Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 645 (GAU)

Bakul Rani Das v. Paresh Ch. Sarkar

2004-12-21

BROJENDRA PRASAD KATAKEY

body2004
JUDGMENT B.P. Katakey, J. 1. Mr. Somen Roy, the learned counsel appearing on behalf of Mr. K.N Bhattacharjee, the learned senior counsel for the writ petitioner has prayed for an adjournment, which I declined in view of the fact that this writ petition is pending since 29.5.1995. None appears for the respondents. 2. By this writ petition, the writ petitioner has sought to invoke the certiorari jurisdiction of this court under Article 226 of the Constitution of India for setting aside the order dated 22nd April, 1995 passed by the learned Tribunal constituted under the Tripura Agricultural Indebtedness Relief Act, 1979 ('the Act'). 3. The respondent No. 1 in the present writ petition has filed an application before the authority under Section 5(1) of the said Act praying for an order releasing the mortgaged property and grant of a certificate of redemption. The Sub Divisional Officer on the basis of the said application registered Case No. TAIR-7 of 1989 and upon issuance of notice and hearing the parties, vide order, dated 26.7.1994 allowed the claim of the respondent No. 1 herein redemping the mortgage and issuing the certificate of redemption. The said order was challenged by the present writ petitioner before the Appellate Tribunal under Section 6 of the said Act, which was registered as TAIR Case No. 1 of 1994. The Appellate Tribunal upon hearing the parties vide order dated 22.4.95, after coming to the definite finding that Shri Paresh Chandra Sarkar, respondent No. 1 in the writ petition executed the mortgaged deed in favour of Sukumar Chandra Das (predecessors in interest of the present writ petitioner), dismissed the appeal upholding the order passed by the Sub Divisional Officer on 26.9.1994. 4. Shri Sukumar Chandra Das filed the present writ petition challenging the said order passed by the Appellate Tribunal and during the pendency of the present writ petition, since Sukumar Das expired his legal heirs and representatives were substituted as writ petitioners in this writ petition. 5. 4. Shri Sukumar Chandra Das filed the present writ petition challenging the said order passed by the Appellate Tribunal and during the pendency of the present writ petition, since Sukumar Das expired his legal heirs and representatives were substituted as writ petitioners in this writ petition. 5. As it appears from the statement made in the writ petition that the petitioners have challenged the order passed by the learned S.D.O. as well as the Appellate Tribunal under the said Act on the ground that the present respondent No. 1 had executed the sale deed in favour of the predecessor in interest of the present writ petitioner and that the respondent No. 1 is not a landless agricultural labourer within the meaning of Section 2(g) of the Act so as to attract the provision of the Act. The learned appellate Tribunal has recorded categorical finding of fact that a deed dated 30.6.1975 was executed by Paresh Chandra Sarkar, in favour of Sukumar Chandra Das, mortgaging 0.40 acres of land for an amount of Rs. 1,000 with a condition to return the consideration amount of Rs. 1,000 within 5 years from the date of the mortgage. Before the learned Tribunal the question regarding the land being not agricultural land and whether Paresh Chandra Sarkar was a landless labourer within the meaning of Section 2(g) of the Act has not been raised and such plea, therefore, cannot be allowed to be raised in an application under Article 226 of the Constitution of India before this court. Such a question is a pure of question of fact and cannot be decided in a writ proceeding. 6. The High Court can exercise the certiorari jurisdiction under Article 226 of the Constitution of India only when there is self-evident error or patent error in the judgment passed by the Subordinate Tribunals. The High Court in exercise of the Certiorari jurisdiction cannot correct the error of judgment of subordinate courts and not to act as an appellate forum and, therefore, cannot re-appreciate the evidences. 7. The High Court in exercise of the Certiorari jurisdiction cannot correct the error of judgment of subordinate courts and not to act as an appellate forum and, therefore, cannot re-appreciate the evidences. 7. The power of the High Court under Article 226 of the Constitution of India, being limited, I do not find any merit in the writ petition to interfere with the order, dated 22.4.1995 passed by the learned Appellate Tribunal in TAIR Case No. 1 of 1994 since the question which are sought to be raised in the present writ petition are the question of facts which has already been decided by the learned Tribunal 8. This being the position, I do not find any merit in the writ petition. Hence, the writ petition is dismissed. No. costs.