Gujarat High Court
Pravinbhai Babulal Nanavati vs Anilbhai Gangaram Jain on 13 June, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/8441/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8441 of 2018
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PRAVINBHAI BABULAL NANAVATI
Versus
ANILBHAI GANGARAM JAIN
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Appearance:
MS. NIYATI K JUTHANI(7014) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,3
MR BHARAT T RAO(697) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 13/06/2018
ORAL ORDER
1. The present petition under Article 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of an order dated 16.05.2018 passed below Exh.18 in change report No.121 of 2018 by the learned Charity Commissioner.
2. The premise on which the present petition is brought before the Court is that Respondent No.2 i.e.Bhagwan Mahavir Educatoin Trust had filed change report no.121 of 2018 for alteration of Survey No. / Block No. in the property in question situated at Vesu bearing original survey no.274 bearing area 79848 sq mtr. It was the case of the Respondent No.2 that the said block / survey number was changed in the Government record as a result of this, the same was required to be changed in the record before the Charity Commissioner and for that purpose only an application was filed by Respondent No.2. It has further been averred by the Page 1 of 12 C/SCA/8441/2018 ORDER petitioner that on earlier occasion, similar change report No.760 of 2017 was submitted but on account of some technical issue the same was withdrawn on 20.12.2012 and by alleging that the Respondent No.2 is having a tendency of playing mischief with the record against the said change report a written objection was submitted raising several issues by the petitioner. It was inter alia contended that there is a bar of res judicata as well as an alleged breach of order dated 05.08.2005 passed by the learned Collector and there is a violation of NA permission dated 17.11.2017. It was also submitted that the allotment of the land to the trust itself was the subject matter of controversy and it had reached even upto the High Court by way of Special Civil Application No.16764 of 2013 in which it was ordered to execute the court commission as well as panchnama to ascertain the truth and, therefore, in this set of circumstance the petitioner had resisted the stand of Respondent No.2. Ultimately, even despite the written arguments having been submitted with respect to the application for production of document before the Charity Commissioner, after hearing both the sides, the application submitted was rejected vide order dated 16.05.2018 below Exh.18 with the cost of Rs.1500/ and it is this order which has been made the subject matter of petition by invoking extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India.
3. Ms.Niyati K. Juthani, learned advocate appearing for the petitioner has contended that there is a gross error committed by the learned Assistant Charity Commissioner, Surat in rejecting the request. In fact, while passing an order no proper reasons have Page 2 of 12 C/SCA/8441/2018 ORDER been assigned to justify the ultimate conclusion. It has been contended that on the contrary since the Court Commissioner report is not clearly indicating difference of survey number, the change report is not possible to accepted or considered without production of map with respect to this survey number. It was also contended that despite the fact that written submissions were placed on record, none have been considered and additionally though the subject matter of allotment itself was in question and for that the writ petition was also submitted, there was no other valid reason as to why such production was being resisted by the Respondent No.2. On the contrary, by production of the map, every aspect will be cleared before the Charity Commissioner which would ultimately assist the learned Charity Commissioner to arrive at a conclusion and, therefore, there is a dire need of production of DLR map. It has been contended that this is a material piece of evidence and, therefore, to attain clarity on the real issue involved in the matter, map becomes inevitable. As a result of this, mere production was sought so as to assist the Charity Commissioner to arrive at a conclusion. Learned advocate for the petitioner has further contended that by mere production of this, no prejudice is likely to cause to Respondent No.2 and, therefore, having not considered the submissions raised before it, the order in question is laconic and reflects clear non application of mind on the real issue and is also not supported by valid and sufficient reason. No other submissions have been made.
4. To meet with the stand taken by learned advocate appearing for the petitioner, Mr.B.T.Rao, learned advocate representing the Page 3 of 12 C/SCA/8441/2018 ORDER respondent has submitted that the original survey no.149 of this very land was changed in the revenue record and that mere change is the number and the not the nature of land at all. Instead of survey no.149 by viture of an order passed by the Collector, Survey No.149/1/B was given and, therefore, that change is required on record before the PTR. As a result of this, on the contrary, such minor change which is taking place about number only would not in any way tantamount to be material change and for that purpose, it is not open for the petitioner to object. On the contrary, on account of change on the revenue side this effect was required to be made on PTR and that was mere change which was sought. While contending this, Mr.B.T.Rao, learned advocate has drawn the attention to the original change report i.e. 21 of 2018 reflecting on page:29 of the petition compilation and additionally has also drawn the attention to Annexure:B, dated 16.02.2018 which indicates the change of Survey Number of land, why such change necessary and the remarks column indicate all the relevant orders as well as resolution etc. and, therefore, by seeking such change neither nomenclature of the land is got altered nor the area is being changed nor the status of the land is getting changed and as such there is no merit in the objection raised by the petitioner. On the contrary, the map itself is not required at all since the entire change which has been sought is based upon Collector's order and on account of mere giving effect to the revenue change, such insistence of map is not at all justified on the part of the petitioner.
