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2019 DIGILAW 1712 (JHR)

Shashi Shekhar Mahto v. State of Jharkhand

2019-09-26

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : Both the writ petitions are being listed together since the issues involved in these cases as also the impugned orders are having the same issues, therefore, heard together and being disposed of by this common order. 2. These writ petitions is under Article 226 of the Constitution of India wherein prayer has been made to quash the order dated 28.03.2018 passed in Case No. 06/2017 and order dated 28.03.2018 passed in Case No.07/2017 whereby the revision preferred by the petitioners has been dismissed upholding the order of pre-emption dated 20.10.2016 passed in L.C. Appeal No. XV 24/2016-17 and L.C. Appeal No. XV 25/2016-17 by Additional Collector, Palamau. Further prayer has been made for quashing the order dated 20.10.2016 passed in L.C. Appeal No. XV 24/2016-17 and L.C. Appeal No.XV 25/2016-17 by Additional Collector, Palamau as well as order dated 27.06.2016 passed by the Deputy Commissioner Land Reforms, Palamau in L.C. Case No. 07/97-98 and L.C. Case No. 08/97-98 by which the claim of pre-emption of the Respondent No.5 under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 has been allowed. 3. The ground has been raised about non-observance of the provisions of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred as the Act, 1961). According to the petitioners, the provision of Section 16(3) of the Act, 1961 provides for filing of an application under Section 16(3) of the Act, 1961 after three months from the date of registration but herein the application under Section 16(3) of the Act, 1961 has been filed after the sale letter executed in between the parties and as such on the date when the application has been filed for passing appropriate order, the application was not maintainable. Secondly, even if the parties have arrived at compromise for waiting for the registration of the deed on the basis of the sale letter, the same cannot prevail upon the statutory provision as contained under Section 16(3) of the Act, 1961 giving a go by to the condition for applicability of the provision as contained therein. 4. Mr. Secondly, even if the parties have arrived at compromise for waiting for the registration of the deed on the basis of the sale letter, the same cannot prevail upon the statutory provision as contained under Section 16(3) of the Act, 1961 giving a go by to the condition for applicability of the provision as contained therein. 4. Mr. Rupesh Kumar Singh, learned counsel appearing for the State has submitted that the provision of Section 16(3) of the Act, 1961 will be said to be applicable the day when the cause of action will arise, herein, the cause of action for invoking the jurisdiction conferred under Section 16(3) of the Act, 1961 will be said to be arisen the day when the parties have agreed for transfer of the land by virtue of sale letter and therefore, the contention/ground which has been agitated by the learned counsel appearing for the petitioners is not worth to be considered. 5. Mr. Binod Kumar, learned counsel appearing for the Respondent No.5 in both the cases, has adopted the ground raised by the learned counsel appearing for the State and has defended the order by submitting that the Member Board of Revenue as also the other authorities, while passing the order, have taken into consideration the order passed by the Additional Collector reported in P.L.J.R. 1969 (Revenue) at page No.14-15. 6. This Court has heard the learned counsel for the parties at length and on appreciation of their rival submissions, the fact which has been gathered from the arguments advanced on their behalf, is that an application has been filed by the original pre-emptor namely Bishwanath Mahto seeking pre-emption invoking the provision of Section 16(3) of the Act, 1961 by filing an application on 21.01.1998, in pursuance thereto, a proceeding has been initiated for making the sale deed No. 11183 and 11184 both dated 25.11.1995 subject matter of the pre-emption proceeding. The parties have appeared and after hearing them, the original authority has passed an order on 27.06.2016 in L.C. Case No. 07/97-98 and L.C. Case No. 08/97-98 whereby and whereunder the order has been passed for transfer of the land in favour of the pre-emptor within a period of 30 days. The parties have appeared and after hearing them, the original authority has passed an order on 27.06.2016 in L.C. Case No. 07/97-98 and L.C. Case No. 08/97-98 whereby and whereunder the order has been passed for transfer of the land in favour of the pre-emptor within a period of 30 days. The petitioners have preferred appeal as also revision but both the appellate as well as revisional authority have declined to interfere with the order passed by the original authority against which the present writ petitions have been filed inter alia on the grounds as referred hereinabove. 