(Per : HONOURABLE MR.JUSTICE A. J. DESAI) 1 By way of the present Appeal the original petitioners have challenged the Order dated 28.12.2010 passed by the learned Single Judge in Special Civil Application No. 16016 of 2011 by which the petition was summarily dismissed.
2 We have heard Mr.Nirav Thakkar, learned counsel appearing for the appellants and Mr. Jayant Bhatt for the respondent – Corporation.
3 We have perused the Order passed by the learned Single Judge, memo of petition along with its annexures and the Order dated 28.10.2010 passed in Special Civil Application No. 14071 of 2010 (Annexure-E at page 66 to the petition). It was contended by Mr. Thakkar that the challenge before the learned Single Judge was communication dated 24.9.2010 issued by Jamnagar Municipal Corporation, by which, the construction on the plot of the petitioners was stayed. It was brought to the notice of the learned Single Judge that similar order was passed by the Municipal Corporation in cases of other similarly situated person like petitioners which was stayed by the co-ordinate Bench of this Court and the same was not considered by the learned Single Judge while dismissing the said Special Civil Application. It is submitted by him that in similar case [i.e. Viharika Rambhai Dethariya vs. Jamnagar Municipal Corporation & Anr in Special Civil Application No. 14071 of 2010] by order dated 28.10.2010, a coordinate Bench of this Court was pleased to admit the matter and operation of the impugned Communication dated 24th September, 2010 was stayed, therefore, similar treatment ought to have been given by the learned Single Judge to the petitioners also. In support of his contention, he has placed reliance on a decision of the Apex Court in the case of Bir Bajrang Kumar vs. State of Bihar & Ors., as reported in AIR 1987 SC 1345 wherein it has been held by the Apex Court that if petitions involving an identical point has already been admitted by the Court, another identical petition cannot be dismissed so as to avoid contradictory judgments being rendered in similar case by the High Court.
4 On the other hand, learned Advocate Mr. Bhatt for the respondents has opposed this Appeal and supported the order passed by the learned Single Judge.
5 We are of the opinion that the submission made by Mr.
Thakkar for the appellants is required to be accepted. It is not in dispute that by Communication dated 24th September, 2010, the respondent – Municipal Corporation has stayed the construction on the plot of the petitioners as well as other similarly situated persons. It is also not in dispute that a coordinate Bench of this Court has stayed the operation of such Communication issued by the respondent No.1 – Municipality in case of other similarly situated person. Same treatment is required to be given in the case of the present appellants also. In view of the aforesaid, without entering into the merits of the case, the matter is required to be remanded to the learned Single Judge to decide the same afresh only on the ground that an identical petition, being Special Civil Application No. 14071 of 2010, is admitted and pending for final hearing.
6 In the result, the present appeal succeeds and is allowed. The order dated 28.12.2010 passed by the learned Single Judge in Special Civil Application No.16016 of 2010 is set aside. The matter is remanded to the learned Single Judge to decide the said Special Civil Application No.16016 of 2010 afresh. It would be open to the appellants – petitioners to request the learned Single to hear the petition along with similar matter which is pending for final hearing before this Court.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair