Himachal Pradesh High Court
______________________________________________________________________ vs Prakashwati And Others on 19 September, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.: 196 of 2019
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Date of Decision: 19.09.2019
______________________________________________________________________
Jagmohan ....Petitioner.
Vs.
Prakashwati and others .....Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioner:
r Mr. Vinod Chauhan, Advocate.
For the respondents: M/s Deepak Kaushal & Lovneesh
Thakur, Advocates, for respondents No. 1
to 3.
No notice has been issued to respondents
No. 4 to 9.
Ajay Mohan Goel, Judge (Oral):
By way of this petition, the petitioner has challenged order, dated 02.12.2017, passed by Collector, SubDivision, Paonta Sahib, District Sirmaur, H.P., vide which, said Authority on an application for grant of stay filed before it by the contesting respondents herein, passed orders staying the operation of the order challenged before it and also directed the parties to maintain status quo in the matter, without first deciding an application pending before it in the said appeal filed by the appellants therein, i.e., the contesting respondents herein for 1Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 26/09/2019 20:24:48 :::HCHP 2condonation of delay in filing the appeal. Petitioner has also challenged order, dated 29.09.2018, vide which, application filed by him before the .
authority for vacation of ex parte ad interim stay by the petitioner was dismissed.
2. Brief facts necessary for the adjudication of the present petition are that final orders in partition proceedings between the parties herein were passed by the Assistant Collector, 1 st Grade, Paonta Sahib in
3.
r to Partition Case Nos. 104/2005, 105/2005, 106/2005 and 107/2005, titled as Ram Pratap Vs. Jagmohan etc. on 27.11.2009 and 09.12.2009.
An appeal was filed challenging the orders so passed in the partition proceedings by the contesting respondents herein before the Court of learned SubDivisional Collector, Paonta Sahib (Annexure P/2) somewhere in the month of November/December, 2017.
4. Alongwith appeal, an application was also filed under Section 5 of the Limitation Act for condonation of delay in filing the appeal.
5. Without condoning the delay in filing the appeal, the authority below passed an ex parte order, dated 02.12.2017 on the application filed by the appellants therein for staying the operation of the partition orders, dated 27.11.2009 and 09.12.2009.
6. Impugned order is appended with the petition as Annexure P/3. Vide said order, the application for interim relief was disposed of by the Authority below in following terms:
::: Downloaded on - 26/09/2019 20:24:48 :::HCHP 3"An application for grant of stay against the operation of the order dated 27.11.2009 and 09.12.2009, passed by the Ld. A.C. 1st Grade, .
Paonta Sahib in Partition case No. 104/2005, 105/2005, 106/2005 and 107/2005 titled Ram Pratap Vs. Jagmohan etc. has been filed by the applicants through their Ld. Counsel Sh. A.R. Sharma, Advocate. The contents of the application are perused carefully and statement of the Ld. Counsel is also heard at length. On the basis of the facts as stated and contained in the present application, prima facie, it appears to me that it is necessary to stay the operation of the order passed by Ld. A.C. 1st Grade on 27.11.2009 and 09.12.2009 in the interest of justice. Therefore, the order as stated above is stayed till the hearing of the appeal and Ld. A.C. is directed to maintain status quo in the matter. A copy of this order be sent to the Assistant Collector 1 st Grade, Paonta Sahib for information and compliance."
7. Feeling aggrieved, an application was filed by the petitioner before the same authority for vacation of the ex parte ad interim stay. However, the same was dismissed by the Authority vide order, dated 29.09.2018 (Annexure P7).
8. Feeling aggrieved, the petitioner has filed the present petition.
::: Downloaded on - 26/09/2019 20:24:48 :::HCHP 49. Learned counsel for the petitioner has argued that order, dated 02.12.2017 is perverse and void abinitio and therefore liable .
to be quashed and set aside for the simple reason that while passing the impugned order, the authority concerned has erred in not appreciating that till an application filed alongwith the appeal under Section 5 of the Limitation Act for condonation of delay in filing the appeal was not decided by the learned Court in favour of the applicants/appellants, there was no appeal in the eyes of law pending before the Authority concerned and in the absence of there being any subsisting appeal before the Authority, no order whatsoever on an application which was filed alongwith the appeal for grant of interim order could have been passed by the Authority concerned. He has also argued that order, dated 29.09.2018 is also not sustainable in the eyes of law, because the reasonings given therein by the Authority concerned for not setting aside the ex parte order are not sustainable in law. On these points, learned counsel has argued that the impugned orders be set aside.
10. On the other hand, learned counsel for the contesting respondents has argued that the present petition is not maintainable, as the petitioner has alternative remedy under the Land Revenue Act by preferring an appeal or revision before the authority superior to Sub Divisional Collector, Paonta Sahib and as the petitioner has directly approached this Court without availing the alternative remedy, therefore, this petition is liable to be dismissed. In support of his submissions, ::: Downloaded on - 26/09/2019 20:24:48 :::HCHP 5 learned counsel for the contesting respondents has relied upon the following judgments:
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1. A. Venkatasubbiah Naidu Vs. S. Chellappan and others, (2000) 7 Supreme Court Cases 695.
2. Hameed Kunju Vs. Nazim (2017) 8 Supreme Court Cases
611.
On merit, Mr. Kaushal submits that though it is a matter of record that there is no order yet passed on the application filed under Section 5 of the Limitation Act, however, it cannot be said that the Authority could not have passed interim orders without first deciding the application under Section 5 of the Limitation Act.
