JUDGMENT
Jayant Patel, J.
1. Rule. Mr.Desai, Ld.AGP appearing for respondent Nos 1 & 2 waives service of rule. With the consent of parties, matter is taken up for final hearing.
2. The present petition is preferred by the petitioner challenging the order, dated 28.8.02 passed by the Mamalatdar & ALT in Case No.152/01 under section 70(o) of Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as “the Act”).
3. The short facts of the case are that the petitioner submitted an application to the Mamalatdar under section 70(o) of the Act for modification of restrictions provided under section 43 of the Act and the application submitted by the petitioner was registered as Case No.152/01. It is the case of the petitioner that the name of the petitioner was entered into revenue record and they were tenants of the land situated at Katargam bearing S.No.66/1. It is the further case of the petitioner that vide Mutation Entry No.2707 dated 30.9.1963 the petitioner has acquired right over the land as tenant. However, the submission of the petitioner before the Mamalatdar was that since the petitioner is declared as protected tenant the rights of the petitioner are not restricted as tenant as per section 43 of the Act and such restrictions deserve to be removed as per the guidelines of the State Govt. The Mamalatdar considered the application. However, he has dismissed the application on the ground that no authenticated record for the proceedings of tenancy under section 32(G) of the Act were produced and the Mamalatdar found that it is not clear from the application as to how the land is acquired by the petitioner and therefore he has rejected the application. The said order of Mamalatdar is under challenge in this petition.
4. Mr.Trivedi, Ld.advocate for the petitioner has relied on the order dated 6.8.02 passed by this court (Coram: B.J.Shethna,J) in SCA No.3940/02 to contend that the proper procedure for the purpose of framing issues if not undertaken , the same should be ordered to be undertaken by this court and the matter may be directed to be decided by the Mamalatdar afresh. On behalf of respondents, Mr.Desai, Ld.AGP has no objection for such course being adopted.
5. In view of the above, without examining the question as to the maintainability of appeal or revision under section 76A of the Act, I find that the perusal of the order passed by the Mamalatdar shows that certain relevant record which otherwise could have been called for by the Mamalatdar from the concerned Gram Panchayat is not called for and if the matter is directed to be decided after framing issues it will not cause any serious prejudice to the other side. Ultimately, even though it may not be mandatory, but if the issues are framed or points for determination are raised the same would enable the parties to lead evidence, if they so desire and the parties to the proceedings can concentrate upon said aspects. Such a view is in conformity with the view taken by the other coordinate bench of this court on 6.8.02 in SCA No.3940/02. 6. In view of the aforesaid discussion, the order, dated 28.8.02 passed by the Mamalatdar copy whereof is at annexure “A” to the petition which is impugned in this petition is quashed and set aside with a direction that the Mamalatdar shall frame issues and it will be for the petitioner to lead evidence in the matter and the Mamalatdar shall render his decision afresh in accordance with law. Petition is allowed to the aforesaid extent. Rule is made absolute accordingly. There shall be no order as to costs.