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2018 DIGILAW 159 (ORI)

Sk. Talim Ali v. Collector, Jajpur

2018-02-05

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT : B.R. SARANGI, J. 1. The appellant, who was the writ petitioner, has filed this intra-Court appeal challenging the judgment and order dated 11.09.2017 passed by the learned Single Judge in W.P. (C) No. 2582 of 2015, whereby the order passed by the Sub-Collector-cum-Appellate Authority holding that the appellant is a native of Chandpur has been confirmed. 2. The facts which led to filing of this appeal are that Indian Oil Corporation (IOCL), Bharat Petroleum Corporation Limited (BPCL) and Hindustan Petroleum Corporation Limited (HPCL) issued an advertisement in the year 2011 proposing to appoint Rajiv Gandhi Gramin LPG Vitrak (RGGLV) agents at different locations of the State of Orissa for various categories mentioned in respect of each place. In response thereto, in respect of the location at Brahmabarada, Kalan under Rasulpur Block in the district of Jajpur as mentioned against serial no. 128, for which applications were invited from open category, the appellant and respondent no. 4 made their applications claiming to be the resident of Brahmabarada, in view of the terms of the advertisement that the applicant for RGGLV should be a resident of the town/village of the advertised RGGLV locations. The appellant, in support of his place of residence, had filed the resident certificate issued by the Tahasildar, Rasulpur in Misc. Certificate Case No. 357 of 2013 indicating that he is the resident of Brahmabarada, Respondent no. 4, challenging the resident certificate issued by the Tahasildar, Rasulpur in favour of the appellant, preferred Misc. Appeal No. 20 of 2013 before the Sub-Collector-cum-Appellate Authority, who, by order dated 27.01.2015 set aside the said resident certificate. Against the said order of the Sub-Collector-cum- Appellate Authority, the appellant preferred W.P. (C) No. 2582 of 2015, and the learned Single Judge, having heard learned counsel for the parties and after going through the series of documents, vide order dated 11.09.2017, dismissed the writ petition and confirmed the order passed by the Sub-Collector-cum-Appellate Authority, which has been challenged before this Court in the instant appeal. 3. Mr. Asok Mohanty, learned Senior Counsel appearing along with Mr. C. Nayak, learned counsel for the appellant contended that the Sub-Collector-cum-Appellate Authority, while considering the appeal, had conducted no field inquiry and, as such, has only relied upon the report of the R.I. and lower court record, and passed the order cancelling the resident certificate issued by the Tahasildar, Rasulpur. Mr. Asok Mohanty, learned Senior Counsel appearing along with Mr. C. Nayak, learned counsel for the appellant contended that the Sub-Collector-cum-Appellate Authority, while considering the appeal, had conducted no field inquiry and, as such, has only relied upon the report of the R.I. and lower court record, and passed the order cancelling the resident certificate issued by the Tahasildar, Rasulpur. Therefore, the cancellation so made by the Sub-Collector-cum-Appellate Authority is arbitrary and unreasonable and as such, without considering the same in proper perspective, the learned Single Judge ought not to have confirmed the same. It is further contended that the certificate issued by the Tahasildar, Rasulpur in Misc. Certificate Case No. 357 of 2013 having been cancelled by the Sub- Collector-cum-Appellate Authority, without making proper inquiry, the orders passed by the Sub-Collector-cum-Appellate Authority as well as the learned Single Judge cannot sustain in the eye of law. It is also contended that since the Sub-Collector-cum-Appellate Authority, while passing the order on 27.01.2015, opined that the lower court without conducting the field inquiry committed an error and basing on the report of the local R.I. issued the resident certificate in favour of the appellant, it should have remanded the matter back to the court below, namely, Tahasildar, Rasulpur, instead of setting aside the order dated 30.01.2013 passed by the Tahasildar, Rasulpur in Misc. Certificate Case No. 357 of 2013. Thereby, the order so passed by the Sub-Collector-cum-Appellate Authority and consequential confirmation made by the learned Single Judge should be quashed. So far as resident certificate issued by the Tahasildar, Dharmasala dated 07.03.2011 in Misc. Case No. 1958 of 2011, which has been annexed as Annexure-2 to this appeal, is concerned, it is stated that the same was not filed before the writ Court and, therefore, no reliance can be placed at this stage on the said document. 4. Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State respondents argued with vehemence and contended that the order passed by the Sub-Collector-cum-Appellate Authority is wholly and fully justified and, as such, the same is based on the materials placed before him at the time of hearing, during the course of which he had given adequate opportunity to the parties. P.K. Muduli, learned Addl. Government Advocate appearing for the State respondents argued with vehemence and contended that the order passed by the Sub-Collector-cum-Appellate Authority is wholly and fully justified and, as such, the same is based on the materials placed before him at the time of hearing, during the course of which he had given adequate opportunity to the parties. As such, the order so passed by the Sub-Collector-cum-Appellate Authority and consequential order of confirmation made by the learned Single Judge, being wholly and fully justified, should not be interfered with in the present appeal. 5. Mr. P.K. Rath, learned counsel appearing for respondent no. 4 contended that in the event this Court interfered with the finding arrived at by the Sub-Collector-cum-Appellate Authority, which has been made confirmed by the learned Single Judge, it would amount to reassessing the evidence, which is not permissible at this stage. It is further contended that the last date for submission of application, as per the advertisement, was on or before 4.30 P.M. of 31.03.2011. The resident certificate, on which reliance was placed by the appellant in support of his place of residence, being issued by the Tahsildar, Rasulpur on 30.01.2013, vide Misc. Certificate Case No. 357 of 2013, which is after the last date fixed for submission of the application, no steps could have been taken on the basis of such certificate. More so, the materials available on record, including the correspondence made by HPCL and the letter of intent dated 16.05.2013, clearly indicate that the appellant belongs to village Chandpur. In addition to that, the voter list, resolution of Palli Sabha, NOC from Zilla Parishad Member of Zone-36 and the letter of Sarpanch of Brahmabarada G.P. clearly indicate that the appellant is the permanent resident of Chandpur. Even though the appellant seems to have some landed property in village Brahmabarada, but no residential house is existing thereon, as is evident from the report of the local R.I. and the lower court record. It is thus contended that the Sub-Collector-cum-Appellate Authority cannot be said to have committed any illegality or irregularity in cancelling the certificate issued by the Tahsildar, Rasulpur dated 30.01.2013 in Misc. Certificate Case No. 357 of 2013 and such order of cancellation having been confirmed by the learned Single Judge, vide order dated 11.09.2017, cannot be faulted with. It is thus contended that the Sub-Collector-cum-Appellate Authority cannot be said to have committed any illegality or irregularity in cancelling the certificate issued by the Tahsildar, Rasulpur dated 30.01.2013 in Misc. Certificate Case No. 357 of 2013 and such order of cancellation having been confirmed by the learned Single Judge, vide order dated 11.09.2017, cannot be faulted with. It is further contended that in view of the conditions stipulated in Clause-3(b) read with Clause-7 of the notification, the applicant applying for RGGLV, in respect of serial no. 128, should be a resident of the town/village of the advertised RGGLV location, i.e. Brahmabarada. The application along with enclosures complete in all respect should be submitted so as to reach the address of the authority before 4.30 pm of 31.03.2011. The resident certificate relied on by the appellant was issued by the Tahasildar, Rasulpur in Misc. Certificate Case no. 357 of 2013, by order dated 30.01.2013, which is beyond the last date for submission of the document, i.e., 31.03.2011. The application of the appellant cannot and could not have been taken into consideration by the Corporation for appointment as RGGLV in respect of the location at Brahmabarada, Kalan under Rasulpur Block in the district of Jajpur as shown in the serial no. 128 of the advertisement, as it did not contain a resident certificate issued before the last date, i.e. 31.03.2011 fixed for submission of the application. Thereby, the appellant was ineligible to be an applicant for appointment of RGGLV agent in respect of Brahmabarada, Kalan location under Rasulpur Block in the district of Jajpur meant for open category. 6. We have heard Mr. Asok Mohanty, learned Senior Counsel appearing along with Mr. C. Pradhan, learned counsel for the appellant; Mr. P.K. Muduli, learned Addl. Government Advocate for respondent nos. 1, 2 and 3 and Mr. P.K. Rath, learned counsel for respondent no. 4 and perused the record. With the consent of learned counsel for the parties, this matter is being disposed of at the stage of admission. 