Prabhawati Devi vs The Addl. Commissioner (Admin.) ...
2018 Latest Caselaw 3804 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 20.3.2018
 
Delivered on 19.11.2018
 
Case :- WRIT - C No. - 61645 of 2006
 
Petitioner :- Prabhawati Devi
 
Respondent :- The Addl. Commissioner (Admin.) Vindhyachal Div. & Others
 
Counsel for Petitioner :- Rajeev Misra,Anubhav Chandra,Prashant Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Anuj Kumar,V.D. Yadav
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed praying for a writ in the nature of certiorari for quashing the impugned order dated 19.10.2006 passed by the Additional Commissioner (Administration) Vindhyachal Division, Mirzapur rejecting the application of the petitioner for recall of order and the order dated 28.2.2005 passed by the Sub Divisional Magistrate, Sadar Mirzapur.

2. A further prayer has been made for issuance of a writ in the nature of mandamus commanding the respondent no. 2 - the Sub Divisional Magistrate, Sadar Mirzapurr to hear the restoration application filed by the petitioner and decide the same on merits afresh.

3. The facts relevant for the controversy involved in this writ petition are to the effect that there were two plots of land. Plot no. 211 in village Tonga and Plot No. 123 in village Putriha. An application was moved by respondent no. 6 & 7 on 10.8.1984 before the Assistant Collector, Ist Class, Mirzapur praying that the Land Management Committee of village Putriha had allowed exchange of Plot No. 123 ad-measuing 1 Biswa 15 Dhoors with a part of Plot No.211 area 1 Biswa 15 Dhoors.

4. The resolution of the Land Management Committee dated 1.6.1985 as well as the copy of the report submitted by the Revenue Officials was considered by the Sub Divisional Magistrate, Sadar Mirzapur - the respondent no. 2 herein who accepted the same by his order dated 28.6.1985. The petitioner came to know of the order dated 28.6.1985 in 2004 when respondent no. 6 & 7 started collecting building material on plot no. 211 which was land appurtenant to the petitioner's own Plot No. 212 in the same village.

5. The petitioner moved a recall / restoration application numbered as Case No. 705 of 1985. The said application was rejected on 28.2.2005. The petitioner filed a Revision thereafter before the Commissioner, Vindhachal Division registered as Revision No. 213 of 2005 along with the memo of the Revision, the petitioner also filed an application under Section 5 of the Limitation Act explaining that the order dated 28.2.2005 was antedated and also that the petitioner after coming to know of the order dated 28.2.2005 could not pursue the matter by filing Revision earlier as she fell sick.

6. The Revision Filed by the petitioner was allowed by the respondent no. 1 by his order dated 13.12.2005, but the respondent nos. 6 & 7 thereafter moved an application for recall / restoration on 31.1.2006 saying that notice was not served upon the respondent nos. 6 & 7.

7. The restoration application dated 31.1.2006 was opposed by the petitioner by filing her objection on 6.6.2006. However, the same was allowed by the respondent no. 1 by the order dated 7.6.2006. The matter was restored and reheard by the respondent no. 1.

8. The respondent no. 1 thereafter allowed the preliminary objection regarding maintainability of the revision filed by the respondent nos. 6 & 7 and rejected the same by his order dated 19.10.2006.

9. Initially, when the writ petition was filed, this Court had passed an interim order on 15.11.2006 directing maintenance of status-quo with regard to the land in dispute till the next date of listing. The said interim order continued to be extended from time to time. However, the writ petition was dismissed for want of prosecution on 18.4.2014 and the interim order stood discharged.

10. An application for restoration / recall of order dated 18.4.2014 was moved on 25.4.2014 which remained pending till the matter was heard on 25.1.2018 on the application for restoration and the same was allowed, on the condition that since the matter was old and since there was an interim order that was operating the same shall be argued by the learned counsel for the parties on the next date of hearing to expedite its disposal.

11. When the matter was taken up again for hearing, the counsel for the petitioner stated that an application filed by the respondent nos. 6 & 7 under Section 161 of the U.P. Z.A. & L.R. Act for exchange of certain lands belonging to them with that of the Gram Sabha land was not maintainable, as under Section 3(14) of the U.P. Z.A. & L.R. Act "land" has been defined as land used for agriculture, horticulture and other purposes and lands mentioned under Sections 109, 143 & 144 stood exempted. The land which was exchanged by the Gaon Sabha was abadi land and it did not fall within the definition of "land" liable to be exchanged. This fact was also recorded in the orders impugned before the lower Court.

12. However, the Sub Divisional Magistrate without jurisdiction to entertain the application under Section 161 of the U.P. Z. A. & L.R. Act allowed such exchange to the detriment of the petitioner. Actually the land / part of plot no. 212 did not belong to the Gaon Sabha, but it was that of the petitioner. The petitioner came to know of the fraud committed by the respondent nos. 6 & 7 and therefore moved a restoration application. The restoration application has been rejected on 28.2.2005 without application of mind and without passing any reasoned order by the respondent no. 2.

