Gujarat High Court
Hemendrabhai Lilachand Shah vs L H Of Decd. Laxmanji Hiraji Thakor on 5 December, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/17934/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17934 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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HEMENDRABHAI LILACHAND SHAH
Versus
L H OF DECD. LAXMANJI HIRAJI THAKOR
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Appearance:
MS ARCHANA R ACHARYA(2475) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No.
10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,3,4,5,6,7,8,9
MR S N THAKKAR(901) for the RESPONDENT(s) No. 1,1.1,1.2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/12/2018
ORAL JUDGMENT
1. By this application under Article 227 of the Constitution of India, the applicant has prayed for the following reliefs :
Page 1 of 26C/SCA/17934/2018 JUDGMENT "(A) Your Lordships be pleased to issue a writ of mandamus/certiorari of writ in the nature of mandamus/certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned order dated 30.10.2018 passed by the Gujarat State Cooperative Tribunal, Ahmedabad in Appeal No. 144 of 2011 to the extent it relates to issue nos. 3 and 4 and the findings recorded in relation thereto more particularly recorded in para 15, 17, 18, 19, 20 and 22 of the impugned order and the same may be ordered to be expunged from the order, in the interest of justice;
(B) Pending the admission, hearing and final disposal of this petition, Your Lordships be pleased to stay the implementation, operation and execution of the impugned order dated 30.10.2018 passed by the Gujarat State Cooperative Tribunal, Ahmedabad in Appeal No. 144 of 2011 to the extent it relates to issue nos. 3 and 4 and the findings recorded in relation thereto more particularly recorded in para 15, 17, 18, 19, 20 and 22 of the impugned order and restrain the respondents from relying on the impugned findings in the pending suits i.e. Special Civil Application No. 61 of 2001 and 62 of 2001 pending in the Court of Ld. Civil Judge, (SD) Ahmedabad Rural, in the interest of justice;
(C) Your Lordships be pleased to grant such other further order as the nature and circumstances of the case may be required;"
Page 2 of 26C/SCA/17934/2018 JUDGMENT
2. The case of the applicant, as pleaded in his application, may be summarised as under :
(A) The applicant purchased land bearing Survey No.502/A/2 of Village Vejalpur, Dist: Ahmedabad by way of two separate sale deeds dated 23.11.2000 from Bharatbhai Ramanlal Patel and others being the registered sale deeds nos. 4375 and 4376 respectively and that on 23.11.2000 itself the applicant, for the purpose of availing loan of Rs.1.26 crore from the Visnagar Bank, mortgaged the said properties in favour of the Bank under a mortgage deed no.4377 towards the security of repayment of the secured loan.
(B) On 27.03.2001, the respondents Nos.1 to 22 who claim to be the heirs of the deceased Lakshamanji Hiraji Thakor, filed the Special Civil Suits Nos. 61 of 2001 and 62 of 2001 in the Court of Civil Judge (SD), Ahmedabad, inter alia, praying for the cancellation of the sale deeds bearing registration nos. 4375 and 4376 respectively executed in favour of the applicant and also prayed for a declaration that the lands sold by Ramanbhai Patel in favour of the applicant vide registered sale deed nos.4375 and 4376 respectively is illegal, fabricated and without any right, title or interest and prima facie null and void and that the applicant has no right, title or interest on the basis of the sale deed. A prayer for permanent injunction restraining the applicant as well as the heirs of Ramanbhai from selling, transferring or alienating the suit land or creating any rights therein or from taking possession was also made Page 3 of 26 C/SCA/17934/2018 JUDGMENT in the said suit, wherein the applicant has filed the written statements Exhibits 198 and 94 respectively, in the Special Civil Suits Nos.61 of 2001 and 62 of 2001 respectively.
