Gujarat High Court
Pithubhai A Khachar vs State Of Gujarat & 3 on 1 September, 2014
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/LPA/1300/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1300 of 2013
In
SPECIAL CIVIL APPLICATION NO. 5113 of 1985
With
CIVIL APPLICATION NO. 11651 of 2013
In
LETTERS PATENT APPEAL NO. 1300 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI Sd/-
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/-
=========================================
1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
5. Whether it is to be circulated to the Civil NO
Judge ?
=========================================
PITHUBHAI A KHACHAR....Appellant
Versus
STATE OF GUJARAT & 3....Respondents
=========================================
Appearance :
MR SP MAJMUDAR, ADVOCATE for the Appellant.
MR KASHYAP PUJARA, AGP for the Respondent Nos.1 to 3.
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Page 1 of 4
C/LPA/1300/2013 JUDGMENT
CORAM:HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 01/09/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. By way of the present Letters Patent Appeal, the appellant - original petitioner has challenged the judgment and order dated 30.8.2013 passed by the learned Single Judge in Special Civil Application No.5113 of 1985 whereby the learned Single Judge was pleased to dismiss the writ petition.
2. In the writ petition, the appellant has challenged the order passed by the Gujarat Revenue Tribunal, Ahmedabad.
3. In the writ petition, the petitioner has not joined Gujarat Revenue Tribunal as party - respondent. Further, though the writ petition was titled as one under Article 226 of the Constitution of India, no writ of certiorari was issued by the learned Single Judge and the learned Single Judge has exercised powers under Article 227 of the Constitution of India.
4. The Five Judges Full Bench of this Court in the case of Gujarat State Road Transport Corporation v. Firoze M. Mogal and another, 2014 GLH 1 has held as under :-
"x) If the Special Civil Application is described as one not only under Article 226 of the Constitution, but also under Article 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be quashed, is not made a party, the application is not maintainable as one for the relief Page 2 of 4 C/LPA/1300/2013 JUDGMENT of certiorari in the absence of the concerned Tribunal or Court as party, but the same may be treated as one under Article 227 of the Constitution of India. If the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading such Court or Tribunal for the first time in the Letters Patent Appeal will not change the nature and character of the proceedings before the learned Single Judge. By merely impleading such a Court or Tribunal for the first time in the LPA, the appeal could not be said to be maintainable, if the proceedings before the learned Single Judge remained in the nature of supervisory proceedings under Article 227 of the Constitution.
xi) If the learned Single Judge, in exercise of a purported power under Article 227 of the Constitution sets aside the order of Tribunal or Court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself and such an order can be challenged only by way of a Special Leave Petition before the Supreme Court."
5. In view of the aforesaid Full Bench decision, the present Letters Patent Appeal is not maintainable. Hence, the present Letters Patent Appeal stands dismissed as not maintainable. We, however, make it clear that we have otherwise, not gone into the merit and the dismissal of this appeal will not stand in the way of the appellant in seeking appropriate remedy before the appropriate forum in accordance with law. Interim Page 3 of 4 C/LPA/1300/2013 JUDGMENT relief, if any, stands vacated.
6. In view of dismissal of Letters Patent Appeal, Civil Application also stands dismissed.
Sd/-
(V.M.SAHAI, J.) Sd/-
(R.P.DHOLARIA, J.) Savariya Page 4 of 4