Rama Babli Ugvekar (Decd.) By ... vs Girish Vinayak Abhyankar (Decd.) ...
2016 Latest Caselaw 2107 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION




                                                                                       
                           WRIT PETITION NO. 9927             OF 2004




                                                               
            Shri Rama Babli Ugvekar
            deceased through legal heirs
            Smt. Yashoda Rama Ugvekar
            & Ors.                                              ..      Petitioners




                                                              
                   vs.
            Girish Vinayak Abhyankar
            (legal heirs) M. V. Abhyankar & Ors.                ..      Respondents

            Mr. A. S. Khandeparkar with Mr. Rakesh Pathak i/b. Khandeparkar




                                                    
            & Associates for Petitioners.
            Mr. Abhijit Kadam i/b. Mr. Sudhir Prabhu for Respondent Nos. 1c, 2,
                                   
            3 and 6.

                                               CORAM : M. S. SONAK, J.
                                  
             Date of Reserving the Judgment :                  26      April 2016
             Date of Pronouncing the Judgment :                02      May 2016

            JUDGMENT :

1] This petition is directed against the judgments and orders

dated 30 July 1999 and 10 October 2001 made by the Special

Land Acquisition Officer, Konkan Railway Project, Sindhudurg

(SLAO) and the Maharashtra Revenue Tribunal (MRT),

concurrently negating the petitioners claim of tenancy in respect of

the property admeasuring approximately 1.62 Ha, bearing Survey

no. 36, Hissa No. 2 of Village Aros, Tal : Sawantwadi (suit property).

2] The petitioners application under Section 70(b) of the

Maharashtra Tenancy and Agricultural Lands Act, 1948 (Tenancy

Act) was in fact allowed by the Tahsildar, Sawantwadi, vide

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judgment and order dated 31 March 1994, thereby declaring the

petitioners as agricultural tenants in respect of the suit property. The

SLAO, upon appeal instituted by the respondent no.1(c), 2, 3 and 6,

who also claim to be agricultural tenants in respect of the suit

property, has reversed the Tahsildar by the impugned judgment and

order dated 30 July 1999. The revision petition instituted by the

petitioners about MRT was also dismissed vide impugned judgment

and order dated 10 October 2001. Hence, the present petition.

3] Mr. Khandeparkar, learned counsel for the petitioners has

submitted that the SLAO and MRT have exceeded jurisdiction in

interfering with the Tahsildar's well reasoned order dated 31 March

1994. Mr. Khandeparkar submitted that in the present case, the

landlords had fully supported the case of the petitioners and even

admitted the petitioners as agricultural tenants in respect of the suit

property. That apart, the petitioners had produced rent receipts and

even the name of the petitioners was recorded in the survey

documents. The oral evidence also supported the petitioners claim

to agricultural tenancy. In the light of all these facts and

circumstances borne out from the record, both the SLAO and MRT

clearly exceeded their jurisdiction in depriving the petitioners their

status as agricultural tenants in respect of the suit property. Mr.

Khandeparkar submitted that the findings of fact recorded by the

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SLAO are perverse and the MRT failed to exercise jurisdiction

vested in it, by not interfering with the SLAO's judgment and order

dated 30 July 1999.

4] On the other hand, Mr. Kadam, learned counsel appearing

for respondent nos. 1(c), 2, 3 and 6 submitted that it is these

respondents who are the agricultural tenants in respect of the suit

property. Mr. Kadam submitted that the material on record very

clearly establishes that the petitioners have a structure in the suit

property, about which, there is no dispute. Mr. Kadam however

submitted that the petitioners taking advantage of the existence of

said structure and the noting in the survey records corresponding

to the said structure are trying to lay claim to agricultural tenancy

in respect of the suit property. Mr. Kadam submitted that the SLAO

and the MRT have very correctly appreciated the material on record

and negatived the claim of the petitioners. Mr. Kadam submitted

that this Court, in the exercise of its supervisory jurisdiction under

Article 227 of the Constitution of India may not interfere with the well

reasoned decisions and the concurrent findings recorded by the

SLAO and the MRT. For these reasons, Mr. Kadam submitted that

this petition may be dismissed.

