Gujarat High Court
Mamtaben Rakesh Medtiya vs Jayantibhai Narsinh Patel on 16 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1648 of 2014
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MAMTABEN RAKESH MEDTIYA
Versus
JAYANTIBHAI NARSINH PATEL & ORS.
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Appearance:
MS AKSHITA MOHNOT(12118) for the Applicant(s) No. 1
DR. HARDIK K RAVAL(6366) for the Respondent(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 1
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 3
RULE SERVED TO CONCERNED POLICE STATION HOWEVER, SERVICE
REPORT NOT FILED BY POLICE STATION for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 16/06/2025
ORAL ORDER
1. The present petition is filed to challenge the order passed
by the Sub-Division Magistrate, Valsad in Case No.
MAG/Nuisance Case No.4/509 of 2012 approved and confirmed
by the learned Sessions Court, Valsad in Criminal Revision
Application No.45 of 2013.
2. Briefly stated facts taken from the pleading are as under:
2.1 That the petitioner is the owner of the firm - Bhavani Tin
Fabricators. It is a complaint under Section 133 of Code of
Criminal Procedure, executed stating that petitioner is running
tin fabrication work within the residential premises which
creates noise nuisance. The complaint was registered by the
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Executive Magistrate and issued notice under Section 135 of
Code of Criminal Procedure and initiated the case. The Executive
Magistrate, following the procedure laid down in the Chapter 10
of the Code of Criminal Procedure, more particularly in 10(B),
with regards to public nuisance and after calling the report from
the concerned, believed that the petitioner is causing public
nuisance within the definition and thus, by exercising power,
passed the order under Section 138 of Code of Criminal
Procedure on 30.04.2013 and directed to close the factory of the
petitioner as it was causing public nuisance.
2.2 Being aggrieved and dissatisfied by the said order,
petitioner preferred Criminal revision under Section 397 of the
Code of Criminal Procedure before the learned Sessions Court,
Valsad vide Criminal Revision Application No.45 of 2013.
Learned Sessions Judge, after hearing learned advocates for
both the sides, by a judgment and order dated 30.01.2014,
pleased to reject the revision as such confirmed the order passed
by the Executive Magistrate.
2.3 Hence the present petition.
3. Learned advocate appearing for the petitioner while
assailing the impugned orders, submits that the learned Courts
below committed serious and gross error in passing drastic
orders of closing Bhavani Tin Fabricators believing that it is
causing public nuisance. However, there is no specific report on
record which indicates that working of Bhavani Tin Fabricators
caused inconvenience and public nuisance to the public at large.
Learned advocate for the petitioner further submits that the
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learned Executive Magistrate exceeded jurisdiction vested under
Section 133 of the Code of Criminal Procedure and went on to
decide that the petitioner, without obtaining NA permission from
the competent authority, started factory in the residential
premises and thus, such act of the petitioner is causing public
nuisance. Learned advocate appearing for the petitioner submits
that the Executive Magistrate cannot inter mix its jurisdiction
available under the Bombay Land Revenue Court with the
jurisdiction available under the Code of Criminal Procedure. This
argument was made in connection of finding that, Bhavani Fin
Factory in residential area, is amount to violation of NA
permission, hence for this violation, Bhavani Tin Factory needed
to close.
4. Learned Advocate for the petitioner further submits that
before passing a drastic order of closing the fabrication unit of
the petitioner, the learned Executive Magistrate must have a
reason to believe that, by act of the petitioner, public nuisance is
caused and not private nuisance. Learned advocate appearing
for the petitioner, has taken this Court to impugned order
confirmed by the learned Revisional Court and submits that
none of the Court have addressed the issue that whether
running of Tin Fabrication unit in residential area is causing
public nuisance or not. Therefore, he submitted that the
impugned orders are against the settled principle of law and
passing the order to close business unit of the petitioner by
learned Executive Magistrate or SDM, confirmed by the Learned
Sessions Court, lead to manifest and gross error.
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5. Mainly on above plank of submissions, learned advocate
for the petitioner submits to allow the present petition and to
quash and set aside the impugned orders passed by the learned
Courts below.
