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HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

OWP No. 2612/2018,

IA No. 1/2018.

Date of Order: 27.12.2018.

Mohd. Asdullah Wani

Vs

Principal District & Sessions Judge, Ramban and others

Coram:

Hon’ble Mr. Justice Dhiraj Singh Thakur, Judge

For the appellant(s)/petitioner(s) : Mr. Mohd. Nadeem Bhat, Advocate.

Mr. Bodh Raj Sharma, Advocate.

For the respondent(s)

:

i.

Whether approved for

:

Yes/No

reporting in Press/Media

ii.

Whether to be reported in

:

Yes/ No.

Digest/Journal

(Oral)

01.

This is a petition filed under Section 104 of the Constitution

of J&K against the order dated 26.07.2018, passed by the

learned Principal District & Sessions Judge, Ramban. By

virtue of the order impugned, the Appellate Court has set

aside the order of the Trial Court, vacating the order of

status-quo and further directed the maintenance of status-

quo on the spot till disposal of the suit.

02.

It is pertinent to mention that the basis for the Trial Court in

vacating the order of status-quo was the fact that the Trial

Court was persuaded in regard to the possession of the

petitioner herein over the land measuring 02 kanals and 18

marlas, based upon the Khasra Girdawari for the year 2016.

However, the Appellate Court while considering the same

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Khasra Girdawari had noticed the order passed by the

Deputy Commissioner, Ramban dated 27.02.2016, based

upon which Sehat Kasht Intqal No. 554 in favour of the

petitioner had been cancelled.

03.

It appears that the entire controversy centered around the

Khasra Girdawari of 2016, which both the fora below have

discussed and considered while passing their respective

orders. The status-quo now ordered to be maintained by the

Appellate Court is based upon reasons, which cannot in any

manner be said to be perverse. It cannot be said that the

Appellate Court in passing the order had failed to exercise

its jurisdiction vested in it.

04.

The scope and ambit of the powers exerciseable by the High

Courts in their supervisory jurisdiction under Article 227 of

the Constitution of India, which is analogous to Section 104

of the Constitution of Jammu and Kashmir, is no longer res

integra. p

05.

The Apex Court in Shalini Shyam Shetty and anr v.

Rajendra Shankar Patil, (2010)8 SCC 329, placed

reliance upon a constitution bench judgment of the Apex

Court in Waryam Singh & anr vs. Amarnath & anr, AIR

1954 SC 215 and crystallized the parameters for such an

exercise as under:

(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.

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(b)

In any event, a petition under Article

227 cannot be called a writ petition. This

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 Hig