Karnataka High Court
Sri Rajaram S/O Jyotiba Melage vs The Assistant Director Of Land on 7 June, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 07TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.104052 OF 2015 (KLR - RES)
BETWEEN:
1. SRI RAJARAM
S/O JYOTIBA MELAGE,
SINCE DECEASED
REPRESENTED BY HIS LR's
1(a) ANUSUYA
W/O RAJARAMA MELAGE
AGE:65 YEARS,
OCC.:HOUSEHOLD WORK
R/O PLOT NO.994, SHIVAJI NAGAR
BELAGAVI.
1(b) SHIVAJI RAJARAM MELAGE
AGE: 51 YEARS,
OCC.:AGRICULTURE
R/O PLOT NO.994, SHIVAJI NAGAR
BELAGAVI.
1(c) SAMBAGI RAJARAM MELAGE
AGE: 49 YEARS
OCC.:AGRICULTURE
R/O PLOT NO.994, SHIVAJI NAGAR
BELAGAVI.
1(d) VIMAL
W/O PRAKESH MALAYAI
2
AGE: 48 YEARS
OCC.:AGRICULTURE
R/O SHIVAJI NAGAR
BELAGAVI.
1(e) KAMAL MANOJ DURAJI
AGE: 45 YEARS
OCC.:AGRICULTURE
R/O SHIVAJI NAGAR
BELAGAVI.
1(f) TANAJI
S/O RAJARAM MELAGE
AGE: 42 YEARS
OCC.:AGRICULTURE
R/O PLOT NO.994, SHIVAJI NAGAR
BELAGAVI.
2. BASAVANT S/O JYOTIBA MELAGE,
AGE:70 YEARS, OCC:AGRICULTURE,
R/O: PLOT NO. 994,
SHIVAJI NAGAR, BELAGAVI.
3. NAGUBAI MAHADEV PAVASHE,
AGE:75 YEARS, OCC:AGRICULTURE,
R/O: SHIVAJI NAGAR, BELAGAVI.
4. YAMUNABAI KRISHNA AGASGEKAR,
SINCE DECEASED BY HIS LR.,
SRI SADASHIV
S/O KRISHNA AGASGEKAR,
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O: SHIVAJI NAGAR,
BELAGAVI.
5. GODAVARI PARASHRAM CHOUGALE,
AGE: 73 YEARS,
3
OCC: AGRICULTURE,
R/O: SHIVAJI NAGAR,
BELAGAVI.
6. SHANTA PIRAJI PATIL,
AGE: 64 YEARS,
OCC: AGRICULTURE,
R/O: SHIVAJI NAGAR,
BELAGAVI.
... PETITIONERS
(BY SRI BASAVARAJ S. BYAKOD,
SRI ANANT MANDAGI, SR.COUNSEL FOR
SRI S.R.KAMATE, ADVOCATE)
AND:
1. THE ASSISTANT DIRECTOR OF
LAND RECORDS,
BELAGAVI.
2. DEPUTY DIRECTOR OF LAND RECORDS,
BELAGAVI.
3. THE JOINT DIRECTOR OF LAND RECORDS,
BELAGAVI.
4. THE COMMISSIONER,
CITY CORPORATION,
BELAGAVI.
... RESPONDENTS
(BY SRI MADANMOHAN M. KHANNUR, AGA FOR R-1 TO R-3;
SRI JAGADISH PATIL, ADVOCATE FOR R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE RESPONDENT NO.2 IN CTS APPEAL
4
NO.17/2011-12 DATED 12.09.2012 AND THE ORDER PASSED BY
RESPONDENT NO.3 IN REV/SR NO.7/2012-13 DATED 12.03.2015
AS PER ANNEXURES - S AND V AND THE RESPONDENT NO.1 BE
DIRECTED TO MUTATE THE NAME OF LATE JYOTIBA YALLAPPA
MELAGE AND THEREAFTER THAT OF THE PETITIONERS TO THE CTS
NO.9427.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The petitioners are before this Court calling in question an order passed by the 2nd respondent/Deputy Director of Land Records, Belagavi in CTS Appeal No.17 of 2011-12 dated 12-09-2012 and the order passed by the 3rd respondent/Joint Director of Land Records, Belagavi dated 12-03-2015 and for a direction to the 1st respondent to mutate the name of one Jyotiba Yallappa Melage in CTS No.9427.
