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2014 Supreme(Guj) 715
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIJAY MANOHAR SAHAI and R.P.DHOLARIA, JJ.
SHREE AMRELI JILLA MADHYASTH - Appellant(s)
Versus
MEGHRAJBHAI MOHANBHAI SAGAR & 1 - Respondent(s)
LETTERS PATENT APPEAL NO. 755 of 2014 In SPECIAL CIVIL APPLICATION NO. 12647 of 2013 With CIVIL APPLICATION NO. 6885 of 2014 In LETTERS PATENT APPEAL NO. 755 of 2014
Decide On : 30/07/2014
Appearance:
MR PY DIVYESHVAR, ADVOCATE for the Appellant(s) No. 1 MRS NASRIN N SHAIKH, ADVOCATE for the Respondent(s) No. 1
The court clarified the maintainability of Letters Patent Appeal in cases where the petition is only under Article 227 of the Constitution of India and the court sets aside the impugned order.
Headnote:
Maintainability - Letters Patent Appeal - Dismissal of Writ Petition - Article 227 of the Constitution of India
Fact of the Case:
The appellant challenged the order of the Industrial Court, Rajkot, dated 18.05.2013 in a writ petition, which was dismissed by the learned Single Judge.
Finding of the Court:
The Letters Patent Appeal was found to be not maintainable as the learned Single Judge had not issued a writ of certiorari, and the appeal did not meet the conditions for issue of a writ of certiorari. The dismissal of the appeal would not stand in the way of the appellant seeking appropriate remedy before the appropriate forum.
Issues: The main issue was the maintainability of the Letters Patent Appeal in light of the Full Bench decision and the nature of the proceedings before the learned Single Judge.
Ratio Decidendi: The court held that if a petition is only under Article 227 of the Constitution of India and the court sets aside the order impugned, then no Letters Patent Appeal would lie. The appeal was found to be not maintainable in view of the specific bar created under Clause 15 of the Letters Patent itself.
Final Decision: The present Letters Patent Appeal was dismissed as not maintainable, and the appellant was allowed to seek appropriate remedy before the appropriate forum in accordance with the law. Interim relief, if any, stood vacated.
VIJAY MANOHAR SAHAI, J.
1. Mrs.Nasrin N.Shaikh, learned advocate for the respondent No.1 has sent her sick-note. We have heard Mr.P.Y.Divyeshvar, learned advocate appearing for the appellant.
2. By way of the present Letters Patent Appeal, the appellant-original petitioner has challenged the order dated 05.05.2014 passed by the learned Single Judge in Special Civil Application No.12647 of 2013, by which, the learned Single Judge was pleased to dismiss the writ petition.
3. In the writ petition, the award of the Industrial Court, Rajkot dated 18.05.2013 in Appeal (IC) No.08 of 2011 was challenged by the appellant-original petitioner.
4. In our opinion, the learned Single Judge while dismissing the writ petition has not issued a writ of certiorari and therefore, this Letters Patent Appeal is not maintainable in view of 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, which is held as under:
“(M) (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 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 cha enged only by way of a Special Leave Petition before the Supreme Court.
To put it very explicitly, take a case where a petition is only under Article 227 of the Constitution of India, invoking superintending powers of the High Court and not under Article 226 of the Constitution of India. After examining the matter, if the court finds substance in the petition and sets aside the order of an authority, court or a tribunal, then against such an order, an LPA would not lie on the argument that since the court has set aside the order it has decided the matter on merits having found substance in the same.
To put it in other words, once a petition is under Article 227 of the Constitution of India, and while entertaining such a petition under Article 227 of the Constitution of India, if the court allows a petition by setting aside the order impugned, then against such an order no LPA would lie.
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 relief, if any, stands vacated.
6. In view of dismissal of the present Letters Patent Appeal, Civil Application No.6885 of 2014 also stands disposed of.
