[Cites 11, Cited by 0]
Bombay High Court
Ganesh D. Tapkir vs Baner Yethil Samasta Gramastha Mandal ... on 1 April, 2026
Author: N. J. Jamadar
Bench: N. J. Jamadar
2026:BHC-AS:15517
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 16288 OF 2025
1. Ganesh D Tapkir
Age 42, Occ.- Business & Agriculturist
R/at Gurudatta Nagar,
Pan Card Club Road,
Baner, Pune 411 045.
2. Santosh Krushna Patil,
Age 50, Occ. Business
R/at. 20, Surashree,
Plot No. RH - 56,
G Block, M.I.D.C.
Chinchwad, Pune - 411 019. ...Petitioners
Versus
1. Baner Yethil, Samasta Gramastha Mandal
Baner, Through it's Representatives
2. Rahul Krushnaji Parkhe
Age: Years, Occ. Business
ARUN
RAMCHANDRA R/at Krushna Kunj, S. No. 204/9,
SANKPAL Parkhe Mala, Baner,
Digitally signed by Pune 411 045.
ARUN RAMCHANDRA
SANKPAL
Date: 2026.04.01
22:24:04 +0530 3. Santosh Mukundrao Tapkir,
Age: Years, Occ. Business
R/at S.No. 83/2, Dattakrupa
Niwas, Baner, Pune 411 045.
4. Shahaji Sahebrao Murkute
Age: Years, Occ. Business
R/at Behind Hanuman Mandir,
Baner Gaothan, Baner,
Pune 411 045.
ARS 1/22
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5. Pravin Vilas Shinde,
Age: Years, Occ. Business
R/at Chakankar Mala,
Baner, Pune 411 045.
6. Ashish Arjun Tamhane
Age: Years, Occ. Business
R/at Harinivas,
Near Bhairavnath Paduka Mandir,
Baner, Pune 411 045.
7. Nitin Bhiku Shinde,
R/at Shinde Parkhe Mala,
S. No. 210, Baner,
Pune 411 045.
8. Mangesh Pundlik Murkute,
Age: Years, Occ. Business
R/at Near Ram Mandir,
Baner Gaothan, Baner,
Pune 411 045.
9. Akshay Bhanudas Tapkir
R/at Tukaram Gadh Bunglow,
S. No. 83, Baner,
Pune 411 045.
10. Manikrao Kashinath Gandhile
R/at Near Shivaji Putala,
Baner, Pune 411 045.
...Respondents
11. Makrand Janardan Kalamkar (Orig Plaintiff)
Age: Years, Occ. Business
R/at Yash Park, S. No. 48,
Chakankar Mala,
Baner, Pune 411 045.
Respondent
(Orig Def No.3)
12. Commissioner,
Pune Municipality,
P.M.C. Bhavan,
Shivajinagar,
Pune - 411 005.
ARS 2/22
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Mr. Anil Anturkar, Senior Advocate, Atharva Date, Kashish Chellani,
Minal Chandnani, i/b Hemanth Ghadigaonkar, for the
Petitioners.
Mr. Avinash Bhuskute, for Respondent Nos. 1 to 10.
Adv R.S. Khadapkar, for Respondent No.11.
CORAM : N. J. JAMADAR, J.
RESERVED ON : 26th MARCH 2026
PRONOUNCED ON : 1st APRIL 2026
JUDGMENT:
1. Rule. Rule made returnable forthwith and, with the consent of
the learned Counsel for the parties, heard finally.
2. By this Petition under Article 227 of the Constitution of India, the
Petitioners-original Defendant Nos. 1 and 2, take exception to a
judgment and order dated 3rd April 2025 passed by the learned District
Judge, Pune in MCA No. 101 of 2024, whereby the said Appeal
preferred by the Petitioners against an order dated 22 nd April 2024
passed by the learned Civil Judge, P.M.C. Court, Pune, thereby granting
injunction, came to be dismissed by affirming the order passed by the
trial Court.
