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2019 DIGILAW 1777 (JHR)

Md. Suddin v. State of Jharkhand

2019-10-21

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : This writ petition is under Article 226 of the Constitution of India whereby and whereunder order dated 17.04.2017 passed by respondent no. 2 in Misc. Revision Case No. 27/2015 by which long running Jamabandi standing in the names of the petitioner and the proforma respondents measuring an area of 7.28 1/4/7.50 acres appertaining to Khata No.13 Plot No.571 village Palmo, District-Giridih has been directed to be cancelled. 2. Petitioner's are claiming their title over the land in question by the verbal permission of Khewatdars, which was recorded as Gair Mazarua Khas Land in the record of right, which is exclusive possession in the name of the petitioner and his brothers. 3. It is further case of the petitioner that after vesting of Jamindari, the ex-landlord submitted his return of Khewat No. 6 to the Government of Bihar through Anchal Adhikari, Tisri vide Compensation Case No. 132/1955-56 showing therein that the area has been settled in the name of Alijan Mian and others. After vesting, the petitioners are making payment and in lieu thereof rent receipts are being issued in their favour but a dispute has been raised with respect to the creation of Jamabandi made in favour of the petitioner and others in pursuance thereto a regular proceeding has been initiated. The petitioner has participated in the proceeding and has submitted the documents for its consideration. 4. On the other hand, the Education Department, State of Jharkhand has also claimed title over the land in question by virtue of vesting of land in pursuance to notification no. 281 dated 04.01.1953. The matter has ultimately culminated to the revisional authority being Misc. Revision Case No. 27/2015 wherein order has been passed by the Deputy Commissioner cum Collector, Giridih for cancellation of the Jamabandi in favour of the petitioners and to take appropriate steps for transfer of land in favour of the education department. 5. The petitioner being aggrieved with the said order approached this Court inter alia taking the ground that the long running Jamabandi cannot be cancelled. 5. The petitioner being aggrieved with the said order approached this Court inter alia taking the ground that the long running Jamabandi cannot be cancelled. The revisional authority has passed the order without application of mind as because even though at paragraph 4 of the order, it is the admitted case of the education department and as has been referred therein that under Plot No. 571 only 3.45 acres of land has been vested to the State of Bihar out of the total land and for rest of the land steps have been taken for issuance of appropriate notification for vesting of land in favour of the State but in contrary to the said finding order has been passed for cancellation of Jamabandi created in favour of the petitioner of aforesaid area of land under Khata No. 571 and, therefore, it has been contended that the order is contrary to the finding recorded at paragraph 4 of the order passed by the revisional authority and the order passed by the authorities is not sustainable in the eye of law. 6. On the other hand, Mr. Jayant Franklin Toppo, learned S.C. (L&C) III appearing for the respondents-State of Jharkhand has submitted that there is no infirmity in the impugned order since part of the land although has been vested in the State of Bihar and for rest of the land of plot no. 571, steps is being taken for vesting in the State and taking into consideration the aforesaid aspect of the matter, order has been passed for cancellation of Jamabandi of entire plot of 571 having an area of 7.50 acres. 7. Having heard, learned counsel for the parties and upon appreciating their argument, this Court before going into the legality and propriety of the impugned order, deem it fit and proper to refer the principle of issuance of writ of certiorari under Article 226 of the Constitution of India, for which, the present writ petition has been filed. 8. 7. Having heard, learned counsel for the parties and upon appreciating their argument, this Court before going into the legality and propriety of the impugned order, deem it fit and proper to refer the principle of issuance of writ of certiorari under Article 226 of the Constitution of India, for which, the present writ petition has been filed. 8. It is settled position of law so far as power conferred under Article 226 of the Constitution of India in issuing writ of certiorari is concerned that the same can be issued if there is perversity of finding or the decision so taken is contrary to the statutory provision or there is any infringement of fundamental right or the impugned order suffers from jurisdictional error and save and except these grounds the writ Court sitting under Article 226 of the Constitution of India, is not supposed to interfere with the fact finding based upon the factual aspect placed before it otherwise the writ Court sitting under Article 226 of the Constitution of India will be an appellate Court. 9. It needs to refer herein that the scope of interference of the High Court to issue writ of certiorari sitting under Article 226 of the Constitution of India is very limited, as has been discussed by Hon'ble Supreme Court in the case of Syed Yakoob Vs. Radhakrishnan reported in A.I.R. 1964 SC 477, wherein at paragraph no.7 their Lordships have held as follows:- “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. 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. 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. Ahmad Ishaque, 1955 (1) SCR 1104 : ((S) AIR 1955 SC 233 ); Nagendra Nath v. Commr. 