Jharkhand High Court
Vivek Sahu vs The State Of Jharkhand Through Its ... on 5 July, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3575 of 2013
1. Vivek Sahu
2. Bidhan Sahu
Both S/o-Late Jiten Sahu
3. Sifali Sahu W/o-Late Mitan Sahu
4. Vijoy Sahu s/o Late Govind Sahu
5. Jai Shankar Sahu S/o Late Govind Sahu
6. Sibshankar Sahu S/o Late Govind Sahu
7. Mantu Sahu s/o Late Govind Sahu
8. Prabhat Sahu
9. Monsa Sahu
10. Kartik Kumar Sahu @ Kartik Sahu
Petitioner No.-8 to 10 are S/o Late Damodar Sahu
11. Gadadhar Sahu s/o Late Gopal Sahu
12. Rajdhar Sahu S/o-Late Gopal Sahu
13. Panchanand Sahu S/o Late Gangadhar Sahu
14. Dinesh Chandra Sahu S/o Late Gangadhar Sahu
All R/o-Village Pakuria, P.S.-Pakuria, Sub-Division & District-Pakur.
... ... Petitioners
Versus
1. The State of Jharkhand through its Secretary Govt. of Jharkhand,
Nepal House, District Ranchi.
2. The Commissioner, Santhal Pargana Division, P.O.+P.S.+Dist.-
Dumka.
3. The Deputy Commissioner, P.O.+P.S.+Dist.-Pakur.
4. The Circle Officer, Pakuria, P.S.-Pakuria, Sub-Division and District-
Pakur.
5. The Sub-Divisional Officer, Pakuria, P.S.-Pakuria, Sub-Division and
District-Pakur.
... ... Respondents
2
6. Gunadhar Sah S/o Late Amrendra Nath Sahu.
7. Bhupendra Nath Sah S/o-Late Sarbeshwar Sahu.
Both R/o Village Pakuria, P.S.-Pakuria, Sub-Division and District-
Pakur.
...... Proforma Respondents
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-------
For the Petitioner : Mr. Ashish Jha, Advocate
For the Respondents : Mr. Rishi Raj Verma, AC to SC-III
Mr. Manoj Kr. Sah, Advocate
---------------------------
06/Dated 05th July, 2022
1. The instant writ petition is under Article 226 of the Constitution of
India wherein following prayers have been made:
(i) to quash the notice issued by the Sub-Divisional officer, Pakur
(Anexure-1);
(ii) to quash the order dated 01.06.2012 (annexure-2) passed by the
Deputy Commissioner, Pakur in RMP Case No.01/2012;
(iii) to quash the appellate order dated 14.03.2013 (Annexure-7)
passed by the Commissioner, Santhal Pargana Division, Dumka
in R.M.R. No.512/12-13,
whereby and whereunder, the respondent authorities initiated a
proceeding against the petitioners under Public Land
Encroachment Act vide Revenue Misc. Case No.04/2012-13 for
eviction from plot no.675 and during pendency of the said
proceeding, the learned Sub-Divisional Officer, Pakur issued a
letter no.201/D.B. dated 30.05.2012 to the Deputy Commissioner
of Pakurwith a recommendation to cancel the settlement of the
aforesaid plot with the petitioners ancestors and for taking steps
for their eviction.
2. The brief facts of the case as per the pleading made in the writ petition,
which is required to be enumerated, read as under:
It is the case of the petitioner that the last settlement of plot
no.675 appertaining to Anabadi Khata No.121 of the mouza Pakuria
within Pakuria P.S. came to be recorded as Puratan Patit (Waste Land)
of the mouza and such waste land were/are available for settlement with
the deserving raiyats as per clause 16 of the record of right and such
lands were governed by Regulation 3 of 1872 of the Santhal Parganas
Settlement Regulation, 1872.
