Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi J., dismissed the original petition filed under Article 227 of the Constitution where the petitioner prayed the Court to direct the Sessions Court to pass orders under Section 173(8) of CrPC to direct the investigating officer to conduct further investigation in the case of her son’s death, Sreejith. He had been missing since 26-07-2013. 

On the basis of the complaint filed by the petitioner, a case under Section 57 of the Kerala Police Act was registered. During the investigation, it was revealed that Sreejith had died on the very day he had gone missing after getting electrocuted by coming into contact with the live electric fence put up by Rajagopalan and Raghavan, the neighbours of Sreejith to prevent the entry of wild animals into their property. After they found the dead body of Sreejith, they buried the dead body without informing any person. The aforesaid two persons were arrested for the offences punishable under Sections 304 and 201 read with 34 IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case is pending in the Court of Session. Counsel for the petitioner, C.P. Udayabhanu and Navaneeth N. Nath contended that the murder not a case of mere culpable homicide not amounting to murder. 

The High Court referred to Vinubhai Haribhai Malaviya v. State of Gujarat, JT 2019 (10) SC 537, where the Supreme Court held that the Magistrate had the power to order further investigation under Section 173(8) CrPC at all stages of the case before the trial actually commences and whether further investigation should or should not be conducted is within the discretion of the learned Magistrate who could exercise such discretion on the facts of each case in accordance with law. In light of this decision, the Court held that the petitioner should have approached the appropriate court below and seek further investigation of the case. It was not proper for this Court to exercise its jurisdiction under Article 227 of the Constitution of India even before the petitioner had approached the appropriate court below in that regard.

They further stated that the High Court should discourage the practice of filing a writ petition or filing petition under Section 482 CrPC, simply because the complainant had a grievance that his/her complaint was not properly investigated by the investigating agency. They cited Thomas v. Achamma Thomas 2009 (2) KLT 931 which explained that filing of the writ petition is not absolutely barred, but it is well settled if there are an alternative and efficacious remedy provided under the provisions of the concerned Act, normally the

High Court should not interfere by exercising the extra-ordinary jurisdiction.

The Court stated that no other arguments were advanced before them as to which Court, whether it is the Magistrate’s Court or the Sessions Court, the petitioner should approach seeking further investigation. The Court dismissed the original petition is dismissed and made clear that the petitioner was at liberty to approach the appropriate court below seeking a further investigation of the case by the police under Section 173(8) CrPC. [Santha v. State of Kerala, 2019 SCC OnLine Ker 5405, decided on 17-12-2019]

Legislation UpdatesRules & Regulations

Delhi High Court issued the following Practice Directions for information and compliance by all concerned in respect of Civil Miscellaneous (Main) Petitions under Article 227 of the Constitution of India and Civil Revision Petitions under Section 115 of the Code of Civil Procedure, 1908 and the sahll come into effect from 15-12-2019:

1. Advance Service of Petition:-

(a) In a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 arising from an order in a pending proceeding before a Court subordinate to the High Court, an advance copy of the paper book shall be served upon each opposite party or their counsel (if any) who appeared last for such opposite party in the Trial Court.

Provided that the requirement of service of advance copy of the paper book is dispensed with in respect of such opposite parties who have been proceeded ex parte before the Trial Court.

(b) In the event, the opposite party is the Union of India; a State Government, a Statutory Authority, a Public Sector Undertaking, or a Government Department etc., who may have nominated Senior / Standing Counsel; Nominated Counsel; or Empanelled Counsel, such advance copy shall be served directly upon such Counsel (other than a Senior Advocate), under written endorsement of service, and not directly served upon Union of India / State Government / the concerned department, as the case may be.

(c) The petitioner shall intimate all opposite parties in the matter about the filing and likely date of listing of the said petition. The petition shall be accompanied by written proof of such intimation and their respective service, besides indicating name (s) of all opposite parties in the matter. Once the petition has been cleared for listing by the Registry, the date of listing of the petition shall be intimated by the counsel for the petitioner to each opposite party or their counsel (if any) by phone / SMS/ email. The counsel for the petitioner shall give an undertaking to this effect in his application for urgent listing of the petition.

(d) The Advocate for the petitioner(s) shall give a written declaration indicating:-

(i) the total number of opposite parties,
(ii) whether all the opposite parties have been served with the advance copy of the petition and
(iii) the mode of their service.

(e) Where advance service of the petition has been effected personally, the Counsel for the petitioner shall ensure:-

(i) that on the index at the time of filing pleadings or documents, their full names, enrolment numbers and mobile numbers along with their e- mail addresses are specified.