6. Per contra, learned advocate Mr. Hardik K. Raval appearing
for the respondent, referred to concurrent judgment and orders
passed by the learned Trial Courts and submits that in
residential premises, petitioner without getting any NA
permission, converted use of residential purpose to business
purpose and started tin factory and were manufacturing tin
articles every day. Day in-day out there was a noise of forging of
tin and was creating annoyance and nuisance to the public at
large living in the vicinity. This complaint of the respondent No.2
was addressed by learned SDM and believed that running of tin
factory in residential premises is causing public nuisance.
Subsequently there too, Learned Sessions Court in revision also
re-appreciated the said facts in background of provisions of the
law and believed that since running of tin factory in residential
premises caused nuisance, the order passed by the SDM is
correct and requires no interference. The revision is therefore
dismissed. He further submits that the petitioner has failed to
put forth any different aspects which permits this Court to
interfere with the concurrent findings under the supervisory
jurisdiction.
7. On above submission, learned advocate Mr. Hardik K.
Raval submits to dismiss the present petition.
8. Learned APP adopted the arguments of learned advocate
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Mr. Hardik K. Raval and further submitted that the order passed
by the SDM has been executed in recent past and tin fabrication
factory of the petitioner, running in the residential premises has
been closed and therefore, since order is already executed, thus,
he prays this Court not to interfere with the impugned orders.
9. As regard to the rival submissions canvassed by the
learned advocates appearing for both the sides, at the outset, let
refer Section 133 of the Code of Criminal Procedure, which reads
as under:
"(1) Whenever a District Magistrate or a Sub-
divisional Magistrate or any other Executive
Magistrate specially empowered in this behalf by
the State Government on receiving the report of a
police officer or other information and on taking
such evidence (if any) as he thinks fit, considers
(a) that any unlawful obstruction or
nuisance should be removed from any
public place or from any way, river or
channel which is or may be lawfully used
by the public, or
(b) that the conduct of any trade or
occupation or the keeping of any goods or
merchandise: is injurious to the health or
physical comfort of the community, and
that in consequence such trade or
occupation should be prohibited or
regulated or such goods or merchandise
should be removed or the keeping thereof
regulated: or
(c) that the construction of any building, or
the disposal of any substance, as is likely
to occasion conflagration or explosion,
should be prevented or stopped, or
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(d) that any building, tent or structure, or
any tree is in such a condition that it is
likely to fall and thereby cause injury to
persons living or carrying on business in
the neighbourhood or passing by, and that
in consequence the removal, repair or
support of such building, tent or structure,
or the removal or support of such tree, is
necessary, or
(e) that any tank, well or excavation
adjacent to any such way or public place
should be fenced in such manner as to
prevent danger arising to the public, or
(f) that any dangerous animal should be
destroyed, confined or otherwise disposed
of,
Such Magistrate may make a conditional
order requiring the person causing such
obstruction or nuisance. or carrying on
such trade or occupation, or keeping any
such goods or merchandise, or owning,
passessing or controlling such building,
tent, structure, substance, lank, well or
excavation, or owning or passessing such
animal or tree, within a time to be fixed in
the order-
i) to remove such obstruction or
nuisance; or
(ii) to desist from carrying on, or to
remove or regulate in such manner as
may be directed, such trade or
occupation, or to remove such goods
or merchandise, or to regulate the
keeping thereof in such manner as
may be directed; or
(iii) to prevent or stop the construction
of such building, or to alter the
disposal of such substance; or
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(iv) to remove, repair or support such
building, tent or structure, or to
remove or support such trees; or
(v) to fence such tank, well or
excavation; or
(vi) to destroy, confine or dispose of
such dangerous animal in the manner
provided in the said order; or, if he
objects so to do, to appear before
himself or some other Executive
Magistrate subordinate to him at a
time and place to be fixed by the
order, and show cause, in the manner
hereinafter provided, why the order
should not be made absolute.
(2) No order duly made by a Magistrate under this
section shall be called in question in any civil
Court."
10. Perusal of the aforesaid provisions indicates that the
District Magistrate/SDM or any other Executive Magistrate is
specially empowered/ authorized in this behalf by the State
Government, to pass unconditional order for removal of
nuisance, if on a complaint of any person or from police report or
any other form of information received by him. The Executive
Magistrate or the concerned Magistrate is also authorised to take
evidence, if he thinks fit. Sub-clause (b) of Section 133 of the
Code of Criminal Procedure, empowers the concerned Magistrate
to stop conduct of any trade, if it is found injurious to health and
physical comfort of the community. What needed to prove is
that, the act of the complainant is injurious, physical or
otherwise to community at large.
