State Of Gujarat vs Khusalbhai Babarbhai
2021 Latest Caselaw 6736 Guj

     C/LPA/759/2018                                 ORDER DATED: 23/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 759 of 2018

                               With
      CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2020
            In R/LETTERS PATENT APPEAL NO. 759 of 2018
                               With
            CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
            In R/LETTERS PATENT APPEAL NO. 759 of 2018
                               With
 CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2020
            In R/LETTERS PATENT APPEAL NO. 759 of 2018
=============================================
                        STATE OF GUJARAT & 1 other(s)
                                   Versus
                      KHUSALBHAI BABARBHAI & 9 other(s)
=============================================
Appearance:
MR CHINTAN DAVE, AGP for the Appellant(s) No. 1,2
MR MANAN A SHAH(5412) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 10,2,3,4,5,6,9
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 7,8
=============================================

 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
       and
       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 23/06/2021

                                ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. On 16.06.2021, this Bench passed the following order:

"1. This appeal under Clause 15 of the Letters Patent is at the instance of the State of Gujarat and another- original respondents Nos.1 and 2 respectively of the Special Civil Application No.1776 of 2002 filed by the opponents Nos.1 to 8 respectively herein. The respondent No.9 is the Gujarat Housing Board, whereas the respondent No.10 is one of the private respondents (Original Respondents Nos.9 and 10 in the writ application).

2. It appears from the materials on record that the original writ applicants preferred the Civil Application No.3365 of 2017, seeking amendment in the main matter.

C/LPA/759/2018 ORDER DATED: 23/06/2021

Such application was vehemently opposed by the State essentially on the ground that such amendment, at a belated stage, would cause grave prejudice to the State and the entire nature of the writ application would get substantially altered.

3. The learned Single Judge allowed the civil application and permitted the writ applicants to carry out the amendment. It is this order passed by the learned Single Judge allowing the amendment application which is sought to be challenged in the present appeal.

4. The letters patents of Chartered High Courts provided an intra-court appeal or letters patent appeal from the "judgment" of a learned Single Judge of the High Court to the Division Bench of the same Court, if such appeal is not barred by any statute (for instance, Section 100A of the CPC 1908).

5. The following two conditions must be satisfied before such appeal would lie;

(i) it must be a "judgment" within the meaning of Section 108 of the Government of India Act, 1915; and

(ii) the case should not fall within one of the excluded categories set out in the letters patent clause.

6. Before proceeding to hear this appeal on merits, we called upon the learned AGP appearing for the State to convince us that the impugned order passed by the learned Single Judge, allowing the amendment application as prayed for by the original writ applicants, is a "judgment" within the meaning of Section 108 of the Government of India Act, 1915.

7. Mr. Shah has brought one another fact to our notice by inviting our attention to an order passed by a Coordinate Bench dated 30th July, 2018 in the Letters Patent Appeal No.973 of 2018 with Civil Application No.2 of 2018. The order reads thus;

"1] This Letters Patent Appeal is filed under clause 15 of the Letters Patent aggrieved by the order dated 16.06.2017 passed in Civil Application No.3363 of 2017 in Special Civil Application No.1773 of 2002.

[2] When the matter is called, it is brought to our notice that Civil Application No.3363 of 2017 in Special Civil Application No.1773 of 2002 was disposed of along with Civil Application No.12210 of 2016 and group matters. On similar set of facts, the Civil Applications were disposed of by common order dated 16.06.2017.

[3] Against the order passed in Civil Application

C/LPA/759/2018 ORDER DATED: 23/06/2021

No.12210 of 2016 in Special Civil Application No.1779 of 2002, Letters Patent Appeal No.534 of 2018 was preferred, which is dismissed by this Court vide order dated 03.05.2018.

[4] Subject matter of this Letters Patent Appeal is covered to be dismissed in view of the order dated 03.05.2018 passed in Letters Patent Appeal No.534 of 2018. Following the said judgment and for the reasons recorded in Letters Patent Appeal No.534 of 2018, this Letters Patent Appeal is dismissed.

