Allahabad High Court
Waqf Allah Jalle Shanahu And Another vs State Of Up And 6 Others on 29 May, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:97963
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 6153 of 2024
Petitioner :- Waqf Allah Jalle Shanahu And Another
Respondent :- State Of Up And 6 Others
Counsel for Petitioner :- Shatrughan Sonwal,Shivendu Ojha,Sr. Advocate
Counsel for Respondent :- Sanjai Singh,Shahid Ali Siddiqui
Hon'ble Ajit Kumar,J.
1. Heard Sri R.K. Ojha, learned Senior Advocate assisted by Sri Shivendu Ojha, learned counsel for the petitioners and Sri Rohit Pandey learned Advocate appearing for respondent No.3 and Sri Shahid Ali Siddiqui, learned Advocate for respondent No.6.
2. By means of this petition filed under Article 227 of the Constitution, petitioner has challenged the order passed by the trial court dated 10.04.2024 in O.S. No.18 of 2024 dismissing the suit on merits on the question of its maintainability.
3. Counsel for the petitioner has submitted that the manner in which the trial court has proceeded to consider the issue No.1 as to the violation of civil rights of the petitioner to maintain a suit under Section 253 of UP Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961, it speaks volume of non application of judicial mind. The Court, according to him, has gone wrongly to apply Protection of Civil Rights, 1955 as to the untouchability which has been abolished under Article 17 of the Constitution and completely confused the same with the civil rights as have come to be mentioned under the second proviso to Section 253 of the Act, 1961. He submits that second proviso makes the order of appeal by the appellate authority final giving liberty to the aggrieved party to file civil suit if the direction contained under Section 251 in any manner protects the civil rights. He submits that refusal to grant renewal to hold cattle fair by the plaintiff results in an actionable claim under the second proviso, if appeal stands dismissed and, therefore, trial court ought to have taken into consideration the actionable claim that emanates from the statutory provisions as contained under Section 253 of Act, 1961 in relation to exercise power by the authority under Section 251. Hence this Court should interfere in the matter in its supervisory and superintending jurisdiction under Article 227 of the Constitution.
4. Per contra, it is argued by learned counsel appearing for the respective respondents that this judgment dismissing the suit on merits is appealable under Section 96 of the Code of Civil Procedure, 1908. They have argued that the provisions as contained under the second proviso to Section 253 cannot be misconstrued to mean that it is a suit filed under Section 253. According to them, whenever a statute gives a right and it provides or attaches finality to an order passed under the statute giving liberty to parties to question the same in civil suit then such suits are always filed under Section 9 of the C.P.C. and any suit dismissed or allowed under Section 9, then such orders and decrees are amenable to the provisions contained under Section 96 of C.P.C.
5. Having heard learned counsel for the respective parties and having perused the order passed by the trial judge, I find that the trial court has completely misconstrued the words and expressions "civil rights" mentioned in second proviso to Section 253 with what is prescribed for under the Protection of Civil Rights, 1955. This Act of 1955 deals with the situation where on the ground of untouchability a person is discriminated against as under Article 17 of the Constitution untouchability has been abolished and it has been explained away but there would not be any discrimination for untouchability. But here was a case where a party was aggrieved for not getting renewal of licence to hold cattle fair.
6. In my considered view, it is an actionable claim unless and until the suit is held to be barred under the law under which the order has been passed refusing to grant licence or renewal of licence.
7. The question now arises as to exercise power under Article 227 of the Constitution. Article 227 of the constitution is reproduced hereinunder:
"227. Power of superintendence over all courts by the High Court
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may--
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c)prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision or any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.[Editorial comment-The Constitution (Forty-Fourth Amendment) Act, 1978, repealed Article 19 (1) (f) and also took out Article 31(1) has been taken out of Part III and made a separate Article 300A in Chapter IV of Part XII. This amendment may have taken away the scope of speedy remedy under Article 32 for the violation of Right to Property because it is no more a Fundamental Right. Making it a legal right under the Constitution serves two purposes: Firstly, it gives emphasis to the value of socialism included in the preamble and secondly, in doing so, it conformed to the doctrine of basic structure of the Constitution."
8. From bare reading of the provisions as contained under Article 227, the power of superintendence over the courts and tribunals have been given. The scope of power has come to be considered and interpreted in cerebrated judgment of Supreme Court in the case of Radhy Shyam & anr v. Chhabi Nath & ors; 2015 (5) SCC 423 wherein it has been held that this power of superintendence entails in it the power to correct and rectify judgment of Courts in the territorial limits of the High Court or otherwise rectify any serious error of law if has occurred and which may lead to miscarriage of justice. This power of superintendence under Article 227 of the Constitution is an exclusive power vested with the High Courts.
9. However, in the instant case, I find that provisions as contained under 96 of the Civil Procedure Code provides for a forum of appeal. The question of miscarriage of justice always to be perceived contextually and looking to the facts of the case where the suit itself has been dismissed without any positive direction or order, I do not see any miscarriage of justice is going to take place which needed to be arrested by exercising power under Article 227 of the constitution which is of superintendence, if the parties left to file appeal under Section 96. Had it been a case where the decree passed by the trial court which would have been decree within the meaning of Section 2(2) giving any relief to a particular party and the decree could have been termed as an absurd one leading to miscarriage of justice, situation would have been different.
10. In these set of facts, special to this case, I decline to entertain this petition as the statutory remedy of appeal under Section 96 of C.P.C. is available to the petitioner against the judgment and decree passed by the trial court dated 10.04.2024 dismissing the original suit No.18 of 2024.
11. Subject to aforesaid liberty, petition is consigned to records.
Order Date :- 29.5.2024/P Kesari
