Dodiya Hajabhai Naran vs Shri Jilla Panchayat Junagadh ...
2023 Latest Caselaw 6991 Guj

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    C/SCA/10636/2019                               CAV JUDGMENT DATED: 22/09/2023

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 10636 of 2019


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2      To be referred to the Reporter or not ?                          No

3      Whether their Lordships wish to see the fair copy                No
       of the judgment ?

4      Whether this case involves a substantial question                No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== DODIYA HAJABHAI NARAN Versus SHRI JILLA PANCHAYAT JUNAGADH THROUGH DISTRICT DEVELOPMENT OFFICER ========================================================== Appearance:

MR DEEP D VYAS(3869) for the Petitioner(s) No. 1,2,3,4,5,6,7

MS KHYATI P HATHI(346) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 22/09/2023

CAV JUDGMENT

1. Rule returnable forthwith. Ms. Khayati Hathi, learned advocate waives service of notice of rule for and on behalf of the respondent No.1. Mr. H.S.Munshaw, learned advocate waives service of notice of rule for and on behalf of the respondent No.2.

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2. This petition has been preferred by the petitioners under Article 227 of the Constitution of India with the following prayers:-

"(a) Your Lordships may be pleased to quash and set aside the order dated 16.3.2019 passed in Misc. Application No. 21 of 2018 by Additional District Judge, Porbander;

(b) Pending admission, hearing and final disposal, your Lordship may be pleased to stay the implementation, execution and operation of the order dated 16.3.2019 passed in Misc. Application No. 21 of 2018 by Additional District Judge, Porbander;

(c) Your Lordships may be pleased to grant any other and further relief in the interest of justice."

3. The facts in nutshell are that the petitioners have filed Regular Civil Suit No. 62 of 2009 before the Court below seeking the relief regarding their service against the respondents. The suit filed by the petitioners came to be decreed on 15.9.2017 in favour of the petitioners granting relief regarding the service of the petitioners. Respondent No.1 - Jilla Panchayat, Junagadh seeking to challenge the legality and validity of the judgement and decree, delivered in Regular Civil Suit decided, to prefer the First Appeal under Section 96 of the Civil Procedure Code, 1908 (for short "the CPC") before the Appellate Court, the delay of 240 days is caused in preferring the appeal. Therefore, Civil Misc. Application No. 21 of 2018 was filed by the respondent under Section 5 of the Limitation Act seeking condonation of delay inter alia the averments made in this Civil Misc. Application.

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4. Learned First Appellate Court having considered the averments made in this petition and objections raised thereof by the present petitioners, taking view of substantial justice as well as involvement of the public interest in the issue and taking assistance from the judgement of Hon'ble Apex Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649, to condoned the delay and ordered to register the appeal.

5. The above judgment and order has been assailed by way of this Special Civil Application by the petitioners.

6. Heard Mr. Deep Vyas, learned advocate for the petitioners; Ms. Khayati Hathi, learned advocate for the respondent No.1- Jilla Panchayat, Junagadh and Mr. H.S.Munshaw, learned advocate for the respondent No.2-Jilla Panchayat, Porbandar.

7. Mr. Deep Vyas, learned advocate would submit that learned trial Court has materially erred in condoning the delay ignoring the facts on record as well as settled principles of law. He would further submit that the Jilla Panchayat, Junagadh was well aware about passing of the judgement which is reflected on perusal of the communication dated 22.11.2017, and yet, without mentioning any cogent reason, delay condonation application was moved and

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granted. He would further submit that the learned trial Court has also considered the said delay application without considering the aspect that the delay is not satisfactory explained. He would further submit that perusing the application filed by Jilla Panchayat, Junagadh seeking delay condonation, the pleading therein are in 5 to 6 lines without mentioning that why delay has been caused.

7.1 Learned advocate Mr. Vyas, would further submit that the reasons stated in the delay application indicate that the appeal can be filed by the Jilla Panchayat, once necessary permission has been granted by the higher officer. He would further submit that according to the application for condonation of delay, the Jilla Panchayat, Junagadh did not get the permission within time limit to file the appeal, and therefore, delay has been caused. He would further submit that the application for condonation of delay is cryptic. The delay application does not mentioned as to on which date, Jilla Panchayat has applied for obtaining the permission for filing of an appeal and on which date, such permission has been granted and on which date, it is informed to the advocate for filing the appeal. Therefore, he would submit that the entire application is absurd and vague.

