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2019 DIGILAW 405 (ALL)

KISHAN v. G. SABHA

2019-02-15

SUDHIR AGARWAL

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JUDGMENT Sudhir Agarwal, J. Heard Sri Tripathi B.G. Bhai, learned counsel for petitioner and learned Standing Counsel for State-respondent. 2. This writ petition has been filed under Article 226 of Constitution of India by Kishan son of Tursi Ram praying to issue a writ of certiorari quashing order dated 11.09.1985 passed by Tehsildar/Assistant Collector, 1st Class, Tehsil Chhata, District Mathura, under Section 122-B U.P.Z.A. & L.R., Act, 1950 (hereinafter referred to as 'U.P. Act, 1951') directing eviction of petitioner from land in dispute that is Khasra No. 245 area 0.02 acre. He has also challenged order dated 11.1.1990 passed by Additional Collector, Mathura under Section 122-B (4-A) dismissing petitioner's Revision against order dated 11.9.1985. 3. The case, as set up by petitioner in the writ petition, is, that a notice was issued to Tursi Ram by Tehsildar alleging that disputed land was illegally encroached by him and, therefore same should be vacated. Tursi Ram filed objection and thereafter Tehsildar passed order dated 11.9.1985 directing for eviction of Tursi Ram from the land in dispute and a cost of Rs. 128/- was also imposed. There-against, petitioner filed revision, since, in the meantime, his father Tursi Ram died, but revision has been dismissed by order dated 11.1.1990. 4. Petitioner pleaded before both Revenue Courts that in respect of disputed land a civil suit between Tursi Ram and Ram Lal was already decided in favour of Tursi Ram and there-against a Second Appeal No. 2178 of 1984 filed by Ram Lal is pending before this Court, hence title dispute having been adjudicated in favour of petitioner's father, notice for eviction and proceedings under Section 122-B of the Act were illegal but they have wrongly distinguished said proceedings and passed illegal orders. 5. In the counter affidavit filed by respondents, it is stated that disputed land belong to Gaon Sabha; it was illegally encroached by petitioner's father; hence proceedings under Section 122-B of Act were initiated and impugned orders were passed. With respect to civil dispute, it is said that Gaon Sabha was not a party therein, therefore, judgment of Civil Court is not binding on Goan Sabha. 6. Petitioner has filed four supplementary affidavits. He has placed on record certain photographs and site plan to demonstrate that he was never dispossessed and continuously in possession of disputed land. With respect to civil dispute, it is said that Gaon Sabha was not a party therein, therefore, judgment of Civil Court is not binding on Goan Sabha. 6. Petitioner has filed four supplementary affidavits. He has placed on record certain photographs and site plan to demonstrate that he was never dispossessed and continuously in possession of disputed land. It was reiterated that disputed land belong to petitioner's father as held by Civil Court in Original Suit No. 127 of 1975. Disputed land is an abadi and recorded since long as abadi and not an agricultural land, therefore, it never belongs to Gaon Sabha. 7. In the second supplementary affidavit, he has placed on record a certificate allegedly issued by Jagdish Singh Ex-Pradhan, Gram Panchayat, Paigaon, Tehsil Chhata certifying that disputed land is an abadi and within the territory of Village- Paigaon; it is in possession of petitioner and Jagdish Singh from his birth he has seen that disputed land was being used by petitioner and this land is not of Gaon Sabha. A similar certificate dated 23.09.2006 said to have been issued by Om Prakash Agarwal, Pradhan, Gram Panchayat, Paigaon, Development Block, Chhata has also been filed as Annexure SA-1 to the second supplementary affidavit. A certified copy of map of 1371 fasli (1963-64) of Village Paigaon has also been filed which shows that disputed land is within territory of Village Paigaon. Another map claimed to have been prepared by Sri Mool Chandra Sharma, a local counsel, has been filed as Annexure SA-4. 8. By means of Third Supplementary Affidavit, petitioner has brought on record, following documents:- i. Copy of Khatauni of 1396 to 1401 fasli (1986-87 to 1991-92) showing Khasra No.245 area 74.220 as abadi. ii. Copy of notice dated 11.09.1978 issued by Tehsildar/Assistant Collector alleging that petitioner's father Tursi Ram was in unauthorized possession of disputed land and to show cause as to why he should not be evicted and damages should also be imposed. iii. Copy of objection dated 29.06.1984 filed by late Tursi Ram before Tehsildar, Chhata. iv. Copy of statement of Lakshi Narayan, Lekhpal, dated 13.10.1978; copy of the statement of Ganga Shayam Lekhpal dated 14.08.1984; and copy of statement of Shiv Lal dated 14.09.1984 before Tehsildar, Chhata, District Mathura in Case No.86/84-85, under Section 122-B of Act are enclosed as Annexure SA-4, SA-6 and SA-5, respectively. iv. Copy of statement of Lakshi Narayan, Lekhpal, dated 13.10.1978; copy of the statement of Ganga Shayam Lekhpal dated 14.08.1984; and copy of statement of Shiv Lal dated 14.09.1984 before Tehsildar, Chhata, District Mathura in Case No.86/84-85, under Section 122-B of Act are enclosed as Annexure SA-4, SA-6 and SA-5, respectively. v. Copy of statement of Narayan Prasad, village Pradhan, Paigaon recorded on 15.10.1984 before Tehsildar, Chhata, District Mathura in Case No.86/84-85, under Section 122-B of Act are enclosed as Annexure SA-7. 