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2014 DIGILAW 2288 (ALL)

MEHTAB JAHAN v. STATE OF U. P.

2014-08-01

SUDHIR AGARWAL

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JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri A.C.Tiwari, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. Petitioner’s fair price shop agreement has been cancelled by Deputy Collector, Bijnor vide order dated 18.8.2008 and thereagainst his appeal has also been dismissed by Commissioner (Food), Moradabad Division, Moradabad vide order dated 1.8.2013. 3. There are two obstruction before petitioner. The first obstruction before petitioner is extra ordinary delay of more than eight months, for which I do not find any satisfactory explanation. 4. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council v. Pan Singh and others, JT 2007(4) SC 253, the Apex Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/s. Lipton India Ltd. and others v. Union of India and others, JT 1994(6) SC 71 and M.R. Gupta v. Union of India and others, 1995(5) SCC 628 , it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty v. State of Mysore, AIR 1961 SC 993 , it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa v. Pyari Mohan Samantaray and others, AIR 1976 SC 2617 and State of Orissa and others v. Arun Kumar Patnaik and others, 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass v. Union of India and others, AIR 2007 SC 1330 : 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey v. State of U.P. and others, 2008(4) ESC 2423 . This has been followed in Virender Chaudhary v. Bharat Petroleum Corporation and others, 2009(1) SCC 297 . The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey v. State of U.P. and others, 2008(4) ESC 2423 . This has been followed in Virender Chaudhary v. Bharat Petroleum Corporation and others, 2009(1) SCC 297 . In S.S. Balu and another v. State of Kerala and others, 2009(2) SCC 479 , the Apex Court held that it is well-settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus v. State of Maharashtra and others, 2009(3) SCC 281 , the Court referred to the observations of Sir Barnesdelay Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurde etc., (1874) 5 PC 239 and held as under: “Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. . . . . . . Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.” 5. Besides above, even on merits, learned counsel for the petitioner could not point out any error on the face of record warranting interference. Several irregularities were discussed by Deputy Collector, which was found proved. Besides other, admittedly there was shortage of kerosene oil in the stock, for which petitioner could furnish no explanation, which shows that there was serious irregularity committed by petitioner. Several irregularities were discussed by Deputy Collector, which was found proved. Besides other, admittedly there was shortage of kerosene oil in the stock, for which petitioner could furnish no explanation, which shows that there was serious irregularity committed by petitioner. This Court does not sit in appeal over the view taken by authorities below and interference is called for in very limited circumstances. 6. In supervisory jurisdiction of this Court over subordinate Courts/authorities, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the Court/authority below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. 7. This power involves a duty on the High Court to keep the inferior Courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. 8. In D.N. Banerji v. P.R. Mukherjee, 1953 SC 58, the Court said: “Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere.” 9. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another v. Amarnath and another, AIR 1954 SC 215 and made following observations at p. 571: “This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal. 193 , to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors”. 10. In Mohd. Yunus v. Mohd. 193 , to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors”. 10. In Mohd. Yunus v. Mohd. Mustaqim and others, AIR 1984 SC 38 , the Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice. 11. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag v. Mahendra Nath Ghughu, AIR 1963 SC 1895 ; Rukmanand Bairoliya v. The State of Bihar and others, AIR 1971 SC 746 ; Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha and others, AIR 1980 SC 1896 ; Laxmikant R. Bhojwani v. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576 ; Reliance Industries Ltd. v. Pravinbhai Jasbhai Patel and others, (1997) 7 SCC 300 ; M/s. Pepsi Food Ltd. and another v. Sub-Judicial Magistrate and others, (1998) 5 SCC 749 ; and Virendra Kashinath Ravat and others v. Vinayak N. Joshi and others, (1999) 1 SCC 47 ). 12. It is well-settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego v. Lalchand Soni and others, (1998) 3 SCC 341 ; Chandra Bhushan v. Beni Prasad and others, (1999) 1 SCC 70 ; Savitrabai Bhausaheb Kevate and others v. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. v. Dyes & Chemical Workers’ Union and another, (1999) 2 SCC 143 ). 13. (See: Rena Drego v. Lalchand Soni and others, (1998) 3 SCC 341 ; Chandra Bhushan v. Beni Prasad and others, (1999) 1 SCC 70 ; Savitrabai Bhausaheb Kevate and others v. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. v. Dyes & Chemical Workers’ Union and another, (1999) 2 SCC 143 ). 13. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India and others v. Himmat Singh Chahar, (1999) 4 SCC 521 ). 14. In Ajaib Singh v. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82 , the Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution. 15. In Mohan Amba Prasad Agnihotri v. Bhaskar Balwant Aheer, AIR 2000 SC 931 , the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse. 16. In Indian Overseas Bank v. Indian Overseas Bank Staff Canteen Workers’ Union, (2000) 4 SCC 245 , the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court cannot interfere. 17. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court cannot interfere. 17. In Union of India v. Rajendra Prabhu, (2001) 4 SCC 472 , the Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. 18. Similar view has been reiterated in State of Maharashtra v. Milind and others, (2001) 1 SCC 4 ; Extrella Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 ; and Omeph Mathai and others v. M. Abdul Khader, (2002) 1 SCC 319 . 19. In Surya Dev Rai v. Ram Chander Rai and others, (2003) 6 SCC 675 , it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby. 20. In Jasbir Singh v. State of Punjab, (2006) 8 SCC 294 , the Court said: “...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority. The power of superintendence exercised over the subordinate Courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The power of superintendence exercised over the subordinate Courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate Courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior Courts in the discharge of their judicial functions.” 21. In Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 , the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others v. K.D. Ganapathi and another, AIR 2011 SC 1353 and Bandaru Satyanarayana v. Imandi Anasuya, (2011) 12 SCC 650. 22. In Abdul Razak (D) through Lrs. and others v. Mangesh Rajaram Wagle and others, (2010) 2 SCC 432 , Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction. 23. In T.G.N. Kumar v. State of Kerala and others, (2011) 2 SCC 772 , the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority. 24. In Commandant, 22nd Battalion, CRPF and others v. Surinder Kumar, (2011) 10 SCC 244 , Apex Court referring to its earlier decision in Union of India v. R.K. Sharma, (2001) 9 SCC 592 , observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227. 25. In view thereof, I find no justification warranting interference with the orders impugned in this writ petition. 26. Dismissed.