Gujarat High Court Case Information System
Print
LPA/2829/2010 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2829 of 2010
In
SPECIAL
CIVIL APPLICATION No. 6880 of 1990
For
Approval and Signature:
HONOURABLE
THE ACTING CHIEF JUSTICE MR. A.L.DAVE
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial 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 judge ?
=========================================================
JASHBHAI
R PATEL - Appellant(s)
Versus
CHOTU
MORARBHAI PATEL & 2 - Respondent(s)
=========================================================
Appearance
:
MR
JV JAPEE
for
Appellant(s) : 1,
None for Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3,
1.2.4, 1.2.5,1.2.6 - 2.
MS. KRINA CALLA, AGP - for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
THE ACTING CHIEF JUSTICE MR. A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 7/10/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR. JUSTICE J.B.PARDIWALA)
In
this appeal, appellant challenges the judgment and order dated
21.10.2010 passed by the learned Single Judge in SCA No. 6880 of
1990, whereby the learned Single Judge, having found no merit in the
petition, summarily rejected the same.
2. The
record reveals that the challenge before the learned Single Judge was
to the order dated 28.7.1989 passed by Gujarat Revenue Tribunal in
Revision Application No.TEN-BS-150 of 1984, whereby the Revision
Application preferred by the petitioner was rejected.
3. Before
the learned Single Judge, Gujarat Revenue Tribunal was not a party
respondent. In the absence of Gujarat Revenue Tribunal, whose order
was under challenge, whether a petition under Article 226 of the
Constitution would be maintainable or a petition under Article 227 of
the Constitution would be maintainable, is the question. To make
this appeal maintainable under Clause 15 of the Letters Patent, the
appellant would have to show that the petition was under Article 226
of the Constitution and the powers exercised by the learned Single
Judge were also under Article 226 of the Constitution. We are afraid
that this is not the position, because no relief under Article 226
could have been granted by the learned Single Judge in the absence of
Tribunal being a party. The position of law is now made very clear
by the Full Bench of this High Court in the case of Bhagyodaya
Co-operative Bank Ltd. Vs. Natvarlal K. Patel (SCA No. 12382 of 2010
with SCA No. 15308 of 2010) decided on 28.7.2011, wherein the Full
Bench held as under:-
“15. From
the aforesaid decisions rendered by this Court and the Supreme Court,
as referred to above, we hold as follows :-
(i) In a
petition for relief under Article 226 of Constitution of India
against any judgment or award passed by the Industrial Tribunal or
Labour Court, such Industrial Tribunal or Labour Court is a necessary
party. In absence of such necessary party, no rule and writ can be
issued under Article 226 against such Industrial Tribunal or the
Labour Court, and
(ii) But if a
petition for relief is filed under Article 227 of the Constitution of
India, the Court or the Tribunal whose order is impugned in the
petition, is not a necessary party to such petition under Article 227
of the Constitution of India. The High Court can exercise the power
under Article 227 even in absence of such Court or the Tribunal.
Even
if it is presumed that the petition was under Article 227 of the
Constitution, then in that case the appeal under Clause 15 would not
be maintainable. In this view of the matter, the appeal is dismissed
as being not maintainable, with no order as to costs.
(A.L.
Dave, Actg. C.J.)
(J.B.
Pardiwala, J.)
*/Mohandas
Top