K^f9^ ^''i IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CHILATTISGARH1 WRIT PETITION ( C | N0.n>96| / 2010 PETITIONER: ftppl?C44-t^ Municipal Corporation Bilaspur Through: Its Commissioner, Municipal Corporation Bilaspur, District Bilaspur Versus RESPONDENTS: 1 Dilip Patil. ^ PJ^"YVW^ rja ±-i^/ ^O/n A I^&C^TUIO f t^ ^ ^"'/- ' ^>^ ^^^.^.^ ^o2-,- ^' ^^: '•'.j^ ..•€/ •.^./'..'•y ' <?'~VJ>"' ^o^fW^'^^^ ^ Aged about 26 years, S/o Late Shri Mukund Patil, Panch, Gram Panchayat Lingiyadih, Tehsil and District Bilaspur (C.G.) 2. Hori Lal Nishad. L <°U^VH^ KJO z-^Q^i Aged about 45 years, S/o Pardeshi, Panch, Gram Panchayat Lingiyadih, Tehsil and District Bilaspur (C.G.) 3. LaxmiLal. ^. fJlaAv^'^V TNJo-'?3 ^,/ Aged about 40 years, S/o Jugtu, Resident Village Lingiyadih, Tehsil and District Bilaspur (C.G.) 4. State of Chhattisgarh. ^ Oes^n^'e^^ ^*0 1J Through the Collector, Bilaspur, District Bilaspur (C.G.) {^fc^^^-8r'5t Gram Panchayat Lingiyadih. L 0^-^1^- ^ Through its Sarpanch, Gram ^ Panchayat Lingiyadih, District Bilaspur (C.G.) f^s^ ^fif£fc"4^i>'f ^- ^ ^^rt^ WRIT PETITION UNDER ARTICLE 226/227 _OF THE CONSTITUTION OF INDIA •^l ^^ ^ //^- HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Writ Petition (C.) No.3961 of 2010 Municipal Corporation, Bilaspur versus Dilip Patil and others ORDER Postfor 29-10-2010 Sd//- Prashant Kumar Mishra Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon^l^Shri Justic^PrashantKymar Mishra i:7\ Writ Petition (C.) No.3961 of 2010 Petitioner Respondents versus Municipal Corporation, Bilaspur Dilip Patil and others Present: Shri Anup Majumdar, counsel forthe petitioner. Shri Upendra Bharat and Shri Manoj Paranjpe, counsel for respondent No.2. Shri Ajay Dwivedi, Deputy Government Advocate for the State/respondent No.4 None for respondents No.1, 3 and 5. Writ Petition_yndeLArticles 226/227 of the Constitution of India ORDER (Passed on ^3^'October, 2010) Challenge in this petition under Articles 226 and 227 of the Constitution of India is to the order passed by the appellate Court dismissing the petitioner's miscellaneous civil appealunder Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (henceforth 'the Code'), which, in turn, was preferred to challenge the order passed by the trial Court allowing plaintiffs/respondents No.1 to 3's application under Order 39 Rules 1 and 2 of the Code and granting temporary injunction in favour ofthe plaintiffs. 2. The plaintiffs preferred the suit in representative capacity under Order 1 Rule 8 of the Code with respect to land bearing -\ Khasra No.198/2 area 8.62 acres situated at Village Lingiyadih, J Tahsil and District Bilaspur seeking a declaration that the '\;V petitioner/defendant No.2 Municipal Corporation, Bilaspur (henceforth 'the Corporation') has no title on the suit land and the action undertaken by the Corporation for vacating the suit land is illegal and that the suit land has already been allotted to the villagers and the remaining vacant portion is used by the villagers as grazrng land. It has also been prayed that defendant No.1 be directed to demarcate the land of Khasra No.198/2 and 198/25 and further that the defendants be restrained by issuance of a permanent injunction from interfering with the possession of the villagers over the suit land. The suit has been preferred by Dilip Patil, Horilal and Laxmilal as plaintiffs No.1, 2 and 3 respectively. 3. Undisputedly, plaintiff No.2 along with 7 other villagers had earlier preferred Writ Petition (C.) No.3386/2009. The said writ petition was disposed of by this Court vide order dated 15-7-2009. The said order passed in Writ Petition (C.) No.3386/2009 reads as under: "Heard. 1. Shri Kachhwaha, learned counsel appearing for the respondent No.3 submits that there is no demolition of the houses situated over survey No. 198/25 as claimed by the petitioners. However, in order to satisfy the petitioners, the respondent No.3 is ready and willing to get the land in dispute demarcated by the revenue authorities in accordance with law, in presence of the petitioners. It is further submitted that before the land in question is demarcated properly, no demolition will be done. 2. The petitioners are accordingly directed to co- operate with the authorities for demarcation of the land in '^. dispute and to submit reply, if any notice is issued by the respondent authorities. The petitioners shall have seven days time to submit their response before the concerned authorities i.e. the respondent No.3, after the demarcation is done. 3. Accordingly, the petition stands disposed of." 4. Undisputedly, another occupant/encroacher Smt. Sharda Dubey preferred a suit bearing Civil Suit No.56-A/2006 in which her prayer for temporary injunction was rejected by the trial Court and was affirmed by the appellate Court. The said Smt. Sharda Dubey preferred Writ Petition (C.) No.4790/2008 in this