DIVECHA - (1.) By means of this petition under Art. 226 of the Constitution of India the petitioners have questioned the legality and validity of the order passed by the Collector-cum-Settlement Commissioner at Bhavnagar on 6/03/1976 ordering allotment of one piece of land bearing Survey No. 264/2 admeasuring 20 Acres situated in village Sanosara, Taluka Sihor, District Bhavnagar (the 'disputed land' for convenience) to respondent No. 3 as affirmed on remand by the order passed by the Collector and Settlement Commissioner (the 'Collector' for convenience) at Bhavnagar on 18/10/1980 and as affirmed by the Chief Settlement Commissioner in appeal by the order passed by the Authorised Chief Settlement Commissioner at Gandhinagar.
(2.) This litigation has a chequered history. The disputed land originally belonged to one Jusab Gani. He appears to have migrated to Pakistan after its formation some time in 1947. It was thereupon declared to be an evacuee property. Formerly it was allotted to the predecessor-in-title of the petitioners by an order passed some time on I 3/01/1953 under the relevant provisions contained in the Displaced Persons (Compensation and Rehabilitation) Act, 1954 ('the Act' for brief). It appears that it was in possession of one Daya Kanbi at the relevant time. He was ordered to vacate it by the Assistant Custodian of Evacuee Property at Bhavnagar by his order of 5/02/1953. Against that order the person in possession of the disputed land preferred an unsuccessful appeal. The predecessor-in-title of the present petitioners thereupon made one application on 7/05/1954 praying for handing over the possession of the disputed land to him. He renewed his request by a further application on 2 4/06/1955. It appears that he withdrew his claim for the disputed land by means of his communication of 27/06/1955. It transpires from the orders passed by the lower authorities that no order was passed with respect to his letter declaring withdrawal of his claim over the disputed land. It appears that respondent No. 3 made one application on 27/04/1961 for allotment of the disputed land to him under the relevant provisions contained in the Act. By an order passed on 27/03/1963 respondent No. 3 was allotted the disputed land. In the meantime, petitioner No. 1 made some enquiries whether any amount payable with respect to the disputed land allotted to his father remained outstanding. Thereupon he was told that his father had withdrawn his claim over the disputed land, and as such the question of any amount remaining out- standing did not arise. Petitioner No. 1 thereupon applied for handing over possession of the land to him. He was informed by the Collector of Bhavnagar by his order passed on 6th March, 1976 that the disputed land was allotted to respondent No. 3 against his verified claim under the Act. Its copy is Annexure 'C' to this petition. Petitioner No. 1 thereupon preferred an appeal to the Authorised Chief Settlement Commissioner against the order of the Collector of Bhavnagar passed on 6/03/1976. His appeal came to be disposed of on 26/04/1978 and the matter was remanded to the Collector of Bhavnagar for a fresh decision after hearing the parties including the heirs of the original allottee, that is the present petitioners. The Collector of Bhavnagar by his order passed on 8/10/1978, decided the ease in favour of respondent No. 3 herein. It appears that petitioner No. 1 preferred an appeal on 7/11/1978 before the Authorised Chief Settlement Commissioner against the order passed by the Collector of Bhavnagar on 8/10/1978. The said appeal came to be decided on 30/07/1979 and the matter was again remanded to the Collector of Bhavnagar for deciding the case afresh after giving notice to all the heirs of the original deceased allottee, that is, the present petitioners. It appears that the notices were issued by the Collector of Bhavnagar to all the petitioners. Its hearing was kept on 7/10/1980. By his order passed on 18/10/1980, the Collector of Bhavnagar decided the case in favour of respondent No. 3. A copy of the order passed by the Collector of Bhavnagar on 18/10/1980 is at Annexure 'E' to this petition. It transpires therefrom that on the date of hearing fixed on 7/10/1980 petitioners No. 1 was present but his Advocate, named, Shri V. G. Gandhi, was not present. The hearing took place in absence of Shri Gandhi. It transpires from the order at Annexure 'E' to his petition that Shri Gandhi appeared before the Collector around 12-45 p.m. on that very day. He made an application to the Collector on that very day for giving an opportunity of hearing to him as Advocare for present petitioner No. 1. A copy of that application is at Annexure 'D' to this petition. It appears that he was given no opportunity of hearing on that day. He therefore made another application on l 4/10/1980 putting on record the case on behalf of petitioner No. 1 herein. A copy of the application made by him on l 4/10/1980 is at Annexure 'E-1' to this petition. No opportunity of hearing appears to have been given to the Advocate for petitioner No. 1 herein by the Collector before passing the order at Annexure 'E' to this petition on 18/10/1980. Petitioner No. 1 carried the matter in appeal before the Authorised Chief Settlement Commissioner at Gandhinagar challenging the legality and validity of the order passed by the Collector of Bhavnagar on 18/10/1980 at Annexure 'E' to this petition. A copy of the Memo of Appeal before the Authorised Chief Settlement Commissioner at Gandhinagar is at Annexure 'E-2' to this petition. It transpires from the Memo of Appeal that the grievance was also voiced against denial of an opportunity of hearing to the learned Advocate for petitioner No. 1 herein. The Authorised Chief settlement Commissioner at Gandhinagar by his order passed on 12/03/1981 dismissed petitioners No. 1's appeal. Its copy is at Annexure 'F' to this petition. The petitioners have challenged the legality and validity of the orders by the lower authorities at Annexures 'C', 'E' and 'F' to this petition.
(3.) Shri D. M. Shah, the learned Advocate for respondent No. 3, has raised a preliminary objection against maintainability of this petition on the ground that the petitioners have an alternative efficacious remedy by way of revision under the relevant provisions contained in Sec. 24 of the Act. Since they have not availed of this alternative remedy, runs the submission of Shri D.M. Shah for respondent No. 3, this petition deserves to be rejected on that ground alone.;