Harkhabhai Dahyabhai v. STATE — 1993 DIGILAW 489 (GUJ)

A. N. DIVECHA, J. ( 1 ) THE order passed by the Assistant Collector at Dhrangadhra on 4th november 1981 in Ceiling Revision Case No. 297 of 1981 as affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad (the Tribunal for convenience) on 17th September 1982 in Revision Application No. TEN. B. A. 1189 of 1981 is under challenge in this petition under Article 227 of the Constitution of India. By his impugned order, the Assistant Collector at Dhrangadhra in exercise of his revisional powers under section 37 of the Gujarat Agricultural Lands Ceiling Act, 1960 (the Act for brief) upset the order passed by the Mamlatdar and Agricultural Lands Tribunal (Ceiling) of Dasada taluka at Patdi (the first authority for convenience) on 19th March 1981 in ceiling Case No. 129 (Gawana) declaring that the petitioners holding was not in excess of the ceiling area fixed under the Act. ( 2 ) THE facts giving rise to this petition move in a narrow compass. The petitioner was found holding certain parcels of land in all admeasuring 72 acres 27 gunthas situated in village Gawana taluka Dasada district Surendranagar (the disputed lands for convenience) on 1st April 1976. The ceiling area fixed under the Act for that local area is 54 acres. The first authority thereupon undertook the necessary inquiry under Section 20 thereof. It came to be registered as Ceiling Case No. 129 (Gawana ). In the course of the inquiry, the petitioner was found having one major son. The first authority thereupon came to the conclusion that the petitioner was entitled to hold two ceiling units equivalent to 108 acres of land and, since the petitioners holding was to the tune of 72 acres 27 gunthas, his holding was not in excess of the ceiling area for the purposes of the Act. Apropos, the first authority passed the necessary order on 19th March 1981 in Ceiling Case No. 129 (Gawana ). Its copy is at Annexure-A to this petition. It appears that the aforesaid order at annexure-A to this petition came to the notice of the Assistant Collector at Dhrangadhra. He found it not to be according to law. In exercise of his suo motu revisional powers under Section 37 of the Act, he initiated the proceedings thereunder. It came to be registered as Ceiling Revision Case No. 297 of 1981. He found it not to be according to law. In exercise of his suo motu revisional powers under Section 37 of the Act, he initiated the proceedings thereunder. It came to be registered as Ceiling Revision Case No. 297 of 1981. After hearing the parties, by his order passed on 4th November 1981 in Ceiling Revision Case No. 297 of 1981, he quashed and set aside the order at Annexure-A to this petition on the ground that the petitioner had no major son on 1st April 1976 and was therefore not entitled to any separate unit for that son. A copy of the aforesaid order passed by the Assistant Collector at Dhrangadhra is at Annexure-B to this petition. The aggrieved petitioner thereupon invoked the revisional jurisdiction of the Tribunal by means of his Revision Application no. TEN. B. A. l 189 of 1981. By its decision rendered on 17th September 1982 therein, the tribunal rejected it. Its copy is at Annexure-C to this petition. The petitioner has thereupon approached this Court by means of this petition under Articles 226 and 227 of the Constitution of India for questioning the correctness of the order at Annexure-B to this petition as affirmed in revision by the decision at Annexure-C to this petition. ( 3 ) THE dispute centres round the age of the petitioners son named Mahadevbhai as on 1st April 1976. There were on record two certifictes showing different birthdates of said Mahadevbhai. One certificate was issued by the Principal of the Primary School at gawana showing the birthdate of the student to be 1st June 1961. The other was issued by the Vaccinator Supervisor of the Primary Health Centre at Patdi showing the age of said mahadevbhai to be of nine months on 30th March 1958 on the date on which primary vaccination was effected on the child. The Assistant Collector as well as the Tribunal has chosen to rely on the certificate issued by the school authority in preference to the one issued by the Vaccinator Supervisor. The question raised before me is which certificate deserves to be given primacy. ( 4 ) IT is not in dispute that village Gawana is a small village in the district of surendranagar. The question raised before me is which certificate deserves to be given primacy. ( 4 ) IT is not in dispute that village Gawana is a small village in the district of surendranagar. It transpires from the record of the case available with Shri Mehta for the respondent (who has been fair enough to show to me the record of the case which has been in his possession for resisting this petition) that the petitioner is absolutely illiterate. From this record only I have been able to look at both the aforesaid certificates. It transpires from the record that the petitioner does not know even how to sign. He appears to have put his thumb impression as his signature whenever and wherever necessary. ( 5 ) IT is everyones common knowledge that illiterate people will not be able to remember important dates with absolute accuracy. Whenever necessary, they would come out with such dates on the basis of their impression. The petitioners son named mahadevbhai appears to have been admitted to school at an advanced age. It is not in dispute that primary education has been made compulsory in our State of Gujarat. It appears that, at the time of admitting Mahadevbhai to school, he was around 8 years in age. Compulsory primary education would require every parent to admit his child to school on completion of 5 years in age. It is possible that at that stage in order to avoid any consequence likely to arise out of not admitting his child to school soon on completion of his age of 5 years, the petitioner might have given his childs age to be around 5 years by giving his birthdate as 1st June 1961. Or it could have been noted down as such by the school authority on its own. In that view of the matter, no much importance need be given to the birthdate of the petitioners son recorded in his school register maintained by the Primary School