9. In the Third Supplementary Affidavit it has been stated that the Assistant Collector/Tehsildar has not examined all these evidence while passing order dated 11.09.1985. 10. Fourth Supplementary Affidavit has been filed by petitioner placing on record;- a. Copy of plot no.2601 relating to 1329 fasli (1839-40). b. Copy of khasra 1369 fasli (1879-80) of plot no.2061. 11. It is said on behalf of petitioner that earlier plot no. 2061 was a very big plot wherefrom plot no.245 was carved out and recorded as abadi. Disputed land never vested under Section 6 of U.P. Act, 1951 in the State of U.P. and therefore, it also never vested in Gaon Sabha under Section 117 of said Act. 12. The submission of learned counsel for petitioner before this court is that without considering relevant documents and evidence available on record, authorities below have passed impugned orders and, therefore, the same are wholly illegal and liable to be set aside. 13. I have considered rival submissions and perused record. 14. In the statement of Ganga Shyam, Lekhpal (annexed as Annexure SA-6 to the Third Supplementary Affidavit), he has said that petitioner's father Tursi Ram encroached upon disputed land and constructed a Chabutara. Relevant extract of statement reads as under:- ^^rqjlh jke iq= iwjok us vkcknh dks dCtk djds pcwrjk cuk;k Fkk] ftlij uD'kk utjh bZ0 ,Dld&2 esa yky L;kgh ls fn[kk;k x;k gksA^^ “Tursi Ram son of Purva had constructed the Chabutra after encroaching the Abadi and the same has been shown with red ink in Naksha Najri as Ex-2.” (Emphasis added) (English translated by the Court) 15. He has also specifically said further that disputed land belong to Gaon Sabha. 16. He has also specifically said further that disputed land belong to Gaon Sabha. 16. Similar statement was made by Sri Narayan Prasad, Gram Pradhan whose statement has been placed as SA-7 to Third Supplementary Affidavit and relevant extract thereof, is reproduced as under:- ^^>xM+k okyh tehu eSus ns[kh gSA ;g lkoZtfud pkSd gSA tks xkao lHkk lEifRr gSA blesa rqjlhjke us pcwrjk cuk fy;k gSA tks djhc 0-02 fM0 esa gSA ;g xkao lHkk lEifRr gSA^^ “I have seen the disputed land. This is a public chowk, which is a Gaon Sabha property. Tursi Ram had constructed a Chabutra on the same which is in about 0.02 D. This is a Gaon Sabha Property.” (Emphasis added) (English translated by the Court) 17. Relevant documents placed by petitioner on record show possession of his father on disputed land but all documents are of the period subsequent to date of vesting under U.P. Act, 1951, therefore, would not help petitioner at all. 18. Contention that in a title suit, once an issue has been decided in a Civil Suit in favour of petitioner's father, it could not have been re-agitated, cannot help petitioner for the reason that admittedly Gaon Sabha was not a party in the Civil Suit, therefore aforesaid the judgment between two private parties will not bind Goan Sabha. This Court is also informed that Second Appeal No. 2178 of 1984 filed by Ram Lal has been dismissed by order dated 20.04.2017, since, it was abated due to death of Ram Lal and there was no substitution. 19. In fact, in this case, concurrent findings have been recorded by both Courts below and various documents placed on record by petitioner do not show any fact otherwise except that petitioner's father constructed a Chabutara on disputed land which was a Gaon Sabha land and all these documents are subsequent to U.P. Act, 1951 i.e. after the date of vesting. Simply, because adjoining land was abadi, it cannot be assumed that on the date of vesting disputed land was also an abadi. 20. Learned counsel for petitioner has placed reliance on a decision of this Court in case of Ram Dularey Vs. Shiva Mangal, (2000) 2 AWC 1410 (L.B.). Having gone through the judgment, I do not find that aforesaid decision may help petitioner in any manner. 20. Learned counsel for petitioner has placed reliance on a decision of this Court in case of Ram Dularey Vs. Shiva Mangal, (2000) 2 AWC 1410 (L.B.). Having gone through the judgment, I do not find that aforesaid decision may help petitioner in any manner. In that case, disputed land was claimed by plaintiff-respondent Shiva Mangal, to be in his possession for last more than 50 years, and there existed throughout a bangla and chhapper. Gaon Sabha initiated proceedings under Section 115-C of Act, but same was terminated against Gaon Sabha. Thereafter, Gaon Sabha executed a patta of one biswa land of plot No.143 in favour of Ram Dularey, defendant-appellant, and in the garb of said patta, Ram Dularey sought to dispossess plainiff Shiva Mangal from disputed property. Aforesaid land of Gaon Sabha was brought in action by plaintiff Shiva Mangal in a suit which was decreed by Munsif and judgment was confirmed by Civil Judge in appeal, recording his conclusion that disputed property was abadi and plaintiff Shiva Mangal was owner of disputed land. Second Appeal was filed by defendant Ram Dularey. This Court confirmed findings of facts recorded by Courts below and in absence of any perversity shown by Ram Dularey in the judgment of first Appellate Court dismissed Second Appeal. The aforesaid judgment therefore, is based on different facts and has no application to this case. 21. The aforesaid judgment of Ram Dularey (Supra) has been placed before this Court by appellant Ram Dularey, alleging that Civil Court has decided the issue of title in favour of petitioner's father and, therefore, Revenue Courts cannot take a different view. In my view the submission is thoroughly misconceived for the reason that before Civil Court, Gaon Sabha was not a party and, therefore, judgment obtained by petitioner from Civil Court is not binding on Gaon Sabha and cannot be pleaded to be an adjudication of right between parties so as to bind Gaon Sabha. 