Gujarat High Court
Sureshkumar Ukchand Khandelwal vs The General Manager The Banaskantha ... on 5 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1394 of 2025
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SURESHKUMAR UKCHAND KHANDELWAL & ORS.
Versus
THE GENERAL MANAGER THE BANASKANTHA DISTRICT CENTRAL CO-
OPERATIVE BANK LTD. & ANR.
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Appearance:
MR ANKIT Y BACHANI(5424) for the Petitioner(s) No. 1,2,3,4,5
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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;
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(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
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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
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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.
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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,
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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
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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
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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
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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.
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(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:-
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"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
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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
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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
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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
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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.
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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