(C) According to the applicant, the stage of recording of the evidence in the said civil suits is over as the examination-in-chief and the cross-examination of the witnesses of both the sides is completed. It is the case of the applicant that in the registered sale deeds dated 10.07.2006, 02.08.2006 and 16.04.2007 executed by the respondents Nos.1 to 22 qua their share in favour of Rajesh Sundardas in the recital of all the said deeds, it is specifically mentioned that out of the total land, the land ad-measuring 26,305 sq. meters (31460 sq. yards) came to the share of Naranbhai Kalyanbhai Patel and that in the cross-examination, the respondent No.1/B Hrushisingh L.Thakor has admitted that para-19 in the recital of the sale deed was written under his instructions and that both the suits are pending for final arguments.
(D) On the other hand, so far as the proceedings relating to the Lavad Case and as leading to the present application is concerned, it is the case of the applicant that on 12.04.2001 the respondent no.25 - Bank, i.e. the Visnagar Bank, filed the Lavad Case No. 445 of 2001 under Section 96 of the Gujarat Cooperative Societies Act against the applicant and two others for the recovery of Rs.1,34,46,099/- along with interest thereon and for enforcement of the mortgaged property, wherein the Board of Nominees, vide award dated 23.05.2001, allowed the suit permitting the Visnagar Bank to recover the Page 4 of 26 C/SCA/17934/2018 JUDGMENT outstanding dues along with interest by realizing the land mortgaged by the applicant.
(E) That being aggrieved by the said judgment and award dated 23.05.2001, the respondents Nos.1 to 22 preferred the Appeal No.144 of 2011 before the Cooperative Tribunal, wherein an application seeking Leave to Appeal was also filed and the said proceedings reached upto this Court and ultimately the Leave to Appeal came to be granted. Ultimately, the Gujarat State Cooperative Societies Tribunal passed the impugned judgment and order dated 30.10.2018 setting aside the judgment and award dated 23.05.2001 passed by the Board of Nominees in the Lavad Case No. 445 of 2001. The applicant is aggrieved by the impugned order to the extent that the findings and observations made by the Tribunal in paragraphs 15, 17, 18, 19, 20 and 22 are quite prejudicial and would seriously affect his case so far as the civil suit is concerned. The applicant, therefore, contended that the Tribunal has exceeded its jurisdiction in framing/deciding the issues nos. 3 and 4 which were not even the issues before the Board of Nominees.
(F) During the course of the hearing of the matter, it was also submitted on behalf of the applicant that the Tribunal could not have framed the issues nos. 3 and 4, more particularly, when it is specifically mentioned in para-19 in the recital of various sale deeds executed by the respondents Nos.1 to 22 in favour of Rajesh Sundardas that out of the total land, the land ad-measuring 26,305 sq. Page 5 of 26 C/SCA/17934/2018 JUDGMENT meters came to the share of Naranbhai Kalyanbhai Patel and the respondent No.1/B has admitted in his cross- examination that the contents made in para-19 in the recital of the sale deeds are made under his instructions. It is also submitted that indisputably Naranbhai Kalyanbhai Patel and others executed the sale deeds in favour of the applicant and that the said sale deeds have never been challenged by Naranbhai Kalyanbhai Patel and others and, therefore, the issues nos. 3 and 4 have been erroneously framed and decided and hence the findings in relation to the issues nos. 3 and 4 as given by the Tribunal in the impugned judgment are illegal and, therefore, a writ of certiorari be issued for deleting the impugned findings along with the issues nos. 3 and 4 from the impugned order. In the alternative, it is also submitted on behalf of the applicant that as against the ex-parte order of the Registrar's Nominee, dated 23.05.2001, the Tribunal ought not to have examined the evidence after taking the same on record and, instead, ought to have remanded the matter to the Registrar's Nominee for re-adjudication in accordance with law.
(G) It is also the case of the applicant that the dispute of ownership of land is pending before the civil court and the respondents Nos.1 to 22 have raised the same disputes in appeal before the Tribunal. The appeal is against the decree on admission, and as per Section 102 of the Gujarat Cooperative Societies Act, the Tribunal should have looked into the provisions of Sections 100 and 101 of the Act and when the decree is passed on admission, it is not Page 6 of 26 C/SCA/17934/2018 JUDGMENT adjudication under Section 101 of the Act and, hence, the appeal filed by the respondents Nos.1 to 22 was without jurisdiction. However, the respondents Nos.1 to 22 have tried to club the jurisdiction of the civil court and, hence, the appeal filed by the respondents Nos.1 to 22 itself was not maintainable and ought to have been dismissed.
