Parmar Dahyabhai Bhikhabhai vs The Visnagar Nagrik Sahakari Bank ...
2021 Latest Caselaw 16692 Guj

     C/LPA/986/2021                                 ORDER DATED: 25/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/LETTERS PATENT APPEAL NO. 986 of 2021
                                    In
                R/SPECIAL CIVIL APPLICATION NO. 1780 of 2018

                                      With

                       R/CIVIL APPLICATION NO. 619 of 2021
                                            In
                     LETTERS PATENT APPEAL NO. 986 of 2021
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                        PARMAR DAHYABHAI BHIKHABHAI
                                          Versus
                 THE VISNAGAR NAGRIK SAHAKARI BANK LTD.
==================================================================
Appearance:
MR DHARMESH V SHAH(1050) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3,4,4.1,4.2
==================================================================

CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                              and
         HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                               Date : 25/10/2021
                                ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This Letters Patent Appeal is directed against the order dated

16.12.2019 passed by the learned Single Judge in Special Civil

Application No.1780 of 2018 whereunder learned Single Judge has

refused to interfere with the order passed by the Tribunal which had

rejected the request of the petitioner. This is carried in the present Letters

Patent Appeal. The petition which came to be filed before the learned

Single Judge was under Article 227 of the Constitution of India though

styled as one filed under Article 226 and 227. The Full Bench of this

C/LPA/986/2021 ORDER DATED: 25/10/2021

Court in the case of Gujarat State Road Transport Corporation vs. Firoze

M. Mogal and others, reported in AIR 2014 Guj 33 has held that if a

learned Single Judge has exercised the power under Article 227 of the

Constitution of India, such an order would not be amenable in to intra-

court appeal but has to be challenged before the Hon'ble Supreme Court.

It has further held:

"10. The appellants being dissatisfied, thereafter challenged the order passed by the appellate authority by filing a Special Civil Application No.408 of 1993 under Articles 226 and 227 of the Constitution of India.

11. The learned Single Judge of this Court, vide judgment and order dated 11th September 2007, rejected the writ-application, thereby confirming the order passed by the appellate authority.

12. Being dissatisfied with the judgment and order passed by the learned Single Judge rejecting the writ-application, the appellants filed an appeal under clause 15 of the Letters Patent. When the Letters Patent Appeal came up for hearing before the Division Bench of this Court, a preliminary objection was raised by the learned AGP appearing for the State respondents as regards the maintainability of the Letters Patent Appeal. Relying on a decision of this Court in the case of Revaben (supra), it was pointed out by the learned AGP that a Division Bench of this Court in the case of Revaben (supra) has taken the view that if the tribunal whose order is under challenge is not impleaded as a party respondent, then the writ petition would have to be treated as a petition under Article 227 of the Constitution of India and not as a writ petition under Article 226 of the Constitution of India. Indisputably, in the Special Civil Application, the appellate authority, whose order was impugned, was not impleaded as a party respondent. It also appears that the learned AGP, to make good his preliminary objection as regards the maintainability of the Letters Patent Appeal, placed reliance on a Full Bench decision of this Court in the case of The Bhagyodaya Cooperative Bank Limited v. Natvarlal K.Patel and another, reported in 2011(3) GLH (FB) 89, wherein the Full Bench has taken the view that in a writ petition under Article 226 of the Constitution of India, the tribunal or authority whose order is impugned has to be impleaded as a party, but if the petition is under Article 227 of the Constitution of India, then the tribunal or authority need not be impleaded as a party respondent."

C/LPA/986/2021 ORDER DATED: 25/10/2021

2. In view of the fact that power has been exercised by the learned

Single Judge under Article 227 of the Constitution of India, present

Letters Patent Appeal is not maintainable and it stands dismissed.

3. Appeal having been dismissed as not maintainable, Civil

Application No.986 of 2021 does not survive for consideration and it

stands consigned to record. Rule discharged.

(ARAVIND KUMAR,CJ)

(MAUNA M. BHATT,J) Bharat