in his village when there was no cogent and convincing evidence on record to the effect that the birthdate recorded in the school register was on the basis of the birth certificate issued by the local authority. ( 6 ) IT is not in dispute that the Primary Health Centre in a village is responsible for effecting the required vaccination to every child within reasonable time from the birth of such child. It transpires from the record that village Gawana is governed by the Primary health Centre at Patdi for the purposes of effecting vaccination to a child born in village gawana. It cannot be gainsaid that the Vaccinator Supervisor assigned the duty of effecting vaccination to a child has to maintain the necessary statement regarding the details of work done by him. That statement would naturally include details of the child or children who is or are subjected to such vaccination. Such details would inter alia include the full name of the child or children with his or their age, if approximately. ( 7 ) ON the record of the case shown to me is found a truly certified extract from the monthly statement of the Public Health Department for March 1958 maintained by the concerned Vaccinator Supervisor of the Primary Health Centre at Patdi at the relevant time. It transpires therefrom that the petitioners son named Mahadevbhai was vaccinated on 30th March 1958 and his age on that day was shown to be around 9 months. It transpires from the record that the Vaccinator Supervisor was examined in the inquiry conducted by the first authority under Section 20 of the Act and he has testified to the effect that the petitioners son named Mahadevbhai was vaccinated on 30th March 1958 and the child was aged about 9 months on that date. It cannot be gainsaid that the vaccinator Supervisor examined in the course of the inquiry proceedings before the first authority for the purpose of testifying as to the correctness of the certified extraction from the monthly statement of the Public Health Department for March 1958 was a disinterested person. It is nobodys case that he was won over by the petitioner for the purpose of recording his evidence in the inquiry proceedings before the first authority. There is no material on record showing that the Vaccinator Supervisor was in any way interested in the inquiry proceedings in question conducted by the first authority. It is nobodys case that he was won over by the petitioner for the purpose of recording his evidence in the inquiry proceedings before the first authority. There is no material on record showing that the Vaccinator Supervisor was in any way interested in the inquiry proceedings in question conducted by the first authority. In that view of the matter, there is no reason not to accept his version as to the correctness of the entries made in the monthly statement of the Public Health Department from March 1958 (a certified extract of which was produced in the inquiry proceedings) regarding the age of the petitioners son named Mahadevbhai as on 30th March 1958. The relevant entry therein would certainly be a more authentic record with respect to the age of the petitioners son named Mahadevbhai as on 1st April 1976. ( 8 ) I am supported in my view by the ruling of the Madras High Court in the case of alagammal vs. Rakkammal reported in A. I. R. 1982 Madras at page 354. In that case the village Headman produced an extract of birth register and testified as to the entry made by him after verifying the information received as to the birth of the person concerned. He was found to be a disinterested person. In that context the correctness of his having recorded the birth of the concerned person was accepted. ( 9 ) THE aforesaid ruling of the Madras High Court in the case of Alagammal (supra) lends support to the aforesaid view taken by me in this case. As observed by me earlier, the Vaccinator Supervisor examined in the course of the inquiry proceedings before the first authority was certainly a disinterested witness. There was no material on record to show that he was in any manner interested in the proceedings or had appeared before the first authority to oblige the petitioner with respect to the age of the petitioners son named mahadevbhai. His testimony therefore deserves to be accepted as to the recording of the age of the petitioners son named Mahadevbhai in the record of the Primary Health Centre as to vaccination effected to the child on 30th March 19s8. His testimony therefore deserves to be accepted as to the recording of the age of the petitioners son named Mahadevbhai in the record of the Primary Health Centre as to vaccination effected to the child on 30th March 19s8. ( 10 ) IF the birthdate in the school register is accepted to be true, the age of mahadevbhai would be less than 18 years on 1st April 1976 because his birthdate is shown to be 1st June 1961. If the Vaccinator Supevisors certificate is accepted, the age of mahadevbhai would be more than 18 years as on 1st April 1976 as he was shown to be aged 9 months on 30th March 1958 when he was vaccinated. The first authority has rightly relied on the certificate issued by the Vaccinator Supervisor supported by the monthly statement of the Public Health Department for March 1958 in preference to the birthdate of said Mahadevbhai recorded in his school register. The Assistant Collector at dhrangadhra was in error in not relying on the certificate issued by the Vaccinator supervisor of the Primary Health Centre at Patdi in support of the age of Mahadevbhai, more particularly when its genuineness was testified by examination of the concerned vaccinator in the course of the inquiry proceedings. With respect, the attention of the tribunal was also not focused on the aforesaid aspect of the case and it just agreed with the conclusion reached by the Assistant Collector at Dhrangadhra for preferring the school certificate to the Vaccinator Supervisors certificate with respect to said mahadevbhais birthdate. ( 11 ) SHRI Mehta for the respodent has then submitted that this Court need not upset the finding of fact recorded by the Assistant Collector at Dhrangadhra as affirmed in revision by the Tribunal with respect to the birthdate of the said son of the petitioner in exercise of its limited powers under Article 227 of the Constitution of India. In support of his submission, he has relied on the binding ruling of the Supreme Court in the case of Mohd. Yunus vs. Mohd. Mustaquim reported in AIR 1984 Supreme Court at page 38. It has been held therein:"a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. In support of his submission, he has relied on the binding ruling of the Supreme Court in the case of Mohd. Yunus vs. Mohd. Mustaquim reported in AIR 1984 Supreme Court at page 38. It has been held therein:"a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under Art. 