Delhi Development Authority vs M/S Marble Point & Ors.
2012 Latest Caselaw 3946 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Decision: 6.07.2012

+       Review Application No. 354/2008 in LPA No.417/2007

Delhi Development Authority                           ...     Appellant

                                       versus
M/s Marble Point & Ors.                               ...     Respondents

Mr.Jayant Bhushan, Sr. Advocate                       ...   Applicant

Advocates who appeared in this case:

For the Appellant :Mr. Mr.Rajiv Bansal Advocate.

For Respondent           : Mr. B.S.Mann Advocate

For Applicant            : Mr.Shanti Bhushan Sr. Advocate with
                           Mr.Manish Bishnoi Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

ANIL KUMAR, J.

*

1. This order shall dispose of the application of Shri Jayant

Bhushan Sr. Advocate against the order dated 20th August, 2008

disposing of the Letters Patent Appeal of the appellant and seeking

review/recall of order by which order this court had also observed

without referring the matter to Bar Council for appropriate action

against applicant and without imposing any penalty or punishment that

in all fairness, the applicant should not have appeared on behalf of the

writ petitioners/respondents in the LPA as he had appeared on behalf of

DDA/Appellant in the earlier writ petition filed by the same writ

petitioners in respect of allotment of alternative sites to them in Marble

Market Papankala under the Scheme of Rehabilitation of Marble

Traders who had been removed from the place of their business.

2. The factual matrix leading to this present application is detailed

hereinafter. The respondents in the present LPA were carrying on the

business of marble trading at Mehrauli- Badarpur Road since 1988.

They were removed from their respective sites on 14th February, 1995

by the appellant/Delhi Development Authority on the ground that they

were encroachers on public property. Subsequently, on 26th March,

1996, pursuant to the orders passed by the Supreme Court in M.C.

Mehta v. U.O.I & Ors., 94 marble traders operating from the same

locality were removed by the appellant. These 94 traders who were

removed pursuant to the orders of the Supreme Court were allotted

alternate sites by the appellant under the Scheme of Rehabilitation of

Marble Traders in Pappankalan, however, the respondents herein were

denied allotment.

3. The respondents preferred a writ petition being WP(C) 1674/1997

(earlier writ petition) seeking a writ of mandamus to DDA to allot

alternate shops or sites to them on the terms and conditions as

applicable to the other 94 persons who had been found to be eligible for

allotment of sites. The prayer clause (in WP(C) No. 1674/1997) filed by

the respondents was as follows -

"(a) Issue a writ of mandamus commanding the respondent to allot the alternative shop/plot to the petitioners on the terms and conditions as applicable to the other equally placed 94 persons alleged to be eligible for allotment by the DDA in the marble market at Papankala under the Scheme of Rehabilitation of the Marble traders removed/uprooted from Central South Ridge, Mehrauli- Badarpur Road in the scheme framed by the respondents and published in the Hindustan Times dated 7.3.1997."

4. The earlier writ petition filed by the respondents was contested by

the Delhi Development Authority and a counter affidavit dated 13th

April, 1998 of the Director (CL) was filed by the applicant, Shri Jayant

Bhushan Advocate. The writ petition was contested by the applicant on

behalf of Delhi Development Authority contending interalia that the

respondents are not entitled for allotment of alternative sites at the

reserved price. The relevant portion of the affidavit filed on behalf of

the DDA through the counsel/applicant is as under:

"10. It is submitted that the petitioners, who are rank encroachers cannot take advantage of their own wrongs and claim allotment of alternative plots in view of their unauthorized encroachments. In any case, the petitioners cannot be equated with those who were removed after 26.3.1996 in pursuance of the directions of the Hon'ble Supreme Court and therefore, are not entitled to alternative allotment at reserved price."

In the writ petition, the plea of allotment at reserved price was

contested by the Delhi Development Authority through its Counsel, Shri

Jayant Bhushan Advocate/applicant.

5. The said writ petition was, however, disposed of by an order dated

2nd April, 2003, the relevant portion of which is as follows -

"In view of the aforesaid, it is directed that the petitioners should make application on the proper format used to make the application by those 94 persons and cases of the petitioners shall be considered on pari materia basis within a maximum period of three months from today. It is made clear that only those of the petitioners, who fulfill the said parameters and eligibility criteria would be entitled to the alternative allotment. The writ petition is disposed of with the aforesaid directions."

