Orissa High Court
Gyanendra Pradhan vs National Thermal Power ... on 31 August, 2023
ORISSA HIGH COURT : CUTTACK
W.P.(C) No. 971 OF 2014
In the matter of an application under Articles 226 and 227
of the Constitution of India, 1950.
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1. Gyanendra Pradhan
son of Late Kumuda Chandra Pradhan
Village: Rangabeda, Bijigol P.O.
NTPC P.S., Kaniha
Angul District
2. Ramesh Chandra Sahoo
(Since dead)
Represented by the following Legal Heirs:
2(a) Pratima Sahoo
Wife of Late Ramesh Chandra Sahoo
2(b) Pravas Kumar Sahoo
Son of Late Ramesh Chandra Sahoo
2(c) Priyanka Sahoo
Daughter of Late Ramesh Chandra Sahoo
2(d) Gunjari Sahoo
Wife of Late Butu Sahoo
and Mother of Late Ramesh Chandra Sahoo
All are of Village: Gadasila
P.O.: Bijigol, P.S.: NTPC, Kaniha
District: Angul ... Petitioners
-VERSUS-
1. National Thermal Power Corporation Ltd.
(NTPC Ltd.)
Represented by its Central Manager
Talcher Thermal Power Project
At: Kaniha, District: Angul
2. The Collector
Angul District
3. National Thermal Power Corporation Ltd.
(NTPC Ltd.)
Represented by its Central Manager
Talcher, District: Angul
4. Special Land Acquisition Officer
National Thermal Power Corporation Ltd.
District: Angul ... Opposite Parties
Counsel appeared for the parties:
For the Petitioner : Mr. Kishore Kumar Jena,
Advocate for the petitioners
For the Opposite Parties : Mr. Bhabani Sankar Tripathy,
Advocate for the opposite party
Nos.1 & 3-NTPC Ltd./Talcher
Kaniha
Mr. Lalatendu Samantaray,
Additional Government Advocate
for the opposite party Nos.2 & 4.
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
AND
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing: 23.08.2023 :: Date of Judgment: 31.08.2023
MURAHARI SRI RAMAN, J.--
THE PRAYER:
The petitioner No.1-Gyanendra Pradhan son of Kumuda
Chandra Pradhan and the petitioner No.2-Ramesh
Chandra Sahoo, son of Butu Sahoo, claimed to have
been identified as "Substantially Affected Person" ("SAP",
for short) on account of establishment of Talcher Super
Thermal Power Project under the National Thermal
Power Corporation (for brevity referred to as "NTPC
Project"), approached this Court under Article 226/227
of the Constitution of India with the following prayer(s):
"In the circumstances stated above it is prayed that the
writ application may be admitted, notice against opposite
parties may be issued and hearing both the sides the writ
petition may be allowed;
And the opposite parties may be directed to give suitable
employment to the petitioners as per the Rehabilitation
and Resettlement Plan for Talcher Super Thermal Power
Project, Kaniha as the lands of the petitioners have been
acquired for the said project;
And/or any other order/orders may be think fit passed on
the facts and circumstances of the case; ***"
FACTS:
2. The necessary facts as pleaded in the writ petition by the
petitioners are restated herein below.
2.1. As per the Scheme floated in the year 1988, the families
of both the Petitioners were identified as Substantially
Affected Persons ("SAP", in short). Identity cards were
issued in the names of Kumuda Pradhan (shown as one
of the members of family of Suka Pradhan) and Butu
Sahoo.
2.2. Based on the report dated 15.12.1990 submitted by the
Screening Committee, constituted under the Scheme for
determining the eligibility of the SAP, the Petitioner No.1
was issued with a call letter for appointment for the post
of Attendant. In the year 1991 a revised Scheme called
as Rehabilitation and Resettlement Scheme/Policy of
NTPC, Kaniha Phase-1 was also floated containing
elaborate plans with regard to the rehabilitation of the
displaced families and for appointment of persons from
those families in different posts and other rehabilitation
packages. This Scheme of 1991 being published on
04.05.1991 inter alia provided "Rehabilitation through
Employment" for the SAP category.
2.3. In the scheme it was provided that the posts in unskilled
category, i.e., Mazdoor, would be filled up exclusively
from among the families declared SAP. The Scheme also
provided for constitution of Screening Committee
comprising of the Special Rehabilitation Officer,
Dhenkanal as Chairman, and other Members, namely,
Sub-Collector, Talcher; Manager (P & A), NTPC; and
Employment Officer, Talcher; and the Special Land
Acquisition Officer, NTPC as Member-Convenor.
2.4. Functioning of the Screening Committee was also
specified inter alia to sponsor candidates for recruitment
against notified vacancies by NTPC; selecting candidates
in right time for training/higher education/self-
employment as per the Rehabilitation plan and identify
the trades/higher education/vocation; certifying suitable
candidates for any particular post if not available from
among the families of SAP and scope of any candidate
from among them to acquire the necessary qualification/
experience in the near future.
2.5. The Petitioner No.1 after being identified as belonging to
SAP category and basing on the recommendation of the
Screening Committee on 15.12.1990, a call letter,
though initially, was issued to him for appointment to
the post of Attendant. After the revised and elaborate
Scheme came into force in the year 1991, on 05.06.1992
the Petitioner No.1 was issued with another call letter to
appear in the interview for the post of Mazdoor.
2.6. So far as the Petitioner No.2 is concerned, he was
orthopedically handicapped person and identified as a
member belonging to family of SAP. On enquiry by the
Screening Committee his name was recommended.
Accordingly, the Opposite Parties issued call letter dated
28.01.1993 to him for the post of Mazdoor and vide
Letter No.9501/P&A/RA, dated 22.01.1994, his name
was forwarded by NTPC to the Special Land Acquisition
Officer, NTPC, Dhenkanal in the category of physically
handicapped person/Land Outstee Persons.
2.7. In the year 1994, the State Government published
Notification by engaging one group called "Institutional
Managing Consultant of Odisha" (hereinafter to be called
as "IMCO") for further study and identification of the
family of SAP. The said IMCO after consideration of
objections pertaining to affected revenue villages,
awardee families and beneficiaries, submitted list to the
Collector, Angul, which was approved subject to further
addition, deletion or alteration, if any, after due enquiry
and approval, vide Office Order No.313, dated
14.03.1996.
2.8. As the names of the petitioners were absent in the list
prepared by IMCO, representation was submitted on
01.08.1998, pursuant to which enquiry was conducted
by the Special Land Acquisition Officer, NTPC, Angul
and a report was submitted to the Rehabilitation Officer,
NTPC/MCL, Talcher, wherein it has been stated that due
to death of Kumuda Pradhan, an SAP, the name of
second son namely Sudhir Kumar Pradhan was enlisted
and the petitioner No.1 filed representation for enlisting
his name. A representation dated 22.03.1996 containing
nomination of Butu Sahoo in favour of his younger son
Ramesh Chandra Sahoo was forwarded to Rehabilitation
Officer, NTPC/MCL and Special Land Acquisition Officer
on 04.09.1998. Though affidavit was filed by the father
of the Petitioner No.2 regarding his claim to be included
under the SAP category, his name did not find place in
the list of SAP.
2.9. The Petitioners, therefore, approached this Court by way
of a writ petition which was registered as O.J.C. No.
16670 of 1998. Vide Order dated 03.03.2010, said writ
application came to be disposed off which is to the
following effect:
"Heard learned counsel for the parties.
For the project of National Thermal Power Corporation, the
lands belonging to Kumuda Ch. Pradhan, father of
petitioner No.1 and Bhanja Sahoo, grandfather of
petitioner No.2 were acquired. In consonance with the
scheme, both the petitioners, it is alleged, applied for
appointment in benefiting posts on the ground that they
belong to the family of the Substantially Affected Person
(SAP). The said applications having not been favoured
with, they have approached this Court.
After receiving notice, counter affidavit has been filed by
the State taking a positive stand that one of the sons of
Bhajani Sahoo has already been appointed under the
scheme and as such, the case of petitioner no.2 cannot be
considered. So far as petitioner no.1 is concerned, Mr.