2. Heard Sri Anant Mandagi, learned senior counsel appearing for the petitioners, Sri Madanmohan M.Khannur, learned Additional Government Advocate for respondents 1 to 3 and Sri Jagadish Patil, learned counsel appearing for respondent No.4.
53. Facts, in brief, germane are as follows:
Before embarking upon consideration of the issue brought before this Court, I deem it appropriate to consider who are the petitioners. The petitioners are all legal heirs of Jyotiba Yallappa Melage and the family members of 1st petitioner. The respondents are the hierarchy in the Department of Survey Settlement and Land Records. The subject matter of the present petition is the land measuring 2 acres and 20 guntas in Sy.No.1030/1, more fully described in the schedule to the petition. The facts that have led the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:-
Land measuring 7 acres 11 guntas in Sy.No.1030/1 was purchased by one Annarao Fadeppa Chougale on 15-03-1927 in a civil Court's auction. Pursuant to the said purchase, mutation entries were made in the name of the purchaser Annarao Fadeppa Chougale. When things stood thus, on 20-03-1941 a Gazette Notification comes to be published by the Government of Bombay indicating certain lands mentioned in the Gazette Notification to be acquired for public purpose. After about 4 years of the said 6 notification on 22-03-1945, another Gazette Notification comes to be issued initiating final proceedings of acquisition in terms of the proposal on 20-03-1941. Sy.No.1030/1 - land measuring 7 acres 11 guntas and Sy.No.1030/2 land measuring 4 acres and 19 guntas found place in the schedule to the Notification dated 22-03-1945.
During the pendency of acquisition proceedings, Annarao Fadeppa Chougale, the purchaser executed a deed of settlement for the family members, in which his son receives land in Sy.No.1030/1 and the same was mutated in his name. On 17-09-1952, the Secretary of the Revenue Department of Bombay withdrew the lands measuring 70 acres 32 guntas from acquisition which was initially notified on 19-03-1945 supra. After the said withdrawal Annarao Fadeppa Chougale dies. The land that was the subject matter of settlement deed with his son Vasudev becomes the subject of execution of Nirantara Patta in favour of Jyotiba Yallappa Melage, the petitioner No.1 when the petition was initially filed to an extent of 2 acres 22 guntas out of 7 acres 11 guntas. Nirantara Patta resulted in handing over of possession of land in favour of Jyotiba Yallappa Melage. On 07-11-1956, on the strength of the Nirantara Patta, the name of Jyotiba Yallappa Melage is mutated in 7 all the revenue records. Then comes the second acquisition notification on 19-03-1960 and accordingly acquired certain lands and the SLAO, Belagavi passed an award of compensation on 18-08-1960.
It is the averment in the petition that during the acquisition of certain lands, the lands belonging to Jyotiba Yallappa Melage which was under Nirantara Patta did not become the subject matter of acquisition, as several lands in Sy.No.1301/1 were not proposed for acquisition. It is the averment that possession continued with Jyotiba Yallappa Melage. Certain civil proceedings are appended to the petition all of which relate to the award of compensation or handing over of possession of those plaintiffs which would not be necessary to be considered at this juncture.
That on 19-09-1963 the president of the Belgaum Municipality submits an application to enter the name of Belgaum Borough Municipality in the village records in respect of certain survey numbers including Sy.Nos.1030/1, 1030/A and 1030/2.
Jotiba Yallappa Melage contends that in the year 1982 the name of Jotiba Yallappa Melage was replaced with the name of the Corporation of City of Belgaum and the same is mutated on the 8 score that it was confirmed that the City Municipal Council, Belgaum was forming layouts in Malamaruti Extension in terms of acquisition and possession of land pursuant to the aforesaid notification dated 19-09-1963. In the year 1979, the city survey was extended to Malamaruti area and the name of Jyotiba Yallappa Melage was again mutated in CTS No.9427 on the ground that Nirantar Pattedar for the area measuring 2 acres and 22 guntas was in the name of Jyotiba Yallappa Melage. The dispute and saga between the Corporation and Jyotiba Yallappa Melage continued for a long time up to 2010.
