Hamirbhai Kuberbhai Solanki vs State Of Gujarat
2021 Latest Caselaw 3638 Guj

           C/SCA/13556/2020                                   ORDER



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 13556 of 2020
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                HAMIRBHAI KUBERBHAI SOLANKI
                            Versus
                      STATE OF GUJARAT
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Appearance:
R N JADAV(7688) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MR MEET M THAKKAR, AGP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                              Date : 02/03/2021

                                ORAL ORDER

1. By way of this petition under Article 226 of the Constitution of India, the petitioner, being legal heir of deceased Hamirbhai Kuberbhai Solanki has made an attempt to challenge the impugned orders passed by the authorities below and to be precise, the following reliefs are prayed for in the petition:-

[A] Your Lordships may be pleased to admit and allow the present petition.

[B] Your Lordships may be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ/s, order/s, and/or direction/s quashing and setting aside the impugned order passed by [1] Ld. Secretary in the case of MVV/HKP/MRB/03 of 2019, dated 30/04/2019 as well as order passed by the [2] Ld. Collector-Morbi-in the Case No. Land/Appeal/203/Case No.20/2015-16 dated 19/05/2018 as well as order passed by the [3] Ld. Dy. Collector- Morbi in the case No. Parch/Appeal/108(6) Case No.172 of 2011-2012 dated 08/10/2015.

[C] Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ/s, order/s, and/or direction and to holds and declare that the Mutation Entry Nos.746 and 755 are illegal and quashing and setting aside the entries.

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     [D]        Pending admission, hearing and final disposal of this

petition, Your Lordships may be pleased to stay the execution, operation and implementation of the impugned order passed by the [1] Ld. Secretary in the case of MVV/HKP/MRB/03 of 2019, dated 30/04/2019 as well as order passed by the [2] Ld. Collector-Morbi-in the Case No. Land/Appeal/203/Case No.20/2015-16 dated 19/05/2018 as well as order passed by the [3] Ld. Dy. Collector- Morbi in the case No. Parch/Appeal/108(6) Case No.172 of 2011-2012 dated 08/10/2015 and further be pleased to direct the respondents to maintain status quo qua title and possession of the land in question of the petitioner.

[E] ..........."

2. The case of the petitioner is that a land situated at Survey No.227 of village Nichi Mandan of Taluka Morbi, admeasuring 6 Acre was allotted on Santhani basis to one Hamirbhai Kuberbhai by the Deputy Collector, vide order dated 31.1.1968 and the entry to that effect was mutated in the revenue record on 8.5.1968 as entry No.658. The said entry came to be certified on 20.9.1968. Later on, according to the petitioner, a Rajinama was stated to have been given by said Hamirbhai Kuberbhai to the Mamlatdar, Morbi with respect to 4 Acres of land out of 6 Acres and pursuant to the said Rajinama having been approved, entry was mutated in the revenue record, being entry No.746 dated 25.8.1970 and the said entry after due process came to be certified on 13.1.1971. The applicant as a result of which, had filed an appeal before the Deputy Collector, Morbi under Section 108(6) of the Bombay Land Revenue Code on 8.10.2015 assailing the said entry and learned Deputy Collector rejected the said appeal filed by the petitioner and ordered to maintain entry No.746 which was certified on 13.1.1971. Feeing aggrieved by the said, the petitioner approached learned Collector, Morbi by way of further appeal, being Appeal No.20 of 2015-16, which came to be dismissed by the Collector vide order dated

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19.3.2018 by asserting that Shri Hamirbhai Kuberbhai did not give any Rajinama and being a concocted version by the authority. A further revision petition came to be filed before the Special Secretary (Appeals) and the said revision application was registered as Revision Petition No.3 of 2019, which also came to be dismissed vide order dated 30.4.2019, which is made the subject matter of the present petition.

3. When the petition is taken up for hearing, learned advocate Mr. R.N. Jadav appearing for the petitioner has submitted that the Mamlatdar at the relevant point of time had no jurisdiction to pass such kind of order and further, for want of jurisdiction, the order can be said to be non est in the eye of law and cannot be given any effect to. It has further been contended that the Rajinama letter is nothing but a concocted version against the petitioner and in absence of any such letter on record, it is not proper on the part of the authority to pass the impugned order. It has further been contended that no valid reason has been assigned while passing the order. Mr. Jadav has relied upon the two decisions reported in 2000(1) GLR 580 and 1996(2) GLR 688 and has further contended that non est order can be assailed at any time and has stated that the impugned order is not sustainable in the eye of law and the same be quashed and set aside.