7.2 Learned advocate Mr. Vyas, would further submit that learned Appellate Court did not consider this aspect as such overlooked the settled principles of law. He would further submit that this is classic

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case of red-tapism. The Jilla Panchayat, which is a department of the State Government cannot seek any additional prerogative then the ordinary litigant. He would further submit that Jilla Panchayat in on equal footing with the ordinary litigants. He would submit that this is a fit case which exposes casual approach of the department of the Government occurring in filing of the application for condonation of delay, without explaining long and ordinary delay, and thereto by not assigning any cogent and sufficient reason.

7.3 Mr. Deep Vyas, learned advocate for the petitioners to buttress his submission has referred to the decisions of this Court as well as Hon'ble Apex Court, which are as follow :-

(1) State of Gujarat Vs. Harshadkumar A.Pandya passed in Civil Application No. 3051 of 2020 in Letters Patent Appeal No. 17464 of 2020

(2) Commissioner of Wealth Tax, Bombay Vs. Amateur Riders Club, Bombay reported in 1994 Supp (2) SCC 603.

(3) Ajit Singh Thakur Singh and another Vs. State of Gujarat reported in (1981) SCC 495.

(4) Postmaster General and others Vs. Living Media India Ltd. and another reported in (2012) 3 SCC 563.

(5) P.K.Ramchandra Vs. State of Kerala and another reported in (1994) 7 SCC 556.

(6) Estate Officer, Haryana Urban Development Authority and another Vs. Gopi Chand Atreja reported in (2019) 4 SCC 612.

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7.4 Upon above submissions, learned advocate for the petitioners would submit that to allow this petition and to set aside the impguned order condoning the delay.

8. On the otherhand, Ms.Khyati Hathi, learned advocate appearing for the respondent No.1-Jilla Panchayat, Junagadh would submit that Jilla Panchayat being the Appellate, facing the judgement and decree passed in Regular Civil Suit, as statutory right under Section 96 of CPC to file an appeal questioning the legality and propriety. He would further submit that the statutory rights of the appellant cannot be scuttled on technical consideration. He would further submit that when Government is litigant, there are elements of delay in preferring the appeal. But, the passage of time, which caused in preferring the appeal has been sufficiently explained before the Court below. She would further submit that this Court has the supervisory jurisdiction under Article 227 of the Constitution of India cannot entertain into merits of the case and to rectify the error of understanding of fact or error of understanding of provision of law, until, it is established that the Court below has passed an order in derogation of the substantive law. She has relied upon a judgement of the Division Bench of this Court in the case of State of Gujarat Vs. Bharatbhai Shaluji Baranda, reported in 2019 JX(Guj) 449.

8.1 Learned advocate Ms. Hathi, would further submit that

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the Division Bench of this Court, after referring to the judgment of Postmaster General and Others (Supra), thought it fit to condone the delay. Considering that some privilege has to be given when the litigant party is a department; of the State more particularly, delay which is unintentionally or non-deliberate deserves to be condoned. She would further submit that the Court is expected to endorse pragmatic and in justice-oriented approach rather than technical consideration. She would further submit that the factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of liberal approach. She would further submit that the Court below has granted no relief in favour of the respondent except permitting the respondent to litigate their cause on merits. At the end of her submission, she would submit to dismiss this petition.

9. Mr. H.S.Munshaw, learned advocate appearing for the respondent No.2 -Jilla Panchayat Porbandar has adopted the arguments canvassed by Ms. Khayati Hathi, learned advocate for the respondent No.1 and would submit to dismiss this petition.

10. Regard being had to the rival submissions of both the sides, at the outset, it is required to be noted that the petitioners by way of this petition quarrel that the respondent Jilla Panchayat has not advanced sufficient reason for condonation of delay; no proper particular reasons are assigned in the petition before the First

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Appellate Court and yet Court below taking the soft corner, erroneously granted the delay condonation application.

10.1 It would be apt to refer to a decision in the case of State of Haryana Vs. Cahndra Mani & Ors., reported in AIR 1996 SC 1623, more particularly in para 10, which reads thus:-

"10. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court be it by private party or the State are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an evenhanded manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note making, file pushing, and passing- on-the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justiceoriented process.

The Court should decide the matters on merits unless the

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case is hopelessly without merit. No separate standards to determine the cause laid by the State visavis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the cours or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay."

10.2 A decision in the case of State (NCT of Delhi) vs. Ahmed Jaan reported in (2008) 14 SCC 582, more particularly paras:11 and 12, refer to discuss the catena of decisions to understand what constitutes sufficient cause in condonation of delay, which reads as under :-

"11. "8. The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay, but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N.Balakrishnan v. M. Krishnamurthy it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar

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circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motions of its wheels.