3. Shorn of unnecessary details the background facts can be stated
as under:
3.1 A representative suit came to be instituted by an organization of
villagers of Baner, styled, "Baner Yethil Samastha Gramastha Mandal"
through Respondent Nos. 1 to 10, seeking a declaration that the
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villagers of Baner have a customary right to celebrate Bagad festival on
the occasion of "Hanuman Jayanti", and to restrain the Petitioners-
Defendant Nos. 1 and 2 from causing obstruction in any manner
whatsoever in the celebration of the said festival which has been
celebrated in accordance with the traditions since ancient times.
3.2 The substance of the claim of the Plaintiff was that " Shree
Bhairavnath" is the village deity of Baner; which has been included in
the Pune Municipal Corporation in the year 1997. Shree Bhairavnath
Temple is located in "Gaothan" of village Baner. Another temple of
Bhairavnath known as "Shree Bhairavnath Paduka Mandir" is situated
at Survey No. 288. Since time immemorial every year, on the occasion
of Hanuman Jayanti, a festival styled, " Bagad" is celebrated on the land
admeasuring 10 R situated in front of " Shree Bhairavnath Paduka
Mandir" temple. The said 10 R land is the suit property.
3.3 The Plaintiff asserts that for the said Bagad festival 2000-3000
devotees assemble in the suit property. A ritual of moving the Bagad
which is like a chariot mounted on a bullock-cart is performed for over
an hour. The said festival has been celebrated since 400-500 years. The
villagers had erected a fencing to earmark the suit property, out of the
funds raised from the villagers.
3.4 Murkute family was the holder of the larger land of which the
temple and the suit property form part. Murkute family had kept the
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suit property open to facilitate the celebration of annual Bagad festival.
In the year 1967 Bhau Murkute and others sold the land bearing Survey
No. 288 to Ratnakar Bharvirkar. The description of the property
conveyed thereunder clearly indicates that the suit property was
earmarked for the Bagad festival.
3.5 As Defendant Nos. 1 and 2 attempted to remove the fencing
around the suit property, the villagers resisted the said effort. In the
enquiries that followed, it transpired that under a registered Sale Deed
dated 24th August 1987, Bharvirkar had sold the larger land to M/s
Mankanis Builders Developers Private Limited ("M/s Mankanis
Builders"). Subsequently, under a Sale Deed dated 24 th February 2022,
M/s Mankanis Builders transferred suit property in favour of Defendant
Nos. 1 and 2.
3.6 The Plaintiffs claim the boundaries of the property, sold under the
said Sale Deeds of 1987 and 2022, were incorrectly shown with a
malafide intent. M/s Mankanis Developers had never asserted the
possessory rights over the suit property, nor ever objected the
celebration of Bagad festival.
3.7 Defendant No.1 whose father was a Municipal Councilor of Baner
was fully aware of the customary right of the villagers to celebrate
annual Bagad festival. Yet, the Defendants Nos. 1 and 2 with intent to
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obtain a windfall gain acquired the suit property for grossly inadequate
consideration.
3.8 As Defendant Nos. 1 and 2, by allegedly taking undue advantage
of their position and proximity to the authorities, attempted to change
the zone of the property in the Development Plan and carry out
development over the suit property with intent to defeat the customary
right of the villagers to celebrate annual Bagad festival, the suit came to
be instituted for declaratory and consequential injunctive reliefs, even
against the Commissioner of Pune Municipal Corporation-Defendant
No. 3, in relation to the sanction of building plan and grant of TDR etc.
3.9 In the said Suit, the Plaintiffs filed an Application for temporary
injunction to restrain Defendant Nos. 1 and 2 from causing obstruction
in the celebration of the annual Bagad festival, then scheduled to be
held on 23rd April 2024.
3.10 During the pendency of the said Application, another Application
(Exhibit "30"), was filed by the Plaintiff with the assertions that the
Defendant Nos. 1 and 2 had started excavation work in, and erected
iron structures over, the suit property so as to put hindrances in the
celebration of Bagad festival. The Plaintiffs thus prayed that an interim
mandatory injunction against the Defendant Nos. 1 and 2 to remove
the said structures and restore the suit property status-quo ante, on or
before 22nd April 2024.
