1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 23. WP/5854/2010 ( MOHANDAS SUDARSHANDAS JAHAGIRDAR (UDASI) AND ANR V/S THE STATE OF MAHARASHTRA AND ANR ) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. S.S.Choudhari, Adv., for the petitioner. Mr. K.S.Patil, A.G.P., for Respondent State/nos. 1 and 2. ... CORAM: K.U.CHANDIWAL, J. DATE:26/10/2010 1. The chequered history of events is demonstrated by the writ petitioner. Mr.S.S.Chaudhari, learned Counsel for the petitioner informs, that the possession of petitioners or their forefathers was un-interrupted for more than 200 years. The action of competent authorities of Government in terms of Section 50 of Maharashtra Land Revenue Code, 1966, issuing notice, was uncalled for. It was tested by filing Regular Civil Suit No.428/2009 2 before the learned Civil Judge, Junior Division, at Nanded. The learned Judge did not accede to the request of the petitioner to grant injunction in terms of Exh. 5. Being aggrieved by the said rejection, Miscellaneous Civil Appeal No.103/2009 was preferred by the plaintiff before the learned District Judge at Nanded and the learned District Judge on 16.2.2010, rejected the appeal, thereby declining to grant of temporary injunction in favour of the plaintiff. Said orders are questioned in the writ. 2. The principles for grant of temporary injunction are highlighted in number of judgments. In Seema Arshad Zaher and others Vs. Municipal Corporation, Greater Mumbai and others) (2006 (5) Mah.L.J. 218), the Apex Court has indicated the parameters to be adhered to by the Courts in terms of Order 39 Rules 1 and 2 of C.P.C. The parameters are as under: 3 "(i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands." 3. Learned Counsel for the plaintiff petitioner informs, pursuant to such action of notice under Section 50 of Maharashtra Land Revenue Code, the Government authorities are in hurry to carry construction activities even adversely affecting existing temple or the monuments (SAMADHI) of the ancesteors. He urged that if 4 the construction, which is in full swing, is perpetuated, it will be creating complications for restoration to its original possession and the plaintiff as a poor litigant will not be in a position to deal with the mighty State. 4. Mr.Chaudhari, learned Counsel, also informs that political bigwigs are interested in the matter of dislodgement of the plaintiff from the suit property. This Court is not required to advert to the interests of political bigwigs. The fact remains, if in law the property vests in the Government, it is for the Government to take appropriate decision and action. It goes without saying that the competent authorities in the past, at least from 1968, have been issuing notices. The petitioners or, for that purpose, their forefathers were heard at all stages. The objection of the petitioners, as 5 possessors in lawful possession, was declined. The Government record was contrary to the contentions of the petitioners/plaintiffs. 5. The parameters of grant of injunction in terms of Order 39 Rules 1 and 2 C.P.C. are highlighted here-in-above. Both the Courts, on prima facie evaluation of the evidence and documents, reached to a conclusion that the plaintiff failed to prima facie establish its title over the property. The decision of the Director, Land Records, has been confirmed at all levels. 6. The Apex Court, in the matter of Aahmedabad Mfg. & Calico Ptg.Co.Ltd. Vs. Ram Ramtahel Ramanand and others ( AIR 1972 SC 1598) have observed in para 12 as under: " Power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors. Reference also has been made in this regard to 6 the case Waryam Singh & Anr. vs. Amarnath & Anr. [1954 SCR 565]. This court in Babhutmal Raichand Oswal vs. Laxmibai R. Tarte and Anr. [AIR 1975 SC 1297] has observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a court of appeal when the legislature has not conferred a right of appeal. Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order." 7. In a recent judgment, the Hon'ble Apex Court, in the matter of State of Haryana V. Manoj Kumar reported in (2010) 4 SCC 350, again highlighted the position of effect of exercise of jurisdiction under Article 227 of the Constitution of India. 8. The Apex Court has clearly indicated that the power under Article 227 is limited to see that the Courts below function within the limits of its authority or jurisdiction. User of Article 227 is not by any means appellate in its nature for correcting the errors 7 of the subordinate Courts but is merely a power of superintendence to be used to keep them within the bounds of their authority. 8. Taking survey of entire matter and, particularly, in the light of provisions of Section 52 of the Transfer of Property Act, due care can be taken if the plaintiffs have ultimately rights in the property. Such rights, even if construction is carried by the Government in the property, will have its paramount effect on even the construction. With the above indications, the order under challenge does not demonstrate any perversity or the Courts have traveled to the area beyond the legal authority. Writ Petition lacks merit, dismissed. No costs. Interim relief vacated. (K.U.CHANDIWAL) JUDGE ... AGP/5854-10wp