Jammu & Kashmir High Court - Srinagar Bench
Mohammad Qasim Mir vs Ghulam Mohammad & Ors on 22 March, 2021
1
Item No. Adm. List 102
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CM (M) No. 42/2021
CM No. 1465/2021 c/w
Caveat No. 265/2021.
Mohammad Qasim Mir. ...Petitioner(s)
Through: Mr. M. S. Latief, Sr. Advocate with
Mr. Zia, Advocate.
V/s
Ghulam Mohammad & Ors. ...Respondent(s)
Through: Mr. Farooq Ahmad Paul, Advocate
CORAM: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
(ORDER)
(Open Court)
Notice.
Mr. Farooq Ahmad Paul, Advocate who is on caveat enters
appearance and waives notice on behalf of the caveators/respondents.
Caveat discharged.
1. This petition is preferred against the order dated 26th February, 2021,
passed by the learned Additional District Judge, Budgam, whereby the
interim order dated 31st December, 2020, passed by the trial court
(Munsiff Budgam), has been vacated.
2. The petitioner was plaintiff before the trial court and in the plaint, the
plaintiff claims possession over a plot of land measuring 16 ½ Marlas,
situated at Mir Mohalla, Khomani Chowk Bemina, District, Budgam,
falling under Survey No. 1518. Interference was alleged on behalf of the
respondent No. 1-8. In the written statement, the stand taken by the
private respondents was that there was a road existing over the plot in
question which has been constructed and macadamized by the R&B
Department and are being used by the residents of Mir-Mohalla Khomani
ABDUL RASHID GANAI
2021.03.25 21:31
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Chowk Bemina. It is also alleged that there is an agreement purported to
have been executed between the plaintiff and the residents of the area for
the user of the said road which as per the defendants passes through the
land in question. However, counsel for the respondents could not readout
the date of its execution.
3. The case set up by the respondents is that assuming the land belongs to
the plaintiff yet as per the agreement he is still estopped from preventing
the defendants from using the road which has been developed and
macadamized by the R&B Department.
4. On a perusal of the order impugned, the appellate Court has observed that
the plaintiff has failed to establish a prima-facie case which would
warrant interference with the order dated 31st December, 2020. The
appellate court was of the view that injunction ought not to have been
granted once the public interest is involved. Reliance was also place on
certain documents produced by the defendants to show that there is a link
road, constructed by the R&B Department for the use of general public
for which Government has issued allotment order No. 719 DDCB of
2018, and an amount of Rs. 2.00 has been sanctioned for the
development and macadamiztion of the said road.
5. Having gone through the material placed on record, it can be seen that the
main argument of the counsel for the petitioner was that the petitioner is
owner of the land measuring 16 ½ marlas and he has a right to prevent
any trespass from the land in question. On the other hand counsel for the
respondents/defendants state that there is an agreement entered into
between the plaintiff and the residents of the area for the user of the road
which appears to be macadamized by the R&B Department. The
plaintiff has not seriously denied the existence of the road over the land
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in question. The learned Additional District Judge, Budgam has
placed reliance on the documents and has come to the conclusion
that there is a road over the land in question, user whereof could not
be denied to the defendants
6. The scope of interference by this Court in exercise of powers under
Article 227 of the Constitution of India, is no longer res integra.
7. In Shalini Shyam Shetty and anr v. Rajendra Shankar Patil,
(2010)8 SCC 329, the Apex Court upon a complete analysis of its
various judgments, carved out the principles to be followed by the
High Courts while exercising jurisdiction under Article 227 of the
Constitution and in paragraph 62 of the judgment in the
aforementioned case, observed as under:-
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. This 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
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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 and the principles in Waryam Singh have been
repeatedly followed by subsequent Constitution Benches and
various other decisions of this Court.
e) According to the ratio in Waryam Singh, followed in subsequent
cases, the High Court in exercise of its 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
has 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
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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 and therefore abridgment by a
constitutional amendment is also very doubtful.
i) 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 Courts. Jurisdiction of
superintendence under Article 227.
j) The power is discretionary and has to be exercised on equitable
principle. In an appropriate case, the power can be exercised suo
motu.
k) 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.
l) 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.
m) This reserve and exceptional power of judicial intervention is not
to be exceeded just for grant of relief in individual cases but should
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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.
n) An improper and a frequent exercise of this power will be
counterproductive and will divest this extraordinary power of its
strength and vitality."
8. Keeping in view the principles laid down by the Apex Court in the
judgment (supra), the powers exercisable under Article 227 cannot be
exercised by the High Courts as a court of appeal.
9. Having gone through the order impugned, I am of the view that there is
no perversity in the same, which would warrant interference by this
court.
10.For the reasons mentioned above, the petition is found to be without any
merit and is, accordingly dismissed along with connected CM(s).
(DHIRAJ SINGH THAKUR)
JUDGE
Srinagar
nd
22 March, 2021.
"Ab. Rashid"
Whether the order is reportable: Yes/No.
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2021.03.25 21:31
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