Manaj Tollway Pvt. Ltd. v. State of Maharashtra

(c) make the following incidental and consequential provisions which appear to me to be necessary or desirable for giving effect to the objects of this Proclamation, namely:—

(i) in exercise of the functions and powers assumed to myself by virtue of clause (a) of this Proclamation as aforesaid, it shall be lawful for me as President of India to act to such extent as I think fit through the Governor of the said State;

(ii) the operation of the following provisions of the Constitution in relation to that State is hereby suspended, namely:— so much of the proviso to article 3 as relates to the reference by the President to the Legislature of the State; so much of clause (2) of article 151 as relates to the laying, before the Legislature of the State, of the reports submitted to the Governor by the Comptroller and Auditor-General of India; articles 163 and 164; so much of clause (3) of article 166 as relates to the allocation among the Ministers of the business of the Government of the State; article 167; so much of clause (1) of article 169 as relates to the passing of a resolution by the Legislative Assembly of a State; clause (1), and sub-clause (a) of clause (2), of article 174; articles 175 to 177 (both inclusive); clause (c) of article 179 and first proviso to that article; article 181, clause (c) of article 183 and the proviso to that article; articles 185, 188, 189, 193 and 194; articles 196 to 198 (both inclusive), clauses (3) and (4) of article 199; articles 200 and 201; articles 208 to 211 (both inclusive); the proviso to clause (1) and the proviso to clause (3) of article 213; and so much of clause (2) of article 323 as relates to the laying of the report with a memorandum before the Legislature of the State;

(iii) any reference in the Constitution to the Governor shall, in relation to the said State, be construed as a reference to the President, and any reference therein to the Legislature of the State or the Houses thereof shall, in so far as it relates to the functions and powers thereof, be construed, unless the context otherwise requires, as a reference to the Parliament, and, in particular, the references in article 213 to the Governor and to the Legislature of the State, shall be construed as references to the President and to Parliament or to the Houses thereof respectively: Provided that nothing herein shall affect the provisions of article 153, articles 155 to 159 (both inclusive), article 299 and article 361 and paragraphs 1 to 4 (both inclusive) of the Second Schedule, or prevent the President from acting under sub-clause (i) of this clause to such extent as he thinks fit through the Governor of the said State;

(iv) any reference in the Constitution to Acts or laws of, or made by, the Legislature of the said State shall be construed as including a reference to Acts or laws made, in exercise of the powers of the Legislature of the said State, by Parliament by virtue of this Proclamation, or by the President or other authority referred to in sub-clause (a) of clause (1) of article 357 of the Constitution, and the Bombay General Clauses Act, 1904 (Bombay Act 1 of 1904) as in force in the State of Maharashtra, and so much of the General Clauses Act, 1897 (10 of 1897), as applies to State laws, shall have effect in relation to any such Act or law as if it were an Act of the Legislature of the said State. New Delhi; The 12th November, 2019.

13. During the subsistence of the President's rule, that is on 18 November 2019, a note was initiated by the PWD department prepared by the desk officer. On a reading of the said note it is quite clear that it pertains to settlement of the disputes between the parties, being subject matter of the arbitration and the consequent award. The said note was endorsed in approval, by several officers of the State Government in their respective hierarchy, namely the Under Secretary; the Deputy Secretary; Secretary (Roads) who endorsing the same requested for an order in terms of the marked portion “X” (“{k”) of the note, which was further endorsed in approval by the Additional Chief Secretary (PWD); the Chief Secretary to the Government on 20 November 2019 and finally by the Hon’ble Governor on 22 November 2019. It is necessary to note the contents of this note, which reads thus: “[official Translation of a copy of Note, printed in Marathi.] P.W.D./Roads – 9A Subject:- Quadruplicating (four laning) of National Highway NO. 64 from 9.800 Km to 49.860 Km at “Hadapsar – Saswad – Belsarphata and National Highway No. 61 from 110.000 Km to 118.000 Km at Belha – Pabal – Urulikanchan on “Build, operate and transfer” basis under privatization. Regarding getting permission for carrying out negotiations with the Entrepreneur (Contractor) in view of the Awards issued by the Arbitrator in the projects under privatization. Submitted, 2] The work of the road mentioned under subject, has been assigned to the Entrepreneur (Contractor) on ‘Build, operate and transfer’ basis and the said Entrepreneur (Contractor) has completed the road widening work of the length of 24.[6] Km. from out of 41.06 Km. with soil work and has completed the work of the length of 16 Km from out of the same with graveling and asphaltation. The Hon’ble High Court, Mumbai, by it’s order dated 24/08/2017, appointed Shri. J. A. Patil, Former Judge (Retired) as single Arbitrator, for the suits filed by the said Entrepreneur (Contractor) in connection with the said project. The said Arbitrator passed Award on the date 17/08/2018. (modified on the date 21/09/2018) giving decision therein to pay to the said Entrepreneur (Contractor), the amount of Rs. 332,66,39,870/- and the interest thereon at the rate of 15%. In view of the Award passed by the Arbitrator in the present matter, the Entrepreneur (Contractor), under his letter dated 26/11/2018, has requested to dispose of the matter by having negotiations. 3] On taking advice of the Government Pleader in respect of amicable settlement in another matter (Chandrapur – Warora) going on under privatization, he has mentioned as under. As regards arriving at amicable settlement with the Entrepreneur (Contractor) in the matter of another project,(Chandrapur – Warora) in view of the decision given by the Arbitrator, the opinion obtained from Assistant Government Pleader, Chandrapur is as under:- “It would be any time convenient to arrive at amicable settlement in the said matter. Because, after the Appeal is preferred, there is no guarantee that the said matter is decided in our favour. Moreover, it cannot also be said as to exactly when the appeal would be decided and as a result, excessive interest would be required to be paid on the amount payable in the said Arbitration matter, which would be quite a huge amount and therefore, it is always better to arrive at settlement. (Page No. 1855/Pa.Vi.) Therefore, with a view to dispose of the matter as per the request of the Entrepreneur (Contractor), by paying interest (at the rate of 12 percent per annum) to the Entrepreneur (Contractor) at the rate at which he is ordinarily getting loan from Bank, the proposal was submitted to the Finance Department for approval and the Finance Department has given the following opinion thereon. The advice of the Law and Judiciary Department should be taken as to whether it is useful to prefer an appeal against the Award of the Arbitrator and if it is decided that it is not appropriate to prefer an appeal then, there is no difficulty to pay the proposed amount by the Public Works Department as per the negotiations.(Page No. 1842/Pa.Vi.) In view of this, when the Law and Judiciary Department was informed to give opinion as to whether the action taken by P.W. Department would be consistent as per the provisions of tender or whether it would be appropriate to prefer an appeal in the Hon'ble District Court against the order of the Arbitrator, the Law and Judiciary Department has given the following opinion in the matter of Chandrapur Warora Project. “The parties cannot appeal against an arbitral award as to its merits and the court cannot interfere in its merits. The Supreme Court has observed “an arbitrator is a Judge appointed by the parties and as such an award passed by him is not to be lightly interfered with.” But this does not mean that there is no check on the arbitrator's conduct in order to assure proper conduct of proceeding, the law allows certain remedies against an award. Section 34 and 37 provide for recourse against an arbitral award which may be set aside by a court on certain specified grounds. The grounds mentioned in section 34/37 entitles the Court to set aside an award only if the parties seeking such relief furnishes proof as regards the existence of the grounds mentioned therein. As mentioned above, section 34 provides for provision on the basis of which an arbitral award can be set aside, and the Public Works Department did not mention the grounds to set aside the arbitration award. Therefore in considered view challenging the award passed in Arbitration Case No. ARB/RGD/172... dated 10th September, 2018 would yield no result” (Pg. No. 1849/pa.vi.)

4) Brief information of the project. Cost Rs. 216.00 Crores Concession period 25 years (together with 2 years construction period) Government Share Rs.62.10 Crores (28.75 percent) Approval of the Central Government’s power delegation body. On the date – 10/09/2010, the construction of two lanes flyover at Phursungi is included afresh in original item. Revised Project Cost Rs. 291.47 Crores. Lowest Cost Tender received. Rs. 358.37 Crores (Approved in the Cabinet Infrastructure Committee meeting dated – 03/08/2011)

5) Difficulties in implementing the project. The original cost of the project was Rs.216 crores and the power delegation body of the Central Government had granted in principle approval on the date – 1/09/2010 and thereafter as the construction work of two lanes railway flyover at Phursungi was included afresh, the cost of the project increased to Rs.291.47 crores and the share of Central Government became Rs. 58.28 Crores. However, as the cost of work approved by the Central Government was increased and as the Tender approval amount finally became Rs.358.37 crores, it refused to give Rs.58.28 crores towards its share and therefore the said amount could not become available. After the Entrepreneur (Contractor) started the said work, some of the farmers from khalad filed the writ petition No.6208/2013 in the Hon'ble High Court,Mumbai and the Hon’ble High Court gave a decision therein, “after completing the procedure as per the Land Acquisition Act and after the entire consideration is given to the affected farmers, the work should be commenced and till then the work which is in progress should be stopped”. Moreover, in pursuance of the said order, even the other persons from Saswad Village filed the writ petition No.10725/2013 in the Hon'ble High Court and obtained stay order for the said work. However, the work could not be completed due to the Land Acquisition procedure and the stay order passed by the Hon'ble High Court as well as due to the protest of Landlords. Mean time, in January 2014, a new Land Acquisition Act came into force and as a result a huge hike in the land acquisition cost of the project was expected.

6) From the date 27.03.2015, the entrepreneur (contractor) has stopped the work by giving a notice of ‘Closure of work’. The Government, in view of completing the work, gave instructions to the entrepreneur (contractor) to complete the work by revising the proposal and cross-section in connection with the available land. However, the entrepreneur (contractor) refused to carry out the work and as per the Tender Clause No. 37.2.1, gave notice of ‘Termination on Government Default’ and made therein a claim of total sum of Rs.358.86 Crores, made up of ‘Termination Payment Claim’ of Rs.189.90 Crores and other claim of Rs. 168.96 Crores from the Department. Further, by the letter dated 17.11.2016, as per the provisions of the Tender Clause No.44.3, he demanded the Government to appoint an Arbitrator, however, when the action at the Government level was in progress, on the date 31.08.2017, he filed in the Honourable High Court a Civil Arbitration Petition (St.) No. 22148/2017. By the Order dated 24.08.2017, the Honourable High Court, Bombay appointed Shri J.A. Patil, Former Judge (Retired) as Single Arbitrator and the said Arbitrator declared his Award on the date 17.08.2018 (Modified on the date 21.09.2018.) [P. 1175- 1283/Pa.Vi.].

7) Thereafter, as per the provisions of Section 34(5) of the Arbitration and Conciliation Act, 2015, the Executive Engineer filed a civil application and preferred an appeal against the said Award before the District Court and the same is pending at present. The application was filed before the District Court to grant a provisional stay to the Award given by the Arbitrator; however, on the date 24.09.2019, the District Court has dismissed the said application. In order to get the amount declared under the Award given by the Arbitrator, the entrepreneur (contractor) had filed an Execution Application before the Honourable High Court, Bombay, and pursuant thereto, on the date 03.08.2019, the Honourable High Court, Bombay has passed a Decree Order and has sealed (attached) the Account NO. 6102002003 of the Stamps and Registration Department of the Government. In order to obtain stay to the said judicial proceeding, Application No.26 was filed before the District Court at Pune on behalf of the Executive Engineer, however, the District Court, by its Order dated 24.09.2019, has dismissed the said application. (P. No. 1784-1800/Pa. Vi.). Thereafter, in order to get a Decree, the entrepreneur (contractor) has once again filed Execution Application No. 310/2019 before the Honourable High Court and hearing thereon is in progress before the Honourable High Court. If the Decree is passed, possibility of the Government’s property getting attached cannot be ruled out. In this matter, in view of the Award passed by the Arbitrator, the Government will have to pay to the entrepreneur (contractor) an amount to the tune of approximately Rs. 12.57 Lacs per day in the form of an interest and the burden thereof is increasing day by day. As of today, the amount to be paid has increased and the same has become Rs.3,81,59,38,918/- at the interest rate of 15 per cent. (P. No. 1811/Pa. Vi.). 8] Proposal of the Department for approval. The Hon’ble Bombay High Court, Mumbai, by it’s order dated 24/08/2017, has appointed Shri. J. A. Patil, Former Judge (Retired) as the Single Arbitrator. The said Arbitrator has passed Award on the date 17/08/2018 and has given decision thereunder, to pay the amount of Rs. 332,66,39,870/- togetherwith interest thereon at the rate of 15%, to the Entrepreneur (Contractor). The Entrepreneur (Contractor), under his letter dated 24/11/2018 (P. No. 1189/Pa.Vi.), has requested to finalize the matter. Therefore, approval may be granted to pay the total sum of Rs. 35879.18 lakhs comprising of the amount of Rs. 332,66,39,870/- as per the order passed by the Arbitrator on the date 17/08/2018 and the amount of Rs. 2612.78 lakhs towards interest at the rate fixed by the R.B.I. Bank for the period from the date 17/08/2018 to 15/11/2019. Permission may be granted to issue memorandum after approval. Sd/- Desk Officer Sd/- Under Secretary (S.L.R 2) Sd/- (D.S.) (S.L.R 2) Sd/- Secretary (Roads) Sd/- Addl.Chief Secretary(P.W.D.) 19/11/19 It is requested to grant approval to 'X' Office of the A.D.S. (P.W.D.) Date: 19/11/... X (“{k”) Sd/- Chief Secretary 20/11/19.

