Jammu & Kashmir High Court - Srinagar Bench
Ghulam Nabi Dar vs Union Territory Of Jk And Others on 30 September, 2021
S. No. 47
Before Notice (S)
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM (M) no. 148/2021
CM no. 6527/2021
Caveat no. 980/2021
Ghulam Nabi Dar
...Petitioner(s)
Through: Mr Mohammad Ayoub Bhat, Advocate
Ms Mehjabeena Bhat, Advocate
Versus
Union Territory of JK and others
...Respondent(s)
Through: Mr Shah Aamir, AAG
Mr G. A. Lone, Advocate
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
ORDER
30.09.2021
Caveat no. 980/2021
Heard learned counsel for the caveators. Caveat discharged.
CM disposed of.
CM (M) no. 148/2021
CM no. 6527/2021
1. By this petition filed in terms of Section 227 of the Constitution of India, the
petitioner seeks a writ of certiorari to the effect that the judgment dated 16 th April,
2021 passed by the court of learned Munsiff, Kupwara, for short trial court, in a
suit titled Ghulam Nabi Dar & Anr v. Bashir Ahmed Dar & Anr; judgment dated
31st May, 2021, passed by the court of learned Principal District and Sessions
Judge, Kupwara, for short appellate court, in case titled Ghulan Nabi Dar and anr
v. Bashir Ahmed Dar and another, as also the certificate/ notice dated 15.10.2020
declaring the respondent no. 6 to be the president of the Sumo Owners Association,
Stand No. 1 General Bus Stand Kupwara, be quashed and by a writ of mandamus
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the order dated 2.3.2021 passed by the court of learned Munsiff, Kupwara be
declared legal and operative, on the grounds detailed out in the petition.
2. The brief facts, giving rise to the filing of the petition in hand, are briefly
taken note of in the first instance, thus:
3. The petitioner herein along with one Abdul Gani Mir filed a civil suit titled
Gh. Nabi Dar and another v. Bashir Ahmad Dar and another for grant of decree of
declaration & permanent injunction in favour of plaintiffs/ petitioner herein and
against the defendants/ respondents 5 and 6 herein and the trial court, in terms of
order dated 02.03.2021, while issuing notice to the other side, directed that till next
date of hearing the ARTO Kupwara will make interim arrangement by nominating
three member body for looking the affairs of the association among the members
of the association.
4. Subsequent thereto, the trial court in terms of order dated 16.04.2021,
vacated the interim arrangement made in terms of order dated 02.03.2021. The
petitioner herein, feeling aggrieved of the order dated 16.04.2021 preferred an
appeal against it before the Appellate Court which declined to interfere with the
order impugned before it and accordingly dismissed the appeal. The petitioner is
stated to have filed civil second appeal bearing RSA no. 08/2021 which was
dismissed as withdrawn with liberty to file fresh after the learned counsel for the
appellant/ petitioner herein frankly conceded that the civil second appeal is not
maintainable in the facts and circumstances of the case.
5. The petitioner has now come up with this petition throwing challenge to the
orders of the trial court as also of the appellate court besides challenging the
declaration dated 15th October, 2020, declaring respondent no. 6 as the President of
the Sumo Owners Association, Stand No. 1, General Bus Stand Kupwara.
6. Notice in the matter was waived by Mr Shah Aamir, AAG, and Mr G. A.
Lone, Advocate, on behalf of respondents 1 to 4 and 5 to 7 respectively.
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7. Learned counsel for the caveators/ respondents 5 to 7 Mr G. A. Lone, raised
a preliminary objection as regards the maintainability of the writ petition in hand
filed under Article 227 of the Constitution of India, therefore, the matter was, in
the very first instance, heard in respect of the maintainability of the writ petition.
8. Heard learned counsel for the parties.
9. Mr Mohammad Ayoub Bhat, learned counsel for the petitioner, submits that
the writ petition filed under Article 227 of the Constitution of India is maintainable
in the present case as the trial court as also the Appellate court have traversed their
jurisdiction, therefore, this Court in exercise of its supervisory jurisdiction has to
interfere and quash the impugned orders of the trial court as also the appellate
court.
10. Learned counsel for the petitioner further submits that the supervisory
jurisdiction of this court is not barred to be exercised but is required to be exercised
sparingly and rarely. He submits that the instant case falls in such rarest category
of cases; therefore, the writ petition is maintainable. Learned counsel in support of
his submissions has referred to and relied upon case law reported as 2019 (9) SCC
538.
11. On the other hand, Mr G. A. Lone, learned counsel for the respondents 5 to
7, submits that the writ petition filed in terms of Article 227 is not maintainable in
the instant case as it does not fall within the contours set forth for the exercise of
jurisdiction under Article 227 of the Constitution of India. He submits that no
exceptional circumstance is attached with the case that brings it within the ambit of
rarest category of cases.
12. Learned counsel for the respondents 5 to 7 further submits that the petitioner
has challenged the order dated 16.04.2021, whereby, the interim arrangement made
in terms of order dated 02.03.2021 had been vacated, before the appellate court
which was dismissed and subsequently attempted to challenge it by the medium of
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civil second appeal but withdrew the same later on as he was sure of earning
another dismissal.
13. While seeking dismissal of the writ petition, the learned counsel placed
reliance on the case law reported as 2010 (8) SCC 329; 2019 (9) SCC 538; and
AIR 2020 SC 3433.