(H) It is also the case of the applicant that the Tribunal was not justified in going into the issues which were not the subject matter of appeal and that the Tribunal erroneously decided the title of the parties in the impugned order, whereas the scope of appeal was limited to the extent of recovery and the question was whether the award dated 23.05.2001 passed in the Lavad Case No. 445 of 2001 was just and proper. The Tribunal usurped the jurisdiction of the competent civil court in deciding the issue of title which the Tribunal was otherwise not empowered to decide.
SUBMISSIONS ON BEHALF OF THE APPLICANT :
3. The following contentions have been taken in the written-
submissions on behalf of the applicant :
1. From the facts stated herein above, it is evident that the respondents nos. 1 to 22 are not the parties before the Nominee Court. Admittedly, no evidence is led before the Nominee Court so as to adjudicate the dispute. Therefore, the Tribunal ought to have remanded the case to the Nominee Court for hearing afresh after giving opportunity Page 7 of 26 C/SCA/17934/2018 JUDGMENT to the respondent nos. 1 to 22 as well as the petitioner and to permit all the parties concerned to lead evidence.
2. The Nominee Court has passed the award on the basis of the settlement purshis filed by the petitioner. If at all the Tribunal was dissatisfied by the award on the ground that there is no adjudication by the Nominee Court on merits while passing the decree in view of the settlement, the Tribunal ought to have remanded the matter to the Nominee Court for adjudication afresh so that the same can be decided on merits.
3. The appeal filed before the Tribunal itself was not maintainable under Section 102 of the Act because when a dispute is decided under Section 101 of the Act, 1961, then the Tribunal has the jurisdiction to entertain the appeal, otherwise not. The present case does not fall within the purview of Section 100 or 101 of the Act in as much as the Board of Nominee has not decided the dispute on merits but it was only a decree on admission. In other words, when the decree is passed on admission, it is not adjudication under Section 101 of the Act and, hence, the appeal filed by the respondents nos. 1 to 22 is without jurisdiction.
4. Section 98 of the Gujarat Cooperative Societies Act, 1961, provides for settlement of disputes. Section 98(3) of the Act being relevant is reproduced here under:
"Section 98(3) - Notwithstanding anything contained in Section 96, the Registrar may, if he thinks fit, suspend Page 8 of 26 C/SCA/17934/2018 JUDGMENT proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated question of law or fact, until the question has been tried by a regular suit instituted by one of the parties or by the Society. If any such suit is not instituted within two months from the Registrar's order suspending proceedings, the Registrar shall take action as is provided in subsection (1)."
In the present case, the Special Civil Suits are filed on 27.3.2001, whereas the Lavad Suit is filed on 11.4.2001. Considering the above provisions of Section 98(3) read with the facts of the present case, it is clear that the question at issue between the petitioner and the respondents nos. 1 to 22 is one involving complicated question of law and/or fact and, therefore, until such question is tried by the civil court instituted by the respondents nos. 1 to 22, the Tribunal ought to have suspended the proceedings in regard to the said dispute.
5. The Tribunal has committed gross error in framing the issues nos. 3 and 4 and giving finding in relation thereto, while passing the impugned order, even though the same was not the issue before the Board of Nominees. The Lavad Suit was filed by the respondent no.25 - Bank for recovery of dues, whereas the Tribunal has framed the issues nos.3 and 4 which are not concerned to the recovery proceedings. The Tribunal has, thus, exceeded its jurisdiction in framing and deciding the issue nos. 3 and 4.
Page 9 of 26C/SCA/17934/2018 JUDGMENT
6. It is settled position of law that a question, which did not form part of the pleadings or in respect of which the parties were not at variance and which was not the subject matter of any issue, could not be decided by the court. The scope of the proceedings before the Tribunal was limited. The issue before the Tribunal did not relate to the title of the lands of the petitioner. The Tribunal, therefore, travelled beyond its jurisdiction in giving the observations regarding the title of the lands of the petitioner.