14. The President’s rule came to be revoked by a notification dated 23 November 2019 issued by the Government of India.

15. After the approval to the note dated 18 November 2019 by the Government, a note was prepared by the Desk officer on 25 November 2019, interalia recording that the Government had granted an approval to settle the award claim at Rs. 35879.18 lakhs with interest at RBI rates till 15 November 2019. It be enquired as to whether on the said approved amount, Manaj (Claimant) was ready to accept simple interest at the RBI rate, and if the claimant approves, then draft consent terms (pg. 3-7/p.v.) be granted approval, and if such proposal is approved then, as per letter (at pg. 1/p.v.) be permitted to be issued. Such note was signed in approval by the Under Secretary (PWD), the Deputy Secretary; the Secretary (Roads) and the Additional Chief Secretary (PWD) on 25 November 2019. The note reads thus:- “[ Official Translation of a copy of Notings, printed in Marathi. ]

P. W. D./ Roads – 9 A

Subject: Quadruplicating (four laning) of National Highway No. 64 from 9.800 km to 49.860 km. at Hadapsar – Saswad – Belsarphata The Hon’ble Governor, Sd/- 22/11 Stamp and National Highway No. 61 from 110.000 km. to 118.00 km at Belha – Pabal – Urulikanchan on “Build, Operate and transfer” basis under privatization. In the High Court of Judicature at Bombay, Commercial Execution Application No. 310 of 2019 in Arbitral Award dated 17/08/2018. Submitted in pursuance of the hearing held before the Hon'ble High Court, Mumbai on the date 25/11/2019.

2) The Honourable High Court, Mumbai, by it's order dated 24/08/2017, appointed Shri. J. A. Patil, Former Judge (Retired) as Single Arbitrator, for the suits filed by the said Entrepreneur (Contractor) in connection with the project under subject. The said Arbitrator passed Award on the date 17/08/2018 (modified on the date 21/09/2018) giving decision therein to pay to the said Entrepreneur (Contractor) the amount of Rs. 332,66,39,870/- and the interest thereon at the rate of 15%. In view of the Award passed by the Arbitrator in the present matter, the entrepreneur (Contractor), under his letter dated 24.11.2018, has requested to dispose of the matter by having negotiations.

3) The entrepreneur (Contractor) has filed the Execution Application in the Honourable Bombay High Court for getting the amount of Arbitral Award. The Honourable High Court, Mumbai, has passed the Decree Order on the date 03.08.2019 and has attached the Account No. 6102002003 of Stamps and Registration Department of the Government. Further, Application No. 26 was filed in the Honourable District Court, Pune, through the Executive Engineer, to get the stay order for the said Court proceedings. However, the Honourable District Court, by its Order dated 24.09.2019, has dismissed the said Application. Therefore, the Entrepreneur (Contractor) has once again filed the Execution Application NO. 310/2019 in the Honourable High Court for getting the Decree and in pursuance thereof, the hearing is in progress in the Honourable High Court. In this matter, pursuant to the Award given by the Arbitrator, the Government will be required to pay to the Entrepreneur (Contractor) an amount to the tune of approximately Rs.12.57 Lacs per day in the form of interest and the burden in respect thereof is increasing day-by-day. Thus, as of today, the amount to be paid has increased and has become Rs.3,81,59,38,918/- at the interest rate of 15%. In this connection, in view of the notings made on the previous page, approval to the proposal of an amount to the tune of Rs.35,879.18 Lacs including the interest at R.B.I. Bank Rate (Simple Interest) up the date 15.11.2019 on the Arbitral Amount under the Award dated 17.08.2018 given by the Arbitrator, has been received from the Governor, Maharashtra State. In connection with the said Petition (In the High Court of Judicature at Bombay, Commercial Execution Application No. 310 of 2019 in Arbitral Award dated 17.08.2018), Shri M.P. Vashi, Advocate for Petitioner, has shown willingness to make negotiations in respect of the total amount of Rs.3,81,59,38,918/- being the Arbitral Amount awarded by the Arbitrator and the interest calculated thereon at present i.e. up to the date 15.11.2019 and has sought 7 days time for the same. However, on the amount of Award declared by the Arbitrator, the approval on Government level has been granted for total sum of Rs. 35,879.18 Lacs up to the date 15.11.2019. Therefore, as regards the amount, for which Government Approval is received, the Entrepreneur (Contractor) should be informed as to whether the Entrepreneur (Contractor) is ready to accept the interest on the Award Amount at simple interest, as per R.B.I. Bank Rate as mentioned above and if agreed, it is proposed to inform the Entrepreneur (Contractor) to submit Consent Terms in the Honourable High Court accordingly. The draft of the Consent Terms has been submitted at Page 3-7/ Pa. Vi. for approval. If approved, it will be issued under the letter at Page No. 1/Pa. Vi.. Sd/- Desk Officer, 25.11.19 Sd/- Under Secretary (SLR-2)

25.11 Sd/- Dy. Secretary (SLR-2)

25.11 Sd/- Secretary (Roads) Sd/- Addl. Chief Secretary, 25.11.19 (P.W.D.) 25.11.20

16. In pursuance to the approval of the above note, on 25 November 2019, the Desk Officer addressed a letter to Manaj stating that the Governor of Maharashtra had approved the payment of Rs.35879.18 lakhs (award amount of Rs.332,66,39,870/- and interest thereon at RBI rate till 15 November 2019 at Rs.2612.78 lakhs) in settlement of the award and called upon Manaj to communicate its acceptance thereof, as also furnish consent terms to be presented before the High Court.

17. Manaj by its letter dated 26 November 2019 addressed to the Secretary (Roads), communicated its acceptance to the said settlement. The said letter reads thus: “Ref.No.NGA/MTPL/1966(L)/6414/2019 Dt.26.11.2019 To, The Secretary (Roads), (Public Works Department), State of Maharashtra Madam Kama Road, Hutatma Rajguru Chowk, Mantralaya, Mumbai-400 032. Sirs, Subject: Contract for 'Four Lanning of the Hadapsar Saswad Belsar Phata (SH-64) Km.9/300 to 42/860 and Belha Pabal Urulikanchan Jejuri Neera (SH-61) Km, 220/00 to 118/00 Taluka Purandar, District Pune, between Manaj Tollway Pvt.Ltd. And the Secretary, PWD, State of Maharashtra, Concession Agreement dated 06/07/2012. Ref: Your Letter No._[kk{®Lk 2008/Á.d_117/jLr¢_9v dated 25th Without Prejudice We are in receipt of your captioned letter dated 25th November 2019, informing us of the approval of the Hon.Governor of Maharashtra for payment of the Arbitration Award including interest upto 15/11/2019 amounting to Rs.358,79,18,000/- (Rupees Three Hundred Fifty Eight Crores, Seventy Nine Lakhs, Eighteen Thousand only) and requesting us to submit a draft of the consent terms. Without prejudice to our rights under the Award dated 17th August 2018 and Corrected Award dated 21st September,2018, we accept this lump sum settlement amount of Rs.358,79,18,000/- as on 15/11/2019 which shall accrue interest till date of realization. As desired, please find enclosed a draft of the Consent Terms to be filed in the Hon. High Court of Bombay before 01/12/2019. Yours Truly, For Manaj Tollway Pvt.Ltd. Managing Director Encl: As above.”

18. On 29 November 2019 the State through its Desk Officer (PWD) forwarded to the Government Pleader, the mutually agreed consent terms, to be presented before the High Court within seven days. It was requested that an affidavit be immediately filed before the Court and for filing of such affidavit the Executive Engineer (PWD), South Division, Pune has been so authorised. A similar letter was addressed to the Executive Engineer (PWD), South Division, Pune, recording that two original copies of the consent terms were forwarded, one original consent terms be presented to the Court through Mr.Anil Sakhare, Senior Advocate and another original consent terms to be forwarded to the contractor. This letter also recorded that the Executive Engineer was authorised to present the consent terms and the affidavit before the High Court.

19. In pursuance of the decision of the Governor dated 22 November 2019, the State Government on 12 December 2019 in its Public Works Department issued a “memorandum” notifying the decision of the State Government to pay Manaj in full and final settlement an amount of Rs.35879.18 lakhs inclusive of interest as per the RBI rate upto 15 November 2019. It was informed that the said expenditure is notified as Demand No.H05 interalia under the principal account Head 3054 (Roads and Bridges). The said order was issued in the name of the Governor of Maharashtra.

20. On such backdrop on 12 December 2019 Mr.Anil Sakhare, learned Senior Advocate for the State alongwith the learned Senior Counsel for Manaj tendered before the Court “consent terms” duly signed by the concerned representatives of the parties as also countersigned by their respective Advocates/Assistant Government Pleader. The Court accordingly passed a reasoned order dated 12 December 2019 (supra) accepting the consent terms, which is the subject matter of the review. Case of the State in the Review Petition

21. The following is the case of the petitioner as pleaded in the review petition:-

(i) An approval of the democratically elected Government was not taken when the Consent Terms were executed between the parties on 10 December 2019 to be filed before the High Court, as the President's rule in the State was only between the period 12 November 2019 upto 23 November 2019.

(ii) The persons who signed the consent terms on behalf of the

State of Maharashtra namely Shri Dhananjay Deshpande, Executive Engineer, PWD(South Division), Pune, and the desk officer had no authority in law to execute consent terms on behalf of the State of Maharashtra, in the absence of approval of the democratically elected Government, which came to power on 28 November 2019. That a false impression was given to this Court that the persons who have made signatures on the consent terms on behalf of the State of Maharashtra, had authority in law to execute the consent terms.

(iii) The consent terms were submitted without consultation and approval of the Finance Department which was mandatory under Rules of Business.

(iv) The consent terms have been filed without seeking approval of the Law and Judiciary Department.

(v) The consent terms are against public interest as large amount is sought to be given to Manaj which by itself is against public interest. There would be burden on the public exchequer at the instance of unauthorized persons signing the consent terms.

(vi) That certain developments had taken place on 25 November

(vii) In regard to the approval note as presented before the

Governor, a prayer was made in terms of the marked portion “X” (“{k”) in vernacular). The Governor did not grant such prayers while making his signature, construed as an absolute approval.

(viii) Further there was no approval granted by the Governor for withdrawal of the Section 34 application as filed on behalf of the State Government challenging the arbitral award. The consent terms for such reasons are without authority in law and illegal.

(ix) It was not brought to the notice of the Court that it did not have jurisdiction to entertain the commercial execution application. It needs to be noted that no arguments were advanced in the review petition on this plea as urged in paragraph 14 of the review application.

