Syed Hassan Shah And Others vs Ut Of J&K And Others

Supervisory jurisdiction of this court under Article 227 of the Constitution is being invoked by the petitioners seeking quashment of orders dated

8.2.2018, 9.4.2018 and 19.12.2019 (for short impugned orders) passed by the court of Sub Judge, Pattan, (for short the trial court) in suit titled

“Syed Akber Shah and others versus State of J&K and othersâ€​.

In the aforesaid suit the respondents 4 to 7 herein are plaintiffs, while as respondents 1 to 3 as also the petitioners 1 to 4 herein are the defendants.

Before proceeding to deal with the instant petition certain relevant and germane facts are delineated hereunder:

i) A suit for permanent injunction has been filed by the plaintiffs seeking a decree of permanent injunction wherein they claimed to be owners in

possession of land measuring two kanals and 17 marlas falling under survey No. 1583 (02 kanals and 08 marlas) and survey No. 1576 (09 marlas)

situated at Moza Diwer, Yakmenpora, Pattan whereupon residential houses and other concrete structures have been raised and that they are residing

therein. Adjacent to the said property of the plaintiffs another patch of land falling under survey No. 1585 is stated to be existing being state land and

taken over by the villagers claiming the same to be belonging to Imambara and Ziyarat Sharief, Diwer. Upon the said land the government is stated to

have constructed a school building.

ii) The defendants 4 to 8 are stated to have raised a dispute on the spot on behalf of Imambara Committee and sought demarcation of the said land

falling under survey No. 1585 to which the plaintiffs are stated to have agreed to and as a consequence whereof the plaintiffs are stated to have

approached the Director Land Records, Srinagar, and obtained a draft copy of “Aksi Shajra Kashtwarâ€. The defendants 4 to 8 are stated to have

been mislead by erstwhile Patwari of the Halqa, namely Abdul Majeed, regarding the actual boundaries of the land in question.

iii) Upon a consensus arrived at between the parties, defendants 2 and 3 along with a team of Patwaris are stated to have proceeded on spot to

undertake demarcation of the land in question which exercise is stated to have been obstructed by defendants 4 to 8 resulting into forestalling of the

said demarcation. The defendants 4 to 8 are stated to have been trying to raise plinth for constructing a boundary wall on the land in question usurping

the land of the plaintiffs as well, by dislodging and dispossessing the plaintiffs from their proprietary land compelling the plaintiffs to approach the

defendants 2 and 3 for taking an action in the matter, who are stated to have failed to take the same, thus resulting into institution of the suit.

iv) The defendants 4 to 8 in their written statement filed in response to the suit of the plaintiffs admitted the position of the land covered under survey

Nos. 1583 and 1576, however, claimed that the land in question is actually in survey No. 1585 and not in survey Nos. 1583 and 1576, thus having

joined an issue that the plaintiffs under the garb of the land in survey Nos. 1583 and 1576 had encroached upon the land falling under survey No. 1585.

Confronted with the aforesaid stand of the defendants 4 to 8, the plaintiffs filed an application before the trial court seeking demarcation of the land

falling under survey Nos. 1583, 1576 and 1585. The said application upon being contested by defendants 4 to 8 came to be disposed of by the trial

court in terms of order dated 8.2.2018 appointing Tehsildar Singhpora as a Commissioner to be assisted by a neutral team of Revenue officers to be

constituted by him for demarcation of the whole land falling under survey Nos. 1583, 1576 and 1585.

v) The order dated 8.2.2018 has been followed by another order dated 9.4.2018 passed by the trial court while considering two applications â€" one

filed by defendants 4 to 8 seeking review of the order dated 8.12.2018 and another by Tehsildar Singhpora seeking modification of the order dated

8.2.2018 for relieving him as Commissioner of the case. The application for review filed by defendants 4 to 8 came to be dismissed by the trial court

holding that none of the grounds as provided by Order 47 CPC to exercise the review jurisdiction exist in the case, whereas the another application

came to be allowed by it substituting Assistant Commissioner, Revenue, Baramulla as Commissioner for demarcation of the land in question in place

of Tehsildar Singhpora. The said order dated 9.4.2018 is followed by another order passed by the trial court being order dated 19.12.2019 whereby the

application filed by the Assistant Commissioner, Revenue, praying therein for relieving him from the job of Commissioner for demarcation of the land

in question, came to be dismissed reiterating the direction issued to Assistant Commissioner, Revenue, Baramulla, for effecting demarcation of the

land in question as Commissioner appointed vide order dated 9.4.2018.

The aforesaid orders viz. 8.2.2018, 9.4.2018 and 19.12.2019 are being assailed by the petitioners in the petition inter alia on the grounds that the trial

court completely overlooked the legal aspect of the matter as the basic suit filed by the respondents 4 to 7 herein was not maintainable as the same

was pertaining to the state land and urge that even though the plea in this regard had been raised by the petitioners before the trail court, the trial court

failed to frame an issue and decided the case qua the same. The trial court is contended to have adopted a novel procedure while directing the

demarcation of the land in question. The said power of demarcation is contended to be possessed by the Revenue authorities instead of by a civil

court. It is being further urged in the grounds that the trial court should not have appointed the Tehsildar or the Assistant Commissioner, Revenue,

Baramulla as Commissioner in the matter as they were party defendants in the suit. The demarcation of the land in question is contended to have been

aimed at delaying the disposal of the case as the respondents 4 to 7 herein are alleged to have been enjoying state land occupied by them. It is being

further urged that the impugned order violated the principles of natural justice as the petitioners have been deprived of an opportunity to prove their

case before the trial court. Lastly, it is being urged in the grounds that the impugned orders have been passed in haste and without recording reason by

the trial court.