The mouza Pakuria was under the proprietorship of Maheshpur
Raj and the Zamindar (Proprietor) having the rights to make raiyati
settlement of waster lands had made raiyati settlement of 01 bigha 07
katha 17 dhurs of land within plot no. 675 with Sarbeshwar Sahu,
Gopeshwar Sahu and Hare Krishna Sahu in the year 1937 prior to
coming into force the act of the Santhal Parganas Tenancy
(Supplementary Provisions) Act, 1949, hereinafter referred to as the
Act, 1949.
According to the petitioner, the plot no.675 was rocky and
uncultivable land and under such circumstances the ancestors of the
petitioners made a reservoir over a portion of the said plot and made
few structures over the same and also kept paying the rent for the said
land to the zamindar.
The petitioners and ancestors of the proforma respondents
received a notice from the office of the Sub-Divisional Officer, Pakur
in connection with an eviction proceeding under Public Land
Encroachment Act vide Revenue Misc. Case No.04/2012-13 in which
these petitioners along with the proforma respondents were directed to
file their show cause against their eviction from the plot no.675.
The proforma respondents had appeared before the Sub-
Divisional Officer, Pakur in connection with the eviction proceeding
under the Public Land Encroachment Act vide Revenue Misc. Case
No.04/12-13 but during pendency of the said proceedings, the S.D.O.,
Pakur sent a letter being letter no.201/D.B. dated 30.05.2012 with a
recommendation to cancel the settlement of the plot no.675 with the
petitioners ancestors and for taking steps for the eviction of the
petitioners from the said plot and on that basis Revenue Misc. Petition
No.01/2012 came to be registered in the court of the learned Deputy
Commissioner of Pakur.
It is the further case of the petitioner that during pendency of
the aforesaid proceeding, ex-parte enquiry reports vide letter no.199/R
dated 02.05.2012 and letter no. 193/R dated 30.04.2012 of the circle
officer were being sent to the Deputy Commissioner of Pakur in which
it was reported that in Register-II names of Sarbeshwar and others has
been recorded with respect to the plot no.675 and rent for this land is
also being realized by the State, however, it was falsely and incorrectly
reported that a portion of the plot has been transferred to some others.
It is the further case of the petitioner that the petitioners and the
proforma respondents were not being noticed from the court of the
Deputy Commissioner of Pakur in Revenue Misc. Petition No.01/2012
and the Revenue Misc. Case No.04/2012-13 pending in the court of the
S.D.O. and in their absence the order was passed on 01.06.2012 in
R.M.P. No.01/2012 with a direction to cancel the jamabandi created in
the name of the ancestors of these petitioners and showing the
settlement of the land with proforma respondents as temporary and
cancelled the settlement of the said plot no.675 presuming the
possession of the said land with the petitioners and the proforma
respondents as illegal and further directed the Circle Officer Pakuria to
take steps for removing the alleged encroachment by these petitioners
and proforma respondents from the said plot.
The petitioner being aggrieved and dissatisfied with the order of
Deputy Commissioner, Pakur dated 01.06.2012 in R.M.P. No.01/2012,
preferred Revenue Misc. Revision No.512 of 2012-13 before the
Commissioner, Santhal Praganas Division, Dumka.
It is the further case of the petitioner that one Harendra Nath
Das was appointed as receiver of Maheshpur Raj Estate by Hon'ble
Patna High Court in Misc. Appeal No.116/1930 and in that capacity he
had filed a Title Suit No.29/1944 before the Sub-Divisional Officer,
Pakur against the settlement of Sarbeshwar Sahu for declaration that he
had no right to excavate a ditch over the plot no.675 of mouza Pakuria
without the permission of the Zamindar and for ejectment of
Sarbeshwar Sahu from the said plot and for recovery of possession in
favour of the zamindar.
The title suit, however, stood dismissed on 24.11.1944 since the
plaintiff stopped taking steps in the said suit.