22. It is on the above premise, it is prayed that the order dated 12 December 2019 (supra), passed by this Court accepting the consent terms be reviewed and recalled and the review petition be allowed. Reply Affidavit of the Respondent-Manaj

23. The petition is opposed by Manaj by filing a reply affidavit inter-alia contending the following:-

(i) The review petition assails a consent order dated 12 December 2019, passed by this Court, there cannot be a review of a consent order in the present facts and that too filed on 9 October 2020 after a lapse of more than 10 months from the date of the said order.

24. The review petition being filed under the provisions of Order

47 Rule 1 of the CPC, no ground falling within the purview of such provision is made out in the review petition. The review petition hence is ex-facie not maintainable.

25. Without prejudice to the above, it is contended that the facts and documents on record would establish that the case sought to be made out in the review petition, that the consent terms were not approved by the Government which came to be constituted on 28 November 2019 is ex-facie false and malafide. It is contended that as Manaj was seeking attachment of movable and immovable properties of the State in the execution proceedings, during the pendency of which the State had shown its readiness for negotiating a settlement. It is contended that thereafter on 12 November 2019 President’s Rule was imposed in the State.

26. The case of the State that there was no decision of the Government to settle Manaj's claim or there is no decision of the State to file consent terms, is wholly untenable, for the reason that as clearly seen that on 18 November 2019 a departmental note was prepared by the desk officer in regard to the settlement of the disputes arising under the award which was endorsed by the Under Secretary; the Deputy Secretary, Secretary (Roads) who while endorsing the same prayed for an order in terms of the marked portion “X” (“{k”) of the note. Such note was interalia endorsed by the Additional Chief Secretary (PWD) and the Chief Secretary to the Government on 20 November 2019 and finally by the Governor on 22 November 2019.

27. It is contended that in pursuance of the approval granted by the Governor, on 22 November 2019 a note was prepared by the desk officer on 25 November 2019 recording that the Governor had approved the proposal for settling the award claim for an amount of Rs.358.75 Crores including the interest at RBI rates till 15 November 2019. That the note containing proposed draft consent terms was submitted for approval and it was recorded that on the same being approved, the claimant/ decree holder would be informed by a letter. It is stated that the said note was approved and signed by the Under Secretary (PWD), the Deputy Secretary and the Additional Chief Secretary (PWD). It is contended that the desk officer accordingly addressed a letter to Manaj dated 25 November 2019 stating that the Governor of Maharashtra had approved the payment of Rs.35879.18 lakhs (i.e. award amount of Rs.332,66,39,870/- and interest thereon at RBI rate till 15 November 2019 at Rs.2612.78 lakhs) in settlement of the award claim and Manaj’s acceptance thereof was sought, so that the consent terms could be submitted before this Court. It is stated that Manaj by its letter dated 26 November 2019 accepted the settlement amount.

28. On 28 November 2019 the present Government was sworn in. The desk officer acting in pursuance of the approval as granted by the Governor on 22 November 2019, addressed a letter dated 29 November 2019 to the Executive Engineer, PWD, South Division, Central Building, Pune, authorizing him to execute approved consent terms and submit the same before this Court.

29. The consent terms were thereafter executed on 10 December 2019, which were signed by the Executive Engineer, Shri Dhananjay Deshpande who came to be so authorized. It is stated that the Executive Engineer had signed and executed the contract between the parties on behalf of the State of Maharashtra as authorised. The consent terms were also signed by the desk officer, Government of Maharashtra. Manaj has contended that accordingly, the consent terms were presented before this Court on 12 December 2019 and the order dated 12 December 2019 came to be passed by this Court, disposing of the execution proceedings by consent. Acting under the consent terms, the State in December 2019 also released and paid Manaj an amount of Rs.[1] Crore pending the budget approval.

30. Manaj has next contended that the present Government thereafter made a supplementary budgetary demand of Rs.600 Crores for 10 cases which included at serial No.2 the amount of Rs.357.79 Crores, required to be paid to Manaj as per tribunal’s award (i.e. Rs.358.79 Crores as agreed in consent terms minus Rs.[1] Crore already paid on 13 December 2019.) It is stated that this was approved by the legislature in the winter assembly session of 2019. This is also recorded in the Government’s note dated 27 December 2019 signed and approved by the Under Secretary (Finance), the Deputy Secretary and FA, Secretary (Works), the Additional Chief Secretary (PWD), the Additional Chief Secretary (Finance) and the Secretary (Expenditure). This note is placed on record at Exhibit-D to the reply affidavit. It is contended that after such approval, a fund of Rs.357.79 Crores was made available to the PWD on 6 January 2020 for payment to Manaj. On 6 January 2020 PWD released the said amount of Rs.357.79 Crores to the Superintending Engineer, Public Works Circle, Pune, to be released to Manaj.

31. As the amount was not being paid, Manaj filed in this Court Commercial Contempt Petition (lodging) No.9 of 2020 on 17 January

2020. It is contended that even from the orders dated 21 January 2020 and 27 January 2020 passed by this Court on the said contempt petition, the State had taken a clear position before the Court that all the formalities to release the payment to Manaj would be completed before 29 January 2020. The Court was also informed that the amounts were already received by the Superintending Engineer and necessary steps would to be taken to transfer the same to the account of Manaj. It is accordingly contended that the review petition on such facts is misconceived, not maintainable and deserves to be dismissed. Submissions on behalf of the State

32. Mr.Anturkar, learned Senior Counsel for the Petitioner has made the following submissions supporting the prayers for review and recall of the order dated 12 December 2019: Principal Submissions

(I) The Governor had not taken a decision permitting settlement of the

(II) In the alternative even assuming that the Governor had taken such decision, the Governor had no authority to take such decision as it was necessary to take approval of the democratically elected Government so that there is a continuous authorization.

(III) Fraud was played on the Governor as also on this Court in submitting the consent terms signed by an officer who had no authority to settle the dispute and to make payment of the amount under the consent terms and withdraw the execution proceedings.

(IV) Endorsement of the Governor on 22 November 2019 on the note dated 18 November 2019 was a mere file noting and not a decision or an order of the Governor permitting settlement of the dispute. A specific prayer in the submission of the Secretary (Roads) by making the portion as “X” (“{k”) was sought for, however such approval was not granted by the Governor. Also as per the last paragraph of the submission no formal memorandum was issued notifying the decision of the Governor. As to how the higher officers in the department understood the Governor’s approval, is seen from the affidavit of Shri.Manoj Saunik, Additional Chief Secretary, in paragraph no.19 (page 394) of his reply affidavit in Contempt Petition (Lodg) no.9 of 2020, where he has stated that it was a mere file noting and not an order. In support of the submission that mere file noting would not amount to an order passed by the Hon’ble Governor, reliance is placed on the decision of the Supreme Court in Pimpri Chinchwad New Township Development Authority Vs. Vishnudev Coop.Housing Society {2018(8) SCC 215.}

33. Other submissions of Mr. Anturkar

(I) Mr.Anturkar would submit that any decision of the

Government is issued in the name of the Governor as per the requirement of Article 166(2) of the Constitution. According to him such memorandum was not issued in regard to the decision taken by the Governor on 22 November 2019. He submits that surprisingly each and every officer understood the approval of the Governor as made on the note on 22 November 2019, as a notification issued under sub-clause (2) of Article 166 of the Constitution.

(II) It is next submitted that if “the subject of the note” on which approval of the Governor was taken, is seen, it is only an approval to have negotiations with the respondent. It is submitted that even a reading of the note dated 18 November 2019 raises a doubt, as to whether there was at all, any authority given to such officers even to negotiate. Hence the approval of the Governor is no approval in law.

(III) Mr.Anturkar would submit that on 23 November 2019, a democratic Government under the leadership of Shri.Devendra Fadnavis and Shri.Ajit Pawar was formed. He submits that immediately after such Government was formed, execution proceedings were listed before the Court 25 November 2019 at which point of time the Court was also not informed of the approval given by the Governor. It is submitted that thereafter on 28 November 2019 the present Government under the leadership of Shri.Uddhav Thackeray, the present Hon’ble Chief Minister was formed. Mr.Anturkar submits that on 9 December 2019 which is during the period the present Government had taken over, the execution application was listed before the Court, even on such occasion, the Court was not informed that there was an approval that of the Governor to file consent terms and not of the democratically elected government and thereafter, on 12 December 2019, the Court was called upon to pass an order accepting the consent terms entered between the parties. It is hence submitted that the Governor had never issued any specific approval for filing of the consent terms. Also the Government did not authorise any officer for filing any affidavit so as to bind the Government or to sign the consent terms. Mr.Anturkar submits that there was no specific order of the Government as to who would furnish an undertaking to the Court. In supporting such submissions, Mr.Anturkar has referred to the Rules of Business. He would submit that the Secretary to the Government is not the Government or the Minister who is authorised to grant approval, as an approval is required to be granted by the concerned Ministry. He submits that the Government of Maharashtra would be the Governor alongwith the Cabinet Ministers, after the formation of the Government. He submits that no decision was taken by the Government of Maharashtra on the issue of consent terms as per Government’s Rules of business. In this context he has referred to Rule 4 and Rule 11 of the Rules of Business.

(IV) Mr.Anturkar submits that although on 12 November 2019 in terms of the proclamation issued under Article 356 of the Constitution, President’s Rule was notified in the State of Maharashtra. By virtue of such notification, operation of the certain provisions of the Constitution in relation to the State came to be suspended and in the present context, Article 163 ("Council of Ministers to aid and advise Governor") and Article 164 (“Other provisions as to Ministers”) came to be suspended as also so much of clause 3 of Article 166 as it related interalia to the allocation. It is his submission that the Rules of Business of the State Government which are required to be applied for Government’s business in terms of clause (2) of Article 166 were not suspended and were in operation during the period of the President’s Rule. It is submitted that after formation of the Government either on 23 November 2019 or 28 November 2019, under the said rules, it was the requirement in law that the Government approves a decision to agree to a settlement and to pay the award amount to the respondents and for further steps to be taken to sign consent terms, file the same in the Court and also withdraw the proceedings filed under Section 34 of the Arbitration and Conciliation Act, 1996 pending before the Court of District Judge at Pune. Such decisions are not consequential decisions, but are independent decisions which are required to be taken by the Government and not by the Secretaries who are employees of the Government. These decisions are required to be taken by the Cabinet as per the Rules of Business, which were in operation. In this context, reference is made to Rule 10 of the Maharashtra Government Rules of Business. It is next submitted that Rule 11 thereof interalia requires that no department shall, without consultation with the Finance Department, authorize any order either immediately or by their repercussion, will affect the finance of the State. He thus submitted also an independent approval of the Finance Department for such settlement was necessary. It is submitted that there is a serious doubt in regard to the approval and to the sanctity of the note dated 6 January 2020, in regard to the consultation with the Finance Department. In support of the above submissions Mr.Anturkar has relied on the decisions in Bal Kalyani And Others vs State Of Maharashtra And Others, AIR 1993 Bom. 10 (Division Bench); M/S. M.R.F. Ltd vs Manohar Parrikar & Ors., 2010(11) SCC 374; and Narmada Bachao Andolan vs State Of M.P. & Anr., 2010(12) SCC 333.

(V) Mr.Anturkar would next refer to paragraph 13 of the affidavit dated 24 September 2020, of Shri.Manoj Saunik, Additional Chief Secretary, Public Works Department who was also holding charge of the Additional Chief Secretary, Finance Department, to contend that although he has made a remark on the note dated 6 January 2020 prepared by the Desk Officer of the Finance Department in relation to the proposal to be placed before the legislature, on the expenditure to be incurred in regard to the amount to be paid to Manaj, however, in deposing to such affidavit he had forgotten his earlier affidavit (affidavit dated 21 February 2020) in which he had annexed the same document, however, without his signature (page 284 of the contempt petition). This according to Mr.Anturkar raises a grave doubt on the sanctity as accorded by the Finance Department to any budgetary provision being made so as to pay the purported settlement amount to Manaj. It is Mr.Anturkar’s submission that for such reason it is clearly discerned that there was no prior consultation with the Finance Department as required by the Rules of Business which framed by the Governor exercising powers under subclause (3) of Article 166 of the Constitution. Mr.Anturkar has submitted that the consent terms are thus illegal in the absence of any decision of the State Government to enter into a settlement with Manaj. It is submitted that a decision of an officer is not the decision of the State Government.