Consequently, the Civil Application also stands disposed of."

8. According to Mr. Shah, all cognate appeals filed by the State of Gujarat were ordered to be dismissed, and in such circumstances, the present appeal, i.e, the Letters Patent Appeal No.759 of 2018 would also not survive and should be dismissed.

9. Mr. Kathiriya, the learned AGP shall look into this aspect also and assist us on the next date of hearing.

10. Post this matter for further hearing on 23rd June, 2021."

2. In view of the order passed by a Coordinate Bench dated 03.05.2018 in the Letters Patent Appeal No.534 of 2018 in Special Civil Application No.1779 of 2002, this appeal, at the instance of the State of Gujarat and another, should fail. We are saying so because the impugned order passed by the learned Single Judge is a common order passed on five civil applications filed by the respondents herein seeking amendment in the five writ applications.

3. The State preferred the Letters Patent Appeal No.534 of 2018 in one of the writ applications, i.e. Special Civil Application No.1779 of 2002, and the Letters Patent Appeal against the order passed by the learned Single Judge came to be dismissed. This appeal also should meet with the same fate. We may quote the order passed by the Coordinate Bench dismissing the Letters Patent Appeal No.534 of 2018 vide order

C/LPA/759/2018 ORDER DATED: 23/06/2021

dated 03.05.2018, which is referred to herein as under:

"1. This appeal is filed under Clause 15 of the Letters Patent against the order dated 16.06.2017, passed by the learned Single Judge in Civil Application No.12210 of 2016 and allied matters. The learned Single Judge by the said order allowed the Civil Application filed by the original petitioners for amendment of the petition.

2. Heard learned Assistant Government Pleader Mr.K.M. Antani for the appellants - original respondents.

3. It is submitted that the original petitioners have filed Special Civil Application No.1779 of 2002 before this Court in which the they have challenged the proceedings initiated under the Urban Land Ceiling Act, 1976. In the said petition, the present appellants filed affidavit-in-reply on 04.05.2002. The said petition along with other batch of petitions are pending for final adjudication before the learned Single Judge. However, after a period of fourteen years, in the year 2016, the original petitioners preferred Civil Application for amendment of the petition, which is filed in the year 2002. By way of the said amendment, the nature and scope of the original petition has been changed. It is submitted that the appellants, therefore, filed affidavit-in-reply and opposed such amendment. However, the learned Single Judge, by the impugned order, allowed the application and granted the amendment as prayed for by the original petitioners. It is, therefore, submitted that the impugned order be quashed and set aside as because of the amendment, nature and scope of the petition is changed.

4. Having heard learned Assistant Government Pleader and having gone through the material produced on record, it is revealed that the original petitioners have filed the petition in the year 2002 whereas the amendment has been moved after obtaining the copies under the Right to Information Act, 2005, in the year 2016. It is further revealed that the amendment, which has been sought for, has been pleaded way back in the year 2001 and the papers have been called for. However, the documents sought to be produced by way of amendment were supplied by the concerned authority under the Right to Information Act and, therefore, in the year 2016, the application was moved. We have also perused a copy of the Civil Application for amendment as well as the documents. From the said material, it cannot be said that it changes the nature and scope of the petition as canvassed by the learned Assistant Government Pleader. The original petitioners have explained why such an amendment was moved at belated stage.

5. We have also gone through the reasonings recorded by the learned Single Judge and we are of the view that the learned Single Judge has not committed any error which requires an interference in the present appeal. Accordingly,

C/LPA/759/2018 ORDER DATED: 23/06/2021

the appeal is dismissed. In view of the disposal of the main appeal, Civil Application does not survive and is disposed of accordingly."

4. In the result, this appeal fails and is hereby dismissed. All the connected civil applications also stand disposed of accordingly.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J)

NEHA