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. Ahmad Ishaque, 1955 (1) SCR 1104 : ((S) AIR 1955 SC 233 ); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : ( AIR 1958 SC 398 ) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168 . 10. In another judgment of Hon'ble Apex Court in the case of Sawarn Singh Vs. State of Punjab reported in (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been please to hold at paragraph nos.12 and 13 as under: “12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra). 13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.” 11. In another judgment rendered by Hon'ble Apex Court in the case of Pepsico India Holding (P) Ltd. Vs. In another judgment rendered by Hon'ble Apex Court in the case of Pepsico India Holding (P) Ltd. Vs. Krishna Kant Pandey reported in (2015) 4 SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of the tribunal has been please to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram reported in (1986) 4 SCC 447 at para 17 has held as under:- “17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal V. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and re-appreciating. Speaking for the Court, Bhagwati, J, as the learned Chief Justice then was, observed at page 1301 of the report as follows: “…...... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee 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. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case: 12. It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, is different to that of the power under Article 226 of the Constitution. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority. 13. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority. 13. This Court has appreciated the factual aspect, as has been pleaded in this writ petition wherefrom it is admitted case of the petitioner that the land has been settled by virtue of Sada Hukumnama by the ex-landlord which was also the subject matter of compensation after vesting of Jamindari and thereafter amount has been paid through the Circle Officer to be deposited in State exchequer. It is admitted case of the State that for part of the land under Plot No. 571 settlement has been made in favour of State by virtue of notification issued on 4.01.1953 being notification no. 281 under which it was notified that settlement of land has been made pertaining to area of 3.45 acres out of total 7.50 acres under plot no. 571. Further, admitted case of the State is that rest of the land that is after deducting 3.45 acres from total 7.5 acres of land, the process for vesting is being taken by appropriate notification in this regard. 14. Therefore, admitted case is that so far the land pertaining to area 3.45 acres is concerned, the same has been acquired vide notification no. 281 dated 04.01.1953 by the State of Bihar and now is being utilized by the Education Department of the State. But so far as rest of the area of land is concerned, it has not yet been vested, as because specific finding has been recorded in this regard at paragraph 4 of the impugned order to the effect that steps for vesting is being taken. 15. It is not in dispute that for vesting there is provision as contained under the Bihar Land Reforms Act, 1950 wherein a provision has been made at Section 4 (h) to deal with the issue of settlement if the settlement has been made after 1.1.1946 and if situation so arises, the Deputy Commissioner, after conducting enquiry in this regard and after following the principles of natural justice, the settlement found to be illegal, Jamabandi can be cancelled and the land has to be vested upon the State. Admittedly, no such steps has been taken by the State as reflected from paragraph 4 of the impugned order. 16. It is further settled position of law that quasi-judicial authority while passing the order has to go by the finding recorded in the order and on the basis of that finding the ultimate conclusion has to be made. If the ultimate conclusion is contrary to the finding recorded, the conclusion will suffer from material irregularity and in that situation, it is always available to the writ Court to issue writ of certiorari to rectify the illegality committed by the quasi-judicial authority. 17. This Court, after going through the factual aspect of the matter and considering the settled position of law and going through the paragraph 4 of the impugned order, wherefrom it is the case of the State that only 3.45 acres of land has been vested in the State by way of notification no. 281 dated 4.1.1953 and for rest of the land appropriate action is being taken for issuance of appropriate notification but in contrary to the said finding in the direction part, the Deputy Commissioner-cum-Collector, Giridih has passed the order with respect to entire order of land pertaining to area 7.5 acres of land under plot no. 571 by cancelling the Jamabandi recorded therein with further direction to vest the land in favour of the Education Department, therefore, in the considered view of this Court the order passed by the Deputy Commissioner-cum-Collector, Giridih is contrary to the finding recorded at paragraph 4 and as such the same is not sustainable in the eye of law. 18. Accordingly, order dated 17.04.2017 is quashed, in consequence thereof, the matter is remitted before the authority to pass fresh order within a period of three months from the date of receipt of copy of this order, which shall be produced within three weeks from the date of its receipt. The consequence will depend upon the final decision to be taken as directed above. 19. The writ petition is accordingly disposed of. 20. Interim order dated 03.12.2018 stands vacated.