This application has been preferred under Article 227 of Constitution of India, challenging the legality and validity of the order dated 29th September, 2010 passed by learned Addition District Judge, Surat in Misc. Civil Appeal No. 20/2010 whereby he set-aside the order passed by learned Small Cause Court, Surat dated 23rd October, 2008 . Petitioner is running school situated and constructed on the suit land . It was rented to the petitioner for monthly rent of Rs.3000/- by way of a rent note. It is averred that the same was given for running school and there is no arrears of rent. Petitioner since was running the school, it was not possible to vacate . However, respondent in the year 2008, as property prices have skyrocketed asked petitioner to vacate the same . Petitioner filed the suit being Small Cause Suit No. 11 of 2008 where the application for interim injunction was given. The trial Court granted the order of status-quo vide its order dated 25th January, 2008. Court Commission was also done and after hearing both the sides, such an order was extended till final disposal of the suit.
Being aggrieved by the same, respondent herein filed an appeal against the said order before the District Court after delay of one year. Respondent paid the cost of Rs.5,000/- when delay was condoned and such an order of condonation of delay was challenged in this Court in SCA No. 8914 of 2010 which was withdrawn by the petitioner for filing the review application.
Misc.Civil Appeal which was preferred by the respondent came to be decided where Court set-aside the order of trial Court, vacating the order of status-quo granted in his favour of the present petitioner. This is the case of present petition where petitioner has lamented the fact that Court fails to consider the issue of possession which was admittedly with the petitioner. It is the question of life of 600 students who are studying in day and night shift. He therefore, urged to set-aside the said order, restoring the order of the trial Court.
As can be noted from the order of the trial Court monthly rent is shown at Rs.3000/- and thus the yearly rent would be of Rs.36,000/-. Premises is said to have been rented by the above terms.. Court noted the report of Court Commissioner and it was of the opinion that if the upper floor of the said premises was not rented as contended by the respondent herein, it is unlikely that respondent would maintain silence for all the 10 years. In such circumstances, Court found the prima facie case of the respondent owner and also fact that the balance of convenience was also in favour of the respondent herein.
Appellate Court did not believe prima facie case of the petitioner mainly on the ground that it did not approach with clean hands. Court also was of the opinion that rent note did not indicate that the entire building was given on rent .The rent note mentioned the ground floor, first floor and the area surrounding the said building. On the ground that the plaintiff-petitioner had misrepresented its case before the Court as the rent note was only for the period of 11 months at no point of time, claim was made in respect of the 2nd Floor. Court also disbelieve that 600 students studied in such premise and therefore, also disbelieving the case of petitioner-plaintiff, it allowed the appeal setting-aside the order of trial Court.
Both the sides have made their submissions fervently in support of the same.
1. Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in [2010 (0) GLHEL-SC48744]
2. Rajnibai Alias Mannubai Vs. Kamla Devi reported in [1996(0) GLHEL-SC 22855 ]
3. N.Umapathy Vs. B.V.Muniyappa reported in [1997(0) GLHEL-SC-18824 Heavy reliance is placed by respondent on the ratio rendered in case of Shalini Shyam Shetty (Supra) to urge this Court not to exercise its powers on the ground that writ petition is a remedy in public law where main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. It further held that in cases of property rights and in disputes between private individuals, writ Court should not interfere unless there is infraction of statute or a private individual is acting in collusion with the statutory authority.
It would be profitable to enumerate principles formulated by the Court in the said authority.
:
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 (AIR 1954 SC 215) (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 v. Union of India and others, reported in (1997) 3 SCC 261 : (AIR 1997 SC 1125 : 1997 AIR SCW 1345) 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.
This Court is expected to ensure that the law is followed by the Court by exercising the jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them or where there is gross and manifest failure of justice, Court needs to interfere with the powers of Superintendence. The main object of this Article 227 since is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory so as to maintain efficiency and smooth and orderly functioning of the entire machinery of justice. Of course these powers need to be exercise exceptionally.
With these observations, the question that requires to be addressed is as to whether the order of Appellate Court suffers from any manifest illegality which requires interference and reply shall have to be in affirmation. It was not the stage for the Court to examine the issue as to whether 600 students could be accommodated in an area where school is officially running , it was the question of possession which was required to be addressed to and the Court Commissioner's report prima facie reflects the possession of the present petitioner. Again rent note which is of 11 months admittedly was made before 10 years altogether. No eyebrow has been raised by the respondent questioning continuation of possession by the petitioner herein for the purpose of running school and therefore only on the count that rent note was of 11 months and had not been renewed. Order granting status quo could not have been set-aside nor could that be said to be a misleading fact culminating into grant of interim injunction in favour of the petitioner by the trial Court.
When the petitioner continued to be in settled possession of the premises and when no dispute with regard to the rent was raised at any point of time . Respondent can take possession of the premise only on taking recourse to the law even as per the decision rendered in case of Maria Margarida Sequeria Fernandes & Ors. vs. Erasmo Jack De Sequeria (Dead) through Lrs., reported in case of 2012 STPL (Web) 181 SC . Once the person is found to be in settled legal possession, unless recourse is made to the legally permissible way, the same cannot be disturbed.
Resultantly, order impugned is set-aside, restoring the order of grant of injunction made by the trial Court. It would be open for the respondent to make necessary application , however, to the trial Court if petitioner is in arrears of rent . This injunction would also not operate against respondent in taking appropriate legal action available under the law for getting the premise back, if it so chooses.
With the aforementioned discussion, this petition is disposed of in the above terms.
(Ms.Sonia Gokani,J) bina .