IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (227) No. ‘?L’l Q2 OF 2009‘ PETITIONER PLAINTIFF /Umashankar Prasad S/o Gangaram, aged about 39 y€ars, Occupation — Business, R/o Kumar Bara, Anupam Nagar, Raipur (Chhattisgarh) Through its power of attorney holder, Shri Indrapal Singh Bhatia S/o Late Harbansh Singh Bhatia, aged about 47 years, R/o Dhimrapur Road, Jagatpur, Raigarh, Tahsil and District Raigarh (Chhattisgarh) VERSUS RESPONDENTS 1 / . DEFENDANTS Commissioner, Excise Assistant Department, Raigarh, District — Raigarh (Chhattisgarh} State of Chhattisgarh, through — District Magistrate, Raigarh, District Raigarh (Chhattisgarh) . UNDER ARTICLE 227 OF THE ITUTION OF INDIA WRIT PETITION CONST AT BILASPUR ’ 5m ) Mishg ‘ pfw Uashankar Prasad m VelSUS ’ siggr, Excise D Assistant Commisn eganmgnt,,vRai9ar,h and another w Post for 1902-2010 a; // Sdl- _ f Prashant Kumar Mushra Judge ‘ u T mGH COURT OF CHHATTISGARH Single @ch; _ uonble snri Justicew Iit Petition (227) £97482 5‘ v Petitioner Assistant Commissioner Excuse Depanment Rangarh‘ and another 3w: Shri Sanjay K Mrawal (withShriy Sourabh Shamarmunselmforwthe’ ‘ petitioner. ’ " ' ’ ’ V Shri Sushi! Dubey, GovemmentAdvocate rfor‘the State/respondents. _ (Passed on \‘w February; 2010i Chauenge 'invmis, petition under Articlezzz 9f the Constitution cf India'is to the legalitygalidityend prioprietyt,,of the; Order dated 15:12- 2009 (Annexuree Pentpassed bythe, 3'“ Addmmal District Judge (F.T.c.), Raigam in.,Misoeii,aneeuec}vii Appeai Mei/200,9. 2. The brief facts of the case are that the plaintiff/petitioneigaherein,- in pureuaneettom an iadyertisemenwatedemet-ZQslaJAnneigyreiP44), a appii,e,q_iguetaiuicenoerorsaie 9f, iique: pnezezezgqgxAenexure, P-2): At the end'of the seiectiottprpqeses,‘ the. piaintiftmaggranted lioeme‘for the shoe/at ’Kewadahtadit ause$tand tReigarhtfortheexear 2009:10 on 31-3-2009 vide Annexure P~3. It is the case of the piaintiffthathe "7 ‘ occupied the _ premises at Kewadabadi BusWStand on , 14-2009 ' (Annexure P-3A), Which was runningthere for theiastJ 5,<ye,ars andhe t/ is conducting the businessvwfrqm the/said premises. V Defendant (77;0 No.1lrespondent No.1 herein issued a notice dated 11-5-2009 (Annexure P—4) to the plaintiff directing him to shm the retau shop from the present place to some other u ptamtufflpettttoner preferred the present suit for permanent injunctuon along With an appltcatron under Order 39 Rules 1 and 2 of the Code of Crwl Procedure on 27-6-2009 The prayer In the pjamt and the applicahon for grant of temporary Injunctron is that the defendants/respondents herern be restrained from transferring the shop from Kewadabadl Bus Stand to any other unobjeotlonable place 3. The defendants/respondents‘hereln in their written statement as well as m therr reply to the plaintiff’s application for grant of temporary onabte mace VThe .e ' Intunctron have stated that In the advertisement (Annexure P-14) rnvttrng applications Itself rt was mentroned ln paragraphs 17 and 18 that the shop srtuated in the present place at Kewadabadr Bus Stand shall be requrred to bevyvs‘hrfted to any other unobjectronable place therefore the plarntrff havrng submitted hrs applrcatron for grant of licence by accepting the terms of the advertisement and upon hrs failure to shrft the shop was served wrth the notice dated 1 1-5-2009 The plaintiff has submitted an application to defendant N01 on 23-5- 2009 that he Is in search of an unobjectronabte place but however he did not