7. This Court, before entering into the legality and propriety of the order, deems it fit and proper to refer the provision of Section 16 of the Act, 1961, which reads hereunder as :- 16. Restriction on future acquisition by transfer, etc. - (1) No person shall, after the commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, already held by him exceeds in the aggregate the ceiling area. Explanation. - For the purpose of this Section "Transfer" does not include inheritance, bequest or gift. (2) (i) After the commencement of this Act, no document incorporating any transaction for acquisition or possession of any land by way of transfer, exchange, lease, mortgage, agreement or settlement shall be registered, unless a declaration in writing duly verified is made and filed by the transferee before the registering authority under the Indian Registration Act, 1908 (XVI of 1908), as to the total area of land held by himself or through any other person anywhere in the State. (ii) No such registering authority shall register any document evidencing any transaction if, from the declaration made under clause (i), it appears that the transaction has been effected in contravention of the provision of sub-section (1). (iii) No land shall be transferred, exchanged, leased, mortgaged, bequeathed or gifted without a document registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908). Explanation. - Nothing in this sub-section shall be deemed to have any effect on the provisions of the tenancy law of the area relating to transfer, exchange, lease, mortgage, agreement or settlement. Explanation. - Nothing in this sub-section shall be deemed to have any effect on the provisions of the tenancy law of the area relating to transfer, exchange, lease, mortgage, agreement or settlement. (3) (i) When any transfer of land is made after the commencement of the Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document, of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed: Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period. (ii) On such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under clause (i) is pending for decision: Provided that where the application is rejected, the co-sharer or the raiyat, as the case may be, shall be evicted from the land and possession there of shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten per cent of the purchase money out of the deposit made under clause (i). (iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuses to comply with the direction, the procedure prescribed in Order 21, Rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be, so far as may be, followed. 8. It is evident from the aforesaid provision as would appear from Sub Section (1) thereof that restrainment has been created for transfer, exchange, lease, mortgage, agreement or settlement of any land after the commencement of the Act either by himself or through any other person. 8. It is evident from the aforesaid provision as would appear from Sub Section (1) thereof that restrainment has been created for transfer, exchange, lease, mortgage, agreement or settlement of any land after the commencement of the Act either by himself or through any other person. Further under Sub-Section (2) the provision has been made to the effect that after the commencement of the Act, no document incorporating any transaction for acquisition or possession of any land by way of transfer, exchange, lease, mortgage, agreement or settlement shall be registered, unless a declaration in writing duly verified is made and filed by the transferee before the registering authority under the Indian Registration Act, 1908 and further the registering authority to act in pursuance to the provision of Act, 1908. Sub-Section (3) thereof provides a condition about transfer of land to be made in favour of any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document, of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed subject to the condition that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period. 9. It is evident from the aforesaid provision that if the land which to be transferred is adjoining to the raiyat or the co-sharer, the same is to be transferred if the co-sharer or the raiyat of the adjoining land is willing to purchase but sold out in favour of the third party, in that situation, the co-sharer or a raiyat of adjoining land is entitled to make an application within three months of the date of registration of the document before the collector in the prescribed manner, meaning thereby the cause of action to invoke the jurisdiction conferred under Section 16(3) of the Act, 1961 will arise only after the land having been transferred and the period of limitation is three months of the date of registration of the document of transfer. Therefore, before invoking the jurisdiction as conferred under Section 16(3) of the Act, 1961, the condition precedent about the maintainability of the application would be the date of registration and within three months from the date of registration for transfer of the said land, the application is to be maintained. 