Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 294 (CAL)

Shiv Ram v. Lt. Governor

2009-04-07

AMIT TALUKDAR, SANJIB BANERJEE

body2009
JUDGMENT SANJIB BANERJEE, J. 1. The appellant carries an order dated March 18, 2009 dismissing a writ petition. The writ petitioner had assailed an order of December 13, 2007 passed by the Tehsildar of Ferrargunj, in effect, recalling an order dated May 15, 2007. 2. The writ petitioner appears to be one of the eight heirs of one Bacchan who was the recorded tenant of land bearing survey Nos. 119, 141, 118, 94 and 95 covering a total area of 3.94 hectares at village Port Mout. The writ petitioner applied for mutation of the land in his favour which was allowed under the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (hereinafter referred to as the said Regulation). Some of the other heirs applied on June 20, 2007, complaining of the mutation of the land in the sole name of the writ petitioner. There were several anomalies in the application filed by the other heirs who are the private respondents herein. The application was made before the "Court of the Tehsildar at Ferrargunj" and was styled as "revenue revision No. ...of 2007." the applicants invoked section 28(1) of the said Regulation which, in fact, is the provision for an appeal from every original order passed under the said Regulation or the rules made thereunder. In the body of the application, the applicants complained of having been misled and of having no notice prior to the mutation being effected. The applicants referred to themselves as appellants and sought stay of execution of order dated May 15, 2005 and for joint mutation of the land in the names of all legal heirs of Bacchan. The Tehsildar received the application under section 35(1) of the said Regulation. Such provision speaks of stay of execution of an order passed by a revenue officer by the same officer or by his successor in office to enable an appeal or revision being carried from the original order. The Tehsildar read the application as one for revision of the order dated May 15, 2007. Such provision speaks of stay of execution of an order passed by a revenue officer by the same officer or by his successor in office to enable an appeal or revision being carried from the original order. The Tehsildar read the application as one for revision of the order dated May 15, 2007. The Tehsildar noticed shortcomings in the proceedings that culminated in the "impugned mutation." He saw that affidavits relating to alleged no-objection given by some of the other heirs did not appear in the records; that the applicant for mutation (the writ petitioner-appellant herein) had failed to furnish the list of all the legal heirs of the originally recorded tenant; that some legal heirs had complained of the mutation being allowed solely in favour of the writ petitioner herin; and, of the notice in Form-J and summons in Form-K being improper and the order-sheet not showing the signatures of all concerned. 3. IT was the writ petitioner's contention before the learned single judge and which is repeated here that the Tehsildar had no authority to revise an order made by his predecessor in office. The appellant says that the Tehsildar did not treat the application as one for review and the essential conditions for review had not been met by the respondent-applicants. The appellant asserts that the order of December 13, 2007 is wholly without jurisdiction and as such the appellant was not required to carry an appeal therefrom under the said Regulation. 4. The learned single judge held that in substance the order was one of review and since such authority was available to the tehsildar under section 34 of the said Regulation, there was no error of jurisdiction committed in making the order dated December 13, 2007.An appeal or revision or review, by whatever name it may be called, is a plea for the subject order to be altered. Legally speaking, an appeal or a revision lies to a superior forum, but a review lies before the same forum. Persons versed in law know of the distinction between the three modes of assailing an order; to the lay litigant it is of little importance. The grounds to be taken in an appeal differ from the grounds to be carried by way of revision. The grounds that are available for an order to be reviewed are, ordinarily, more restricted. Persons versed in law know of the distinction between the three modes of assailing an order; to the lay litigant it is of little importance. The grounds to be taken in an appeal differ from the grounds to be carried by way of revision. The grounds that are available for an order to be reviewed are, ordinarily, more restricted. Whatever may be the name by which an application of such nature is fashioned, the substantial relief is to have the original order upset. Despite the authority conferred by the said Regulation on the Tehsildar, he is only a revenue officer wearing, at times, the hat of a quasi-judicial authority whose acts and deeds are not to be tested by the same yardstick that would be applied to a judicial officer. 