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2015 DIGILAW 46 (JK)

Raj Kumar Dubey v. Anil Kumar Dubey

2015-02-24

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : Dhiraj Singh Thakur, J.:- 1. The present Letters Patent Appeal has been preferred against the judgment and order 7.3.2014 passed by the learned Single Judge in a petition under Section 104 of the Constitution of Jammu and Kashmir. With a view to understand the background in the light of which the present controversy has arisen, it is necessary to give a few facts in brief. 2. Appellant-plaintiff before the trial court filed a suit for permanent prohibitory injunction for restraining the defendants-respondents from causing interference in regard to land measuring 1 kanal comprised in khasra No. 570/205 situate at Katra. 3. The trial court temporarily restrained the defendants-respondents from interfering with the ownership and possession of the plaintiff-appellant herein over the suit land and subsequently after hearing both the sides vide order dated 13.8.2010 made absolute the interim injunction earlier granted. 4. The respondents challenged the aforementioned order in Civil 1st Miscellaneous Appeal No. 90 before the court of learned District Judge, Reasi, who after hearing both the sides allowed the appeal vide its order dated 22.12.2012 and by modifying the earlier order passed by the trial court, directed the parties to maintain status quo till final disposal of the suit. This order was challenged by the petitioner before a single bench of this court under Section 104 of the Constitution of Jammu and Kashmir, invoking the supervisory jurisdiction of the High Court. 5. Notwithstanding the fact that the petition was one filed under Section 104 of the Constitution of Jammu and Kashmir, yet it appears that the counsel for the petitioner-appellant herein urged before the writ court that the court could also interfere with the order impugned by exercising the extraordinary jurisdiction under Article 226 and issuing a writ of certiorari in that regard. 6. The writ court upon consideration of the issue did not deem it appropriate to interfere with the order passed by the court below in the light of the ratio of the judgment laid down by the Apex Court in Waryam Singh and another v. Amarnath and another, AIR 1954 SC 215 followed by Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 . 7. 7. The learned Single Judge, in fact, deemed it appropriate that the disputed property be preserved till the final disposal of the lis by not interfering with the order of status quo, which was passed by the court below. 8. On the issue of exercise of extraordinary jurisdiction under Article 226 by issuance of a writ of certiorari and quashing the order passed by the learned District Judge, the learned Single Judge was pleased to reject the prayer on the ground that even with the exercise of writ jurisdiction even under Article 226, the order did not deserve any interference. 9. It is this judgment and order that has been questioned by way of the present Letters Patent Appeal. 10. A Letters Patent Appeal against a judgment and order passed by the High Court in exercise of its supervisory jurisdiction under Section 104 of the Constitution of Jammu and Kashmir is barred in terms of Clause 12 of the Letters Patent, which is reproduced hereunder: "12. 10. A Letters Patent Appeal against a judgment and order passed by the High Court in exercise of its supervisory jurisdiction under Section 104 of the Constitution of Jammu and Kashmir is barred in terms of Clause 12 of the Letters Patent, which is reproduced hereunder: "12. And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the powers of superintendence) of one judge of the said High Court or one Judge of any Division Court and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of "one Judge of the said High Court or one Judge of any Division Court, consistently with the provisions of the Civil Procedure Code, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of the Judges of the said High Court or of such Division Court shall be to us, our Heirs or Successors and be heard by Our Board of Judicial Advisers for report to us." 11. However, Mr. Vikram Sharma, learned counsel appearing for the appellant, placed reliance upon a Division Bench judgment of this Court dated 6.6.2013 passed in LPAOW No. 52/2012 titled Sudershana Gupta & Ors. v. Girdhari Lal and urged that in the aforementioned case, the court had held that an LPA would be maintainable against an order passed in a petition filed under Section 104 by treating the same to have also been filed under Article 226 of the constitution. 12. From a perusal of judgment and order dated 6.6.2013 passed in LPAOW No. 52/2012 titled Sudershana Gupta & Ors. 12. From a perusal of judgment and order dated 6.6.2013 passed in LPAOW No. 52/2012 titled Sudershana Gupta & Ors. v. Girdhari Lal: 2013 (3) JKJ 547 [HC], it appears that the controversy in the suit had arisen between the private parties from out of a suit for ejectment. During the trial of the suit, the plaintiff died and the appellants before the court were brought on record as legal representatives. Finally, the suit was decreed in favour of the appellants/plaintiffs and against the respondents/defendants. An appeal was preferred against the said judgment and decree. 13. During the pendency of the said appeal, an application was filed, seeking permission to file written statement by the defendant-appellant before the appellate court, which application came to be subsequently dismissed. The defendant-appellant challenged the said order of the appellate court, which was allowed and the amendment of the written statement permitted. It was that order, which came to be challenged in letters patent appeal before the Division Bench, which came to be decided by virtue of judgment and order dated 6.6.2013. 