10. The transfer of the land would be said to be transferred in the eye of law if made in pursuance to the provision of Transfer of Property Act, 1882 vis-à-vis the Indian Registration Act, 1908 and that is the reason, under the provision of Section 16(3) the period of three months has been provided to be counted from the date of registration of the document of transfer, the date of registration is of significance. 11. In the present fact, the meaning of “transfer” is also required to be reflected as has been defined under Section 39 of Transfer of Property Act, 1882 which is a legislation which regulates the transfer of property in India. According to the Act, transfer of property means “an act by which a person conveys the property to one or more persons, or himself and one or more other persons. The act of transfer may be done in present or for future”. 12. The Hon’ble Apex Court in the case of Suraj Lamp and Industries Private Limited Vs. State of Haryana and Another reported in (2012) 1 SCC 656 has observed that it has become a common practice to effect transfers of immovable properties by way of either general power of attorney or sale agreement, general power of attorney or will transfers in order to evade other things, the payment of duties, tax and other fees payable on transfer and registration. Further, the distinction has been made in between illegal transaction from genuine transaction while referring to the provisions of Sections 53-A and 54 of the Transfer of Property Act, 1882. In this case the Hon’ble Apex Court has held which is quoted hereunder as:- “18. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. 19. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. 19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.” In yet another judgment rendered in the case of Narandas Karsondas Vs. S.A. Kamtam reported in (1977) 3 SCC 247 the Hon’ble Apex Court has held which reads hereunder as:- “26. The provisions in the Transfer of Property Act relevant to the purpose of present appeal are sections 54, 60 and 69. Under section 54 of the Transfer of Property Act, sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Such transfer in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing can be made only by a registered instrument. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.” In another judgment in the case of Rambhau Mandeo Gajre Vs. Narayan Bapuji Dhotra reported in (2004) 8 SCC 614 the Hon’ble Apex Court has observed at para 13 which reads hereunder as :- “13. The agreement to sell does not create an interest of the proposed vendee in the suit property. As per Section 54 of the Act, the title in immovable property valued at more than Rs. 100/- can be conveyed only by executing a registered sale deed. The agreement to sell does not create an interest of the proposed vendee in the suit property. As per Section 54 of the Act, the title in immovable property valued at more than Rs. 100/- can be conveyed only by executing a registered sale deed. Section 54 specifically provides that a contract for sale of immovable property is a contract evidencing the fact that the sale of such property shall take place on the terms settled between the parties, but does not, of itself, create any interest in or charge on such property. It is not disputed before us that the suit land sought to be conveyed is of the value of more than Rs. 100. Therefore, unless there was a registered document of sale in favour of Pishorrilal (the proposed transferee) the title of the suit land continued to vest in Narayan Bapuji Dhotra (original plaintiff) and remain in his ownership. This point was examined in detail by this Court in State of U.P. Vs. District Judge [ 1997 (1) SCC 496 ], and it was held thus: "7. Having given our anxious consideration to the rival contentions we find that the High Court with respect had patently erred in taking the view that because of Section 53-A of the Transfer of Property Act the proposed transferees of the land had acquired an interest in the lands which would result in exclusion of these lands from the computation of the holding of the tenure-holder transferor on the appointed day. It is obvious that an agreement to sell creates no interest in land. As per Section 54 of the Transfer of Property Act, the property in the land gets conveyed only by registered sale deed. It is not in dispute that the lands sought to be covered were having value of more than Rs. 100. Therefore, unless there was a registered document of sale in favour of the proposed transferee agreement-holders, the title of the land would not get divested from the vendor and would remain in his ownership. There is no dispute on this aspect. However, strong reliance was placed by learned counsel for Respondent 3 on Section 53-A of the Transfer of Property Act. We fail to appreciate how that section can at all be relevant against the third party like the appellant-State. There is no dispute on this aspect. However, strong reliance was placed by learned counsel for Respondent 3 on Section 53-A of the Transfer of Property Act. We fail to appreciate how that section can at all be relevant against the third party like the appellant-State. That section provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said lands till they are legally conveyed by sale deed to the proposed transferees. