KHIMJIBHAI SAVSHIBHAI (KHIMJIBHAI SAVSIBHAI DABHI) v. STATE OF GUJARAT
2015-01-07
A.G.URAIZEE, K.S.JHAVERI
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DigiLaw.ai
JUDGMENT KS JHAVERI, J. By way of filing these appeals under Clause 15 of the Letters Patent, the appellant – original petitioner has challenged the order dated 13th August 2013 passed by the learned Single Judge in Special Civil Application Nos.11496 – 11498 of 2013 vide which the learned Single Judge has rejected the writ petitions filed by the appellants. The petitioner is occupant of land admeasuring 173.36 square metres of Revenue Survey No.46/1 of village Nana Paliyad, Taluka: Chotila, District: Surendranagar. As the application made by the petitioner for regularization of his encroachment upon the said land was rejected by the Collector, Surendranagar by order dated 26.2.1999, he preferred revision before the Additional Secretary, Revenue Department (Appeals). The said revision application is numbered as Revision Application No.MVB/JMN/SNR/17/2000 (Dasu), which was rejected by an order dated 5.1.2006. Being aggrieved, the petitioner approached this court by way of a writ petition being Special Civil Application No.20336 of 2006. By an order dated 22.9.2006, the said petition came to be dismissed on merits. However, as the learned advocate for the petitioner requested that some reasonable time should be given to the petitioner to vacate the land occupied by him, the petitioner was granted time till 15.12.2006 upon the petitioner filing an undertaking before the court to vacate and remove the encroachment on or before 15th December, 2006 and in the event the petitioner fails to comply with the declaration made in the undertaking of vacating on or before 15th December, 2006, the authority shall be at liberty to remove the encroachment made by the petitioner. Subsequently, the petitioner moved an application for recalling the earlier order dated 19.9.2006. By an order dated 12.12.2006, the said application came to be rejected by the court. The petitioner challenged the above order dated 12.12.2006 passed in Miscellaneous Application No.3142 of 2006 by way of a letters patent appeal being Letters Patent Appeal No.1614 of 2006. By an order dated 19.12.2006, the letters patent appeal came to be dismissed with costs. Thereafter, the petitioner filed a review application before the State Government on 9th January, 2007. By the impugned order dated 11.10.2012, the revisional authority rejected the revision application on the ground that against the earlier order passed by the revisional authority, the petitioner had filed a writ petition, review and appeal before the High Court, which came to be dismissed.
Thereafter, the petitioner filed a review application before the State Government on 9th January, 2007. By the impugned order dated 11.10.2012, the revisional authority rejected the revision application on the ground that against the earlier order passed by the revisional authority, the petitioner had filed a writ petition, review and appeal before the High Court, which came to be dismissed. Being aggrieved, the petitioner has filed the petitions challenging the said order. The learned Single Judge has rejected the writ petitions by observing as under: “9) At this juncture, it may be germane to refer to the order passed in the letters patent appeal, wherein the court observed that the petitioner had contended that he has not removed the encroachment and now claims that he should be allotted the plot, as has been stated to be done in the case of other persons. A memorandum of the above letter patent appeal reveals that it was the case of the petitioner that he wanted to point out to the learned Single Judge that in three survey numbers of two villages-there were 300 to 400 encroachments and about 80 to 90% of such encroachments had been regularized. The Division Bench, after considering the said submissions, observed that the petitioner himself having given an undertaking to the effect that he will remove the encroachment before 15th December, 2006, cannot be permitted to go back from the undertaking and further he cannot claim parity with the person who has not given such undertaking. 10) In the light of the aforesaid observation made by the Division Bench, the question of the petitioner relying upon the orders passed in the case of similarly situated persons, no longer arose. Despite the aforesaid position, after the judgment was delivered by the Division Bench, the petitioner moved a review application before the State Government. In the opinion of this court, once the order passed by the State Government was subject matter of challenge in a writ petition and the same had been upheld on merits, the question of filing a review application before the revisional authority would no longer arise.
In the opinion of this court, once the order passed by the State Government was subject matter of challenge in a writ petition and the same had been upheld on merits, the question of filing a review application before the revisional authority would no longer arise. Despite the aforesaid position and more so though the Division Bench had already expressed it opinion on the claim of parity sought for by the petitioners by holding that the petitioner could not claim parity with other similarly situated persons who had not given undertakings in terms of the undertaking given by the petitioner that he would remove the encroachment before 15th December, 2006, the petitioner moved the revisional authority seeking review of the earlier order. The revisional authority was therefore, wholly justified in rejecting the revision application in view of the fact that the earlier order passed by it had attained finality by the above judgment and order passed by the Division Bench. 11) In the aforesaid backdrop, no infirmity can be found in the impugned order passed by the revisional authority rejecting the revision application filed by the petitioners. The submission made by the learned advocate for the petitioners that the revision application had been filed on the basis of a subsequent event, namely, an order dated 2.1.2007 made by the State Government, regularizing the encroachment in the case of adjacent land holder, does not merit acceptance, inasmuch as, even before the Division Bench, it was the case of the petitioners that in case of similarly situated persons, encroachments had been regularized, which contention had been specifically turned down by the Division Bench by observing that the petitioners cannot seek parity with persons who had not filed undertakings in the nature of the undertaking given by them.” The learned Single Judge has rightly rejected the writ petitions and we are in complete agreement with the view taken by the learned Single Judge. After dismissal of writ petition and the letters patent appeal, if there are any subsequent developments, it is not appropriate for the petitioner to approach the State Government by preferring review application. The appellant is required to approach either the Division Bench for review or to file independent proceedings. Hence, all these appeals are dismissed. No costs. In view of the dismissal of the appeals, Civil Applications do not survive and the same stand dismissed.
The appellant is required to approach either the Division Bench for review or to file independent proceedings. Hence, all these appeals are dismissed. No costs. In view of the dismissal of the appeals, Civil Applications do not survive and the same stand dismissed. Interim relief granted therein stands vacated.