7. The dispute of ownership of land is pending before the civil court and the respondents nos. 1 to 22 have raised the same dispute in appeal before the Tribunal. The appeal is against the decree on admission. As per Section 102 of the Gujarat Cooperative Societies Act, the Tribunal has to see the provisions of Sections 100 and 101 of the Act. When a decree is passed on admission, it is not adjudication under Section 101 of the Act and, hence, the appeal filed by the respondents nos. 1 to 22 is without jurisdiction. However, the respondents nos. 1 to 22 tried to club the jurisdiction of the civil court. There is no inter-se dispute between the two banks in respect of the alleged execution of the deed. Major amount is paid. Hence, in view of the above facts and circumstances, the appeal filed by respondents nos. 1 to 22 itself is not maintainable and it ought to have been dismissed.
8. The Tribunal is not justified in going into the issues which are not the subject matter of appeal. The Tribunal Page 10 of 26 C/SCA/17934/2018 JUDGMENT has decided the title of the parties in the impugned order, whereas the scope of appeal was limited up to the recovery and the question was, whether the award dated 23.5.2001 passed in the Lavad Case No. 445 of 2001 was just and proper or not.
9. The Tribunal was not justified in giving the finding on the question pertaining to the title of the subject land when the suit for deciding title of the subject land is pending before the competent civil court. Thus, the impugned findings made by Tribunal causes serious prejudice to the case and the right of the petitioner in the suit proceedings pending before the trial Court.
10. The Tribunal has usurped the jurisdiction of the competent civil court in deciding the issue of title, which the Tribunal was not empowered to decide.
11. The Lavad Suit was filed by the respondent no.25 - Bank for recovery of the dues, whereas the Tribunal has framed the issues nos.3 and 4 which are not concerned to the recovery proceedings.
12. The Tribunal could not have framed the issues nos. 3 and 4, more particularly when it is specifically mentioned in para-19 of the recital of various sale deeds executed by the respondents nos. 1 to 22 in favour of Rajesh Sundardas that out of the total land, the land ad- measuring 26,305 sq. meters (31460 sq. yards) came in the share of Naranbhaj Kalyanbhai Patel and when the Page 11 of 26 C/SCA/17934/2018 JUDGMENT respondent nos. 1/B has admitted in his cross- examination that the contents made in para-19 of the recital of sale deed are made under his instruction.
13. Naranbhai Kalyanbhai Patel and others have never challenged the sale deeds executed by them in favour of the petitioner. Further, the respondents nos. 1 to 22 have never challenged the right of Naranbhai Kalyanbhaj Patel over the land sold to the petitioner, and on the contrary, admit that they had given the land to Naranbhai Kalyanbhai Patel. Therefore, the issues nos. 3 and 4 are wrongly framed and decided.
14. If the issues nos. 3 and 4 and the impugned findings are not expunged from the impugned order, the respondents would place unnecessary reliance on the same in the pending suit, which would seriously affect and prejudice the case of the petitioner.
15. The Tribunal has made certain observations in paragraphs 15, 17, 18, 19, 20 and 22, which are causing serious prejudice to the petitioner and the said observations would influence the civil court while deciding the suits, which are at the stage of final arguments.
16. The impugned findings recorded by the Tribunal seriously affect the case of petitioner in the suit proceedings which are yet pending adjudication and it is at the stage of final arguments.
Page 12 of 26C/SCA/17934/2018 JUDGMENT SUBMISSIONS ON BEHALF OF THE RESPONDENTS :
4. On the other hand, this application has been vehemently opposed by Mr.Satyen Thakkar, the learned counsel appearing for the respondent no.1, on caveat. He submitted that so far as the contention raised by the applicant to the effect that the Tribunal could not have framed the issues nos. 3 and 4 in view of the contents of the sale deed dated 01.07.2006 (being para-19 of the said sale deeds executed by the respondents Nos.1 to 22 in favour of Rajesh Sundardas) is concerned and the cross examination of Hrushisingh dated 20.12.2014 as relied upon by the applicant is concerned, the said contentions were neither raised before the Tribunal nor the said sale deed dated 01.07.2006 or the said cross examination as produced now and relied upon before this Court were produced before the Tribunal and, therefore, the order dated 30.10.2018 passed by the Tribunal cannot be challenged or sought to be invalidated on the basis of the documents and records not produced before the Tribunal. In a petition under Article 227, the applicant cannot be permitted to assail the impugned judgment dated 30.10.2018 on the basis of the documents and record not placed on record of the Tribunal and on the basis of the contentions not taken before the Tribunal concerning the facts and documents now sought to be produced for the first time before this Court.
