Ghulam Mohi Ud Din Khan vs Abdul Rashid Khan & Ors

Sanjay Dhar, J

1) Petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India challenging the orders dated 08.10.2020 passed by Munsiff, Tangmarg (hereinafter referred to as the trial court) and order dated 15.11.2021 passed by Principal District Judge, Baramulla (hereinafter referred to as the appellate court). Vide order dated 08.10.2020 passed by the trial court, the application for interim injunction filed by the petitioner herein in the suit, has been dismissed. Vide order dated 15.11.2021 passed by the appellate court, the aforesaid order of the trial court has been upheld with certain modifications.

2) It emerges from the record that petitioner/plaintiff had filed a suit against the respondents/defendants before the trial court seeking an injunction for restraining them from raising construction of house in violation of Municipal laws with a further injunction that they should not encroach upon adjacent land of the petitioner/plaintiff. It was the case of the petitioner/plaintiff that respondent No.1 is raising construction upon the land adjacent to the land of the petitioner/plaintiff in violation of Municipal laws and without leaving any fire gap. Along with the suit, an application for grant of interim injunction was also filed by the petitioner/plaintiff before the trial court. The learned trial court after finding that there is no prima facie case in favour of the petitioner/plaintiff dismissed the application.

3) The learned appellate court, in an appeal filed against the aforesaid order while upholding the order of learned trial court dismissed, the appeal. However, a direction was issued to respondent No.1 that he shall file an undertaking before the trial court to the effect that the construction of the suit house shall be subject to the outcome of the trial and that he shall dismantle, alter or change the same, if so required, at the conclusion of the trial. It was further provided that the said respondent/defendant shall also undertake that he shall not project the truss/roof of the suit house towards the land of the plaintiff and shall ensure that no rooftop snow/rain and sewage/drainage water is thrown towards the plaintiff's land.

4) Both the aforesaid orders have been challenged by the petitioner/plaintiff on the grounds that both the learned courts below have passed the impugned orders without application of mind and in a casual and cavalier manner; that despite there being a report of the Municipal Committee, Kunzar, that there was violation of Municipal bye-laws, the courts below have dismissed the application and appeal of the petitioner; that as per Clause 5.2 of the Building Regulations & Bye-laws, Kashmir Division, 2010, the setback/fire gap has to be 10 feet whereas in the instant case, no such setback/fire gap has, admittedly, been left but this aspect of the matter has been ignored by the courts below; that while passing the impugned orders, the courts below have failed to preserve the lis and that the impugned orders are illegal.

5) I have heard learned counsel for the petitioner and learned counsel for respondents No.1 and 2 who is on caveat. I have also gone through the material on record.

6) Instant petition has been filed under Article 227 of the Constitution of India. The proceedings under Article 227 of the Constitution are supervisory in nature. The power under the said Article is intended to be used sparingly and only in appropriate cases for the purposes of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The Supreme Court in the case of Umaji Keshao Meshram v. Radhikabai, (1986) Supp. SCC 401, has observed that the power under Article 227 may be exercised in cases occasioning grave injustice or failure of justice such as when:

(i) the court or tribunal has assumed a jurisdiction which it does not have;

(ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice; and

(iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction;

7) In Shalini Shyam Shetty and another v. Rajendra Shanker Patil, (2010) 8 SCC 329, the Supreme Court, after analyzing its earlier decisions on the subject, expounded the following principles:

"(a) A petition under Article 226 of the Constitution is different from 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.

(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 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.

8) Having traced the legal position as regards the scope of power of this Court under Article 227 of the Constitution, let us now proceed to analyze the facts of the instant case.

9) The case of the plaintiff is that the defendants are raising construction of their house on a plot of land which is adjacent to a plot of land belonging to the plaintiff and the said construction is being raised in violation of Municipal laws. According to the learned counsel for the plaintiff, the defendants were obliged to leave a fire gap/setback of 10 feet from the boundary wall of the plot of land while raising the construction. This has been contended by petitioner/plaintiff by referring to Clause 5.2 of Building Regulations and Byelaws of Kashmir Division, 2010.

10) As per Clause 1.1(a)(iii), the aforenoted Byelaws would come into force on such date as the Government may by notification appoint. Learned counsel for the respondents/defendants has vehemently contended that these Byelaws have not been notified by the Government. Learned counsel for the petitioner/plaintiff could not produce any such notification that would go on to show that these Byelaws have been notified.

11) It has been noted by the learned appellate court in its impugned order dated 15.11.2021 that as per Municipal laws in force in the area in question, a person raising construction has to leave a fire gap of 6 feet, 3 feet on either side, and in the instant case, the defendants/respondents have left a fire gap of 2 feet 10 inches i.e., less by 2 inches. It is also noted in the impugned order of the appellate court that the plaintiff himself has not left any fire gap from his side as he has constructed a washroom just on the fencing wall towards the land of defendants without maintaining a gap of even a single inch. The Municipal Authorities while filing their report before the trial court have clearly stated that as per applicable building byelaws, a gap of 6 feet in equal ratio of 3 feet each is to be maintained.

12) Thus, the boot is on the other leg, inasmuch as it is the plaintiff who has not left any setback or fire gap whereas the defendants have left a gap of 2feet and 10 inches, which though is less by 2 inches. To this extent there are concurrent findings of the trial court as well as the appellate court. Therefore, this Court in exercise of its jurisdiction under Article 227 of the Constitution cannot venture into determining merits of these findings.

13) Apart from the above, in the instant case, both the trial court as well as appellate court have exercised a jurisdiction which was vested in them and while passing the impugned orders, they have not overstepped the said jurisdiction. The learned appellate court by directing the defendants to file an undertaking, as indicated hereinbefore, has ensured that if at all plaintiff ultimately succeeds in the suit, the raising of construction by defendants would not prejudice his rights. Thus, it is not a case which warrants exercise of supervisory jurisdiction by this Court.

14) For the foregoing reasons, this Court does not find it a fit case where jurisdiction under Article 227 of the Constitution should be invoked. The petition is, accordingly, dismissed along with connected CM being without any merit.