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2003 DIGILAW 251 (GAU)

Lokheswar Likhok v. Union of India (UOI)

2003-06-09

B.BISWAS

body2003
ORDER D. Biswas, J. 1. The matter was taken up for motion on 6.6.2003, Mr. K.K. Mahanta, learned Counsel appeared for the Petitioners and Mr. P. Roy, learned Government Advocate appeared for the State Respondent. 2. The petition has been filed for quashing/setting aside the order dated 2.4.2003 passed by the Civil Judge (Junior Division) No. 1, Jorhat, in Misc.(J) Case No. 83/2002 arising out of Title Suit No. 80/2002. 3. The private Respondents filed the Title Suit No. 80/2002 along with the above miscellaneous application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure praying for temporary injunction restraining the official Respondents from proceeding with the construction of Chengaligaon Kolakhowa Road. The learned Civil Judge (Junior Division) by the order dated 4.1.2003 issued ad-interim injunction and by the impugned order made the order of injunction absolute. Aggrieved thereby, the Petitioners have filed this petition under Articles 226, 227 and 228 of the Constitution, Mr. P. Roy, learned State Counsel raised objection on the ground that the petition is not maintainable as remedies by way of appeal/revision is available under the Code of Civil Procedure. 4. MR. K.K. Mahanta, learned Counsel for the Petitioners relied upon the decision of the Supreme Court in Raunaq International Limited v. I.V.R. Construction Limited and Ors. (1999) 1 SCC 492 and argued that public interest is involved in the matter and, as such, writ petition would lie. Mr. Mahanta laid stress on Article 227 of the Constitution in order to justify the maintainability of the petition. But this decision was rendered by the Hon'ble Supreme Court in an appeal against the decision of the Bombay High Court in a writ petition concerning disputes over tender. There is a marked difference between the said writ petition and the instant petition filed challenging the direction of a Civil Court under Order 39, Rule 1 and 2 of the Code of Civil Procedure. The ratio of the aforesaid judgment cannot determine the course of decision relating to the maintainability of the writ petition at hand. 5. There is no dispute that Title Suit No. 80/2002 was filed against the State of Assam and Ors. The ratio of the aforesaid judgment cannot determine the course of decision relating to the maintainability of the writ petition at hand. 5. There is no dispute that Title Suit No. 80/2002 was filed against the State of Assam and Ors. for declaration that the construction of the proposed Chengaligaon Kolakhowa Road in deviation from its original route as per plan, is illegal and for temporary injunction restraining the official Respondents from going ahead with the construction. No doubt, a Civil Court shall not lightly exercise its prohibitory powers in matters involving public interest. But we are not on merit of the case. 6. Section 115, of the Code of Civil Procedure provides for revision against an order granting injunction. Appeal is also permissible from an order of injunction passed under Order 39 Rule 1 and 2as per provisions of Rule 1(r) of Order 43. In this context we may refer to a judgment of the Hon'ble Supreme Court in Sadhana Lodh v. National Insurance Company Ltd. and Anr. (Civil Appeal No. 557 of 2003 arising out of S.L.P.(C) No. 21854 of 2001. Certain excerpts from the aforesaid judgment are relevant for the purpose of answering the question at hand. The relevant excerpts are quoted below: The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by tiling a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. 2002(7) SCC 456 ). This being the legal position, the petition filed under Article 227of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. 2002(7) SCC 456 ). This being the legal position, the petition filed under Article 227of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing v. revision before the High Court under Section 115 of Code of Civil Procedure has been expressly barred by a States enactment, only in such case a petition under Article 227of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 Code of Civil Procedure, in such a situation a writ petition under Article 227 would lie and not tinder Article 226 of the Constitution Thus, where the Slate Legislature has barred a remedy of fling a revision petition before the High Court under Section 115 Code of Civil Procedure, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review of re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision. 7. In view of the aforesaid decision of the Hon'ble Supreme Court, the petition is not maintainable and, hence, dismissed in limine. The Petitioners may, therefore, seek remedies as provided under the Code of Civil Procedure. Petition dismissed.