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2012 DIGILAW 804 (JK)

Jammu and Kashmir Services Selection Board v. Bansi Lal & Ors.

2012-12-27

HASNAIN MASSODI, J.P.SINGH

body2012
Per M.M. Kumar, C J.;— 1. The State of Jammu and Kashmir has filed the instant application seeking review of judgment and order dated 10.10.2005 passed by a Division bench of this Court in OWP no. 942/2002 and CMP no. 780/2005. It is pertinent to mention that order dated 02.09.2002 passed by the Revenue Minister in exercise of his revisional jurisdiction under Section 6 of the Jammu and Kashmir Grant of Permanent Resident Certificate (Procedure) Act, 1963 was the subject matter of challenge, by which the Hon'ble Minister cancelled the Permanent Resident Certificate issued in the year 1955 to the successor-in-interest of non-applicants-respondents. The aforesaid order has been set aside by the Division Bench. 2. The learned Additional Advocate General has made an attempt to persuade us to reverse the findings recorded by the Division Bench by re-appreciating the evidence all over again. According to the learned counsel the findings recorded by the Revisional Authority should have been accepted by the Division Bench. However, various paragraphs of the judgment under review would reveal that the Division Bench has refused to enter into area of re-appreciating the evidence and the findings recorded by the Revisional Authority. The Division Bench has exercised jurisdiction by setting aside the laconic findings which were not supported by evidence. The Division Bench has highlighted that in adequacy of evidence to sustain a finding of fact may not constitute a valid basis to set aside a finding but absence of any evidence would be particularly when Permanent Resident Certificate issued in 1955 to successor-in-interest of the non-applicants-respondents was set aside by the order passed by Hon'ble Minister on 02.09.2002. The aforesaid fact is clear from the following para of the judgment:- "It is not in dispute that the proceedings before the Revisional Authority were quasi-judicial proceedings. It is now well settled that if the Revisional Authority has appreciated the evidence on record and recorded the findings of fact, those findings are binding on this Court. By process of judicial review, this Court cannot appreciate the evidence and record its own findings of fact. It is now well settled that if the Revisional Authority has appreciated the evidence on record and recorded the findings of fact, those findings are binding on this Court. By process of judicial review, this Court cannot appreciate the evidence and record its own findings of fact. However, if the findings are based on no evidence or based on conjectures or surmises and no reasonable man would, on given facts and circumstances, come to the conclusion reached by the Revisional Authority on the basis of the evidence on record, certainly this Court would oversee whether the findings recorded by the Revisional Authority is based on no evidence or beset with surmises or conjectures." (emphasis added) 3. The aforesaid principle is based on well settled law of exercising certiorari jurisdiction. The scope of certiorari jurisdiction has been the subject matter of consideration of Hon'ble the Supreme Court in various judgments. In that regard reliance may be placed on the observations made in the cases of Syed Yakoob v. K. S. Radhakrishnan and anr, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and ors, (2003)6 SCC 675 , where it has been held that the true legal position of the certiorari jurisdiction is no longer in doubt and a writ of certiorari can be issued for correcting errors of jurisdiction committed by the inferior Courts or Tribunals, where the orders are passed by inferior Courts or Tribunals without jurisdiction or in excess of jurisdiction or as a result of failure to exercise jurisdiction such a writ can be issued. In para 7 of the judgment in Syed Yakoob's case the following observations have been made:- "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 in excess of it, or as a result of failure to exercise jurisdiction. 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 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 has 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. