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Gujarat High Court

Naresh Babulal Dave vs Ahmedabad Municipal Corporation on 1 September, 2017

Author: R.Subhash Reddy

Bench: R.Subhash Reddy, C.L. Soni

                   C/CA/2072/2016                                              ORDER



                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2072 of 2016
                                               In
              MISC.CIVIL APPLICATION (STAMP NUMBER) NO. 539 of 2016
                                               In
                       LETTERS PATENT APPEAL NO. 1304 of 2014
                                               In
                   SPECIAL CIVIL APPLICATION NO. 8805 of 2004
         ==========================================================
                       NARESH BABULAL DAVE....Applicant(s)
                                    Versus
                AHMEDABAD MUNICIPAL CORPORATION....Respondent(s)
         ==========================================================
         Appearance:
         MR VIRAL M PANDYA, ADVOCATE for the Applicant(s) No. 1
         ==========================================================
          CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
                 REDDY
                 and
                 HONOURABLE MR.JUSTICE C.L. SONI
                             Date : 01/09/2017


                                       ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)

1. This application is filed to condone delay of 402 days occurred in preferring the application for revival, i.e. Misc. Civil Application (Stamp) No.539 of 2016, which is filed for the following prayers :-

a. Your Lordships may be pleased to admit and allow this application;

b. Your Lordships may be pleased to revive the Letters Patent Appeal No.1304 of 2014 arising out of Special Civil Application No.8805 of 2004 confirming the order dated 19.09.2003 of the Ld. Industrial Court, Court No.2, Ahmedabad and final award dated 31.12.2003 in Reference (IT) No.304 of 2001 and order of dismissal dated 26.05.1999 and further be pleased to decide the Letters Patent Appeal on merits;

c. Your Lordships may be pleased to grant any other appropriate relief/s.

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2. In Letters Patent Appeal, on 18.12.2014, this Court passed following order:-

1. Present appeal is directed against the order dated

3.11.2012 passed by learned Single Judge of this Court in Special Civil Application No.8805 of 2004 whereby learned single Judge for the reasons recorded in the order has dismissed the petition.

2. We have heard learned counsel Mr. Jakir Belim for Mr. Pandya for the appellant on the aspect of maintainability of the appeal.

3. It is undisputed position that subject matter of the petition before learned Single Judge was the award passed by the Industrial Court. The appellant is the person who invoked the jurisdiction of the Industrial Court. Therefore, the appellant could not contend that the Industrial Court has no jurisdiction. Tenor of the petition is that the Industrial Court has committed error in exercise of the powers, which would mean that the petitioner wanted to invoke the jurisdiction of learned Single Judge under Article 227 of the Constitution. Learned Single Judge has also exercised the power under Article 227 of the Constitution. Once the petition was under

Article 227 of the Constitution and learned Single Judge has also exercised the power under Article 227 of the Constitution and no order is passed by learned Single Judge which could be said as originated for the first time for which source may be available under Article 226 of the Constitution, present appeal under Clause 15 of the Letters Patent cannot be maintained. Reference may be made to the decision of the Larger Bench of this Court in the case of Gujarat State Road Transport Corporation Vs. Firoze M. Mogal and Another reported in 2014(1) GLH (FB) 1.

4. In view of the above, present appeal is not entertained and dismissed as not maintainable.

3. The said order has become final. The Misc. Civil Application is filed seeking prayer for revival of the appeal, on the ground that subsequently, Hon'ble Supreme Court in the case of Jogendrasinhji Vijaysinghji Vs. State of Gujarat reported in 2015(2) GLH 584 has set aside the order of this Court in the case of Gujarat State Road Transport Corporation Vs. Firoze Mogal and Another reported in 2014(1) GLH 1.

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4. The order passed in the Letters Patent Appeal is not the order which is dismissed for default but it is an order on merits, holding that the appeal was not maintainable at that point of time.

5. The applicant if is aggrieved by such order, can avail remedy under the law declared by Hon'ble Supreme Court but he is not entitled to seek revival of the Letters Patent Appeal which was disposed of, being Letters Patent Appeal No.1304 of 2014.

6. In view of the above, we are of the view that this application for condonation of delay in filing the Misc. Civil Application (Stamp) No.539 of 2016 for revival is not maintainable. The application is devoid of merits. The Civil Application is dismissed. Consequently, the Misc. Civil Application (Stamp) No.539 of 2016 is also dismissed. However, it is open to the applicant to avail of remedy before Hon'ble Supreme Court.

(R. SUBHASH REDDY, CJ) (C.L.SONI, J.) Omkar Page 3 of 3 HC-NIC Page 3 of 3 Created On Fri Sep 01 23:34:15 IST 2017