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party like the appellant-State when it seeks to enforce the provisions of the Act against the tenure-holder, proposed transferor of these lands." [emphasis supplied] There was no agreement between the appellant and the respondent in connection with the suit land. The doctrine of part performance could have been availed of by Pishorrilal against his proposed vendor subject, of course, to the fulfilment of the conditions mentioned above. It could not be availed of by the appellant against the respondent with whom he has no privity of contract. The appellant has been put in possession of the suit land on the basis of an agreement of sale not by the respondent but by Pishorrilal, therefore, the privity of contract is between Pishorrilal and the appellant and not between the appellant and the respondent. The doctrine of part performance as contemplated in Section 53-A can be availed of by the proposed transferee against his transferor or any person claiming under him and not against a third person with whom he does not have a privity of contract.” Thus, transfer of immovable property by way of sale can be effected only by a deed of conveyance. In absence of a deed of conveyance, no right title or interest in an immovable property can be transferred. 13. In absence of a deed of conveyance, no right title or interest in an immovable property can be transferred. 13. The issue which has been agitated in this writ petition has well been considered by the Hon’ble Patna High Court in the judgment rendered in the case of Jawahar Lal Vs. Additional Member, Board of Revenue & Others reported in 1974 PLJR 360 wherein it has been held – “3. It has been held by the Supreme Court in Hiralal Aggarwal v. Ram-padarath Singh ( AIR 1969 SC 244 ) that the right of re-conveyance under Section 16 of the Act accrues only when the registration of a sale deed is complete, as required by Sections 60 and 6l of the Registration Act and not before. In other words the right of re-conveyance does not accrue before the sale deed is copied out in the books maintained for the purpose by the registering authority, following the above decision, the same view has been reiterated by a Bench of this Court, in Kauleshwar Singh v. Parmanand ( AIR 1972 Pat 407 ). It may be stated that the same view had been taken in three earlier unreported Bench decisions of this Court, which have been referred to in Kauleshwar Singh's case. Therefore, there can be no doubt that the application of respondent No. 4 filed before respondent No.3 was not maintainable and that respondent No. 3 could not have entertained that application, and, consequently, the orders passed by him on the 1st of May, 1969 issuing notices to the petitioners and respondent No.5 and the final order as contained in Annexure "3" allowing the said application were without jurisdiction.” In another judgment rendered in the case of Ram Paras Choudhary & Others Vs. The State of Bihar & Others reported in 1993(2) PLJR 260 the Division Bench of Hon’ble Patna High Court has held – “5. The aforementioned, two cases, namely, Ram Saran Lal’s and Radhakishan L. Toshniwal’s case (supra) have been noticed by the Supreme Court in Hiralal Agarwal’s case (Supra). The State of Bihar & Others reported in 1993(2) PLJR 260 the Division Bench of Hon’ble Patna High Court has held – “5. The aforementioned, two cases, namely, Ram Saran Lal’s and Radhakishan L. Toshniwal’s case (supra) have been noticed by the Supreme Court in Hiralal Agarwal’s case (Supra). The Supreme Court in the facts of the said case held that the question whether right of re-conveyance had accrued to the appellant of that case or not was academic for the purpose of that case as in that case the facts were that the application for pre-emption though filed on 26th November, 1964 but was placed for the first time before the Collector on 30th November, 1964 when the registration was completed and the transfer had also become complete. The Collector for the first time took cognizance of the aforementioned application for pre-emption on November, 30, 1964, on which date it was placed before him and on being satisfied that the conditions of section 16 of the Act were satisfied he passed order under sub-section 16(3) (ii) of the Act for handing over possession from the transferee to the appellant. The fact of the said case was that the Collector had not even seen the application for pre-emption before November 30, 1964, and, therefore, the Supreme Court held that the Collector had rightly exercised the jurisdiction in entertaining the said application as the prescription to annex a copy of the registered