5. Further, so far as the prayer made in the petition for quashing the observations of the Tribunal made in paragraphs 15, 17 to 20 and 22 of the Tribunal's judgment on the ground that the same would prejudice the pending suits between the parties is concerned, it is submitted that the said apprehension Page 13 of 26 C/SCA/17934/2018 JUDGMENT of the applicant is thoroughly misconceived and factually not true as the Tribunal, while setting aside the ex-parte award passed by the Registrar's Nominee in the Lavad Case No. 445 of 2001 passed in favour of Visnagar Nagrik Bank enabling recovery of the dues from the disputed property at Vejalpur, Survey No. 502/A/2 ad-measuring 25,305 sq. meters, has made the following observations :
"(i) Here in the present appeal it is fairly and frankly declared by the L.A. for both the parties that the Civil litigation for cancellation of registered deeds are pending before the Civil Court. Hence, the issue of cancellation of the deeds is left to the Civil Court herein the present appeal.
(Para 18, Page 41 of petition)
(ii) The appellant has succeeded to prove that they are in legal possession of the disputed property by virtue of lease deed and neither Naranbhai Patel nor his legal heirs have any right under the pretext of alleged partnership as of owner of disputed property; hence they are not competent to convey the property under the registered sale deed. Hence, all transactions in respect of disputed property made after the alleged sale deed by way of mortgage-deed and re- assignment deed not acquire any right to recover the dues of original judgment debtor Hemendra Lilachand Shah from the disputed property. (Para 22, page 44 of the petition). So being the case, it is submitted on behalf of the caveators that the apprehension of the applicant is grossly misconceived and is baseless."
Page 14 of 26C/SCA/17934/2018 JUDGMENT
6. It has also been submitted on behalf of the respondent caveators that the relevant documents forming part of the record of the appeals filed by the respondents - caveators before the Tribunal have deliberately not been produced before this Court.
7. It is also contended on behalf of the respondents - caveators that the case of the respondent No. 1 (the legal heirs of Lakshmanji Hiraji Thakor) before the Tribunal in the Appeal No.144 of 2011 (and in the Appeal No.140 of 2011) filed before the Gujarat State Co-Operative Societies Tribunal was that the said appellants are the owners of the aforesaid land being the Survey No.502/1/2 of Vejalpur Sim ad-measuring 31,460 sq. yards. That under the guise of a partnership deed, the heirs of Naranbhai Patel executed an agreement of sale with the Adhunik Park Co-Operative Housing Society and that though the said society was not in existence as on 23.11.2000, i.e. on the date on which the disputed property was sold to the applicant, the said heirs and the Adhunik Park Co-Operative Housing Society had, though having no title, executed a registered sale deed dated 23.11.2000 in favour of the present applicant as regards the disputed property. It is the said property which was mortgaged on the same date, i.e. 23.11.2000, by Hemendra Shah, wherein a collusive award was passed on 23.05.2001 by the Registrar's Nominee in the Lavad Suit No. 445 of 2001 (filed on 12.04.2001). The said collusive ex-parte award dated 23.05.2001 enabling the recovery of the alleged dues of the applicant herein from the property of the respondent No.1 was ex-facie illegal and passed without conducting any inquiry into the issue of ownership as also the legality and enforceability of the mortgage and, therefore, deserves to be set aside.
Page 15 of 26 C/SCA/17934/2018 JUDGMENT
ANALYSIS :
8. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the Tribunal committed any error in passing the impugned order.