The petitioners in the backdrop of the aforesaid fact, has filed
the instant writ petition invoking the jurisdiction conferred to this Court
under Article 226 of the Constitution of India raising the issue that the
settlement since has been made in the year 1937, as such, there is no
question of applicability of the provision of Section 35(1) of the Act,
1949 but the revenue authorities without appreciating the aforesaid fact
has erroneously come to the conclusion by applying the provision as
contained under Section 35(1) of the Act, 1949 discarding the plea and
holding the writ petitioners to be encroachers over the aforesaid plot
no.675, therefore, submission has been made that the orders passed by
the revenue authorities are without consideration of the said material
fact as also no notice was issued from the office of the Deputy
Commissioner when the matter was referred by the circle officer.
3. The State has appeared and filed counter affidavit inter alia taking the
plea that there is no infirmity in the order passed by the revenue
authorities. The issue as has been raised is incorrect on the part of the
writ petitioners about non-applicability of the provision of Section 35
since no record has ever been placed about the settlement of the said
land said to have been settled sometime in the year 1937 and that is the
reason, the Deputy Commissioner as also the Commissioner have given
specific finding therein that in absence of any record about the
settlement of the land sometime in the year 1937, it cannot be accepted
about the settlement of the land in the year 1937 so as not to make the
provision of Section 35(1) of the Act, 1949 applicable.
4. Proforma respondent nos.6 & 7 have appeared through Mr. Manoj
Kumar, learned counsel and he has accepted the version of the learned
counsel for the petitioners.
5. This Court has heard the learned counsel for the parties, perused the
documents available on record as also the finding recorded by the
revenue authorities.
The fact which is not in dispute in this case is that the
petitioners as also the proforma respondent nos.6 & 7 are claiming title
over the plot no. 675 basis upon the settlement made by the landlord
sometime in the year 1937. It is the case of the petitioners that the land
has been settled in their favour way back sometime in the year 1937
and since then they are in the possession of the land in question.
A notice was issued from the office of the Sub-Divisional
Officer, Pakur in Revenue Misc. Case No.04/12-13 asking the
petitioners and the proforma respondents to appear in the proceeding on
07.05.2012 and put forth their defence as would appear from Annexure-
1 appended to the writ petition.
The Sub-Divisional Officer while adjudicating the issue in
Revenue Misc. Case no.04/12-13 has called upon a report from the
Circle Officer, Pakuria, pursuant thereto, report was submitted and as
contained in letter no.199 dated 02.05.2012 by which it has been
informed that the land in question as per the khatiyan appears to be
"Puratan Patit". However, one another report was submitted as
contained in letter no.193 dated 30.04.2012 whereby it has been
reported that the aforesaid land has been entertained as a water
reservoir and at present, the water reservoir can also be seen.
The circle officer has further reported that in Register-II, the
names of Sarveshwar Sahu and others have been entertained. The rent
receipt was issued from 12.01.1972 till 2006. The circle officer has also
opined that since there is water reservoir in the land in question, as
such, the settlement made in favour of Sarveshwar Sahu who
subsequently has transferred the same in favour of Sri Sufal Marandi
and Ashok Bhagat appears to be incorrect settlement.
The Sub-Divisional officer, upon the aforesaid report, came to
the conclusion that the land in question has been encroached upon by
the petitioner and the proforma respondents. The circle officer has also
noted in the order that even in spite of issuance of notice upon the
opposite party, they have not appeared as also no document with
respect to the title over the land in question has ever been produced.
The Sub-Divisional officer has also considered while passing
the order dated 01.06.2012 in R.M.P. Case No.01/2012, reference of the
writ petition being W.P.(PIL) No. 1325 of 2011 disposed of on
09.03.2011 wherein this Court directed to submit a report about the
encroachment over the river/ponds/water reservoir.
It has also been observed therein that the encroachment over the
land in question has been done by filling the water reservoir through the
soil and as such, the decision has been taken for cancellation of
jamabandi as also for removal of encroachment as would appear from
the order dated 01.06.2012.
6. The petitioners being aggrieved with the said order, approached to the
Commissioner by filing Revenue Misc. Revision No.512/2012-13 as
would appear from the copy of the revision petition appended as
Annexure-3 which was disposed of vide order dated 14.03.2013,
whereby and whereunder, the order passed by the Deputy
Commissioner has been affirmed.