shrtt and instead preferred the suit on frivolous grounds which nd the surt has not been properly valued and deserves to be dismissed being not maintainable. nd j 4. The trial Court, vide its order datedk‘6:7_-‘2QQ9~.,_(Anng)ggre“E11), allowed the application for grantgf temporaryginiunctipn:gandidirected that tm the maintm‘is, able. to 1.093 gut ‘fpr anv‘ungbiwgmlgzmggg. Ibej defendants are restrained from shitting the shgpttoxvanydQthQLQJgQe- ‘H ,, 5. The defendants preferteqnanw apneeL(AnneMeWR—lz)“under Order 43 Rute ,1(r) of the Code of Civil Procedure in the Court of District Judge Rargarh The said appeat has been altowed by the impugned order and the order of the mat Court granting temporary ,rnrungtrgn in favourofthe,__plarntlff has been set astdeg‘ ‘- 6. The appellate gogrtttattet edet deserves to be interfered. i 7. Learned counsel for the petitionerlptarntiff has argued that once natyeigandexeminationtof the ease to satiefy Itsetfabeuttheexrstenceof pnmefeelecase baianoe of convenience and irreparahtewtoegl; “has acome’to the conclusion that by virtue of otaueej8, oftheactvemsementn was already made t. known. t9 all the ”applicants. C(inotudtng the prospective licensee that he shall be reguired, toqtift the, ehQRHtftromrhis, present place and mereh becausehe was t allowedtte Qeeupy the present, shop it cannot be said that the authOrities have gagtgtegHwi/thejhgpresent location and thus nor-prime facie case is madteattutin favour pt the ptaintift. ,Thettaopellate.t§9urtctalso eonctuded that mere is no pn‘ma facie case in favour of the plaintiff and the balance ,ofyoon‘venienoe and irreparable loss acetaleetnetexisting in. his, fayeturtlheteopellate Court» also found that the trial Court's ordergrantingdtem,;,_.,:,.,§ry>jttittltctl9n a g surfers from graveand euhetantial. error, oflawandfatzttherefore it, me that Court has exercised discretion m favour of the plaintiff the i a a - é? appellate Court should not have interfered.“ ”Ewing:‘r9n$iqt!1e,.£n§x ' Court's, judgmgms in W<Lt¢amgamther vs.r‘.Antox india P. Ltd., 1990 (augmscc 727 and Sana, Baby Ehambld and otaen vs. Dream Developers andothers JT 2,009. (mscw Jeamed counsel has urged that since the, Qrgef ‘QIlmaDPiMimqfgtwgrgnt of temporary injunction is: passeqinwexezc‘isg;gtgi§gzretign4gmg1gamed appellatg Cgurta,pught nut torhave interfered with the‘oeerder.‘funher reliance of reamed counsel is on the judgment GiftheeApexCqyrt in SuryaADev Rai vs. Ram£harlder Ra!me mQ§L§$¢c 675 to canvass that this Court hasjun‘sdiction tundiei’ArtiQle'W» who Constitution of india to interfere with the,a_npeliate;order._ 8. On the other hand, Ale/amen GovernmentmAdxtooate‘ tenths State/respqnoentstdeteogaotsbestow,thattnentoe by!“ attfritetmenpteciattonwottelevantfacts - and the trial Court's order has,_r_ightly been set aside 9. Annexure P44 is the advertisement inviting appticaoons ror settlement of licence for retail sale of liquor in the excise district of Ralgarh Group No 5 in the advertisement mentions the name of group as Kewadabadl Bus Stand Group,W$hopllleenoel~lotlllntthetgroue is for Foreign Liquor ,Shop ,Kewadahadi Bus Stand... V In. thete'mSOfthe pplication, it 'istmentleneelntoleuee tottlaatultnettewreiottlligeetghee situated at Kewadabaw Bus Stand shall be required ,tobeshifted to an KMea‘ unobjectignahle placer :lnthe licence (Annexure P-3), at lts second ‘ page the space where the place of the shop is to be mentioneq to lett blank The petitioner has fled an affidavrt at the time of submitting the appellate. gout! hag been o ' application for grant of Heencethathe rtehalltletlieethxgthe terms and if: l me r ti t a ‘ l ' . 