Court which came to be dismissed on 2-9-2008. The material part of the order contained in paragraphs 3 to 9 is reproduced hereunder: "3. I have heard learned counsel appearing for the petitioner/plaintiff, perused the pleadings and the documents appended thereto. The petitioner/plaintiff alleged that the Municipal Corporation, Bilaspur raised construction on the land bearing Khasra No.298/25 whereas the Municipal Corporation, Bilaspur stated that they are doing the construction works on the land bearing Khasra No. 198/2. The Civil Judge while rejecting the application under Order XXXIX Rule 1, 2 read with Section 151 of the CPC observed that, prima facie, no case has been made out and balance of convenience is also not in favour of the petitioner/plaintiff. The Additional District Judge held that dispute arose between the parties regarding demarcation and on the basis of the demarcation, the matter cannot be settled. 4. It appears that the relief has been rejected on the '•^ ground that it is not clear as to whether the construction is on the property of the petitioner when admitted case of •A <^ G the Municipal Corporation is that the construction was raised on the land bearing Khasra No. 198/2, which is owned by the Municipal Corporation, Bilaspur. 5. Be that as it may, after demarcation, the petitioner is at liberty to move the trial Court again for appropriate relief, if so advised under the provisions of law. 6. In view of the above, it is evident that the petition involves disputed question of facts, which cannot be decided in this petition. 7. This court in exercise of its supervisory jurisdiction under Ari:icle 227 of the Constitution of India should refrain itself from interfering with the order passed by the court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case. 8. In view of the foregoing reasons, this writ petition is dismissed at the motion stage itself. 9. Consequently, pending applications, if any, stands disposed of." 5. It appears that after the order dated 15-7-2009 passed in Writ Petition (C.) No.3386/2009, a demarcation was carried on and the report thereof was submitted vide Annexure P-6 dated 25-8-2009. In the second page of the report, at page 37 of the writ petition, which is the spot map, it is mentioned that the encroached area is distinct and separate from Khasra No. 198/25. According to the petitioner/defendant, the encroached area bears Khasra No. 198/2 area 8.62 acres. In the report, it is also mentioned that the petitioners of Writ Petition (C.) No.3386/2009 were informed and the ;-. l~'r .,-y said petitioners were present at the time of demarcation. Signatures of the said petitionersare available in the Inquest (Panchnama), which is at pages 39 and 40 of the writ petition. 6. It appears that the present suit was preferred sometime in the month of May, 2006, however, one of the plaintiffs, namely, Horilal, without disclosing before this Court about pendency of the suit, preferred Writ Petition (C.) No.3386/2009. It further appears that when two earlier writ petitions preferred by at least nine encroachers/occupants failed before the High Court and the result thereof was never brought to the notice of the trial Court, an order granting temporary injunction was passed by the trial Court on 29-9- 2009, which has been affirmed by the appellate Couri:. 7. Be that as it may, the plaintiffs' case in the present suit is that the suit land is Abadi land and the villagers are in occupation of substantial part of the land by constructing huts and the Gram Panchayat has provided necessary amenities. The respondents never objected to the possession of the villagers. In paragraph 6 of the plaint, it is mentioned that the Tahsildar, Bilaspur has divided Khasra No. 198/2 to create Khasra No. 198/25 by separating some part from Khasra No. 198/2 and some villagers have been allotted lease of different areas on the land bearing Khasra No. 198/25. It has also been pleaded in paragraph 8 of the plaint that the State Government had allotted the land to Bilaspur Development Authority on certain conditions, however, the said Bilaspur Development Authority did not satisfy the conditions and that the allotment has no r force. However, the Corporation issued notices to the villagers on 3- 'B1 4-2006 for vacating the land and to shift to the houses constructed under Rajeev Gandhi Shahri Nirdhan Awas Yojana. According to the plaintiffs, the Corporation is not entitled to occupy the land as the villagers are in settled possession, however, the Corporation wants to raise construction of a commercial premises for which advertisement has been published in the local gazette. The plaintiffs, thus, raised objection regarding Corporation's title to the suit land and its authority to evict the villagers from the suit premises. Prayer for temporary injunction was also made on similar pleadings. 