Pravin Gehlot vs Ujjain Development Authority & Ors.

"7. RELIEF PRAYED FOR:

It is, therefore, prayed that the petition may kindly be allowed and the impugned order dated 30.09.2026 vide Annexure P/1, may kindly be set aside and the order passed by the learned Trial Court on dated 29.03.2025 Annexure P/6, may kindly be confirmed and restored."

"4.

अपीलार्थी/ प्रतिवादी की ओर से प्रस्तुत इस विविध अपील में आधार लिए गये हैं कि वादी/प्रत्यर्थी भवन क. 7/5, एल.पी. भागव नगर, उज्जैन में परिवार सहित निवास करता है। विचारण न्यायालय ने वादी द्वारा प्रस्तुत दस्तावेजों को ही महत्वपूर्ण माना है तथा अपीलार्थीगण द्वारा प्रस्तुत दस्तावेजों का कोई विचार नहीं कर आलोच्य आदेश पारित करने में त्रुटि की है। विचारण न्यायालय ने प्राधिकरण के उपयंत्री की रिपोर्ट दिनांक 13.02.25 पर कोई गौर नहीं किया गया और अपीलार्थीगण के विरुद्ध आलोच्य आदेश पारित किया। अपीलार्थी द्वारा विचारण न्यायालय में वादी एवं उसकी माता के नाम के अन्य भवन होने के संबंध में दस्तावेज प्रस्तुत किये थे, परन्तु न्यायालय द्वारा उन्हें नजर अंदाज किया गया। अपीलार्थी द्वारा विचारण न्यायालय में दस्तावेज प्रस्तुत कर यह तथ्य बताया गया कि वादी प्रत्यर्थी आवंटित भवन में निवास नहीं करता है, परन्तु विचारण न्यायालय द्वारा उन तथ्यों को अनदेखा करते हुए आलोच्य आदेश पारित करने में वैधानिक त्रुटि की है। अतः अपीलार्थी की अपनी स्वीकार कर विचारण न्यायालय द्वारा पारित आदेश दिनांक 29.03.25 निरस्त किये जाने का निवेदन किया है।"

"1. Appeal from orders

An appeal shall lie from the following orders under the provisions of section 104, namely :--

(a)

an order under rule 10 of Order VII returning a plaint to be presented to the proper Court 1[except where the procedure specified in rule 10A of Order VII has been followed] ;

²[***]

(c)

an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit ;

(d)

an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte ;

3[***]

(f)

an order under rule 21 of Order XI ;

4[***]

(i)

an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement ;

(j)

an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale ;

1[(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;]

(k)

an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit ;

(l)

an order under rule 10 of Order XXII giving or refusing to give leave ;

5[***]

(n)

an Order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit ;

1[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person ;]

6[***]

(p)

orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;

(q)

an order under rule 2, rule 3 or rule 6 of Order XXXVIII ;

(r)

an order under rule 1, rule 2 1b[rule 2A], rule 4 or rule 10 of Order XXXIX ;

(s)

an order under rule 1 or rule 4 of Order XL ;

(t)

an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal ;

(u)

an order under rule 23 1b[or rule 23A] or Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court ;

7[***]

(w)

an order under rule 4 of Order XLVII granting an application for review."

11.

It is settled low that while passing an intern order of injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1906, the court is required to consider those basic principles, namely, (a) prima facie cause, (b) balance of convenience and inconvenience, and (c) irreparable loss and injury. In addition to the abovementioned three basic principles, a court, while granting injunction must also take into consideration the conduct of the parties.

12.

It is also established law that the court should not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequences depending upon the nature thereof and in dealing with such matters the court must make all endeavours to protect the interest of the parties.

17.

Inasmuch suit is pending, it would not be proper for this Court to delve into the matter and arrive at a categorical finding one way or other. Accordingly, we have to find out whether there is prima facie case and "balance of convenience" in terms of principles mentioned above.

18.

The finding of the learned Single Judge about the construction of the building to the height of 10 ft on the suit land by the appellant cannot be ignored. However, whether the defendant permitted the appellant to enter on the suit land and to carry on construction are all matters to be decided in the main suit. The limited relief granted in Clause (g) by the learned Single Judge is quite understandable, otherwise, it could be possible for the defendant to deal with the suit land with third parties or encumber it before the final disposal of the suit. However, as rightly observed by the learned Single Judge as well as the Division Bench, if other reliefs which we have already extracted above are granted, in the event of dismissal of suit, undoubtedly, it would create enormous difficulties for the defendant using the plot or land freely and without any difficulty. In other words, if the appellant was al lowed to proceed with the construction on the suit land, in the event of dismissal of suit, the defendant cannot use the land in a different manner with the structure without undertaking an enormous exercise of demolishing the same. Further, what was claimed by the plaintiff was not a mere prohibitory order but prayed for positive mandatory injunction which, as rightly observed by the Division Bench, would permit the plaintiff to alter the status quo on the suit land on the date of the suit.

19.

