Sureshkumar Ukchand Khandelwal vs The General Manager The Banaskantha ...

Gujarat High Court

Sureshkumar Ukchand Khandelwal vs The General Manager The Banaskantha ... on 5 February, 2025

                                                                                                              NEUTRAL CITATION




                             C/SCA/1394/2025                                    ORDER DATED: 05/02/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 1394 of 2025

                       ==========================================================
                               SURESHKUMAR UKCHAND KHANDELWAL & ORS.
                                                Versus
                       THE GENERAL MANAGER THE BANASKANTHA DISTRICT CENTRAL CO-
                                      OPERATIVE BANK LTD. & ANR.
                       ==========================================================
                       Appearance:
                       MR ANKIT Y BACHANI(5424) for the Petitioner(s) No. 1,2,3,4,5
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                            Date : 05/02/2025

                                                             ORAL ORDER

1. The present application is filed under Section 227 of the Constitution of India with the following reliefs:

"(A) YOUR LORDSHIP be pleased to admit and allow the present Special Civil Application;

(B) YOUR LORDSHIP be pleased to quash and set aside the impugned judgment and order dated 25-10-2024 in Misc. Civil Appeal No. 6 of 2024 rendered by Ld. 6th Addl. District Annox Judge, Deesa, as well as, order dated 19-3-2024 passed below Exhibit 5 application filed within Regular Civil Suit No. 12 of 2023 by Ld. Principal Civil Judge, Dantiwada, in the interest of justice; C) YOUR LORDSHIP be pleased to stay the Anne D orders dated 25-10-2024 & 19-3-2024 passed Anne B by Ld. District Court, Deesa & Trial Court, Dantiwada at Banaskantha, as well as, further be pleased to stay the Suit proceedings vide Regular Civil Suit No. 12 of 2023 pending before Ld. Civil Judge, Dantiwada; by granting Status quo upon Suit property, till the pending admission, hearing, and final disposal of this present petition;

NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined (D) YOUR LORDSHIP be pleased to grant such other and further relief(s) as deemed just and proper in the facts and circumstances of the case in the interest of justice;"

2. The short facts of the case appear to be as under:

2.1 The present petitioners are the original plaintiffs, who have filed Regular Civil Suit No. 12 of 2023 before the learned Principal Civil Judge, Dantiwada, against the respondents, thereby seeking a declaration and injunction.

The parties will be referred to by their original positions.

2.2 The plaintiffs have filed an injunction application under Order 39 of the Code of Civil Procedure, 1908. After hearing the parties, the trial court rejected the said injunction application filed below Exhibit 5 vide order dated 19 th March 2024.

2.3 The plaintiffs appear to have preferred Civil Miscellaneous Appeal No. 6 of 2024 before the appellate court, being the District Court, Deesa, which was filed under Order Page 2 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025 NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined 43 of the Code of Civil Procedure, 1908, and was dismissed vide judgment and order dated 25th October 2024.

Being aggrieved and dissatisfied with the impugned orders, the present petition has been filed.

3. Learned advocate Mr. Ankit Bachani, appearing for the petitioners - plaintiffs, submits that both these impugned orders passed by the trial court as well as the appellate court are erroneous, perverse, and contrary to the provisions of law.

3.1 Learned advocate Mr. Bachani would submit that the plaintiffs are the owners of land bearing old Survey No. 27, upon which the defendant bank has encroached on a certain portion and tried to construct the premises of the bank. Thus, the plaintiffs had no other option but to approach the trial court.

3.2 Learned advocate for the plaintiffs would submit that as Page 3 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025 NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined per the DILR survey report at Exhibit 23, it is clear that there is an encroachment on the land of the plaintiffs by the defendant, as well as an encroachment upon the land of the defendant by the plaintiffs.

3.3 Learned advocate for the plaintiffs would submit that when it has come on record that there is an encroachment by the defendant, an injunction is to be granted in favor of the plaintiffs. So, he would submit that both these orders require interference by this Court, as they suffer from erroneous observations and findings, which need to be corrected by this Court.

3.4 Making the above submissions, he requested this Court to allow this petition. No other and further submissions are made.