Mishra, learned Standing Counsel submits that one of the
family members of Kumuda Ch. Pradhan might have been
given appointment, but then, there is no specific averment
to that effect.
There is no dispute that in consonance with the scheme,
one of the family members of the Substantially Affected
Person has a right to be given appointment under the
scheme.
In view of the aforesaid clear position, we dispose of this
writ application with a direction that if the petitioners
approach the Collector, Angul, who is the President of the
screening committee, the said authority shall call for the
records, and verify whether any of the family members of
the land oustee has been given appointment and dispose
of the representation of the petitioners strictly
inconsonance with the scheme."
2.10. In pursuance of such order of this Court dated
03.03.2010, the Petitioners submitted their
representations before the learned Collector, Angul on
30.08.2010 along with the documents. Having been
called for hearing in connection with said
representations, the petitioners appeared before the
Collector on 24.11.2010. On getting no reply, the
Petitioners filed another writ application before this
Court bearing W.P.(C) No. 13849 of 2012, which came to
be disposed off on 12.09.2012 with the following order:
" Heard Mr. K.K. Jena, learned counsel for the
Petitioners and Mr. B.K. Nayak, learned Additional
Government Advocate for the Opposite Parties.
2. The petitioner in this writ petition seeks direction to
the opposite parties to consider his representation
under Annexure-11 for appointment under the NTPC
on rehabilitation ground. Earlier, the petitioner has
filed a writ petition before this Court bearing O.J.C.
No. 16670 of 1998, which was disposed of on
03.03.2010 with a direction that the Collector,
Angul, who is the President of the Screening
Committee, shall call for the records and verify
whether any of the family members of the land
oustee has been given appointment and dispose of
the representation strictly in consonance with the
scheme. The petitioners further submit that the
petitioners have appeared before the Collector on
24.11.2010 and took part in the hearing, but no
decision has yet been communicated to them as yet.
Hence, the petitioners approached before this Court.
3. Keeping the view in the matter, we dispose of the
writ petition directing the Collector, Angul to dispose
of the application of the petitioner within two weeks
from the date of receipt of a copy of this order, if the
matter is not yet disposed of.
A copy of this order be handed over to Mr. B.K.
Nayak, learned Additional Government Advocate for
compliance.
Urgent certified copy of this order be granted on
proper application."
2.11. The Collector, Angul, thereafter, fixed a date for further
hearing and passed Order on 03.10.2012.
2.12. Alleging improper application of mind, present writ
petition has been filed by the petitioners with a prayer
for direction "to give suitable employment to the
petitioners as per the Rehabilitation and Resettlement"
Policy/Scheme.
COUNTER-AFFIDAVITS OF THE OPPOSITE PARTY NOS.1 TO 4:
3. In reply to the averments made by the writ petitioners,
the opposite party Nos. 2 and 4 submitted that though
the petitioner No.1 was issued with call letter before
finalization of list of SAP on account of establishment of
NTPC Project, after publication of final list of SAP,
rehabilitation benefits have been extended to each
individual affected family and the petitioners were not
enumerated as SAP. Being sponsored by the Screening
Committee, the final decision is taken by the NTPC Ltd.
for consideration of the case of awardees/beneficiaries or
their bona fide nominees. The survey work for
enumeration of the families to be included under
families of SAP (who have lost 1/3rd of their landed
property due to NTPC Project at Kaniha) was entrusted
to the IMCO, Bhubaneswar. The survey list was handed
over to Collector, Angul on 31.05.1995. Collector, Angul
published the list for information of the general public
on 05.07.1995 inviting objection-petitions from them. A
total numbers of 1,608 objection-petitions were received
from the affected families and all the petitions were
handed over by the Collector to the Screening
Committee.
3.1. All the petitions were examined by the said Committee in
the presence of the petitioners and final list was placed
before Rehabilitation Advisory Committee (RAC) held on
01.12.1995 at Angul. In the said meeting, the NTPC
authorities wanted some time to verify the land
particulars of the enlisted families with reference to
Tahasil record at Talcher. After verification of Tahasil
records, the final list of 1,632 families (those who had
lost 1/3rd of their total land in NTPC project) was
approved by the Collector, Angul on 14.03.1996. Since
that date rehabilitation benefits have been extended to
the 1,632 numbers of SAPs as approved by the Collector.
3.2. The father of the petitioner No.1 along with three others
was the awardee, who owned Ac.11.69 decimals of land
in Village Rangabeda out of which Ac.6.16 decimals have
been acquired for NTPC Project constituting loss of 66%
of the land. All the three brothers of late Kumuda
Chandra Pradhan were enumerated as SAP. As the
Petitioner No.1, son of Kumuda Chandra Pradhan (since
dead), was not married and not living separately, his
claim was not liable to be considered.
3.3. So far as the Petitioner No.2 is concerned, his father
owned Ac.0.91 decimals of land in Village Karadai out of
which 0.81 decimals were acquired for NTPC Project,
thereby, 89% of the land was lost. The petitioner No.2
refused to honour receipt of sanctioned amount of
Rs.50,000/- for purchase of land. However, his brother,
namely, Bipin Sahoo, enlisted as SAP, being married and
living in separate mess, was given Rs.50,000/- under
the Scheme of Rehabilitation for purchase of land.
3.4. Pursuant to orders of this Court in O.J.C. No.16670 of
1998 and W.P.(C) No.13849 of 2012 (referred to supra)
notices were issued to the parties to appear and present
their respective claims along with relevant documents.
After analysis of the evidence on record, the Collector,
Angul rejected the claims of the petitioners vide Order
dated 03.10.2012.
4. Supporting the contentions of the Opposite Party Nos.2
and 4 in the aforesaid Counter Affidavit, the Opposite
Party Nos.1 and 3 (NTPC) have filed Counter Affidavit
and submitted that married son, as on the date of
publication of Notification issued under Section 4(1) of
the Land Acquisition Act, 1894 (for short referred to as
"LA Act") is treated to be separate family and entitled for
benefit of rehabilitation. Since the Petitioners failed to
adduce any evidence to show that they were married as
on the date of publication of such notification, the
Collector has rightfully rejected their claim(s).
4.1. Perusal of Order dated 03.10.2012 passed by the
Collector, Angul pursuant to orders of this Court O.J.C.
No.16670 of 1998 and W.P.(C) No.13849 of 2012 reveals
that the final list of SAP was never challenged by the
petitioners. The petitioners claimed to have been entitled
for job in the category of extended beneficiary as if they
were married before the final publication of list of SAP. It
is categorical finding recorded by Collector, Angul that
"as per the Scheme, NTPC can only consider the case of
SAP (awardees/beneficiary) or the bona fide eligible
nominee when his/her name is being sponsored by the
Screening Committee." Since there was no sponsorship
of the names of Gyanendra Pradhan and Ramesh
Chandra Sahoo, their cases were not considered by
NTPC Ltd. The Collector further referred to
Rehabilitation and Resettlement Policy formulated for
the NTPC Project in connection with land acquisition.
4.2. Taking into consideration the aforesaid Policy, the
Collector, Angul has come to the following conclusion:
"As already indicated that the policy formulated for
rehabilitation of the land loser in NTPC, Kaniha
beneficiary SAP status is to be extended to only major
married sons. Since both the petitioners have failed to
establish their marital status as on the date 4(1)
notification they are not eligible beneficiary SAP status.
Considering the nature of grievances of both the
petitioners and upon verification of records and the views
of the parties, I am of the considered opinion that the
claims of both the petitioners to treat them under SAP
category is not tenable at this stage. Accordingly, the case
is disposed off."
ARGUMENTS:
5. Heard Sri Kishore Kumar Jena, learned Advocate for the
petitioners; Sri Bhabani Sankar Tripathy, learned
Advocate for the opposite party Nos.1 and 3 (NTPC Ltd.);
and Sri Lalatendu Samantaray, Additional Government
Advocate for the opposite party Nos.2 and 4.