8. The Corporation has already filed its written statement in the month of October, 2006. It is- the categorical averment of the Corporation that it is in possession of 8.62 acres of land bearing Khasra No. 198/2 and denied that the entire area of original Khasra No. 198/2 area 8.62 acres is in occupation of the villagers. It is the stand of the Corporation that the land of Khasra No. 198/2 and 198/25 are separate and distinct and if some villagers have been granted lease of different areas of Khasra No. 198/25, the villagers are not entitled to continue to encroach and remain occupied on Khasra No. 198/2 area 8.62 acres. It was stated that the Corporation has been granted necessary sanction by the Department of Town and Country Planning of the Government of Chhattisgarh for construction of the commercial complex and that allotment of the land has been made by the State Government to the Corporation. The Corporation has filed gazette notification dated 9-9-2002 by which the erstwhile Bilaspur Development Authority has been ^^\ 7 dissolved and the assets and liabilities of the said Authority has been vested in the Corporation. Later on, allotment made in favour of Bilaspur Development Authority on 12-10-1988 has also been annexed with the writ petition. The Corporation has filed another document dated 25-1-2006 issued by the Joint Director, Town and Country Planning, Regional Office, Bilaspur granting sanction to construct a commercial premises on the suit land bearing Khasra No. 198/2 of 10665 Square Meters. The trial Court, by its order dated 29-9-2009, granted temporary injunction after finding that since the' plaintiffs are in possession of he suit land, the prima facie case exists in their favour and if they are dispossessed, they are going to suffer irreparable loss and thus balance of convenience lies in their favour. 9. The appellate Court has also affirmed the order after recording a finding that it is not clear as to on which land the plaintiffs/villagers are in possession and that the villagers have been granted lease of different areas of Khasra No. 198/25 and the allegations of the plaintiffs are that the Corporation is trying to evict them on the ground that they arenot in possession of Khasra No. 198/25, but, in fact, they are in possession of Khasra No.198/2. According to the appellate Court, if the villagers are evicted, they shall suffer irreparable loss. 10. From the orders passed by the Courts below, it does not appear that the orders passed by this Court in two writ petitions were brought to its notice. The petitioner has placed on record the order of allotment of house under the Rajeev Gandhi Shahri Nirdhan Awas [^ Yojana in favour of plaintiff No.3 Laxmilal and plaintiff No.1 Dilip. These two plaintiffs are arrayed as respondents No.1 and 3 in the writ petition and they have chosen not to appear in spite of service of notice by publication in the newspaper. The only plaintiff No.2/respondent No.2, who has chosen to appear in this Court is Horilal. His writ petition bearing Writ Petition (C.) No.3386/2009 has already been disposed of without any restrain order against the petitioner/Corporation. The Courts below have also not addressed itself to the scope of the suit when the same is filed under Order 1 Rule 8 of the Code. Under sub-rule (1) of Rule 8 of Order 1 of the Code, it is provided that one or more of numerous persons having the same interest in one suit can file or defend a suit on behalf of, or for the benefitof, all persons so interested. The provision is in the nature of allowing presentation of suit akin to public interest for redressal of grievances of a large number of persons who are likely to be affected by the illegal act of the defendants. 11. Learned counsel for the petitioner/Corporation has made specific statement in the Court, which is also contained in paragraph 6 of the written statement that if any lease has been granted to any occupants on Khasra No. 198/25, such allottees are entitled to remain in possession of the land on Khasra No. 198/25 and not on Khasra No. 198/2. Categorical statement was made that the petitioner/Corporation is not likely to remove any person who has been allotted lease of any area of the land bearing Khasra No. 198/25. According to learned counsel for the petitioner, the Corporation has been granted permission to raise construction of a y commercial complex and the total cost of the project is Rs.2.75 Crores for which 50% of the necessary funds have been allotted by the State Government and the Central Government each under the Integrated Development of Small and Medium Town Project (IDSMT). Contention of learned counsel for the petitioner/Corporation is that if construction is not made, the allotment would lapse and even otherwise the construction is for the benefit of public and on account of delay the project cost may substantially increase which will saddle the Corporation with unnecessary financial burden and the delay shall eventually frustrate the project undertaken in public interest. 