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3.11 Defendant Nos. 1 and 2 resisted the applications. The resistance
was principally premised on the objections to the maintainability of the
suit, and non-compliance with the procedural requirements. The
averments in the Plaint and the Applications were sought to be denied.
On the merits of the matter, the Plaintiffs were sought to be put to strict
proof of the averments in the Plaint and the Applications. It was
contended that the alleged Bagad festival celebration has no concern
with the suit property.
3.12 By a common order, the learned Civil Judge was persuaded to
allow the Applications (Exhibits "5" and "30") holding inter alia that
Defendant Nos. 1 and 2 had not denied the case of the Plaintiffs that the
Bagad festival was celebrated since time immemorial. The question
whether the Bagad festival was celebrated on the suit property was a
mater for adjudication at the trial, after the parties adduced evidence.
Prima faice it appeared that annual Bagad festival was celebrated at the
suit property. Finding the balance of convenience and the element of
irreparable loss in favour of the Plaintiffs, and noting that Defendant
Nos. 1 and 2 had started excavation work and erected iron structures
over the suit property, the learned Civil Judge restrained Defendant
Nos. 1 and 2 from causing obstruction in the celebration of the Bagad
festival and also directed the Defendants to restore the position of the
suit property status-quo ante.
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3.13 Being aggrieved, the Petitioners preferred an Appeal before the
District Court, Pune.
3.14 By the impugned judgment and order, the learned District Judge
dismissed the Appeal. In the view of the learned District Judge, the
learned Civil Judge has correctly exercised the discretion to grant the
injunctive reliefs and there was no reason to interfere with the
discretionary order passed by the trial Court. The learned District
Judge, inter alia, recorded that, the villagers of Baner were celebrating
the Bagad festival at the suit property since long, continuously and
without any interruption.
3.15 Being further aggrieved, Defendant Nos. 1 and 2 have invoked
the writ jurisdiction.
4. I have heard Mr. Anil Anturkar, the learned Senior Advocate, for
the Petitioners, Mr. Avinash Bhuskute, the learned Counsel for
Respondent Nos. 1 to 10 - Plaintiffs, and Mr. R.S. Khadapkar, the
learned Counsel for Respondent No.11-Defendant No.3. The learned
Counsel for the parties took the Court through the pleadings and the
material on record.
5. Mr. Anturkar, the learned Senior Advocate for the Petitioners,
submitted that the question as to whether the constitutional right to
property is being invaded without even making out a prima facie case of
customary easement, arises for consideration in this Appeal. It was
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submitted that if a majority of villagers join hands to enforce a non-
existent, yet, supposed customary easement, by the sheer force of
numbers, then the constitutionally protected right to property would be
severely jeopardised. The Courts below have not approached the
controversy at hand from this perspective, urged Mr. Anturkar.
6. Mr. Anturkar submitted that, first and foremost, there are no
pleadings to sustain a case of customary easement. Neither the time of
commencement is pleaded, nor the incidents on the strength of which
an inference of customary easement could be drawn have been spelled
out. The existence of the custom, as such, must have been adequately
pleaded. Mr. Anturkar would urge, where a case of customary easement
is sought to be made out, pleading assumes importance and, in the
absence of requisite pleading, no relief could have been granted by the
Courts below. Reliance was placed by Mr. Anturkar on a judgment of
this Court in the case of Cristina Marques Vs Lily Dias Alias Lilia Dias
Toscano Alias Lily Dias Toscano.1
7. Mr. Anturkar further submitted that, there is not an iota of
material to show that the villagers of Baner have been exercising he
right to celebrate Bagad festival at the suit property since long. Bald
assertions have been made in the Plaint that the said festival has been
celebrated since 400-500 years, sans any material to prima facie
substantiate the said claim. If the said right has been exercised since
1 2021 (4) MhLJ 788.
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time immemorial, Mr Anturkar would urge, there must have been
evidence in the form of its reference in the village and revenue record
and permissions from regulatory authorities. Even the Affidavits of the
villagers who claimed that they had been participating or witnessing the
celebration of the said festival have not been filed. In the absence
thereof, the Courts below have committed a gross error in granting the
injunction, on the basis of photographs which are of doubtful credence.