9. The Tribunal, while allowing the appeal preferred by the private respondents, has taken note of the fact that the property which was owned and in possession of the private respondents could not have been conveyed to the applicant either through the partnership route of Naranbhai Patel or through the Adhunik Society which had ceased to be in existence by virtue of the order dated 02.11.2996 as passed by the District Registrar of the Cooperative Societies on 02.11.1996, whereby the registration of the said society was cancelled. The said order dated 02.11.1996 of the District Registrar, although was set aside by the Additional Registrar (Appeals), yet the fact remains that the revisional authority, i.e. the Deputy Secretary, Cooperation Department, Gandhinagar, vide order dated 29.08.2000, allowed the revision and set-aside the order dated 14.06.2000 of the appellate authority, thereby restoring the order dated 02.11.1996 of the District Registrar of cancellation of registration of the society. In the Special Civil Application No. 9800 of 2000 filed by the said Adhunik Patelpark Co.Op.Housing Society against the order dated 29.08.2000 of the Deputy Secretary, this Court, vide a detailed judgment and order dated 24.06.2010 had rejected the Special Civil Application No.9800 of 2000 by observing that "The society had completely deviated from its Page 16 of 26 C/SCA/17934/2018 JUDGMENT statutory obligations and the registration had just remained on paper having become functus officio." In such circumstances, it is inconceivable as to how the said society could have conveyed the possession to the applicant under the sale deed dated 23.11.2000 (as sought to be sold by the Visnagar Bank under the consent award dated 23.05.2001 of the Registrar's Nominee in Lavad Case No. 445 of 2001), when on the said date the society itself was not in existence. The Tribunal has given elaborate reasons for setting aside the ex-parte award dated 23.05.2001 passed by the Registrar's Nominee which apparently is based on the consent purshis given by the Visnagar Bank and the applicant herein. This clearly appears to be a case of land prima facie belonging to and in possession of the private respondents herein, being sought to be conveyed to the applicant herein by persons who prima facie were not competent to execute the sale deed dated 23.11.2000 and which was mortgaged by the purchaser, i.e. the applicant herein, on the same date, i.e. 23.11.2000, for a huge consideration of Rs.1.26 crore (as against the purchase consideration of Rs.8 lakh of the same date), the filing of the suit on 12.04.2001 by the Visnagar Bank for recovery of an amount of Rs.1.34 crore on ground that the applicant had defaulted in making payment of the installments (though the first installment as per the loan agreement failed due on 23.11.2001), the filing of the consent purshis and the passing of the award on 23.05.2001 by the Registrar's Nominee authorizing the Visnagar Bank to recover the decreetal dues of Rs.1.34 crore from the mortgaged property, the subsequent assignment of the said decreetal dues to ADC Bank on 09.11.2001 for securing a further loan of Rs.15 crore and Rs.3 crore in favour of the ADC and the Gujarat State Co-Operative Page 17 of 26 C/SCA/17934/2018 JUDGMENT Bank are all factors which cannot be lost sight of and which clearly are collusive acts and whereby the applicant cannot be permitted to reap the benefit of such collusive and fraudulent acts. The private respondents have been prima facie found to be the owners and in possession of the disputed property, i.e. land bearing Survey No.502/1/2 of Vejalpur Sim, and, hence, if the impugned order of the Tribunal is set aside, the respondent bank would be at liberty to execute the judgment and award dated 23.05.2001 which, ex-facie, appears to be a collusive award and which has rightly been set aside by the Tribunal vide the impugned judgment dated 30.10.2018.