11. In rebuttal to the objection taken by the learned counsel for the respondents with regard to maintainability of the petition, learned counsel for the petitioner has submitted that there is no bar per se that a party cannot approach the High Court in exercise of the power of superintendence which the High Court enjoys over Courts and quasi judicial authorities subordinate to it and it depends upon the facts of each case as to whether the petitioner can invoke such jurisdiction of the Court or not.
12. I have heard learned counsel for the parties and have also gone through the orders impugned as well as other documents appended with the petition.
::: Downloaded on - 26/09/2019 20:24:48 :::HCHP 613. It is not in dispute that the orders of partition, which the contesting respondents have assailed before the Collector, Sub .
Division Paonta Sahib, were passed by the the Assistant Collector, 1 st Grade, Paonta Sahib as far back as on 27.11.2009 and 09.12.2009. As admittedly, the appeal was not filed within the period of limitation, as is envisaged under the Land Revenue Act, an application was filed alongwith the appeal by the appellants therein for condonation of delay in filing the same. Alongwith the appeal, an application was also filed praying for interim relief. It is also not in dispute that the application so filed for condonation of delay in filing the appeal is still pending adjudication. In other words, the authority concerned has not yet returned a finding as to whether the delay in filing the appeal is to be condoned or not. As the said application is pending adjudication before the learned Court below, this Court refrains from making any observation as far as grounds of appeal are concerned or the reasons mentioned in the application so filed under Section 5 of the Limitation Act are concerned.
14. Coming to the controversy involved in the present petition, undisputedly, learned Collector, SubDivision, Paonta Sahib passed orders on stay application filed by the appellants/applicants before it on 02.12.2017, without realizing that till the application filed before it by the party for condonation of delay was allowed in favour of the appellants/applicants, technically there was no appeal in the eyes of ::: Downloaded on - 26/09/2019 20:24:48 :::HCHP 7 law before the said authority and when there was no appeal pending before the said authority, no order whatsoever on any application praying .
for interim relief which was filed alongwith the appeal, could have been passed, as technically said application was also legally not existing. On this short point, the impugned order, dated 02.12.2017, is liable to be set aside, as order per se is perverse, because the authority has exercised jurisdiction vested in it with material irregularity by granting interim relief in an application accompanying a time barred appeal, delay in filing which appeal had yet not been condoned by the authority concerned.
15. As far as the judgments relied upon by learned counsel for the respondents qua maintainability of the present petition are concerned, while respectfully agreeing with the law laid down by the Hon'ble Supreme Court in the said judgments, in my considered view, in the peculiar facts of this case, it cannot be said that the petitioner has no right to invoke the power of superintendence of this Court so conferred under Article 227 of the Constitution of India.
16. Ordinarily, when there is an alternative remedy available to a party, this Court does not entertains a petition filed under Article 227 of the Constitution of India. However, if the impugned order is ex facie illegal and perverse, then this Court cannot be a mute spectator and in such like situation, even if there is an alternative remedy available to the party, yet, if it approaches this Court under Article 227 of the ::: Downloaded on - 26/09/2019 20:24:48 :::HCHP 8 Constitution of India, then this Court cannot refuse adjudication on the petition because the power of superintendence also casts a duty upon .
this Court to rectify perversity without waiting for the party to avail alternative remedy.
17. In Umaji Keshao Meshram Vs. Radhikabai, 1986 Supp. SCC 401, Hon'ble Supreme Court has held that power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the Court or Tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
18. A three Judge Bench of the Hon'ble Supreme Court in Radhey Shyam and another Vs. Chhabi Nath and others, (2015) 5 Supreme Court Cases 423 has held that control of working of the subordinate Courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227 of the Constitution of India. While appellate or revisional jurisdiction is regulated by the Statutes, power of superintendence under Article 227 is constitutional.
::: Downloaded on - 26/09/2019 20:24:48 :::HCHP 919. Coming back to the facts of this case, as per se there is perversity in the impugned order Annexure P3, as has been discussed by .
me in detail above and further as while passing the said order, the quasi judicial authority has exercised jurisdiction vested in it with material irregularity, it is duty enshrined upon this Court under Article 227 of the Constitution of India that in exercise of its power of superintendence, such bad orders are required to be rectified. As Annexure P7 is an outcome of order, dated 02.12.2017, which as I have already stated above, is a perverse order and an order void abinitio, the same is also not sustainable in law.
20. Accordingly, this petition is allowed by setting aside order, dated 02.12.2017 (Annexure P/3) as also order dated 29.09.2018 (Annexure P/7), however, with a direction to the authority below that after adjudication on the application so filed by the contesting respondents before it under Section 5 of the Limitation Act, in case the authority holds that there are cogent reasons for condoning the delay, it may pass appropriate orders on the application filed alongwith the appeal for interim relief. However, it is clarified that this Court has not made any observation on the merit of the appeal as also the applications filed by the contesting respondents herein either for condonation of delay in filing the appeal or for grant of interim relief and said applications as also appeal shall be dealt with by the authority concerned without influenced by any observation made by this Court in this judgment.
::: Downloaded on - 26/09/2019 20:24:48 :::HCHP 10With the aforessaid directions, the petition stands disposed of. Miscellaneous applications, if any, also stand disposed of.
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(Ajay Mohan Goel)
Judge
September 19, 2019
(bhupender)
r to
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