13. Aggrieved by such rejection by a non speaking order, the petitioner filed a Revision which was initially allowed by the respondent no. 1, but on a recall application being filed, the Revision was restored and reheard, the Revisional Court rejected the Revision only on the ground that the petitioner had moved the recall application in her own interest and not in the interest of the Gaon Sabha and after considerable delay.

14. The Revisional Court recorded a finding without any basis that the land was abadi land belonging to the Gaon Sabha and the petitioner had encroached upon the same and that the attempt at restoration filed by the petitioner was only an attempt to grab Gaon Sabha land. It was wrongly held by the respondent no. 1 that if the Gaon Sabha was aggrieved by wrong exchange of land, it could have filed a restoration application and petitioner had no locus-standi in the matter.

15. Having heard the learned counsel for the petitioner and having perused the records, this Court finds that there are pleadings in the writ petition to the effect that Plot No. 123 is a large plot out of which only a part i.e. an area 1 Biswa 15 Dhoorswas offered for exchange which amounted to fragmentation of agricultural land and was violative of Section 168 of the U.P. Z.A. & L.R. Act.

16. It has also been submitted that the petitioner is the owner and in possession of plot no. 212 adjacent to survey plot no. 211. It is through plot no. 211 that the petitioner approaches the main chakroad and her right of ingress and egress shall be disturbed.

17. Moreover, the land in question being adjacent to the abadi of the petitioner / sahan it would greatly inconvenience the petitioner if the same is given to the respondent nos. 6 & 7 to raise their construction over it.

18. From the pleadings of the writ petition, it is evident that the petitioner had also filed an Original Suit No. 378 of 2006 (Prabhawati Singh Vs. Chandeshwar Singh) praying for an injunction against the respondents prohibiting them to raise construction on plot no. 211 and disturbing the possession of the petitioner over the same. A copy of the plaint of the Original Suit No. 378 of 2006 has been filed before the Civil Judge (Junior Division), Mirzapur along with the application for temporary injunction and the order passed thereon for maintenance of status quo by the learned Trial Court has been filed as Annexures 14 & 15 to the writ petition.

19. From a careful examination of the plaint filed in Original Suit No. 378 of 2006, it is evident that the petitioner has alleged that Plot Nos. 211 and 212 both belonged to one Thakur Krishnapal Singh and the petitioner's predecessor-in-interest had bought plot no. 211 and the part of plot no. 212 from Thakur Krishnapal Singh and had raised construction, viz their house and sahan over it along with boundary wall and part of plot no. 212 was being used as appurtenant land of the house for ingress and egress to the main road. In the said plaint there is a mention that the petitioner continued in peaceful possession on part of plot no. 212 till on 24.10.2006. The defendants (who arrayed as respondent nos. 6 & 7 to the writ petition) started to collect building material thereon intending to raise construction. In support of the plaint, the petitioner filed a copy of the sale agreement allegedly entered into with the erstwhile owner of plot no. 212 - Thakur Krishnapal Singh. Learned Trial Court issued notice and directed that till disposal of the application for temporary injunction status quo be maintained between the parties.

20. In view of the documents filed by the petitioner herself in this writ petition, it is apparent that the order passed by the Additional Commissioner dated 19.10.2006 does not suffer from any infirmity. Even if what the petitioner says regarding inadmissibility of an exchange application under Section 161 to be entertained by the respondent no. 2 is to be taken as correct, although the fact has been seriously disputed by the respondent nos. 6 & 7, and there are reports of the Revenue Officials finding the nature of the land to be the same and circle rate being comparative with the land proposed to be exhanged and resolution of the Gaon Sabha permitting such exchange; This Court does not wish to exercise jurisdiction under Article 226 of the Constitution, in such a matter where the petitioner has herself filed an Original Suit No. 378 of 2006 before the Civil Judge (Junior Division), Mirzapur which is pending before the Trial Court and where the rights of the parties can be finally adjudicated.

21. In Sayed Yakoob Vs. K.S. Radhakrishnan AIR 1964 SC 477, the Constitution Bench of the Supreme Court in paragraph 7 observed thus:-

"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had. erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised."

(emphasis supplied)

22. In Surya Dev Rai Vs. Ram Chander Rai reported in 2003 (6) SCC 675, the relevant extract of paragraph 38 of the report is being quoted herein below:-

"Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-

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(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has 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 failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) 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 face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."

(emphasis supplied)

23. The Supreme Court in Sant Lal Gupta Vs. Vs. Ram Chandra Modern Cooperative Group Housing Society Ltd. 2010 (13) SCC observed that "a writ of certiorari under Article 226 of the Constitution can be issued only when there is a failure of justice and it cannot be issued merely because it may be legally permissible to do so."

24. After having carefully perused the order passed by the respondent no. 2 and the respondent no. 1 impugned in this writ petition, it is apparent that there was no legal infirmity in the orders impugned as substantial justice has been done between the parties.

25. The view taken by the Additional Commissioner is a possible view and not one which is clearly arbitrarily and in excess of jurisdiction for warranting this Court to exercise supervisory jurisdiction under Article 226 of the Constitution. The rights of the parties are yet to be determined by the Trial Court and the orders impugned have not resulted in any grave injustice, which would require interference by this Court.

26. The writ petition is dismissed. No order as to costs.

Order Date :- 19.11.2018

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