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding, are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque 1955-A SCR 1104: (S) AIR 1955 SC 233 ) Nagendra Nath v. The Commissioner of Hills Division, 1958 SCR 1240 : ( AIR 1958 SC 398 ) and Kaushalya Devi v. Bachittar Singh, A.I.R 1960 S.C 1168." (Emphasis added) 4. On the basis of principle and precedent the Division Bench proceeded to firstly discuss the definition of expression 'Permanent Residents' and concluded that by virtue of Section 6 of the Constitution of Jammu and Kashmir read with other two notifications, the term Class-I State Subject would mean all persons who were born and are residing within the State of Jammu and Kashmir before the commencement of the reign of His Highness the late Maharaja Gulab Singh Sahib Bahadur and also persons who settle therein before the commencement of Samvat year 1942 and has since been permanently residing therein. Under Class-H State Subjects, all those persons were grouped who had settled in the State before the close of year 1968 and have since permanently resided and acquired immoveable property therein. It was thereafter the Division Bench proceeded to record the finding that the successor-in-interest of the non-applicants-respondents S. Gurdial Singh and S. Zorawar Singh would fall under Class I category as they were residents since then. 5. The Division Bench then proceeded to discuss the basis for cancelling the Permanent Resident Certificates issued to the successor-in-interest of the non-applicants-respondents S/Shri Gurdial Singh and Zorawar Singh and found the same to be without any evidence. The Permanent Resident Certificates were more than 50 year old issued vide registration No. 1532 dated 19.06.1955. There is threadbare discussion that how the allegation of fabrication could have been conceived as there was no evidence to that effect. The Permanent Resident Certificates were more than 50 year old issued vide registration No. 1532 dated 19.06.1955. There is threadbare discussion that how the allegation of fabrication could have been conceived as there was no evidence to that effect. The following paragraphs makes an interesting reading:- "The Revisional Authority has also placed overwhelming reliance on the finding of the Inquiry Officer that file bearing registration No. 1532 dated 19th June, 1955 regarding the Permanent Resident Certificate issued in favour of S. Zorawar Singh was not traceable in the record and on the contrary same registration number dated 2nd August, 1955 relates to State Subject Certificate issued to one Abdul Rahim Joo S/O Sidiq Joo. The Revisional Authority has also mentioned that the Inquiry Officer had perused files bearing registration No. 1022 dated 24th June, 1955 and other files to show that in the month of June, 1955, no certificate with registration No. 1532 could have been issued. In this regard, case of the petitioner is that from the record available with the Revenue Department regarding State Subject Certificates issued in the year 1955, it has been revealed that during the year 1955, Certificates upto registration No. 5014 dated 31st December, 1955 were issued whereas there are only 1976 files in the record room for the said year and the rest of the files have same registration number. For example, under registration No. 27, there are three files dated 4th April, 1955, 29th April, 1955 and 13th May, 1955. Further, it has been found that latter registration number is of prior date. For example, file bearing registration No. 3950 is dated 27th February, 1955, whereas file bearing registration No. 48 is dated 1st March, 1955. The Inquiry Officer in his report at page 3 himself has referred to certain files, which demonstrate that file bearing registration No. 1022 is dated 24th June, 1955, whereas file having registration No. 1207 is dated 12.01.1955. Similarly, file bearing registration No. 637 is dated 28th May, 1955. The specific averment of the petitioners in this regard has not been denied by the respondents in their counter. This itself clearly shows that PRCs issued in the year 1955 were not allotted registration numbers serially but at random. Under these circumstances petitioners or for that matter S. Gurdial Singh and S. Zorawar Singh, cannot be said to have played any mischief." 6. This itself clearly shows that PRCs issued in the year 1955 were not allotted registration numbers serially but at random. Under these circumstances petitioners or for that matter S. Gurdial Singh and S. Zorawar Singh, cannot be said to have played any mischief." 6. The Division Bench also exposed the bona fide of the complainant at whose instance the Revisional Authority had initiated the proceedings as he was found to be business rival of the non-applicant-respondents. 7. In fact all that has been argued by Mr. H. A. Sidiquee, learned AAG, is that we should re-open the findings recorded by the Division Bench. The review jurisdiction cannot possibly be used for that purpose. This is not the scope of Section 114 read with Order XXXXIII Rule 1 C.P.C. There is no error apparent on the face of the record warranting review of the order dated 10.10.2005. The review is wholly misplaced and the same is liable to be dismissed. 8. For the aforesaid reasons the review petition fails and the same is dismissed.