1 conditions of the licence and the provisims QfHthg/ C Act, 1915 the..rules,f_ram.eg thereungerwandn nous i ! excise authorities from time to time. The dveitisementvwgAnnexure P44) has been issued” in terms Dime provisigns.cistmcgnhastisgarh‘ Excise Act, 191 5,, and .thgChhattisgarh V Excise: Settlement of , Licenses for Retail Sale of Country/Forein Liquors,Ruleswzoozetramed thereunder. Thus,,the petitioner/pleintiff was‘awareat the time of submitting thetapplication for licencethat helrierrrequiredbto shiii the Shop ftom the presenteplacel however having ionbiteineg thetliQe/neel he has now tiled the suit to restrain the respondentsaldefendants‘jrom K proceedinoaheag tonwshitt‘theehpp. .Theaetdertpaseegoyéhe/harried trial Court on 6-7-2009 grantingitemnoretxiniunotion:inttavour of the plaintiff, is a Iaoonic and unreasoned, order. Learned triaLCourt has not dealt with the three pillars of prime faciacasehhalance of convenience and irreparable iqss asrequireu in raw. Thettrtai togumhasepassed the said order in only one pa‘e‘withoot diegussing, theentire facts of the case. The trial Court has not at all adverted itself to the relevant V documents and the plea raised by the defendants. 10. ln Wander ltd. and another vs. Antox India P. ltrft_‘(s,upl:a) reliedhy, ieamedoounssl tot, the,..ne,titioner.-it has beenheld that the appellate Court would be entitled to interfere wrth the” exercise of discretion byrthe trialCourt onlyuwhen it is found that the trialCourt has exercised the discretion arbitrarily or _oaprici9,ttslx,.9l;..pe_rv§[$§l¥ Of where the Court has ignored thesettled principles oflawgyregylating rant or refusal of temporary injunctions. Similarwis the digtum in Sonu Babu Bhambid andoothers Vs. Dream Developers; and sgakrh Excise by the .L g omers (supra). This Court, upon scrutiny of the orgezs passedby the trial Court as wen as by the appellate Court, is convincedihat the‘trial Court had not advelted itsetf to the basic principles of‘gra‘ht‘of temporary injunction. It has exercised tts.discreticn,lnatperfunct°fy and perverse manner. There is no discussion at attahout the relevant ciauses of the advertisement inviting applications as well as about the ‘ plaint case, the plea raised in the written statementtexistencegf Pn‘ma asraqwred in law. On the other hand, the appellate Courthas examinedjthe matter in the manner required in lawand has found/thatvther‘eisgrave and substantial error of facts and law committedvbgy thetrial Court while allowing the applicatioa for grantot tempetaw ,,iniun¢tion._ in the facie case. balance of convenience, and. irreearable opinionotthisCourt, the leamediappeilatexCourt has rightly ihterfered with the order passed by the trial Court. 11. ln Celina Coelho Perm ms) and,“ others vs. Ulhas Mahabaloshmr Khorkar and othegs, (2,019; 1 soc 217, the Apex Court has reiterated the scope‘of interference under Article 227 of the Constitution of india. Reievant paragraphs 30, 31vand,32,of the report are extracted hereunder: “3o. In Batlmtmal Raichand Oswal v. Lexmibai R. Terra, (1975) 1 scc 85,6, thisCcwt heid (scc p. 86,5, para 7) “7. The High Court cannotirr guiserof examising its _%I jurisdiction under Articte 227 convert kelf into a court i ofappeal when the/egislature has not conferred a WM of appeal and made, the decisions, of the J suborainate court or tribunal tine! on facts. " i i i i i J, J i i i i I . 