5.1. Sri Kishore Kumar Jena, Advocate assailing the Order
dated 03.10.2012 submitted that the learned Collector
has committed an error of record by holding that the
Petitioners are not coming under SAP category. Refuting
such contention, the counsel for the opposite parties
urged that mere permission to participate in the
interview for the post of Mazdoor does not ipso facto
entail the petitioners to claim the benefit. The claim of
benefit can only be determined by the NTPC Ltd. Having
not made prayer in the writ petition to set aside/quash
the Order dated 03.10.2012 passed by the Collector,
Angul, the counsel for the petitioners cannot be
permitted to advance argument against the factual
findings recorded in said Order.
5.2. The finding of the learned Collector is not correct as the
Petitioners had filed their objections challenging the
report of the IMCO.
6. Sri Bhabani Sankar Tripathy, learned Advocate
appearing for the opposite party Nos.1 and 3-NTPC and
Sri Lalatendu Samantaray, learned Additional
Government Advocate appearing for the opposite party
Nos.2 and 4 (Collector, Angul and Land Acquisition
Officer) supported the reason ascribed by the Collector,
Angul while adjudicating factually that the petitioners
have been denied the benefit under the Scheme for
Rehabilitation as they did not satisfy eligibility criteria.
The cogent and germane facts as set out in the Order
dated 03.10.2012 being untrammelled no occasion is left
for this Court to intervene in the matter.
ANALYSIS AND DISCUSSION:
7. At the outset it may be pertinent to say that nothing is
brought on record to show that the finding recorded by
the Collector, Angul is based on no evidence. The
Competent Authority, namely the Collector, Angul on the
available material on record observed that major married
son, being treated to be "separate family", is entitled to
claim the benefit asked for; nonetheless, unmarried
family member, thereby, is not entitled to the benefit.
7.1. It is placed on record that the father of the Petitioner
No.1, namely, Kumuda Chandra Pradhan was recorded
tenant in the villages Rangabeda and Rasol and 65% of
his land was acquired for NTPC Project vide Notifications
dated 01.02.1990 and 02.12.1987 respectively. Further
fact which remains undisputed that the date of marriage
of Gyanendra Kumar Pradhan, son of Kumuda Chandra
Pradhan, was on 28.01.1993.
7.2. Similarly by virtue of Notification dated 03.02.1990
published under Section 4(1) of the LA Act, 1894 in
respect of village Karadai, land of father of Petitioner
No.2 was acquired, whereas he got married on
05.06.1995.
7.3. The aforesaid facts, as adumbrated by the Collector,
Angul in his order, being undisputed by the Petitioners,
it can safely be concluded that this Court in exercise of
jurisdiction under Article 226/227 of the Constitution of
India would not be in a position to show indulgence.
Since the marital status of Petitioners reflects that both
the petitioners got married after the publication of
Notifications under Section 4(1) of the LA Act, 1894, no
fallacy can be attributed to the Order of the Collector,
Angul in rejecting the claim of the petitioners.
7.4. Bare reading of portion of the Scheme of Rehabilitation
through Employment as placed at Annexure-3 to the
writ petition manifests as follows:
"It may be observed from the above that a number posts
have certain prescribed requirement of experience which
obviously none of the oustrees will have. Therefore NTPC
authority should take a more liberal view. They should
make arrangement to engage these candidates under
their contractors or in their other projects so that they can
acquire the prescribed experience."
7.5. Such being the Scheme, by way of Additional Affidavit
dated 16.07.2017, the Opposite Party Nos.1 & 3 (NTPC
Ltd.) affirmed that as the name of Kumuda Chandra
Pradhan was appearing in the list of SAP with remarks
that "awardee dead", the name of major married son was
reflected as Ben-439-- Sudhir Chandra Pradhan and he
was extended with the benefit as per Rehabilitation
Policy on contract basis. He has been working in
Township Electrical Maintenance Department since
1993.
7.6. So far as Ramesh Chandra Sahoo is concerned, as has
been asserted by the Opposite Party Nos.2 & 4 (Collector
and Special Land Acquisition Officer) in their Counter
Affidavit, the factual position stands thus:
"Another son of Butu Sahoo (elder brother of the Petitioner
namely Ramesh Chandra Sahoo), namely, Bipin Sahoo is
married and living in a separate mess, for which he has
been enlisted in SAP list vide No.B-264. He has been
given Rs.50,000/- in FDR under Rehabilitation Scheme as
per his auction for purchase of land the case of the
Petitioner, Shri Ramesh Chandra Sahoo, has not been
included in the SAP list because he is not married and
living in a separate mess."
7.7. There is no doubt that in compensation schemes, the
"family" is considered as the unit. The principle which
can be deduced is that relatives who are not dependent
on the claimant will constitute a separate family unit for
the purposes of compensation and rehabilitation. Vide
Eastern Coalfields Ltd. Vrs. Anadinath Banerjee, (2021) 8
SCC 593.
7.8. Factual details as narrated by the learned Collector,
Angul and germane factor considered for adjudication of
the present claim that the marriage of Gyanendra
Pradhan (Petitioner No.1) and Ramesh Chandra Sahoo
(Petitioner No.2) took place after the publication of
Notifications issued under Section 4(1) of the LA Act
remained uncontroverted. No procedural irregularity or
perversity of fact being established by the petitioners,
this Court does not warrant it to interfere with the Order
dated 03.10.2012 passed by the Collector, Angul. The
Collector has taken just and fair decision keeping in view
the Rehabilitation and Resettlement Policy. Hence, there
is no occasion to exercise extraordinary jurisdiction of
the Court warranting judicial review.
Scope of exercise of power under Article 226/227 of the
Constitution of India to reappraise the finding of fact by
competent authority based on material on record:
8. Unless glaring defect in procedure to reach at the
conclusion by the competent authority is in question or
it is demonstrated that such finding of fact could not
have been arrived at by the quasi judicial functionary by
ordinary prudence or finding is bereft of evidence and/or
de hors material on record, this Court is of the opinion
that exercise of jurisdiction under Article 226/227 of the
Constitution of India is uncalled for. The petitioners, on
the facts and in the circumstances of the instant case,
has not made out a case of manifest error of law or error
of exercise of jurisdiction by the Collector, Angul.
8.1. Going through the grounds set out by the petitioners for
challenging the Order of the Collector, Angul, it appears
that the petitioners are aggrieved by non-consideration
of certificates vide Annexures-1 and 2 issued in their
favour with respect to loss of land due to acquisition
process for the purpose of Talcher Super Thermal Power
Project. It is the allegation that said evidences were
ignored by the Collector in not holding them SAP. The
Counter-affidavit dated 08.08.2014 filed on behalf of the
opposite party Nos.1 and 2 clearly narrated that
"Annexures-1 and 2 to the writ petition were only issued
by the Land Acquisition Officer, Dhenkanal showing the
name, father's name and residence of the land owner
losing land in NTPC Project. However, the said certificate
is not a certificate showing that such persons whose
name finds place in the certificate as at Annexures-1
and 2 are the SAPs". It is answered by the said opposite
parties that "NTPC can only consider the case of SAP
Awardees/beneficiaries or their bona fide nominees,
when his/her name is being sponsored by the Screening
Committee". The Collector, Angul, in compliance of
direction contained in Order dated 03.03.2010 of this
Court in OJC No.16670 of 1998, observed in his Order
dated 03.10.2012 as follows:
"The records would indicate that State-Opposite Parties
had opposed the claim of both the petitioners in OJC
No.16670/1998 on the ground that the petitioner
Gyanendra Pradhan was enumerated as SAP. His father
Kumuda Chandra Pradhan along with 3 of his brothers
were the Awardees as 66% of their land was acquired for
NTPC Project. Since Kumuda Chandra Pradhan was
dead, his 3 brothers were enumerated as SAP Families.