8. In opposition to this, Mr. Bhuskute, the learned Counsel for
Respondent Nos. 1 to 10, would urge that no interference is warranted
in the well-reasoned discretionary orders passed by the Court below, in
exercise of the limited supervisory jurisdiction of this Court. Joining the
issue with Mr. Anturkar on the aspect of absence of pleadings, Mr.
Bhuskute submitted the averments in the Plaint and the Applications for
grant of interim reliefs demonstrate all essential elements of a valid
custom, its continuous exercise and antiquity. The Plaintiffs have
referred to historical facts and the uninterrupted exercise of the right to
celebrate Bagad festival at the suit property openly and to the
knowledge of the Defendants and their predecessor-in-title, by the body
of the villagers as a whole. In contrast, Mr. Bhuskute would urge the
aforesaid claim of the Plaintiffs went virtually untraversed in the Reply
filed on behalf of the Defendant to the Application for temporary
injunction. It was in this backdrop, the Courts below were fully justified
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in returning findings that the Defendants did not controvert the case set
up by the Plaintiffs. By way of an afterthought, Mr. Bhuskute would
urge, in the Written Statement filed on behalf of Defendant Nos. 1 and
2, the assertions in the Plaint were sought to be denied and, therefore,
at this stage, the findings of the Courts below cannot be questioned by
reference to the denial of the Plaintiffs claim in the Written Statement.
9. Mr. Bhuskute also countered the submissions on behalf of
Defendant Nos. 1 and 2 that there was no material to demonstrate the
celebration of the Bagad festival at suit property. Banking upon the Sale
Deed dated 28th March 1967, executed by the members of the Murkute
family in favour of Ratnakar Bharvirkar, especially the description of the
property therein, Mr. Bhuskute would urge the use of the suit property
for the Bagad festival is explicitly borne out from the said instrument. It
was submitted that only after Defendant Nos. 1 and 2 acquired the suit
property from M/s Mankanis Builders, the right of the villagers to
celebrate the Bagad festical was sought to be put in contest and,
therefore, the absence of entries in the village and revenue records do
not impair the case of the Plaintiffs. At any rate, Mr Bhuskute would
urge, the Plaintiffs have placed on record the photographs depicting the
celebrations of the Bagad festival at the suit property since the year
1998. Two of the co-owners of Survey No. 288 have filed Affidavits to
support the claim of the Plaintiffs. This material, in the absence of
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specific denial on the part of Defendant Nos. 1 and 2, is sufficient, at
this stage, to sustain the order of injunction, submitted Mr. Bhuskute.
10. Mr. Anturkar made an endeavour to urge that, the Affidavits of
the Kasturchand Bhausaheb Murkute and Aniket Balasaheb Murkute
are of no avail to Plaintiffs as their names do not appear on the Record
of Rights of Survey No. 288. The reliance on the Sale Deed of the year
1967 was also stated to be misplaced as the said instrument, even if
taken at par, does not even remotely refer to the use of the suit property
for the celebration of Bagad festival.
11. The aforesaid submissions now falls for consideration.
12. To begin with, it is necessary to determine the legal norm on the
touchstone of which the controversy at hand deserves to be determined,
albeit prima facie. As noted above, the thrust of the submissions of Mr.
Anturkar was that the Plaintiffs have failed to demonstrate that the
villagers of Baner can claim customary easement under Section 18 of
the Indian Easements Act, 1882 ("Easements Act, 1882"). The absence
of pleadings and material to substantiate the case of customary
easement was sought to be built upon the edifice of customary
easement purported to be claimed by the Plaintiffs. In contrast, the
submissions of Mr. Bhuskute revolved around the exercise of the right
by the villagers of Baner to celebrate Bagad festival at the suit property.
Thus before venturing into examining the issue of justifiability of the
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exercise of discretion by the Courts below, in the light of the facts that
obtain, the true nature of the claim of the Plaintiffs is required to be
appreciated.
