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Gujarat High Court
Judgename :K.R.VYAS, M.S.Shah
ISHWARBHAI NAROTTAMBHAI PATEL - Appellant
Versus
K.H.TRIVEDI - Respondent
L.P.A. 503 of 2003
Decided On : 06/24/2003
Gujarat State Co-operative Act - Section 93 – Constitution of India,1950 - Articles 226 and 227 - Civil Procedure code, 1908 - Appeal is directed against judgment and order rendered by Single Judge dismissing a group of three petitions present appeal is confined to said judgment in so far as Special Civil Application dismissed - Appeal is filed Clause of Letters Patent and counsel was called upon to address Court on question of maintainability of appeal matter has therefore been heard at length on this preliminary issue - Petitioner had invoked his fundamental rights Articles of Constitution and had prayed for a writ of certiorari or a writ in nature of certiorari or any other appropriate writ order or direction for quashing and setting aside orders of Registrar of Act and judgment of the Gujarat State Co-operative Tribunal confirming same and petitioner had also prayed for a declaration that petitioner is not liable for any liability as decided by Inquiry Officer - Petitioner had thus invoked writ jurisdiction Article of Constitution rather than power of superintendence Article of Constitution –Hence letters Patent Appeal should be held to be maintainable relying on submissions made in ground in memo of petition which contained grounds of challenge to constitutional validity of Act - It is submitted that it was because petition was filed Article that such a ground was taken in petition but Single Judge did not allow any amendment to petition for adding the prayer for said challenge on ground that prayer for amendment was made at a belated stage – Held, Considered in this light when a litigant has already had his case considered by two judicial first before subordinate Court/tribunal and again before a Single Judge of High Court are of the view that it would not be unfair unjust or improper to hold that a Letters Patent Appeal would not be maintainable against a judgment of a Single Judge in a petition challenging decision of a Court or Tribunal subordinate to High Court which is presided over by a sitting or a retired judicial officer - Accordingly following principles would have to be applied while considering question about maintainability of a Letters Patent Appeal against judgment of a Single Judge in a petition Article Constitution - Whether the petitioner has invoked jurisdiction of this Court Single Judge has exercised jurisdiction Article Letters Patent Appeal would be maintainable - If judgment rendered by Single Judge is in exercise of jurisdiction of Constitution Letters Patent Appeal would not be maintainable - If Single Judge has not stated whether he has exercised his jurisdiction Article of Constitution it would be relevant to examine whether proceeding in question is an original proceeding or proceeding challenges decision of a Tribunal - If proceeding is original petition would obviously be Article - IF petition challenges decision of a Tribunal further inquiry should ensue – Appeal dismissed (Para 19)
( 1 ) IS appeal is directed against the judgment and order dated 16. 8. 2002 rendered by the learned Single Judge dismissing a group of three petitions. The present appeal is confined to the said judgment in so far as Special Civil Application No. 476 of 1993 is dismissed.
( 2 ) THE present appeal is filed under Clause 15 of the Letters Patent and the learned counsel was called upon to address the Court on the question of maintainability of the appeal. The matter has, therefore, been heard at length on this preliminary issue.
( 3 ) BEFORE discussing the said preliminary issue, it is necessary to set out the brief facts of the case at hand. 3. 1 the appellant (petitioner of Special Civil Application No. 476 of 1993 Durlabbhai P Patel) and others were members of the Executive Committee of Shree Khedut Sahakari Khand Udyog Mandali Ltd. , a registered Co-operative Society, at Bardoli in Surat District (hereinafter referred to as "the Society" ). The society had initially invited offers for supply of certain machineries for its sugar factory and the contract on turn-key basis was granted to one Bardoli Engineering Works as per the resolution dated 22. 5. 1984 for an amount of Rs. 13,74,000/ -. In the order accepting the offer of the aforesaid party, it was specifically stated that the amount of tax and erection charges are included. However, when the machinery was actually installed, the supplier issued a bill of Rs. 45,51,000/ -. The Executive Committee sanctioned an amount of Rs. 23,41,000/- as against the initial contract of Rs. 13,74,000/ -. Pursuant to an audit objection, as per the directions dated 27. 12. 1989 of the Director of Sugar, Gujarat State, an enquiry was held under Section 93 of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as "the Act") covering the period from October, 1984 to September, 1986. The Inquiry Officer submitted a report holding that all the four members of the Executive Committee at the relevant time, were liable to pay a sum of Rs. 1,45,000/- and accordingly the liability of each of them was fixed at Rs. 36,250/ -. The Inquiry Officer also fixed the liability of one Dilip S. Bhavsar at Rs. 10,08,504/ -. However, as far as the dispute regarding the liability of said Mr Bhavsar is concerned, we are not concerned with the same as the Gujarat State Co-operative Tribunal (hereinafter referred to as "the Tribunal") had remanded the matter in respect of the liability of said Mr Bhavsar. 3. 2 as far as the liability of four members of the Executive Committee including the present appellant is concerned, the matter was carried in appeal before the Tribunal under Section 153 (3) of the Act. The appeal came to be heard and dismissed by the Tribunal consisting of its President (who is a retired Judge of the City Civil Court at Ahmedabad) and another Member of the Tribunal. Aggrieved by the aforesaid judgment of the Tribunal, the appellant herein filed Special Civil Application No. 476 of 1993. The three other members filed the other petitions. 3. 3 after hearing the learned counsel for the parties, the learned Single Judge dismissed the petitions by common judgment dated 16. 8. 2002 which is under challenge in this appeal, in so far as dismissal of Special Civil Application No. 476 of 1993 is concerned.
( 4 ) MR BS Patel, learned counsel for the appellant has submitted as under :-4. 1 the petition giving rise to the present appeal was filed under Articles 226 and 227 of the Constitution and the learned Single Judge has also exercised the powers under both the said Articles and, therefore, the present appeal is maintainable under Clause 15 of the Letters Patent. The learned counsel has relied on the decisions of the Apex Court in Umaji Keshao Meshram vs. Radhikabai, AIR 1986 SC 1272, Ratnagiri Distt. Central Coop. Bank Ltd. vs. Dinkar Kashinath Watve, 1993 Supp (1) SCC 9 and Lokmat Newspapers (P) Ltd. vs. Shankarprasad, (1999) 6 SCC 275 and also the decision of a Full Bench
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