(VI) Mr.Anturkar would next submit that the consent terms as entered between the parties bring about a fresh contract between the State Government and Manaj. Referring to Article 299 of the Constitution, it is submitted that in order to execute such new contract with the State Government, it was required to be executed with the Governor. He submits that even on this count, consent terms are illegal, as they do not fulfill the requirement of Article 299 of the Constitution and the same cannot be binding on the parties.

(VII) Mr.Anturkar would next submit that the signature of the learned Assistant Government Pleader (AGP) on the consent terms do not convey any meaning in law so as to attribute any legality or sanctity to the consent terms. He has drawn the Court’s attention to the averments as made in paragraph 10 of the Review Petition, to contend that the learned AGP who signed the consent terms had no authority to do so, as also he did not apply his mind. In this context reliance is placed on the decision of the Supreme Court in Y. Sleebachen and others Vs. State of Tamil Nadu and another, (2015) 5 SCC 747. Mr.Anturkar has also referred to the provisions of Order XXVII Rule 8B of the Civil Procedure Code to contend that the empanelled AGP is not a Government Pleader for the purpose of Order XXVII. On the above submission Mr.Anturkar would submit that the order under review be recalled and set aside.

(VIII) Mr.Anturkar relying on the decisions in Municipal

Corporation of Gr.Mumbai & Anr. Vs. Pratibha Industries Ltd. & Ors. [(2019)3 SCC 203]; Commissioner of Income Tax, Guwahati VS. Meghalaya Steels Ltd., [(2015)17 SCC 647]; Dadu Dayal Mahasabha vs. Sukhdev Arya & Anr, [(1990)1 SCC 189]; N.Mani Vs. Sangeetha Theatre & Ors. [(2004)12 SCC 278], would contend that the High Court has plenary powers to review its orders in addition to its jurisdiction under the provisions of Order 47 Rule 1 of the CPC. He refers to the powers of the Court under Article 215 of the Constitution and Section 151 of the CPC. It is his submission that the Court hence ought not to look into the exclusive parameters of Order 47 Rule 1 of the CPC, when such other powers are available to correct an illegality in the Courts order. Submissions of Mr.Chinoy, learned Senior Counsel for Manaj:-

34. Mr.Chinoy, learned Senior Counsel for Manaj has made the following submissions:-

(i) None of the grounds under Order XLVII Rule 1 read with

Rule 4 are made out by the State so as to maintain the prayers for review of the Court’s order dated 12 December 2019. The oral contentions as urged on behalf of the petitioner are completely outside the case as pleaded in the Review Petition.

(ii) The contentions as urged on behalf of the State would relate to calling upon this Court to make a detailed inquiry on the authority, powers of the Government, which cannot be a ground, to be categorized as an error apparent on the face of the order, to maintain a review petition. In supporting this contention, Mr.Chinoy has relied on the decision of the Supreme Court in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., (2013) 8 SCC 337.

(iii) The stand taken by the State Government is blatantly dishonest, as the tenor of such submissions is to urge that a fraud is played involving the Chief Secretary of the State, which the State intends this Court to believe.

(iv) The decision to have an overall settlement in the manner as effected by the consent terms was on a valid approval of the Governor and the highest Officer in the State Government namely the Chief Secretary. The concurrence/approval of the Governor as made on 22 November 2019 was legal and valid inasmuch as at the relevant time there was no Council of Ministers and all powers were vested with the Governor under Article 154 of the Constitution read with Notification dated 12 November 2019 issued by the President of India, imposing the President's Rule. There is no provision that after the President’s Rule had come to an end on 25 November 2019, all the decisions which were taken by the Governor in exercise of his executive power would require any further approval by the democratically elected Government and its Council of Ministers. It is hence submitted that it is a travesty for the State to contend that if the Governor signs any proposal in exercise of power conferred on him by the Constitution, the same would not have sanctity in law merely because subsequently a new Government was formed.

(v) All actions taken by the concerned officers on the department’s note dated 18 November 2019 culminating into an approval/order of the Governor by endorsing his signature on 22 November 2019 are in conformity with the order dated 20 November 2019 issued by the General Administration Department, during the President’s rule which provided that all matters which were required to be put up to the Council of Ministers under Schedule II of the Rules of Business and any such cases where the Ministers had to obtain an order of the Chief Minister, were to be routed through the Chief Secretary of the Maharashtra to the Governor. Hence there cannot be any argument contrary to the Government order dated 20 November 2019.

(vi) It is submitted that a note dated 25 November 2019 was prepared by the Public Works Department by which interalia the process of approval was initiated for filing of consent terms and for issuance of a letter accepting the settlement at an amount of Rs.35879.18 lakhs with interest upto 15 November 2019. It is submitted that this note had approval of the Additional Chief Secretary, PWD. It was never thought appropriate and at any point of time to rescind the decision taken, when at all material times there was such authority with the State to rescind such decision of entering into the settlement. This apart even the legislative assembly sanctioned allocation of funds qua the amount to be paid to Manaj under the settlement. It is accordingly submitted that there is no irregularity and/or any illegality as the Governor being an executive Authority for the State had accorded approval for the proposed settlement which was granted by initiation of proposal through proper channel. Hence the contention of the State that the Government has not granted any approval, is ex facie untenable.

(vii) Once the Governor had granted an approval, implementation of the decision is required to be left to the officers. Later on, only because a newly elected Government is formed, it cannot take a position, that the earlier actions can be reviewed or issues can be reopened. It is submitted that the entire case in the reply affidavit as filed by Manaj, is required to be accepted, as there is no rebuttal to the reply affidavit.

(viii) Not only the decision to settle with Manaj was taken but acted upon when consent terms were filed and further even the consent terms were acted upon as part amount of Rs.[1] crore was paid to Manaj in December 2019 and a further provision being made to make the entire payment, which was put up before the legislature for making of a budgetary provision, which also was approved by the legislature. In such a situation there is no scope for any argument of any fraud being played either on the Governor or on the State Government or this Court.

(ix) It is thus submitted that the review petition is patently misconceived and deserves to be dismissed. Reasons and Conclusion

35. At the outset, some admitted facts are required to be noted. Under an agreement dated 6 July, 2012 executed between the State and Manaj, disputes had arisen between the parties which were referred for arbitration of a learned sole arbitrator who published an award against the State on 17 August, 2018, interalia directing the State to pay Manaj an amount of Rs.332,66,39,870/- along with future interest as noted above. The State had assailed the arbitral award in Miscellaneous Application No. 1358 of 2018 filed before the Court of learned District Judge at Pune filed under Section 34 of the Arbitration and Conciliation Act 1996. As there was no stay on the execution of the award, Manaj had filed in this Court an Execution Application on 25 February, 2019. Even thereafter as there was no stay on execution of the award, on 13 August, 2019 an order came to be passed by learned Prothonotary and Senior Master, attaching the accounts of the State with the Reserve Bank of India which contained an amount of Rs.89,27,817/-, an insufficient amount considering the award amount. This necessitated Manaj to proceed further to attach movable and immovable properties of the State, in execution of the arbitral award. On 20 September, 2019, the learned District Judge rejected the State’s application praying for stay to the execution of the award.

36. On this backdrop it appears that in the Public Works Department (PWD), a note came to be prepared by the Desk Officer dated 18 November 2019, on the subject interalia of carrying out negotiations with Manaj. Although Manaj had an award in its favour, however, Manaj by its letter addressed a year back (dated 26 November, 2018) had requested the State to have negotiations/settlement and put an end to the matter as recorded in the said note. The note recorded that Manaj had already filed an execution application in this Court in which an order attaching State Government’s Account No. 6102002003 was passed. It was recorded in the note that an application for stay of the award also came to be rejected by the District Court on 24 September, 2019 and hence it is likely that the property of the State Government would be attached in the execution proceedings. The note also stated that on the award amount, the State Government was incurring an interest liability of Rs.12.57 lakhs per day and the financial burden of such amount is increasing day by day, and that as on the date of the note (18 November

2019) an amount inclusive of interest @ 15% payable to Manaj worked out to Rs.381,59,38,918/-.

37. A perusal of the last page of this note, a copy of which is placed on record at pages 29 to 32 of the paper book would clearly indicate that after it was initiated by the Desk Officer, it was endorsed in approval by the Under Secretary, the Deputy Secretary, the Secretary (Roads), who on 19 November, 2019 made a handwritten endorsement, that the marked portion ‘X’ (“{k”) be granted, which came to be thereafterapprovedbythe Additional Chief Secretaryon19November, 2019 by putting his signature, by the Chief Secretary Mr.Ajay Mehta on 20 November, 2019 and thereafter by the Governor on 22 November, 2019. Thus, not only the Secretary (Roads), but the Additional Chief Secretary PWD, the Chief Secretary of the State Ajay Mehta, approved the note by putting their signatures and ultimately the Governor signed the same in approval. There can be no two opinions that such method is the normal method by which the Government proposals are initiated and decisions taken namely that the officials make their respective signatures below their designations, by making a strike mark on their respective designations. It needs to be observed that such note although was initiated by the Desk Officer for its approval, it could not have been ever prepared by the Desk Officer in the absence of such departmental consensus and desirability of the high officers of the State which need not be in writing, suffice it to observe, it passed through the Under Secretary, the Deputy Secretary, Secretary (Roads), Additional Chief Secretary (PWD), Chief Secretary and ultimately the Governor who made his signature on the following approval as sought in paragraph 8 of the note which is re-extracted for convenience:- "8......... Therefore, approval may be granted to pay the total sum of Rs. 35879.18 lakhs comprising of the amount of Rs. 332,66,39,870/- as per the order passed by the Arbitrator on 17/08/2018 and the amount of Rs. 2612.78 lakhs towards interest at the rate fixed by the R.B.I. Bank for the period from the date 17/08/2018 to 15/11/2019."

38. Mr.Anturkar is thus not correct in his contention that the Governor had not taken a decision permitting settlement of the award or had not granted an approval to make such payment to Manaj in settlement or that the Governor had not granted a specific approval in terms of what was underlined in paragraph 8 of the said note and marked ‘X’ (“{k”). This for the reason that such prayer and/or endorsement as made by the Secretary (Roads) on 19 November, 2019, was fully nay unconditionally endorsed in approval by the Additional Chief Secretary on 19 November, 2019 as also by the Chief Secretary Mr. Ajay Mehta on 20 November, 2019 and similarly by the Governor on 22 November,

2019. It would be thus required to be held, that by following a departmental procedure which began from the Desk Officer preparing a departmental note, which travelled through the proper official channel, namely, through the Under Secretary, Deputy Secretary, Secretary (Roads), Additional Chief Secretary (PWD), the Chief Secretary of the State and ultimately to the Governor, all endorsed a decision that the total amount of Rs.35879.18 lakhs be paid to Manaj inclusive of interest upto 15 November, 2019. There can be no other reading of paragraph 8 and the approval to which was granted by such officials and finally by the Governor. There is nothing on record to show that such decision, for any reason was cancelled, revoked or withdrawn by the government anytime after 28th November 2019.

39. Now I examine Mr.Anturkar's contention that the Governor had no authority in law to grant approval to the settlement proposal as initiated under the department's note dated 18 November 2019. In examining this issue at the outset it is required to be noted that in pursuance of a report as made by the Governor on 12 November 2019, President’s rule came to be imposed in the State of Maharashtra, under a Presidential Proclamation of the even date (supra). The President’s rule continued upto 23 November, 2019. Thus, when the said note was initiated by the Desk officer on 18 November, 2019 till it reached the Governor for his approval on 22 November 2019, in terms of what was prayed for in paragraph 8 (prayer X), there was President’s rule in the State.

