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2020 DIGILAW 484 (JK)

Maheen Azhar Kakroo v. Sadaf Niyaz Shah

2020-09-17

TASHI RABSTAN

body2020
JUDGMENT Petitioner, on the basis of case set up and grounds taken in writ petition on hand, seeks that this Court, in exercise of supervisory powers under Article 227 of the Constitution of India, may grant Writ of Certiorari to quash the Orders dated 4th September 2020 and 8th September 2020, passed by the court of Sub Judge (Chief Judicial Magistrate) Srinagar (for brevity “Trial Court”). 2. When the matter came up for threshold consideration on 14th September 2020, it was brought to the notice of this Court that an application for grant of leave to file Appeal against the order dated 4th September 2020 had been filed before the court of First Additional District Judge, Srinagar, in which learned counsel appearing for applicant-appellant (present petitioner) had concluded his arguments. However, Mr. Azhar ul Amin, (learned counsel for respondent no.2 herein) had not advanced his arguments in the said application. He undertook to conclude the arguments before the First Additional District Judge, Srinagar, by that day itself. In view of submission made by Mr. Azhar ul Amin, advancing of arguments in the case was deferred to 16th September 2020. 3. I have heard learned counsel for parties at length and considered the matter. 4. Mr Bashir, learned senior counsel, appearing for petitioner, while averring factual background of the case, has strenuously stated that in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, impugned orders need to be set-aside inasmuch as impugned orders have been passed by Trial Court in sheer abuse of process of court and law. 5. Taking into account the case set up and submissions made by learned counsel for parties, it may not be incongruous to say that judicial pronouncements concerning object and scope of power of the High Courts under Article 227 of the Constitution of India leaves little scope to interfere with the orders of subordinate courts as a matter of routine. This power cannot be taken as right of another appeal to aggrieved party nor this power can be invoked to point out an error of law or fact in the order or decision of a subordinate court. This power cannot be used to make out that the decision of subordinate court could have been or must have been other than what it was. This power cannot be used to make out that the decision of subordinate court could have been or must have been other than what it was. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping subordinate courts within the bounds of their jurisdiction. 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 by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the requirements that the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and that a grave injustice or gross failure of justice has occasioned thereby, are satisfied. 6. It is trite law that power of superintendence, so conferred on the High Court, is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in High Court is paving path of justice and removing any obstacles therein. Power under Article 227 is wider than the one conferred on the High Court by Article 226 of the Constitution of India, in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else parameters invoking exercise of power are almost similar. 7. The power under Article 227 is one of judicial superintendence that cannot be used to upset 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. Else parameters invoking exercise of power are almost similar. 7. The power under Article 227 is one of judicial superintendence that cannot be used to upset 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. Way back in 1954, a Constitution Bench of the Supreme Court, in Waryam Singh v. Amarnath, AIR 1954 SC 215 , has pointed out that the power of superintendence conferred by Article 227 should 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. The Supreme Court in Dr. R. Venkatchalam and others etc. v. Dy. Transport Commissioner and others etc., AIR 1977 SC 842 , has said that the Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of the ideological structure or the scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under disguise of interpretation. While interpreting a provision the Court only interprets law and cannot legislate it. If a provision of law is misused and subjected to abuse of process of law, it is for legislature to amend, modify or repeal it, if deemed necessary. 8. Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. 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 administration in larger public interest whereas Article 226 is meant for protection of individual grievances. The power is discretionary and has to be exercised very sparingly on equitable principle. 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 administration in larger public interest whereas Article 226 is meant for protection of individual grievances. Therefore, “the power under Article 227 may be unfettered but”, as held by the Supreme Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 , “its exercise is subject to high degree of judicial discipline.” The object of superintendence under Article 227, both administrative and judicial, is to maintain the efficiency, smooth and orderly functioning of the entire machinery of the justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of the 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 the High Court. The Supreme Court in Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar Hydrabad and another v. Ajit Prasad Tarway Manager (Purchase & Store) Hindustan Aeronautics Ltd. Balanagar Hydrabad, AIR 1973 SC 76 ; and Kokkanda B. Poondacha & Ors. v. K. D. Ganapathi & another, AIR 2011 SC 1353 , after recapitulating what has been observed in Shalini Shyam Shetty’s case (supra) qua Article 227, held that “learned Single Judge of the High Court totally ignored the principles and parameters laid down” by the Supreme Court “for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason.” Jurisdiction under Article 227 must be sparingly exercised and may be exercised to correct the errors of the jurisdiction and the like, but not to upset the findings of the fact, which falls in the domain of an appellate court only. Same is true qua the present case. Same is true qua the present case. The petition on hand has been filed notwithstanding the fact that petitioner has availed of appropriate remedy by way of filing an appeal before the learned First Additional District Judge, Srinagar, against impugned order dated 4th September 2020. In such circumstances petition on hand is liable to be dismissed. My above views have a support from the dicta given by the Supreme Court in Nibaran v. Mahendra AIR 1963 SC 1895 ; D.N. Banerjee v. Mukherjee AIR 1953; SC 58; Nizzar Rawther v. Varghese Mathew AIR 1992 Ker. 312 ; and Khimji Vidhu v. Premier High School AIR 2000 SC 3495 . 9. The power under Article 227 is broader than that conferred on the High Court by Article 226. For example, through its power to issue certiorari under Article 226, a High Court can annul the decision of a tribunal while under Article 227 it can do that and do something— it can issue further directions in the matter. But under Article 227, the High Court does not sit as a Court of appeal inasmuch as it is also not permissible to a High Court on a petition filed under Article 227 to review or reweigh the evidence upon which the inferior Court or tribunal purports to have passed the order or to correct errors of law in the decision. The power of superintendent conferred by Article 227 is supervisory and not appellate jurisdiction. 10. The settled proposition of law laid down by the Supreme Court in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad (supra) Mohd. Yunus (supra) and Kokkanda B. Poondacha (supra) is that if any order is passed by subordinate court under its vested discretionary jurisdiction, then the same could not be interfered with by the High Court either under revisional jurisdiction under Section 115 of CPC or under supervisory jurisdiction vested under Article 227 of the Constitution of India. If an order is amenable to challenge before appellate authority, writ petition under Article 227 of the Constitution is not a proper remedy without first availing an alternative remedy of filing an appeal and getting the same decided by the appellate court on its merit in accordance with law. In other words, the High Court should decline to entertain a writ petition under Article 227 once alternative remedy of appeal is available. In other words, the High Court should decline to entertain a writ petition under Article 227 once alternative remedy of appeal is available. The Supreme Court, while saying so, in Hameed Kunju v. Nazim (2017) 8 SCC 611 , has held that there was no reason muchless justifiable one for the High Court to have entertained a writ petition under Article 227 of the Constitution against an order, passed by Trial Court. In the present case, it is an admitted position, as is very much discernible from paragraph 23 of petition on hand and has also been disclosed by learned counsels for parties during the course of advancing arguments, that petitioner has already availed of an alternative remedy by moving an appeal against impugned order dated 4th September 2020. In that view of matter, writ petition on hand is not maintainable and is liable to be dismissed. 11. In the backdrop of foregoing discussion and settled position of law discussed herein above, the petition on hand sans any merit and as a corollary thereof, the same is dismissed in limine with connected CM(s). 12. Copy of this judgement be sent down.