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CASE NO.: Appeal (civil)  512 of 2008

PETITIONER: Homfraygunj Martyrs Memorial Committee

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 18/01/2008

BENCH: TARUN CHATTERJEE & DALVEER BHANDARI

JUDGMENT: J U D G M E N T                  O R D E R

Arising out of S.L.P. (C) 2523 of 2007)

1.      Delay of 14 days in filing this Special Leave Petition is  condoned.  2.       Leave granted.   3.      This appeal is directed against the final order dated  20th of July, 2006 passed in Writ Petition No. 93 of 2006 and  also the order dated 18th of August, 2006 in Review Petition  No. 12 of 2006 passed by the Division Bench of the High  Court at Calcutta, Circuit Bench at Port Blair, whereby the  High Court had dismissed the Writ Application as well as the  Review Petition by the aforesaid two orders.   4.      Having heard the learned counsel for the parties and  after going through the impugned orders, we are of the view  that the order of the High Court, dismissing the Writ  Application on the ground of maintainability of the same,  cannot be sustained.  It appears that an application under  Article 32 of the Constitution was filed before this Court, which  came to be registered as W.P. (C) 141 of 2006, which was  dismissed as withdrawn.  The order of this Court runs as  under:  \023The learned senior counsel appearing for the  petitioner seeks leave of the Court to withdraw this  Writ Petition.  Permission granted.  The Writ Petition  is allowed to be withdrawn and is dismissed as  such.\024   

5.      After the Writ Petition under Article 32 of the  Constitution was withdrawn, a fresh Writ Application was filed  in the High Court, which was dismissed on the ground that  since the point taken in the Writ Petition was already urged  before this Court and the Writ Application under Article 32 of  the Constitution of India was withdrawn, there could not be  any question to entertain the Writ Application. A Review  Application was filed, which was also dismissed by the High  Court and the appellants have filed this appeal against the  aforesaid two orders.   6.      In our view, the High Court had gone wrong in  dismissing the Writ Application on the ground that it was not  maintainable after the Writ Petition under Article 32 of the  Constitution was withdrawn.  It is now well settled that when a  Writ Petition filed under Article 32 of the Constitution is  dismissed as withdrawn, that would not take away the right of  the Writ Petitioner to move a fresh writ application under

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Article 226 of the Constitution for the same relief.  That being  the position, we have no other alternative but to set aside the  impugned order, including the order passed in the Review  petition and restore the writ application for decision afresh in  accordance with law.  We request the High Court to decide  the writ application after giving hearing to the parties and after  passing a reasoned and speaking order within four months  from the date of supply of a copy of this order to the High  Court.   7.      The impugned orders, therefore, are set aside.  The  appeal is allowed to the extent indicated above.  There will be  no order as to costs.   8.      We, however, make it clear that we have not gone  into the merits of the Writ Petition, which shall be decided by  the High Court in accordance with law.