BAKULBHAI BHIKHABHAI DHAMELIYA Vs. MAMLATDAR

JUDGEMENT

(1.) HEARD learned advocates for the parties. On 22.12.2011, this court passed the following order: Learned AGP Ms. Nisha M. Thakore, requested for a day's time to obtain instructions as to whether she can waive Rule in this matter and rule to be fixed forthwith, so that the matter could be heard finally. As the entire matter is in narrow compass, the court has heard the matter. Hence, the request for adjournment is granted so that enable her to obtain instructions in this behalf. S.O to 23.12.2011.

(2.) TODAY, during the course of submission, learned advocate for the petitioners seeks permission to delete the respondent nos. 5 to 8. Permission as sought for is granted, as according to learned advocate for the petitioners, they are not really contesting parties and now thus, the petition would remain against respondent Nos. 1 to 4 only. Apropos the order made hereinbefore, the matter is heard finally. Rule. Ms. Thakore, learned AGP waives service of notice of Rule on behalf of respondent No.4 and matter is fixed forthwith for final disposal. The petitioners, by way of this petition under Article 226 of the Constitution of India prayed as under: (A)This Hon'ble Court may be pleased to admit and allow this petition; (B) This Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction, to quash and set aside the impugned notice Annexure J dated 10.1.2011 issued under Section 84C of the GT and AL Act and be pleased to issue a writ of prohibition against respondent No.3 to proceed further in pursuance of Notice Annexure J. (C) This Hon'ble Court may be pleased to issue writ or mandamus or any other appropriate writ, order or direction, to quash and set aside the impugned order Annexure H passed by the District Collector on 16.9.2010 rejecting the petitioners' application for Non-agricultural Permission of land bearing Final Plot No. 18/2 to T.P. Scheme No.92 situated in the sim of Hatijan, Taluka: Daskroi, District: Ahmedabad and be pleased to issue writ of mandamus or any other appropriate writ, order or direction, to the District Collector to grant N.A. Permission of the questioned land forthwith. (D) Pending hearing and final disposal of this petition, respondent no. 3 be restrained by stay order from proceeding further in pursuance of Notice Annexure -J dated 10.1.2011. Thus, essentially, the notice dated 10.1.2011 issued by respondent Mamlatdar under Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act' for short) is challenged and consequential reliefs were sought in form of seeking appropriate writ, order or direction in the form of mandamus to the concerned authority for considering the N.A. Permission in respect of subject land.

(3.) LEARNED counsel appearing for the petitioners invited this court's attention to the provisions of Section 84C and contended that the notice impugned in this petition is absolutely unwarranted as assuming for the sake of arguments that there exists some irregularities but that irregularities is not so serious as to militate against the purpose and object of Tenancy Act as the land in question has been purchased by the permanent tenant and their exits no semblance of explanation on their account. LEARNED advocate for the petitioners thereafter invited this court's attention to the rejection of prayer qua granting of N.A. permission by the Competent Authority and submitted that writ of mandamus is required to be issued as such permission is denied on absolutely non-applicable ground and therefore, the concerned authority is required to be called upon to examine the case afresh as if there exists no notice or no breach which is sought to be held out against the petitioners for obtaining permission as requested. The Mamlatdar in fact, while communicating opinion has intimated in terms by referring order dated 18.1.1988 that there exists no objection for granting N.A. as requested. Therefore, the Deputy Collector was not well within his authority to issue instructions to Mamlatdar as could be seen from the communication dated 24.12.2010, which appears to be made basis for issuing the notice under Section 84C, impugned in this petition.