4. At the outset, it is required to be noted that the present application is filed under Article 227 of the Constitution of India against concurrent findings of the two courts below.

NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined

5. Before adverting to the issue involved in the matter, I would to remind myself scope and power available to this Court while exercising its power under Article 227 of the Constitution of India which is succinctly discussed by the Honourable Supreme Court of India in case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, the relevant observation of the aforesaid judgment reads as under:-

"[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 v. Ram Chander Rai and Ors., 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.

(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, Page 5 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025 NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined 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 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 Page 6 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025 NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined 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 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 Page 7 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025 NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined 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 v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49) "(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 [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its Page 8 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025 NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined 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 [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] 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.

NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined

(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."

Emphasized supplied.

5.1 It is also apt to reply upon the decision of Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein the Hon'ble Supreme Court of India has held as under:-

NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined "15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [ Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a Court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior Court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the Court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v.

Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of Page 11 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025 NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or tribunal has come to."

6. After perusing the impugned judgments available on record, prima facie it appears that there is some discrepancy found in the measurement of the land bearing old Survey Nos.

27 and 28, which has come out from the DILR report and is also recorded in the judgment of the trial court in Paragraphs 8.6 and 8.7. The defendant is a bank that has purchased the land situated at old Survey No. 28 and submitted the construction plan before the local panchayat. After sanctioning the construction plan, it undertook the construction activity.

6.1 The District Court concerned has also observed in its impugned judgment that there is an encroachment by the Page 12 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025 NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined plaintiffs over the land of the defendant, as well as by the defendant over the land of the plaintiffs, as revealed from the DILR report.

6.2 At the same time, it has also been further observed that report of Court Commissioner (DILR) and the measurement sheet of the year 1959, which was re-surveyed in the year 2016, not in consonance with each other. So, there is a difference between the report of the DILR and the re-survey done in the year 2016.

6.3 Thus, the appellate court found that to resolve the discrepancy, evidence has to be led, and both sides have to present evidence to establish their case. However, it has also been observed by both the courts below that since the defendant is a bank and if it undertakes the construction activity, stopping it will cause disturbance to banking activity which affects the public at large, so the public at large would suffer. Nevertheless, it has been so observed that if Page 13 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025 NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined construction is contrary to plan sanctioned, the plaintiffs can always raise their grievance before the local panchayat.

6.4 Further, it has been also observed by the appellate court in Paragraph 9 of the impugned judgment that if ultimately the plaintiffs succeed in proving its case and it is found that the defendant is actually encroaching upon the land of the plaintiffs, the construction standing on such land of the plaintiffs will be demolished. It has also been further observed that the plaintiffs can get necessary compensation as well.

Whereas, if an injunction is granted in favor of the plaintiffs, it will cause serious prejudice to the interest of the account holders of the defendant bank, who is required to serve public at large, which cannot be compensated in terms of money.

6.5 Even if, considering the fact that there is a prima facie case in favor of the plaintiffs, but considering the balance of convenience and irreparable loss not being found in favor of the plaintiffs, both the courts have rejected the prayers of the Page 14 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025 NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined plaintiffs.

7. Thus, in view of the aforesaid discussion and reasons as well as finding of the facts so arrived by both the courts below while rejecting the injunction application and appeal, I am of the view that the order in question is neither erroneous nor perverse.

7.1 I am also of the view that there is no gross error committed by any of the courts below, including no jurisdictional error found at the ends of the courts below while adjudicating the injunction application, which requires any interference by this Court while exercising its power under Article 227 of the Constitution of India.

8. In view of the above discussion and the ratio laid down in the case of Sameer Suresh Gupta (supra) and Garment Craft (supra), I do not find any merit in the present petition.

NEUTRAL CITATION C/SCA/1394/2025 ORDER DATED: 05/02/2025 undefined Accordingly, it is required to be dismissed, and the same is dismissed with no order as to costs.

MAULIK J.SHELAT,J) DRASHTI K. SHUKLA Page 16 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Feb 10 2025 Downloaded on : Mon Feb 10 21:49:38 IST 2025