7. The undisputed fact being that a notification was issued for the State of Orissa by the IOCL, BPCL and HPCL proposing to appoint RGGLV under various categories at locations mentioned in such advertisement. In respect of serial no. With the consent of learned counsel for the parties, this matter is being disposed of at the stage of admission. 7. The undisputed fact being that a notification was issued for the State of Orissa by the IOCL, BPCL and HPCL proposing to appoint RGGLV under various categories at locations mentioned in such advertisement. In respect of serial no. 128, so far as place Brahmabarada, Kalan under Rasulpur Block in the district of Jajpur belonging to open category is concerned, which is the subject matter of dispute, the HPCL issued the advertisement. 8. It is to be seen whether the resident certificate issued by the Tahasildar, Rasulpur dated 30.01.2013 in Misc. Certificate Case No. 357 of 2013 indicating that the appellant is the resident of Brahmabarada can sustain in the eye of law or not. 9. It is no doubt true that respondent no. 4, challenging issuance of resident certificate issued by the Tahasildar, Rasulpur in favour of the appellant, preferred Misc. Appeal No. 20 of 2013 before the Sub-Collector-cum-Appellate Authority, Jajpur, who, after due adjudication, passed the following order on 27.01.2015:- “Perused the case record and L.C.R. available in the case record. Carefully examined the documents and gone through the contention of both parties. On perusal of case record, it is revealed that the Respondent no. 2 applied the residence Certificate on 29.1.13 before the Tahasildar, Rasulpur and accordingly the Tahasildar, Rasulpur forwarded the application to R.I. Samantarapur Circle to inquiry and report. On the strength of report of R.I. the lower Court has issued the Certificate on 30.1.13 with a finding that the Respondent No. 2 is residing temporarily in village, Brahmabarada, which is the subject matter of dispute. From the documentary evidence submitted by both the parties, it is seen that the Respondent No. 2 originally belongs to village-Chandapur under Maheswarpur G.P. The documentary evidence available in Case record such as, Voter list, Resolution of Palli Sabha, Work order issued by the B.D.O. Board Sheet on house damage of Rasulpur Tahasildar on Flood damage, Resignation Letter regarding Managing Committee of Chandpur, Maheswarpur High School, a letter of Intent of H.P.C. Ltd. regarding of opening of L.P.G. Storage Godown and Show room, N.O.C. from Zilla Parishad Member of Zone-36, Sarapanch of Brahmabarada G.P. it is clearly indicate that the Respondent No. 2 is permanently residing in village-Chandpur. There is some landed property existing in Village-Brahmabarada, but there is no residential house existing over it, as revealed from the report of local R.I. and L.C.R. From the above foregoing discussions, I came to the conclusion that the lower Court without conducting field enquiry only basing on the report of local R.I. concerned issued the Residence Certificate. The report of the R.I. is confusing and does not recommended for issue of Residence Certificate. believe during rush hour inadvertently and the D.A. has put the report for issue of such Certificate. Hence, it is illegal. Further, the necessary documents submitted by the both parties, it is clearly indicate that the Respondent No. 2 is residing in village-Chandpur, but not in village-Brahmabarada.” 10. The Sub-Collector-cum-Appellate Authority examined the documentary evidence placed before him to find out whether the appellant is a resident of Chandpur or Brahmabarada. But relying upon the documentary evidence such as voter list, resolution of Palli Sabha, work order issued by the B.D.O. Board Sheet on house damage of Rasulpur Tahasildar on flood damage, resignation letter regarding Managing Committee of Chandpur, Maheswarpur High School, a letter of intent of H.P.C. Ltd. regarding opening of L.P.G. Storage Godown and show room, N.O.C. from Zilla Parishad Member of Zone-36, Sarapanch of Brahmabarada G.P. the Sub-Collector-cum-Appellate Authority has come to a definite finding that the appellant is the permanent resident of village-Chandpur. It has further been observed that there is a landed property existing in village Brahmabarada, but there is no residential house existing over it, as revealed from the report of the local R.I. and the lower court record. Consequentially, he has come to a definite finding that the appellant is residing in village Chandpur but not in village Brahmabarada, and thereby cancelled the resident certificate issued by the Tahasildar, Rasulpur on 30.01.2013 in Misc. Certificate Case No. 357 of 2013. The said order of the Sub-Collector-cum-Appellate Authority, Jajpur was challenged before this Court in W.P. (C) No. 2582 of 2015 and the learned Single Judge, having not found any infirmity in the order passed by the Sub- Collector-cum-Appellate Authority, Jajpur, confirmed the same and dismissed the writ petition. 