5. IF the Tehsildar had no statutory authority to review the order dated May 15, 2007, then there would be a substantial question in judicial review. But to suggest that a writ petition be entertained from the order of December 13, 2007 on account of the mistaken nomenclature, would be making too fine of a technical challenge. 6. COUNSEL for the appellant says that section 34 of the said Regulation involves due compliance of certain pre-conditions. Indeed, the third proviso to section 34(1) imposes some conditions, as does section 34(2) thereof. The said section may be seen: "34(1) Every revenue officer may, either of his own motion or on the application of any party interested, review any order passed by himself or by any of his predecessors-in-office and pass such order in reference thereto as he thinks fit: Provided that - (i) no order shall be varied or reversed unless notice has been served on the parties interested to appear and opportunity has been given to them for being heard; (ii) no order from which an appeal has been made, or which is the subject or any revision proceedings shall be reviewed. (iii) no order affecting any question of right between private persons shall be reviewed except on the application of a party to the proceedings and no application for the review of such order shall be entertained unless it is made within ninety days from the date of the order. (2) No order shall be reviewed except on the grounds provided for in the Code of Civil Procedure, 1908. (2) No order shall be reviewed except on the grounds provided for in the Code of Civil Procedure, 1908. (3) For the purposes of this section, the Deputy Commissioner shall be deemed to be the successor in office of any revenue officer who has left the district or who has ceased to exercise powers as a revenue officer and to whom there is no successor in the district." Despite the Tehsildar's mistaken reference to the application before him as one for revision, he has, in fact, reviewed the order of May 15, 2007 for which he had due authority. There was an application by an interested party, who is deemed to have been a party to the proceedings in which the order of May 15, 2007 was made. The first condition stood satisfied. The application for "revision" was made on June 20, 2007 which was within 90 days of the order dated May 15, 2007. The second condition that finds place in the relevant proviso was also complied with. The challenge as to the jurisdiction of the Tehsildar is, therefore, without any basis. 7. IT is now to be seen whether the decision made upon due sanction of law was arrived at by due process of law. In other words, the decision-making process has to be assessed as is the wont in exercising judicial review under Article, 226 of the Constitution. Section 34(2) makes only the grounds under the Civil Procedure Code applicable for reviewing an order. Section 114 of the Code read with Order 47 thereof stipulates, inter alia, that error apparent on the face of the order would be one of the grounds available. 8. AN application for mutation by an heir requires the details of the other heirs to be furnished. AN application for mutation in favour of only one of the heirs of a recorded tenant calls for an investigation into the claim of such heir in preference to the rights of the other heirs. The order dated December 13, 2007 recorded that there were "procedural lapses" in allowing mutation in favour of the appellant herein. Implicit in such recording is that the Tehsildar found that there was error apparent in the order of May 15, 2007. The order dated December 13, 2007 recorded that there were "procedural lapses" in allowing mutation in favour of the appellant herein. Implicit in such recording is that the Tehsildar found that there was error apparent in the order of May 15, 2007. Without going into the other grounds available for review under the Code- and some of them are implied in the application- the decision-making process can be sustained on such count alone. In proceedings under Article 226 of the Constitution when an order passed by a quasi judicial authority is assailed, the writ Court does not exercise appellate powers. The Court, in judicial review, looks at the procedure adopted and assesses whether the authority had jurisdiction and followed the principles of natural justice. There is, of course, an exception to these general principles if the order assailed is patently perverse in the sense that it shocks the writ Court's conscience. 9. ON these tests, the order impugned sails through and more than passes muster. Since the learned single judge noticed that it may be open to the writ petitioner to carry the order in appeal, the learned judge applied the least invasive canons of investigation so that the alternative remedy available to the petitioner was not taken away by a more wholesome assessment on merits. 10. MAT No. 030 of 2009 fails and the appellant is left free to pursue his alternative remedy subject to the adjudication that has been made against the appellant in these proceedings. There will be no order as to costs. Urgent photostat certified copies of this judgment be supplied to the parties, if applied for, subject to compliance with requisite formalities. Amit Talukdar Appeal fails D.S.