10. So far as the prayer for expunging/deleting the observations of the Tribunal in paragraphs 15, 17 to 20 and 22 of the Tribunal's judgment is concerned, on the ground that the same would prejudice the pending civil suits which are at the stage of final arguments in the Special Civil Applications Nos.61 of 2001 and 62 of 2001, the Tribunal has itself explicitly recorded that the issue of cancellation of the deeds is left to the civil court. As a matter of fact, the Tribunal being conscious of the said fact has given the findings only in respect of the possessory rights of the private respondents herein (the appellant before the Tribunal) vis-a-vis the Visnagar Bank's claim to enforce the mortgage of the very same property and thereby permit the execution of the award dated 23.05.2001 of the Registrar's Nominee and hence in the peculiar facts has rightly observed in the penultimate para that "hence all transactions in respect of the disputed property made after the alleged sale deed by way of mortgage deed and re-assignment deed does not confer any right to recover the dues of the original Page 18 of 26 C/SCA/17934/2018 JUDGMENT judgment debtor Hemendra Lilachand Shah from the disputed property".
11. The present petition arises from a collusive suit seeking to enforce the mortgage effected by the applicant herein in respect of the mortgaged property even before the first installment fell due and, therefore, the applicant's interest having been taken care of and the Tribunal not having committed any jurisdictional error, the question of entertaining the present petition under Article 227 of the constitution does not arise. The contention of the applicant regarding appeal not being maintainable under Section 102 of the act against a consent award is meritless since under the said Section any person aggrieved by any decision or order of the Nominee under Section 100/101, can file an appeal before the Tribunal. There is neither any error of law nor any error of facts committed by the Tribunal and the impugned award dated 23.05.2001 of the Registrar's Nominee has rightly been quashed and set aside by the Tribunal and hence the present petition under Article 227 of the Constitution of India assailing the well reasoned judgement/order dated 30.10.2018 calls for no interference and deserves to be dismissed.
SCOPE OF ARTICLE 227 OF THE CONSTITUTION OF INDIA:
12. I may begin with noticing that the power of superintending control conferred by Article 227 of the Constitution is similar to the control exercised by the Court of Kings Bench over the inferior Courts of England under the Common Law. The history of Article 227 and its scope were considered by the Apex Court in Waryam Singh v. Amarnath, (1954) SCR 565, and it was Page 19 of 26 C/SCA/17934/2018 JUDGMENT indicated that the material part of Article 227 substantially reproduces the provisions of Section 107 of Government of India Act 1915, except that the power of superintendence has been extended by the Article also to Tribunals.
13. The history of Article 227 suggests that the framers of our Constitution believed that they were restoring to the High Court the power which had been taken away by Section 224 of Government of India Act, 1935. In the original Constitution of India Article 227 was devised to empower the High Court to exercise its supervisory jurisdiction not only over the inferior courts within its territory but also over the statutory or quasi judicial Tribunals to ensure that all these inferior bodies exercise the powers conferred on them 'within the bounds of their authority' and 'in a legal manner'. But the supervisory jurisdiction of the High Court over all the administrative Tribunals was abolished by the 42nd Amendment Act, 1976 on the ground that it caused delay and obstruction in the implementation of the Government Policies. By the 44th Amendment Act, 1978, all the Tribunals other than Military Tribunals were again brought under the supervision of the High Court.
14. Article 227 of the Constitution has been the subject matter of various decisions. In Baby v. Travancore Devaswom Board, (1998) 8 SCC 310, the Apex Court held that the powers of the High Court under Article 227 are in addition to the powers of revision conferred on it by the other legislation.
15. In Achutananda Vadya v. Prafullya Kumar Gayen and others, (1997)5 SCC 76, their Lordships of the Supreme Court Page 20 of 26 C/SCA/17934/2018 JUDGMENT observed that the power of superintendence under Article 227 is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and Tribunals, inferior to High Court, have done what they were required to do. The High Court can interfere under Article 227 in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material or resulting in manifest injustice.
16. In Sadhana Lodh v. National Insurance Co. Ltd., (2003) 3 SCC 524, the Apex Court held that supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.
17. In Mani Nariman Daruwala v. Phiroz N. Bhatena, AIR 1991 SC 1494, the Apex Court indicated that in exercising its jurisdiction under Article 227 of the Constitution of India the Page 21 of 26 C/SCA/17934/2018 JUDGMENT High Court could set aside or ignore the findings of fact of an inferior Court or tribunal if there was no evidence to justify such a conclusion.
