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LPA/1393/2011 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1393 of 2011
In
SPECIAL
CIVIL APPLICATION No. 6023 of 2011
With
CIVIL
APPLICATION No. 10011 of 2011
In
LETTERS
PATENT APPEAL No. 1393 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
MAKWANA
KUBERBHAI SHIVABHAI & 1 - Appellant(s)
Versus
EXECUTIVE
ENGINEER & 1 - Respondent(s)
=========================================================
Appearance :
MR
ASHISH B DESAI for
Appellant(s) : 1 - 2.
MR NJ SHAH AGP for Respondent(s) : 1 -
2.
RULE NOT RECD BACK for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 17/10/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
Though
only Civil Application was listed on Board today, with the consent of
the parties, we have taken the Letters Patent Appeal itself for final
disposal.
1. This
Letters Patent Appeal has been filed challenging the order dated
23.08.2011 passed by the learned Single Judge in Special Civil
Application No.6023/2011.
2. We
have heard learned counsel for the parties. It appears that the
respondent-authority has passed the impugned order of recovery,
without issuing any Notice to the appellants. Mr. NJ Shah learned AGP
is not in a position to show from the record that any Notice was
issued to the appellants before the order of recovery was passed.
Hence, we are of the opinion that only on the ground of non-issuance
of notice, the impugned order of recovery deserves to be quashed and
set aside.
3. In
view of the above, the appeal is allowed and the order dated
23.08.2011 passed by the learned Single Judge is quashed and set
aside. It shall, however, be open to the respondent-authority to pass
fresh order of recovery, after issuing Notice to the appellants. The
appeal stands disposed of accordingly as allowed.
4. Since
the main appeal has been allowed, the civil application stands
disposed of. Rule is made absolute.
[V.M.
SAHAI, J.]
[K.
S. JHAVERI, J.]
Pravin/*
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