7. It appears from the order passed by the revenue authorities, as
impugned in the writ petition, that the issue of settlement of the land,
which according to the petitioners said to have been settled sometime in
the year 1937, since the Santhal Pragana Tenancy Act has come into
being in the year 1949, therefore, there is no question of applicability of
Section 35(1) of the said Act, as such, finding recorded by the revenue
authorities in view of the embargo put by virtue of the provision as
contained under Section 35(1) , the petitioners cannot be held to be
encroachers.
8. According to the petitioners, the revenue authorities, i.e., Deputy
Commissioner and the Commissioner have not considered the legal
issue and without appreciating the fact that the Act, 1949 cannot be
held applicable for settlement of the land made in the year 1937, has
declared the petitioners to be encroachers which is absolutely incorrect.
9. This Court on appreciation of the aforesaid submissions, is of the view
that admittedly, Santhal Praganas Tenancy Act, 1949 has come into
being in the year 1949, as such, if the settlement has been made
sometime in the year 1937, there is no question of the retrospective
application of the provision as contained under the Act, 1949, reason
being that the statutory provision cannot be applied with retrospective
application unless specifically referred in the statutory provision.
Admittedly, the SPT Act, 1949 is having no retrospective
application since there is no such specific provision to that effect
making the Act applicable with retrospective application but the
question arises herein that although the petitioners are taking the point
of settlement of the land sometime in the year 1937, but no document
has ever been placed by the petitioners before the circle officer or the
Deputy Commissioner, or the Commissioner substantiating the plea that
the settlement of the land has actually been made sometime in the year
1937 and that is the reason the Deputy Commissioner and the
Commissioner while delving upon the issue, came to the conclusion
that in absence of any document about the settlement of the land made
sometime in the year 1937, as claimed by the petitioners, the same
cannot be accepted.
10. This Court in course of argument has put a query upon the learned
counsel for the petitioners as to whether any document has been
annexed with this writ petition substantiating the argument that the land
has been settled in the year 1937.
Mr. Ashish Jha, learned counsel for the petitioners has
submitted that no such document has ever been produced before the
Deputy Commissioner or the Revisional Authority as also no such
document has been placed on record in this proceeding.
11. Therefore, according to the considered view of this Court, although the
petitioners are taking the plea of the settlement of the land said to have
been settled sometime in the year 1937, there is no question of
applicability of Section 35(1) of the Act, 1949 but in absence of such
document, the aforesaid argument is not fit to be accepted and
accordingly, the same is rejected, reason being that if any plea is being
taken and statement to that effect is being made in the writ petition, the
same is required to be substantiated by the documents since the writ
petition is a summary proceeding, wherein, there is no question of
leading evidence like that of regular suit being adjudicated by the
competent court of civil jurisdiction and therefore, while deciding the
summary proceeding, it is incumbent upon the parties to make pleading
supported with relevant documents, that too in a case where the prayer
for issuance of writ of certiorari has been made for quashing of the
orders passed by the revenue authorities which is based upon the cogent
finding that there is no document to substantiate that the land in
question has been settled in favour of the petitioners sometime in the
year 1937.
12. However, the learned counsel for the petitioners has submitted by
making reference of Annexure-4 which is a suit filed on behalf of one
Harendra Nath Das being Title Suit No. 29 of 1944 but the same is
simply a pleading of the party and not a decree passed in the said title
suit.
Even then, the learned counsel for the petitioners has insisted
upon this Court to rely upon this pleading which this Court has
discarded because merely on the basis of the pleadings of the party, the
writ petition cannot be adjudicated.
13. This Court, in the entirety of facts and circumstances, is of the
considered view that since Section 35(1) puts complete embargo on
settlement of land which contains water reservoir, therefore, if the
finding has been recorded by the revenue authorities that the settlement
made is contrary to the provision of Section 35(1), the same cannot be
said to suffer from error.