40. By virtue of the proclamation of President's rule, the President of India assumed to himself all functions of the Government of the State and all powers vested in or exercisable by the Governor of that State under Clause (c)(ii) of the said notification the President suspended the operation of certain provisions of the Constitution. It is imperative to note the contents of the proclamation which read thus:- “ MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 12th November, 2019. G.S.R. 837(E).— The following Proclamation made by the President is published for general information:— Whereas, I, Ram Nath Kovind, President of India, have received a report from the Governor of the State of Maharashtra and after considering the report and other information received by me, I am satisfied that a situation has arisen in which the Government of that State cannot be carried on in accordance with the provisions of the Constitution of India (hereinafter referred to as the Constitution); Now, therefore, in exercise of the powers conferred by article 356 of the Constitution, and of all other powers enabling me in that behalf, I hereby proclaim that I – (a) assume to myself as President of India all functions of the Government of the said State and all powers vested in or exercisable by the Governor of that State; (b) declare that the powers of the Legislature of the said State shall be exercisable by or under the authority of Parliament; and

(c) make the following incidental and consequential provisions which appear to me to be necessary or desirable for giving effect to the objects of this Proclamation, namely:—

(i) in exercise of the functions and powers assumed to myself by virtue of clause (a) of this Proclamation as aforesaid, it shall be lawful for me as President of India to act to such extent as I think fit through the Governor of the said State;

(ii) the operation of the following provisions of the

Constitution in relation to that State is hereby suspended, namely:— so much of the proviso to article 3 as relates to the reference by the President to the Legislature of the State; so much of clause (2) of article 151 as relates to the laying, before the Legislature of the State, of the reports submitted to the Governor by the Comptroller and Auditor-General of India; articles 163 and 164; so much of clause (3) of article 166 as relates to the allocation among the Ministers of the business of the Government of the State; article 167; so much of clause (1) of article 169 as relates to the passing of a resolution by the Legislative Assembly of a State; clause (1), and sub-clause (a) of clause (2), of article 174; articles 175 to 177 (both inclusive); clause (c) of article 179 and first proviso to that article; article 181, clause (c) of article 183 and the proviso to that article; articles 185, 188, 189, 193 and 194; articles 196 to 198 (both inclusive), clauses (3) and (4) of article 199; articles 200 and 201; articles 208 to 211 (both inclusive); the proviso to clause (1) and the proviso to clause (3) of article 213; and so much of clause (2) of article 323 as relates to the laying of the report with a memorandum before the Legislature of the State;

(iii) any reference in the Constitution to the Governor shall, in relation to the said State, be construed as a reference to the President, and any reference therein to the Legislature of the State or the Houses thereof shall, in so far as it relates to the functions and powers thereof, be construed, unless the context otherwise requires, as a reference to the Parliament, and, in particular, the references in article 213 to the Governor and to the Legislature of the State, shall be construed as references to the President and to Parliament or to the Houses thereof respectively: Provided that nothing herein shall affect the provisions of article 153, articles 155 to 159 (both inclusive), article 299 and article 361 and paragraphs 1 to 4 (both inclusive) of the Second Schedule, or prevent the President from acting under sub-clause (i) of this clause to such extent as he thinks fit through the Governor of the said State;

(iv) any reference in the Constitution to Acts or laws of, or made by, the Legislature of the said State shall be construed as including a reference to Acts or laws made, in exercise of the powers of the Legislature of the said State, by Parliament by virtue of this Proclamation, or by the President or other authority referred to in sub-clause (a) of clause (1) of article 357 of the Constitution, and the Bombay General Clauses Act, 1904 (Bombay Act 1 of 1904) as in force in the State of Maharashtra, and so much of the General Clauses Act, 1897 (10 of 1897), as applies to State laws, shall have effect in relation to any such Act or law as if it were an Act of the Legislature of the said State. New Delhi; The 12th November, 2019.

41. It is manifest from a plain reading of clause (a) of the Presidential Proclamation that the President assumed to himself all functions of the Government of the State and all powers vested in or exercisable by the Governor of the State, which in the normal course would vest with the Governor of the State as provided for in article 154 of the Constitution. Sub-clause (c)(iii) of the proclamation amplifies as to what was provided, in clause (a), as it clearly provides that any reference in the Constitution to the Governor, in relation to the State be construed to be a reference to the President, in so far it relates to the functions and powers thereof. The proviso below clause (iii) also makes it clear that nothing contained in clause (iii) shall affect the provisions of Article 153, Article 155 to 159 (both inclusive), Article 299 and Article 361 and paragraphs 1 to 4 (both inclusive) of the Second Schedule, or prevent the President from acting under clause (i), to such extent as he thinks fit through the Governor of the State. Thus a cumulative reading of clause (a), clause (c)(ii) & (iii) along with its proviso, leaves no manner of doubt, that the powers of the Governor were to be indubitably exercised by the President through the Governor of the State.

42. The above petition is further fortified when the Government of Maharashtra in its General Administration Department issued a Government order dated 20 November 2019, on disposal of official business during the President's Rule, conferring power on the Governor in regard to disposal of the official business of the government. The said order reads thus:- “Immediate Disposal of Official Business during President Rule. Government of Maharashtra General Administration Department Order No.ROB 2019/CR-93/18 (O&M), Madam Cama Marg, Hutatma Rajguru Chowk, Mantralaya, Mumbai – 400 032, Dated the 20th November, 2019.

ORDER In Exercise of the powers conferred upon him under Article 166 of the Constitution of India read with President of India’s Order No.G.S.R. 837 (E) dated the 12th November 2019, the Governor of Maharashtra is hereby pleased to make the following order pertaining to the disposal of official business:- (1) All matters which were required to be put up to the Council of Ministers under Schedule II of the Rules of Business and all such cases where Ministers had to obtain orders of the Chief Minister, would now be routed through the Chief Secretary of Maharashtra to the Governor. (2) Proposals regarding transfers and postings of Officers of the rank of Joint Secretaries and above and in respect of IAS/IPS and IFS cadre, of and above the ranks of Collectors/Superintendents of Police will be routed through the Chief Secretary of Maharashtra to the Governor. All transfers which were earlier being done by the Chief Minister will be done by the Governor. (3) Matters pertaining to law and order will be routed through the Chief Secretary of Maharashtra to the Governor. (4) Routine cases which were being settled at the level of Minister may be finally decided by the Governor through the Chief Secretary. (5) The cases where more than one department is concerned the matter may be decided in consultation with the Chief Secretary by the Governor. (6) Regarding legislative matters factual information and present status may be communicated with the approval of the Secretary of the Department to the Legislature Secretariat. (7) All administrative and financial matters of urgent and time bound nature, which are beyond the power of the Chief Secretary should be submitted to the Governor through the Chief Secretary. (8) Affidavits giving only factual information and existing status should be approved by the Secretary of the Department. Any affidavit which has policy implications should be submitted to the Governor through the Chief Secretary.

2. This order of Government of Maharashtra is available at the website www.maharashtra.gov.in. Reference No. for this is 201911211008470807. This order has been signed digitally. By order and in the name of the Governor of Maharashtra, (Ajoy Mehta) Chief Secretary to Government of Maharashtra To,

1. All Additional Chief Secretaries, Mantralaya

2. All Principal Secretaries, Mantralaya

3. All Secretaries, Mantralaya,

4. Secretary to Hon'ble Governor.”

43. It is thus clear not only from the Proclamation dated 12 November 2019 notifying President Rule in the State of Maharashtra but also from the Government's Order dated 20 November 2019, that the Governor was empowered and authorised to act on behalf of the President on all matters as specified in such declarations, which certainly included taking a decision to settle the disputes involving the government and to make payment of any settlement amount. Clause (c) (i) read with the proviso to Clause (c)(iii) of the Presidential Proclamation (supra) also confers an authority on the Governor to enter into a contract on behalf of State. It thus not correct for the State to contend that the Governor had no authority to pass an order as prayed for in the note dated 18 November 2019 of the PWD which was routed through the proper channel and ultimately approved by the Additional Chief Secretary, PWD and the Chief Secretary of the Government of Maharashtra. It also cannot be said that it was merely a decision of the department or of the Secretary’s and not the decision of the Governor or of the State.

44. This apart the Constitutional scheme in relation to the powers of the Governor can be discussed by adverting to the relevant articles of the Constitution. Article 154 of the Constitution provides that the executive power of the State shall be vested with the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution when the President’s rule was notified, qua this article, the President was acting through the Governor. Further Article 166 is a provision on conduct of business of the Government of a State, providing that all executive actions of the Government of a State shall be expressed to be taken in the name of the Governor. Clause (2) of Article 166 provides that the orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order on instruction which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Clause (3) of Article 166 provides that the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. It is thus clearly seen that the Governor had sufficient powers during the period of the President's rule for the purposes of taking the decision in question, when the President had proclaimed and declared himself to act through the Governor, during the subsistence of the President's rule in the State of Maharashtra.

45. The position in law in regard to the powers of the Governor to exercise the executive powers on behalf of the President, is no more res integra. A useful reference can be made to the decision of the Calcutta High Court in Gokulananda Roy vs. Tarapada Mukharjee & Ors. (AIR 1973 CAL 233). In this case the Division Bench was dealing with an appeal arising from a judgment of a learned Single Judge. The challenge before the learned Single Judge in a writ petition was to a notification appointing a Commissioner under the Commissions of Inquiry Act,1952. The facts of the case being, that on 16 March 1970, the Chief Minister of the then United Front Ministry resigned. The resignation tendered by the Chief Minister was accepted by the Governor on 19 March 1970 and on the same day a Proclamation was issued by the President of India, assuming to himself all the functions of the Government of the State, and all powers vested in or exercisable by the Governor of the State. The President assumed to himself the functions of the Government of the State and all powers vested in the Governor. The resignation of the Chief Minister was followed by a Hartal, called by the appellant's party. This provoked a number of violent incidents at Burdwan which resulted in the death of three persons. The Governor visited Burdwan on 30 March 1970 which resulted into the Governor making an order dated 28 April 1970, under Section 3 of the Commissions of Inquiry Act, 1952, by which the first respondent was directed to hold an inquiry in accordance with the terms and conditions of the order and submit a report to the State Government embodying his findings, and the recommendations thereon, within three months from the date of publications of this notification in the Calcutta Gazette. The appellant was aggrieved by the act of the Governor invoking the provisions of the Commissions of Inquiry Act, 1952, to order an inquiry. The contention of the appellant was that such inquiry would deny a fair trial to the members of his political party, who would not have an opportunity to defend themselves. In mounting such challenge, the appellant contended that after a proclamation was issued by the President under Article 356(1) of the Constitution, the President alone was required to be satisfied about the necessity of an inquiry under the Commissions of Inquiry Act. It was urged that the President having assumed to himself all the functions of the Government of the State, and all powers vested in the Governor of the State, it was for him alone to be satisfied that an inquiry under the Act was called for, and also about the necessity of such inquiry, hence, the Governor had no authority and jurisdiction to issue such notification. This contention was negatived by the Division Bench when it held that Article 356 itself enables the President in making a Proclamation under that Article, to make incidental and consequential provisions, by virtue of which the President delegated all the functions of the Government of the State and all the powers vested in or exercisable by the Governor of the State, to the Governor. Mr.Justice B.V.Mitra speaking for the Bench observed thus:-

46. The Supreme Court had an occasion to examine a similar issue of law on the powers of the Governor during the President Rule in “Badrinath Vs. Government of Tamil Nadu and Ors.” [(2000)8 SCC 395]. This was a case concerning the claim of the appellant for promotion to the super-time scale. The Government of India had considered the report of the Committee so appointed by the State Government and found that censure was awarded to the appellant in one of the disciplinary cases which was also approved by the concerned Minister as also the fact of such censure being informed to the appellant. However, it so happened that in the meantime on 28 June 1977 the Governor of Tamilnadu during the President Rule dropped all four disciplinary cases against the appellant. Despite such cases being dropped by the Governor, according to the appellant, one disciplinary case was however shown to be kept pending by the Government and illegally. In such context the Supreme Court interalia framed the following point for consideration:- “22. On the basis of the above contentions, the following points arise for consideration: (1) Whether, the award of 'censure' in the fourth disciplinary case (relating to furnishing his office without previous sanction) by the State Government was contrary to the directions of the Governor during the President's Rule emergency and whether the State Government thereafter wanted to withdraw the reference to the UPSC and the UPSC refused to permit such withdrawal? Whether the appellant was treated fairly in respect of the said proceedings?.…………………..” The Supreme Court held that the order of the Governor dropping the four disciplinary cases including one which was pending, was passed during the President’s Rule. It was held that such order was required to be treated as final so far as the State was concerned. It was held that when an elected Government was not in office, the orders of the Governor under Article 356(1)(a) as an agent of the President of India are equivalent to the orders that might have been passed by an elected Government in office and the Governor's orders would be given effect fully and could not have been ignored either by the executive or by the Union Public Service Commission. The relevant observations of the Court are required to be noted which read thus:- “24. In our opinion, the Order of the Governor dropping all the four disciplinary cases including the one which was treated as pending, was passed during President's Rule and that Order must have been treated as final so far as the State was concerned. In fact it dropped the three cases but treated the fourth case as pending, even though that was also dropped by the Governor. Inasmuch as the Governor's Orders are final, a serious question as to jurisdiction of the subsequent proceedings in the fourth case resulting in 'censure' arises. Merely because the matter had gone to the UPSC before the Governor dealt with the issue, the Governor's Orders dated 28.6.1977 could not have been ignored. By the date the State received the letter of the UPSC and passed the final Order of censure on 8.4.80, the Governor's Orders dated 28.6.1977 were already there and therefore the Government should have refrained from passing the Order of “censure”.

