GT Association vs Chaturbuj Housing Pvt. Ltd.

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V.M. Sahai, J.—We have heard Mr. Sunit Shah, learned counsel appearing with Mr. Nehal Gandhi, learned counsel appearing for the appellant and Mr. Ashok Purohit, learned counsel appearing for Mr. J.C. Vyas for respondent Nos. 1 to 4.

This Letters Patent Appeal has been filed challenging the judgment and order dated 14.2.2013 passed by the learned Single Judge in Special Civil Application No. 1674 of 2013 whereby the learned Single Judge dismissed the writ petition preferred by the appellants herein.

Learned counsel appearing for the appellant has urged that even if the Letters Patent Appeal is not maintainable, once the fact that the document comes before the Court wherein the property has been transferred on a stamp paper of Rs. 100/-, then whichever Court notices this fact, has to impound the document in view of the judgment of the Hon''ble Apex Court in the case of M/s. SMS Tea Estates Private Limited v. M/s. Chandmari Tea Company Private Limited, reported in 2011 All India Appeals Reporter (Civil) 745.

Though the argument appears to be very attractive, but it cannot be accepted for the simple reason that the appellant in the writ petition challenged the order dated 28.1.2013 passed below applications Exh. 50/51 by the learned Chamber Judge, Court No. 19, City Civil Court, Ahmedabad in Civil Suit No. 2669 of 2011.

The Five Judges Full Bench of this Court in the case of Gujarat State Road Transport Corporation Vs. Firoze M. Mogal and 1 Another, has held as under:-

"x) If the Special Civil Application is described as one not only under Article 226 of the Constitution, but also under Article 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be quashed, is not made a party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned Tribunal or Court as party, but the same may be treated as one under Article 227 of the Constitution of India. If the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading such court or tribunal for the first time in the Letters Patent Appeal will not change the nature and character of the proceedings before the learned Single Judge. By merely impleading such a Court or Tribunal for the first time in the LPA, the appeal could not be said to be maintainable, if the proceedings before the learned Single Judge remained in the nature of supervisory proceedings under Article 227 of the Constitution.

xi) If the learned Single Judge, in exercise of a purported power under Article 227 of the Constitution sets aside the order of Tribunal or Court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself and such an order can be challenged only by way of a Special Leave Petition before the Supreme Court."

In view of the aforesaid Full Bench decision, the present Letters Patent Appeal is not maintainable. Hence, the present Letters Patent Appeal stands dismissed as not maintainable. We, however, make it clear that we have otherwise, not gone into the merit and the dismissal of this appeal will not stand in the way of the appellant in seeking appropriate remedy before the appropriate forum in accordance with law.

In view of dismissal of Letters Patent Appeal, Civil Application also stands dismissed.