14. Considered the submissions made.
15. It is well settled principle of law, that in the guise of exercising jurisdiction
under Article 227 of the Constitution of India, the High Court cannot convert itself
into a Court of appeal. It is equally well-settled, that the supervisory jurisdiction
extends to keeping the subordinate tribunals within the limits of their authority and
seeing that they obey the law. It has been held, that though the powers under
Article 227 are wide, they must be exercised sparingly and only to keep
subordinate Courts and Tribunals within the bounds of their authority and not to
correct mere errors. Reliance in this respect can be placed on a catena of
Judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde
and Ors. V. Millikarjun Bhavanappa Tirumale, Bathutmal Raichand Oswal v.
Laxmibai R. Tarta and Anr., M/s India Pipe Fitting Co. V. Fakruddin M. A. Baker
and Anr., Ganpat Ladha v. Sashikant Vishnu Shinde, Mrs. Labhkuwar Bhagwani
Shaha and Ors. V. Janardhan Mahadeo Kalan and Anr., Chandavarkar Sita Ratna
Rao v. Ashalata S. Guram, Venkatlal G. Pittie and another v. Bright Bros (Pvt)
Ltd., State of Maharashtra v. Milind and Ors., Ranjeet Singh v. Ravi Prakash,
Shamshad Ahmad and Ors. V. Tilak Raj Bajaj (Deceased) through LRs, and Ors,
Celina Coelho Pereira (Ms.) and others v. Ulhas Mahabaleshwar Kholkar and Ors.
16. The civil dispute between the parties, pending before the Court below, out of
which, the impugned orders have been passed, cannot by any stretch of
imagination be declared as order beyond the jurisdiction of the Court or having
exceeded the limits of the authority and disobeying the law. In the view so taken,
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there is no scope for entertaining the petition under Article 227 of the Constitution
of India against the orders impugned. Reference in this regard has been made to the
Judgment of Hon'ble Apex Court reported as 2010 (8) SCC 329 titled 'Shalini
Shyam Shetty v. Rajendra Shankar Patil'. In the said case the Hon'ble Supreme Court
has laid down the following principles to be adhered to:
"(a) A petition under Article 226 of the Constitution is different ffrom
a petition under Article 227. The mode of exercise of power by 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, on 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
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 its
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
(supra) and the principles in Waryam Singh (supra) have been
repeatedly followed by subsequent Constitution Benches and various
other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), 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 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.
AMJAD AHMAD LONE (i) High Court's power of superintendence under Article 227 cannot
2021.10.01 11:46
be curtailed by any statute. It has been declared a part of the basic
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structure of the Constitution by the Constitution Bench of this Court in
the case of L. Chandra Kumar vs. Union of India & others, reported
in (1997) 3 SCC 261 and therefore abridgement 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.
(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 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 counter-
productive and will divest this extraordinary power of its strength and
vitality."
17. On an appreciation of the aforesaid principles laid down by the Apex Court
of the country with regard to exercise of jurisdiction by the High Court under
Article 227 of the Constitution of India, the present case does not in any way fall in
any of the aforesaid principles evolved by the Supreme Court.
18. The Hon'ble Supreme Court in the case supra has also deprecated the
practice of entertaining the petitions under Article 227 of the Constitution by
treating them as routine writ petitions. It would be profitable to reproduce
paragraph 80, 81 and 82 of the judgment herein:
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"80. We may also observe that in some High Courts there
is tendency of entertaining petitions under Article 227 of
the Constitution by terming them as writ petitions. This is
sought to be justified on an erroneous appreciation of the
ratio in Surya Dev (supra) and in view of the recent
amendment to Section 115 of the Civil Procedure Code by
Civil Procedure Code (Amendment) Act, 1999. It is urged
that as a result of the amendment, scope of Section 115 of
CPC has been curtailed. In our view, even if the scope of
Section 115 CPC is curtailed that has not resulted in
expanding High Court's power of superintendence. It is too
well known to be reiterated that in exercising its
jurisdiction, High Court must follow the regime of law.
81. As a result of frequent interference by Hon'ble High
Court either under Article 226 or 227 of the Constitution
with pending civil and at times criminal cases, the disposal
of cases by the civil and criminal courts gets further
impeded and thus causing serious problems in the
administration of justice.
82. This Court hopes and trusts that in exercising its power
either under Article 226 or 227, Hon'ble High Court will
follow the time honoured principles discussed above. Those
principles have been formulated by this Court for ends of
justice and the High Courts as the highest Courts of justice
within their jurisdiction will adhere to them strictly."
19. In another case reported as (2019) 9 SCC, relied upon by both the parties in
the instant case, the Hon'ble Supreme Court has also laid down the same principle
while stressing upon making distinction between certain set of cases. It would be
profitable to reproduce paragraph 13 of the said judgment herein:
"13. Therefore wherever the proceedings are under the
Code of Civil Procedure and the forum is the civil court, the
availability of a remedy under the CPC, will deter the High
Court, not merely as a measure of self-imposed restriction,
but as a matter of discipline and prudence, from exercising
its power of superintendence under the Constitution. Hence,
the High Court ought not to have entertained the revision
under Article 227 especially in a case where specific
remedy of appeal is provided under the Code of Civil
Procedure itself."
20. The preliminary objection raised by the respondent, therefore, prevails and
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is, accordingly, allowed holding the petitioners' Writ Petition as not maintainable.
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21. For all what has been said hereinbefore, the court is of the considered view
that the instant Writ Petition is not maintainable, therefore, dismissed along with
connected CM(s) at its threshold.
22. Parties are granted liberty to pursue the legal remedy available under law.
(Ali Mohammad Magrey)
Judge
Srinagar
30.09.2021
Amjad Lone PS
Whether the order is speaking: Yes
Whether the order is reportable: Yes
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