Gujarat High Court Case Information System Print SCA/2457/2012 17/ 17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2457 of 2012 For Approval and Signature: HON'BLE SMT. JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No [ENTITY] & 3 - Petitioner(s) Versus [ENTITY] & 2 - Respondent(s) Appearance : MR [ENTITY] for Petitioners MR [ENTITY], ASSTT. GOVERNMENT PLEADER for Respondents CORAM : HON'BLE SMT. JUSTICE [ENTITY] Date : 05/03/2012 ORAL JUDGMENT
Rule.
Mr.[ENTITY], learned Assistant Government Pleader, waives service of notice of Rule for the respondents.
The challenge in this petition under [SECTION] and [SECTION] of the [ACT] is to the order dated 17.06.2008, passed by the [ENTITY], rejecting the application of the petitioner for regularization of the land in question, and to orders dated 25.03.2009 and 12.01.2012, passed by the Secretary (Appeals), Revenue Department, rejecting the revision application and the application for review filed by the petitioner, respectively.
The factual background in which the petition has been filed is as follows:
One [ENTITY], predecessor-in-title of the petitioner, was granted
2 Acres and 34 Gunthas of land bearing Block No.2/A of Village Adalaj, on payment of three times the land revenue, in the year 1950. The allottee did not pay the amount of land revenue, therefore, an order came to be passed in 1960, whereby the land in question was forfeited to the State Government. Revenue Entry No.3907 was mutated in the revenue record on 20.07.1960, to this effect. The original allottee died on 03.10.2011. The son of the original allottee and father of the present petitioners made an application to the [ENTITY], on 11.04.2007, to the effect that the order of forfeiture of land was passed without hearing his predecessor-in-title and as the land was in his possession and his family was surviving upon its income, it may be regranted. This application was rejected by the Collector, vide impugned order dated 17.06.2008. The said order of the Collector was the subject-matter of a revision application under [SECTION] of the [ACT] ("the Code" for short) and came to be rejected by the Secretary (Appeals), Revenue Department, vide impugned order dated 17.03.2009 (25.03.2009). The petitioners filed a petition, namely [CASE NUMBER], against the orders dated 17.06.2008 and 25.03.2009 passed by the Collector and the Secretary (Appeals), Revenue Department, respectively. This petition was withdrawn by the petitioners with a view to submitting a review application before the revisional authority. Permission to withdraw the petition was granted vide order dated 28.06.2010. Thereafter, the petitioners filed an application for review of the order dated 25.03.2009, that has been rejected by the impugned order dated 12.01.2012, on the ground that no powers of review have been conferred upon the revision authority under [SECTION] of the Code. Aggrieved thereby, the petitioners have approached this Court by making the prayers referred to above.
Mr.[ENTITY], learned advocate for the petitioners, has submitted that even if it is assumed that no powers of review are conferred upon the revisional authority under [SECTION] of the Code, the Court can still entertain the petition by looking into the legality of the orders dated 17.06.2008 and 25.03.2009 passed by the Collector and Secretary, respectively. It is contended that [CASE NUMBER], was not decided on merits, therefore, the challenge to the above-mentioned orders is not hit by res-judicata. It is further submitted that the petitioners can be relegated to the Secretary for fresh hearing as it was only a because a proper opportunity of hearing had not been granted to the petitioners before passing the order dated 25.03.2009, that the earlier petition had been withdrawn and the application for review was filed. That, the Secretary had fixed the hearing to decide the application for grant of interim relief but, instead, had heard the main revision application and rejected it vide the impugned order dated 25.03.2009, therefore, the said order may be quashed and the Secretary (Appeals) may be directed to reconsider the revision application of the petitioners on merits after granting an opportunity of hearing. That even the order of the Collector dated 17.06.2008 cannot be sustained, as it has been passed without hearing the petitioners, and the application for regrant/ requisition of the land occupied by the petitioners has been rejected only on the ground of delay. The principles of natural justice have been violated, therefore, the prayers made in the petition be granted.