22. Petitioner has also placed reliance in the case of Mahesh Chandra Vs. U.P. State Through Collector Muzaffarnagar and another, (1963) RevDec 198 wherein, one Mahesh Chandra filed a suit alleging that a farmer Omkar Nath Singh sold disputed plot to him on 2.12.1946 and since, then Mahesh Chandra was in possession of disputed property and has constructed some tin shed and a pucca Gher with the door towards west. U.P. State Through Collector Muzaffarnagar and another, (1963) RevDec 198 wherein, one Mahesh Chandra filed a suit alleging that a farmer Omkar Nath Singh sold disputed plot to him on 2.12.1946 and since, then Mahesh Chandra was in possession of disputed property and has constructed some tin shed and a pucca Gher with the door towards west. Gher was within the Municipal limit of Shamli in plot No.3056. Sub- Divisional Officer served a notice under Rule 115(C) of U.P. Z.A. and L.R. Act, 1951 for removing construction. Hence, a suit for declaration was filed by Mahesh Chandra. A finding of fact was recorded by Trial Court that plaintiff was owner of Gher, constructions were old and plaintiff was in continuous possession. Thereafter, issue raised in this Court was, “whether Gher can be deemed to a 'building' within the meaning of Section 9 of U.P. Act, 1951”. Court answered the same in affirmative. The facts are self evident to show that aforesaid judgment does not help petitioner at all for reasons this Court has already discussed above. 23. In view of above, I do not find any error apparent on the face of record nor could be point out by learned counsel for petitioner in the orders impugned in this writ petition. I, therefore, do not find any reason to interfere in exercise of power under Article 226/227 of Constitution. In supervisory jurisdiction of this Court over subordinate Courts, scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. 24. This power involves a duty on the High Court to keep 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 High Court with an unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of 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 High Court interferes. 25. In D. N. Banerji Vs. 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 High Court interferes. 25. In D. N. Banerji Vs. P. R. Mukherjee, (1953) AIR SC 58, 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.” 26. A Constitution Bench of Apex Court examined scope of Article 227 of Constitution in Waryam Singh and another Vs. Amarnath and another, (1954) AIR 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, (1951) AIR Calcutta 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”. 27. In Mohd. Yunus v. Mohd. Mustaqim and Ors., (1984) AIR SC 38, 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. 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. 28. 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, (1963) AIR SC 1895; Rukmanand Bairoliya Vs. The State of Bihar & ors., (1971) AIR SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., (1980) AIR 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. The State of Bihar & ors., (1971) AIR SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., (1980) AIR 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 . 29. 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 ). 30. 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 ). 31. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82 , 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. 32. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, (2000) AIR SC 931, Court said 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. 33. In Indian Overseas Bank Vs. Bhaskar Balwant Aheer, (2000) AIR SC 931, Court said 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. 33. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers Union, (2000) 4 SCC 245 , 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. 34. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472 , the Court observed that 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. 35. 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 . 36. 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. Vs. M. Abdul Khader, (2002) 1 SCC 319 . 36. 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. 37. 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 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.” 38. 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, (2011) AIR SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya, (2011) 12 SCC 650. 39. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another, (2011) AIR SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya, (2011) 12 SCC 650. 39. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others, (2010) 2 SCC 432 , Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction. 40. 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. 41. 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. 42. 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 Constitution of India. In the circumstances, I find no merit in this writ petition. 43. Dismissed. 44. Interim order, if any, stands vacated.