32. The aforesaid two decisions and few other decisiohs, ‘x ¥?_. 31. In State v. Naw‘ot Sandhu, (2003) 6 scc 641 2003 SOC (Cr!) 1545 this Court explainegdthef pawgr ofIheJHiyh Court under Article 227 thus: (soc pp. 650-57, paza___28) .0 “28. Thus the law is that Am'cle 227 of the Consa‘tut'on of India givesthatjigh Czgqttthg ggwer 0f superintendence aver all vaults and; tribunals throughout the tem'ton‘es in relation, tor which tit axe/visas lurisal'ctlbn, “mg jurisdmbn;tcannot=be 2 hmifed or fettered by any, Act 9t that §tatettl§m$latura v, The supeMsiamjunlsavbtlbntextetzdg £92 Vmpingt the : subordinate tribunals wrrhin the limits or their autharigr > and to seeing that they obey thelgw. ' The ooweis under Article 227 are wide and can be used, to meet the ends of justice. They can he,used to interfere even with an interlocutory order. , However the power under Article 227 is a discretionenrpoww and it/is difhcult to attribute to an order of the High VC‘ourtl such a source ofpower, when the High [Court itself does not in terms purportto; exercise any such,_oiscreh‘onary power. It is settled law, that this power of judicial saperintendence,_,,llnder Article 22?, mustbe‘exergised sparinglyandonly tolteep, subordinate courts and tribunals within the bounds of their authority. and not to correct mere errors. Further,‘ where the statute bans the exercise of revisional powers it would require very exceph‘onel circumstances, to warrant interikrence under Arh’c/e 227 of the Constitution cf India since the power of superintendence was runot meant to circumvent statutory law, It is settled law that the jurisdiction under Article 2277 could not be exercised ‘as the cioak ofan appeal in disguise’. " namely, Chandavarkar Sita Ratna Rao Vt; Ashalata 8. ”ram, (198614 $60, 44,7, State of Maharashtra Vi ,Milind, (2001) 1 30C 4 £2001 SCQ (L53?) 11? andRauie§t§itt§h V. * i Ravi Prakash 004) 3' OC 82 m dgm this Court in Shamshad Ahmad v. lak SOC 1 and this Couit hei (Tii j SCC pp. 10-11, para 38) “38. Thou rnde s 226 and 227 e vr wid siv i courts and tribunals thrug t'on’ relation to which it exercis uuc must be exercised within the limits of law. T er is r . ig t as a court o pp or f aeal a court of error. it can nelther review nor r weig, eappreciate, nor mh,‘rthe"ewgence uo wch _,determination of a subordnate cort- inferior tribun pn hi i uor errors of fact or even of law and to subsutut ts own decision for that of the inferior court r tribunal. The opngu and o in nly appropriate cases innegrdettgnkeen the subordinate courts and inferior tribunals within the limits oflaw." 12- pli o he s titi ei of ina i po e teer i ipugnegnorderpassed by th pel Apyng,theJawtsettledmbygthe‘bpex Court in reiation t t cope of interference in a peon underArticle 227, o.f theecnstituton di, this Court fnds that‘the etitiner has not beenwabt to rnake out a case worth inrfence n the m e aplate Court. 13. In the resh on of e onstitution of india deserves o be an is accordin smissed. Sdl- ‘ 1 E Prashant Kumar Mishra Judge t j "/ ‘ jar, , . ~~»/./. , (2 S 6 cae ta bg gongg by Ti RajkBhajajJZQqa) 9 d: ak Ra case, (2008) 9SCC 1, _ gh powers of a High Cgurtur‘ Article ar ay e and extanawover ai ahout the emtes‘, in esjns/diohfonwshpowers I he pow supevisory in nature “The Hh Court does notvvac al purports to be based ergo correct e i o powerstare required to be exercisedmsttsari utt,_te instant” writpetiti under Article 227 th C t d gly di