IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 65 of 2010 Date of decision: 23.2.2011. Jai Chand Thakur …Petitioner. Versus Sat Pal Chauhan & Anr. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Romesh Verma, Advocate. For the respondent No.1: Mr. J.L. Bhardwaj, Advocate. For the respondent No.2: None. Deepak Gupta, J. (Oral) This petition under Article 227 of the Constitution of India is directed against the order dated 16.2.2010 passed by the learned Additional District Judge, (Fast Track Court), Shimla, whereby he dismissed the appeal filed by the petitioner (hereinafter referred to as respondent No.2) and confirmed the interim order passed by the learned Trial Court restraining the petitioner from raising construction on the suit land. 2. At the outset, I may deal with the preliminary submission raised by Mr. J.L. Bhardwaj, learned counsel for the respondent who has strenuously canvassed that this Court in exercise of its jurisdiction under Article 227 of the Constitution of India cannot interfere with such orders. In this regard, Mr. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. : 2 : Bhardwaj has placed reliance on the judgment of the Apex Court in Sadhana Lodh Vs. National Insurance Company Co. Ltd. and another, (2003) 3 Supreme Court Cases 524 wherein the Apex Court held that mere wrong decision given by an inferior tribunal is not sufficient reason to attract the jurisdiction of the High Court under Article 226 of the Constitution of India. Even in respect of supervisory jurisdiction, the Apex Court held that the High Court in exercise of its jurisdiction can only see whether the inferior tribunal has acted within the parameters and is not expected to correct the decision or re-appreciate the case. 3. In fact, the Apex Court in Shalini Shyam Shety and another Vs. Rajendra Shankar Patil, (2010) 8 Supreme Court Cases 329 has dealt in detail with the scope of supervisory jurisdiction of this Court and laid down the following principles for the exercise of such jurisdiction:- “49. 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 the 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, at 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 the : 3 : 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 their 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 and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, 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 the 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 of 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) The 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 L. Chandra Kumar v. Union of India and therefore abridgment 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 : 4 : 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 the 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 counterproductive and will divest this extraordinary power of its strength and vitality.” 4. The basic principle laid down is that the Tribunal and Courts subordinate to the High Court must act “within bounds of their authority” and as long as they act within the bounds of their authority, this Court in exercise of its jurisdiction under Article 227 would normally not interfere. The Apex Court has also laid down that this court is not expected to correct errors of law or fact just because another view is possible. 5. On the other hand this authority itself lays down that on the proper appreciation of Article 227 it is apparent that one of the main object of this article is to keep strict administrative and judicial control on the administration of justice and must ensure that the fountain of justice remains pure and unpolluted. It is in the light of these principles laid down by the Apex Court : 5 : that the facts of this case will now have to be gone into. 6. Respondent No.1 (hereinafter referred to as the plaintiff) filed a suit in which he claimed that he was one of the joint owners of the suit land. He also alleged that he had come to know that one of the joint owners defendant No.1 Shakuntla Devi had transferred her share in the suit land to the present petitioner (defendant No.2). It was alleged that no partition has taken place and that the defendant No.2 was raising construction on valuable portion of the joint suit land. Along with the suit, an application for interim relief was also filed. Written statement was filed by the defendant and it was alleged that in fact the suit land had been partitioned vide order dated 2.3.2009 and that instrument of partition had also been drawn up and therefore it is apparent that the parties were in possession of their respective shares in accordance with the mode of partition. 7. The learned Trial Court held that the proceedings of partition could not be accepted for two reasons; firstly that though in the jamabandi itself the address of the plaintiff was shown to be Kanahar, Tehsil Kumarsain, District Shimla, HP. In the application for partition the address of all the respondents was given as residents of Village Neri, PO Rouri, Tehsil and District Shimla. Another fact which weighed with the learned Trial Court was that the partition proceedings initiated on 6.2.2009 were decided within 24 days on 2.3.2009 which indicated that no proper notice had been issued to the : 6 : respondents. While dealing with this angle of the case the learned Trial Court also directed the plaintiff-applicant to amend the pleadings and to file application before the Assistant Collector for setting aside the ex-parte order. Another factor which weighed with the learned Trial Court was that the instrument of partition has not been signed, but this fact does not appear to be correct because certified copy of the instrument of partition which has been placed on record shows that the instrument of partition has been signed. This order has been upheld by the learned Fast Track Court. 8. Keeping in view the decision of the Apex Court in Shalini Shyam Shety and another Vs. Rajendra Shankar Patil (supra) can it be said that this is a case calling for interference under Article 227 of the Constitution of India? In my view the answer has to be in the negative. Here is a case where the petitioner Shakuntla Devi who is working as a peon in the office of Tehsildar, Shimla has obtained an order from the Tehsildar within 24 days whereby all the other co- sharers have been proceeded against ex-parte and the matter decided in her favour in their absence and the instrument of partition has also been prepared ex-parte. This court at this stage is not going into the question whether the order of the Assistant Collector is right or wrong, but it cannot be said that the reasons which weighed with the learned Trial Court are incorrect. Therefore this petition is dismissed. No order as to costs. (Deepak Gupta) Judge February 23, 2011 (guleria)