5. Mr.Rao, learned advocate has contended that why change was required that is also worth to be examined since over the very Page 4 of 12 C/SCA/8441/2018 ORDER same portion of land the financial assistance was sought in the form of loan and, therefore, when Collector has effected the change in the survey number of this very land, corresponding change is very much required in the PTR so as to avoid any unnecessary future complication and as such since all these aspects have been taken into consideration by the Charity Commissioner the petition is devoid of merits.
5.1 Mr.Rao, learned advocate has further contended that basically this petition is brought under Article 227 of the Constitution of India and as such looking to the settled position of law on exercise of such jurisdiction, no case is made out especially when the learned Assistant Charity Commissioner in due discharge of its statutory function has examined the grievance of the petitioner, has examined the merit of the application and only after hearing both the sides with valid and cogent reasons, the order is passed which order cannot form the subject matter of exercise of extra ordinary jurisdiction. Mr.Rao, learned advocate has submitted that looking to the parameters which are prescribed in such exercise of jurisdiction this is not a fit case which requires interference of this Court at the instance of the petitioner. In view of these submissions, Mr.Rao, learned advocate has requested the Court to dismiss the petition in limine. No other submissions have been made.
6. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it prima facie found that decision dated 16.05.2018 is delivered by granting Page 5 of 12 C/SCA/8441/2018 ORDER adequate opportunity to both the sides to meet with the case and also passed after assigning reasons with application of mind.
7. It is also reflecting from the record that every document which were relied upon for dealing with Exh.18 application have been dealt with and after examining the record, it has also been found that earlier writ petition, which was tried to be pressed into service, has nothing to do with the present controversy of Exh.18 application and, therefore, the contest on the part of the petitioner, on the contrary, is likely to derail the proceedings and would take much time for its ultimate disposal and, therefore, after careful consideration of record and after taking into consideration the relevant provisions of the CPC and after assigning proper reasons, the discretion is exercised and as such in absence of any perversity or illegality of any nature, it appears that the Assistant Charity Commissioner, while exercising jurisdiction, has taken into consideration scope of its authority and as such this exercise is not possible to be intercepted in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India. Hence, the petition found to be devoid of merits.
7.1 Additionally, even apparent look at the order would make it clear that the learned Assistant Charity Commissioner has exercised jurisdiction under Section 79(CC) of the Bombay Public Trusts Act. Now, this exercise of power is subject to a remedy of appeal as provided under Section 3 of the said section and, therefore, to straightway bring the petition before this Court under Article 227 of the Constitution of India is also nothing but an abuse. On the Page 6 of 12 C/SCA/8441/2018 ORDER contrary, on affirmation, it is being indicated that no efficacious remedy is available whereas a statutory provisions make it clear that against such exercise of jurisdiction, there is a clear remedy of statutory appeal provided and, therefore exhausting such appellate remedy, straightway to approach this Court would also not justify. However, be that as it may, the stand of the petitioner being devoid of merits the same is being discarded.
7.2 The Court is mindful of the circumstance as to under which set of circumstance extra ordinary jurisdiction is to be exercised and one of such well known decisions delivered by Hon'ble Apex Court in the case of Sameer Suresh Gupta TR PA Holder V/s. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 and the discussion and propositions of law laid down in paras:6 and 7, this Court is of the considered opinion that no case is made out by the petitioner. Paras:6 and 7 of the said decision, since relevant, are reproduced herein after.
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.Page 7 of 12 C/SCA/8441/2018 ORDER
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(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.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the 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.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) 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 (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without Page 8 of 12 C/SCA/8441/2018 ORDER involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Page 9 of 12 C/SCA/8441/2018 ORDER Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(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 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 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 Page 10 of 12 C/SCA/8441/2018 ORDER 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) The 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 L. Chandra Kumar v. Union of India and therefore abridgment 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.
Page 11 of 12 C/SCA/8441/2018 ORDER(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 the 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 counterproductive and will divest this extraordinary power of its strength and vitality."
8. As a result of this, petition deserves to be dismissed. Accordingly, the same is dismissed with no order as to costs.
(A.J. SHASTRI, J) MISHRA AMIT V. Page 12 of 12