5] The respondents - landlords, though served, have not

appeared in this petition.

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            6]      The rival contentions now fall for determination.




                                                                                        
            7]      At the outset it must be noted that in matters of this nature,




                                                                

the scope of interference in the exercise of supervisory jurisdiction

is quite limited. This jurisdiction is to be exercised, not as a matter

of routine, but only in appropriate cases in order to keep the

subordinates courts within the bounds of their authority and not for

correcting mere errors. In the exercise of its jurisdiction under Article

227 of the Constitution of India, this Court can set aside or reverse

finding recorded by the subordinate court or a tribunal only in a case

where there is no evidence or where no reasonable person could

possible have come to the conclusion which the court or tribunal

has come to.1 In the exercise of such jurisdiction, the court 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.2

8] In Shalini Shyam Shetty & Anr. vs. Rajendra Shankar

Patil3, the Hon'ble Apex Court has held that the High Courts cannot

at the drop of a hat, in exercise of its power of superintendence

under Article 227 of the Constitution of India, interfere with the

orders of tribunals or courts inferior to it. Nor can it, in exercise of 1 AIR 1954 SC 215 Waryam Singh vs. Amarnath (1991) 3 SCC 141 Mani Nariman Daruwala vs. Phiroz N. Bhatena 2 (1995) 6 SCC 576 Laxmikant Revchand Bhojwani vs. Pratapsing Mohansingh Pardeshi 3 (2010) 8 SCC 329

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this power, act as a court of appeal over the orders of courts or

tribunal subordinate to it. The parameters of interference by High

Courts in exercise of 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 (supra), which have been

repeatedly followed by subsequent Constitution Benches and

various other decisions of this Court.

9]

In a dispute arising under the Andhra Pradesh (Andhra Area)

Tenancy Act, 1956, the Hon'ble Supreme Court in the case of

Bandaru Satyanarayana vs. Imani Anasuya & Ors.4 set aside

the decision of the High Court which had interfered with the

decisions of the courts and tribunals subordinates to it, by observing

that the learned Single Judge of the High Court had overlooked the

limited scope of supervisory jurisdiction vested in the High Court

under Article 227 of the Constitution of India and ignored the law

laid down in Surya Dev Rai vs. Ram Chandra Rai5 and Shalini

Shyam Shetty (supra). At paragraphs 8, 9 and 10 the Hon'ble

Supreme Court has observed thus :

"8. In our view, the order under challenge is liable to be set aside only on the ground that while deciding the revision filed by Respondent No. 1, the learned Single Judge overlooked the limited scope of the supervisory jurisdiction vested in the 4 (2011) 12 SCC 650 5 (2003) 6 SCC 675

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High Court under Article 227 of the Constitution and ignored the law laid down in Surya Dev Rai v. Ram Chander Rai

(2003) 6 SCC 675 and Shalini Shyam Shetty and Anr. v. Rajendra Shankar Patil (2010) 8 SCC 329. In Surya Dev Rai

v. Ram Chander Rai (supra), the Court considered the parameters for exercise of power by the High Court under

Articles 226 and 227 of the Constitution and laid down various principles including the following:(SCC pp. 695-96, para 38)

"38. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts

within the bounds of their jurisdiction. When a 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 (ii) a grave injustice or

gross failure of justice has occasioned thereby.

* * * (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

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need to be exercised, when any of the above said 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 the 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 convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct

errors in drawing inferences or correct errors of mere formal

or technical character.

9. In Shalini Shyam Shetty v. Rajendra Shankar Patil (supra), the Court again examined the scope of supervisory

jurisdiction of the High Court under Article 227 of the Constitution and laid down several principles, Clauses (c),(d),

(g)and (h) whereof are reproduced below:(SCC pp.347-48, para 49)

(c) The 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

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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 v. Amarnath AIR 1954 SC 215 and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various

other decisions of this Court.

(g) Apart from the situations pointed in (e) and (f), the 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 the 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.

