Madhya Pradesh High Court
Smt. Beena Tiwari vs The State Of Madhya Pradesh Judgement ... on 12 December, 2013
W.A. No.1371/2013
(Smt. Beena Tiwari vs. State of M.P. & Ors.)
12.12.2013
Shri A.P. Shroti, learned counsel for the appellant.
Shri Piyush Dharmadhikari, learned Govt. Advocate for
the respondents/State.
Shri H.K. Upadhyay, learned counsel for the respondent No.6.
The argument of the appellant that the learned Single Judge ought not to have decided the writ petition on 16th September, 2013 for want of assignment though is attractive at the first blush, in our opinion it is an argument of desperation. There is nothing in the impugned order to even remotely indicate that the appellant had raised the objection, when the matter was called out. In absence of objection taken at the earliest opportunity and moreso, allowing the judge to hear the matter by consent as has been noted in the decision, it is too late for the appellant to now complain about the want of assignment and challenge the decision rendered on merits on that basis. It is not as if the matter could not have been proceeded before the Single Judge Bench.
Counsel for the appellant has placed reliance on a recent decision of the apex Court in People's University vs. State of M.P., (2012) 9 SCC 714 and in particular, observation made in para 22 of the decision. That observation will have to be understood in the fact situation of that case wherein it has been found that the matter could have proceeded only before the Division Bench under Article 226 of the Constitution of India.
In the present case, admittedly, the petitioner filed writ petition only under Article 227 of the Constitution of India which could be decided by the Single Judge.
Taking any view of the matter, we are not inclined to entertain this writ appeal on such hypertechnical argument and moreso, when it has been raised for the first time in the form of review petition moved before the same Judge. The fact that the matter was allowed to proceed by consent, has not been disputed and cannot be now disputed in view of that factual position noted in the order of the Court which is a matter of record and binding even on this Court. So long as the said observation remains on record, the appellate court will have to proceed on the assumption that the fact so recorded is correct and indisputable.
Notably, the appellant has not challenged the main order passed in the writ petition as of now and has chosen to challenge only decision in the review petition by way of this writ appeal.
Hence, the writ appeal is dismissed.
(A.M. Khanwilkar) (Krishn Kumar Lahoti)
Chief Justice Judge
ac.