The petition is strongly opposed by Mr.[ENTITY], learned Assistant Government Pleader, by submitting that it is not maintainable, as the petitioners had withdrawn the earlier petition whereby the same orders of the Collector and revisional authority, except the order passed in review, had been challenged. The petition had been withdrawn with the specific purpose of availing of the remedy of review. In view of the principles of law laid down by this Court in [PRECEDENT], once a petition challenging a decision rendered by any authority is withdrawn with a view to availing remedy of a review or representation, a fresh petition cannot be filed in absence of a new cause of action. It is, therefore, submitted that the petition be dismissed.
Having heard the learned counsel for the respective parties, and upon perusal of the averments made in the petition and the documents appended thereto, the first question to be determined by this Court is whether the order dated 12.01.2012, passed by the Secretary (Appeals), Revenue Department, upon the application for review filed by the petitioners is legally sustainable, or not. [SECTION] of the Code reads thus:
211. Power of State Government and of certain revenue officers to call for and examine records and proceedings of subordinate officers:-
The State Government and any revenue officer, not inferior in rank to an Assistant of Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.
The following officer may in the same manner call for and examine the proceedings of any officer subordinate to them in any manner in which neither a formal nor a summary inquiry has been held, namely a Mamlatdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer.
And to pass orders thereupon - If in any case, it shall appear to the State Government, or to such Officer aforesaid, that any decision or order or proceedings so called for should be modified, annuled or reversed, it or he may pass such order thereon as it or he deems fit:
Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit."
A perusal of the above provision makes it clear that no power of review is conferred upon the revisional authority by the statute. The revisional authority exercising power under [SECTION] of the Code, being a quasi-judicial authority, cannot exercise power beyond the ambit and scope of the said provision of law. As the power of review has not been conferred upon the revisional authority under [SECTION] of the Code, therefore, the conclusion arrived at by the Secretary (Appeals), in rejecting the revision application by order dated 12.01.2012, on the ground that no power of review is available under [SECTION] of the Code, does not suffer from any legal infirmity. The position in this regard is no longer res-integra.
In [PRECEDENT], the Supreme Court has held that:
"11. It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority. It is not disputed that the provisions of the [ACT] or of the Statutes of the University do not confer any power of review on the Vice-Chancellor.
In the circumstances, it must be held that the Vice-Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The said order of the Vice-Chancellor dated March 7, 1987 was a nullity."
In [PRECEDENT], the Court has observed in Paragraph 9 that:
"9. The contention of Mr.[ENTITY], the learned Advocate for the appellant, is that the Government can exercise its powers under [SECTION] only once, and once any such powers are exercised by the State Government either suo motu or at the instance of some one else under any provision of law which entitles it to revise the same, its powers stand exhausted. In other words, according to him, it cannot revise the order passed by it, or, rather, it cannot review its own order once passed in absence of any specific provision whereby such powers are given to it in law. Now, it is common ground and over which no dispute is raised by Mr.[ENTITY], the learned Assistant Govt. Pleader for the state, that there is no provision in the [ACT], whereby the State Government can review its own order already passed in exercise of its powers under [SECTION] of the [ACT], and, therefore, if the contents of the letter dated 23-8-60 can be taken as a decision so communicated in the matter, the remedy of the State Government under [SECTION] would not survive. It may, if permissible in law, have recourse to a remedy by filing a suit in a civil Court. But it cannot review its own order. No such powers are shown to have been in the State Govt. under the provisions of the [ACT]."
As it is a settled position of law that no power of review has been conferred upon the revisional authority under [SECTION] of the Code, interference with the order dated 12.01.2012, passed by the Secretary (Appeals), is not warranted.