10. In view of the law laid down in the above noted judgments, it must be held that the learned Single Judge committed a jurisdictional error by reversing the finding of fact

recorded by the Tribunal that the Appellant was in cultivating possession of the suit land and had acquired the status of a statutory tenant".

10] In matters of findings of fact, this Court in the exercise of its

jurisdiction under Articles 226 and 227 of the Constitution of India

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does not sit in appeal over the concurrent findings of fact recorded

by the court and the tribunal subordinate to it. Interference is

permissible where there is misconstruction of certain vital

documents or where the finding of fact is vitiated by perversity, in

the sense that the same is based upon 'no evidence', or where vital

and relevant evidence has been totally over looked, or where the

entire decision is based upon irrelevancies. In short, if the High

Court comes to the conclusion that upon the materials placed on

record it is not possible for a reasonable man to come to conclusion

arrived at by the court or tribunal subordinate to it or where the court

and the tribunal has failed to take into consideration certain

relevant materials or has taken into consideration certain materials

which are not admissible, only then, the High Court will interfere

with findings of fact recorded by the court and the tribunal

subordinate to it6

11] Considering the limited scope of interference, in my judgment,

the petitioners have failed to make out a case warranting

interference with the impugned judgments and orders made by the

SLAO and the MRT, recording concurrent findings of fact that the

petitioners are not the agricultural tenants in respect of the suit

property and that the rights of the petitioners are only restricted to

the structure admittedly held by them in the suit property. Such 6 (2000) 7 SCC 522 Shama Prashant Raje vs. Ganpatrao & Ors.

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concurrent findings of fact, cannot be said to be vitiated by any

perversity. The conclusion recorded by the SLAO and the MRT, is

substantially borne from the material on record and therefore, there

is no case made out to interfere with the impugned judgments and

orders in exercise of supervisory jurisdiction under Article 227 of the

Constitution of India.

12] The circumstance that the landlords have supported the case

of the petitioners, is no doubt relevant, but at the same time, the

same is not conclusive. The survey records indicate the names of

the respondents whom Mr. Kadam represents or their predecessors

-in-title as agricultural tenants in respect of the suit property. The

names of the petitioners or their predecessors-in-title finds place in

survey record, but the same is in the context of the structure

admittedly held by the petitioners. As against the names of the

petitioners or their predecessors-in-title, there is significantly no

reference to the area either occupied by them or under their

cultivation. The rent receipts have been disbelieved by the two

courts and cogent reasons have been assigned as to why such

receipts cannot be accepted or acted upon.

13] The two courts have categorically held that the petitioners

have admitted in their deposition that they have throughout been

staying at Mumbai. The witness on behalf of the petitioners, in his

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cross-examination admitted the position that from the age of 5 years

he has been staying at Mumbai. There is no dispute that the

respondents have been staying in or upon the said property. The

material on record, including the survey documents suggest that it

is the respondents, who have been cultivating the suit property.

There is also record that said respondents had in fact initiated

proceedings under the Tenancy Act seeking to affirm their status as

deemed purchasers. However, such proceedings were ultimately

dropped as the suit property was found to be pre- dominantly a

cashew fruit tree plantation and consequently the provisions

contained in section 32G of the Tenancy Act were inapplicable to

the suit property. The SLAO and the MRT have appreciated, both

the oral and documentary evidence on record and thereafter,

disbelieved the case set up by the petitioners. This is not a case of

either no evidence or exclusion of material and relevant evidence.

This is also not a case where any irrelevancies have been taken

into consideration by the two authorities. As noted earlier, in

exercise of supervisory jurisdiction, this court cannot scan the

material on record in order to re-appreciate the same. There is vital

distinction between supervisory jurisdiction and appellate

jurisdiction.

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            14]       Therefore, upon cumulative consideration of the aforesaid

facts and circumstances and bearing in mind the limited scope of

jurisdiction under Article 227 of the Constitution of India, this petition

is dismissed. There shall be no order as to costs.

(M. S. SONAK, J.)

Chandka