deed is only directory and is laid down to furnish necessary information to the Collector to enable him to proceed with it. While considering the object of rule 19 of the Rules and Form L. C. 13 it was held that the same are directory instructions and if there is sufficient compliance thereof the application can be validly entertained by the Collector. While considering the object of rule 19 of the Rules and Form L. C. 13 it was held that the same are directory instructions and if there is sufficient compliance thereof the application can be validly entertained by the Collector. The Supreme Court has further held that annexing a certified copy of the sale deed where a copy of the registered deed is not yet available on account of the process of registration not having been completed would be sufficient compliance of the directory prescription long, as it furnished information necessary to proceed with the application and the fact that a copy of the registered deed was not furnished along with the application was not fatal to the application nor did such omission deprive the Collector of his jurisdiction to entertain it nor did it vitiate the proceedings before him or the order thereon made by him.” Reference in this regard may also be made to the judgment rendered in the case of Ram Roop Yadav Vs. The Additional Member, Board of Revenue & Others reported in 1984 BBCJ 390 by the Hon’ble Patna High Court. 14. In the fact of the present case, the application under Section 16(3) has been filed on 21.01.1998 i.e. on the basis of letter of sale which was of 25.11.1995 and the admitted position is that the registration of the said land under the Indian Registration Act is dated 29.08.2008. The very perusal of the date as referred in the preceding paragraph it would be evident that prior to the transfer of land by virtue of registration which is in the present case is dated 29.08.2008 while the application has been filed under Section 16(3) of the Act, 1961 on 21.01.1998 i.e. on the basis of letter of sale dated 25.11.1995. The authorities have passed the order emitting the fact that power conferred under Section 16(3) of the Act, 1961 cannot be set at motion on the basis of letter of sale and that is the reason the reflection has been made in the impugned orders that with the consent of the parties the matter has been kept pending waiting for registration and when the registration has been done on 29.08.2008 then only the final order has been passed by the original authority. 15. 15. Learned counsel for the respondents have emphatically argued about said concession and by taking the said ground of concession, the orders passed by the authorities have been defended. 16. The question herein is that when the statute provides something to be done in the manner as provided, can the authority deviate from it. The settled position of law is that the authority or the court of law is not supposed to deviate from the statute and its onus duty in discharge thereof to proceed strictly in accordance with law. On the principle of cardinal rule of interpretation that where the statute provides that a particular thing should be done it should be done in the manner prescribed and not in any other way., reference in this regard be made to the judgments rendered by Hon’ble Apex Court in the cases of Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors. reported in (2002) 1 SCC 633 in which their Lordships have held – “27. … it is to be seen that the Act requires the Board to exercise the power under Section 119 in a particular manner i.e. by way of issuance of orders, instructions and directions. These orders, instructions and directions are meant to be issued to other income-tax authorities for proper administration of the Act, the Commission while exercising its quasi-judicial power of arriving at a settlement under Section 245D cannot have the administrative power of issuing directions to other income-tax authorities. It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. If that be so since the Commission cannot exercise the power of relaxation found in Section 119(2)(a) in the manner provided therein it cannot invoke that power under Section 119(2)(a) to exercise the same in its judicial proceedings by following a procedure contrary to that provided in sub-section (2) of Section 119.” In yet another judgment rendered in the case of Captain Sube Singh & Others Vs. Lt. Governor of Delhi & Others reported in (2004) 6 SCC 440 the Hon’ble Apex court has held :- “29. Lt. Governor of Delhi & Others reported in (2004) 6 SCC 440 the Hon’ble Apex court has held :- “29. In Anjum M.H. Ghaswala a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof.” In the case of Zuari Cement Ltd. vs. Regional Direction ESIC Hyderabad & Ors. (in Civil Appeal No.5138-40/2007) reported in (2015) 7 SCC 690 it has been held by Hon’ble Apex Court at para 14 which reads hereunder as :- “14. As per the scheme of the Act, appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand and Others vs. Ambay Cements