25. When an elected Government is not in office, the Orders of the Governor under Article 356(1)(a) as an agent of the President of India are equivalent to the Orders that might have been passed by an elected Government in office and the Governor's Orders had to be given effect fully and could not have been ignored either by the executive or by the Union Public Service Commission.

26. Under sub-clause (a) of Article 356(1) of the Constitution of India, the President may assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the legislature of the State. Where the President, after assumption of the powers of the State Executive, chooses to exercise those powers through the State Government (sic Governor), the latter acts as the agent of the President, acting on the advice of the Union Ministry, instead of the State Cabinet. In short, when the President vests the Governor with the powers of the State Government, the Governor can exercise all the powers of the State Government, without the advice of his Council of Ministers. The Governor becomes responsible to the President i.e. the Union Government which has its responsibility to the Union Parliament. The Governor can exercise the statutory power exercisable by the State Government. (See Basu, Shorter Constitution, 11th Edn. p. 1192). Once that power was exercised by the Government on 28.6.1977, all the consequential proceedings leading to the censure fall to the ground.”

47. Adverting to the Constitutional provisions as discussed above and the principles of law as enunciated in the above decisions, it is difficult to accept the contention as urged on behalf of the State, that in the present facts the Governor had no authority in law during the period 12 November 2019 to 23 November 2019 when the President's rule was operating in the State of Maharashtra to take a decision to approve the settlement. The decision in question dated 22 November 2019 was taken by the Governor as an agent of the President of India which was equivalent to a decision or an order which might have been passed by the elected Government. Thus, such decision of the Governor was required to be given effect fully and could not have been questioned by the State. Hence, such contention as urged by Mr.Anturkar that the Governor had no authority to take such decision is required to be rejected in totality.

48. The next contention as urged by Mr. Anturkar is in regard to non adherence of the 'Rules of Business' of the Government by the Governor in taking a decision to arrive at a settlement with Manaj. To examine this contention it needs to be stated that in exercise of powers vested in Clauses (2) and (3) of Article 166 of the Constitution, the Governor of Maharashtra has made Rules called as “Maharashtra Government Rules of Business” as brought into force on 1 July 1975 (for short ‘Rules of business’). Some of the rules thereunder relied by Mr. Anturkar need to be noted which read thus:- “THE MAHARASHTRA GOVERNMENT RULES OF BUSINESS GENERAL ADMINISTRATION DEPARTMENT Sachivalaya, Bombay 400 032, dated the 26th June 1975 CONSTITUTION OF INDIA No.ROB-1075/O.&M.- In exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution of India and in supersession of all previous rules made in this behalf, the Governor of Maharashtra is pleased to make the following rules namely:-

1. …

2. …

3. …

4. The Business of the Government shall be transacted in the Departments specified in the First Schedule and shall be classified and distributed between those Departments as laid down therein.

5. …

6. The Chief Minister and a Minister in consultation with the Chief Minister may allot to a Minister of State or a Deputy Minister any business appertaining a Department or part of a Department. 6-A. …

7. Each Department of the Mantralaya shall consist of the Secretary to the Government, who shall be the official head of that Department and or such other officers and servants subordinate to him as the State Government may determine: Provided that, - (a) more than one Department may be placed in charge of the same Secretary; (b) the work of a Department may be divided between two or more Secretaries.

8. …

9. …

10. …

11. (1) No Department shall without previous consultation with the Finance Department authorise any order (other than orders pursuant to any general delegation made by the Finance Department) which - (a) either immediately or by their repercussion, will affect the finance of the State, or which, in particular -

(i) involve any grant of land or assignment of revenue or concession, grant lease or licence of mineral or forest rights or a right to water power or any easement or privilege in respect of such concession; or

(ii) in any way involve any relinquishment of revenue;

(b) relate to the number or grading or cadre of post or the employments or other conditions of service or posts. (2) No proposal which requires the previous consultation of the Finance Department under sub-rule (1) but in which the Finance Department has not concurred, may be proceeded with unless a decision to that effect has been taken by the Council. (3) No appropriation shall be made by any Department other than the Finance Department, except in accordance with such general delegation as the Finance Department may have made. (4) Except to the extent that power may have been delegated to the Departments under rules approved by the Finance Department, every order of an Administrative Department conveying a sanction to be enforced in audit shall be communicated to the audit authorities by the Finance Department. (5) Nothing in this rule shall be construed as authorising any Department including the Finance Department, to make reappropriations from the grant specified in the Appropriation Act to another such grant.”

49. The rules of business are framed by the Governor in exercise of powers conferred under clauses (2) and (3) of article 166 of the Constitution, which are supposed to be followed in the normal course of the government's business. However the situation in the present case was somewhat different for the non-applicability of the rules of business when the Governor granted an approval on 22 November 2019, to settle the claim of Manaj in view of the proclamation of the President's rule, in the State of Maharashtra Vide proclamation dated 12 November 2019. The fallacy in Mr.Anturkar's submission is of the non-consideration and oblivity to the order dated 20 November 2019 issued by the Governor which was also in exercise of the powers conferred under article 166 of the Constitution, notifying the rules of business to be followed during the President's Rule. On perusal of the said Order issued by the Governor it is quite clear that the decision to settle the dispute and make payment to Manaj as taken by the Governor, satisfied the requirement of these rules as notified by such order dated 20 November 2019. This inasmuch as the proposal to settle with Manaj was routed through the proper channel as per the requirement of the Governor’s order dated 20 November 2019. The same being scrutinised and approved by the Chief Secretary was ultimately placed before the Governor who granted approval to the same. In this very context Mr. Anturkar's contention that as such settlement involved making payment and hence the finance department also ought to have been consulted, is also without substance. This for twofold reasons firstly when such decision was taken during the President's Rule, as per the said order passed by the Governor under article 166 of the Constitution, it was specifically provided that all matters which were required to be put up to the Council of Ministers under Schedule II of the Rules of Business and all such cases where Ministers had to obtain orders of the Chief Minister, were to be routed through the Chief Secretary of Maharashtra to the Governor. It was also provided in clause 7 of the said order, that all administrative and financial matters of urgent and time bound nature, which are beyond the powers of the Chief Secretary should be submitted to the Governor through the Chief Secretary. If this be the case one would wonder as to how such submission can be accepted that the rules of business applicable during the normal times are relevant during the President’s rule. Secondly even on facts, such submission needs to be rejected, for the reason that after revocation of the President's rule a provision was made by the State for such payment and accordingly a proposal was made by the finance department before the legislature seeking sanction for allocation of funds for such payment as noted above. This has not been disputed by State when a contention to this effect has been specifically averred in the reply affidavit. Most pertinently when the letter dated 25 November 2019 came to be addressed to Manaj in pursuance to the note dated 25 November 2019, the President’s Rule had already come to an end in the State of Maharashtra, as revoked by the President’s proclamation dated 23 November 2019. The present Government was sworn in on 28 November 2019.

50. Even after the Government was formed, the Desk Officer in the Public Works Department acting under the Note dated 18 November 2019 read with Note dated 25 November 2019, addressed a letter dated 29 November 2019 to the Executive Engineer, Public Works, (South) Division, Pune, authorising him to execute the approved consent terms to be submitted before this Court. Accordingly, the consent terms were signed on 10 December 2019 and the same were thereafter tendered before this Court on 12 December 2019, when the Court passed the order under review. There is also much substance in the contention as urged on behalf of Manaj that the consent terms were acted upon, after the parties placed the same on record of this Court and invited an order in terms of the consent terms. This is also evident from the fact that in December 2019 an amount of Rs.[1] crore came to be released pending budget approval on 13 December 2019. Also the Government in its Finance Department made a supplementary budgetary demand of Rs.600 crores for ten cases which included at Sr.no.2 Rs.357.7918 Crores required to be paid to Manaj as per tribunal’s award (i.e. Rs.358.7918 Crores as agreed in consent terms minus Rs.[1] Crore already paid on 13 December 2019.) This was approved by the legislature in its Winter Session of 2019. This fact came to be recorded in the Government’s Note dated 27 December 2019 as approved by the Under Secretary (Finance), Deputy Secretary & FA, the Secretary (Works), Additional Chief Secretary (PWD), Additional Chief Secretary (Finance) and Secretary (Expenditure). A copy of this note is placed on record at “Exhibit D” to the reply affidavit filed on behalf of Manaj. There is no rejoinder on behalf of the State disputing this position.

51. In pursuance of the budgetary provision, such funds were available with the PWD department and were to be paid to Manaj is clear from the statements made before this Court on behalf of the State and recorded in the orders dated 21 January 2020, 24 January 2020, 27 January 2020 passed in Commercial Contempt Petition No (L) No.9 of

2020. All this has happened after the present Government was formed on 28 November 2019. It would be apposite to note these orders. In seriatim the relevant paragraphs of these orders read thus:- Order dated 21.01.2020:- “ It appears that the second last paragraph in the decision dated 6 January 2020 (No.BGM 2019/pra.kra.31/19/Arth-1) may not be of that relevance because here Government in principle has agreed to make payment under the award and it was so recorded by this Court in the order passed by this Court on 12 December 2019 when the above execution application was disposed of in terms of the consent terms as also accepting the undertaking............…...........” Order dated 24.01.2020:- “ Mr.Sakhare, learned Senior Counsel for the State states that the hearing of this petition on the background of the earlier order be adjourned for two weeks, by which time he states that there is possibility that the issues would be resolved. Request of Mr.Sakhare is reasonable. Accordingly stand over to 7 February 2020 (FOB). Later on at 04.45 p.m.

2. Mr. Balsara and Mr. Bobde, learned counsel for the petitioner have mentioned this petition and have brought to my notice a communication dated 22 January 2020 of Mr. R. G. Jawalkoti, Additional Secretary, PWD Dept., Govt. of Maharashtra addressed to Mr. R. S. Rahane, Superintendent Engineer, PWD, Pune (Respondent No.1) and Mr. Dhananjay Deshpande, Executive Engineer, PWD (South Division) Pune (Respondent No.2) directing these two respondents to make payments as per the orders passed by this court. The additional secretary has also informed them that they should personally remain present in the court as also submit a report to the Government.

3. Mr. Balsara would submit that this letter ought to have been pointed out when the matter was heard in the morning session. He submits that the Government has clearly called upon the respondent no. 1 and 2 to comply the orders of the court and disburse the payment. It is submitted that this is gross impropriety on the part of respondent Nos.[1] and 2 is not pointing out the above communication to the court. ….. …....” Order dated 27.01.2020:- “1. Mr. Joshi, Secretary, Public Works Department (PWD), Government of Maharashtra makes a statement that all the necessary formalities to release the payment and the intimation to that effect to be given to the Treasury would be undertaken by tomorrow i.e. 28 January 2020. The Treasury would accordingly be required to take steps to make payment to the petitioner by way of RTGS.

