Anvarbhai Abdulbhai Vora vs State Of Gujarat on 26 April, 2018

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Gujarat High Court

Anvarbhai Abdulbhai Vora vs State Of Gujarat on 26 April, 2018

Bench: A.J. Shastri

         C/SCA/6710/2018                                         ORDER



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 6710 of 2018
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                 ANVARBHAI ABDULBHAI VORA
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR P B KHAMBHOLJA(5730) for the PETITIONER(s) No. 1,2
for the RESPONDENT(s) No. 2,3,4,5,6,7
MR UTKARSH SHARMA AGP for the RESPONDENT(s) No. 1
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 CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

                              Date : 26/04/2018

                                ORAL ORDER

1. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:

"A) Your Lordships may be pleased to allow the present Special Civil Application.

B) Your Lordships may be pleased to pass an order of issuance of appropriate writ, order, direction upon the concerned respondent authorities to decide the representations and to issue direction upon the respondent authorities to demolish the illegal construction and remove the encroachment carried out by the respondent no.4 to 6 on the land of Narayannagar Society known as common plot land of the society which is situated at Revenue Survey No.4/2 block no.13 of Village Chhapra Bhatha, Amroli, Surat in the peculiar facts and circumstances of the case.

C) Any other appropriate relief may be granted as deem fit by this Hon'ble Court in the interest of justice."

Page 1 of 12 C/SCA/6710/2018 ORDER

2. The case of the petitioners are that the petitioners are residing at Narayannagar Society situated at Block No.13 of Revenue Survey No.4/2 at Chhapra Bhatha, Amroli, Surat. There are as many as 52 members residing and all 52 members are residing in tenements / rowhouse and each of the house is admeasuring 55.74 sq mtr containing the construction of 42.45 sq mtr area on the ground floor. It is the case of the petitioners that after getting the land converted into Nonagricultural land vide order dated 10.11.1989 and after getting the construction permission on 19.07.1991, the construction had been put up and petitioners are residing in House Nos.32 and 33 of said Narayannagar Society. It is the further case of the petitioners that society is having open space area which is earmarked as common plot in the map of the society and the said common plot is to be used for the benefit of all members of the society for various purpose. It has been alleged that the House Nos.31 to 35 are situated exactly in front of the common plot area and some of the area of the common plot is situated adjacent to House No.31 and the owners of House Nos.32 and 33 have carried out the construction by encroaching the area of the common plot and such illegal construction has been carried out which was brought to the notice of the respondent authority. So much so that Respondent Nos.4 to 6 are keeping cows and buffaloes in the said area for maintaining their livelihood. By keeping such cattle and utilising the common plot area in such unauthorised manner, some 4050 cows and buffaloes are being kept and illegal sell of milk activities are going on. Since no action has been initiated by the respondent Page 2 of 12 C/SCA/6710/2018 ORDER authority and representations having not been decided so far, petitioners are left with no option but are constrained to approach this Court by way of present petition under Article 226 of the Constitution of India.

3. Mr.Khambholja, learned advocate appearing for the petitioners has contended that in view of the fact that Respondent Nos.4 to 6 are utilising the land in question unauthorisedly of common plot area and indulged into illegal activities over the space which is commonly meant for society members and such activities have not been prevented by the respondent authorities and as such pollution is being created in the entire society and as such inaction is quite visible in view of the fact that so far said activity is continued. By alleging this, Mr.Khambholja, learned advocate for the petitioners has stated and requested that a very innocuous relief is sought in the petition which would not, if granted, harm anyone, as a result of this, requests this Court to grant relief as prayed for in the petition. No other submissions have been made.

4. While hearing the learned advocate appearing for the petitioners and while going through the papers contained in the petition compilation, it seems that this common area is subject matter of controversy entangled in criminal as well as civil litigations. The papers itself are indicating that a criminal case is also registered before the Police Station, Amroli in the month of March, 2018 and apart from this most material fact is that, with respect to this very common area allegedly in the use of Respondent Nos.4 to 6 is the subject matter of Civil Suit No.55 of Page 3 of 12 C/SCA/6710/2018 ORDER 2018 as reflecting on page:55 of the petition compilation and as such the grievances which are tried to be voiced out are very much ceased by the Civil Court where every details with regard to facts will be examined and adjudicated. As such when the grievance is very much pending before the Civil Court, the Court would not like to exercise extra ordinary jurisdiction in view of the settled principles of law. On such exercise, simply because the suit has been filed by another members of the society, the same would not permit the present petitioners to invoke the extra ordinary jurisdiction of this Court more particularly when the petition contains highly disputed question of facts of civil nature and the alternative remedy available under the law is already availed of and as such Court would not like to exercise extra ordinary jurisdiction looking to the present scenario as visible on record.

5. Normally, simple direction being issued upon authority to take decision appears to be usual but the said direction is not to be so lightly used so as to allow the exercise of extra ordinary jurisdiction to be used by any litigant in such manner and here the case of common plot issue is very much ceased by the lower Court may be at instance of other members and it is the subject matter of criminal case as well. Since such dispute is also incidental to use of common plot area, the Court would not like to exercise extra ordinary jurisdiction. Of course, an attempt is made to oversimplify the issue in the context of relief prayed for, but the very fact that Respondent No.4 to 6 are also made parties and as such authorities have also been joined as if entire civil dispute is sought to be agitated in extra ordinary jurisdiction and as such this Court would Page 4 of 12 C/SCA/6710/2018 ORDER not like to issue any such casual direction to the authority on just asking. If any effective order is to be obtained by the petitioners, the same should be in a very appropriate form and this writ jurisdiction is not possible to be allowed to be utilised for ventilating purely private dispute amongst the members of the society. The jurisdictional limits are well propounded by series of decisions and one of such elaborate decision which is reported later on as well, the Court would like to consider to be applied here. Hence, the relevant abstracts of the said decision in case of Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374 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 0107 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.

(2) Interlocutory orders, passed by the courts subordinate to Page 5 of 12 C/SCA/6710/2018 ORDER 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 Page 6 of 12 C/SCA/6710/2018 ORDER 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 selfevident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a longdrawn 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 Page 7 of 12 C/SCA/6710/2018 ORDER indulge in reappreciation 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 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 Page 8 of 12 C/SCA/6710/2018 ORDER 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 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 Page 9 of 12 C/SCA/6710/2018 ORDER 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 Page 10 of 12 C/SCA/6710/2018 ORDER 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 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."

Page 11 of 12 C/SCA/6710/2018 ORDER

6. In view of aforesaid limits of exercise of extra ordinary jurisdiction, Court is of the view that this is not a fit case in which any writ jurisdiction is to be exercised. The concept of issuance of writ more particularly mandamus in nature is tried to be diluted by seeking such kind of relief, the Court would not like to entertain the same. Accordingly, petition being devoid of merits the same is dismissed with no order as to costs. Direct service is permitted.

(A.J. SHASTRI, J) MISHRA AMIT V. Page 12 of 12

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