IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION No 2113 of 2003
in
CIVIL APPLICATIONNo 1496 of 1999
in
LETTERS PATENT APPEAL NO. 135 OF 1999
in
SPECIAL CIVIL APPLICATION NO.3541 OF 1986
with
CIVIL APPLICATION NO. 1497 OF 1999 (FOR STAY)
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DIRECTOR
Versus
CHINUBHAI R AMIN
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Appearance:
1. Civil Application No. 2113 of 2003
MR VM PANCHOLI, AGP, for Petitioner No. 1-3
.......... for Respondent No. 1-1/1B,2
MR HARDIK C RAWAL for Respondent No. 1/1C-1/1D
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CORAM : MR.JUSTICE B.J.SHETHNA
and
MR.JUSTICE A.L.DAVE
Date of Order: 03/05/2003
ORAL ORDER
(Per : MR.JUSTICE B.J.SHETHNA)
1.Chinubhai R. Amin-original petitioner working
with respondent-Diwan Ballubhai Secondary School,
Kankaria, Ahmedabad, had filed writ petition before this
Court, being Special Civil Application No.3541 of 1996,
and prayed that opponent No.1-the Director, Accounts and
Treasury Office, Ahmedabad, be directed to pay pension on
account of his pensionable service of 27 years (after
capitalising about 1/3 amount) and the allowance declared
from time to time by the Government and medical and other
allowance declared by the Government with interest.
Learned Single Judge of this Court, by his judgment and
order dated 23.4.1998, allowed the writ petition and held
that the claim of the petitioner for Rs.35,010/- was
justified and that he was entitled for simple interest at
the rate of 12% instead of compound interest at the rate
of 18% percent prayed for and, accordingly, the
respondents were ordered to pay the same within three
months from the date of the order, i.e. 23.4.1998. This
order passed by the learned Single Judge of this Court
was challenged by the appellants in the above Letters
Patent Appeal No.135 of 1998, which was barred by period
of limitation by 257 days. Therefore, the above Civil
Application No.1496 of 1999 was filed by the
applicants-appellants for condoning delay of 257 days in
filing the appeal. Division Bench of this Court on
8.10.2001, had issued Rule and made it returnable on 5th
November, 2001. Thereafter, from time to time, the
matter was adjourned and could not be heard and finally
disposed of till today. Meanwhile, during the pendency
of the aforesaid Civil Application and Letters Patent
Appeal, the sole respondent-Chinubhai R. Amin expired on
22nd March, 2001, before the admission of Civil
Application No.1496 of 1999 for condonation of delay.
Therefore, the applicants have filed above Civil
Application No.2113 of 2003 for bringing the heirs of the
sole respondent-original petitioner-Chinubbhai R. Amin
on record. On 24th March, 2003, Division Bench of this
Court had ordered to issue notice to the proposed heirs
and made it returnable on 29th April, 2003. In response
to the said notice, learned counsel, Shri Hardik Raval,
appears for the proposed heirs of original
petitioner-Chinubhai R. Amin.
2.There is a letter dated 1.11.2001 addressed by
the respondent-Diwan Ballubhai Secondary School. From
the said letter, it is clear that, as per the order, the
amount was already paid to the original
petitioner-deceased Chinubhai R. Amin. Not only that, a
letter dated 1.5.2000 addressed by the District Education
Officer, Ahmedabad City, to the Principal of the School
shows that the school was directed to make the payment to
Shri Amin, as per the order passed by the learned Single
Judge of this Court in the Special Civil Application.
Thus, the order passed by the larned Single Judge of this
Court on 23rd April, 1998, has been complied with long
back. Under the circumstances, the aforesaid Civil
Application as well as the Letters Patent Appeal were
required to be dismissed straightaway. However, the
learned Assistant Government Pleader submitted that, if
the heirs of the respondent, deceased-Chinubhai R. Amin,
are not brought on record and, if the delay is not
condoned, then the order passed by the learned Single
Judge would remain on record and it would become a
binding precedent. Therefore, though the order was
complied with by the present appellants, on principle,
the challenge is made. The apprehension expressed by
Shri Pancholi can be taken care of by observing that,
while deciding the matter, we have not gone into the
merits of the case and, without expressing any opinion on
the legality and validity of the order passed by the
learned Single Judge, Letters Patent Appeal was required
to be disposed of mainly on two grounds, (1) that the
order was complied with long back and (2) that
respondentpetitioner-Chunibhai R. Amin died long back.
3.In view of the above, Shri Raval, for the
proposed heirs of the opponent-Chinubhai R. Amin has no
objection in granting Civil Application No.2113 of 2003.
Accordingly, Civil Application No.2113 is granted and the
proposed heirs of deceased opponent-Chinubhai R. Amin
are brought on record. Civil Application No.2113 of 2003
is, accordingly, allowed by condoning the delay in filing
the same.
4.This brings us to Civil Application No.1496 of
1996 for condoning the delay in filing the appeal. In
view of what has been observed by us, Mr. Raval for the
respondents-proposed heirs of original petitionerdeceased
Chinubhail R. Amin has no objection in granting the
application for condonation of delay. Accordingly, Civil
Application No.1496 of 1999 filed in Letters Patent
Appeal No.135 of 1999 for condoning the delay is allowed
and Rule is made absolute with no order as to costs.
5.This brings us to main Letters Patent Appeal
No.135 of 1999. As stated earlier, we are not inclined
to interfere with the order passed by the learned Single
Judge of this Court on 23.4.1998 mainly for two reasons,
(1) that the order impugned was complied with by the
present appellants long back and (2) that the original
petiitoner-Chinubhai R. Amin has expired long back. On
merits, we are not inclined to express any opinion about
the legality and validity of the order passed by the
learned Single Judge of this Court, allowing the writ
petition filed by the original petitioner-deceased
Chinubhai R. Amin. However, we make it clear that,
without expressing any opinion, we have dismissed this
appeal mainly on the aforesaid two grounds, therefore, it
can never become a precedent, more particularly, when the
learned Single Judge himself, on facts on this case,
without laying down the law, has decided the matter.
6.Civil Application No.1497 of 1999 in Letters
Patent Appeal No.135 of 1999, praying for stay of the
order of the learned Single Judge, is dismissed as the
main Letters Patent Appeal is dismissed.
[ B. J. SHETHNA, J. ]
[ A. L. DAVE, J. ]
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