12. In Raunaq International Ltd. vs. I.V.R. Construction Ltd. and others, (1999) 1 SCC 492, the Hon'ble Supreme Court, while dealing with a prayer for stay of a project having public importance, has held thus: "18. The same consideratiQns must weigh with the court when interim orders are passed in such petitions. The party at whose instance interim orders are obtained has to be made accountable for the consequences of the interim order. The interim order could delay the project, jettison finely worked financial arrangements and escalate costs. Hence the petitioner asking for interim orders in appropriate cases should be asked to provide security for any increase in cost as a result of such delay or any damages suffered by the opposite party in consequence of an interim order. Otherwise public detriment may outweigh public benefit in granting such \ interim orders. Stay order or injunction order, if issued, must be moulded to provide for restitution. .'^ \' 10 25. Therefore, when such a stay order is obtained at the instance of a private party or even at the instance of a body litigating in public interest, any interim order which stops the project from proceeding furi:her must provide for the reimbursement of costs to the public in case ultimately the litigation started by such an individual or body fails. The public must be compensated both for the delay in implementation of the project and the cost escalation resulting from such delay. Unless an adequate provision is made for this in the interim order, the interim order may prove counterproductive." 13. In Surya Dev Rai vs. Ram Chander Rai and others, (2003) 6 SCC 675, the Hon'ble Supreme Court, while laying down the law about scope of interference under Article 227 of the Constitution of India, has held thus: "38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repletion and state the same as hereunder: (1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 ofthe Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1 999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. "\ (3) Certiorari, under Article 226 of the \ Constitution, is issued fbr correcting gross errors of Av 11 jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction — by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction — by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure ofjustice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisoryjurisdiction. (5) Be it a writ of certiorari or the exercise of supervisoryjurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self- evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to A"' ^-..^•' ,y -:sy 12 take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction 13 exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. 39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise ofjurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a strait-jacket formula or rigid rules. Not less than often, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where "a stitch in time would save nine". At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates \" 14 of judicial conscience enriched by judicial experience and practical wisdom of the judge." 14. In the present case, the plaintiffs are claiming relief for the villagers, who, prima facie, appear to be encroachers of Government land bearing Khasra No. 198/2 because from the statement made by the Corporation it appears that such persons who have been allotted lease of different areas on Khasra No. 198/25 shall be entitled to remain in possession. Thus, grant of temporary injunction in favour of encroachers in a suit filed in representative capacity akin to a petition in public interest shall be governed by the law laid down by the Hon'ble Supreme Court in Raunaq International Ltd. vs. I.V.R. Construction Ltd. and others (supra). 15. Both the Courts below have not at all addressed itself to the nature of project undertaken by the Corporation and the escalation in cost which may arise on account of delay in execution. The Courts below have treated the suit as an ordinary suit preferred by a person who is in possession of the suit land without appreciating that the villagers have not claimed any right or entitlement in themselves flowing from any legal provision or grant, instead, from the statement made by the Corporation it appears that only such occupants of Khasra No. 198/2, who are encroachers and are in illegal possession of the Government land are to be evicted. In the opinion of this Court, the Courts below have not considered and applied the three principles of grant of temporary injunction, i.e., the prima facie case, balance of convenience and irreparable loss in its true perspective '^ and have