11. The Hon'ble Supreme Court in the case of Vasant Manga
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Nikumba Vs. Baburao Bhikhana Naidu (1995 Supp (4) SCC 54)
observed that the nuisance is an inconvenience which materially
interfere with the ordinary physical comfort of human existence.
It is not capable of precise definition.
12. It is observed by the Hon'ble Apex Court in the case of
Vasant Manga(Supra) that Public nuisance is defined in Section
268 of the Indian Penal Code meaning an offence against public
either by doing a thing which tends to cause annoyance of the
whole community in general or by neglect to do anything which
he is obliged to do and thereby causing common injury, danger
or annoyance to the public or to the people in general who dwell
or occupy the property in the vicinity.
13. Indeed, the proceeding under Section 133 of the Code of
Criminal Procedure is not intended to settle private dispute or a
substitute to settle civil dispute. Exercise of power under Section
133 of the Code of Criminal Procedure should be one of judicial's
discretion category and when fact for its existence are present,
has to be exercised objectively on pragmatic considerations.
14. Rajasthan High Court, in case of Himmat Vs. Bhagwana
1988 in Cr LJ 614 (at page 618), held that, noisy trade,
spreading sand-laden wind containing particles of fodder in
residential houses do cause public nuisance.
15. The case on hand showcase that the petitioner is running
Bhavani Tin Fabricators factory in a Vaishali Park Society,
Kailash Road, Village Paradi, Sandhpor. It is admittedly proved
that the Society is a residential vicinity and all the plots of the
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Society is used or to be used for the purpose of raising the
residential construction. It is undeniable aspect that, within the
periphery of 10 meters of Bhavani Tin Factory, primary school is
running and within periphery of 20-25 meters, secondary school
is running. Petitioner could not deny that the premises which he
has used for tin fabrication, is permitted for residential use only
and not for the purpose of carrying trade, business or
manufacturing activity. It is equally undeniable that to fabricate
the tin and to manufacture certain tin articles, forging of tin is
necessary and creating such noise within residential area,
creates the public nuisance. Petitioner could not point out that
how his activity of forging tin within residential area does not
create any nuisance or annoyance and does not adversely
objecting the health of the public in vicinity. The SDM has called
the report from Medical Officer, Valsad District and Gujarat
Pollution Control Board before deciding the matter, however,
none of them have forwarded any report stating that no nuisance
is caused. The order of SDM also indicates that Paradi,
Sandhpor Gram Panchayat issued a notice to petitioner for
running factory illegally in the residential premises. Learned
advocate for the petitioner, however, submits that the letter of
Sarpanch- Paradi, Sandh Panchayat permitted him to run tin
fabrication unit in the residential premises. However, looking to
the Panchayat Act, Sarpanch has no authority to grant any such
permission and therefore, if any such permission is granted by
the Sarpanch of the Gram Panchayat it is not of any use. The
evidence on record also demonstrate that tin fabrication was
running inside the bungalow and 5-6 persons were working in
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the tin factory. Learned advocate for the petitioner could not
come out from these aspects that tin fabrication work with in the
residential vicinity does not create any nuisance or annoyance to
public at large.
16. Argument was raised that, Primary and secondary school
running in periphery have issued no objection in favor of the
petitioner to run tin fabrication unit. The NOC has not been
considered by the SDM or learned Senior Court. I'm totally
unimpressed by such argument. Principal/trustee of
primary/secondary school have no locus or business to issue no-
objection certificate. Noise nuisance or annoyance caused by
forging tin in fabrication unit is not personna cause. It is cause
in rem. It affects life and health of students and other teachers.
In that view, NOC issued by President/Principal/trustee of the
schools have no implication in favor of the petitioner.