and Another, (2005) 1 SCC 368 , it was held that : “26. … It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way”.” In another judgment rendered in the case of Babu Verghese and Ors. vs. Bar Council of Kerala and Ors. reported in (1999) 3 SCC 422 , the Hon’ble Apex Court at para 31 has held as under :- “31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. reported in (1999) 3 SCC 422 , the Hon’ble Apex Court at para 31 has held as under :- “31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor vs. Taylor [(1875) 1 Ch.D 426] which was followed by Lord Roche in Nazir Ahmad vs. King Emperor [ AIR 1936 PC 253 ] who stated as under : "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all." It is evident from the aforesaid judgments that the rule is to be followed as provided under the statute. 17. Now the second question is that whether on the ground of any compromise/concession made by the parties can it bind if the concession is contrary to the statutory provision, the position in this regard has been settled by the Hon’ble Apex Court as would be apparent from the judgment rendered in the case of Union of India and Ors. Vs. Mohanlal Likumal Punjabi and Ors., reported in (2004) 3 SCC 628 wherein at paragraph 8 & 9 it has been held that concession, if any, is really of no consequence, because the wrong concession made by a counsel cannot bind the parties when statutory provisions clearly provided otherwise. 18. The Hon’ble Apex Court recently in the judgment rendered in Civil Appeal No. 7577 of 2019 (Director of Elementary Education, Odisha and Others Vs. Pramod Kumar Sahoo) by putting reliance upon the judgment rendered by the Hon’ble Apex Court in the case of Himalayan Cooperative Housing Society Vs. Balwan Singh and Others reported in (2015) 7 SCC 373 has been pleased to reiterate the view that on the basis of concession given by the learned Advocate, if contrary to the statutory provision, the same does not bind. 19. Balwan Singh and Others reported in (2015) 7 SCC 373 has been pleased to reiterate the view that on the basis of concession given by the learned Advocate, if contrary to the statutory provision, the same does not bind. 19. This Court, in view of the aforesaid ratio laid down by the Hon’ble Apex Court and going across the provision of law, as contained under Section 16(3) of the Act, 1961, is of the view that the position of law about the initiation of proceeding under Section 16(3) of the Act, 1961 is not in dispute since the cause of action will be said to accrue for filing an application only after the date of registration, to be filed within three months from the said date as has been held in the case of Jawahar Lal Vs. Additional Member (supra), in the case of Ram Roop Yadav Vs. Additional Member (supra) and in the case of Ram Paras Choudhary & Others Vs. The State of Bihar (supra) the admitted position herein is that the application under Section 16(3) has been filed way back from the date of registration that was filed on 21.01.1998 while the date of registration is 29.08.2008 and therefore, the said application cannot be said to be maintainable on the day when it was filed. 20. Further, the ground of compromise in between the parties, which according to the conscious view of this Court, considering the ratio laid down by the Hon’ble Apex Court as referred hereinabove, will be said to be not binding being contrary to statutory provision. 21. This Court at this stage also needs to consider the scope of the High Court for issuance of writ of certiorari under Article 226 of the Constitution of India which has been dealt with by the Hon’ble Apex Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others reported in AIR 1964 SC 477 wherein at paragraph no.7 their Lordships have been pleased to hold as follows:- “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. 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 is 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 had 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. 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. 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. 22. The Hon’ble Apex Court recently in the case of General Manager Electrical Rengali Hydro Electric Project, Orissa & Others Vs. Sri Giridhari Sahu & Others in Civil Appeal No. 8071 of 2010 has reiterated the view about the scope of issuance of writ of certiorari by the High Court laying down therein the proposition of law that if the finding recorded by the court is erroneous and based upon perversity, the order is fit to be quashed/set aside. 23. This Court, in view of the ratio laid down by the Hon’ble Apex Court with respect to the power of issuance of writ of certiorari, is of the view that the order passed by the authorities suffers from patent infirmity since the same being contrary to the provision of Section 16(3) of the Act, 1961, therefore, the orders impugned are not sustainable in the eye of law. Accordingly the same are quashed. 24. In the result, the writ petitions stand allowed.