2. In the facts of the case considering that there is an undertaking given to the court, it is expected that the Treasury would also take immediate steps. Respondent No.1, the Competent Officer also informs to take immediate steps to credit the payments to the petitioner. It is expected that all these steps would be taken and appropriate compliance of the orders is undertaken as stated by Mr. Joshi on or before Wednesday i.e.

3. Statement of Mr. Joshi, is accepted as also the concerned Treasury Officer shall comply with the above directions and would act upon the payment intimation as would made by the PWD.

4. It is stated that there is no confusion whatsoever in the PWD having funds for the disposal of the amounts made under the decree and the same would be disbursed as informed by Mr. Joshi, Secretary, PWD, as noted above. In any even the Court would not concerned whether an amount goes from the account of Superintendent Engineer or of any other officer. In these circumstances, as rightly pointed out by Mr. Joshi, Secretary, PWD,the amount would be paid to the petitioner in compliance with the orders of the Court.

5. At this stage, it is informed that the money is already received by Supdt. Engineer Mr. R.S. Rahane, Respondent no. 1 and necessary steps would be taken to transfer the same to the petitioner's account from the treasury. It would be for the parties to see that there is no there is no further unpleasantness on any of the issues................”

52. Thereafter as recorded in the order dated 30 January 2020 passed by this Court in the contempt proceedings the entire amount stands deposited in this court. The relevant extract of the said order reads thus:- “ Leave to amend to implead State of Maharashtra through P.W.D. as a party respondent.

2. On the backdrop of the earlier orders passed by this Court, I have heard Mr.Balsara with Mr.Bobde, learned Counsel for the petitioner and Mr.Anturkar, learned Senior Counsel for respondent Nos.[1] and 4.

3. Today Mr.Anturkar, learned Senior Counsel for respondent Nos.[1] and 4 on the instructions of his clients who are present in the Court, submits that there are some legal issues and on these issues, his clients intend to contest the present proceedings. At the same time, Mr.Anturkar would fairly submit that his clients are conscious of not only the principal order of which a contempt has been alleged by the petitioner but also of the subsequent order dated 27 January 2020 which recorded the statement of Mr.Joshi, Secretary, PWD.

4. Be that as it may, Mr.Anturkar has also at the outset submitted that his clients are ready and willing to deposit the award amount in this Court within one week from today. In my opinion, it would be in the fitness of things that statement of Mr.Anturkar is accepted in this regard and amount comes to the Court.

5. Let the award amount be deposited in this Court within a period of one week from today. As soon as the amount is deposited, the Prothonotary and Senior Master of this Court shall take immediate steps to invest the said amount in Fixed Deposit in a nationalised bank, initially for a period of one month.....................”

53. It is thus strange and surprising as how the State can assert a case of lack of authority with the Governor or a fraud being played on the Court by high officials of the Government in taking a decision to settle the award claim of Manaj, when there is not an iota of material to support such contentions. Most pertinently when the letter dated 25 November 2019 came to be addressed to Manaj in pursuance to the note dated 25 November 2019, President’s Rule had already come to an end in the State of Maharashtra as revoked by the President’s proclamation dated 23 November 2019 and the present Government was sworn in on 28

54. The contention as urged on behalf of the State that an approval of the elected Government was required to be taken to the consent terms when the consent terms were executed on 10 December 2019 and filed before the Court on 12 December 2019 also cannot be accepted. There is no provision in the Constitution being pointed out on behalf of the State, which would require any ratification by the elected Government, of a decision taken by the President acting through the Governor during the subsistence of the President’s Rule, after the President's rule is revoked. Such contention of Mr. Anturkar if accepted would do violence to the Constitutional scheme, as discussed above, and result into a chaotic situation bringing about uncertainty in the affairs of the State. This was never the intention of the Constitution makers in having provisions of Article 356(1) of the Constitution and providing for conferring of powers on the Governor by the President of India during the President's rule. The Constitutional scheme does not make any provision for such ratification. Thus, Mr.Anturkar’s contention that an approval of the appropriate Government was not taken when the consent terms were filed before this Court, so as to have a continuous authorization, deserves to be rejected.

55. In so far as Mr.Anturkar’s contention that the prayer as made in note dated 18 November 2019,in terms of the marked portion “X” (“{k”), was not granted by the Governor, also cannot be accepted. This for the reason that not only the Additional Chief Secretary but also the Chief Secretary and thereafter the Governor have made similar endorsements/approval by putting their signature on the said note without any specific qualification or condition. There is no material placed on record, from any of such signatories to the note dated 18 November 2019, that there was never an intention on their part to bring about settlement and make payment of the amount on which the dispute was settled between the State and Manaj. On the contrary, as noted above there is ample material to show that the order/decision of the Governor was acted upon which is required to be given sanctity as very Senior Officers of the State Government within the framework of law, alongwith the Governor had approved such settlement proposal to be entered by the State Government with Manaj. It cannot be said that such Senior Officers who were involved in the decision making process have either acted illegally or have played fraud on the Government to make such payment, merely because the decision to settle the dispute was taken prior to the formation of the democratically elected Government which was formed on 28 November 2019, so as to come to a conclusion that the consent terms stand vitiated by fraud or that in any manner fraud is played on the Court.

56. In any event if the case of the State of any brazen illegality or lack of authority is to be believed then the logical corollary would have been an appropriate action to be taken at departmental level to undo such alleged illegality. However, there is nothing on record to indicate that any action was taken by the State against any officers which included high ranking officers like the Chief Secretary. There is also nothing on record to show that the Government had approached the Governor, if it had any objection to the decision taken by the Governor. This more so, as at all material times it was permissible for the Governor to say that he had not taken any decision on the note vetted and endorsed by the Chief Secretary to have a settlement with Manaj and pay the amounts under the award, as set out in the note. Hence, the case as pleaded in the review petition appears to be absolutely hollow.

57. In regard to the State's contention that the approval of the Governor on the note dated 18 November 2019 as signed by the Governor on 22 November 2019, was a mere file noting and not an order of the Government, also cannot be accepted in the present facts. The note which the Governor approved was initiated in the PWD department and routed through its competent officers which included the Secretary (PWD), Additional Chief Secretary and the Secretary (Finance) and the Chief Secretary before seeking Governor's approval. Once it was approved by the Governor it became a decision of the Government and at the relevant time that of the President acting through the Governor in terms of the proclamation declaring President's rule read with the Governor's order dated 20 November 2019. Such decision was acted upon by the State as discussed in detail in the foregoing paragraphs. This culminated into the Court accepting the consent plea as made by the parties in passing an order in terms of the consent terms. It is required to be noted that the Court in its order which is sought to be reviewed, recorded the names of the principal signatories to the consent terms as also noted the signatures of the Advocates for the parties as made on the said consent terms. There is nothing placed on record that the learned AGP who signed the consent terms and who was the delegate of the Government Pleader which is not disputed by the State, was in any manner questioned on such action on his part if it was to be objectionable. The learned AGP was called by the Court during the hearing of this petition who has stated that he continues to be in the State’s panel as an AGP. This is being noticed as relevant, also in view of the decision of the Supreme Court in “Y.Saleebachen etc. vs. Superintending Engineer, WRO/PWD & Anr.” (2015) 5 SCC 747 as cited by Mr.Anturkar in the context of the authority of the learned AGP to sign the consent terms. In fact the decision supports Manaj. Facts of the said case are quite similar to the case in hand. In the said case case the arbitrators passed an award in favour of the appellant to pay an amount with interest. The State had challenged such award by filing an application under Section 34 of the Arbitration and Conciliation Act. When such proceedings were pending, there was a proposal from the respondent to negotiate and amicably settle the disputes. As the Superintending Engineer did not agree with the rate of interest, initially the settlement talks failed. However subsequently when the matter came up before the learned District Judge, the appellant agreed to forgo certain interest and made an offer due to acute financial crisis faced by it. When the Government Pleader was confronted with such offer of the appellant, he was of the view that it was a very fair offer, which was in the interest of the respondent-State and was also in accordance with the negotiations held earlier, and accordingly made an endorsement on the offer to the effect that the Government had no objection for accepting the same. This resulted in modifying the award by the District Judge in terms of the agreed condition. The respondent-State however challenged the order of the District Judge in an appeal under Section 37 of the Arbitration and Conciliation Act,1996 before the High Court, primarily on the ground that the Government had never agreed to the terms, as endorsed by the Government Pleader, as he was never authorised for that purpose. It was argued that in the absence of any authorization by the Government Pleader, the endorsement made by him on the compromise was not binding on the Government and that the Government had not entered into any settlement and wanted the matter to be heard on merit. The High Court in these circumstances was of the view that in the absence of any material to show that Government Pleader was authorised to record the compromise, such compromise was not binding on the respondents and set aside the order of the learned District Judge recording the settlement. The appellant challenged the orders passed by the High Court before the Supreme Court. It is in this context, the Supreme Court held that Government Pleader is legally entitled to enter upon a compromise with the appellant and his written endorsement on the Memo filed by the appellant can be deemed as a valid consent of the Respondent itself. It was observed that nothing was brought out by the respondents which would show that advocate was not authorised to enter into such a settlement. It was observed that there was no iota of pleading explaining as to how the Government Pleader was not authorised to record consent or that he has in any manner lacked authority. The Court observed that not only no action was taken against the Government Pleader, the said counsel continued to be on the panel of the Government and was entrusted in with further briefs of Court cases, and this itself shows that the respondents have tried to wriggle out of a valid compromise by taking such spacious plea which cannot be countenanced. It was held that the consent decree operates as an estoppel and was binding on the parties from which the respondents could not wriggle out, on an afterthought plea, that its lawyer was not authorised to enter into such a settlement. The Supreme Court taking a review of the authorities on the subject, in paragraphs 20, 21 and 22 observed as under:- “20. We find that in the present case the Government Pleader was legally entitled to enter into a compromise with the appellant and his written endorsement on the Memo filed by the appellant can be deemed as a valid consent of the Respondent itself. Hence the Counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order 23 Rule 3 and such decree is perfectly valid. The authority of a Counsel to act on behalf of a party is expressly given in Order 3 Rule 1 of Civil Procedure Code which is extracted hereunder; “1. Appearances, etc., may be in person, by recognized agent or by pleader – Any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf: Provided that any such appearance shall, if the court so directs, be made by the party in person.”

21. There is another very important aspect in this case which cannot be side-tracked and needs to be highlighted by us. At the time of arguments, on a pertinent query from the learned counsel for the respondents as to whether any action was taken against the Government Pleader, the learned counsel was candid in accepting that not only no action was taken, the said counsel continued to be on the panel of the Government and was entrusted with further briefs of Court cases. This itself shows that the respondents have tried to wriggle out of a valid compromise by taking such spacious plea which cannot be countenanced.

22. Here is a case where arbitral awards were given in favour of the appellant way back in April and June, 2006. However, the appellant is yet to reap the benefits thereof. Respondent No.1 challenged these awards by filing applications under Section 34 of the Act. When these proceedings were pending, the respondents themselves came out with the proposal to negotiate and try to amicably settle the matters, keeping in view the otherwise laudable decision taken by PWD to settle such disputes as is clear from the letter dated 02.08.2008. Negotiations took place thereafter. Though the appellant had agreed to forgo substantial part of the award in terms of interest, etc., the talks failed at that time as the respondents wanted 10% reduction in the principal amount as well, whereas the appellant was conceding to give up only 5% of the principal amount. Be, as it may, the appellant agreed to give further concessions in the Court when the matter came on 09.04.2011 vide his 3 memos dated 6.4.2011 filed on that date. These memos show that the appellant had given the said offer due to the acute financial crisis he was suffering from as he wanted to satisfy his creditors including his bankers to whom he owed substantial amounts.”

58. Mr.Anturkar’s contention that there is some discrepancy in the note dated 6 January 2020 initiated in the Finance Department in regard to approval sought on the budgetary allocation for the reason that Mr.Manoj Saunik, Additional Chief Secretary who was holding charge as Additional Chief Secretary, Finance, had not put his signature, does not appear to be the correct position. This inasmuch as the request for such budget allocation was endorsed by the Secretary (Finance), Shri.Rajiv Kumar Mittal. The things did not stop at this but the said budget allocation had attained finality as the funds were received by the PWD to the extent the settlement was payable to Manaj.