So far as the plea which has been taken by the learned counsel
for the petitioner that the opportunity of hearing has not been given, is
concerned, as would appear from the order passed by the Deputy
Commissioner that the notice were issued but none had appeared,
therefore, the Deputy Commissioner by making observation to that
effect, has proceeded to decide the issue, as such, it is not available for
the petitioner to raise the issue of violation of principles of natural
justice once they have chosen not to appear after putting their
appearance in view of the settled position of law that if the party, after
acceptance of notice chooses not to appear, in belated stage, they
cannot be allowed to take the issue of violation of principles of natural
justice as has been held by the Hon'ble Apex Court in State Bank of
India and Ors. vs. Atindra Nath Bhattacharyya and Anr., (2019) 8
SCC 134. Paragraph-11 of the said judgment reads as under:
"11. .........Once opportunity has been granted to the respondent, he is
not entitled to another opportunity on the ground of compassion. The
only reasoning given by the Division Bench [Atindra Nath
Bhattacharyya v. SBI, 2017 SCC OnLine Cal 2559 : (2017) 2 CLR 385]
is "justice demands" that the respondent be given one last opportunity
to place his version. The respondent has lost his chance to put his
version before the competent authority when called upon by the
authority to do so. Time and again opportunity of hearing cannot be
granted on the pretext of justice. The delaying tactics cannot be
rewarded in such a manner. Once the respondent has failed to avail of
the opportunity of hearing granted, the Bank cannot be directed to give
another opportunity for the sake of justice......."
14. Further, it appears from the order passed by the Commissioner that the
plea of violation of principles of natural justice has been taken and the
same has been considered by recording a finding to that effect by the
Sub-Divisional Officer that "on perusal of the record it seems in the
SDM Court, sufficient opportunity was given to appear and plead the
case." But even then, none had appeared.
Further, before the revisional authority, the issue has been
raised in detail even before the Commissioner, documents pertaining to
settlement of the land sometime in the year 1937 has not been
produced, therefore, the Commissioner had passed the order affirming
the order of the Deputy Commissioner.
15. It is settled position of law that the principles of natural justice is
having no straight jacket formula. The said principle is required to be
followed in a case where there is chance of change in the finding but in
a case where there is no likelihood of change in the outcome and the
fact is not likely to be rebutted, in that circumstances, there is no
requirement to follow the principles of natural justice.
In the facts of the given case also, the petitioners are not in a
position to substantiate the claim about the settlement of land made
sometime in the year 1937, as such, if the matter would be remitted
before the revisional authority, in absence of such document, there is no
chance of change in the outcome and in that view of the matter, the
remand order would be a futile exercise and empty formality.
Reference in this regard may be made to the judgment rendered
by the Hon'ble Apex Court in Escorts Farms Ltd. vs. Commissioner,
Kumaon Division, Nainital, U.P. & others, (2004) 4 SCC 281, wherein
at paragraph no.64 it has been held which reads as under:
"64. Right of hearing to a necessary party is a valuable right. Denial of
such right is serious breach of statutory procedure prescribed and
violation of rules of natural justice. In these appeals preferred by the
holder of lands and some other transferees, we have found that the
terms of government grant did not permit transfers of land without
permission of the State as grantor. Remand of cases of a group of
transferees who were not heard, would, therefore, be of no legal
consequence, more so, when on this legal question all affected parties
have got full opportunity of hearing before the High Court and in this
appeal before this Court. Rules of natural justice are to be followed for
doing substantial justice and not for completing a mere ritual of
hearing without possibility of any change in the decision of the case on
merits. In view of the legal position explained by us above, we
therefore, refrain from remanding these cases in exercise of our
discretionary powers under Article 136 of the Constitution of India."
