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2004 DIGILAW 139 (JK)

Union Of India v. State Of J. &K.

2004-05-07

S.K.GUPTA

body2004
1. By means of this petition, the petitioners have approached the court seeking setting aside of the judgment and decree dated 3.1.2003 passed by the Court of 2nd Additional District Judge, Jammu in invoking writ jurisdiction under section 103 and power of superintendence under section 104 of the Constitution of Jammu and Kashmir, of the court. 2. It appears that a civil suit for recovery of Rs.3,50,000/- on account of use and occupation of land aggregating 5 kanals 10 marlas contained in khasra No.657 located at Nagrota, Jammu, came to be commenced by Rishi Raj Chopra and Kamal Chopra respondent Nos.4 and 5 in this writ petition, before the 2nd Additional District Judge, Jammu. 3. Subordinate court after having summoned the defendants in the suit who initially were represented by Shri B. R. Chandan, Advocate (Additional Public Prosecutor), but later on, he, after seeking various adjournments with one also subject to payment of costs of Rs. 1000/-chose not to deposit the costs and remained absent that led the court to proceed exparte. After recorded the exparte statements of the witnesses, appreciating and estimating the evidence, both oral and documentary, court held the plaintiffs in the suit (respondents No.4 and 5 in the writ petition) entitled to the suit amount along with pendente-lite interest and future interest @ 8% per annum and decreed the suit accordingly. The judgment and decree came to be passed by the subordinate court of 2nd Additional District Judge, Jammu, on 3.1.2003. 4. Aggrieved by the aforesaid judgment and decree passed by the 2nd Additional District Judge, Jammu, petitioners have canvassed its correctness in this petition on variety of grounds. It is stated that the land in dispute being under the occupation of Union of India, the petitioners were necessary and proper parties. The compensation could not be determined at their back and in the absence of the petitioners. Further case of the petitioners is that the land in question was requisitioned for being used for public purpose by respondent No.1 way back in 1972. Its rent was fixed by the State Government from time to time prescribed under law. The rent so fixed continued to be deposited by petitioner No.2 in the office of respondent No.3, Deputy Commissioner, Jammu till 1998. Rent was paid @ Rs. 375/- per kanal as assessed by the State Government. Its rent was fixed by the State Government from time to time prescribed under law. The rent so fixed continued to be deposited by petitioner No.2 in the office of respondent No.3, Deputy Commissioner, Jammu till 1998. Rent was paid @ Rs. 375/- per kanal as assessed by the State Government. It is further stated that the land was acquired only in the year 2001. In fact, all these facts were not brought to the notice of the court on account of non-appearance of respondents No. 1 and 2 and on suppression of material facts, led the court awarding huge amount of compensation to respondents 4 and 5. It is further submitted that respondents 4 and 5, however, were not legally entitled for the payment of rent, which has been awarded in the judgment and decree of the court. 5. That the decree and judgment being without jurisdiction and violative of principles of natural justice needs to be set aside by the court in exercise of its extraordinary jurisdiction under section 104 of the Constitution of Jammu and Kashmir. 6. It may be pointed out at the threshold that since the power under section 104 of the Constitution of Jammu and Kashmir read with Article 227 of the Constitution of India is an extraordinary power, it is to be used most sparingly. However, relief under this provision has been refused on the ground that proper remedy lies elsewhere. 7. Mr. Rohit Kapoor, learned counsel appearing for the petitioners, vehemently urged that though adequate alternative remedy is available, but the same is not as speedy and effective as by way of petition under section 104 of the Jammu and Kashmir Constitution read with Article 227 of the Constitution of India. His further submission is that mere existence of alternative remedy cannot exclude the High Court from exercising its power under the provision of section 104 of the Jammu and Kashmir Constitution to interfere with an order passed in flagrant violation of the law. 8. Undoubtedly, the petitioners are the persons interested for whose benefit the land is required. Petitioners were not parties before the subordinate court. Petitioners, being interest (sic) and proper parties, if not impleaded, are entitled to file an appeal against the enhanced award. 8. Undoubtedly, the petitioners are the persons interested for whose benefit the land is required. Petitioners were not parties before the subordinate court. Petitioners, being interest (sic) and proper parties, if not impleaded, are entitled to file an appeal against the enhanced award. If the compensation awarded is neither just nor proper, the petitioners being the persons interest (sic) are entitled to canvass its correctness by filing an appeal. If they were not made parties, they are entitled to seek leave of the court to file appeal against the award and decree of the civil court. 9. The supervisory jurisdiction obliges the High Court to confine to the scrutiny of the records and proceedings of the subordinate court. By relying on fresh material which was not before the subordinate court, the High Court should not have disturbed the findings of the facts in exercise of such supervisory jurisdiction, as it (sic) well settled that such a power is one of judicial superintendence which cannot be used to upset conclusions of facts, however, (sic) erroneous those may be, unless such conclusions are so perverse or so unreasonable that no court could have ever reached them. This was the view taken by the apex court in Rena Drego (Mrs.) Vs. Lalchand son and others, (1998) 3 SCC 341. The Rule of alternative remedy is a recognized principle that High Court ought to direct the party to seek other available remedy before invoking constitutional remedy, as it held in A. Venkatasubbiah Naidu Vs. Chellappan & others, (2000) 7 SCC 695. Jurisdiction of the High Court under section 104 of the Constitution of Jammu and Kashmir read with Article 227 of the Constitution of India is supervisory and not appellate. 10. In the facts and circumstances of the case, the petitioners have not succeeded to carve out a case for invocation of supervisory powers of the court. The petition, in my view, does not possess any merit and is, accordingly, dismissed at the preliminary stage of admission.