Since at the time of acquisition Gyanendra Pradhan was
not married and not living in a separate mess, his name
was not included as SAP. It is, however, a matter of
record that on Sudhir Ch. Pradhan, son of Late Kumuda
Chandra Pradhan was extended the Rehabilitation
Benefit as enlisted in the SAP list. Similar is the case of
Ramesh Chandra Sahoo, who was not recorded in the
SAP list as he was not married and not living in a
separate mess and rehabilitation benefit has been
extended to his family. After verification of Tahasil
records the final SAP List of 1632 families was approved
by the Collector, Angul on 14.03.1996 and Rehabilitation
benefits as per the Scheme have been extended to SAP
families. It is pertinent to indicate here that re-
enumeration of SAP status of land ousted persons was
carried out, objections were heard and beneficiaries of
1632 SAPs was drawn and approved by the Collector,
Angul and was finally released on 14.03.1996 by the
RDC. The SAP List was finalised upon completion of
survey of the area and upon hearing of objections of
persons interested."
8.2. Such being the position as available on record and
finding of fact being not shown to have been perverse, it
is trite that there is little scope for this Court to "re-
appreciate evidence". It is pertinent that the ground, as
insisted for consideration by the counsel for the
petitioners in this round of writ proceeding, was also the
subject-matter for consideration on earlier occasion
before this Court in OJC No.16670 of 1998. The
Collector, Angul has considered the evidence on record
to come to aforesaid conclusion on facts.
8.3. This Court exercising jurisdiction under Article 226 of
the Constitution of India, not only has the power to issue
a writ of mandamus or in the nature of mandamus, but
also is duty-bound to exercise such power, where the
Government or a public authority has failed to exercise
or has wrongly exercised discretion conferred upon it by
a statute, or a rule, or a policy decision of the
Government or has exercised such discretion mala fide,
or on irrelevant consideration. It is rule of prudence that
jurisdiction of Writ Court comes from the law of the land
and need not be exercised otherwise.
8.4. A Constitution Bench of the Hon'ble Supreme Court of
India in Syed Yakoob Vrs. K.S. Radhakrishnan, AIR 1964
SC 477, has spoken about the scope of Writ of Certiorari
in the following terms:
"7. 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
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 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 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
Article 226 to issue a writ of certiorari can be
legitimately exercised (vide Hari Vishnu Kamath Vrs.
Ahmad Ishaque, AIR 1955 SC 233, Nagendra Nath
Bora Vrs. Commissioner of Hills Division and
Appeals, AIR 1958 SC 398 and Kaushalya Devi Vrs.
Bachittar Singh, AIR 1960 SC 1168)."
8.5. In Perry and Co. Ltd. Vrs. P.C. Pal, Judge of the Second
Industrial Tribunal, Calcutta, AIR 1970 SC 1334, it has
been held inter alia:
"11. The grounds on which interference by the High Court
is available in such writ petitions have by now been
well established. In Basappa Vrs. Nagappa, (1955)
SCR 250 it was observed that a writ of certiorari
is generally granted when a court has acted
without or in excess of its jurisdiction. It is
available in those cases where a tribunal, though
competent to enter upon an enquiry, acts in flagrant
disregard of the rules of procedure or violates the
principles of natural justice where no particular
procedure is prescribed. But a mere wrong
decision cannot be corrected by a writ of
certiorari as that would be using it as the
cloak of an appeal in disguise but a manifest
error apparent on the face of the proceedings
based on a clear ignorance or disregard of the
provisions of law or absence of or excess of
jurisdiction, when shown, can be so corrected.
In Dharangadhara Chemical Works Ltd. Vrs. State of
Saurashtra, (1957) SCR 152 this Court once again
observed that where the Tribunal having
jurisdiction to decide a question comes to a
finding of fact, such a finding is not open to
question under Article 226 unless it could be
shown to be wholly unwarranted by the
evidence. Likewise, in State of Andhra Pradesh Vrs.
S. Sree Ram Rao, AIR 1963 SC 1723 this Court
observed that where the Tribunal has disabled
itself from reaching a fair decision by some
considerations extraneous to the evidence and
the merits of the case or where its conclusion
on the very face of it is so wholly arbitrary and
capricious that no reasonable person can ever
have arrived at that conclusion interference
under Article 226 would be justified. ***"
8.6. The legal position with respect to issue of writ of
certiorari has been succinctly restated in General
Manager, Electrical Rengali Hydro Electric Project, Odisha
Vrs. Sri Giridhari Sahu, (2019) 12 SCR 293 as follows:
"29. On the conspectus of the decisions and material, we
would hold as follows:
The jurisdiction to issue writ of certiorari is
supervisory and not appellate. The Court considering
a writ application of Certiorari will not don the cap of
an Appellate Court. It will not re-appreciate evidence.
The Writ of Certiorari is intended to correct
jurisdictional excesses. A writ of prohibition would
issue when a Tribunal or authority has not yet
concluded its proceedings. Once a decision is
rendered by a body amenable to Certiorari
jurisdiction, certiorari could be issued when a
jurisdictional error is clearly established. The
jurisdictional error may be from failure to observe
the limits of its jurisdiction. It may arise from the
procedure adopted by the body after validly
assuming jurisdiction. It may act in violation of
principles of natural justice. The body whose
decision which comes under attack may decide a
collateral fact which is also a jurisdictional fact and
assume jurisdiction. Such a finding of fact is not
immune from being interfered with by a Writ of
Certiorari. As far as the finding of fact which is one
within the jurisdiction of the court, it is ordinarily a
matter 'off bounds' for the writ court. This is for the
reason that a body which has jurisdiction to
decide the matter has the jurisdiction to decide
it correctly or wrongly. It would become a mere
error and that too an error of fact. However,
gross it may amount to, it does not amount to
an error of law. An error of law which becomes
vulnerable to judicial scrutiny by way of
Certiorari must also be one which is apparent
on the face of the record. As held by this Court in
Hari Vishnu Kamath Vrs. Ahmed Ishaque, AIR 1955
SC 233 = (1955) SCR 1104, as to what constitutes
an error apparent on the face of the record, is a
matter to be decided by the court on the facts of each
case. A finding of fact which is not supported by any
evidence would be perverse and in fact would
constitute an error of law enabling the writ court to
interfere. It is also to be noticed that if the
overwhelming weight of the evidence does not
support the finding, it would render the decision
amenable to certiorari jurisdiction. This would be the
same as a finding which is wholly unwarranted by
the evidence which is what this Court has laid down
[See M/s. Perry and Co. Ltd. Vrs. P.C. Pal, Judge of
the Second Industrial Tribunal, Calcutta, AIR 1970
SC 1334 = (1969) SCR 976]."
8.7. In Central Council for Research in Ayurvedic Sciences and
Another Vrs. Bikartan Das and Others, Neutral Citation:
2023 INSC 733, the Hon'ble Supreme Court of India has
been pleased to lay down two cardinal principles of law
governing exercise of extraordinary jurisdiction under
Article 226 of the Constitution more particularly when it
comes to issue of writ of certiorari and discuss gamut of
exercise of jurisdiction thereunder:
"50. The first cardinal principle of law that governs the
exercise of extraordinary jurisdiction under Article
226 of the Constitution, more particularly when it
comes to the issue of a writ of certiorari is that in
granting such a writ, the High Court does not
exercise the powers of Appellate Tribunal. It does not
review or reweigh the evidence upon which the
determination of the inferior tribunal purports to be
based. It demolishes the order which it considers to
be without jurisdiction or palpably erroneous but
does not substitute its own views for those of the
inferior tribunal. The writ of certiorari can be issued
if an error of law is apparent on the face of the
record. A writ of certiorari, being a high prerogative
writ, should not be issued on mere asking.