In Dharampal Satyapal Ltd. v. Deputy Commissioner of
Central Excise, Gauhati and Ors., (2015) 8 SCC 519 their Lordships
have held at paragraph-39 which is being reproduced as under:
"39. We are not concerned with these aspects in the present case as the
issue relates to giving of notice before taking action. While emphasizing
that the principles of natural justice cannot be applied in straitjacket
formula, the aforesaid instances are given. We have highlighted the
jurisprudential basis of adhering to the principles of natural justice
which are grounded on the doctrine of procedural fairness, accuracy of
outcome leading to general social goals, etc. Nevertheless, there may
be situations wherein for some reason- perhaps because the evidence
against the individual is thought to be utterly compelling- it is felt that a
fair hearing "would make no difference"- meaning that a hearing
would not change the ultimate conclusion reached by the decision-
maker."
Applying the aforesaid position of law, this Court, is of the
considered view that the ground taken on behalf of the petitioners about
non-observance of the principles of natural justice, is not worth to be
considered, accordingly, rejected.
16. This writ petition, since has been filed for issuance of writ of certiorari,
as such, deems it fit and proper to refer the settled position of law as
has been held by the Hon'ble Apex Court in Syed Yakoob vs.
Radhakrishnan, A.I.R. 1964 Supreme Court 477. Paragraph no.7 of
the said judgment is being reproduced hereinbelow:
"The question about the limits of the jurisdiction of High Courts in
issuing a writ of certiorari under Art. 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 is in excess of it, or as a result of failure to exercise
jurisdiction. 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 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
fact, 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 Art. 226 to issue a writ
of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v.
Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra
Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398)
and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.
In Hari Vishnu Kamath vs. Ahmad Ishaque and Ors., AIR
1955 Supreme Court 233, the Hon'ble Supreme Court has held as
under:
"With regard to the character and scope of the writ of certiorari and the
conditions under which it can be issued, the following propositions may
be taken as established: (1) Certiorari will be issued for correcting
errors of jurisdiction, as when an inferior Court or Tribunal acts without
jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari
will also be issued when the Court or Tribunal acts illegally in the
exercise of its undoubted jurisdiction, as when it decides without giving
an opportunity to the parties to be heard, or violates the principles of
natural justice. (3) The Court issuing a writ of certiorari acts in exercise
of a supervisory and not appellate jurisdiction. One consequence of this
is that the Court will not review findings of fact reached by the inferior
Court or Tribunal even if they be erroneous. This is on the principle that
a Court which has jurisdiction over a subject-matter has jurisdiction to
decide wrong as well as right, and when the Legislature does not choose
to confer a right of appeal against that decision, it would be defeating its
purpose and policy, if a superior Court were to rehear the case on the
evidence and substitute its own findings in certiorari."
In Sawarn Singh and Anr. vs. State of Punjab and Ors.,
(1976) 2 SCC 868 their Lordships, while discussing the power of writ
under Article 226 of the Constitution of India for issuance of writ of
certiorari, has been pleased to hold at paragraph nos.12 and 13 as
hereunder:
"12. Before dealing with the contentions canvassed, it will be useful to
notice the general principles indicating the limits of the jurisdiction of
the certiorari jurisdiction can be exercised only for correcting errors of
jurisdiction committed by inferior courts or tribunals. A writ of certiorari
can be issued only in the exercise of supervisory jurisdiction which is
different from appellate jurisdiction. The Court exercising special
jurisdiction under Article 226 is not entitled to act as an appellate Court.
As was pointed out by this Court in Syed Yakoob's case (supra)
13. In regard to a finding of fact recorded by an inferior tribunal, a writ
of certiorari can be issued only if in recording such a finding, the
tribunal has acted on evidence which is legally inadmissible, or has
refused to admit admissible evidence, or if the finding is not supported by
any evidence at all, because in such cases the error amounts to an error
of law. The writ jurisdiction extends only to cases where orders are
passed by inferior courts or tribunals in excess of their jurisdiction or as
a result of their refusal to exercise jurisdiction vested in them or they act
illegally or improperly in the exercise of their jurisdiction causing grave
miscarriage of justice."
