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2016 DIGILAW 608 (ALL)

Sheo Nath v. Dy. Director of Consolidation

2016-02-19

SUDHIR AGARWAL

body2016
JUDGMENT Sudhir Agarwal, J. 1. Heard Sri M.N. Singh, learned counsel for the petitioners and Sri V.K. Singh, Advocate for contesting respondents. 2. The writ petition is directed against the orders dated 06.05.1974 passed by Consolidation Officer, Sakaldiha, Varanasi; 17.06.1971 passed by Settlement Officer of Consolidation, Varanasi; and, 15.04.1971 passed by Deputy Director of Consolidation, Varanasi. 3. The dispute in this writ petition relates to Khata No. 97 and 98 situate in Village Bathawar, Pargana Barhwal, District Varanasi. It is said that Khata No. 97 was recorded in the name of Shiv Nath and Ram Kumar as Bhumidhar and Khata No. 98 was recorded in the name of aforesaid two persons alongwith Ram Nandan and Tanku. When consolidation proceedings were initiated in aforesaid village notices were issued. An objection was filed by Arjun, Sarju, Vijay Bahadur and Ram Saran (Tanku) claiming half share in Khata No. 97. It was opposed by Shiv Nath stating that vendor, Smt. Nageera had no share in holdings hence objectors claiming half share as vendee have no right at all. Shiv Nath also opposed entry of names of Ram Nandan and Tanku in Khata No. 98. The Consolidation Officer vide order dated 15.04.1971 held that Smt. Nageera executed sale deeds in respect of Plots No. 89/1 on 20.11.1959; 211/1 and 211/2 on 24.02.1960 and they are valid. It accordingly passed following order: "Names of Arjun Sarju son of Bahadur Vijay Kumar son of Ram Nandan, Ram Saran (Tanku) s/o Brindaban shall be recorded as Bhumidhars on half of the Khata No. 97. Sheo Kumar and Ram Kumar shall be recorded as tenants in Class-IX on this land. In Khata 98, names of Arjun and Sarju shall be recorded alongwith other Khatedars, name of Tanku shall be corrected as Ram Saran. Vijai Bahadur shall be substituted for Ram Nandan deceased. This khata shall be partitioned in such a way mthat Sheo Nath and Ram Kumar get 1/2 and the rest of the khatedars get 1/2." 4. Aggrieved thereto Appeals No. 742 and 743 were preferred by Shiv Nath and others before Settlement Officer of Consolidation (hereinafter referred to as the "SOC") and Appeal No. 785 was filed by Arjun and others. SOC dismissed Appeals No. 742 and 743 preferred by petitioners and revision preferred by petitioners were also dismissed by Deputy Director of Consolidation, Varanasi vide order dated 06.05.1974. 5. SOC dismissed Appeals No. 742 and 743 preferred by petitioners and revision preferred by petitioners were also dismissed by Deputy Director of Consolidation, Varanasi vide order dated 06.05.1974. 5. Learned counsel for petitioners submitted that courts below have not examined the matter properly but this Court finds that courts below have recorded concurrent findings of facts and nothing has been shown that said findings are perverse or there is any misreading of document or there is any apparent error on record so as to justify interference under Article 226 /227 of the Constitution. 6. The scope of judicial review in such matters where the orders of courts below are assailed before this Court in a writ petition under Article 226 /227 of the Constitution is very limited. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. 7. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Court said: "Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere." 8. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 : "This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193 , to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors". 9. In Mohd. Yunus v. Mohd. Mustaqim and Ors. Sukumar Mukherjee AIR 1951 Cal. 193 , to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors". 9. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice. 10. For interference under Article 227 , the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895 ; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746 ; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896 ; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576 ; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300 ; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749 ; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47 ). 11. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341 ; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70 ; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr., (1999) 2 SCC 143 ). 12. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341 ; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70 ; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr., (1999) 2 SCC 143 ). 12. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521 ). 13. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82 , the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution. 14. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931 , the Hon'ble Supreme Court held that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse. 15. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245 , the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere. 16. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere. 16. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472 , the Hon'ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. 17. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4 ; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97 ; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319 . 18. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675 , it was held that in exercise of supervisory power under Article 227 , High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby. 19. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Court said: "...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions." 20. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329 , the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650. 21. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432 , Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction. 22. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772 , the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. 23. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244 , Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227. 24. In the present case, I do not find that the orders impugned in this writ petition do satisfy any of the relevant considerations, as noticed above, so as to justify interference by this Court in this writ petition in exercise of jurisdiction under Article 226 of the Constitution of India. 24. In the present case, I do not find that the orders impugned in this writ petition do satisfy any of the relevant considerations, as noticed above, so as to justify interference by this Court in this writ petition in exercise of jurisdiction under Article 226 of the Constitution of India. In the circumstances, I find no merit in this writ petition. 25. Dismissed. Interim order, if any, stands vacated.