9. What constitutes sufficient cause cannot be laid down by hard- andfast rules. In New India Insurance Co. Ltd. v. Shanti Misra this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression 'sufficient cause' should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

10. In Concord of India Insurance Co. Ltd. v. Nirmala Devi which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.

11. In State of Kerala v. E.K.Kuriyipe it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Article 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the tribunal and remit the matter for hearing on

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merits. It was accordingly allowed, delay was condoned and the case was remitted for decision on merits.

12. In O.P.Kathpalia v. Lakhmir Singh a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be aground to condone the delay. Delay was accordingly condoned. In Collector, Land Acquisition v. Katiji a Bench of two Judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression 'sufficient cause' is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression 'every day's delay must be explained' does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, common sense, pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an ever- handed manner. There is no warrant for according a step motherly treatment when the State is the applicant. The delay was

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accordingly condoned.

13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note- making, file pushing, and passingonthebuck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigantnongrata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Prabha v. Ram Parkash Kalra this Court had held that the court should not adopt an injusticeoriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law.

14. In G. Ramegowda v. Spl. Land Acquisition Officer it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression 'sufficient cause' must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected, but what, in ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the

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acts, omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at crosspurposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have ' a little play at the joints'. Due recognition of these limitations on governmental functioning - of course, within reasonable limits

- is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of governmental functioning is procedural delay incidental to the decision making process. The delay of over one year was accordingly condoned.

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15. It is axiomatic that decisions are taken by officers / agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression 'sufficient cause' should, therefore, be considered with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to an characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide

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the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis- avis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or given appropriate permission for settlement. In the event of decision to file appeal, needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants." The above position was highlighted in State of Nagaland v. Lipok Ao (SCC pp. 757760, paras 8 to 15); Spl. Tehsildar, Land Acquisition v. K.V. Ayisumma and State of Haryana v. Chandra Mani. It was noted that adoption of strict standard of proof sometimes fails to protract public justice, and it would result in public mischief by skillful management of delay in the process of filing an appeal.

12. We find that the appellant had indicated the reasons for the delay in filing and refiling the revision petition. The High Court unfortunately did not deal with those explanations and merely stated that the delay has not been explained. The High Court was required to examine the correctness of the explanation given, keeping in view the principles laid down by this Court in several cases. According to us, the explanations offered were plausible and deserved to be accepted. Accordingly, we set aside the impugned order of the High Court and remit the matter to it to hear the criminal revision on merits. It is made clear that we have not expressed any opinion on merits."

Accordingly it is submitted that sufficient cause is shown and delay is explained as prayed for.

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10.3 In case of Esha Bhattacharjee (Supra ), the Hon'ble Apex Court has laid down principles applicable to the application for condonation of delay they are as follows:-

i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but gross negligence on the part of the counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second

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calls for a liberal delineation.

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

(xiv) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

(xv) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

(xvi) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

(xvii) The increasing tendency to perceive delay as a non-serious

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matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.

11. What perceived from the above settled principles of law that this Court is required to take liberal, pragmatic, non-pendantic but justice-oriented approach while dealing with application for condonation of delay. The term "sufficient cause" should be understood in its proper spirit, philosophy and purpose, regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact situation. Substantial justice stands on higher footing. Avoiding technical consideration is at the centre of course gross negligences or unexplained delay or lack of bonafide are imputable to the party seeking condonation of delay. Therefore, they are significant and relevant nevertheless adherence to strict proof is not condition precedent in deciding condonation of delay. The Court is required to see that there should not be real failure of justice. Reasonableness is in the heart of liberal approach.

12. Keeping in mind the above aspect, if we peruse the impugned order, it appears that the First Appellate Court has taken all pains to address the arguments of both the sides and also to understand the facts of the case and to see that whether the condonation of delay is properly explained. This Court is satisfied with this aspect. No illegality is committed by the Court below in reaching at the conclusion for condonation of delay application. There is no

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imputable factors; which may result into non condonation of delay. Appellant being Government department would be in decision making process; and such decision making process may run through hierarchy . The petitioner failed to point out that this decision making process which result into delay, was malafide or deliberate.

13. To be noted that the supervisory jurisdiction under Article 227 of the Constitution of India is limited in which is enlightened in case of Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4 SCC 181, wherein the Hon'ble Apex Court in para 15 and 16, held as under:-

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order 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 (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction exercised is in the nature of correctional1 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.

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16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-

"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 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."

14. In the background of above aspects, the petitioners have failed to bring case within the four corners to intervene with the impugned order. The judgement on which he has relied on the facts of the case and does not render any assistance to the case of the petitioners.

NEUTRAL CITATION

C/SCA/10636/2019 CAV JUDGMENT DATED: 22/09/2023

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15. For the forgoing reasons, this petition fails and accordingly stands rejected. Rule is discharged.

(J. C. DOSHI,J) BEENA SHAH