Jammu & Kashmir High Court - Srinagar Bench
Sualah Rehman Sheikh Gojar & Anr. vs State Of J&K; And Others on 6 March, 2018
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
On board
matter
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No.785/2015
Date of order:06.03.2018
Sualah Rehman Sheikh Gojar & anr. v. State of J&K & ors.
Coram:
Hon'ble Mr Justice Mohammad Yaqoob Mir, Judge.
Appearance:
For the Petitioner(s): Mr. H. Furrahi, Adv.
For the Respondent(s): None for R1 to R5.
Mr. M. S. Latief, Adv-for R6 to R9.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. Petitioners (hereinafter referred to as the plaintiffs) claiming to be the owners in possession of land measuring 01 kanal 03 marlas towards west side covered by survey No.1200-min situated in village Manigam and claim to have converted the same into an orchard and have fenced it with barbed wire. Alleging interference in the hands of respondents (hereinafter referred to as the defendants) have filed suit for perpetual injunction with a prayer that the defendants shall be restrained from causing any interference.
2. Alongside suit, an application for grant of interim relief has been filed. Initially, trial court (Sub Judge), Ganderbal, granted interim relief restraining defendants from interfering with the suit property in any OWP No.785/2015 Page 1 of 7 manner. The said application for interim relief, after objections of the defendants, has been finally disposed of vide detailed order dated 18.02.2015. On discussing rival submissions and the material placed on record, learned trial court has concluded as under:
"From the record it transpires that the non- applicants 01 to 04 have approached the concerned revenue authorities for restoring the passage which was being used by the villagers to reach their respective land and relatives. Report of the concerned Patwari reveals that the applicants have blocked the said passage which is being used by the villagers. Revenue record placed on record by both the sides also reveals that there is some land mentioned as „Banna‟ which in the village is being used to reach their respective lands. It is sort of a passage which has been kept for the villagers to reach their respective lands. The site plan placed on record by the non-applicants also reveal that there is a small passage in between the land of the applicants which has been blocked by the applicants.
Application for grant of interim relief accordingly disposed of and shall form part of the main file."OWP No.785/2015 Page 2 of 7
3. Aggrieved thereof, plaintiffs filed appeal unsuccessfully as the learned appellate court has upheld order dated 18.02.2015 and has observed that the trial court has rightly given liberty to the respondents i.e. official respondents to proceed in the matter in hand under law as it has come on record that „Pagdandi‟ on spot has been blocked by the plaintiffs by fencing it with barbed wire.
4. Again dissatisfied with the order of learned appellate court, instant petition has been filed under Article 227 of the Constitution of India read with Section 104 of the Constitution of J&K State.
5. Earlier such type of orders would be challenged by invoking revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure. Said Section has been amended with the object of curtailing the protraction of the suit proceedings and the exercise of power has been confined only vis-à-vis orders which have the trappings of final disposal or if would have been passed otherwise would have terminated the suit proceedings. Confronted with the same position, another route has been adopted i.e. to invoke the power of the Court under Section 104 of the Constitution of J&K State.
6. It is settled that even though the revisional powers to this Court have been curtailed but that curtailment will not bar this Court from exercising powers under Article 227 of the Constitution of India read with Section 104 of the State Constitution. Said controversy has been set at rest by the Hon‟ble Supreme Court in the judgment rendered in the case of "Shalini Shym Shetty & anr Vs. Rajendra Shankar Patil" reported in OWP No.785/2015 Page 3 of 7 2010 AIR SCW 6387, wherein principles have been evolved for exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Same are reproduced here-under:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by 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, on 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 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 its 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 (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), 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'.OWP No.785/2015 Page 4 of 7
(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 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) 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 the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement 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.
(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 OWP No.785/2015 Page 5 of 7 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 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 counter-productive and will divest this extraordinary power of its strength and vitality."
7. Learned counsel for the petitioner would contend that the order passed by the trial court and the order passed by the appellate court upholding order of the trial court are perverse but on perusal of the records, same is not discernible.
8. It is settled that for grant or otherwise of the interim relief, adherence to the celebrated principles i.e. prima-facie case, irreparable loss and balance of convenience, is imperative. Learned trial court as well as appellate court having categorically noticed an important factual position to the effect that the plaintiffs have converted their land into an OWP No.785/2015 Page 6 of 7 orchard, while doing so have fenced it with barbed wire, the resultant effect is the blockade of approach road to the land of other land holders. In the villages or even Urban areas, when there is a huge chunk of land, practice prevalent is that the land owners use the path i.e. „Pagdandi/Banna‟ for reaching to their land. Allegedly „Pagdandi/Banna‟ has been covered by the plaintiffs with barbed wire so as to stop access to other land owners to their land. In the same background, defendants had approached the revenue authorities under J&K Common Lands (Regulation) Act but to frustrate the action to be taken by the revenue authorities (defendants), plaintiffs filed the suit. Same position has been correctly appreciated for deriving prima-facie satisfaction for grant or otherwise of the interim relief. The respondent authorities have been left free to take action whatever warranted under law.
9. On the touch stone of principles as evolved by the Hon‟ble Apex Court referred to above, no case whatsoever is made out warranting interference by exercising powers under Section 104 of the J&K Constitution which corresponds to Article 227 of the Constitution of India, petition, as such, dismissed.
10. Copy of the judgment be sent to the appellate court as well as to the trial court for information.
(Mohammad Yaqoob Mir) Judge Srinagar 06.03.2018 "Bhat Altaf, PS"
OWP No.785/2015 Page 7 of 7