17. In case of Shah Pushpaben Vs. State of Gujarat reported in
2013 (2) GLR 1587, the Coordinate Bench in regards to making
Crisp Cake within the residential premises, reversing the order of
learned Sessions Court, believed that installation of machines
within the residential premises for making crisp cake and
running a manufacturing unit there, would cause annoyance
and nuisance. Relevant observation & findings are as under:
"5. It seems that the Ld. Sessions Judge has failed
to consider the fact that volume of evidence is not
material but contents, nature and authenticity of
evidence is material for coming to a particular
conclusion. Inasmuch as though the Ld. Sessions
Judge has referred the statement and affidavit of
some persons, wherein, there is clear statement
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that the machine in dispute is creating noise and
heavy vibrations, which effects the health of the
persons residing in the area and that due to
running of the machine, they cannot sleep and
their children cannot study, even after such
observation, the Ld. Sessions Judge has discarded
the same on the ground that there is no complaint
from the management of the nearby Girls School
Authority, and decided that there is no nuisance.
Whereas, on the other hand, the Ld. Sessions
Judge determined that when there is no specific
pleading of damage or discomfort to any person,
question does not arise to record statement of
neighboring persons and thereby to accept the say
of neighboring persons. On such presumption, the
Ld. Sessions Judge has considered the grievance
of the petitioner as apprehension without any base
and substance and imaginary. Thus, practically,
though the Ld. Sessions Judge has accepted that
machine was installed at the given place and
instead of determining the issue whether the
installation of machine and activities by
respondent No.2 is creating nuisance as alleged by
the petitioner, the Ld. Sessions Judge has
straightway entered into the probability and
locusstandi of the petitioner as well as existence of
cause of action and evaluated the evidence for a
determination that order of the SDM, Dabhoi is
illegal, perverse and bad in law. Such conclusion
is in Paragraph 13 of the impugned judgment.
6. Whereas the record shows that practically the
SDM, Dabhoi has taken care of the issue by
considering at least statements and/or affidavit of
ten persons and detailed submissions by the
petitioner, both in the form of her complaint as well
as in her statement before him. The SDM has also
relied upon the Panchnama of the place of incident
drawn by two independent panch witnesses. The
order of the SDM, Dabhoi also confirms that he has
passed an interim order on 14.10.2004 restricting
the respondent No.1 to run an automatic machine
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at first floor of house No.4/13/261 and to avoid
from entering into or doing any activity, which
disturbs the health and peace of neighbors. The
SDM, thereafter, initiated a full fledged inquiry
vide registered Case No.2 of 2004 against
respondent No.2 and recorded statement of the
several persons and permitted respondent No.2 to
even crossexamine the complainant.
7. After considering the rival submissions and rival
allegations and Inquiry Report by Circle Officer,
Dabhoi, the SDM has, by order dated 28.6.2007,
while confirming his interim order dated
14.10.2004, allowed the application/complaint of
the present petitioner and directed respondent No.
2 not to install an automatic machine for Papad
manufacturing at the first floor of the residential
premises of the petitioner and if such machine is
installed at such place, then to remove the same.
The SDM has also conveyed to respondent No.2
that he may file an appeal within 30 days before
the Competent Court, if he is aggrieved by such an
order. Such order is in detail, wherein, the SDM
has considered all the relevant aspects and
evidence. before him after giving proper and
reasonable opportunity to respondent No.2 before
passing such an order.
8. Therefore, when there is neither any irregularity
nor perverseness in the proceedings before the
SDM, Dabhoi, the determination by the Ld.
Sessions Judge that such order is illegal, perverse
and bad in law, cannot sustain. A
9. So far as legality of the order is concerned, as
discussed hereinabove, the relevant issue which
requires consideration is now limited to the
question that whether such nuisance can be
controlled by an order u/S.133 of the Cr.P.C. by
SDM or not- Because so far as factual aspect is
concerned, the SDM has dealt them in detail and if
there is automatic machine with heavy noise, then,
it will certainly create a nuisance. The defence of
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respondent No.1 that nobody except petitioner has
came forward with such application is not tenable
for the simple reason that in any illegal act, there
may be only one complaint and rest of the victims
or effected persons may be witnesses only. In
short, every victim or effected person do not have
to file a separate complaint for the same incident
by the same person. It is sufficient, if neighborers
support the complaint filed by the petitioner, which
is done in the present case. Though, the Ld.
Sessions Judge has dealt with several cases that
may be cited before it by respondent No.2, being
applicant before the Sessions Court, the reference
of the case of Branch Manager, Vijya Bank V/s.