11. Certificate Case No. 357 of 2013. The said order of the Sub-Collector-cum-Appellate Authority, Jajpur was challenged before this Court in W.P. (C) No. 2582 of 2015 and the learned Single Judge, having not found any infirmity in the order passed by the Sub- Collector-cum-Appellate Authority, Jajpur, confirmed the same and dismissed the writ petition. 11. In “De Smith” on Judicial Review of Administrative Action (Fifth Edition) Para-14-004, 14-013, it is stated as follows: “Historically, certiorari was a royal demand for information; the King, wishing to be certified of some matter, orders that the necessary information be provided for him. From about 1280, the judicial forms of the writ of certiorari were in common use, issuing on the application of ordinary litigants. Sometimes it was in the nature of a writ of error; sometimes the proceedings at West-minister were in effect general appellate proceedings.” 12. In Halsbury’s Laws of England (Fourth Edition) (2001 Re-issue) Vol. 1(1) Para-123, it has been stated as follows:- “Certiorari (quashing order) is an order of the superior court by which decisions of an inferior court, tribunal, public authority or any other body of persons who are susceptible to judicial review may be quashed.” 13. In Hari Vishnu vs. Ahmad Ishaque, AIR 1955 SC 223 , the Constitution Bench of the apex Court laid down the proposition to issue writ of certiorari, which are well settled and beyond dispute, to the following effect:- (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decided without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. This is on the principle that a court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior court were to rehear the case on the evidence, and substitute its own findings in certiorari.” 14. In view of the principle decided above by the Constitution Bench of the apex Court in State of Andhra Pradesh vs. Chitra, AIR 1975 SC 2151 it has been held that the function of the superior Court in a proceeding for certiorari is supervisory and not appellate, the superior Court will not review the inter vires findings of the inferior tribunal, even if they are erroneous. 15. In Satyanarayan vs. Malikarajun, AIR 1960 SC 133 and in Associated Cement Company vs. Vyas, AIR 1960 SC 665 , the apex Court held that in a proceeding for certiorari, it would not normally be open to a party to challenge the findings of fact made by the inferior tribunal or to ask for a reappraisal of the evidence. 16. In Basappa T.C. vs. T.C. Nagappa, AIR 1954 SC 440 the apex Court held that while exercising powers under Article 226, the High Court acts in a supervisory capacity and not as an appellate Court. It will not re-appreciate, nor re-evaluate nor reexamine the facts and circumstances leading to the passing of the impugned order, nor it can substitute its own judgment for that of the subordinate courts or inferior tribunal. 17. Similar view has also been taken by the apex Court in Nagendra Nath Bora vs. Commissioner, Hills Division, AIR 1958 SC 398 and Surya Dev Rai vs. Ram Chander Rai, AIR 2003 SC 3044 . 18. Applying the above law laid down by the apex Court to the facts of the present case, as discussed above, this Court is of the considered view that the findings arrived at by the Sub-Collector-cum-Appellate Authority in order dated 27.01.2015 passed in Misc. 18. Applying the above law laid down by the apex Court to the facts of the present case, as discussed above, this Court is of the considered view that the findings arrived at by the Sub-Collector-cum-Appellate Authority in order dated 27.01.2015 passed in Misc. Appeal Case No. 20 of 2013 holding that the appellant belongs to village Chandpur cannot be found faulted with and, as such, the order so passed by the Sub-Collector-cum-Appellate Authority does not suffer from any illegality or irregularity so as to warrant interference of this Court in writ jurisdiction and, as such, the learned Single Judge has not committed any illegality or irregularity while confirming the order passed by the Sub-Collector-cum- Appellate Authority. Accordingly, we do not find any merit in this appeal, which is hereby dismissed. However, there shall be no order as to cost.