The learned Single Judge as well as the Division Bench on appreciation of entire materials rendered the factual finding that the balance of convenience is not in favour of granting such mandatory interim order as claimed in Prayer Clauses (a) to (f). It is relevant to point out though the appellant had stated that it had started construction in the year 1996, even after the information by the defendant to the appellant in 2002 that BEST had given their "no objection" for the demolition of temporary receiving station and the appellant can proceed with the demolition, however, the fact mains, the height of the construction only 80 ft which shows that from the year 2001 to 2007, the appellant had not carried on and there no obstruction from the side of the defendant. In view of all these factual aspects and in the light of the stand of the defendant disputing the existence of the agreement, as rightly observed by the learned Single Judge as well as the Division Beach, further permission for construction or ancillary works cannot be granted during the pendency of the suit.

20.

We are satisfied that the learned Single Judge was fully justified in granting limited relief in respect of Prayer Clause (g) and declined the other reliefs in Classes (a) to (f). The Division Bench was also fully justified in confirming the said limited order. Though the learned Senior Counsel for the respondent has prayed for certain directions such as execution of a mortgage deed, etc. for the same reasons mentioned above, we are not inclined to grant such relief as claimed. As observed earlier, at this stage, it is not desirable to go into all the detail and render a specific finding which would undoubtedly affect the claim of both the parties in the main suit. On the other hand, we are in entire agreement with the prima facie conclusion arrived at by the learned Single Judge and the Decision Bench.

"37.

The Constitution Bench in Nagendra Nath [AIR 1958 SC 398] , unanimously speaking through B.P. Sinha, J. (as His Lordship then was) pointed out that High Court's power of interference under Article 227 is not greater than its power under Article 226 and the power of interference under Article 227 of the Constitution is limited to ensure that the tribunals function within the limits of its authority. (emphasis supplied)

38.

The subsequent Constitution Bench decision of this Court on Article 227 of the Constitution, rendered in State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela [AIR 1968 SC 1481] also expressed identical views. Bachawat, J. speaking for the unanimous Constitution Bench opined that the power under Article 227 cannot be fettered by the State Legislature but this supervisory jurisdiction is meant to keep the subordinate tribunal within the limits of their authority and to ensure that they obey law.

39.

So the same expression, namely, to keep the courts and tribunals subordinate to the High Court “within the bounds of their authority” used in Manmatha Nath Biswas [AIR 1933 Cal 132] , to indicate the ambit of High Court's power of superintendence has been repeated over again and again by this Court in its Constitution Bench decisions.

40.

Same principles have been followed by this Court in Mani Nariman Daruwala v. Phiroz N. Bhatena [(1991) 3 SCC 141] , wherein it has been held that in exercise of its jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. This Court made it clear that except to this “limited extent” the High Court has no jurisdiction to interfere with the findings of fact (see SCC pp. 149-50, para 18). In coming to the above finding, this Court relied on its previous decision rendered in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] . The decision in Chandavarkar [(1986) 4 SCC 447] is based on the principle of the Constitution Bench judgments in Waryam Singh [AIR 1954 SC 215] and Nagendra Nath [AIR 1958 SC 398] discussed above.

41.

To the same effect is the judgment rendered in Laxmikant Revchand Bhojwani v. Pratapsing Mohansingh Pardeshi [(1995) 6 SCC 576] . In SCC para 9 at pp. 579-80 of the Report, this Court clearly reminded the High Court that under Article 227 that it cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.

42.

Same views have been taken by this Court in respect of the ambit of High Court's power under Article 227 in Lonand Grampanchayat v. Ramgiri Gosavi [AIR 1968 SC 222] (see AIR pp. 222-34, para 5 of the Report) and the decision of this Court in Jijabai Vithalrao Gajre v. Pathankhan [(1970) 2 SCC 717] . The Constitution Bench ratio in Waryam Singh [AIR 1954 SC 215] about the scope of Article 227 was again followed in Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand [(1972) 1 SCC 898] .

43 [Ed.: Para 43 corrected vide Official Corrigendum No. F.3/Ed.B.J./84/2010 dated 26-8-2010.] . In a rather recent decision of the Supreme Court in Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] , a two-Judge Bench of this Court discussed the principles of interference by the High Court under Article 227. Of course in Surya Dev Rai [(2003) 6 SCC 675] this Court held that a writ of certiorari is maintainable against the order of a civil court, subordinate to the High Court (SCC p. 688, para 19 of the Report). The correctness of that ratio was doubted by another Division Bench of this Court in Radhey Shyam v. Chhabi Nath [(2009) 5 SCC 616] and a request to the Hon'ble Chief Justice for a reference to a larger Bench is pending. But insofar as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned, there is no divergence of views.

47.

The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226, the High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. (See Surya Dev Rai [(2003) 6 SCC 675] , SCC p. 690, para 25 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233] , AIR p. 243, para 20.)

48.

The jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. The jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex debito justitiae or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a letters patent appeal or an intra-court appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all the High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.

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 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 [AIR 1954 SC 215] and the principles in Waryam Singh [AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e)

According to the ratio in Waryam Singh [AIR 1954 SC 215] , 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 or 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 [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.

(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 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."