51. The second cardinal principle of exercise of
extraordinary jurisdiction under Article 226 of the
Constitution is that in a given case, even if some
action or order challenged in the writ petition is
found to be illegal and invalid, the High Court while
exercising its extraordinary jurisdiction thereunder
can refuse to upset it with a view to doing
substantial justice between the parties. Article 226
of the Constitution grants an extraordinary remedy,
which is essentially discretionary, although founded
on legal injury. It is perfectly open for the writ court,
exercising this flexible power to pass such orders as
public interest dictates & equity projects. The legal
formulations cannot be enforced divorced from the
realities of the fact situation of the case. While
administering law, it is to be tempered with equity
and if the equitable situation demands after setting
right the legal formulations, not to take it to the
logical end, the High Court would be failing in its
duty if it does not notice equitable consideration and
mould the final order in exercise of its extraordinary
jurisdiction. Any other approach would render the
High Court a normal court of appeal which it is not.
52. The essential features of a writ of certiorari,
including a brief history, have been very
exhaustively explained by B.K. Mukherjea, J. in T.C.
Basappa Vrs. T. Nagappa and Another, reported in
AIR 1954 SC 440. The Court held that a writ in the
nature of certiorari could be issued in 'all
appropriate cases and in appropriate manner' so
long as the broad and fundamental principles were
kept in mind. Those principles were delineated as
follows:
"7. ... In granting a writ of 'certiorari', the superior
court does not exercise the powers of an
appellate tribunal. It does not review or
reweigh the evidence upon which the
determination of the inferior tribunal purports
to be based. It demolishes the order which it
considers to be without jurisdiction or palpably
erroneous, but does not substitute its own
views for those of the inferior tribunal .....
8. The supervision of the superior court exercised
through writs of certiorari goes on two points,
as has been expressed by Lord Summer in
King Vrs. Nat Bell Liquors Limited, (1922) 2 AC
128, 156. One is the area of inferior jurisdiction
and the qualifications and conditions of its
exercise; the other is the observance of law in
the course of its exercise. ....
9. Certiorari may lie and is generally
granted when a court has acted without
or in excess of its jurisdiction."
53. Relying on T.C. Basappa (supra), the Constitution
Bench of this Court in the case of Hari Vishnu
Kamath (supra), laid down the following propositions
as well 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) 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."
54. This Court explained 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 finding in
certiorari.
55. In Syed Yakoob Vrs. K.S. Radhakrishnan and
Others, reported in AIR 1964 SC 477, P.B.
Gajendragadkar, CJ., speaking for the Constitution
Bench, placed the matter beyond any position of
doubt by holding that a writ of certiorari can be
issued for correcting errors of jurisdiction committed
by inferior courts or tribunals. The observations of
this Court in para 7 are worth taking note of:
"7. 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....."
56. In Surya Dev Rai Vrs. Ram Chandra Rai and Others,
reported in 2003 (6) SCC 675, a Bench of two
Judges held that the certiorari jurisdiction though
available, should not be exercised as a matter of
course. The High Court would be justified in refusing
the writ of certiorari if no failure of justice had been
occasioned. In exercising the certiorari jurisdiction,
the procedure ordinarily followed by the High Court
is to command the inferior court or tribunal to certify
its record or proceedings to the High Court for its
inspection so as to enable the High Court to
determine, whether on the face of the record the
inferior court has committed any of the errors as
explained by this Court in Hari Vishnu Kamath v.
Ahmad Ishaque and Others, AIR 1955 SC 233
occasioning failure of justice.
57. From the aforesaid, it could be said in terms of a
jurisdictional error that want of jurisdiction may
arise from the nature of the subject matter so that
the inferior court or tribunal might not have the
authority to enter on the inquiry. It may also arise
from the absence of some essential preliminary or
jurisdictional fact. Where the jurisdiction of a body
depends upon a preliminary finding of fact in a
proceeding for a writ of certiorari, the court may
determine, whether or not that finding of fact is
correct. The reason is that by wrongly deciding such
a fact, the court or tribunal cannot give itself
jurisdiction.
58. In Anisminic Ltd. Vrs. Foreign Compensation
Commission and Another, reported in (1969) 2 AC
147, the House of Lords has given a very broad
connotation to the concept of 'jurisdictional error'. It
has been laid down that a tribunal exceeds
jurisdiction not only at the threshold when it enters
into an inquiry which it is not entitled to undertake,
but it may enter into an enquiry within its
jurisdiction in the first instance and then do
something which would deprive it of its jurisdiction
and render its decision a nullity. In the words of
Lord Reid:
"But there are many cases where, although the
tribunal had jurisdiction to enter on the enquiry, it
has done or failed to do something in the course of
the enquiry which is of such a nature that its
decision is a nullity. It may have given its decision in
bad faith. It may have made a decision which it had
no power to make. It may have failed in the course
of the enquiry to comply with the requirements of
natural justice. It may in perfect good faith have
misconstrued the provisions giving it power to act so
that it failed to deal with the question remitted to it
and decided some question which was not remitted
to it. It may have refused to take into account
something which it was required to take into
account. Or it may have based its decision on some
matter which, under the provisions setting it up, it
had no right to take into account. I do not intend this
list to be exhaustive."
59. So far as the errors of law are concerned, a writ of
certiorari could be issued if an error of law is
apparent on the face of the record. To attract the
writ of certiorari, a mere error of law is not
sufficient. It must be one which is manifest or
patent on the face of the record. Mere formal or
technical errors, even of law, are not sufficient,
so as to attract a writ of certiorari. As reminded
by this Court time and again, this concept is
indefinite and cannot be defined precisely or
exhaustively and so it has to be determined
judiciously on the facts of each case. The concept,
according to this Court in K.M. Shanmugam Vrs. The
S.R.V.S. (P) Ltd. and Others, reported in AIR 1963
SC 1626, 'is comprised of many imponderables... it
is not capable of precise definition, as no objective
criterion could be laid down, the apparent nature of
the error, to a large extent, being dependent upon
the subjective element.' A general test to apply,
however, is that no error could be said to be
apparent on the face of the record if it is not
'self-evident' or 'manifest'. If it requires an
examination or argument to establish it, if it
has to be established by a long drawn out
process of reasoning, or lengthy or complicated
arguments, on points where there may
considerably be two opinions, then such an
error would cease to be an error of law. (See:
Satyanarayan Laxminarayan Hegde and Others
Vrs. Mallikarjun Bhavanappa Tirumale, reported in
AIR 1960 SC 137.)
60. However, in our opinion, such a test should not be
applied in a straitjacket formula and may fail
because what might be considered by one Judge as
an error self-evident, might not be considered so by
another Judge.
61. At this stage, it may not be out of place to remind
ourselves of the observations of this Court in Syed
Yakoob (supra) on this point, which are as follows:
"Where it is manifest or clear that the conclusion of
law recorded by an inferior court or tribunal is based
on an obvious misinterpretation of the relevant
statutory provision, or something in ignorance of it,
or may be even in disregard of it, or is expressly
founded on reasons which are wrong in law, the
said conclusion can be corrected by a writ of
certiorari. Certiorari would also not lie to correct
mere errors of fact even though such errors
may be apparent on the face of the record. The
writ jurisdiction is supervisory and the court
exercising it is not to act as an appellate court.
It is well settled that the writ court would not re-
appreciate the evidence and substitute its own
conclusion of fact for that recorded by the
adjudicating body, be it a court or a tribunal. A
finding of fact, howsoever erroneous, recorded by a
court or a tribunal cannot be challenged in
proceedings for certiorari on the ground that the
relevant and material evidence adduced before the
court or the tribunal was insufficient or inadequate
to sustain the impugned finding. It is also well
settled that 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 these points cannot be agitated
before the writ court."
62. In the aforesaid context, it will be profitable for us to
refer to the decision of this Court in the case of
Indian Overseas Bank Vrs. I.O.B. Staff Canteen
Workers' Union and Another, reported in AIR 2000
SC 1508. This Court observed as under:
"... The findings of fact recorded by a fact-finding
authority duly constituted for the purpose and which
ordinarily should be considered to have become
final, cannot be disturbed for the mere reason of
having been based on materials or evidence not
sufficient or credible in the opinion of the writ Court
to warrant those findings at any rate, as long as
they are based upon such materials which are
relevant for the purpose or even on the ground that
there is yet another view which can be reasonably
and possibly undertaken. ..."
