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President, Modasa Nagarpalika Subhashbhai Mathurbhai Shah v/s Hirabhai Shivabhai Patel & Others

    R. Special Civil Application No. 17524 of 2019

    Decided On, 07 March 2022

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

    For the Petitioner: Vijay H. Nangesh (3981), Advocate. For the Respondents: R3, Megha Chitliya, AGP., R1, Manish J. Patel (2131), R2, Ravi B. Shah (5346), Advocates.



Judgment Text

Oral Judgment:

1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 19.9.2019 passed by the learned Principal Senior Civil Judge, Modasa, in Regular Civil Suit No. 52 of 2019, below Exh. 5, and the same is confirmed by the learned Additional District Judge, Modasa by order dated 1.10.2019 in Civil Appeal From Order No. 9 of 2019, whereby the learned trial Court as well as the learned Appellate Court by the impugned orders directing to the Modasa- Municipality to restrain from dumping solid waste in the disputed land till final disposal of the suit.

2. Heard learned advocate Mr. Vijay Nangesh for the petitioner, learned advocate Mr. Manish Patel for the respondent No.1, learned advocate Mr. Ravi Shah for the respondent No.2 and learned AGP Ms. Megha Chitliya for the respondent No.3.

3. Rule. Learned advocate Mr. Manish Patel and learned advocate Mr. Ravi Shah and learned AGP Ms. Megha Chitliya waive service of rule for the respondent Nos. 1, 2 and 3 respectively.

4. The brief facts of the case are that the petitioner is Municipality under the Gujarat Municipalities Act, 1963 and doing the welfare and development work of the Modasa Municipality area. That, the Modasa city is having population of about 68000, and daily about 14 tones of solid waste and garbage are being collected from the Modasa city so that the city become clean and hygienic. That, the respondent Nos. 1 and 2 - original plaintiffs filed the Civil Suit against the present petitioner and the State to restrain from dumping solid waste and other garbage in the disputed land. That, as per the case of the plaintiff that in the nearby Survey No.53 P2 (New Survey No.162/1), wherein the Courts and other engineering Colleges, Hostel, DSP Office, District Panchayat and other shopping Centers are situated and there is a permanent visit of the public at large. That, it is contended that the petitioner - Municipality dumps the solid waste and other garbage like plastic, cardboard, rotten vegetables, domestic waste, hospital waste, dead animals, etc, and because of this foul smell is coming, which creates mosquitoes and other insects and due to this waste there is a chance of spread of epidemics also. That, it is further contended in the plaint that the said land as Survey No.160 (Old Survey No.153 p1) was allotted to the petitioner Municipality for the purpose of oxidation pond and the petitioner used the said land for the purpose of dumping solid waste. That, the petitioner received notice from the learned Civil Court and filed reply stating that the land was allotted for the purpose of oxidation pond and sewage treatment plaint in the year 1988-1989 and thereafter from 2004- 2005, the said land was used for the purpose of vermi- composed plant and on 1.8.2019, other land was allotted by the Collector, Aravalli in Revenue Survey Nos. 82 and 83, and there was objections of the local residents. That, the municipality has issued the advertisement for existing waste and the first advertisement was issued on 16.2.2019 in Sandesh Newspaper, and thereafter again issued public advertisement in Nav Gujarat Samay Samachar on 10.8.2019. That, the in the process of again re-tendering for removal of the existing waste- solid waste in the above land and this process to clear all the legacy waste may be done at the earliest. It is contended that, the respondent - plaintiff has also filed an application under Order 39 Rule 1 and 2 of the Civil Procedure Code for interim relief and the same was allowed. Against that the petitioner moved before the learned Appellate Court i.e. Principal District Judge, Aravalli at Modasa and the same is confirmed by the learned District Judge. It is requested to quash and set aside the order dated 19.9.2019 passed by the learned Principal Senior Civil Judge, Modasa, in Regular Civil Suit No. 52 of 2019, below Exh. 5, and the order dated 1.10.2019 passed by the learned Additional District Judge, Modasa in Civil Appeal From Order No. 9 of 2019.