State of Gujarat (Supra), itself is sufficient,
wherein, the High Court has decided that power of
Executive Magistrate to pass appropriate order in
public nuisance is only after passing a conditional
order. In a reported case, the complaint was
regarding installation of two airconditioners in the
Bank. The High Court has held that utilization of
two airconditioners for the bank premises would
not result or amount to public nuisance and
therefore, Magistrate could not straightway pass
final order without holding inquiry. Whereas, in the
present case, Magistrate has initially passed a
conditional order and then hold detailed inquiry
before coming to the conclusion that activity by
respondent No.2 is creating a public nuisance and
thereby such judgment would not help the
respondent No.1.
10. Similar is a position in the reported case of
Shantilal Nagardas Shah V/s. Vora Rahimbhai
Jusabhai and others, reported in 1984 GLH 1090,
wherein, the High Court has held that if there is
inconvenience to certain person, then Sec. 133 of
the Cr.P.C. would not apply since it is not a public
nuisance. There cannot be any dispute to such
legal position but as discussed, factual details are
different, inasmuch as so far as present case is
concerned, there is sufficient evidence before the
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Executive Magistrate regarding creation of
nuisance by respondent No.2 and thereby this
judgment would also not help the respondent.
11. The respondent has also relied upon the full
bench judgment of the Apex Court in the case of
Suhelkhan Khudyarkhan and Anr. V/s. State of
Maharashtra and Ors, reported in AIR 2009 SC
1868, wherein, three Judges of the Apex Court
had, while considering the provision of Section 133
of the Cr.P.C. and the term "Public nuisance",
which reconfirm the decision in Vasant Manga
Nikumba V/s. Baburao Bhikanna Naidu (1995
Supp (4) SCC 54), observed that nuisance is an
inconvenience which materially interferes with the
ordinary physical comfort of human existence. It is
not capable of precise definition. The nuisance is
the concomitant act resulting in danger to the life
or property due to likely collapse etc. Even the
expression of the word "community in Clause (b) of
Section 133(1) is also highlighted. However,
respondent No.2 has failed to consider that even
after some discussion and observation, the full
bench of the Apex Court has confirmed the order of
the SDM, by which, even the books store was
ordered to be removed from a tenanted premises,
where, he had erected a tin shed and running
religious bookshop known as R.K. Kitab Ghar.
12. 12. Thus, when the full bench of Apex Court
has not allowed to run a religious bookshop in a
residential premises, how a small industry with
heavy duty grinding machine can be permitted to
run- For coming to such conclusion, the full bench
of Apex Court has practically relied upon the case
of Kachrulal Bagirath Agrawal V/s. State of
Maharashtra, reported in 2005(9) SCC 36. It would
be necessary to recollect here the observation of
the Apex Court in AIR 2008 SC 48 in the case of
Dhampur Sugar Mills Limited V/s. State of Uttar
Pradesh, wherein, with reference to the case
between Ratlam Municipality V/s. Vardichan
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reported in 1980(4) SCC 162, the Supreme Court
has observed as under:
"41. In Ratlam Municipality V/s.
Vardichan, (1981) 1 SCR 97: (1980) 4 SCC
162: some residents of Ratlam
Municipality moved the SubDivisional
Magistrate under Section 133 of the Code
of Criminal Procedure, 1973 for abatement
of nuisance by directing the municipality
to construct drainpipes with flow of water
to wash the filth and stop the stench. The
Magistrate found the facts proved and
issued necessary directions. The Sessions
Court, in appeal, reversed the order. The
High Court, in revision, restored the
judgment of the Magistrate and the matter
was carried to the Supreme Court.
42. Krishna lyer, J. pithily summarized
the principle thus:
"The key question we have to answer is
whether by affirmative action a court can
compel a statutory body to carry out its
duty to the community by constructing
sanitation facilities at great cost and on a
timebound basis. At issue is the coming of
age of that branch of public law bearing
on community actions and the court's
power to force public bodies under public
duties to implement specific plans in
response to public grievances."