63. However, we may clarify that findings of fact
based on 'no evidence' or purely on surmises
and conjectures or which are perverse points
could be challenged by way of a certiorari as
such findings could be regarded as an error of
law.
64. Thus, from the various decisions referred to above,
we have no hesitation in reaching to the conclusion
that a writ of certiorari is a high prerogative writ and
should not be issued on mere asking. For the issue
of a writ of certiorari, the party concerned has to
make out a definite case for the same and is not a
matter of course. To put it pithily, certiorari shall
issue to correct errors of jurisdiction, that is to say,
absence, excess or failure to exercise and also when
in the exercise of undoubted jurisdiction, there has
been illegality. It shall also issue to correct an error
in the decision or determination itself, if it is an error
manifest on the face of the proceedings. By its
exercise, only a patent error can be corrected but not
also a wrong decision. It should be well remembered
at the cost of repetition that certiorari is not appellate
but only supervisory.
65. A writ of certiorari, being a high prerogative writ, is
issued by a superior court in respect of the exercise
of judicial or quasi-judicial functions by another
authority when the contention is that the exercising
authority had no jurisdiction or exceeded the
jurisdiction. It cannot be denied that the tribunals or
the authorities concerned in this batch of appeals
had the jurisdiction to deal with the matter.
However, the argument would be that the tribunals
had acted arbitrarily and illegally and that they had
failed to give proper findings on the facts and
circumstances of the case. We may only say that
while adjudicating a writ-application for a writ of
certiorari, the court is not sitting as a court of appeal
against the order of the tribunals to test the legality
thereof with a view to reach a different conclusion. If
there is any evidence, the court will not examine
whether the right conclusion is drawn from it or not.
It is a well-established principle of law that a writ of
certiorari will not lie where the order or decision of a
tribunal or authority is wrong in matter of facts or on
merits. [See: King Vrs. Nat Bell Liquors Ltd., (1922) 2
AC 128 (PC)]
66. We may quote with profit a decision of this Court in
the case of Satyanarayan Laxminarayan Hegde
[(1960) 1 SCR 890] to understand the true purport
and meaning of an error apparent on the face of the
record or an error which could be termed as self-
evident. The facts of that case were as below:
67. The respondent made an application in the Revenue
Court of the Mamlatdar of Sirsi praying for the
delivery of possession of property which the
appellant was on that date possessing as the tenant
under him on the basis of a 'Mulegeni' deed
executed by the respondent's predecessor-in-interest
in favour of the appellant's predecessor-in interest.
The case was governed by the Bombay Tenancy and
Agricultural Lands Act, 1948, and one of the
questions in controversy was whether before
applying for the delivery of possession, it was
incumbent upon the respondent to have given a
notice terminating the tenancy. The Mamlatdar made
an order for possession in favour of the respondent.
The Collector allowed the appeal and set aside the
order of the Mamlatdar. The Bombay Revenue
Tribunal, to whom the matter was taken up on
appeal, held that as the respondent had failed to
terminate the tenancy by notice before instituting the
action for ejectment, he was not entitled to entertain
the application for recovery of possession.
68. Thereafter, the respondent made an application to
the High Court of Bombay under Article 227 of the
Constitution of India for the quashing of the order of
the Revenue Tribunal and the Collector and for the
restoration of the order of the Mamlatdar. The High
Court was of the opinion that the Tribunal had
committed an error which was apparent on the face
of the record in holding that an order of possession
could not be made unless a notice terminating the
tenancy had been given before the institution of the
proceeding and it issued a writ of certiorari quashing
the order of the Tribunal and restoring that of the
Mamlatdar.
69. An appeal was filed against the order of the High
Court and this Court reversed that order on the
ground that the alleged error in the judgment of the
Bombay Revenue Tribunal, namely that an order for
possession should not be made unless a previous
notice required by Section 14 of the Bombay
Tenancy and Agricultural Lands Act, 1948, had
been given, was not an error apparent on the face of
the record so as to be capable of being corrected by
a writ of certiorari and the following observations
were made by this Court:
"17. .... An error which has to be established by
a long drawn process of reasoning on
points where there may conceivably be two
opinions can hardly be said to be an error
apparent on the face of the record. As the
above discussion of the rival contentions
show the alleged error in the present case
is far from self-evident and if it can be
established, it has to be established by
lengthy and complicated arguments. We
do not think such an error can be cured by
a writ of certiorari according to the rule
governing the powers of the superior court
to issue such a writ. ...."
70. We may also quote with profit one more decision of
this Court explaining the true scope of issue of a writ
of certiorari and what is an error apparent on the
face of the record, which could be corrected by issue
of a high prerogative writ like certiorari. In the case
of Ebrahim Aboobakar and Hawabai Aboobakar
Vrs. The Custodian General of Evacuee Property,
New Delhi, reported in (1952) 1 SCC 798, this Court
made the observations in paras 12, 13, 14 and 15,
which we quote below:
"12. The remaining three questions canvassed
before us, unless they are of such a nature as
would make the decision of the respondent
dated 13-5-1950, a nullity, cannot be the
subject-matter of a writ of certiorari. It is plain
that such a writ cannot be granted to quash the
decision of an inferior court within its
jurisdiction on the ground that the decision is
wrong. Indeed, it must be shown before such a
writ is issued that the authority which passed
the order acted without jurisdiction or in excess
of it or in violation of the principles of natural
justice. Want of jurisdiction may arise from the
nature of the subject-matter, so that the inferior
court might not have authority to enter on the
inquiry or upon some part of it. It may also
arise from the absence of some essential
preliminary or upon the existence of some
particular facts collateral to the actual matter
which the court has to try and which are
conditions precedent to the assumption of
jurisdiction by it. But once it is held that the
court has jurisdiction but while exercising it, it
made a mistake, the wronged party can only
take the course prescribed by law for setting
matters right inasmuch as a court has
jurisdiction to decide rightly as well as
wrongly. The three questions agitated before us
do not seem to be questions which bear upon
the jurisdiction of the court of appeal, or its
authority to entertain them.
13. It was contended that no court of limited
jurisdiction can give itself jurisdiction by a
wrong decision on a point collateral to the
merits of the case upon which the limit of its
jurisdiction depends and that the questions
involved in the appeal before the respondent
were collateral to the merits of the case. As
pointed out by Lord Esher, M.R., in R. Vrs. CIT
[R. Vrs. CIT, (1888) LR 21 QBD 313 (CA)] , the
formula enunciated above is quite plain but its
application is often misleading. The learned
Master of the Rolls classified the cases under
two categories thus : (QBD pp. 319-20)
"... When an inferior court or tribunal or body,
which has to exercise the power of deciding
facts, is first established by Act of Parliament,
the legislature has to consider what powers it
will give that tribunal or body. It may in effect
say that, if a certain state of facts exists and is
shown to such tribunal or body before it
proceeds to do certain things, it shall have
jurisdiction to do such things, but not
otherwise. There it is not for them conclusively
to decide whether that state of facts exists,
and, if they exercise the jurisdiction without its
existence, what they do may be questioned,
and it will be held that they have acted without
jurisdiction. But there is another state of things
which may exist. The legislature may entrust
the tribunal or body with a jurisdiction which
includes the jurisdiction to determine whether
the preliminary state of facts exists as well as
the jurisdiction, [and] on finding that it does
exist, to proceed further or do something more.
When the legislature are establishing such a
tribunal or body with limited jurisdiction, they
also have to consider, whatever jurisdiction
they give them, whether there shall be any
appeal from their decision, for otherwise there
will be none. In the second of the two cases, I
have mentioned it is erroneous application of
the formula to say that the tribunal cannot give
themselves jurisdiction by wrongly deciding
certain facts to exist, because the legislature
gave them jurisdiction to determine all the facts
including the existence of the preliminary facts
on which the further exercise of their
jurisdiction depends; and if they were given
jurisdiction so to decide, without any appeal
being given, there is no appeal from such
exercise of their jurisdiction."
