Allahabad High Court
Ramesh Singh Bhadoriya And Another vs State Of U.P. And 8 Others on 10 November, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 05.11.2020 Delivered on 10.11.2020 Court No. - 87 Case :- MATTERS UNDER ARTICLE 227 No. - 2394 of 2020 Petitioner :- Ramesh Singh Bhadoriya And Another Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Akash Chandra Maurya Counsel for Respondent :- G.A.,Himanshu Raghav Pandey,Ram Kishore Pandey Hon'ble Raj Beer Singh,J.
1. Instant petition under Article 227 of the Constitution of India has been filed against order dated 05.03.2020 passed by Additional Sessions Judge, Court No.23, Kanpur Nagar in Criminal Revision No. 344 of 2019 (Bhartendu Singh Vs. Ramendra Singh and others), Police Station - Vidhuni, Kanpur Nagar, whereby the order dated 28.11.2019 passed by Sub-Divisional Magistrate, Sadar, Kanpur Nagar, in Case No. 01601 of 2019 Ramendra Singh Parihar Vs. Bhartendu Singh under Section 145 Cr.P.C. has been set aside and revision has been allowed.
2. It has been submitted by learned counsel for petitioners that the petitioners are owner of Gata No. 162, 210Kha, 277Ka, 366, 570, 654, 793 situated at village Bharu, Tehsil Kanpur Nagar. Earlier it were ancestral property of late Chandrapal Singh, who has executed a Will dated 10.04.1978 in favour of Smt. Sharda Devi wife of Arjun Singh and after that name of Sharda Devi was entered in revenue record. She has further executed a will dated 13.04.1981 in favour of her husband Arjun Singh and thus, his name was mutated in revenue record. The order dated 9.8.1981 passed by Tehsildar was challenged by respondents in appeal but the appeal was dismissed. The respondents have filed a case no. 65 of 2004-05 under Section 229B of U.P.Z.A. & L.R. Act before the Court of Additional District Magistrate, Sadar, Kanpur Nagar but that case was barred by Section 11 of CPC and that case was dismissed vide order dated 23.11.2015. Learned counsel further submitted that Arjun Singh has executed a sale deed in favour of Kamal Dwivedi. In appeal filed by respondents against order dated 23.11.2015, the matter was remanded back to the trial court by quashing order dated 23.11.2015. Meanwhile, on 06.4.2018 said Kamal Dwivdi has executed a registered sale deed in favour of petitioners and after that petitioners got possession over disputed property from said Kamal Dwivedi. It was submitted that as the possession of petitioners was being objected, thus, the petitioners have made a complaint under Section 145 Cr.P.C. wherein by order dated 28.11.2019 the said property was attached by the Sub Divisional Magistrate vide order dated 28.11.2019 but that order has been set aside by the court of Additional Sessions Judge vide impugned order dated 05.03.2020 in an arbitrary manner and without considering facts and evidence of the case. Learned counsel submitted that the learned Revisional Court has not considered the evidence of petitioners and that impugned order is against facts and law and the same is not sustainable. It was stated that court below has also not considered the report dated 26.10.2018.
3. Learned counsel for private respondents has argued that there is no illegality or perversity in the impugned order much less any such error of jurisdiction so as to require any interference under Article 227 of the Constitution of India. It was further submitted that the petitioners have alternate remedy of approaching this court by filing a revision against the impugned order and thus, the instant petition under Article 227 is not maintainable. The impugned order dated 05.03.2020 is based on material on record and it is a reasoned order. Learned counsel submitted that petitioners are not owner of plot in dispute, rather it is ancestral property of answering respondents. After death of Sharda Devi wife of Arjun Singh, name of Mahaveer Singh, grand father of answering respondents was recorded as they were heirs of Chandrapal Singh, who was brother of Mahaveer Singh and it was submitted that after death of Mahaveer Singh the disputed property came in possession of Umesh and Mahesh who are now represented as respondent no. 2 to 9 and they are still in possession of the said property. The petitioners are claiming their right on the basis of alleged sale deed executed by Kamal Dwivedi on 06.04.2018 during pendency of case no. 65 of 2005 under Section 229B of U.P.Z.A. & L.R. Act whereas said Kamal Dwivedi is claiming the right on the basis of alleged sale deed dated 30.11.2015 executed by Arjun Singh. It was further submitted that till date the name of the petitioners is not mutated in revenue record. The name of Kamal Dwivedi has also not been recorded in revenue record. The petitioners as well as Kamal Dwivedi have nothing to do with family of answering respondents or the property in dispute. After death of chandrapal Singh the disputed land reverted back to Mahaveer Singh and the alleged will is concocted. Learned counsel has submitted that the suit filed by answering respondent is still pending, in which petitioners have sought their impleadment. It was submitted that answering respondents have filed an appeal before the Commissioner, which was allowed vide order dated 18.10.2016 and the matter was remanded back to trial court and subsequently, the order dated 23.11.2015 was set aside. Learned counsel submitted that alleged sale deed dated 06.04.2018 has been executed by Kamal Dwivedi without any authority and that names of petitioners have not been yet recorded in revenue record. It was submitted that learned lower Revisional Court has considered all facts and evidence of the parties and that no case of any interference in impugned order is made out.