4. As against the aforesaid submissions, learned Assistant Government Pleader Mr. Meet M. Thakkar has vehemently submitted that the petition is merit-less and it is on the contrary, a concoction on the part of the son of the deceased - original allottee who did not raise any objection throughout his lifetime and it is only after unreasonable period of at least 45 years, this entry which had already been approved years back is tried to be assailed and therefore, there is no justification in the challenge made in the

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petition. It has further been contended that the authority has examined the proper material and on the contrary, the factum of Rajinama given by said Hamirbhai Kuberbhai had also been examined and pursuant to the statement given by the Talati-cum- Mantri, the effect of Rajinama was also considered and it was further also noticed that even Section 135D notice was also given which was served upon Hamirbhai Kuberbhai on 25.8.1970 and whose signature was also found on the said notice as a part of acknowledgment and therefore, there is no error committed by the authorities in passing the order. Apart from that, Mr. Thakkar has vehemently contended that the orders which have been passed by the authorities are well within their jurisdictional limits and only on the basis of the available material on record, such finding of fact arrived at by the authorities below cannot be interfered with and keeping in view the decisions delivered by the Apex Court reported in (2015)3 SCC 695, the petition being devoid of merit, deserves to be dismissed. It has further been emphatically submitted that during the lifetime, Hamirbhai Kuberbhai had never raised any objection with regard to the said Rajinama to the extent of 4 Acres of land. It is only on account of the son of the deceased that an attempt has been made to assail the orders and entry after unreasonable period and that being the position, the petition deserves to be dismissed.

5. Having heard learned advocates for the parties and having gone through the material on record, it appears that the entry was made on the basis of the Rajinama, which was specifically stated to have been given by deceased Hamirbhai Kuberbhai and based upon such Rajinama, the entry came to be certified on 13.1.1971. It further appears that deceased Hamirbhai Kuberbhai appears to have not raised any objection with regard to such Rajinama during his lifetime, and it is the legal heir of the said deceased who has made an attempt in 2015 to challenge the said entry. Hence, there

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is enormous delay in challenging the said entry which has been certified years back. Apart from that, the reasons which have been assigned by the authorities also appear to be based upon the material on record and there appears to be proper application of mind on the part of the authority and as such, since the conclusion arrived at cannot be said to be perverse in any form, this Court is not inclined to substitute any finding in absence of any distinguishable circumstance.

6. From the reading of the reasons assigned by the Revisional Authority, it appears that the said factum of Rajinama of deceased Hamirbhai Kuberbhai was examined with proper application of mind. It was noticed by the authorities that even Section 135D notice was also served upon the deceased and acknowledgment was also found dated 25.8.1970 and when that be so, it is not proper on the part of the petitioner to raise such grievance after unreasonable period of time. From the record, it further appears that there is some development which took place in the intervening period, for which the entry was also effected, being Entry No.755, and the said circumstance having been considered appropriately by the authorities below, this Court is not inclined to exercise the extraordinary jurisdiction, particularly when the orders are passed well within the bounds of the authority and as such, such concurrent finding of facts is not inclined to be disturbed looking to the peripheral scope propounded by the Apex Court in catena of decisions with respect to exercise of extraordinary jurisdiction. The order in question, as such, cannot be said to be invalid in any form.

7. Additionally, while coming to this conclusion, the Court is conscious about the well defined position of law, propounded by the Apex Court on exercise of extraordinary jurisdiction and since this Court has taken assistance of the same, the relevant observations

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contained in Para 6 and 7 of the judgment in the case of Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374 read as under:-

"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:

"(1) Amendment by Act No.46 of 1999 with effect from 01-07- 2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(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





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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.

(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 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 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

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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."

7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:

"(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 and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, 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

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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 and therefore abridgment by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(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.

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(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."

8. In view of the aforesaid background of fact, the petition being devoid of merit, stands DISMISSED with no order as to costs.

(ASHUTOSH J. SHASTRI, J) OMKAR