JUDGEMENT
VIJAY MANOHAR SAHAI, J. -
(1.)THE short question that arises for consideration in this appeal is whether where the petitioner seeks permission to
withdraw the writ petition to enable him to file review petition and
the Court permits such withdrawal, whether second writ petition
filed by him challenging the order passed in review as well as the
other orders which were challenged in earlier petition is
maintainable ?
(2.)THE brief facts of the case are that by order No.L&N/I - 336, one Chaturji Savaji was granted 3 Acres 0 Gunthas of land bearing Survey No.2 having Akar 10 -1 -0 payment of a patta amount
fixed by the Prant Officer of Viramgam. Pursuant to this order,
Revenue Entry No.3171 was mutated on 15.4.1952. The said entry
was verified and certified on 27.5.1952. It is further stated that
without there being any further detail, the record shows that Prant
Officer of Viramgam passed order bearing No.LND(D)/SR -744/66
by which the land was declared as Khalsa land on the ground of
some breach of conditions. Revenue entry to this effect was
mutated bearing No.3907 on 20th July, 1960.
2.1 The above said entry was, in fact, not implemented and the possession of the land remained with the grandfather of the appellants, father of the appellants and thereafter with the present appellants. The revenue record speaks that the appellants and their family members were holding the land and cultivating the land without having knowledge and detail of passing of any order of forfeiting the land. 2.2 A residential house had been constructed thereon admeasuring 30 x 17 Sq. Mtr. Sanad had been issued by the Inquiry Officer, City Survey, Adalaj, Dist. Gandhinagar under the provisions of Section 133 of the Bombay Land Revenue Code, 1879. 2.3 From the revenue officer, the father of the appellants came to know that an order had been passed for forfeiting the land of the appellants and their father. Therefore, on 23.2.2007, the father of the appellants applied to the District Collector, Gandhinagar stating therein that passing of order of forfeiting the land was without hearing the appellants and their forefathers and land is still continued in the possession of the appellants and they are surviving on the income received from the cultivation of the land. The District Collector, Gandhinagar by communication dated 6th March, 2007 informed that the application of the appellant was sent to the Mamlatdar, Gandhinagar for verifying the proposal. It is further stated that without hearing the appellants, the District Collector, Gandhinagar rejected the application of the appellants only on the ground that the application had been filed after number of years. The Collector did not provide any opportunity of hearing as well as did not consider any revenue records to verify the possession of the appellants of the land in question. Thereafter, the appellants again made representation in April 2008, however, the same remained undecided and unheard. 2.4 Against the order passed by the Collector, Gandhinagar, the appellants preferred Revision Application before the Revenue Secretary (Appeals) on 29.7.2008. However, the Revenue Secretary (Appeals) on 25.3.2009, though fixed the matter for hearing the application for interim relief, but he had rejected the Revision Application.
The appellants challenged the order dated 25.3.2009 passed by the Revenue Secretary (Appeals) as well as the order
dated 17.6.2008 passed by the District Collector, Gandhinagar, by
means of Special Civil Application No.4637 of 2010 wherein the
learned counsel for the petitioner sought permission to withdraw
the writ petition as the appellants proposed to file review
application before the Revisional Authority because in the revision
application, hearing on the interim relief application was fixed and
revision was not heard on merits. The Court granted permission to
the appellants to withdraw the writ petition for filing review
application by order dated 28.6.2010. The order dated 28.6.2010 is
reproduced below : -
"Shri Joshi, learned advocate for the petitioner seeks permission to withdraw the present petition as the petitioner proposes to submit review application before the Revisional Authority as according to him petitioner was not heard on final hearing and the hearing was on the interim relief application. Permission is accordingly granted. Petition is dismissed as withdrawn without expressing any opinion with respect to maintainability and / or entertainability of such an application. As and when such an application is made same shall be considered in accordance with law and on merits. With these, present Special Civil Application is dismissed as withdrawn."
(3.)FROM the above order, it is clear that the Court permitted the appellants to withdraw the writ petition to enable
them to file a review application, but made it clear that the Court is
not expressing any opinion as to whether the review application
was maintainable or not which was required to be considered by
the Revisional Authority in accordance with law.
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