14. The tribunal constituted to hear appeals under
Section 24 has been constituted in these terms:
"Any person aggrieved by an order made
under Section 7, Section 16, Section 19 or
Section 38 may prefer an appeal in such
manner and within such time as may be
prescribed --
(a) to the Custodian, where the original order
has been passed by a Deputy or
Assistant Custodian;
(b) to the Custodian General, where the
original order has been passed by the
Custodian, an Additional Custodian or an
authorised Deputy Custodian."
15. Like all courts of appeal exercising general
jurisdiction in civil cases, the respondent has
been constituted an appellate court in words of
the widest amplitude and the legislature has
not limited his jurisdiction by providing that
such exercise will depend on the existence of
any particular state of facts. Ordinarily, a court
of appeal has not only jurisdiction to determine
the soundness of the decision of the inferior
court as a court of error, but by the very nature
of things it has also jurisdiction to determine
any points raised before it in the nature of
preliminary issues by the parties. Such
jurisdiction is inherent in its very constitution
as a court of appeal. Whether an appeal is
competent, whether a party has locus standi to
prefer it, whether the appeal in substance is
from one or another order and whether it has
been preferred in proper form and within the
time prescribed, are all matters for the decision
of the appellate court so constituted. Such a
tribunal falls within Class 2 of the
classification of the Master of the Rolls [R. v.
CIT, (1888) LR 21 QBD 313 (CA)]. In these
circumstances, it seems to us that the order of
the High Court of Punjab that a writ of
certiorari could not be issued to the respondent
quashing the order of 13-5-1950, was right. We
are further of the opinion that none of the
contentions raised has any merit whatsoever."
71. This Court in Parry and Company Limited Vrs.
Commercial Employees' Association, Madras and
Another (1952) 1 SCC 449 = AIR 1952 SC 179, held:
"14. The records of the case do not disclose any
error apparent on the face of the proceeding or
any irregularity in the procedure adopted by
the Labour Commissioner which goes contrary
to the principles of natural justice. Thus there
was absolutely no grounds here which would
justify a superior court in issuing a writ of
certiorari for removal of an order or proceeding
of an inferior tribunal vested with powers to
exercise judicial or quasi-judicial functions.
What the High Court has done really is to
exercise the powers of an appellate court and
correct what it considered to be an error in the
decision of the Labour Commissioner. This
obviously it cannot do. The position might have
been different if the Labour Commissioner had
omitted to decide a matter which he was bound
to decide and in such cases a mandamus
might legitimately issue commanding the
authority to determine questions which it left
undecided [Board of Education Vrs. Rice, 1911
AC 179 (HL)]; but no certiorari is available
to quash a decision passed with
jurisdiction by an inferior tribunal on the
mere ground that such decision is
erroneous. The judgment of the High
Court, therefore, in our opinion, is plainly
unsustainable. (Emphasis supplied)
72. In another case, the same Court held:
""A certiorari cannot be granted to quash the
decision of the appellate tribunal on these
points on the ground that the decision is
wrong"-- 'Ebrahim Aboobakar Vrs. The Custodian
General of Evacuee Property', 1952 Mad W.N. 502
(SC)."
73. It is, therefore, clear that in all findings on
matters of fact and interpretation of law
except in cases of defective jurisdiction, the
decision of the tribunal must be deemed to be
final.
74. The position is authoritatively summed up in
Halsbury's Laws of England Vol.IX in para 1493
where it is laid down thus:
"1493. Where the proceedings are regular upon
their face and the magistrates had jurisdiction,
the superior court will not grant the writ of
certiorari on the ground that the Court below
has misconceived a point of law. When the
Court below has jurisdiction to decide a matter,
it cannot be deemed to exceed or abuse its
jurisdiction, merely because it incidentally
misconstrues a statute, or admits illegal
evidence, or rejects legal evidence, or
misdirects itself as to the weight of the
evidence, or convicts without evidence. Nor
will certiorari be granted to quash the
decision of an inferior court within its
jurisdiction on the ground that the
decision is wrong in matters of fact, and
the Court will not hear evidence
impeaching the decision on the facts. ...."
75. Similarly in the case reported in-- 'Colonial Bank of
Australasia Vrs. Willan', (1874) LR 5 PC 417, it is
observed by their Lordships thus:
"The question is whether the inferior court has
jurisdiction to enter upon the enquiry and not
whether there has been miscarriage of the procedure
in the course of enquiry."
At page 443 of the same case, the learned Judges
observed--
"An adjudication by a Judge having jurisdiction over
the subject-matter is, if no defect appears on the face
of it, to be taken as conclusive of facts stated
therein."
The case in (1874) LR 5 PC 417 has been
approvingly cited by Fazl Ali, J. who held-- 'Rai Brij
Raj Krishna and Another Vrs. Messrs S.K. Shaw and
Brothers', AIR 1951 SC 115 that an error of law
does not constitute an error of jurisdiction and
that a wrong decision on facts or law cannot be
questioned in a civil Court.
76. It being open to the tribunals to come to one or the
other conclusion on the materials before them, it
cannot by any means be said that the decisions are
incorrect so as to attract the extraordinary
jurisdiction for interference by a writ of certiorari. In
a King's Bench decision in R. Vrs. Brighton and Area
Rent Tribunal, (1950) 1 All England Reporter 946,
Lord Goddard, CJ. observed that:
"... As the tribunal had observed all the
formalities of the Act, had offended against
none of its provisions or against the
regulations made under it, there was no
ground for holding that the tribunal's
determination was not in accordance with law,
and, therefore, the motions for certiorari and
mandamus should be refused".
77. The purpose of certiorari, as we understand, is
only to confine the inferior tribunals within
their jurisdiction, so as to avoid the irregular
exercise, or the non-exercise or the illegal
assumption of it and not to correct errors of
finding of fact or interpretation of law
committed by them in the exercise of powers
vested in them under the statute. The accepted
rule is that where a Court has jurisdiction it has a
right to decide every question which crops up in the
case and whether its decision is correct or otherwise,
it is bound to stand until reversed by a competent
Court. This Court in G. Veerappa Pillai Vrs. Messrs
Raman and Raman Ltd. Kumbakonam, Tanjore
District and Others, (1952) 1 SCC 334 observed:
"26. Such writs as are referred to in Article 226 are
obviously intended to enable the High Court to
issue them in grave cases where the
subordinate tribunals or bodies or officers act
wholly without jurisdiction, or in excess of it, or
in violation of the principles of natural justice,
or refuse to exercise a jurisdiction vested in
them, or there is an error apparent on the face
of the record, and such act, omission, error, or
excess has resulted in manifest injustice.
However extensive the jurisdiction may be,
it seems to us that it is not so wide or
large as to enable the High Court to
convert itself into a court of appeal and
examine for itself the correctness of the
decision impugned and decide what is the
proper view to be taken or the order to be
made." ***"
8.8. An error in the decision or determination itself may also
be amenable to writ of certiorari if it is a manifest error
apparent on the face of the proceedings, e.g., when it is
based on clear ignorance or disregard of the provision of
law. In other words, it is patent error which can be
corrected by certiorari but not a mere wrong decision.
The writ of certiorari must not be conflated with an
appeal. A writ of certiorari will not overturn any findings
of fact by the authority against which the writ is sought
to be issued. Writ of certiorari is used to correct errors of
jurisdiction or law; and to correct error of law where
revealed on the face of an order or decision or
irregularity, or absence of, or excess of, the jurisdiction
where shown. This Court is of the considered view that
the instant case does not fall within the propositions as
propounded by the Hon'ble Supreme Court of India in
the aforesaid judgments.
8.9. The case of the petitioners does not satisfy the
parameters laid down for exercise of jurisdiction under
Article 226/227 of the Constitution of India to
intermeddle the Order dated 03.10.2012 of the Collector,
Angul and direct the opposite parties to "give suitable
employment" to the petitioners.