6. Pursuant to the above said directions, the appellant/DDA

constituted a committee to look into the matter of the entitlements of

the respondents for alternate allotment, which committee submitted a

report before the competent authority on 21st October, 2004

recommending allotment of the alternative plots to the respondents. The

said recommendation was also approved by the Lt. Governor.

Thereafter, the appellants vide letter dated 12th July, 2006 asked the

respondents to deposit a sum of Rs.33,47,663/- as the initial amount

constituting 35% of the premium of the alternative plot within 60 days

of the issuance of the letter.

7. Aggrieved by the said letter the respondents preferred a writ

petition being WP(C) No. 12038-47/2006 seeking a writ of certiorari to

quash the letter dated 12th July, 2006 issued by the appellant to the

extent that it raised a demand for the alternative plots allotted to the

respondents at the rate of Rs.38,259/- per sq. m, on the ground that

the 94 marble traders who were similarly placed as the respondents

were allotted similar plots for Rs.5200/- per sq. m. in 1997.

8. By an order dated 6th February, 2006 the learned single Judge

quashed the demand letter dated 12th July, 2006 and held that the

respondents were entitled to the allotment and the grant of leasehold

rights @ Rs.5200/- per sq. m. By a subsequent order dated 21st

February, 2006 the learned Judge had also directed the appellant to

conduct draw of lots and to allot plots to the respondents within 8

weeks.

9. The appellant had impugned these two orders dated 6th

February, 2006 and 21st February, 2006 in the present appeal. A

Division Bench of this court by judgment dated 20th August, 2008 had

dismissed the appeal. While pronouncing the judgment, it had come to

the notice of the Court that Shri Jayant Bhushan, Senior Advocate who

had been appearing for the respondents had filed an affidavit on behalf

of the DDA/appellant in WP(C) No. 1674/1997, earlier writ petition. As

mentioned before the said writ petition had been filed by the

respondents herein against the DDA/appellant herein, seeking a writ of

mandamus to DDA to allot alternate shops or sites to them on the

terms and conditions as applicable to the other 94 marble traders who

had been found to be eligible for allotment of sites. The DDA had

contested the allotment of alternative plots at reserve price to the

respondents through the applicant.

10. This had prompted the Hon‟ble judges to record a separate order,

along with the judgment dated 20th August, 2008, remarking

"In our view, in all fairness, Mr. Jayant Bhusan should not have appeared on behalf of the respondents in this case especially when Mr. B. S. Mann claims that the factum of his having filed an affidavit on behalf of DDA had been brought to his notice."

It is this above mentioned observation in the order dated 20th

August, 2008 that the applicant wants recalled/reviewed.

11. The applicant has sought review/recall of the order, on the

ground that the two writ petitions were different as the LPA that was

being heard by the Division Bench was against order passed in WP(C)

No. 12038-47, whereas the applicant had appeared for the

appellant/DDA in a totally different writ petition, being WP(C) No.

1674/97 titled as M/s Marble Point & ors. Vs Lt. Governor & Delhi

Development Authority

12. It had been contended by the applicant that the issues involved in

the two writ petitions were totally different. According to the applicant,

the earlier writ petition was concerned with the entitlement of the

respondents for allotment of alternative plots whereas the second writ

petition was concerned with the rate at which the alternative plot was

allotted to the respondents. The applicant alleged that there were no

rules which prevented a counsel from appearing for opposite parties in

different litigations. It has been asserted by the applicant that the Rule

33 of the Standards of Professional Conduct and Etiquette framed by

the Bar Council of India is applicable only when an advocate appears in

the very same suit or appeal for opposite parties, in which suit or

appeal the counsel had drawn pleadings or acted for the different party.

It has also been contended that none of the parties had objected to his

appearing on behalf of the respondents in the present Letters Patent

Appeal though he had been contesting the plea of respondents to allot

them alternative plots at reserve price in the earlier writ petition on

behalf of Delhi Development Authority which writ petition was filed by

the respondents. According to applicant since no party was aggrieved by

the appearance of the applicant, there was no occasion for the Court to

consider the propriety of the applicant appearing in the matter on

behalf of the respondents though he had appeared on behalf of

appellant/Delhi Development Authority in the earlier writ petition

contesting the plea of respondents for allotment of alternative plot at

reserve price.

13. The learned counsel has relied on (2005) 12 SCC 238, Krishna

Kumar Mittal Vs Parameshwar Dayal Gupta. The counsel for the

applicant has contended that in this case a lawyer had appeared in the

same case for opposite parties. The bar Council had exonerated him of

professional misconduct and the Supreme Court had also concurred

with the view of bar Council and therefore the remarks about the

petitioner should be expunged.