(ii) that the acknowledgement of service of advance copies of the paper book is endorsed on the first or second page of the filing index; the person acknowledging receipt of advance copies shall sign, write his name, court clerk’s registration number ( if received by court clerk) and his mobile number as also the party for whom the acknowledgement is being given (Petitioner/Plaintiff/ Defendant/Respondent no.1 or 2 etc.,);

(iii) that their court clerks do not effectwrong/ false acknowledgements of service in the original pleadings/documents index filed before the Court. Any court clerk, who does so shall be liable for strict action;

2. Service of petition other than by personal service:-

(a) Service by UPC will not be accepted by the Registry as adequate proof of service.

(b) Service on the opposite counsel / party by Registered post A/D, speed post or courier service will be accepted by the Registry as adequate proof of service, effective three clear days after the last date of despatch. Consequently, if the last date of despatch is, say, the 5th of July, then the petition will be listed on or after the 9th of July.

(c) Service on the opposite counsel / party by e-mail shall also be accepted by the Registry at adequate proof of service provided the petition is accompanied with an affidavit of the filing counsel/party to the effect that the e-mail address at which e-mail has been sent is that of the concerned party/counsel and that the e-mail has been delivered and has not bounced back. The affidavit shall also set out the date and time of the e-mail sent and the e-mail address at which it has been sent. The e-mail shall also specify the actual date when the fresh filing is to be listed. In case there are defects and re-filings, the final filing shall be accompanied with affidavit of service of e-mail of the fresh date of listing.

3. Details of mobile phone numbers and email of opposite parties:-

(a) Where a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 is filed, the petitioner shall mention in the memo of parties, the name, mobile number and email address of each opposite party or their counsel.

(b) Where the name, mobile number and email address of each opposite party or their counsel is found mentioned in the memo of parties, the Registry shall enter the same in the data management system of the High Court so that auto generated SMS / email are also sent to each opposite party or their counsel regarding the filing of the petition, its progress during scrutiny by the Registry and its date of listing.

4. Copies of pleadings, order sheets of Trial Court:-

(a) Where a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 is filed, the petitioner shall file the relevant pleadings of the original proceedings, relevant order sheets, issues if framed in the case, pleadings of relevant interim applications and documents which the petitioner intends to rely upon.

Provided that every endeavour shall be made to place on record pleadings / documents (other than case law) referred to in the impugned order.

(b) It shall be sufficient if copies of the documents mentioned above are filed with self certification of the counsel for the petitioner to the effect that each such document is the true copy of its respective original in the file of the Trial Court. The Registry shall not insist upon the petitioner to file certified copies of such documents.

(c) The Registry shall not list any such petition before the Court which is not accompanied with any of the documents mentioned above.

5. Appearance on the first date of listing:-

(a) Where a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 is filed, any opposite party desiring to oppose any of the prayers made in such petition or in any interim application accompanying such petition shall appear personally or through counsel to make submissions as he / she may desire before the Court.

(b) In case any opposite party does not appear before the Court upon advance service of the petition, the Court may not issue any further notice to such opposite party and may pass any order(s) as it may deem fit and proper in the facts and circumstances of the case.

6. No inherent right of any opposite party to file reply to the petition:-

(a) Where a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 is filed, ordinarily the same may be decided on the basis of the grounds raised in the petition and the record filed with the same.

(b) No opposite party as a matter of right shall be entitled to file a reply to such petition. The opposite party shall however during the course of hearing be entitled to produce copies of any relevant record intended to be relied upon. In exceptional circumstances, the Court may permit an opposite party to file a reply to such a petition.

7. Strict Compliance:-

All the Officers and Dealing Assistants at the Filing Counter shall ensure strict compliance of the above directions. The petition shall not be listed by the Registry if the same does not comply with these directions.

These Practice Directions shall come into force w.e.f. 15.12.2019.

Delhi High Court

Case BriefsHigh Courts

Madhya Pradesh High Court: Vinay Kumar Shukla, J., upheld the decision of the Railway Claims Tribunal by dismissing a petition filed under Article 227 of the Constitution of India challenging the legality and validity of an order by the Railway Claims Tribunal.

The petitioner had filed a claim petition under Section 16 of the Railway Claims Tribunal Act, 1987 for grant of compensation on the death of her deceased husband who died in a train accident. The petitioner, through an amendment application, wished to change of place of the accident itself and also the train number without any plausible reason. The respondent argued that if the amendment was allowed after the filing of the written statement, it would change the entire nature of the claim. Since the petitioners had already sought five adjournments in the matter, the case was fixed for evidence.

The Court did not find any illegality in the impugned order which rejected the application for amendment. The Court relied on the Supreme Court’s decision in Jai Singh v. MCD, (2010) 9 SCC 385 and further stated that “it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice”.

The supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate courts within the bounds of their jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, 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 fact 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.

In view of the aforesaid enunciation of law, the instant petition is devoid of merit and is hereby dismissed.[Narmada Bai v. Union of India, MP-4024-2019, decided on 16-08-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel, J. entertained a writ petition filed under Article 227 of the Constitution of India, where the petitioner had challenged the order passed by the Civil Judge, where the application for appointment of a Revenue Officer as a Local Commissioner under Order 26 Rule 9 CPC was allowed.

Brief facts necessary for the adjudication of the case were, that the respondent/plaintiff had filed a suit against the petitioners/defendants for a decree of an injunction for restraining the defendants from raising any construction, dispossessing, interfering, cutting, felling and removing the trees standing upon the suit land. In an alternative suit, the plaintiff had also prayed for possession of the said suit property. Subsequently, during the pendency of the said suit, the plaintiff had filed an application under Order 26 Rule 9 of the Code for appointment of any Revenue Officer as Local Commissioner for locating the exact nature and extent of encroachment by the defendants and fixing boundaries of the suit land.

The counsel for the plaintiff averred in the application that the parties had strained relation with each other; despite a status quo order was passed, the defendants interfered in the suit land, and they also encroached upon the suit land, hence appointment of a Local Commissioner was necessary for locating the exact nature and extent of encroachment by the defendants.

On the contrary, the counsel for the defendants resisted the application and submitted that it was always open to the plaintiff to have had approached the Revenue Authorities for getting the land demarcated and the Court was not to create evidence for either of the parties. It was further the case of the defendants that they were not interfering in the suit land nor they had any intention to do so and they were in possession of their property pursuant to the recent partition having entered into between the parties and the plaintiff was stopped from filing the application. It was denied by the defendants that they were encroaching upon the suit land, as alleged.

Trial Court allowed the application and held, that as issues were not yet framed in the main suit and as proceedings in the case were at a preliminary stage, therefore, if a Local Commissioner in the case was appointed, no prejudice was to be caused to the defendants, rather it was a help in the proper and final adjudication of the dispute between the parties.

But the defendant was not satisfied by the order of the Trial Court, hence, filed the instant petition, it was argued that the order was not sustainable in the eyes of law as was passed in hot haste as the issues were not framed. It was further argued that there was no necessity of such an application being entertained by the learned Trial Court because it was just a mere allegation of the plaintiff that the suit land stood encroached upon by the defendants, onus was upon him to prove the same and it was not for the Court to create evidence in favour of the plaintiff.

The Court contemplated the arguments of the parties and thus, observed that Order 26 Rule 9 of the Code, inter alia, provided that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to, make such investigation and to report thereon to the Court. Meaning thereby that it has to be the satisfaction of the Court that a local investigation is necessary or proper for the purpose of elucidating any matter in dispute. Hence the Court held that, “This provision is not a tool which is to be permitted to be used by the parties concerned to create evidence in their favour. This important aspect of the matter has also been lost sight of by the learned Trial Court while passing the impugned order.” Hence the order for appointing a Local Commissioner was set aside.[Naseeb Deen v. Harnek Singh, 2019 SCC OnLine HP 1034, decided on 19-07-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: A miscellaneous petition filed under Article 227 of the Constitution of India was allowed by Sanjay Dwivedi, J., where the petitioner challenged the order passed by Additional Commissioner under revenue proceedings.

In the instant petition, the respondent raised an objection that the petition was not maintainable under Article 227. The counsel for the respondent, D.K. Tripathi and Devika Singh, submitted that Commissioner of Revenue was not under superintendence power of the High Court and accordingly the petitioners cannot avail the superintendence jurisdiction of the High Court by filing a petition under Article 227 of the Constitution of India. On the contrary, the petitioner submitted that in all the quasi-judicial proceedings, the High Court can entertain petition under Article 227.

The counsel for the petitioner, Sumanta Bhattacharya, relied upon Manmohan Singh Jaitla v. Commissioner, 1984 (Supp) SCC 540, in which the Supreme Court had observed that “The High Court clearly overlooked the point that Deputy Commissioner and Commissioner are statutory authorities operating under the 1969 Act. They are quasi-judicial authorities and that was not disputed. Therefore, they will be comprehended in the expression ‘Tribunal’ as under in Article 227 of the Constitution which confers power of superintendence over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction.”

The Court for the particular issue relied on the abovementioned judgment and observed that Commissioner under the present circumstances was considered to be a quasi-judicial authority as he was functioning as a statutory authority prescribed under M.P. Land Revenue Code, 1959; hence the petition was maintainable under Article 227.

