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2019 DIGILAW 684 (JHR)

Lakhi Ram Soren Aged 61 Years v. State Of Jharkhand

2019-03-08

SUJIT NARAYAN PRASAD

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JUDGMENT 1. This writ petition is against the order dated 01.08.2018 passed in Civil Misc. Appeal No.15 of 2018 by the District Judge-XIV, Dhanbad by which the order dated 07.03.2018 passed in Original Suit No.583 of 2017 by the Civil Judge (Sr. Division)-II, Dhanbad, whereby and whereunder the prayer for grant of temporary injunction made in view of the provision under Order XXXIX Rule 1 and 2 read with Section 151 has been affirmed. 2. The brief facts of the case is that a Original Suit No. 583 of 2017 has been filed by the petitioners for confirmation of possession on declaration of title and injunction in respect of the land of Khata No.363/116, Plot no.851/745 comprising an area of 1.32 acres of Mouza Benagria within the district Dhanbad as mentioned in Schedule-A of the plaint. Accordingly to the petitioners they are having the possession over the said land since 18.05.1942 on payment of Salami rent and cess but without appreciating that aspect of the matter the authorities have taken decision for constructing 33/11 K.V. Electric Power Sub Station over the scheduled property from the month of October 2017 which led the petitioner to file the aforesaid original suit along with a petition under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure for restraining the respondent no.3 in making further construction over the property in question. 3. The original court vide order dated 07.03.2018 has rejected the aforesaid prayer against which appeal has been filed by invoking jurisdiction conferred under Order XLIII Rule 1(r) of the CPC being Civil Misc. Appeal No.15 of 2018 but the same has also been dismissed whereby and whereunder the order passed by the original court has been affirmed. 4. It is the case of the petitioners that the land in question is the only source of livelihood and therefore if the construction would be allowed to be made the petitioners will suffer irreparable loss and injury but that aspect of the matter has not been considered either by the original court or the appellate court and hence both the orders are not sustainable in the eye of law. 5. Mr. 5. Mr. Prabhat Kumar Sinha, S.C-IV representing the respondent no.1 has submitted that there is no infirmity in the impugned orders since the original court has passed the order rejecting the temporary injunction as because there was no prima facie case in favour of the petitioners since they are claiming title over the suit property on the basis of possession and no record showing entry of their names is there and hence the trial court has rightly rejected the petition filed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. 6. Having heard learned counsel for the parties and after appreciating the rival submissions and looking to the pleadings made in the writ petition as also in the impugned orders, it is evident that the petitioners are claiming title over possession to the suit property on or from 18.05.1942 and are also claiming to pay Salami rent and cess but without acquisition of the aforesaid land or without making any compensation the decision for construction of 33/11 K.V. Electric Power Sub Station has been taken which resulted into depriving the petitioners from the source of livelihood. 7. This Court thinks it proper to discuss the power of the Court in granting interim injunction/interim relief. Grant of an interim relief with regard to the nature and extent thereof depends upon the facts and circumstances for each case as no straight jacket formula can be laid down. 8. Grant of temporary injunction has three basic principles; balance of convenience and irreparable injury which are required to be considered in a proper perspective in the fact and circumstances of a broad case. 8. Grant of temporary injunction has three basic principles; balance of convenience and irreparable injury which are required to be considered in a proper perspective in the fact and circumstances of a broad case. In case of Colgate Palmolive (India) Ltd vs. Hindustan Lever Ltd. reported in AIR 1999 SC 3105 the Honble Apex Court has observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunction are as below:- (i) Extent of damages being an adequate remedy; (ii) Protect the plaintiffs interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor; (iii) The Court while dealing with the matter ought not to ignore the factum of strength of one partys case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case, the relief being kept flexible. (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise. In the case of Dalpat Kumar and Another vs. Prahlad Singh and Others reported in AIR 1993 SC 276 , the Honble Apex Court has explained the scope of interim order i.e. The phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by mans ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience. 9. The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience. 9. It is evident from the original order that the trial court has rejected the petitioner filed under Order XXXIX Rule 1 and 2 on the ground that the petitioner has failed to show any document pertaining title over the said land rather the property in question has been referred to be in the name of Anabad Bihar Government and from the record it has been transpired by the original court that the petitioners are shown to be encroacher and therefore claiming title over the said land has been rejected and he has got no prima facie case in his favour, it is not a case of causing any irreparable loss to be compensated in the terms of money and hence the injunction application has been rejected. 10. The appellate court after considering the reason assigned in the original order has also refused to interfere with the same. According to the considered view of this Court while passing an interim order a party is to show a prima facie case, balance of convenience and irreparable loss as has been held by the Honble Apex Court in the case of Colgate Palmolive (India) Ltd vs. Hindustan Lever Ltd. reported in AIR 1999 SC 3105 and Dalpat Kumar and Another vs. Prahlad Singh and Others reported in AIR 1993 SC 276 . 11. The original court prima facie is not satisfied pertaining to claiming of title over the land in question save and except the petitioners by way of adverse possession and hence has rejected the temporary injunction application. 12. In view of such reasoning and finding recorded by the trial court, affirmed by the appellate court, this is not such a case warranting any interference by this Court to exercise revisable power conferred under Article 227 of the Constitution of India which has got very limited scope. 13. This Court also intends to go through the scope of Article 227 of the Constitution of India. Dealing with the scope of Article 227 of the Constitution of India, Honble Apex Court in the case of Shalini Shyam Shetty Vrs. 13. This Court also intends to go through the scope of Article 227 of the Constitution of India. Dealing with the scope of Article 227 of the Constitution of India, Honble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Honble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193 , wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the courts discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Courts power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. 14. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. 15. Further, in the aforesaid judgment the Honble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. 16. The Honble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. Further, the judgment rendered by the Honble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. 16. The Honble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. Further, the judgment rendered by the Honble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. 17. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. 18. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. 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 its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, 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. 19. 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. 19. 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. 20. Having heard learned counsel for the parties and looking to the facts and circumstances of the case, according to the considered view of this case the impugned order are not required to be interfered with. Accordingly, the writ petition fails and is hereby dismissed.