14. In appeal, an objection was raised to the maintainability of the Letters Patent Appeal on the ground that since the learned Single Judge exercised supervisory powers conferred upon him under Section 104 of the Constitution of J & K, an LPA was not maintainable. 15. The court while deciding the appeal held that even when in the title of the writ petition, reference has been made to Section 104 of the Constitution of J & K yet since it contains all the ingredients for exercise of powers under Article 226 and since the learned Single Judge had not expressly stated that the court was exercising powers under Section 104, the petition could be treated to be one filed both under Article 226 and Section 104 of the Constitution of Jammu and Kashmir. 16. In addition to this, the Hon'ble Division Bench held that the High Court could issue a writ of certiorari under Article 226 for correcting gross errors and in that regard, placed reliance upon the Apex Court judgment in Surya Dev Rai v. Ram Chander Rai & Ors., AIR 2003 SC 3044 , paragraph 38(3) whereof is reproduced hereunder: "38(3). 16. In addition to this, the Hon'ble Division Bench held that the High Court could issue a writ of certiorari under Article 226 for correcting gross errors and in that regard, placed reliance upon the Apex Court judgment in Surya Dev Rai v. Ram Chander Rai & Ors., AIR 2003 SC 3044 , paragraph 38(3) whereof is reproduced hereunder: "38(3). Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction-by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice." 17. Heard learned counsel for the parties. 18. In Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329 , the Apex Court noticed that the view expressed by the Apex Court in Surya Dev Rai's case regarding exercise of powers under Article 226 for issuance of a writ of certiorari against an order passed by a civil court was doubted by another Division Bench judgment of the Apex court in Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616 and that a request to the Hon'ble Chief Justice of India for reference to a larger bench was pending. 19. In view of the pendency of the aforementioned question of law, we do not deem it appropriate to deal with or comment on the issue as to whether a writ of certiorari would be maintainable against an order of a civil court or not. 20. Notwithstanding the above position in Shalini Shyam Shetty's case, the apex court was clear that disputes relating to property, or between landlord and tenant etc are not to be entertained in the writ jurisdiction of the courts at all except in cases where there was an infraction of a statute or it could be shown that a private individual was acting in collusion with a statutory authority. 21. Reliance was placed upon (1969) 2 SCC 782 , Mohammed Hanif v. State of Assam wherein it was held that jurisdiction under Article 226 was extraordinary in nature and not meant for declaring the private rights of the parties. 21. Reliance was placed upon (1969) 2 SCC 782 , Mohammed Hanif v. State of Assam wherein it was held that jurisdiction under Article 226 was extraordinary in nature and not meant for declaring the private rights of the parties. A similar view had been expressed in State of Rajasthan v. Bhawani Singh, 1993 Supp (1) SCC 306. What was stated in Shalini Shyam Shetty's case in paragraph 51 can beneficially be reproduced hereunder: "51. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform." 22. Applying the facts of the present case on the touchstone of the legal principles as highlighted in the judgments above, it can be seen that the dispute in the present petition pertains to property between private persons and no relief is claimed either against the State or instrumentalities of the State within the meaning of Article 12. 23. In view of the clear mandate of the ratio of the judgment in Shalini Shyam Shetty's case (supra), no relief could have been granted to the petitioner in such a case under Article 226 of the Constitution where the dispute pertained to private parties in regard to property Even otherwise the petition filed by the petitioner was clearly one under Section 104 of the Constitution of Jammu and Kashmir and not one under Article 226 and the learned Single Judge having exercised the jurisdiction under Section 104 and having found the order impugned in order was not legally bound to exercise the powers yet again under Article 226 to examine the legality or propriety of the same order. 24. 24. In fact, while exercising powers under Article 226, the High Court while issuing a writ can quash or annual an order whereas, in exercise of supervisory jurisdiction, it can not only quash an order but also substitute it with an order, which the court below ought to have passed Reference in this regard can be made to para 47 in the case of Shalini Shyam Shetty's case. 25. Having considered the entire matter, we are of the view that since the appellant had filed a petition under Section 104 of the Constitution of Jammu and Kashmir, the same cannot be treated as a petition under Article 226 for purposes of maintaining the present Letters Patent Appeal. Even if the same is treated as a petition under Article 226 of the Constitution of India, the factual disputes cannot be agitated under Article 226 of the Constitution of India by High Court. The Supreme Court in the decision reported in 2015 (2) SCC 145 Meena Chaudhary v. Commissioner of Delhi Police & Ors. upheld the decision of the High Court in not entertaining writ proceedings on disputed facts. The Supreme Court held as under: "As rightly held by the learned Single Judge and as confirmed by the Division Bench, such seriously disputed questions of fact could not have been examined in the writ proceedings." 26. The instant Letters Patent Appeal is, therefore, held to be not maintainable and is accordingly dismissed along with connected CMA.