59. There is also no substance in Mr.Anturkar’s contention that a separate approval was required to be given by the Governor in regard to withdrawal of the Section 34 proceedings. Mr.Chinoy would be right in his contention that once a settlement had taken place between the parties by filing of the consent terms, the obvious consequence was that nothing survived in the proceedings filed by the State under Section 34 of the Act before the learned District Judge, Pune, assailing the arbitral award. In any event all these contentions are not worth, for this Court to exercise its jurisdiction to review the order dated 12 December 2020 passed by this Court.

60. The decisions as relied on by Mr.Anturkar on behalf of the State on the different propositions including that the Court has powers otherwise than under Order 47 Rule 1 to review its orders, are now required to be discussed.:

(I) The decision in Municipal Corporation of Gr.Mumbai & Anr. Vs.

Pratibha Industries Ltd. & Ors. [(2019)3 SCC 203] is relied to canvass a proposition that the High Court being a Court of record as envisaged in Article 215 of the Constitution, has inherent plenary jurisdiction to correct any apparent error, which may be noticed by the High Court in respect of any orders passed by it. That the Superior status of the High Court has been recognized for more than five decades in Shivdev Singh & Ors. v. State of Punjab and Others, (AIR 1963 SC 1909) and thereafter in Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra, [1966] 3 SCR 744, and thereafter in M.M. Thomas v. State of Kerala and Another, (2000) 1 SCC 666. There can be no dispute on such proposition, it is well settled that the jurisdiction of the High Court to recall an order in exercise of its powers under Article 215 of the Constitution would be exercised to correct grave and palpable errors committed by it and to prevent miscarriage of justice. This is not a case where any of such situations arise for the High Court to exercise such plenary powers. These decisions, hence, would not assist the State in the present facts.

(II) In Commissioner of Income Tax, Guwahati VS. Meghalaya

Steels Ltd., [(2015)17 SCC 647], the Supreme Court referring to the decision in Shivdev Singh & Ors. v. State of Punjab and Others (supra) has again recognized that there is nothing in Article 226 to preclude the High Court to exercise the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and patent error committed by it. This decision again in the present facts would not forward the case of the State for review of the order dated 12 December 2019 passed by this Court.

(III) In Dadu Dayal Mahasabha vs. Sukhdev Arya & Anr, [(1990)1

SCC 189] the question which fell for consideration of the Supreme Court was as to whether the trial Court had jurisdiction to cancel the order permitting withdrawal of the suit under its inherent power, if it is ultimately satisfied that the person who withdrew the suit was not entitled to withdraw the same. The Supreme Court held it to be a well established position in law that a Court has inherent power to correct its own proceedings, when it is satisfied that in passing a particular order it was misled by one of the parties. It was held that this principle was correctly discussed in the decision in Sadho Saran Rai vs. Anant Rai [AIR 1923 Pat 483], in pointing out the distinction in cases between fraud practised upon the Court and fraud practised upon a party. It was held that if a party makes an application before the Court for setting aside the decree on the ground that he did not give his consent, the Court has the power and duty to investigate the matter and to set aside the decree if it is satisfied that the consent as a matter of fact was lacking, and the Court was induced to pass the decree on a fraudulent representation made to it, that the party had actually consented to it. It was observed that if, however, the case of the party challenging the decree is that he was in fact a party to the compromise petition filed in the case, but his consent has been procured by fraud, the court cannot investigate the matter in the exercise of its inherent power and the only remedy to the party is to institute a suit. The Court held that “the factum of the consent can be investigated in summary proceedings, but the reality of the consent cannot be so investigated.” Mr.Anturkar relying on such observations has submitted that this is a case where the factum of the case is required to be investigated by the Court. Mr.Anturkar's submission is required to be stated only to be rejected in the present facts. As observed above, there is no material on record even remotely to suggest that there was any fraud as practised upon the Governor in taking decision on 22 November 2019 approving the settlement and/or any fraud practised by any other officers in executing the consent terms and seeking an order in terms of the consent terms. It needs to be observed that the State cannot be so casual in alleging a case of fraud in the absence of any material. If it was to be a case of fraud, then certainly remedial action at the level of the State Government could have been taken which would certainly involve high ranking officers in the decision making process apart from the Governor, Chief Secretary, Additional Chief Secretary and the officers below them. The fraud of such magnitude on the facts and on record is unthinkable and totally imaginary for the State to be canvassed before the Court. The decision in Dadu Dayal Mahasabha vs.Sukhdev Arya & Anr, is certainly inapplicable in the present facts. For such reason even the decision of the learned Single Judge in Horace Kevin Gonsalves Vs. Prabha Ganpat Borkar (Miss) & Anr. 2015(6) Mh.L.J. 208 is not well founded.

(IV) The decision in N.Mani Vs. Sangeetha Theatre & Ors.

[(2004)12 SCC 278] has been relied to canvass a proposition that the Court should not rest on technicalities in exercising its review jurisdiction as source of power can be, not only under Order 47 Rule 1 or Section 151 of the Code of Civil Procedure but also under Article 215 of the Constitution. The legal proposition cannot be disputed. In the said case the Supreme Court was hearing a challenge to the decision of the Division Bench of the High Court dismissing the writ petition of the appellant. The principal reason which had prevailed with the High Court in setting aside its order as challenged by the appellant, being that there was no reference in the order to Section 11 of the Tamil Nadu Cinemas (Regulations) Act,1955. It was observed that the Division Bench was not right in forming such opinion as the power to grant permission has been specifically conferred on the Government by the proviso inserted to Rule

14. It was observed that merely for the reason Section 11 of the Act was not specifically referred in the order dated 30 October 1995, that could not have been a ground for setting aside the permission. It is in this context, it was held that it is well settled that if a statutory authority has a power under the law, merely because the source of power was not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power, so long as the power does exist and can be traced to a source available in law. I fail to understand as to how this decision would in any manner assist the State.

(V) In regard to Mr.Anturkar's contention relying on the decision of the Supreme Court in Narmada Bachao Andolan vs State Of M.P. & Anr. (supra) and the decision of the Division Bench of this Court in Bal Kalyani And Others vs State Of Maharashtra And Others (supra), that the rules of business and more particularly pertaining to financial implications would require mandatory compliance, there can be no two opinions. However, in the present case, as the facts reveal, such decisions would not assist the State's case for two fold reasons; firstly it is quite clear that the Governor acting as a delegate of the President of India, had taken a decision and it was within his authority to take a decision in consultation with the Chief Secretary on matters involving financial implications. Secondly, the elected Government so formed also has not in any manner sought to undo the said decision and in fact the decision was acted upon by the Finance Department by making payment of Rs.[1] crore in December 2019 and also an approval in regard to allocation of funds was also sought by the elected Government before the legislature. Thus, the decisions which are not in the context of the peculiar situation as in the present case, are certainly not applicable.

(VI) In so far as Mr.Anturkar's contention that the decision of the

Governor is merely a file noting and not a decision of the Governor, relying on the decision of the Supreme Court in Pimpri Chinchwad New Township Development Authority Vs. Vishnudev Co-op.Housing Society (supra) is not well founded. In such case the Supreme Court was concerned with a purported order passed by the Hon'ble Minister on deacquisition of the land under Section 48 of the Land Acquisition Act,1894. The question before the Court was whether the Revenue Minister who was acting for and on behalf of the State, had the power, in the background facts of the case, to invoke the provisions of Section 48 of the Act for release of the acquired land. Considering the facts and circumstances of the case, the Court answered the said question in the negative and held that mere noting in the official files of the Government while dealing with any matter pertaining to any person is essentially an internal matter of the Government and carries with it no legal sanctity. It was however observed that once the decision on such issue is taken and approved by the competent authority empowered by the Government in that behalf, it is required to be communicated to the person concerned by the State Government. It was clarified that so long as the decision based on such internal deliberation is not approved and communicated by the competent authority, as per the procedure prescribed in that behalf, to the person concerned, such noting does not create any right in favour of the person concerned nor it partakes the nature of any legal order so as to enable such person to claim any benefit of any internal deliberation. It was held that such notings and/or deliberations are always capable of being changed and/or amended and/or withdrawn by the competent authority. In the present case, it is quite clear that the Governor had taken a decision as contained in the department's note dated 18 November

2019. The most distinguishing feature being that the decision was communicated to Manaj. It was further acted upon by inviting consent of Manaj who agreed to the consent terms, and the consent terms accordingly came to be prepared and finalised and tendered before the Court on 12 December 2019 which was very much at the time when the elected Government was functional. Thus, the principle of law as enunciated in decision of the Supreme Court in Pimpri Chinchwad New Township Development Authority (supra) is inapplicable in the facts of the present case.

61. Having examined the assail of the State to the impugned consent order, the more fundamental question which would arise for consideration would be as to whether it is at all necessary to exercise the Court’s review jurisdiction in the present facts. As observed above certainly this is not a case wherein there is any grave or any palpable error and/or situation which would create miscarriage of justice requiring this Court to exercise its plenary jurisdiction as a superior Court. The position qua the exercise of jurisdiction under Order 47 Rule 1 of the Civil Procedure Code would also not be different in the present case. The order of which review is prayed for is dated 12 December 2019, passed by this Court in the execution proceedings instituted by Manaj invoking Order 21 of the Code of Civil Procedure. By the said order the Court accepted the consent terms between the parties, and disposed of the execution application in terms of the consent terms. The present review petition is thus necessarily filed under the provisions of Order 47 Rule 1 of the Code of Civil Procedure. The law in regard to the exercise of power under Order 47 of the Civil Procedure Code is well settled, that an order may be open to review, if there is mistake or error apparent on the face of the record. It is well settled that an error may be a ground for review which is one apparent from the face of the record. It is to be an imminent error, an error which would strike on a mere looking at the record and would not require any long drawn process of reasoning on the point that may conceivably have two opinions. It must be an error so manifest and clear that no Court permits such error to remain on record. If such is not the case, it would amount to Court arrogating itself to decide the case over and over again. Thus, an error which is not apparent and which is required to be investigated and searched is not an error apparent on the face of the record, so as to exercise jurisdiction under Order 47 Rule 1. The legal position in this regard can be seen from the decision being discussed hereafter.

62. In Parsion Devi & Ors. Vs. Sumitri Devi & Ors. [(1997)8 SCC 715] in regard to the jurisdiction of the Court under Order 47 Rule 1 of the Code of Civil Procedure, the Court held as under:-

The above view has been reiterated with approval in the subsequent decision in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors. (supra) as relied on behalf of Manaj.

63. In Asharafi Devi (D) Thr. Lrs. vs State Of U.P. (2019)5 SCC 86, the Supreme Court has held that every error factual or legal cannot be the subject matter of review under Order 47 Rule 1 of the CPC. The review jurisdiction is thus not available to be exercised in the facts of the present case as this is not a case that a fraud has been practised upon the Court to obtain a consent order nor is it a case where the Court is misled by a party or a case where the Court itself has committed mistake which prejudices a party.

64. In any event admittedly the order under review is an order accepting the consent terms as entered between the parties. It is well settled that the consent decrees are entitled to create estoppel, which put an end to further litigation between the parties. In the present case as noted above there is nothing on record either of a fraud on the Court or fraud on the Governor much less of established fraud which would in any manner vitiate the consent terms. The Court also cannot be oblivious that the review petition is filed after a lapse of 10 months as pointed out on behalf of Manaj. The review petition thus clearly appears to be an after thought, this more so when the consent terms were fully acted upon.

65. The upshot of the above discussion is that the State was totally ill-advised to file this review petition and to assail the consent order passed by this Court on 12 December 2019. No ground whatsoever has been made out for this Court to exercise its review jurisdiction. The Review Petition is accordingly dismissed. However, I refrain from passing any order as to cost.

66. Before parting it needs to be observed that the above observations are purely in the context of the review proceedings and none of the contentions of the parties in regard to the consequences which may emanate from the consent terms are examined in the present proceedings. The contentions of the parties in that regard are expressly kept open.

67. The review petition is accordingly rejected, however, with no order as to costs. (G.S.Kulkarni, J.) (Judgment is corrected as per speaking to the minutes of the order dated