5. Learned advocate Mr. Vijay Nagesh for the petitioner submitted that impugned order passed by the learned trial Court as well as the learned Appeallte Court mainly on the ground that the land bearing Survey No.835 and 836 (Old Survey No.82 and 83) was allotted by the Collector, Aravalli vide order dated 1.8.2019 and there was objection from the local residents. He has also argued that the petitioner Municipality issued public advertisement in Sandesh Daily Newspaper on 16.2.2019 and thereafter again in Nav Gujarat Samay Samachar newspaper on 10.8.2019 and the process of removing the above existing waste may be done by the Municipality at the earliest.

6. Learned advocate for the petitioner has also taken various grounds including the contention of pending process for ventilating grievance and also contended that the respondents have not followed due procedure under the provisions of Order-1 Rule - 8 (2) of the Civil Procedure Code as they have not issued any public notice for joining any of the persons as a party in the said suit and therefore suit is required to be dismissed. It is also contended that the both the Courts below have passed orders which are arbitrary and against the settled provisions of law.

7. During the pendency of this petition, the learned advocate for the petitioner has filed a further affidavit, and Deputy Collector SDM, Modasa has filed affidavit-in-reply on behalf of the respondents, which are taken on record. This Court has referred to the order dated 19.9.2019 passed by the learned Principal Senior Civil Judge, Modasa, in Regular Civil Suit No. 52 of 2019, below Exh. 5, and the order dated 1.10.2019 passed by the learned Additional District Judge, Modasa by in Civil Appeal From Order No. 9 of 2019. In short, there is a concurrent findings of two Courts below, which are in favour of the respondents and the same are under challenge before this Court.

8. Before adverting to the merits of the case, it would be appropriate, if we discuss the scope of interference underArticle 227of the Constitution of India.

"1.In Ouseph Mathai and Ors. v. M. Abdul Khadir, AIR 2002 SC 110:MANU/SC/0718/2001, it is held as under:

"The High Court exercised judicial without referring to the facts of the case warranting the exercise of such a jurisdiction. Extraordinary powers appear to have been exercised in a routine manner as if the power underArticle 227of the Constitution was the extension of powers conferred upon a litigant under a specified statute. Such an approach and interpretation is unwarranted. By adopting such an approach some High Courts have assumed jurisdiction even in matters to which the legislature had assigned finality under the specified statutes.

Sub-section (5) of Section 18 unambiguously provide that the decision of the appellate-authority and subject to such decision, an order of the Rent Control Court shall final and shall not be liable to be called in question is any court of law except as provided in Section 20 of the Act.

Proceedings underArticle 227, not being the extension of the proceedings under the Act would not automatical authorise the court to extend the time under the aforesaid proviso. However, it does not mean that in no case the High Courts can extend the time. Exercise of such a power may be necessary if it is shown that "grave injustice" has been done to a party and the case was a fit case where the High Court should have exercised the extraordinary discretionary power in favour of the defaulting party.

Held, not to cross the limits ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of anactmants creating such courts and tribunals. Only wrong decision may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty flagrant abuse of power by the subordinate Courts and tribunals resultantly in "grave injustice" to any party.

2. In Ramesh Chandra Sankla Etc. v. Vikram Cement Etc., AIR 2009 SC 713:MANU/SC/7810/2008 it is held that, "No Appeal UnderArticle 227-Labour and Industrial Courts".

3.In Surya Dev Rai v. Ram Chander Rai & Ors., 2003 (9) AIC 1, it is held as under:

"Proceeding underArticle 226are in exercise of the original jurisdiction of the High Court while proceedings are under Article Proceedings underarticle 226are in exercise of the original jurisdiction of the High Court while proceedings are underArticle 227are supervisory - Supervisory jurisdiction may be refused to be exercised in case of alternative efficacious remedy - Supervisory jurisdiction cannot be limited and can be exercised in case of inter locator's - Curtailment of Revisional jurisdiction of the high Court does not take away the constitutional jurisdiction of the High Court who issued writ of certiorari - Writ of Certiorari is directed against the Act, Order of proceedings of the subordinate court and can also be issued between two private parties - Appeal allowed."