13. The Plaintiffs have approached the Court with a clear case that,
every year, on the occasion of Hanuman Jayanti, the villagers of Baner
celebrate Bagad festival in the open land in front of "Shree Bhairavnath
Paduka Mandir" situated at Survey No. 288. The Plaintiffs thus assert a
right over the suit property that purportedly exists in gross in a
fluctuating body of the villagers of Baner and not in particular
individuals who draw support and sustenance to their claim from the
proprietary and possessory title over any other property. Whether a
claim of such a nature can be termed as a customary easement, with all
rights and limitations attached thereto, governed by the provisions of
the Easements Act, 1882 ?
14. The aforesaid question brings to the fore the classical distinction
between the customary easements and customary rights. The rights
which are exercised by a community or body of persons, by virtue of a
custom, are not easement but rights in gross. A customary right is not
an easement. An easement must always be appurtenant to a dominant
tenement. It is trite an easement belongs to a determinate person or
persons on account of his/their relation with dominant tenement. An
indeterminate and fluctuating body of persons, like the
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inhabitants of a particular village, or public or community, cannot have
an easement. In other words, the easements are private rights belonging
to definite person(s) whilst customary rights are often public rights
annexed to the place in general.
15. The aforesaid position becomes abundantly clear from the
provisions of the Easements Act,1882. Section 2(b) of the Easements
Act, 1882 declares that nothing therein contained shall be deemed to
affect any law not thereby expressly repealed; or to derogate from any
customary or other right (not being a licence) in or over immovable
property which the Government, the public or any person may possess
irrespective of other immovable property. Section 4 of the Easements
Act, 1882, defines an easement as a right which the owner or occupier
of certain land possesses, as such, for the beneficial enjoyment of that
land, to do and continue to do something, or to prevent and continue to
prevent something being done, in or upon, or in respect of, certain other
land not his own.
16. A conjoint reading of Section 2(b) and Section 4 of the Easements
Act, 1882 would thus make it crystal clear that, an easement is always
appurtenant to the dominant tenement and is inextricably attached to
the dominant tenement and cannot be severed from it. Conceivably,
there can be no easement without dominant tenement and a servient
tenement. Thus, a customary right to which the Easements Act, 1882
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refers and, yet, does not govern, is materially distinct from a customary
easement. A customary right is a right over property that exists in gross
and not for the beneficial enjoyment of the other property. It is the right
of the community or right recognised by the community as a whole.
17. With the aforesaid clarity on the marked distinction between a
customary easement and a customary right, if the case set up by the
Plaintiffs is appraised, it becomes abundantly clear that, the suit, in a
sense, asserts customary right of the villagers of Baner over the suit
property, de hors the claim of ownership or possession over the
properties adjoining to, or in the vicinity of, the suit property. The claim
of the Plaintiffs is that the villagers of Baner as a body or community
have been exercising the right to celebrate Bagad festival over the suit
property since time immemorial.
18. In the aforesaid view of the matter, the submissions of Mr.
Anturkar premised on the nature of the claim of the Plaintiffs being that
of customary easement, do not merit acceptance. Nonetheless, the issue
as to whether there is prima facie material to show the existence of the
custom, with all its classical elements, deserves to be appreciated.
19. To establish a custom, a person claiming the customary right is
required to demonstrate that:
(a) the custom/usage is ancient or from time immemorial;
(b) the usage is regular and continuous;
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(c) the usage is certain and not varied; and
(d) the usage is reasonable. (Ram Kanya Bai And Anr Vs Jagdish and
Ors2)
20. A long usage of the custom is indispensable for its recognition
and validity. Indeed the custom derives its force from the fact that it has
a long usage. However, it does not seem to be an immutable rule of law
that the antiquity of the custom, in every case must be traced back to a
period beyond the memory of the man, during whose lifetime the
custom is contested. Undoubtedly, the usage must be of long duration.
But the longetivity of duration cannot be measured in a straight-jacket
and it would hinge upon the fact-situation of the case.