43. Holding the provision obligatory, the
Court observed;
"Judicial discretion when facts for its
exercise are present, has a mandatory
import. Therefore, when the subDivisional
Magistrate, Ratlam, has, before him,
information and evidence, which disclose
the existence of a public nuisance and, on
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the materials placed, he considers that
such unlawful obstruction or nuisance
should be removed from any public place
which may be lawfully used by the public,
he shall act.......This is a public duty
implicit in the public power to be exercised
on behalf of the public and pursuant to a
public proceeding". (Emphasis supplied)
44. We do not wish to refer to other cases
on the point. We are, however, in
agreement with the observations of Earl
Cairns, L.J. in Julius referred to above
wherein His Lordship stated;
A "(W)here a power is deposited with a
public officer for the purpose of being used
for the benefit of persons who are
specifically pointed out, and with regard
to whom a definition is supplied by the
Legislature of the conditions upon which
they are entitled to call for its exercise,
that power ought to be exercised, and the
Court will require it to be exercised."
(Emphasis supplied)
13. It is also necessary to recollect here the
decision by the Apex Court rendered in 2005 SC
3136, wherein, the Supreme Court has taken into
consideration the relevant aspect of the noise
pollution. After referring several statutes, reports
and definitions of the word 'noise" and "pollution"
from different sources, the Apex Court has
observed as under for considering that noise is
also a pollution and it requires to be controlled, in
the matter before the Apex Court, which raises
certain issues of far reaching implications in day to
day life of the people in India relatable to noise
pollution visavis right to life enshrined in Article 21
of the Constitution as interpreted in its wide sweep
by the constitutional Courts of the country. Since
several paragraphs of such reported judgment are
relevant for the present case, sum and substance
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of such Paragraphs are listed herein avoiding
reproduction of all such paragraphs. Noise is more
than just a nuisance. It constitutes a real and
present danger to people's health. Day and night,
at home, at work, and at play, noise can produce
serious physical and psychological stress. No one
is immune to this stress. Though we seem to
adjust by ignoring it, the ear, in fact, never closes
and the body still responds sometimes with
extreme tension, as to a strange sound in the
night. (Please refer Paragraphs 7, 23 and 25 of the
said Judgment). Noise is a type of atmospheric
pollution. (Please refer Paragraph 22 of the said
Judgment). Noise would result into hearing loss,
difficulty in falling asleep, effect on performance
and physiological effects. (Please refer Paragraphs
25, 28, 30 and 31 of the said Judgment). In
paragraphs 32 to 39, the Apex Court has
discussed and listed the effect of noise pollution in
further details.
14. In view of the facts, circumstances and
discussions, it is clear that judgments referred by
respondent No.2 and the Ld. Sessions Judge are
particularly dealing with the facts and
circumstances of particular case only and not
deciding the law. More particularly, after the
judgment of full bench of Apex Court in the case of
Suhelkhan Khudyarkhan and Anr. V/s. State of
Maharashtra and Ors. (Supra) as well as case
regarding noise pollution reported in AIR 2005 SC
3136, which is referred hereinabove, factually also
the facts remain that respondent No. 2 is
restrained from utilizing heavy duty machines at
the given place since 14.10.2004. That order was
continued till impugned judgment delivered by the
L.d. Sessions Judge on 4.7.2008 and the order of
the L.d. Sessions Judge was stayed by this Court
on 26.09.2008. Therefore, practically respondent
No. 1 is restricted from utilizing such heavy duty
machines at a given place since last almost 10
years. The fact remains as admitted by
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respondent No.2 that now they have occupied
suitable place at some distances but they are keen
to shift their activities as to save some amount of
rent."
18. Applying aforesaid consideration in the present case, I find
that the SDM and learned Sessions Court have not committed
any material illegality in passing the impugned orders.
19. Since, interference to impugned order is called under
Section 227 of Constitution of India, with profit, I may refer to
the judgment of Hon'ble Apex Court in case of Garment Crafts
Vs. Prakash Chand Goel reported in (2022) 4 SCC 181, wherein,
the Hon'ble Apex Court has discussed the nature of scope of the
supervisory jurisdiction under Article 227 of the Constitution of
India. Relevant discussion in para 15 and 16 reads thus:-
"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
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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., (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
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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."
20. In view of above, I see no reason to interfere with the
concurrent finding. Resultantly, the present petition is
found merit-less and dismissed accordingly.
21. Notice Discharge. Interim relief, if any, to be
discontinued.
(J. C. DOSHI,J)
AHS