4. In Jasbir Singh v. State Of Punjab-Both administrative and judicial -, Manu/SC/4529/2006 Article 235too.

High Court cannot impress upon to pass upon subordinate judge for perticular order.-ensure that the suordinate Court functions within the limits of their authority the High Court cannot interfere with the judicial function of a subordinate judge -

5. In Mohd. Yunus Vs. Mohd. Mustaqim and Ors., AIR 1984 SC 38:MANU/SC/0066/1983, it is held as under: "Mere wrong decision without anything more not enough to attract jurisdiction of High Court underArticle 227 -supervisory jurisdiction conferred on High Court limited to see that inferior Court or Tribunal functions within limits of authority - petition underArticle 227wholly misconceived."

6.In Pepsi Foods Ltd. and Ors. v. Special Judicial Magistrate and Ors., AIR 1998 SC 128:MANU/SC/1090/1998, it is held as under:

"UnderArticle 227the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be underArticle 227or Section 482 of the Code it may not always be necessary to invoke the provisions ofArticle 226.

7. Scope not as a matter ofRight In Ouseph Mathai and Ors. v. M. Abdul Khadir, AIR 2002 SC 110:MANU/SC/0718/2001, it is held as under: "It is not denied that the powers conferred upon the High Court under Articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubtArticle 227confers a right of superintendence over all courts and tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said Article as a matter of right."

8.In Karthiayani and Ors. v. Ramanathan and Ors., AIR 2005 Ker 241:MANU/KE/0048/2005, it is held as under:

"Power underArt. 227cannot be used to correct an error of fact or an error of law committed by the Subordinate Courts - when the courts below has assumed a jurisdiction which it does not have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and by virtue of those reasons a failure of justice or injustice has occasioned, then only the High court can interfere underArt. 227of the Constitution of India.

The High Court underArt. 227cannot assume unlimited prerogative to correct all species of hardship or wrong decision or error of law or facts. Only in cases where there is grave dereliction of duty and flagrant abuse of fundamental principles of law or justice the court would exercise extraordinary jurisdiction underArticle 227of the Constitution of India. The supervisory jurisdiction underArt. 227of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. Proceedings underArt. 226are in exercise of the original jurisdiction of the High Court while proceedings underArt. 227of the Constitution are not original but only supervisory. The power underArt. 227is intended to be used sparingly and only in appropriate cases for the purpose keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. Subordinate courts may commit error on facts as well as error on law. Powers under Articles 227 cannot be exercised to correct an error of fact or error of law committed by the Subordinate Courts. The court below has assumed a jurisdiction which it does not have or 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 by virtue of those reasons, a failure of justice or grave injustice has occasioned, then only the High Court may step in to exercise its supervisory jurisdiction underArticle 227of the Constitution.

eg. no illegality in rejection of amendment application - no requirement to interfere in the order of suboridinate courts. (Order 6 Rule 17)"

9.In N. M. Engineer and Ors. v. Narendra Singh Virdi and Ors., AIR 1995 SC 448:MANU/SC/0095/1995, it is held as under:

Generally, a new plea is not allowed to be taken for the first time in the proceedings underArticle 227of the Constituion of India. But where the question is purely on law arising and admitting facts it can be raised.

In Pfizer Limited v. Mazdoor Congress and Ors., AIR 1996 SC 2618:MANU/SC/0660/1996, it is held as under: "But when the question is not raised even in the writ petition underArticle 227, the same will not be normally permitted to be urged at the time of arguments."

10.In Atma Ram v. Shakuntala Rani, AIR 2005 SC 3753: MANU/SC/0521/2005, it is held as under:

"When there is serious error of law committed by Court below, High Court can exercise its revisional Jurisdiction and it can quash the orders of lower tribunals, even if the same is concurrent."