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority" and not to correct an error apparent on the fact of the record much less an error of law. In exercising the supervisory power under Art. 227, the high Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior Court or tribunal purports to be based or to correct errors Of law in the decision. "with respect, the aforesaid ruling of the Supreme Court is distinguishable on its own facts and also on the ground that it pertains more to Article 227 of the Constitution of india. ( 12 ) IT may be mentioned at this stage that the present petition is preferred under articles 226 and 227 of the Constitution of India. It cannot be gainsaid that the powers of this Court under Article 226 of the Constitution of India are wider than those under article 227 thereof. Even assuming for the sake of argument that the petition for challenging the impugned order and the decision would be only under Article 227 of the constitution of India and the mention of Article 226 thereof is of no consequence or significance, this Court can certainly upset a perverse finding recorded by the lower authorities in exercise of its powers under Article 227 of the Constitution of India. It is a settled principle of law that a finding can be said to be perverse inter alia if it is such as no reasonable man on appreciation of the evidence on record would record it. The record shown to me would lead to only one conclusion that the birthdate of said Mahadevbhai as transpiring from the record of the Primary Health Centre at Patdi was the only evidence worthy of acceptance and reliance on the facts and in the circumstances of the case. The record shown to me would lead to only one conclusion that the birthdate of said Mahadevbhai as transpiring from the record of the Primary Health Centre at Patdi was the only evidence worthy of acceptance and reliance on the facts and in the circumstances of the case. Any other conclusion in that regard would be perverse. No reasonable man would reach any such conclusion giving primacy to the birthdate recorded in a village primary school unsupported by any cogent and convincing evidence over the record of birth maintained by the Primary Health Centre responsible for effecting vaccination to every child in the concerned village. In that view of the matter, I have no hesitation in coming to the conclusion that the finding as to the age of said Mahadevbhai, the petitioners son, based on the school record in preference to the Primary Health Centre record is nothing but perverse. Any decision based on such perverse finding cannot be sustained in law. ( 13 ) IN this connection a reference deserves to be made to the ruling of the Supreme court in the case of Ram Piari vs. Rallia Ram reported in A. I. R. 1982 Supreme Court at page 1314. In that case the auction sale of an evacuee property was set aside by the statutory authorities without considering material evidence and relying on irrelevant considerations. The finding based on such omission to consider material evidence and reliance on irrelevant considerations by the authorities was upset by the High Court in exercise of its extraordinary jurisdiction under Article 227 of the Constitution of India. In that context the Supreme Court has held that the interference by the High Court with the findings recorded by the lower authorities was justified. ( 14 ) THE aforesaid ruling of the Supreme Court is on all fours applicable in the present case. As pointed out hereinabove, the findings recorded by the appellate authority and the tribunal have been based on irrelevant considerations and on application of incorrect principles. I have branded such finding to be perverse. In that view of the matter, this court has to interfere with and upset those findings in exercise of its even limited powers under Article 227 of the Constitution of India. I have branded such finding to be perverse. In that view of the matter, this court has to interfere with and upset those findings in exercise of its even limited powers under Article 227 of the Constitution of India. ( 15 ) ONCE the age of the petitioners son named Mahadevbhai is found to be above 18 years on 1st April 1976 in view of the record of the Primary Health Centre at Patdi showing his age to be of 9 months at the time of his vaccination on 30th March 1958, the petitioner should be held entitled to two units of the ceiling area in view of Section 6 (3-C) the Act. In that view of the matter, the order passed by the first authority at annexure-A to this petition was quite just and proper calling for no interference by the impugned order at Annexure-B to this petition as affirmed in revision by the impugned decision at Annexure-C to this petition. ( 16 ) IN view of my aforesaid discussion, I am of the opinion that the impugned order at Annexure-B to this petition as affirmed in revision by the impugned decision at annexure-C to this petition cannot be sustained in law. It has to be quashed and set aside. ( 17 ) IN the result, this petition is accepted. The order passed by the Assistant Collector at Dhrangadhra on 4th November 1981 in Ceiling Revision Case No. 297 of 1981 at annexure-B to this petition as affirmed in revision by the decision rendered by the gujarat Revenue Tribunal at Ahmedabad on 17th September 1982 in Revision application No. TEN. B. A. 1189 of 1981 at Annexure-C to this petition is quashed and set aside. The order passed by the Mamlatdar and Agricultural Lands Tribunal (Ceiling) of dasada taluka at Patdi on 19th March 1981 in Ceiling Case No. 129 (Gawana) at annexure-A to this petition is restored. Rule is accordingly made absolute with no order as to costs. .