On 02-09-2010 Jyotiba Yallappa Melage makes an application for survey records of the land in which the status of the land in Sy.No.1030/1 is shown towards the lands which are subject matter of acquisition. Jyotiba Yallappa Melage then dies leaving behind him his legal heirs who claimed to have become the absolute owners of the property and are in possession of the property even as on today. It is the case of the petitioners/legal heirs of Jyotiba Yallappa Melage and others that in the year 2011 the family decided to partition their lands and obtained CTS records only to know that the name of the City Corporation is in place of Jyotiba Yallappa Melage.
9On coming to know the name of the entry of the said Corporation, the petitioners challenged the entry by filing an appeal before the Deputy Director of Land Records in CTS Appeal No.17 of 2012-13.
The Deputy Director of Land Records in terms of the order dated 12-09-2012/the impugned order dismisses the appeal on the score that the petitioners had no documents to demonstrate that they are owners in possession of the land.
Aggrieved by the order of the Deputy Director of Land Records, the petitioners file revision in Revision Petition No.7/2012- 13 before the Joint Director of Land Records. The Joint Director of Land Records has dismissed the revision petition filed by the petitioners in terms of other impugned order dated 12-03-2015.
Claiming to be aggrieved by the said orders, the petitioners are before this Court calling in question the orders under Section 136(2) of the Karnataka Land Revenue Act and the revisional order under the same enactment passed by the Joint Director of Land Records.
4. The learned senior counsel appearing for the petitioners would contend that both the Deputy Director of Land Records and 10 the Joint Director of Land Records have not considered the material documents produced by the petitioners while passing the impugned orders. It is his contention that Sy.No.1030/1 was left out of acquisition by the Government of Bombay for the purpose of Malmaruti extension and since then the petitioners are in possession being Nirantara Pattadars. It is his submission that non-
acquisition is further proved by mutation entries of the numbers of lands. What happens later is, the Belgaum Municipality on application enters its name in Sy.No.1030/1.
5. The learned counsel for the 4th respondent representing the Belgaum Municipality would contend that city survey was extended to Malmaruti extension in 1979. The name of the Corporation is found in the records for it to spring from thin air. The land was acquired way back in the year 1969 and the name of the Corporation was mutated of the said land. Jyotiba Yallappa Melage and others were only Nirantar Pattadars or tenants and at best perpetual lessees who are not owners of the property and have no right to claim any compensation for the land acquired or to be in possession perpetually. It is his contention that a new case or a 11 cause of action is created by entering into a partition of lands in the year 2011 subsequent to discovery of the name of the Municipal Corporation in CTS records.
5.1. The learned counsel would further contend that the petitioners have produced fabricated copies of awards passed pursuant to land acquisition. The genuine documents are produced along with the objections and, therefore, he would contend that the grievance of the petitioners cannot be redressed by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, but the petitioners have to agitate their rights before the competent civil Court, as all these seriously disputed questions of fact would necessarily require evidence.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
7. Since the 4th respondent has projected existence of an alternative efficacious remedy to the petitioners, I deem it appropriate to consider the same at the threshold. The afore-
12narrated facts are not in dispute. They are a matter of record. They are a maze of facts spanning more than a century to-day as the story begins from 1927. The orders that are challenged are two in number which are the orders passed by the Deputy Director of Land Records and the Joint Director of Land Records. Registration of mutations and register of disputed cases is dealt with under Section 129 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the 'Act' for short). Section 129 of the Act reads as follows:
"129. Registration of mutations and register of disputed cases.--(1) The prescribed officer shall enter in the Register of Mutations every report made to him under sub- section (1) of section 128 or received by him under sub-section (2) or subsection (4) of the said section.
(2) Whenever a prescribed officer makes an entry in the Register of Mutations, he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavadi and shall give written intimation to all persons appearing from the Record of Rights or Register of Mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein.
(3) Should any objection to any entry made under sub-
section (1) in the Register of Mutations be made either orally or in writing to the prescribed officer, it shall be the duty of the prescribed officer to enter the particulars of the objection in a Register of Disputed Cases.
(4) The objections entered in the Register of Disputed Cases and such other objections as may be made during the enquiry shall be enquired into and disposed of by such officer and in such manner as may be 13 prescribed. Orders disposing of such objections shall be recorded in the Register of Mutations by such officer.
(5) The officer holding an enquiry under sub-section (4) shall have all the powers under Chapter III, that a Revenue Officer has in making a formal or summary enquiry under this Act.
(6) Entries in the Register of Mutations shall be tested and if found correct or after correction, as the case may be, shall be certified by such officer as may be prescribed.