4. Heard learned counsel for petitioners, learned AGA for State and learned counsel for private respondents and perused the record including the counter affidavit and rejoinder affidavit of parties.
5. At the out set it may be mentioned that the instant petition has been preferred under Article 227 of the Constitution of India. It is well settled that in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Apex Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
6. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571:
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to 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".
In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.
7. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).
It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set 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. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).
Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).
In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.
In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to re-appreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.
In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that 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 in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.
In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Hon'ble Apex Court held as under:
"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."
8. It is apparent from the above stated pronouncements that in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow and even the errors of law cannot be corrected in exercise of such powers. The power enshrined under Article 227 of the Constitution is of judicial superintendence and it cannot be used to upset conclusions of fact, however, erroneous, unless such conclusions are so perverse or unreasonable that no court could have ever reached than.
9. In the instant matter, perusal of record shows that case of petitioners is that the owner of disputed property was Chandrapal Singh, who has executed a Will dated 10.04.1978 in favour of Smt. Sharda Devi wife of Arjun Singh and after that name of Sharda Devi was entered in revenue record. She has further executed a will dated 13.04.1981 in favour of her husband Arjun Singh, whose name was recorded in revenue record and that the respondents have filed a case no. 65 of 2004-05 under Section 229B of U.P.Z.A. & L.R. Act, which dismissed vide order dated 23.11.2015. It is further the case of petitioners that Arjun Singh has executed a sale deed in favour of Kamal Diwedi, who on 06.4.2018 has executed a registered sale deed in favour of petitioners and after that petitioners got possession over disputed property. Whereas the case of private respondents is that said Chandrapal and grandfather of respondents, namely Mahavir Singh were brother and Sharada Devi w/o Arjun Singh was daughter of Chandrapal. Chandarpal Singh has never executed any will or gift in favour of Sharda Devi. After death of Sharda Devi wife of Arjun Singh, name of Mahaveer Singh, grand father of answering respondents was recorded as they were heirs of Chandrapal Singh and after death of Mahaveer Singh the disputed property came in possession of respondents and they are still in possession of the said property. It is also the case of respondents that the case no. 65 of 2005 under section 229B of U.P.Z.A. & L.R. Act is still pending, in which petitioners have sought their impleadment. It was submitted that after dismissal of said case, the answering respondents have filed an appeal before the Commissioner, which was allowed vide order dated 18.10.2016 and the matter was remanded back to trial court and the order dated 23.11.2015 was set aside.
10. The court below has found that the respondents are in possession of disputed property and that alleged Kamal Diwedi or the petitioners were never in possession of the disputed property. Further, it is also apparent that the case no. 65 of 2005 under section 229B of U.P.Z.A. & L.R. Act is still pending, in which injunction order was passed. In view of these facts, it can not be said that impugned order is suffering from any such illegality or perversity so as to require nay interference by this court. Here it would be pertinent to mention that title of a property may only be decided by the competent Civil Courts and that under the provisions of Section 145 and 146 Cr.P.C., the Executive Magistrate may take action in respect of a dispute only about actual possession over the property, where there is apprehension breach of peace due to above dispute. The object of Section 145 Cr.P.C. is to maintain law and order and to prevent breach of peace by maintaining one or other of the parties in possession, whom Sub-Divisional Magistrate finds, was in possession on the date of preliminary order under Section 145 (1) or within two months prior to it. If there is material to show that there is emergency then the Magistrate can pass order of attachment under Section 146 (1) Cr.P.C. after considering such material. Hon'ble Supreme Court in Ashok Kumar v. State of Uttarakhand, (2013) 3 SCC 366, held that the object of Section 145 CrPC is merely to maintain law and order and to prevent breach of peace by maintaining one or other of the parties in possession, and not for evicting any person from possession. The scope of enquiry under Section 145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute. Under Section 146(1), a Magistrate can pass an order of attachment of the subject of dispute if it be a case of emergency, or if he decides that none of the parties was in such possession, or he cannot decide as to which of them was in possession.
11. Considering the facts of instant case in light of above stated legal position, there is no justification warranting any interference with the impugned order in this petition. Consequently, the present petition is liable to be dismissed.
12. Accordingly, the instant writ petition is dismissed.
Order Date :- 10.11.2020 Mohit