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2018 DIGILAW 1033 (JK)

Sheikh Zaffar Ahmed v. Sukhdev Singh

2018-12-28

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : 1. This is a petition under Article 227 of the Constitution of India read with Section 104 of the Constitution of Jammu and Kashmir for quashing the order dated 19.12.2018 passed by the Court of learned 2nd Additional District Judge, Jammu. Briefly stated, the material facts are as under: 2. A Civil Suit for permanent prohibitory injunction came to be filed by plaintiff-respondent herein against the defendants/petitioners herein seeking prohibition from causing any interference with the physical possession over plot No. 473 situate at Sector D, Sainik Colony Jammu and the construction being raised upon the same. The plot in question was stated to have been allotted by the Sainik Housing Co-operative Society in favour of the father of the plaintiff in his capacity as an ex-serviceman in the year 1978. The Perpetual lease deed also appears to have been executed by the Society in favour of the plaintiff’s father and registered in the Court of learned Munsiff (Sub Registrar), Jammu. It was stated that since the father of the plaintiff was an ex serviceman and had limited resources, no construction could be raised upon the plot in question and finally a Release Deed was executed in the year 2010 in favour of the plaintiff in regard to the plot in question. 3. The case set up was that the plaintiff/respondent herein after completing various formalities obtained permission from the Jammu Municipal Corporation and got the plan approved for raising a residential building. It was stated that the loan has also been obtained from the State Bank of India and the property mortgaged to secure the same. It was alleged that the defendants-petitioners herein are trying to interfere in the construction being raised. 4. The Court of learned Special Mobile Magistrate, Jammu upon finding a prima facie case, issued notice and temporarily restrained the defendants-petitioners herein from causing interference in the peaceful possession and construction being raised by the plaintiff-respondent herein over Plot No. 473. This order was subsequently confirmed vide order dated 14.11.2018. A Civil Miscellaneous Appeal came to be filed against the order of the learned Special Mobile Magistrate, Jammu before the learned 2nd Additional District Judge, Jammu, who modified the same by virtue of order dated 19.12.2018. This order was subsequently confirmed vide order dated 14.11.2018. A Civil Miscellaneous Appeal came to be filed against the order of the learned Special Mobile Magistrate, Jammu before the learned 2nd Additional District Judge, Jammu, who modified the same by virtue of order dated 19.12.2018. The modified order passed by the appellate Court reads as under: “That respondent shall be entitled to raise construction over the plot No. 473-D subject to furnishing undertaking to the effect that in case he fails to succeed in the suit, he shall demolish the construction at his own risk and responsibility or compensate the appellants as per market value of suit property and he shall not transfer, dispose of or create 3rd paty interest over the suit property i.e. Plot No. 473-D till the disposal of the main suit.” 5. With the modification of the aforesaid order, the appeal was partly allowed which is challenged in the present petition. 6. Learned counsel for the petitioners vehemently urged that the view expressed by the appellate Court and in partially allowing the appeal was erroneous in law. It was urged that the appellate Court had failed to appreciate that plot No. 473-D fell in Khasra No. 402 which admittedly belonged to the petitioners having been purchased from their erstwhile owner, one Vinod Bhalla. It is stated that the land measuring 22 kanals was purchased by the petitioners herein from the vender which was recorded duly in the sale deed registered with the registration authorities and mutations duly attested thereafter. 7. With a view to emphasize the point that the ownership of the petitioners over the plot in question was unquestionable, reliance was placed by the learned counsel for the petitioners to an order dated 26.04.1997 passed in a Civil Suit titled Sainik Co-operative House Building Society v. Vinod Bhalla. 8. A perusal of the order (supra) would show that the same was issued in an application for grant of temporary injunction. In the aforementioned order, learned counsel for the plaintiff appearing for the Society had made a statement before the Court that the defendant, namely, Vinod Bhalla, the predecessor-in-interest of the plot measuring 22 kanals falling in Khasra No. 402 would raise construction in his own land i.e. Khasra No. 402. In the aforementioned order, learned counsel for the plaintiff appearing for the Society had made a statement before the Court that the defendant, namely, Vinod Bhalla, the predecessor-in-interest of the plot measuring 22 kanals falling in Khasra No. 402 would raise construction in his own land i.e. Khasra No. 402. This order was relied upon by the learned counsel for the petitioners to emphasize that even the Co-operative Society was clear that Vinod Bhalla was the owner with all the rights of construction over his land which fell in Khasra No. 402. 9. Learned counsel for the petitioners also sought to emphasize that the appellate Court as also the trial court had fallen in error in not considering the report of the Revenue Agencies which had reported that the plaintiff-respondent herein had started construction over his proprietary land falling under Khasra No. 402. Report of the Tehsildar is stated to have been based upon the report obtained by him from the Patwari concerned. 10. Heard learned counsel for the parties. 11. On a perusal of the order impugned, it is clear that all the submissions which are made today to question the order passed by the appellate Court were also advanced before the appellate Court at the time of hearing. Each and every argument appears to have been properly dealt with and addressed. 12. On the question of concession given by the learned counsel for the Co-operative Society in the earlier round of litigation between Vinod Bhall and the Society, the appellate Court held that while concession may have been given, yet the land falling under khasra No. 402 was never a subject matter of specific dispute between the parties in those proceedings. From a further perusal of the order impugned, it transpires that plot No. 473-D was bounded by plots No. 468 and 474. This fact is recorded to have been not contradicted by the appellant before the appellate Court. In those circumstances, the Court noticed whether plot No. 473-D actually fell in Khasra No. 402 or not, was a matter which was required to be determined during the course of trial and keeping in view the fact that the plaintiff had already raised construction over the plot in question and only a slab had to be laid on the same, the appellate Court proceeded to pass the order as has been recorded in the preceding paragraphs. 13. 13. The scope of interference by the Courts exercising supervisory jurisdiction under Article 227 of constitution of India read with 104 of the Constitution of J&K is no longer res integra. This Court can interfere only in case it finds that the court below has failed to exercise jurisdiction vested in it or there is a perversity in the order passed by the court below or that the same is violative of principles of natural justice. In Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 , the Apex Court proceeded to crystallize the issues which are reproduced hereunder: Paragraph 49 is as under: “49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal or subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, “within the bounds of their authority”. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article 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. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.” 14. Testing the facts of the present case on the touchstone of the ratio of the judgment (supra), I do not notice any illegality or perversity in a case where it can be said that court below has failed to exercise jurisdiction vested in it. In fact the order passed by the appellate Court is a well reasoned order and to my opinion, the same needs no interference. This Court cannot persuade itself to take a view different than the one taken by the appellate court in passing the order impugned. 15. The petition is found to be without any merit and is, accordingly, dismissed along with connected IA. 16. This Court cannot persuade itself to take a view different than the one taken by the appellate court in passing the order impugned. 15. The petition is found to be without any merit and is, accordingly, dismissed along with connected IA. 16. Notwithstanding the above, learned counsel for the petitioners has prayed that an application under Order XXVI rule 9 of CPC shall be filed by the petitioners before the appropriate Court which may be considered on its own merits and decided at the earliest. The trial court shall, accordingly, proceed to decide the application as and when filed strictly in accordance with the rules and law on the subject. Trial court is expected to dispose of the matter expeditiously.