9. Keeping in mind the scope ofArticle 227of the Constitution of India by this Court, re-visiting the facts of the present case, it is undisputed fact that the, Modasa Nagarpalika is dumping the solid waste in the so called nearby premises of the Court and other engineering Colleges, Hostels, DSP Office, District Panchayats and other shopping Centers, etc. Further the only stand taken by the petitioner on the basis of the same is not the waste of the hospital but it is the solid west of other things but, in the opinion of this Court, on perusal of the reasons assigned by the learned Principal Senior Civil Judge, Modasa and the order dated 1.8.2019, passed by the Collector for allotment of land for the compost plant to the petitioner, now there is no reason for the petitioner to dump any more dirty solid waste and other garbage at the suit land which creates pollution and health hazards to the nearby vicinity and thus, the respondents have very strong prima facie case and at the same time, balance of convenience is also in favour of the respondents as the act of the petitioner causes public nuisance, which affect the lives of the people at large. So far as the loss and injury are concerned, it appears that because of the dumping of the dirty solid waste of Modasa City at the suit land near the newly constructed court building, it spreads dirty smell in the air which creates air pollution and due to putrefaction of the dirty solid waste, mosquitoes and other biogenies produced which creates public nuisance, which may spread deadly disease in the vicinity area and the Collector has already allotted a new place for compost plant, there is no harm or injury to the present petitioner, if the injunction is granted in favour of the respondents to protect the public nuisance and if the present petitioner is not restrained from dumping any more dirty solid waste at the suit land, if the interim injunction as prayed for by the respondents is not been granted, it will continue the public nuisance and ultimately the plaintiffs and other people coming at the vicinity of area have to suffer pollution and health hazards and therefore, the learned Principal Senior Civil Judge, Modasa has rightly decided the interim injunction in favour of the original plaintiffs who is the respondents, against which the present petitioner has preferred Civil Appeal From Order No. 9 of 209 under Order 43 Rule 1(r) of the Civil Procedure Code before the learned Principal District Judge, at Modasa but the same came to be disallowed by observing that the on 1.8.2019, Collector has allotted compost plant to the petitioner, now there is no reason for the petitioner to dump any more dirty solid waste and other garbage at the suit land which creates pollution and health hazards to the nearby vicinity and thus, the respondents have very strong prima facie case and at the same time, balance of convenience

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is also in favour of the respondents. In short, the reasons which were assigned by both the Courts below at the concurrent level, which are just and proper. In the opinion of the Court, there is no arbitrariness, perversity and illegality in the orders of the Courts below, on the contrary pursuant to the further affidavit filed by the petitioner, the Regional Commissioner Directorate of Municipality, Gandhinagar Zone, vide a letter dated 12.1.2022 approved the fund under the Swatchh Bharat Mission. Further, pursuant to the correspondence, on 31.12.2021, the Chitnis to Collector, Aravalli, Modasa sent a letter that request of Modasa Municipality for dumping solid waste is already considered by way of paying certain amounts and under these circumstances, as such there is no requirement to interfere by this Court underArticle 227of the Constitution of India but in the interest of justice, it would be appropriate if this Court directs to the learned trial Court to expedite the Suit on the basis of the further development without getting influence by order of this Court. 10. In-fleri, this petition deserves to be dismissed and accordingly dismissed, since it is devoid of merits. It is directed that the suit which is pending before the learned trial court will be disposed of on merits within three months from the date of receipt of the order of this Court without being influenced by order of this Court. No order as to costs. 11. Interim relief granted earlier stands vacated forthwith. Rule is discharged. Further order: After passing of the judgment, learned advocate Mr. Vijay Nangesh for the petitioner requested this Court to extend interim relief for a period of two weeks. In view of the discussion made in the judgment, this Court is not inclined to accept the request of the learned advocate Mr. Nangesh. Hence, the request made by the learned advocate Mr. Nangesh is not acceded to.
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