(7) The transfer of entries form the Registers of Mutations to the Record of Rights shall be effected in the prescribed manner, provided that an entry in the Register of Mutations shall not be transferred to the Record of Rights until such entry has been duly certified."
(Emphasis supplied) Sub-Section (4) of Section 129 directs that objections entered in the register of disputed cases should be disposed of by such officer in such manner as may be prescribed. The petitioners file an appeal against the mutation entries under Section 136(2) of the Act. Section 136 of the Act reads as follows:
"136. Appeal and Revision.--(1) The provisions of Chapter V shall not apply to any decision or order under this Chapter.
(2) Any person affected by an order made under sub-section (4) or an entry certified under sub-section (6) of section 129 may, within a period of sixty days from the date of communication of the order or the knowledge of the entry certified, appeal to such officer as may be 14 prescribed by the State Government in this behalf and his decision shall be final.
(3) The Deputy Commissioner may, on his own motion or on application of a party, call for and examine any records made under section 127 and section 129 and pass such orders as he may deem fit:
Provided that no order shall be passed except after hearing the party who would be adversely affected by such order."
(Emphasis supplied) Under sub-section (2) of Section 136 an appeal lies to the Deputy Director of Land Records and from the said order the aggrieved person should prefer a revision under sub-section (3) of Section
136. In the case at hand, the original order is passed by the Deputy Director of Land Records under Section 136(2) of the Act.
The petitioners prefer revision under sub-section (3) of Section 136 of the Act before the Joint Director of Land Records. The issue is clearly the title of the land based upon the entries. The Corporation claims that it is the absolute owner of the property in Sy.No.1030/1. The petitioners also claim that they are the owners in possession of the property. Therefore, it enters into a seriously disputed question of fact and the appropriate remedy, in the considered view of the Court, is to knock at the doors of the 15 competent civil Court. This view of mine is fortified by a judgment of the Full Bench of this Court in the case of JAYAMMA v. STATE OF KARNATAKA1 wherein this Court has held as follows:
".... .... ....
97. In view of the proviso of Sections 135 and 62(b) of the Karnataka Land Revenue Act, a party can approach the Civil Court by filing a suit against any person denying or interested to deny his title for the relief of declaration of his right, to establish his private right and any declaration made by the competent Civil Court will be binding on the private parties as well as authorities concerned, who pass the orders under Section 136(2) and (3) of the Karnataka Land Revenue Act. It is well settled that any adverse finding recorded either by the Assistant Commissioner or Deputy Commissioner with regard to record of rights in respect of private parties or any entries exercising their power under the provisions of Section 136, Chapter XI of the Land Revenue Act, it shall not be binding on the Civil Court as well as any decision made by the authorities under the Land Revenue Act only with regard to land revenue, assessment and collection of revenue, maintenance of records, survey for revenue purpose and record of rights only. The authorities under the Land Revenue Act have no jurisdiction to decide the title between the parties and parties who are entitled can file a suit invoking the provisions of Section 9 of Code of Civil Procedure subject to cause of action as and when arises. There fore, question No. 3 under reference raised would not enlarge the period of limitation under the Central Enactment."
The Full Bench noticing Sections 135 and 136 of the Act holds that the authorities under the Land Revenue Act have no jurisdiction to decide the title between the parties and the parties who project 1 2020 SCC OnLine Kar.211 16 entitlement should file a civil suit invoking Section 9 of the CPC, subject to cause of action as and when arises. The situation in the case at hand is identical to what the Full Bench has considered. The remedy of these disputed questions of fact touching upon the title is necessarily to be thrashed out before a competent civil Court.
These serious factual disputes cannot be gone into in a petition under Article 226 of the Constitution of India.
8. It becomes apposite to refer to the judgment of the Apex Court in the case of STATE OF U.P. v. EHSAN2 wherein it is held as follows:
".... .... ....
28. We are conscious of the law that existence of an alternative remedy is not an absolute bar on exercise of writ jurisdiction. More so, when a writ petition has been entertained, parties have exchanged their pleadings/affidavits and the matter has remained pending for long. In such a situation there must be a sincere effort to decide the matter on merits and not relegate the writ petitioner to the alternative remedy, unless there are compelling reasons for doing so. One such compelling reason may arise where there is a serious dispute between the parties on a question of fact and materials/evidence(s) available on record are insufficient/inconclusive to enable the Court to come to a definite conclusion.