14. The Counsel for the applicant has vehemently argued that it is a

basic principle of justice that no adverse order should be passed against

a party without hearing him. It is contended that before deprecating the

conduct of the applicant, he ought to have been heard by the Court.

Reliance was placed on 2009 (1) SCALE 745, Asit Kumar Kar Vs State

of West Bangal. The learned counsel for the applicant has also

contended that as a general principle for the proper administration of

justice, derogatory remarks ought not to be made against counsel or

against a person whose conduct comes into consideration, unless it is

absolutely necessary. The learned counsel has referred to AIR 1990 SC

1737, A.M.Mathur Vs Pramod Kumar Gupta. The learned counsel for

the applicant has also relied on AIR 1964 SC 703, The State of Utter

Pradesh Vs Mohammad Naim.

15. The application is contested by the DDA/non-applicant

contending that the issue in both the writ petitions is inextricably inter-

linked and overlapping to a large extent, if not the same. Relying on the

prayer clauses of both the writ petitions it has been averred that the

issue in the first writ petition was whether the respondents were

entitled to allotment of alternative plot and the price at which the

allotment was to be made and the issue in the second writ petition was

whether the respondents would be entitled to allotment at pre-

determined price at which the allotment had been made to the other 94

marble traders. The non applicant/ Delhi Development Authority has

also contended that the Court, in order dated 20th August, 2008, was

merely expressing an opinion, which cannot be construed as castigating

or chastising the applicant and therefore, there was no requirement to

give notice to the applicant before recording the said observation.

The prayer clause in WP(C) No. 1674/1997, earlier writ petition is as follows: -

"(a) Issue a writ of mandamus commanding the respondent to allot the alternative shop/plot to the petitioners on the terms and conditions as applicable to the other equally placed 94 persons alleged to be eligible for allotment by the DDA in the marble market at Papankala under the Scheme of Rehabilitation of the Marble traders removed/uprooted from Central South Ridge, Mehrauli- Badarpur Road in the scheme framed by the respondents and published in the Hindustan Times dated 7.3.1997"

Whereas the prayer clause in WP(C) No. 12038-47/2006, subsequent writ petition is as follows -

"A. Issue an appropriate writ(s), order(s) or direction(s) in the nature of the certiorari quashing/setting aside letter dated 12.7.2006 (Annexure P-1 colectively) issued by the respondent to the petitioners to the extent of demand of the cost of the alternative plots @ Rs.38,259/- (Provisional)per sq. mtr. In respect of the alternative plots for which the

petitioners have been found to be eligible on the same parameters and criteria at which allotment has already been made to the other traders in lieu of the removal of the respective marble shops of the petitioners by the respondent.

B. Issue an appropriate writ(s), order(s) or direction(s) in the nature of mandamus, directing the respondent to allot the alternative plots measuring 250 sq. mtr. to each of the petitioners in Sector 20 Dwarka at the same pre- determined rate @ Rs.5200/- per sq. mtr at which the allotment has been made to other similarly situated traders."

16. The learned counsel for the DDA has relied on (1983) 4 SCC 255,

Chandra Shekahr Soni Vs Bar Council of Rajasthan and ors.; (2004) 10

SCC 148, Dayashankar Vs O.T.Aldons; (2002) 1 SCC 100, Roshan Deen

Vs Preeti Lal in support of the contention of the Delhi Development

Authority that the remarks made against the counsel/applicant who

had earlier been representing appellant /DDA and later on he appeared

on behalf of the private respondent are not liable to be expunged as has

been sought by him.

17. The learned counsel for the appellant/DDA has also contended

that the observation made against the applicant is not liable to be

expunged on the ground that no notice was given to him. He has

contended that though notice was not given to him, however, pursuant

to the application of the applicant, he has been heard and he has not

been able to justify that the two matters were not substantially

different. Rather the cause of action of two matters in which the

applicant had appeared, first for DDA and thereafter for private

respondents was substantially the same. The applicant despite being

cautioned about it by the briefing counsel had appeared for the opposite

party and he has not been able to justify his misconduct. In the

circumstances, it is contended that the applicant is not entitled for

review/recall of observations made against him and observations made

against the applicant should not be expunged by this Court. The

learned counsel for the appellant/DDA has also relied on (2009) 8 SCC

106, R.K.Anand Vs Registrar, Delhi High Court.