21. A useful reference in this context can be made to the judgment of
the Supreme Court in the case of Patneedi Rudrayya Vs Velugubantla
Venkayya And Ors,3 wherein the concept of "time immemorial" was
expounded. The Supreme Court enunciated that, a phenomenon is said
to be happening from "time immemorial" when the date of its
commencement is not within the memory of man or the date of its
commencement is shrouded in the mists of antiquity.
22. In the case at hand, the primary objection to the existence of the
custom mounted on behalf of Defendant Nos. 1 and 2 was that there
was no material to show that the custom was ancient or has been
2 AIR 2011 SC 3258.
3 AIR 1961 SC 1821.
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followed since time immemorial. In the Plaint, the Plaintiffs have
referred to the existence of the two temples and the celebration of the
Bagad festival since 400 to 500 years. (Paragraphs 3 and 13 of the
Plaint).
23. In the aforesaid context, the approach of the Courts below in
determining the issue of long usage in the light of the reply filed on
behalf of Defendant Nos. 1 and 2 requires appraisal. In the reply to the
Application for temporary injunction filed on behalf of Defendant Nos. 1
and 2, which in a sense, constituted the first statement of defence on
behalf of Defendant Nos. 1 and 2, it appears that, Defendant Nos. 1 and
2 were more content on questioning the tenability of the suit, and the
perceived technical and procedural defects in the frame of the suit.
24. In response to paragraph 3 of the Application for temporary
injunction, (which spelled out plaintiffs case) the only contention that
was raised on behalf of Defendant Nos. 1 and 2 was that, the said
assertions had no nexus with the suit property. The entire case of the
Plaintiffs in regard to the existence of the temple, the celebration of the
festivals including Bagad festival on the occasion of Hanuman Jayanti
over the suit property, the rituals performed therein and the antiquity
thereof went completely untraversed.
25. In the aforesaid backdrop, the Courts below were within their
rights in recording a prima facie finding that there was no controversion
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to the claim of the Plaintiffs in regard to the celebration of Bagad
festival since long. At that stage, the Courts were required to determine
the entitlement for interim relief based on the pleadings and material
on record and justifiably construed the non-traverse against Defendant
Nos. 1 and 2. I find substance in the submission of Mr. Bhuskute that
the subsequent denial in the Written Statement of each and every
assertion in the Plaint does not enure for the benefit of the Defendant
Nos. 1 and 2 in assailing the legality and propriety of the exercise of
discretion by the Courts below.
26. Notwithstanding the abovereferred non-traverse, this Court
proposes to evaluate whether the Courts below have exercised the
discretion on the basis of objective and relevant material. Apart from
the photograph depicting the celebration of Bagad Festival over the
years, the other material placed on record on behalf of the Plaintiffs also
prima facie lends support to the claim of the Plaintiffs.
27. The Sale Deed dated 28th March 1967, purportedly executed by
Bhau Shankar Murkute and others in favour of Ratnakar Bharvikar,
containing the description of the property conveyed thereunder,
becomes relevant under Section 13 of the Evidence Act, 1872,
whereunder any transaction by which the right or custom in question
was created, claimed, modified, recognised, asserted or denied or which
was inconsistent with its existence as well as particular instances in
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which the right or custom was claimed, recognized or exercised or in
which its exercise was disputed, asserted or departed from, would be
relevant facts, where the question is as to the existence of any right or
custom. It is true, prima facie, there is a discrepancy in the description
of the suit property sold under the Sale Deed dated 28 th March 1967,
and the subsequent Sale Deeds dated 24 th August 1987 and 24th
February 2022; the later in favour of the Defendants. Yet, whether the
said description of the property in the Sale Deed dated 28 th March 1967,
recognises the existence of the customary right of the villagers over the
suit property, would be a matter for evidence.
28. The Affidavits of Kasturchand Bahusaheb Murkute and Aniket
Balasaheb Murkute, who claimed to be the co-owners of the land
forming part of Survey No. 288, also become relevant under Section 48
of the Evidence Act, 1872, as when the Court has to form an opinion as
to the existence of any general custom or right, the opinions, as to the
existence of such custom or right, of persons who would be likely to
know of its existence if it existed, are relevant.
