Gujarat High Court
Ayyubalibhai vs Kantibhai on 30 August, 2010
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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CA/8066/2010 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 8066 of 2010
In
SPECIAL
CIVIL APPLICATION No. 2772 of 2008
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AYYUBALIBHAI
PATEL & 3 - Petitioner(s)
Versus
KANTIBHAI
SUKHABHAI PATEL & 3 - Respondent(s)
=========================================================
Appearance
:
MR
SHITAL R PATEL for
Petitioner(s) : 1 - 4.
None for Respondent(s) : 1 - 2, 4,
MR
RASHESH RINDANI AGP for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 30/08/2010
ORAL ORDER
By way of this application, the applicants have prayed for the following reliefs :-
(A) To grant this application, implead present applicants as purchasers to present Special Civil Application and permit them to be transposed as petitioners by passing a suitable order looking to the peculiar facts, so as to avoid unwarranted expenses.
(B) Be please to pass an appropriate order directing the Mamlatdar/Deputy Mamlatdar or Talati of Vadodara City, Mouje Tandalja to certify the mutation entry No.3826 in respect of sale deed dated 17.4.2009 executed in favour of applicant-purchasers as interest of government is already taken care sufficiently even on payment of 100% amount determine by the Collector long back and even otherwise under sale deed also purchaser has given undertaking to abide by the orders that may be passed in SCA.
(C) To pass such other and further orders as deemed necessary in the circumstances of the case.
2. All the four applicants have filed the following undertaking :-
I, Shri Zuber Musabhai Patel, Aged 37 years, applicant No.4 do hereby filing this affidavit cum undertaking on oath as under:
I state that I and other three purchasers have jointly purchase the land involved in SCA with conscious knowledge of pending Special Civil Application and orders passed therein by registered sale deed dated 17.4.2009; We have understood its implication. We are conscious that whatever decision that would be rendered in the Special Civil Application finally it would bind us; and we undertake to this Hon'ble Court that deponent of present affidavit and three joint purchasers (co-applicant of Civil Application No.8066 of 2010 filed in Special Civil Application No.2772 of 2008 will not claim any equity in case original petitioner or present applicants loose in the Special Civil Application finally. We request the Hon'ble Court that whatever rights legally created in our favour may be treated as a subject to final outcome of Special Civil Application and Mutation entry no.3826 in respect of sale deed executed in favour of applicant dated 17.4.2009 may be certified subject to final outcome of main Special Civil Application. We also undertake to this Hon'ble Court that if any additional liability or whatever legitimate consequences that may arise in future that shall be born by present applicants even in absence of original petitioner.
Subject to aforesaid undertaking the Hon'ble Court may be pleased to direct the State Government to certify the Mutation entry no.3826 and may permit the applicants to develop the land in question without creating any further obstacle pertains to status of land subject to final outcome of Special Civil Application no.2772 of 2008.
Solemnly state on oath on this 30th date July Month 2010.
3. In the premise aforesaid, prayer (A) is granted and the present applicants are transposed as petitioners in Special Civil Application.
4. The other prayer which has been claimed by the applicants is on the basis of the order dated 19.3.2008 passed by this Court in Special Civil Application No.2772 of 2008, which reads as under :-
Rule.
By way of this petition, the petitioner has prayed for a direction to quash and set aside the order dated 24.1.2008 passed by the Collector, Vadodara, whereby the petitioner has been directed to pay an amount of Rs.1,28,62,584/- as premium for the removal of restrictions upon the land bearing Survey No.2 and Survey No.20 of Village Tandalaja, Taluka and District Vadodara, from new tenure to old tenure for non-agricultural residential purposes.
Mr.Shital R.Patel, learned counsel for the petitioner, has submitted that without giving up his rights and contentions as may be legally available to him, the petitioner is, at this stage, ready and willing to pay the entire amount of premium as directed by the communication dated 24.1.2008 (Annexure-E to the petition).
Mr.Jaswant K.Shah, learned Assistant Government Pleader, has submitted that in case the Court is inclined to pass a direction upon the above submission of the learned counsel for the petitioner, the rights and contentions of the respondents may also be permitted to be kept open, to be enforced at the time of final disposal of the petition.
The above submission of the learned counsel for the petitioner, in my view, appears to be a reasonable one, since it will not prejudice the case of the respective parties and the contentions available to both the parties can be kept alive, to be decided at the time of final disposal of the petition. If the petitioner is permitted to make full payment of the amount of premium, the interest upon this amount will not escalate during the pendency of the petition and, on the other hand, the State Government will get the benefit of revenue being added to the public exchequer.
In view of the above, the petitioner is permitted to make the full payment of the amount of Rs.1,28,62,584/- towards premium, as directed by communication dated 24.1.2008 (Annexure-E to the petition), within a period of three months from the date of this order. If the payment of this amount is made by the petitioner, the Collector, Vadodara, is directed to accept the said payment on behalf of the State Government and to pass consequential orders regarding the removal of restrictions from new tenure to old tenure upon the land in question.
It is made clear that this order is being passed as an interim measure, without prejudice to the rights and contentions of the parties and subject to the final outcome of the present petition. Needless to say, the parties will be governed by the final order which may be passed in the petition.
Direct Service is permitted.
5. In my view, it will not be appropriate to grant prayer (B) inasmuch as the main petition is pending before this Court and the land is already converted into new tenure as per the order of this Court. In that view of the matter, it will not be appropriate to grant prayer (B) at this stage and the same is rejected.
6. The application accordingly stands disposed of.
(K.S. JHAVERI, J.) zgs/-
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