18. This Court has heard the learned counsel for the parties. On

perusal of the above extracted prayer clauses, it is apparent that the

issues in the two writ petitions cannot be said to be different as claimed

by the applicant. In WP(C) No. 1674/1997 the respondents herein had

not sought allotment of alternative plots, but had also sought allotment

on the same terms and conditions as had been applicable to the other

94 marble traders who had been allotted alternative sites by the

appellant/DDA. The Delhi Development Authority through the applicant

had contested the pleas of the respondents and had contended that the

respondents are not entitled for allotment of alternative plots at reserve

price. The issue agitated by the respondents in WP(C) No. 12038-

47/2006, the petition out of which the present appeal arose, was that

they had been allotted alternative plots at a rate much higher than the

rates at which alternative plots were allotted to the other 94 marble

traders. It is evident that the matter agitated in the second writ petition

was also substantially in issue in the first writ petition, rather the issue

of price was the same in both the writ petitions filed by the

respondents.

19. From the record it is apparent that in the earlier writ petition

which was filed by the private respondents, the applicant was the

counsel for DDA and he had settled the counter affidavit dated 13th

April, 1998. In the said counter affidavit in para 10 it was categorically

asserted that the private respondents are not entitled to alternative

allotment at reserve price. Thus, the issue in earlier writ petition was

also whether the private respondents were entitled to allotment of

alternative plot at reserve price or not. After the alternative allotment

was made to private respondents, the dispute again had arisen whether

the private respondents were liable to pay the rate at which alternative

plots were allotted to them or they were liable to pay reserve price only,

as was claimed from other marble dealers. In the circumstances the

plea of the applicant that the subsequent writ petition filed by private

respondents was entirely different from the first writ petition which was

filed by them, cannot be accepted in the present facts and

circumstances.

20. Perusal of the precedents relied on by the learned counsel for the

applicant shows that they are apparently distinguishable. In Krishna

Kumar Mittal (supra) an advocate after a number of years had appeared

in the same litigation of the same property for the opposite party and

consequently a complaint for professional misconduct for changing

sides was filed. The advocate had withdrawn on behalf of opposite party

as soon as it was pointed out by the complainant and consequently the

bar Council had exonerated the advocate from the charges of

professional misconduct. The Supreme Court also did not interfere with

the decision of the Bar Council in the facts and circumstances. However

in the present case review applicant, even after it was brought to his

notice that he was the counsel for the DDA and had opposed the pleas

of the respondents for allotment of alternative plots at reserve price,

insisted on appearing for the private respondents on the plea that

earlier writ petition was different. The applicant persisted that he can

represent the opposite party/private respondents on the tenuous

ground that the matter pertains to different aspect of the same subject

matter. In the review/recall application also the applicant has not

shown any remorse or has sought indulgence of this Court. In the

circumstances, the applicant cannot rely on the ratio of the Krishna

Kumar Mittal (supra) where the counsel on realizing his mistake

immediately had withdrawn and had stopped representing the opposite

party. In the said case counsel had appeared on behalf of the opposite

party after considerable time in contradistinction to the present case,

where the briefing counsel of the respondents had even brought it to the

notice of the applicant.

21. The Supreme Court in Asit Kuamr Kar (supra) relied on by the

applicant had held that there is a distinction between a petition under

article 32, a review petition and a recall petition. It was held that while

in a review petition the court considers on merits whether there is an

error apparent on the face of the record, in a recall petition the Court

does not go into the merits but simply recalls the order which is passed

without giving an opportunity of hearing to an affected party. In this

case the order passed cancelling the licenses of various persons without

giving any opportunity to them, was recalled. However, in the present

case on an application by the applicant, his counsel has been heard

extensively on various dates. In the circumstances on the basis of the

ratio of the said case, the observation made by this Court on 20th

August, 2008 against the applicant are not liable to be recalled nor the

said order is liable for review as has been sought by the applicant in the

facts and circumstances and a futile attempt has been made by the

applicant to contend that the subject matter of two cases had been

entirely different.

