IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 562 of 2010 In SPECIAL CIVIL APPLICATION No. 6121 of 1995 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE C.L. SONI ========================================================= 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 ?
========================================================= DALWADI TRIKAMBHAI TALSIBHAI - Appellant Versus STATE OF GUJARAT & 2 - Respondents ========================================================= Appearance :
MR S M SHAH, LD ADVOCATE WITH MR PJ YAGNIK for Appellant GOVERNMENT PLEADER for Respondent(s) : 1 - 2. RULE NOT RECD BACK for Respondent(s) : 1 - 3,3.2.2 None for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE C.L. SONI Date : 15/06/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) This intra-court appeal arises out of an order passed by learned Single Judge in SCA No.6121 of 1995 on 04/10/2007. The said petition was preferred under Articles 226 and 227 of the Constitution of India seeking following reliefs:
(“A) to allow the petition with costs;
(B) to quash and set aside the judgment and order dated 18/04/1994 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/227/93 filed by the third respondent and to further declare that the said order is not binding to the petitioner in any manner;
(C) to hold that the Gujarat Revenue Tribunal had no jurisdiction to exercise its powers under section 37 of the Act after the orders of allotment are made under section 29 of the Act in respect of the surplus land, the possession of which was already taken after due enquiry under section 21 of the Act;
(D) to restrain permanently the third respondent and his servants and associates from enforcing and implementing the said order of the Gujarat Revenue Tribunal, Annexure – E, and from disturbing the possession of the said land admeasuring 11 acres and 34 gunthas of S. No.341 in any manner in view of the order of allotment dated 26-03-1990, Annexure – C, passed by the Assistant Collector, Limdi;
(E) to issue an injunction restraining the respondents (including respondent No.3), his servants and associates, from implementing and enforcing the said order dated 18/04/1994 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/227/93 and in taking possession of the said Survey No.341 admeasuring 11 acre and 34 gunthas or disturbing in any manner pending the hearing and final disposal of this petition;
(F) to pass such other and further orders as may be deemed just and proper in the circumstances of the case;”
2. In substance the petitioner challenges the order dated 18/04/1994 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/227/93. The revision before the Tribunal arose out of proceedings before the Assistant Collector, Limdi which arose out of an order passed by the Mamlatdar dated 20/04/1992.
2.1 The petitioner found favour with the learned Single Judge and the impugned order was passed. Hence, this appeal by original respondent No.3- Dalwadi Trikambhai Talsibhai.
3. The question arose as to whether the order passed by the learned Single Judge impugned in the appeal can be said to be one passed invoking the Article 227 of the Constitution of India and whether this Letters Patent Appeal would be maintainable or not.
4. We have heard learned Senior Advocate Mr.Shah appearing with learned Advocate Mr.P J Yagnik for the appellant on this question. He has raised a large number of contentions and has relied upon certain decisions to contend that decision of this Court rendered by a Full Bench in SCA No.12382 of 2010 and allied matters in case of the 'Bhagyodaya Co-operative Bank Ltd. Vs. Natvarlal K Patel & Ors., and Anr.,' and decision in case of 'Gustadji Dhanjisha Buhariwala & Anr. Vs. Nevil Bamansha Buhariwala & Ors., as reported in 2011 (2) GLH 147', would not govern this case. He submitted that in light of decision in case of 'Radhey Shyam & Anr., Vs. Chhabi Nath & Ors., reported in (2009) 5 SCC 616', either the decision may be deferred or a doubt is expressed by the Apex Court, a different view may be taken than the view taken in the above referred cases.
5. Today, this Court has before it decision of a Full Bench of this Court on this very subject rendered in SCA No.12382 of 2010 and allied matters dated 28/07/2011 in case of Bhagyoday Co-operative Bank Ltd., (supra) and another decision in case Gustadji Dhanjisha Buhariwala (supra) which being a binding force. It is true that matter is referred to a larger Bench in case of Radhey Shyam (supra) expressing a doubt about the Court's jurisdiction as per the proposition laid down in case of 'Surya Dev Rai Vs. Ram Chander Rai as reported in (2003) 6 SCC 675', but, in absence of any contrary order passed by a larger Bench of the Apex Court, which may be duly constituted pursuant to the reference, the decision of Full Bench and Division Bench would be binding to this Court.
6. Even, subsequent to hearing and before pronouncement of this order, a Division Bench of this Court in LPA NO.490 of 2011 and allied matters in case of 'Navin Kanabhai Kangad Vs. Ravindra Khusalchand Mehta & Anr.,' by its order dated 24/02/2012, has taken the similar view dealing with almost all the contentions raised by learned Senior Advocate Mr.Shah there again appearing for the appellant.
7. In the instant case, the challenge is to an order passed by GRT arising out of an order passed by the Assistant Collector, which again arose out of an order passed by the Mamlatdar and as such, the learned Single Judge was called upon to exercise jurisdiction under Article 227 of Constitution of India only according to us.
8. The appeal, therefore, would not be maintainable and hence stands dismissed without entering into the merits of the case. Notice is discharged.
(A L DAVE, J.)
(C L SONI, J.)
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