8.10. It is queer to notice that though the petitioners have
pleaded by way of Rejoinder-Affidavit dated 08.05.2015
that "to be a member of family of SAP the necessity of
marriage and separation of the petitioner were not
required as they are the family members of their father",
in absence of the complete document as regards the
Rehabilitation Scheme, this Court repels such
contention. When this Court scanned through the
documents furnished by the petitioners, it is noticed
that except for portion of so-called "RA Scheme" which
contained only "Rehabilitation through Employment",
nothing is brought on record to test the veracity of such
statement made in the Rejoinder-Affidavit. Nonetheless,
the Collector in his Order dated 03.10.2012 has
discussed about such requirement in terms of
Rehabilitation Policy/Scheme. Therefore, this Court
finds that the finding recorded by the Collector, Angul is
just and rational. It does emanate from the Order of the
Collector, Angul vide Annexure-13 that:
"The R&R policy formulated for NTPC envaages that,
(i) persons losing more than 1/3rd of their total land in
NTPC Project are considered as Substantially
Affected Persons (SAP).
(ii) For the purpose of rehabilitation the family is
defined as the affected person, his/her spouse,
unmarried sons and unmarried daughters.
(iii) Married sons are to be treated as separate family.
(iv) The date of issue of the Notification under Section
4(1) of the Land Acquisition Act, 1894 would be
taken as the reference date for enumeration of the
displaced families."
8.11. Mere making bald statement by the petitioners that the
entitlement for employment does not depend upon
determination of "marriage" and "separation" would not
suffice to justify their claim on failure to adduce
evidence such as terms of entire Policy/Scheme of
Rehabilitation. It has been well-settled that a party has
to plead its case and produce/adduce sufficient evidence
to substantiate its stand taken in the petition and, in
case the pleadings are not complete, the Court is under
no obligation to entertain such plea. [Refer: Bharat Singh
Vrs. State of Haryana, AIR 1988 SC 2181; Surendranath
Ghosh Trust Estate, Kolkata Vrs. State of Odisha, 2010
(Supp.-II) OLR 847 (Ori).
9. It has been pleaded by the opposite party Nos. 2 and 4
in the Counter-Affidavit that the petitioner No.1,
belonging to Village Rangabeda, is not affected by NTPC
Project and, therefore, he is not an awardee. His father
Sri Kumuda Chandra Pradhan who was enumerated as
belonging to SAP family along with his other brothers.
The claim of the petitioner No.1 that his name has been
excluded from the list of SAP is not acceptable on the
ground that he was not married and not living in a
separate mess at the relevant point of time. With regard
to petitioner No.2, it has been stated that he is the son of
Butu Sahoo of village Gadasila, who was enlisted in the
list of SAP vide SAP No. A-599. He was given option for
purchase of land under Rehabilitation Scheme. For the
said purpose, an amount of Rs.50,000/- was sanctioned
in his favour, which he refused to receive. Bipin Sahoo,
another son of Butu Sahoo, viz., elder brother of the
petitioner No.2-Ramesh Chandra Sahoo, was married
and living in a separate mess, for which he was enlisted
in list of SAP vide No.B-264. He was given Rs.50,000/-
in FDR under Rehabilitation Scheme as he exercised
option for purchase of land. Hence, the name of the
petitioner No.2-Sri Ramesh Chandra Sahoo has not been
included in the list of SAP because he was not married
and not living in separate mess as on the material date.
9.1. Considering all these aspects, the writ application being
misconceived and devoid of merit does not warrant issue
of writ of certiorari and/or writ of mandamus. As has
already been stated, the Collector, Angul by adhering to
due procedure and upon hearing parties interested
taking into consideration the Scheme for Rehabilitation
passed Order dated 03.10.2012. Hence, the allegation
regarding non-application of mind by the Collector,
Angul, as alleged is nothing but myth.
DECISION AND CONCLUSION:
10. The Rejoinder-Affidavit dated 08.05.2015 sworn to by
Gyanendra Pradhan indicates as follows:
"Gyanendra Pradhan on date of acquisition of land, i.e.,
on the date of Notification under Section 4(1) of the Land
Acquisition Act, 1894 was unmarried ***"
10.1. That apart, the Collector, Angul has found that the
petitioner No.1 got married on 28.01.1993 whereas the
Notification under Section 4(1) of the Land Acquisition
Act, 1894 was published on 01.02.1990 in respect of
Rangabeda Village and 02.11.1987 in respect of Village
Rasol and the petitioner No.2 got married on 05.06.1995
while Notification under Section 4(1) was published on
03.02.1990. As per Rehabilitation and Resettlement
Policy formulated for NTPC Project to be eligible for the
benefit asked for, it is required that on the date of
publication of said Notification under Section 4(1) of the
Land Acquisition Act, a claimant must have got married
in order to be considered as "separate family". It is
transpired from the impugned Order that both the
petitioners "have not satisfied the eligibility criteria to be
declared as extended beneficiary". Referring to the terms
of Rehabilitation and Resettlement Policy, the Collector,
Angul has arrived at just conclusion.
10.2. Sri Kishore Kumar Jena, learned counsel for the
petitioners has not placed on record any material to
indicate such a condition is absent in the Rehabilitation
and Resettlement Policy formulated for NTPC Project.
Mere making bald statement that such a condition is
inessential for determination of family of SAP without
evidence to countenance such statement cannot impel
the mind of this Court to exercise power under Article
226/227 of the Constitution of India. In absence of
complete Scheme/Policy being enclosed to the writ
petition, this Court is at loss to analyse such a
contention. Rule 3(4) contained in Chapter-XV of the
Rules of the High Court of Odisha, 1948, under the
Heading "Applications under Articles 226, 227 and 228
of the Constitution and Rules for the Issue of Writs
under the said Articles (except Writs in the nature of
Habeas Corpus)" specifies as follows:
"(4) The material documents referred to or relied upon in
the application, shall also be filed along with the
application:
Provided that the Court may, in its discretion,
dispense with the production of the same."
10.3. The petitioners having not enclosed complete/material
document envisaging Policy/Scheme under which they
have claimed benefit, the writ petition is, therefore,
defective. A clear foundation has to be laid in the writ
petition with supporting documents, in absence of which
writ petition is bound to be dismissed.
11. It is also noteworthy to refer to prayer made by the
petitioners. Though prayer is made to issue direction to
the opposite parties "to give suitable employment as per
the Rehabilitation and Resettlement Plan for Talcher
Super Thermal Power Project, Kaniha" to the petitioners,
no prayer is made to set aside/quash or vary with the
Order dated 03.10.2012 passed by the Collector, Angul.
Hence the facts settled, the reasons assigned and
conclusion drawn by the Collector, Angul, could not be
questioned, and hence, this Court does not lean in
favour of exercising writ of mandamus to allow the
prayer of the petitioners.
12. From the nature of prayer made in the writ petition, the
issue that is raised by the petitioners is this, that
whether this Court in exercise of power under Article
226/227 of the Constitution of India can direct the
opposite parties to "give suitable employment" in terms
of Rehabilitation Scheme/Policy floated in connection
with acquisition of land for the purpose of NTPC Project?
As is laid down by the Hon'ble Supreme Court of India
with respect to the law of writ of certiorari on the subject
and circumstances under which exercise of power to
issue such writ could be justified, it is not proper for this
Court to exercise jurisdiction under Article 226/227 of
the Constitution of India.
13. In the aforesaid scenario, this Court does not warrant it
a fit case to interfere with the Order dated 03.10.2012
passed by the Collector, Angul vide Annexure-13 to the
writ petition and the facts as recorded by the said
Authority, being not varied, in view of the law as set
forth by the Hon'ble Supreme Court of India, this Court
does not find merit in the contentions and averments of
the writ petitioners leading to seek for issue of direction
to the opposite parties "to give suitable employment".
14. As a necessary corollary, the writ petition, sans merit,
stands dismissed, leaving the parties to bear their own
costs.
(MURAHARI SRI RAMAN)
JUDGE
DR. B.R. SARANGI, J. I agree.
(DR. B.R. SARANGI)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: MANORANJAN SAMAL
Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 31-Aug-2023 14:37:58
Orissa High Court, Cuttack
The 31st August, 2023, MRS/Laxmikanta