22. In A.M.Mathur (supra) relied on by the applicant, the Court while

dismissing a review petition had observed that Advocate General of the

state did not act honestly and bona fide in briefing the then Chief

Minister. It was also remarked that he did not act befitting his status

and he did not had the courage to face the situation in the Court. It was

held that since the High Court had no jurisdiction to entertain the

review petition, the judge ought not to have commented on the

professional conduct of the advocate general and that too without an

opportunity to him. It was further observed that judicial restraint and

discipline are necessary for orderly administration of justice and this

should be the constant theme of judges. With these observations the

remarks against the Advocate General were expunged. However, in the

instant case the Court had made observation against the

counsel/applicant while disposing of the Letters Patent Appeal. It

cannot be contended by the applicant that the Court was not competent

to decide the Letter Patent Appeal in contradistinction to the case relied

on by the applicant in which remarks were made against the Advocate

General in a review petition which could not be entertained. If the Court

has observed the breach of a Rule, the applicant cannot contend that

the Court ought not to have mentioned about it.

23. While disposing of a criminal appeal, sweeping and general

observations were made against the entire police force though the case

related to only one police officer, in AIR 1964 SC 703, The State of Utter

Pradesh Vs Mohammad Naim. In the said case it was held that it is

judicially recognized that in the matter of making disparaging remarks

against the persons or authorities whose conduct comes into

consideration before Courts of law, in cases to be decided by them, it is

relevant to consider (a) whether the party whose conduct is in question

is before the Court and he has an opportunity of explaining or

defending himself; (b) whether there is evidence on record bearing on

the conduct justifying the remarks; and (c) whether it is necessary for

the decision of the case, as an integral part thereof, to comment or

observe on that conduct. It was also held that judicial pronouncement

must be judicial in nature and should not normally depart from

sobriety, moderation and reserve. The applicant was before the Court

and had appeared on behalf of private respondents on 18th September,

2007; 24.3.2008; 28.7.2008; 6.8.2008. On 11.8.2008 the applicant

again argued the matter on behalf of the private respondents and after

hearing him the order was reserved in the matter. Therefore, it cannot

be held that the applicant was not before the Court. Thereafter, orders

were pronounced on 20th August, 2008 and the observation which is

impugned by the applicant, was also made on the same date. There has

been breach of Rule 33 of Standards of Professional Conduct and

Etiquette framed by Bar Council of India which is as under:

"Rule 33: An advocate who has, at any time advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings or acted for a party, shall not act, appear or plead for the opposite party."

In the circumstances of the present case it was necessary for the

Court to observe about the breach of Rule by the counsel for the

respondents, present applicant. The case of the applicant in the facts

and circumstances is conspicuously distinguishable from the case

relied on by the applicant.

24. The ratio of any decision must be understood in the background

of the facts of that case. What is of the essence in a decision is its ratio

and not every observation found therein nor what logically follows from

the various observations made in it. It must be remembered that a

decision is only an authority for what it actually decides. It is well

settled that a little difference in facts or additional facts may make a lot

of difference in the precedential value of a decision. The ratio of one

case cannot be mechanically applied to another case without having

regard to the fact situation and circumstances in two cases. The

Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v.

N.R.Vairamani and Anr. (AIR 2004 SC 778) had held that a decision

cannot be relied on without considering the factual situation. In the

judgment the Supreme Court had observed:-

"Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain

and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

25. An advocate who switches sides, commits professional

misconduct. Taking money from the client, for bribing an official also

tantamount to professional misconduct. While dealing with the case of a

junior lawyer, the Supreme Court had declined to interfere with the

punishment awarded by the State bar Council and affirmed by the bar

Council of India in Chandra Shekahr Soni Vs Bar Council of Rajasthan

and ors. (1983) 4 SCC 255. However considering that the advocate was

a junior lawyer his suspension, from three years was reduced to one

year. The applicant is not a junior lawyer. No disciplinary proceedings

have been initiated against the applicant nor any punishment has been

awarded to him. The applicant will be entitled for notice in case any

disciplinary proceedings are initiated against him by the Bar Council, in

case any complaint is filed by the appellant. However, he cannot

contend that in view of his conduct, this Court could not make

observations about him. If the applicant was of the opinion that

subsequent proceedings initiated by private respondents were different

and distinct, the least the applicant could do in the facts and

circumstances, was to file an appropriate application seeking

indulgence of the Court and clarification to allow him to appear on

behalf of private respondents, as in the earlier writ petition pertaining

to same alternative allotment of plots and their reserve price, he had

been appearing on behalf of DDA and had been contesting allotment at

reserve price. In the first writ petition he contended before the Court

that the alternative plots could not be allotted at reserve price, whereas

in the present appeal his stand on behalf of the opposite parties is that

the alternative plots should be allotted at reserve price which was

charged from other marble dealers.