In Heinz India (P) Ltd. and Anr. vs. State of U.P. and Ors.,
(2012) 5 SCC 443 their Lordships have been pleased to hold at
paragraph nos.66 and 67 as hereunder:
"66. That the court dealing with the exercise of power of judicial review
does not substitute its judgment for that of the legislature or executive or
their agents as to matters within the province of either, and that the court
does not supplant "the feel of the expert" by its own review, is also fairly
well settled by the decisions of this Court. In all such cases judicial
examination is confined to finding out whether the findings of fact have a
reasonable basis on evidence and whether such findings are consistent
with the laws of the land.
67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this
Court held that decision of a tribunal on a question of fact which it has
jurisdiction to determine is not liable to be questioned in proceedings
under Article 226 of the Constitution unless it is shown to be totally
unsupported by any evidence. To the same effect is the view taken by this
Court in Thansingh Nathmal case where this Court held that the High
Court does not generally determine questions which require an elaborate
examination of evidence to establish the right to enforce for which the
writ is claimed."
In Thansingh Nathmal vs. Supdt. of Taxes, A.I.R. 1964 1419
Supreme Court, Hon'ble Supreme Court has been pleased to hold that
the High Court does not jointly determine question which requires
elaborate examination of evidence to establish the right to enforce for
which the writ is claimed.
In Pepsico India Holding (P) Ltd. vs. Krishna Kant Pandey,
(2015) 4 SCC 270 their Lordships, while discussing the scope of
Articles 226 and 227 of the Constitution of India in the matter of
interference into the finding of the Tribunal, has been pleased to hold
by placing reliance upon the judgment rendered in Chandavarkar Sita
Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447 at para-17 as
hereinbelow:
"17. In case of finding of facts, the court should not interfere in exercise
of its jurisdiction under Article 227 of the Constitution. Reference may be
made to the observations of this Court in Bathutmal Raichand Oswal V.
Laxmibai R. Tarta where this Court observed that the High Court could
not in the guise of exercising its jurisdiction under Article 227 convert
itself into a court of appeal when the legislature has not conferred a right
of appeal. The High Court was not competent to correct errors of facts
by examining the evidence and reappreciating. Speaking for the Court,
Bhagwati, J, as the learned Chief Justice then was, observed at page
1301 of the report as follows:
The special civil application preferred by the appellant was admittedly
an application under Article 227 and it is, therefore, material only to
consider the scope and ambit of the jurisdiction of the High Court under
that article. Did the High Court have jurisdiction in an application under
Article 227 to disturb the findings of fact reached by the District Court?
It is well settled by the decision of this Court in Waryam Singh v.
Amarnath that the
......... power of superintendence conferred by Article 227 is, as pointed
out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be
exercised most sparingly and only in appropriate cases in order to keep
the subordinate courts within the bounds of their authority and not for
correcting mere errors.
This statement of law was quoted with approval in the subsequent
decision of this Court in Nagendra Nath Bose V. Commr. Of Hills
Division and it was pointed out by Sinha, J., as he then was, speaking on
behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227
of the Constitution with orders of judicial or quasi-judicial nature, are
not greater than the power under Article 226 of the Constitution. Under
Article 226 the power of interference may extend to quashing an
impugned order on the ground of mistake apparent on the face of the
record. But under Article 227 of the Constitution, the power of
interference is limited to seeking that the tribunal functions within the
limits of its authority."
17. This Court, on the basis of the settled position of law for issuance of
writ of certiorari, has found from the material available on record that
the Deputy Commissioner and the Commissioner have passed orders
making observation that the petitioners failed to produce any document
pertaining to settlement of land settled sometime in the year 1937. The
petitioners have not questioned the said finding to be an error of record
rather it has been submitted that no record is available, therefore, the
question arises that in absence of document of settlement made in the
year 1937 as has been claimed on behalf of the petitioners, how the
order passed by the Deputy Commissioner and the Commissioner be
said to suffer from error, as such, in absence of the aforesaid document,
the orders impugned cannot be said to suffer from error, therefore, in
the facts of the given case, no interference can be shown in the
impugned orders by issuing writ of certiorari.
18. Accordingly, the instant writ petition fails and is dismissed.
(Sujit Narayan Prasad, J.)
Saurabh
A.F.R.
