1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Misc. Civil Application No.1087/2009 in LPA No. 307/2008 in Writ Petition No.5297/2006 Ravindrapal s/o Vasudeorao Dhawan Vs. Smt. Savitridevi wd/o Hansraj Arora and others. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. M.G. Bhangde, Adv. with Adv.Kotwal, Adv. for the applicant Mr. Mahesh Mourya, Advocate for respondents 1, 3 to 5. Respondent no.2 in person. Mrs. Dangre, Additional G.P. for respondents 6 to 8. CORAM: A.P. Lavande & Prasanna B. Varale JJ. Date of reserving order : 19.3.2010. Date of pronouncing the order :23/4/2010. By this application, the applicant seeks review of order dated 30th September 2008 by which LPA No. 307/2008 filed by the applicant against judgment and order dated 12.8.2008 passed by learned Single Judge in Writ petition No. 5297/2006 was dismissed. The applicant preferred the above referred writ petition before the learned Single Judge challenging the orders dated 3.7.1993 passed by Desk Officer, State of Maharashtra Revenue and Forest Department and also order dated 25.7.2006 passed by the State Government rejecting the regularisation in favour of the petitioner. The Writ Petition was dismissed by the learned Single Judge, who directed that an area of 3965 square feet of the applicant be taken in possession by the Government Officers and further directed that an area of 1394 square feet in possession of respondents 1 to 5 be also taken. 2 Before filing the review application, the applicant filed Special Leave Petition before the Apex Court against the order of dismissal of letters patent appeal passed by the Division Bench of this Court. The Special Leave Petition was summarily dismissed by the Apex Court on 2.1.2009. The review application was admitted on 5th December, 2009 after hearing learned counsel for the petitioner as well as counsel for the respondents 1, 3 to 8 and respondent no.2 in person. The review application has been filed primarily on the ground that ground no.2 urged in the memo of appeal before the Division Bench was not dealt with although the same was argued. According to the applicant, while passing the order dismissing the LPA which is sought to be reviewed, no reason has been given as to for rejecting the submissions made in respect of ground no.2 of the Memo of Appeal, which goes to root of the matter. When the matter was taken up for final hearing, learned counsel for the respondents 1, 3 to 5 and respondent no.2 submitted that the review application was not tenable since this Court had no jurisdiction to entertain the review application in LPA. Reliance was sought to be placed on the following judgments:- (i) Abbai Maligai Partnership Firm and another V.K. Santhakumaran and others : AIR 1999 SC 1486; and (ii) K. Rajamouli v. A.V.K.N. Swamy : AIR 2001 SC 2316 3 Mr. Bhangde, learned Senior Counsel appearing for the applicant submitted that this Court has admitted the review application after hearing all the parties and, therefore, at this stage, respondents 1 to 5 are not entitled to raise this point since the same was not specifically raised at the time of review application. Indisputably, review application was admitted after hearing all the parties and at that stage the issue regarding maintainability of review application was not specifically raised by the respondents 1 to 5. This Court placing reliance upon the judgment of the Apex Court in the case of Kunhayammed And others vs. State of Kerala and another (2000) 6 SCC 359 held that dismissal of Special Leave Petition would not bar for filing of the review application and consequently admitted review application. Since the review application was admitted after hearing all the parties, we are not inclined to entertain the objection regarding maintainability of the application at the stage of final hearing. Therefore, we reject objection taken by respondents 1 to 5 regarding maintainability of the application at this stage. Coming to the merits of the application, according to the applicant, in memo of appeal filed before this Court, the applicant had urged ground no.(II) and counsel for the applicant-appellant had made submissions in support of the said ground. This fact has been fairly conceded by Mrs. Dangre, learned Additional Government Pleader appearing for respondents 6 to 8. Respondents 1 to 5 in their replies have not 4 specifically denied this fact. Ground no.(II) in the memo of appeal reads thus :- “That, the observations and findings to the effect that, the petitioner/appellant and his wife's demand for encroachment and allotment of the land admeasuring about 3965 Sq. ft. on the Government land is absolutely unjustified and shows nothing but the greed are perverse. The Hon'ble Single Judge failed to refer and consider that the petitioner/appellant had made an application for allotment and regularization of about 2132 Sq. ft of land and on the basis of his application, Revenue Case No.83/LNA-22/85-86 was started and in the said case the Nazul Naib Tahsildar had prepared a report stating therein that Town Planning Department had no objection for allotment of 2045 Sq. ft. of land against the claim of 2132 Sq. ft. of land and in so far as the petitioner's wife claim was concerned, she had also applied for adjacent portion of land for allotment and regularization in accordance with the Rules and as per Rules 43, 50 of the Land Disposal Rules read with Sections 50 and 51 of the Land Revenue Code, the petitioner and his wife were entitled to allotment and regularization as they were owners of the adjacent portion of land by virtue of registered Sale Deeds in their 5 favour. The Hon'ble Single Judge has not at all considered this material aspect which though was pointed out at the time of hearing. The impugned Judgment is, therefore, liable to be quashed and set aside to that extent.” Perusal of the above referred ground discloses that the applicant had urged that learned Single Judge had not considered that the applicant and his wife are entitled to allotment and regularization as they were owners of adjoining portions of the land in terms of Rules 43 and 50 of Lands Land Disposal Rules read with Sections 50 and 51 of the Land Revenue Code. Since ground, which goes to the root of the matter, was urged before the Bench, and perusal of the order discloses that the same has not been specifically dealt with by the Bench while passing the order dismissing LPA, we are of the considered opinion that the order dismissing the appeal discloses an error apparent on the face of the record inasmuch as the ground deserves to be dealt with on merits. On this ground alone, we are of the considered opinion that the application deserves to be allowed and is accordingly allowed. Consequently, order dated 30.9.2008 passed in LPA No.307/2008 is recalled. Registry is directed to place LPA on admission board before the appropriate Bench. No order as to costs. Needless to mention that we have not expressed any opinion on the merits of the matter and the order has been recalled solely on the ground that finding on ground no.(II) 6 which was taken in memo of appeal and urged at the time of admission of the appeal has not been given. JUDGE JUDGE Ambulkar.