- (1.) THIS is an application for clarification/ modification/variation of an order dated December 5, 1995 passed by a Division bench of this Court in A. P. O. No. 494 of 1995 by which the Division Bench disposed of three different writ applications while hearing the abovementioned appeal preferred against an interlocutory order passed in one of those writ applications.
(2.) THE facts giving rise to disposal of the appeal by the said Division Bench may be summed up thus: (a) One Hindustan Pilkington Glassworks Limited was a tenant under the life Insurance Corporation of India ("lic") and the said tenant-company having gone into liquidation, the official liquidator was appointed over the assets of the company. The official liquidator advertised for sale of assets including the furniture and those were purchased in auction by the Maruti real Estate Pvt. Ltd. (hereinafter referred to as "maruti" ). (b) The LIC filed an application before the Company Court for direction upon the official liquidator to disclaim the tenancy right of Hindustan pilkington Glassworks Limited and the Company Court by an order dated 10th May, 1995 directed the official liquidator to disclaim the tenancy right of the company in liquidation. (c) The LIC, in the meantime, entered into an agreement with Maruti for letting out the part of second floor of the Hindustan Building at 4, chittaranjan Avenue, Kolkata measuring about 10,000 sq. ft. which was in occupation of the company in liquidation at the rate of Rs. 5/- per sq. ft. together with a total lump sum payment of Rs. 10,00,000/ -. (d) After coming to know of such agreement between the LIC and Maruti, three different companies, namely, Brenda Sales Pvt. Ltd. , Manch Vyapar pvt. Ltd. and Singhania Developers Pvt. Ltd. filed three independent writ applications in this Court praying for cancellation of such agreement between the Maruti and LIC on the ground that the LIC being a "state" within the meaning of Article 12 of the Constitution of India could not arbitrarily grant lease in favour of Maruti. (e) The writ application filed by the Brenda Sales Pvt. Ltd. came up for hearing before G. R. Bhattacharya, J. , when His Lordship directed the parties to maintain status quo till disposal of the writ application. Being dissatisfied with the said interlocutory order of status quo, Maruti preferred the appeal being A. P. O. No. 494 of 1995 before the Division Bench of this Court presided over by the then Hon'ble Chief Justice K. C. Agarwal. (f) Although, the said appeal was preferred by Maruti in connection with the interim order passed in one of the three writ applications, the Division bench directed that the two other writ applications viz. , the one filed by singhania Developers Pvt. Ltd. and Manch Vyapar Pvt. Ltd. should also be heard along with pending appeal filed in connection with the writ application filed at the instance of Brenda Sales Pvt. Ltd. (g) Consequently, all the matters were taken up by the Division Bench consisting the Hon'ble Chief Justice K. C. Agarwal and Hon'ble Justice Sujit kumar Sinha and by the order dated December 5, 1995, the Division Bench disposed of the said appeal by directing the LIC to hold an auction for letting out the said 10,000 sq. ft. of area on the second floor of 4, Chittaranjan avenue, Kolkata among the parties and to enter into the agreement with the highest bidder. (h) Being dissatisfied with the said order dated December 5, 1995, Maruti preferred a special leave petition being S. L. P. (C) No. 4064 of 1996 before the Supreme Court of India but the said special leave application was withdrawn on September 20, 1996 by Maruti on the alleged ground that a review application was pending against the order under challenge in the high Court and consequently, the special leave application was disposed of by recording such fact. In fact, however, no review application was pending at that point of time. (i) Thereafter, the LIC filed an application being G. A. No. 421 of 1997 with a prayer for modification and/or variation and/or clarification of the order dated December 5, 1995 in exercise of inherent power on various grounds pointed out in details in the said application. (j) The said application came up for hearing before the Division Bench consisting of Hon'ble Justice Ruma Pal (as Pal, J. then was) and Hon'ble justice Sujit Kumar Sinha on April 11, 1997 when Their Lordships were pleased to allow such application by directing that public auction should be held after giving advertisement in three newspapers mentioned in the order and the auction should be conducted by the Registrar, Original Side of the high Court wherein the appearing parties would also be entitled to participate and that the effect of the successful bid will be given subject to confirmation by this Court. Maruti, however, filed two special leave applications being S. L. P. (C) No. 15325-26 of 1997 challenging the orders dated 5th December, 1995 and 11th April, 1997 before the Supreme Court of india which were taken up along with a separate special leave application being S. L. P. (C) No. 17394 of 1997 filed by Brenda Sales Pvt. Ltd. against the order dated 11th April, 1997 on 28th January, 1998. The Supreme Court disposed of the special leave applications filed by Maruti by holding that the earlier special leave petition filed by Maruti was disposed of on wrong information given to the Supreme Court of India that the review application was pending against the order dated 5th December, 1995. The Supreme Court of India dismissed both the special leave petitions upon consideration of the submission made by the LIC that it had decided to utilize the premises for themselves. The moment the Apex Court dismissed the two applications for special leave filed by the Maruti, the Brenda Sales Pvt. Ltd. decided to withdraw their application for special leave against order dated April 11, 1997 and the said application was dismissed as withdrawn. (k) On 19th February, 2004, a Division Bench consisting of D. K. Seth and R. N. Sinha, JJ. recalled the order dated April 11, 1997 passed by the Division bench presided over by Ruma Pal, J. on the ground that the said order was passed at 4 p. m. under the heading "to be mentioned" and the parties did not get opportunity of filing affidavit and consequently, directed that the application which was allowed on April 11, 1997 should be re-heard along with an application for contempt already filed alleging violation of the order dated December 5, 1995. The attention of the Division Bench presided over by D. K. Seth, J. , as it appears from the order, was not drawn to the fact that the order dated April 11, 1997 passed by the Division Bench had been appealed against by the two of the parties and the Apex Court rejected one of such application on merit and the other application filed by Brenda Sales pvt. Ltd. had been withdrawn long back on January 28, 1998.
(3.) CONSEQUENTLY, the application for review of the order dated December 5, 1995, which was once allowed and not interfered with by the Apex Court in the special Leave Application, has come up before this Bench for fresh hearing.;