18. Way back in 1954, the Supreme Court, in the case of Waryam Singh v. Amarnath (1954) SCR 565, has observed as under :
"The power of superintendence conferred by Art.227 is 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."
19. The powers under Article 227, therefore, are to be sparingly used. This authority has been consistently followed by the Supreme Court of India.
20. In Estralla Rubber vs. Dass Estate (P.) Ltd., 2001 (8) SCC 97 : (AIR 2001 SC 3295 : 2001 AIR SCW 3544), the Supreme Court has observed while commenting upon the scope and ambit of Article 227 that the Article does not confer an unlimited prerogative upon the High Court to correct all wrong decisions or to prevent hardships caused thereby. It is then observed by the Supreme Court of India that the power under Article 227 can be exercised to interfere with orders of the lower Courts and Tribunals only in cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice.
21. The Supreme Court in Ouseph Mathai and others vs. M. Abdul Khadir, 2002 (1) SCC 319 : (AIR 2002 SC 110 : 2001 AIR SCW 4672), the Supreme Court of India has observed about Page 22 of 26 C/SCA/17934/2018 JUDGMENT Article 227. It lays down categorically that a petitioner cannot invoke jurisdiction under Article 227 as a matter of right. A petition under Article 227 should be treated like an extension of a statutory appeal or revision. Then it has been observed in this decision while speaking about the scope of Article 227 that mere wrong decision is not a ground for exercise of jurisdiction under Article 227. The High Court may intervene under Article 227 only where it is established that lower Court or Tribunal has been guilty of grave dereliction of duty and flagrant abuse of power. Where a statutory right of revision is provided and is exercised, it is exercised to point out infraction of law whether minor or major. It invites exercise of an important jurisdiction within the limits in which it is conferred on a particular Court or a Tribunal. To read dereliction of duty in every such order only to clothe this Court with a jurisdiction under Article 227 is not permissible.
22. In Nagendra Nath Bora v. Commissioner of Hills Division and Appeals (AIR 1958 SC 398), the Constitutional Bench of the Supreme Court has explained the power of the High Court under Article 227 of the Constitution in the following manner:
"The powers of judicial interference under Article 227 with orders of judicial or quasi judicial nature are not greater than the powers under Article 266. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 the power of interference is limited to seeing that the tribunal functions within the limits of its authority."Page 23 of 26
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23. In Bhutnath Chatterjee v. State of West Bengal, (1969) 3 SCC 675], the Supreme Court has held:
"The District Court held that compensation payable to the owners of land had to be determined on the basis of the market value on the dates of the notifications, dated November 2, 1956 and June 3, 1958 and not on the basis of the notification, dated January 12, 1955. To revise that decision, jurisdiction of the High Court under Article 227 of the Constitution could not be exercised. Normally, the High Court exercises jurisdiction under Article 227 of the Constitution to ensure that a Subordinate Court or Tribunal does not transgress the limits of its jurisdiction. The jurisdiction with which the High Court is invested is not appellate; it cannot seek to correct what it regards as merely an error of law or fact."
24. In Babhutmal Raichand Oswal v. Laxmibai [(1975) 1 SCC 858], a Bench consisting of three Judges have explained the scope and power of the High Court under Article 227 in the following manner:
"The power of superintendence of High Court under Article 227 being extraordinary is to be exercised most sparingly and only in appropriate cases. This power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 Page 24 of 26 C/SCA/17934/2018 JUDGMENT convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate Court or tribunal. It's function is limited to seeing that the subordinate Court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it."
25. In Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566, the Apex Court has explained the power and scope under Article 227 in the following manner:
"A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority" and not to correct an error apparent on the face of the record much less an error of law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision."
26. In a petition under Article 227 of the Constitution of India, unless the findings are shown to be perverse, it would not be open to this Court to disturb the same. There is no illegality or Page 25 of 26 C/SCA/17934/2018 JUDGMENT impropriety in the order passed by the Tribunal. The order passed by the Tribunal is eminently just and proper and the same is not required to be inferred with by exercising powers under Article 227 of the Constitution of India.
27. In view of the above, this application fails and is hereby rejected in limine.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 26 of 26