(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1 We have heard learned Advocate Ms. Kruti M. Shah for appellants, learned Advocate Mr. Murali N. Devnani for respondent No.1 and learned AGP Mr. N.J. Shah for respondents No. 2 to 5.
2 The present Letters Patent Appeal has been filed by the appellants – original petitioners challenging the Order dated 26th July, 2010 passed by the learned Single Judge in Special Civil Application No. 8459 of 2010. It is the case of the appellants – original petitioners that the land was originally allotted to Kalabhai Somabhai Harijan, who belongs to scheduled caste community, under the scheme of the government. After his death, the names of his legal heirs i.e. present appellants No. 1 to 8 have been mutated. Thereafter, the Deputy Collector, Gondal, issued notice for breach of condition against the present appellants on the ground that the land has not been cultivated for many years. However, thereafter, the Deputy Collector has taken a sympathetic view in the matter and dropped the notice vide its order dated 24.3.1999. In the year 2001, another case of breach of condition was instituted against the appellants by the Deputy Collector on the ground that the land allotted by the government to the predecessor of the appellants has been transferred by the appellants by way of a Will without obtaining any permission from the concerned authority. Though, the Will could come into effect only after the death of the appellants, but the factum of transfer of the land by way of a Will in favour of another person was not disputed. Therefore, the Deputy Collector passed the order on 26.9.2001 cancelling the allotment and vesting the said land back to the State Government. This order of the Deputy Collector was challenged by the appellants before the Collector by way filing an Appeal and the appeal was also rejected vide order dated 17.11.2003. According to the appellants, the Collector's order was challenged on 11.4.2008 before the Secretary, Revenue Department by way of filing a Revision Application, who also dismissed the Revision Application vide its order dated 6.3.2009. However, according to the learned AGP, the order passed by the Collector dated 17.11.2003 has also been challenged by the appellants in Revision and the said Revision Application had also been dismissed on 1.3.2004. The appellants have, in fact, challenged the order of the Secretary, Collector and Deputy Collector before this Court by way of filing a writ petition, being Special Civil Application No. 933 of 2005, which was dismissed on 7.2.2005. The said order was not challenged by way of filing Letters Patent Appeal. According to the learned Counsel for the respondents that the Order of the Collector was challenged in Revision, which was dismissed in the year 2005 and thereafter the writ petition was filed challenging the said order, which was dismissed in the year 2005 and the said fact was not disclosed and the order of the Collector was again challenged before the Secretary Revenue Department in the year 2008 by way of filing a Revision Application and the said Revision Application was also dismissed by the Secretary, Revenue Department, vide order dated 6.3.2009 which was challenged before this Court by filing a writ petition, being Special Civil Application No. 8459 of 2009 which has also been dismissed on 26.7.2010. The said order of the learned Single Judge is challenged in the present appeal.
3 The learned Advocate for the appellants has also pointed out that the Will executed by the appellants has been cancelled.
4 Be that as it may, it cannot be disputed by the appellants – original petitioners that the earlier Order of the Collector was challenged before the Secretary, Revenue Department in the year 2005, which came to be dismissed and Revision was preferred and the said Revision Application was also dismissed for the same cause of action. Neither the Revision before the Secretary, Revenue Department in the year 2008 nor writ petition before this Court was maintainable as s the claim of the appellants – original petitioners is barred by the principle of res judicata. Further the appellants are also guilty of suppression of material facts from the Secretary, Revenue Department as well as before the learned Single Judge. However, looking to the fact that the appellants are poor persons, belonging to scheduled caste, we are refrained from imposing heavy costs on the appellants and the interest of justice will be served if this appeal is dismissed.
5 In view of the aforesaid premises, no interference in the Order dated 26.07.2010 passed by the learned Single Judge in Special Civil Application No. 8459 of 2010 is warranted. Hence, the Appeal stands dismissed accordingly. There shall be no order as to costs.
(V.M. SAHAI, J.) (A.J.DESAI, J.) pnnair