That leaves the Court to deal with the challenge to the orders dated 17.06.2008, passed by the Collector, and 25.03.2009 (17.03.2009), passed by the Secretary (Appeals). It is an admitted position that the petitioners had challenged both the aforesaid orders before this Court by filing [CASE NUMBER]. The papers of that petition have been called for by this Court and have been perused. The grounds of challenge to both these orders are similar to the ones raised in the present petition. It is not in dispute that the land in question has been forfeited to the State Government by order dated 30.03.1960, passed by the Prant Officer, Viramgam and an entry to this effect has been mutated in the revenue record on 20.07.1960. Neither has the order of forfeiture nor the resultant entry, been challenged by the predecessors-in-title of the petitioners. It is only on 23.02.2007 that the father of the petitioners made an application to the Collector for regrant of the land which, has been rejected by the impugned order dated 17.06.2008, mainly on the ground that it was made after about 47 years. The challenge to the order of the Collector has been negatived by the Secretary (Appeals) by the impugned order dated 25.03.2009 (17.03.2009), after hearing the parties. A perusal of the said order reveals that though the matter was kept for hearing the application for interim relief, the revision application itself was taken up for hearing in the presence of the learned advocate for the father of the petitioners. [CASE NUMBER] was filed by the petitioners, challenging the orders dated 17.06.2008 and 25.03.2009 (17.03.2009) of the Collector and Secretary (Appeals), on the same ground as raised in the present petition. The challenge was given up by the petitioners by withdrawing the said petition, with a view to availing the remedy of review.
The main thrust of the submissions advanced by the learned advocate for the petitioners is that the order of withdrawal in the above petition is not an order on merits, therefore, it would not constitute res-judicata, or come in the way of the petitioners in challenging the orders dated 17.06.2008 and 25.03.2009 of the Collector and Secretary (Appeals), in the present petition. This submission of the learned advocate for the petitioners is not found worthy of acceptance in view of the decision of the Supreme Court in [PRECEDENT].
The principles of law enunciated by the Supreme Court in the said decision are reproduced hereinbelow:
"7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in [SECTION] of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying [SECTION] of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in [SECTION]. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res-judicata contained in [SECTION] of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit. or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in [SECTION] of the Code when the first suit is withdrawn without the permission referred to in [SECTION] in order to prevent the abuse of the process of the Court.
8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying [SECTION] of the Code is adopted in respect of writ petitions filed under [SECTION] of the [ACT] also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in [PRECEDENT] in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under [SECTION] of the [ACT] because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in [PRECEDENT]'s case (supra) is to be found at page 593 and it is as follows:
"If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under [SECTION], because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other."
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under [SECTION] of the [ACT] without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in [PRECEDENT]'s case (supra) is of no assistance. But we are of the view that the principle underlying [SECTION] of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under [SECTION] of the [ACT] once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under [SECTION] of the [ACT] since such withdrawal does not amount to res judicata, the remedy under [SECTION] of the [ACT] should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under [SECTION] of the [ACT] since such a case stands on a different footing altogether. We however leave this question open."
Applying the said principles of law to the facts of the present case, it emerges that while withdrawing [CASE NUMBER], the petitioner had not reserved liberty to challenge the orders dated 17.06.2008 of the Collector and 25.03.2009 (17.03.2009) of the Secretary (Appeals), in a subsequent petition. The petitioners cannot, therefore now seek to challenge the said orders in the present petition.
In [PRECEDENT] (supra), this Court has held:
"2. Earlier petition was filed challenging the decision rendered by the Tribunal and the petition was withdrawn. Obviously, the said decision could not be challenged by the petitioner before this Court again. There was no order passed by the Tribunal which could have been challenged by the petitioner. In our opinion, this is nothing but an abuse of process of law "
Viewed from all angles, the petition cannot succeed. The order dated 12.01.2012 passed by the Secretary (Appeals), being just and proper, deserves no interference. The challenge to the orders dated 17.06.2008 of the Collector and 25.03.2009 (17.03.2009) of the Secretary (Appeals), having been given up by the petitioners by withdrawing the earlier petition without reserving liberty, with a view to filing a review application, the same orders cannot be challenged in the present petition, in view of the judicial pronouncements referred to hereinabove.
For the aforestated reasons, as there is no merit in the petition, it stands rejected. Rule is discharged. There shall be no orders as to costs.
(Smt. [ENTITY], J.) (sunil)