofgr ekxkZus vU; laLFksyk gLrkarj.k dj.;kps vf/kdkj 'kklukl jkgrhy-
12. It would be pertinent to note that Government Resolution dated 1st August, 2007 does not make any reference to transfer of de-recognized and closed school. We have also perused Government Resolution dated 2nd January, 2012, under which the impugned transfer is sought to be effected. It is apparent from the same that none of the terms and conditions were available under which the transfer could have even been mooted. It is further to be noted that whenever a voluntary transfer is sought, it would be on Government forming an opinion on administrative ground or for ::: Downloaded on - 27/11/2013 20:28:53 ::: {14} WP No.3728/2012 convenience that such transfer is necessary, then the Government may permit transfer. The Resolution also refers to a rider of transfer / shifting of school within a periphery of 10 kms.
13. None of the conditions referred to in clauses 1 to 9 of the Government Resolution dated 01-08-2007 have been subsisting for transfer of the school and more particularly of a de-recognized and closed down school. The transfer of school is beyond periphery of 10 kms that too in the absence of terms and conditions, referred to under the government resolution. Though the parties have placed on record Government Resolution dated 2nd January, 2012 but a corrigendum to the same dated 14th March, 2012 has not been placed on record.
14. We have not been able to appreciate that as to how a de-recognized and closed down school could be transferred. In the process of transfer, it appears that a recognition accorded to a school is being considered and treated as if it is amenable to transfer as would be possible in the cases of business licence. A non-est recognition after de-recognition at one place can hardly be revived or resurrected at other place.
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15. Aforesaid apart, the transfer is not preceded by any wide circulation about intention to transfer, which would have enabled other desirous institutions to explore possibility of putting in claims to have the transfer of such a school, which would have taken care of the persons concerned with the Ashram School, for whose benefit it was being conducted and for whom the liabilities were incurred. This is to refer to that the process of transfer has been undertaken without wide publicity and thus keeping out possible viable claims from institutions closer to the location of school from where it is being transferred. Adequate transparency in the process would have avoided present situation. Nor does it appear that convenience of the erstwhile staff has been taken into account while issuing the Government Resolution dated 2nd January, 2012.
16. The petitioners have placed reliance on decisions in Writ Petitions No.949 of 2012 and 8386 of 2011 dated 10th/11th September, 2012 as well as in writ petition No.1728 of 2012 dated 11th September 2012 by Division Bench at Principal Seat. The Division Bench has ruled that as no procedure has been ::: Downloaded on - 27/11/2013 20:28:53 ::: {16} WP No.3728/2012 prescribed by the State Government for consideration of request of transfer of Ashram school from one management to another, there is lack of transparency in the decision making process rendering the decisions taken ad hoc, without letting opportunity to other interested organizations. More so, in the case of aided institution, the Court has felt it necessary that the State Government should frame appropriate guidelines setting out fair and transparent procedure for consideration of such request. The Division Bench has observed thus-
"But what the government has done in the present case is to allow as it were a shifting of the recognition of a closed Ashram School to a completely new institution both physically and in terms of decision ostensibly by handing over the recognition of a derecognized school to another NGO. Once an existing Ashram School was derecognized, there would be no occasion to handover that recognition to another Ashram School. If as a result of the derecognition of an Ashram School the government is in a position to fund some other institution elsewhere in the State of Maharashtra, that is a completely separate and independent decision in arriving at which a transparent decision making ::: Downloaded on - 27/11/2013 20:28:53 ::: {17} WP No.3728/2012 process must be followed. Recognition is not like a licence to enter on a business which can be transferred.
Once recognition granted to a school is withdrawn, that original recognition ceases to exist in law and in fact.
There is no occasion then to 'transfer' the erstwhile recognition to another institution."
17. Petitioners have also placed reliance on a decision dated 25-07-2011 in writ petition No.4305 of 2009 by a Division Bench at Nagpur, wherein it is observed thus -
"Though, there are some affidavits filed on record to sho w that the staff in the ashram school at Kayar have willingly joined their service at the ashram school at Jebapur, we can visualize the circumstances in which the staff must have been forced to shift from the Vidarbha region to the North Maharashtra region due to the transfer of the ashram school from village Kayar in Yavatmal district to village Jebapur in Dhule district.
13. We find that the State was not empowered to transfer the ashram school at village Kayar in Yavatmal district to village Jebapur in Dhule district, specially when the two districts are located in different ::: Downloaded on - 27/11/2013 20:28:53 ::: {18} WP No.3728/2012 regions of the State of Maharashtra. The State of Maharashtra could not have granted permission to the respondent no.3 to run the ashram school at village Jebapur, in place of the ashram school, which was being run since the year 1999 in village Kayar in Yavatmal district. The transfer of the ashram school has been effected by the respondent no.1 by giving a total go bye to the provisions of the Ashram School Code. We find from the communications placed on record that the impugned Government Resolution dated 29.08.2009 was issued by the respondent no.1 in view of political pressure. The State has acted in this case at an electrifying speed so as to grant the ashram school at Kayar in favour of the respondent no.3-Trust, to be run and administered at village Jebapur in Dhule district.
The said Government Resolution is bad in law and is iable to be set aside"
18. Similar is a case in present petition. The petitioners are sought to be transferred from Jalgaon district to Ahmednagar district. On this count as well impugned orders are rendered unsustainable and deserve to be set aside.
19. In view of aforesaid, we allow the writ petitions and quash and set aside Government Resolution dated 02-01-2012 ::: Downloaded on - 27/11/2013 20:28:53 ::: {19} WP No.3728/2012 (Exhibit-E) and orders dated 19-04-2012 (Exhibit-I) issued by the Assistant Commissioner of Social Welfare, Jalgoan and the order 26-04-2012 (Exhibit-J) issued by Assistant Commissioner, Social Welfare, Dhule and dated 06.04.2012 (Exhibit-F) issued by Secretary, Sant Dnyaneshwar Shikshan Sanstha, Islampur, Tq-
Walva, Dist-Sangli and direct the respondents to release salaries of the petitioners regularly with a further direction to issue to them proper absorption orders in the schools, nearer to the closed down and de-recognized school and / or allow them to continue at the places of absorption, according to the position prior to 2nd January, 2012. The respondents are also directed to release salaries of the petitioners for the period from 06-04-2012 to date of decision. Rule is made absolute in aforesaid terms with no order as to costs.
20. Pending civil application, if any stand disposed of.
[SUNIL P.DESHMUKH, J.] [R.M.BORDE, J.]
drp/A13/wp3728-12
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