29. Though Mr. Anturkar attempted to demonstrate that the
Affidavits of Kasturchand Murkute and Aniket Murkute are bereft of any
value as their names do not find mention in the Record of Rights of
Survey No. 288 as the co-owners, yet, the very stand of Defendant Nos.
1 and 2 belies the said contention. In the reply to the Application for
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temporary injunction, Defendant Nos. 1 and 2 have sought to draw
mileage from the fact that Kasturchand Murkute and Aniket Murkute,
who were initially joined as Plaintiffs Nos. 2 and 7, were required to be
deleted from the array of the Plaintiffs as they were the co-owners of
the larger property and thus could not have asserted customary rights.
30. Lastly, it is necessary to note the situation at site. The existence of
the "Shree Bhairavnath Paduka Mandir" is incontestable. It is also
incontrovertible that, the suit property is situated in front of the said
temple. The fact that the suit property has retained the character of an
open land defying the large scale development at Baner transforming it
into a prime residential area of Pune may also have a bearing at the
final adjudicating.
31. In the light of the aforesaid situation at the suit site and prima
facie material to demonstrate the exercise of the customary right by the
inhabitants of Baner; annually, the exercise of discretion by the Courts
below cannot be said to be either perverse or in violation of the settled
principles of law. Resultantly, the submissions of Mr. Anturkar that
Defendant Nos. 1 and 2's constitutional right to property is infringed
sans any prima facie material in support of the right of the Plaintiffs
cannot be countenanced.
32. In any event, this Court, in exercise of the supervisory jurisdiction
is not expected to reweigh, re-appreciate and review the material on the
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basis of which the Courts below have exercised the discretion. The writ
jurisdiction is corrective in nature. It cannot be converted into an
Appellate jurisdiction in disguise.
33. A useful reference in this context can be made to the Constitution
Bench judgment of the Supreme Court in the case of Rajendra Diwan
vs. Pradeep Kumar Ranibala and Anr, 4 wherein the limits of the writ
jurisdiction were expounded as under:
"85. The power of superintendence conferred by Article 227 is,
however, supervisory and not appellate. It is settled law that
this power of judicial Superintendence must be exercised
sparingly, to keep subordinate courts and tribunals within the
limits of their authority. When a Tribunal has acted within its
jurisdiction, the High Court does not interfere in exercise of its
extraordinary writ jurisdiction unless there is grave
miscarriage of justice or flagrant violation of law. Jurisdiction
under Article 227 cannot be exercised "in the cloak of an
appeal in disguise".
86. In exercise of its extraordinary power of superintendence
and/or judicial review under Articles 226 and 227 of the
Constitution of India, the High Courts restrict interference to
cases of patent error of law which go to the root of the
decision; perversity; arbitrariness and/or unreasonableness;
violation of principles of natural justice, lack of jurisdiction
and usurpation of powers. The High Court does not re-assess
or re-analyze the evidence and/or materials on record.
Whether the High Court would exercise its writ jurisdiction to
test a decision of the Rent Control Tribunal would depend on
4 (2019) 20 SCC 143.
901-WP 16288-2025-J.DOC
the facts and circumstances of the case. The writ jurisdiction of
the High Court cannot be converted into an alternative
appellate forum, just because there is no other provision of
appeal in the eye of law."
34. The upshot of the aforesaid consideration is that, this Court does
not find any jurisdictional error, patent illegality or perversity in the
orders passed by the Courts below. Hence, the impugned order does not
warrant any interference.
35. Resultatnly, the Petition deserves to be dismissed.
36. At the same time, since the Defendant Nos. 1 and 2 would be
deprived of exercising their rights of ownership over the suit property to
the fullest, it would be appropriate that the suit is decided as
expeditiously as possible. Therefore, the hearing of suit RCS No.
639/2024 deserves to be expedited.
37. Hence, the following order:
:ORDER:
(i) The petition stands dismissed.
(ii) The hearing of suit RCS No. 639 of 2024 stands
expedited.
(iii) No Costs.
(iv) Rule discharged.
[N. J. JAMADAR, J.]