26. In (2004) 10 SCC 148, Dayashankar Vs O.T.Aldons, relied on by

the counsel for DDA, an advocate appeared in a suit on behalf of Mrs.

Theresa Brown where plaintiff‟s son Mr. Rozar was a defendant and no

relief was claimed against him. In a subsequent suit he appeared on

behalf of Mr. Rozer Brown and his mother Mrs. Theresa Brown. The

earlier suit was withdrawn where no relief had been claimed against Mr.

Rozer Brown. Disciplinary Authority, however, found the advocate guilty

of professional misconduct but let him off with reprimand. Against the

decision of Bar Council, it was held by the Supreme Court that it was

not proper for the advocate to have filed a second suit, after having filed

the first suit on behalf of the mother in which the plaintiff of the second

suit was a defendant himself. It was held that the Advocate‟s conduct

was improper.

27. The Supreme Court had suo motu directed the initiation of an

enquiry against an advocate where allegations of fraud and cheating

had been made against the advocate by a severely injured workman

who had sought compensation under Workman's Compensation Act in

(2002) 1 SCC 100, Roshan Deen Vs Preeti Lal.

28. From the perusal of the application seeking review/recall of the

remarks, it is apparent that the briefing counsel for the private

respondents Sh.Maan had pointed out to the applicant that the counter

affidavit was filed by him on behalf of DDA in the earlier writ petition

No.1674/1997. The plea of the applicant that he considered the matter

and as in his opinion the litigation was different and the orders were

different in the two cases, he accepted the brief and appeared on behalf

of private respondents though in the earlier writ petition he had

appeared on behalf of Delhi Development Authority where the issue

involved was not only about the entitlement to the alternative plot but

also whether the private respondents were entitled for allotment of

reserve price which is apparent from the counter affidavit which is

settled by the applicant in the earlier writ petition dated 18th April,

1998. The conduct of the applicant is in apparent breach of Rule 33 of

the Standards of Professional Conduct and Ethics framed by the Bar

Council of India. The said rule contemplates that if an advocate has at

any time in connection with the matter has drawn pleadings or pleaded

for a particular party, he shall not appear or plead for the opposite

party. The applicant advised DDA about the alleged claim of the private

respondents not only about the entitlement of alternative allotment but

whether they are entitled for alternative plot at the reserve price or not.

After drawing affidavit on behalf of Delhi Development Authority and

appearing on behalf of the said organization and pleading their case

against the private respondents, the applicant could not have appeared

on behalf of private respondents to contend that they are entitled for

allotment of alternative plots at reserve price. The contention of the

applicant that Rule is applicable only when an advocate appears in the

very same suit or appeal for one side in the facts and circumstances

cannot be accepted nor this Court is bound by such an opinion of the

applicant which is ex-facie not acceptable and is an attempt by the

applicant about his lapse. The act of the applicant is in apparent

violation of Rule 33 and in the circumstances while deciding the Letters

Patent Appeal filed by the Delhi Development Authority, if the

observation had been made by the Court that in all fairness the

applicant should not have appeared on behalf of respondents especially

when the briefing counsel had brought to his notice that he had filed

the affidavit on behalf of DDA, the observation of the Court cannot be

termed to be unwarranted nor it is liable to be reviewed or recalled in

the present facts and circumstances.

29. The plea of the applicant that he was not heard before the

observation was made by the Court will also be not sufficient in the

facts and circumstances to expunge the observation dated 20th August,

2008 made by this Court. Pursuant to the application for recalling the

order the applicant has been heard at length and there are no grounds

to recall or review the said order.

30. In the totality of facts and circumstances, therefore, there are no

grounds to recall/review the observations made by this Court on 20th

August, 2008. The application of the applicant seeking recall/review is

without any merit and it is, therefore, dismissed.

ANIL KUMAR J.

July 6, 2012.

„vk‟

VEENA BIRBAL, J.

I agree with the conclusion of my learned brother Hon‟ble

Mr.Justice Anil Kumar in dismissal of review application as no ground

for review/recall is made out.

The record shows that the applicant had appeared in the appeal

on behalf of the respondents number of times and the appellant/DDA

had never raised any objection on his appearance. Even in reply to the

review application, no explanation has been given by the appellant as to

why objection was not raised.

In any view of the matter, it is clarified that remarks made in the

order dated 20.8.2008 for which review has been sought will not

prejudice the applicant in any manner.

VEENA BIRBAL, J.

July 6, 2012 ssb