Another issue disputed was related to a property which was purchased by the petitioner and on the basis of the said sale deed they moved an application for mutation of their names which was allowed in the year 2004 and accordingly, the revenue records were corrected entering the name of the petitioners in respect of the land in question. It was alleged that subsequently in 2011 an appeal was filed by the said respondents challenging the mutation on the ground that the property sold to the petitioners by respondent was a joint family property and the respondent was one of the co-sharers in the same and he had sold the land in excess of his share and no notice before the mutation had been issued by the revenue authorities to them and as such, that mutation which was executed in favor of the petitioners got set aside. Against the said order the petitioner had filed an appeal before Sub-Divisional Officer and subsequently before Additional Commissioner and both the appeals were rejected against the petitioner. Hence the petitioner had filed the petition under Article 227.

The respondent argued that petitioners failed to establish any grounds and to substantiate as to how the order passed by the Additional Commissioner was contrary to law, they were not entitled to get any relief in the petition preferred under Article 227. In Shyam Shetty v. Rajendra Patil, 2101 (4) MPLJ 590, the Supreme Court had laid down the parameters that when High Court can interfere under Article 227, it was held that “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’ or 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.”

It was further observed that the Supreme Court stated that “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.” The reserved and exceptional power of judicial intervention was not to be exercised just for grant of relief in individual cases but was directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 was meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to a high degree of judicial discipline.

The Court opined that it was admitted position that one of respondent executed sale deed in favor of petitioners in the year 2001 but Court was not satisfied that despite taking note of such material facts, the Sub-Divisional Officer had not given any reason as to how the mutation which took place on the basis of sale deed can be said to be illegal. The Court further observed that thereafter, the Additional Commissioner had reiterated the findings given by the Sub-Divisional Officer and rejected the appeal. None of the revenue authorities in the orders passed by them have considered the impact of the sale deed executed by the respondent in favor of the petitioners. It was noteworthy to mention that the sale deed was a valid document and was the foundation for mutating the name of the holder of the sale deed. If the document of sale is available then the revenue authorities had no option but to mutate the name of the holder of the sale deed in the revenue records and as such, mutation done in favor of the petitioners cannot be set aside unless the sale deed executed in their favor was set aside by any competent court.

The Court thus opined that all the revenue authorities committed gross and material illegality while setting aside the mutation made in favor of the petitioners which was made, based on the sale deed. It was discussed by the Court that as far as power under Article 227 of the High Court to interfere while exercising its superintendence was concerned, it was observed that from perusal of the documents and orders passed by the revenue authorities and the discussion made that was a fit case in which Court can exercise power under Article 227 for the reasons that the order impugned was apparently illegal and suffered from errors of law and fact and was a clear example of patent perversity. Thus, the petition was allowed.[Keshri Nandan v. Pradeep Kumar, 2019 SCC OnLine MP 1521, decided on 03-07-2019]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of L. Narayana Swamy, ACJ and P.S. Dinesh Kumar, J., allowed a writ appeal filed against order directing reinstatement of a driver in service, who had been not reported to duty for almost two years.

Respondent herein, who was working as a driver with Bengaluru Metropolitan Transport Corporation (BMTC), was suspended from service but suspension was revoked after sometime. Despite revocation of suspension, respondent did not report to duty and was issued a call notice. However, he still remained absent. Disciplinary authority framed and sent imputation of charges but the same was not reverted to by the respondent. A domestic enquiry was conducted after serving notice to respondent. Since he did not appear even in these proceedings, he was proceeded against ex-parte and dismissed from service. Respondent raised a dispute before the conciliation officer but upon failure of conciliation proceedings, he approached the Labour Court which dismissed the reference. In a writ petition filed before the learned Single Judge, the order of respondent’s dismissal was set aside. Aggrieved thereby, the instant petition was filed.

The Court observed that a High Court while exercising power under Article 227 of the Constitution of India, shall not ordinarily correct mere error of facts or law unless the error is shown to be apparent on the face of the record or is based on clear ignorance or utter disregard to the provisions of law. Further, a High Court shall not convert itself into a Court of appeal and indulge in re-appreciation of evidence unless great injustice is demonstrated.

It was noted that the petitioner chose not to report to duty even after two years of revocation of suspension. Relying on the judgment in North-Eastern Karnataka Road Transport Corporation v. Ashappa, (2006) 5 SCC 137 where it was held that remaining absent for a long time cannot be considered minor misconduct; it was held that the impugned order was not sustainable in law.[BMTC v. S. Ganesh, 2019 SCC OnLine Kar 243, Order dated 01-02-2019]