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SCA/803/2011 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 803 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2.
To
be referred to the Reporter or not ?
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
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 ?
5.
Whether
it is to be circulated to the civil judge ?
=========================================
HANSABEN
WD/O BHAGUBHAI KANJIBHAI & 2 - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 2 - Respondent(s)
=========================================
Appearance :
MR
SANJANWALA for MR DILIP L KANOJIYA
for Petitioner(s) : 1 -
3.
MS JIRGA JHAVERI, ASSTT. GOVERNMENT PLEADER for Respondent(s) :
1,
None for Respondent(s) : 2 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 18/02/2011
ORAL
JUDGMENT
1. In
the present petition under Article 226 of the Constitution of India,
petitioners have prayed for appropriate writ, order or direction
directing respondent No.2 to forthwith consider and adjudicate the
petitioners’ application dated 29.11.2008 submitted under Section
70(O) of the Bombay Tenancy Act.
2. It
appears that in view of the proceedings pending before the Division
Bench on the aspect with respect to jurisdiction of the authority to
decide the application submitted under Section 70(O) of the Bombay
Tenancy Act, the authority is not deciding the application dated
29.11.2008 submitted by the petitioners under Section 70(O) of the
Bombay Tenancy Act. When the question with respect to jurisdiction
of the authority to decide the application under Section 70(O) of the
Bombay Tenancy Act is pending before the Division Bench and unless
and until the said dispute is resolved, when respondent No.2 has kept
the application pending, it cannot be said that respondent No.2 has
committed any error and/or illegality. Jurisdiction to decide the
application under Section 70(O) of the Bombay Tenancy Act is a
question which goes to the root of the matter and therefore, to avoid
any multiplicity of proceedings, when respondent No.2 has kept the
application pending, according to this Court, respondent No.2 is
justified in keeping the application pending. Therefore, no
illegality has been committed by respondent No.2 in not deciding the
application under Section 70(O) of the Act.
3. At
this stage, Shri Sanjanwala, learned advocate appearing on behalf of
the petitioners has submitted that without prejudice to the rights of
the petitioners to submit appropriate application afresh, petitioners
are ready and willing to submit appropriate application for
determination of premium payable under Section 43 of the Act and in
the meantime shall withdraw the application dated 29.11.2008
submitted under Section 70(O) of the Bombay Tenancy Act and if the
petitioners are ready and willing to pay/deposit premium as may be
determined by the appropriate authority, in that case, petitioners
shall not submit application afresh under Section 70(O) of the Act.
However, if the petitioners are not agreeable to pay/deposit the
premium that may be determined by the appropriate authority, in that
case, petitioners may submit appropriate application afresh under
Section 70(O) of the Bombay Tenancy Act, which may be considered in
accordance with law and on merits.
4. Learned
advocate appearing on behalf of the petitioners has submitted that
the petitioners shall withdraw the application dated 29.11.2008 under
Section 70(O) of the Bombay Tenancy Act at this stage and request the
appropriate authority to pass appropriate order for determining
premium on the said application, which shall be submitted by the
petitioner under Section 43 of the Act, which may be directed to be
decided in accordance with law and on merits at the earliest.
5. In
view of the above and for the reasons stated above, present petition
is disposed of. Let the petitioners withdraw the application dated
29.11.2008 submitted under Section 70(O) of the Bombay Tenancy Act,
with a liberty in favour of the petitioners to submit appropriate
application afresh, in case the petitioners are not agreeable to
pay/deposit the premium as may be determined by the appropriate
authority. On withdrawal of the application dated 29.11.2008
submitted by the petitioners, it will be open for the petitioners to
submit appropriate application before appropriate authority to
determine the premium under Section 43 of the Bombay Tenancy Act and
to grant such a permission and to determine the premium for removing
the restrictions to convert the same from new tenure to old tenure
and the same shall be considered by the concerned authority in
accordance with law and on merits after following due procedure and
communicate the outcome of the same to the petitioners. If the
petitioners are ready and willing to pay/deposit the premium as may
be determined by the appropriate authority and actually pay the same,
there is no question of further submitting application by the
petitioners under Section 70(O) of the Act, as the petitioners have
accepted the land in question as new tenure land. In case, if not
agreeable to pay premium as may be determined by the appropriate
authority, in that case, it will be open for the petitioners to
revive the application dated 29.11.2008 by submitting fresh
application under Section 70(O) of the Act and as and when such
application is submitted, the same may be considered in accordance
with law and on merits and the aforesaid exercise shall not come in
the way of the petitioners.
6. With
this, present Special Civil Application is disposed of.
(M.R.
Shah, J.)
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