Per contra the respondents 4 to 7 have filed their reply affidavit resisting and controverting therein the contentions raised and grounds urged in the

petition by the petitioners. The respondents 4 to 7 in the first instance have raised a preliminary objection contending that the petition is grossly

misconceived and that the impugned orders do not suffer from any vice or error whatsoever much less a jurisdictional vice or error warranting

invocation of supervisory jurisdiction under Article 227. The respondents 4 to 7 have next contended in their objection that the impugned orders have

been passed by the trial court in exercise of its powers vested in it, after proper application of mind and in context of the pleadings/case set up by the

parties. The impugned orders are contended to have advanced the cause of justice by merely and simply directing demarcation of the property without

deciding any rights of the parties. It is being next contended that even though the petitioners herein in their written statement filed in opposition to the

suit admitted the plaintiffs to be owners of land covered under survey Nos. 1583, 1576, yet claimed that the plaintiffs under the garb of having land in

the said survey numbers encroached upon the land falling under survey No. 1585, thus necessitating the demarcation of the land in question so that the

land falling under said survey Nos. 1583, 1576 and 1585 could be identified.

Heard learned counsel the parties and perused the record.

Learned counsel for the parties while making their submission reiterated the contentions raised and grounds urged in their respective pleadings.

Before adverting to the controversy involved in the instant petition, it would be pertinent and appropriate to refer to law laid down by the Apex court

qua the ambit and scope of supervisory jurisdiction of this court under Article 227 of the Constitution. The Apex court in case titled “Shalini

Shayam Shetty and another versus Rajendra Shankar Pati, reported in 2010 (8) SCC 3291â€​ has laid down as under:

“62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of

the Constitution may be formulated:

(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) 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 moto.

(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 vitalityâ€​.

The Apex court further in “Radhey Shyam and anr. Vs. Chhabi Nath and ors,†reported in 2015 (5) SCC 423, at paragraph 29 has provided as

under, while considering the view taken by the Apex Court in case titled as “Surya Dev Rai vs. Ram Chander Rai and ors,†reported in 2003 (6)

SCC 675 qua the provisions of Article 226/227 of the Constitution:

“Accordingly, we answer the question referred as follows:

(i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution;

(ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226. Contrary view in Surya Dev Rai is overruled.

The warp and woof under the shade of which the entire controversy raised in the instant petition revolves is that as to whether the trial court could

have in law, directed demarcation of the land in question covered in the pleadings of the parties and recorded under survey Nos. 1583, 1576 and 1585,

for just adjudication of the case.

Perusal of the record reveals that order dated 8.2.18 indisputably has been passed by the trial court upon filing of an application by the plaintiffs

seeking demarcation of the suit property falling under survey Nos. 1583, 1576 and 1585 manifestly on account of the stand taken by the defendants 4

to 8 in their written statements that the plaintiffs under the garb of their land covered in survey Nos. 1583 and 1576 have encroached upon the land

covered under survey No. 1585 being state land. The trial court seemingly has considered the application taking into account the pleadings of the

parties and law laid down by this court in cases titled “Rifat Ara Vs. S. Karan Singh Raina reported in 2010 (I) SLJ 52†and “Ghulam Hassan

Vs. Sudarshan Katyal reported in 2009 (I) SLJ 287â€. The trial court while passing the impugned order has rightly observed and opined that the

demarcation of the land in question would in essence lessen the controversy involved in the case between the parties. The impugned order has not

determined any of the rights of the parties.

Further perusal of impugned order dated 9.4.2018 reveals that the review application filed by petitioners herein has been rightly rejected by the trial

court as well on the settled principles and prepositions that none of the grounds enumerated under Order 47 CPC exist warranting review of order

dated 8.2.2018.

The contentions raised and urged in this regard by the petitioners in the instant petition are misconceived and misplaced. The impugned order as well

has not either adjudicated upon or determined any of the rights of the parties involved in the case.

Further perusal of the other part of the impugned order dated 9.4.2018 pertaining to the application filed by Tehsildar Singhpora would reveal that

the trial court has rightly allowed the said application for substitution of Tehsildar Singhpora by Assistant Commissioner, Revenue, Baramulla to be as

Commissioner for demarcation of land in question for that the Tehsildar Singhpora is a party defendant in the suit and his appointment as

Commissioner for demarcation of the land would not have been in tune with the principles of equity, fair play and goods conscience. The said

Assistant Commissioner, Revenue, Baramulla is not party impleaded in the suit as has been contended by the petitioners in the petition, as such, the

said contention of the petitioners is turned down being factually incorrect.

Further perusal of impugned order dated 19.12.2019 would reveal that the trial court while proceeding ahead with the trail of the case has directed

the Assistant Commissioner, Revenue, Baramulla, to effect the demarcation of the land in question and dismissed his application seeking his exemption

from effecting the said demarcation and has called upon the Assistant Commissioner to effect demarcation and submit a report without any further

delay. The challenge thrown to the impugned order as well in this regard by the petitioners is totally misconceived and misplaced.

A conjoint reading of impugned orders does not reflect any perversity much less a patent one or else gross and manifest failure of justice or the

basic principles of natural justice.

Having regard to what has been observed, considered and analyzed hereinabove in particular keeping in mind the position of law laid down by the

Apex court in “Shalina Shayam Shetty†case, supra, the invoking of supervisory jurisdiction by the petitioners in the petition in hand is declined in

the facts and circumstances of the case. Resultantly, this petition fails and is accordingly dismissed.

It is made clear that nothing hereinabove shall be construed to be expression of any opinion on the merits of the case.