REVABEN WD/O AMBALAL MOTIBHAI vs VINUBHAI PURSHOTTAMBHAI PATEL

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(Guj) 8

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MR.BHASKAR BHATTACHARYA And J.B.PARDIWALA, JJ.
REVABEN WD/O AMBALAL MOTIBHAI & ORS.
Versus
VINUBHAI PURSHOTTAMBHAI PATEL & ORS.
LETTERS PATENT APPEAL NO. 1220 of 2011
In
SPECIAL CIVIL APPLICATION NO. 12364 of 2008
With
CIVIL APPLICATION NO. 8627 of 2011
In
LETTERS PATENT APPEAL NO. 1220 of 2011
With
LETTERS PATENT APPEAL NO. 894 of 2012
In
SPECIAL CIVIL APPLICATION NO. 576 of 2009
With
CIVIL APPLICATION NO. 7470 of 2012
In
LETTERS PATENT APPEAL NO. 894 of 2012
With
LETTERS PATENT APPEAL NO. 895 of 2012
In
SPECIAL CIVIL APPLICATION NO. 8193 of 2008
With
CIVIL APPLICATION NO. 7472 of 2012
In
LETTERS PATENT APPEAL NO. 895 of 2012
With
LETTERS PATENT APPEAL NO. 1219 of 2011
In
SPECIAL CIVIL APPLICATION NO. 12445 of 2008
With
CIVIL APPLICATION NO. 8621 of 2011
In
LETTERS PATENT APPEAL NO. 1219 of 2011
Decided On : 15/01/2013

Advocates:
Advocate Appeared:
MRS KETTY MEHTA, ADVOCATE with MS ARCHANA R ACHARYA, for appellant
MR AJ PATEL with MR SHITAL PATEL for respondent No.9
MR MIHIR THAKORE, SR. COUNSEL withMR PARTHIV B SHAH, ADVOCATE for the Respondent No. 10
MS KRINA CALLA, ASST. GOVT. PLEADER for the Respondents No. 11 - 12
RULE SERVED BY DS for the Respondents No. 1 8
MR MIHIR THAKORE, SR. COUNSEL with MR. PARTHIV B SHAH, ADVOCATE for the appellant
MS KRINA CALLA, ASST. GOVT. PLEADER for the Respondents No. 1, 19
MRS KETTY MEHTA, ADVOCATE with MS ARCHANA R ACHARYA for respondents No.9 to 16
MR AJ PATEL with MR SHITAL PATEL for respondent No.18
RULE SERVED by DS respondents No. 2 to 8 and 17
MR ANSHIN H DESAI for appellant
MR U I VYAS for respondent No.1
NOTICE NOT RECEIVED BACK FOR respondent No.2
NOTICE served for respondent No.3

Headnote:
Constitution of India, 1950 – Articles 14, 19, 226, 227 and 300A – Letters Patent Appeals – Clause 15 – preliminary objection raised by the respondents that these appeals are not maintainable under Clause 15 of the Letters Patent in view of the fact that Single Judge really exercised jurisdiction under Article 227 of the Constitution of India – According to the learned counsel appearing on behalf of the respondents, if a Single Judge of this Court, in substance, exercises jurisdiction under Article 227 of the Constitution of India, the same is not appealable under Clause-15 of the Letters Patent. According to those learned counsel, only if, the learned Single Judge exercises original jurisdiction under Article 226 of the Constitution of India, in that event, a Letters Patent Appeal under Clause-15 of the Letters Patent is maintainable and not otherwise – Held, Court holds that these Letters Patent appeals are not maintainable as tribunal below in these cases passed orders not in exercise of original jurisdiction and as such, this court could be moved only under Article 227 and Single judge also did not pass any purported order of certiorari quashing the proceedings for want of, or inappropriate exercise of, jurisdiction – Moreover, even there was no scope of issuing a writ of certiorari in the proceedings arising out of Letters Patent Appeal nos. 894 and 895 of 2012 in the absence of the tribunal as party in the proceedings – Thus, the nature of the orders passed in those two proceedings was in exercise of Article 227 of the Constitution – Order passed in the Appeals, the Civil Applications do not survive and are disposed of accordingly. Notice/Rule if issued, stands discharged – Appeal Dismissed

JUDGEMNT

(PER : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)

1. All these Letters Patent Appeals were heard analogously for the purpose of deciding a preliminary objection raised by the respondents that these appeals are not maintainable under Clause 15 of the Letters Patent in view of the fact that the learned Single Judge really exercised jurisdiction under Article 227 of the Constitution of India. According to the learned counsel appearing on behalf of the respondents, if a learned Single Judge of this Court, in substance, exercises jurisdiction under Article 227 of the Constitution of India, the same is not appealable under Clause-15 of the Letters Patent. According to those learned counsel, only if, the learned Single Judge exercises original jurisdiction under Article 226 of the Constitution of India, in that event, a Letters Patent Appeal under Clause-15 of the Letters Patent is maintainable and not otherwise.

2. Before we proceed to decide the aforesaid question, it will be profitable to refer to the facts in which these four Letters Patent Appeals have been preferred.

2.1 LETTERS PATENT APPEAL NO. 1220 OF 2012:

This Letters Patent Appeal is at the instance of the unsuccessful applicants of Special Civil Application No. 12364 of 2008 and is directed against order dated June 14, 2011 passed by a learned Single Judge of this Court by which His Lordship dismissed the said Special Civil Application.

2.1.1 It may not be out of place to mention here that the above application was described as one under Articles 14, 19, 226, 227 and 300A of the Constitution of India, wherein an order dated August 21, 2008 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/BA/66/2008 was challenged. In the prayer portion of the said application, the applicant prayed for merely setting aside the order dated August 21, 2008 passed by the Gujarat Revenue Tribunal in the above Revisional Application by which the Tribunal allowed the same and set aside the order dated February 28, 2006 passed by the Deputy Collector [Land Reforms & Appeals], Anand in Tenancy Appeal No. 101 of 2005 and restored the order dated January 27, 2003 passed by the Mamlatdar & ALT, determining the purchase price of lands in Tenancy Case No. 26 of 1996. The learned Single Judge, in the order impugned at paragraph-2.0 has described the Special Civil Application No. 12364 of 2008 as one under Article 227 of the Constitution of India and in no part of the order, His Lordship referred to Article 226 of the Constitution of India or a writ of certiorari.

2.2 LETTERS PATENT APPEAL NO. 895 OF 2012:

By this Letters Patent Appeal, the appellants, who were the respondents no. 3 and 4 of Special Civil Application No. 8193 of 2008 challenged order dated April 19, 2012 passed by a learned Single Judge in the above application, whereby, the learned Single Judge, by a common order disposed of several Special Civil Applications. So far as Special Civil Application No. 8193 of 2008 was concerned, the same was allowed by the learned Single Judge and an order of status quo granted by Board of Nominee Court was quashed.

2.2.1 It may not be out of place to mention here that in the said Special Civil Application No. 8193 of 2008, the petitioners therein described the said application as one under Articles 226/227 of the Constitution of India and also under Articles 14 and 16 of the Constitution of India. In the prayer portion, the petitioners therein prayed for issue of the following relief in paragraph 3.12[B] among others:

[A] xxx xxx xxx

[B] This Hon ble Court may kindly be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction quashing and setting aside the impugned order dated 19.4.2008 passed by the Gujarat Cooperative Tribunal in Revision Application No. 15 of 2008 and further be pleased to restrain the respondents Nos. 3 and 4 from construction work in the suit property and transferring, selling, or alienating in an

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