29. Bearing the aforesaid legal principles in mind, we would have to consider whether, in the facts of the case, the High Court ought to have dismissed the third writ petition of the 2 2023 SCC OnLine SC 1331 17 first respondent and relegate him to a suit as there existed a serious dispute between the parties regarding taking of possession. More so, when the High Court, in the earlier round of litigation, refrained from taking up the said issue even though it had arisen between the parties.
30. No doubt, in a writ proceeding between the State and a landholder, the Court can, on the basis of materials/evidence(s) placed on record, determine whether possession has been taken or not and while doing so, it may draw adverse inference against the State where the statutory mode of taking possession has not been followed [See State of UP v. Hari Ram (supra)]. However, where possession is stated to have been taken long ago and there is undue delay on the part of landholder in approaching the writ court, infraction of the prescribed procedure for taking possession would not be a determining factor, inasmuch as, it could be taken that the person for whose benefit the procedure existed had waived his right thereunder [See State of Assam v. Bhaskar Jyoti Sarma, (supra)]. In such an event, the factum of actual possession would have to be determined on the basis of materials/evidence(s) available on record and not merely by finding fault in the procedure adopted for taking possession from the land holder. And if the writ court finds it difficult to determine such question, either for insufficient/inconclusive materials/evidence(s) on record or because oral evidence would also be required to form a definite opinion, it may relegate the writ petitioner to a suit, if the suit is otherwise maintainable.
.... .... .... Conclusion
35. In view of the discussion above and having regard to the following : (a) that there was a serious dispute with regard to taking of possession of the surplus land; (b) that there was a delay of about seven years in filing the first writ petition from the date when possession was allegedly taken by the State, after publication of the vesting notification; (c) that no documentary evidence such as a Khasra or Khatauni of the period between alleged date of taking possession and filing of the first writ petition was filed by the original petitioner; (d) that in the earlier two rounds of litigation, the High Court refrained from deciding the issue of possession of the surplus land even 18 though that issue had arisen directly between the parties; and
(e) that infraction of the prescribed statutory procedure for taking possession cannot be the sole basis to discard State's claim of possession, when it is stated to have been taken long before the date the issue is raised, we are of the considered view that the High Court should have refrained from deciding the issue with regard to taking of actual possession of the surplus land prior to the cut off date specified in the Repeal Act, 1999. Instead, the writ petitioner should have been relegated to a suit."
It is further trite law that in a petition preferred under Article 226 of the Constitution, this Court would not delve upon disputed questions of facts by both the petitioners and the 4th respondent.
In such circumstances, the Apex Court in the case of CENTRAL COUNCIL FOR RESEARCH IN AYURVEDIC SCIENCES v.
BIKARTAN DAS3 holds as follows:
".... .... ....
51. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.
32023 SCC OnLine SC 996 19
52. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not.
53. The essential features of a writ of certiorari, including a brief history, have been very exhaustively explained by B.K. Mukherjea, J. in T.C. Basappa v. T. Nagappa, AIR 1954 SC 440. The Court held that a writ in the nature of certiorari could be issued in 'all appropriate cases and in appropriate manner' so long as the broad and fundamental principles were kept in mind. Those principles were delineated as follows:
"7. ... In granting a writ of 'certiorari', the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous, but does not substitute its own views for those of the inferior tribunal .....
8. The supervision of the superior court exercised through writs of certiorari goes on two points, as has been expressed by Lord Summer in King v. Nat Bell Liquors Limited [[1922] 2 A.C. 128, 20 156]. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. ....
9. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction."
54. Relying on T.C. Basappa (supra), the Constitution Bench of this Court in the case of Hari Vishnu Kamath (supra), laid down the following propositions as well established:
"(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous."
55. This Court explained that a court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior court were to rehear the case on the evidence and substitute its own finding in certiorari.
56. In Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, P.B. Gajendragadkar, CJ., speaking for the Constitution Bench, placed the matter beyond any position of doubt by holding that a writ of certiorari can be issued for correcting errors of jurisdiction committed 21 by inferior courts or tribunals. The observations of this Court in para 7 are worth taking note of:
"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. 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. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from 22 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....."
57. In Surya Dev Rai v. Ram Chandra Rai, (2003) 6 SCC 675, a Bench of two Judges held that the certiorari jurisdiction though available, should not be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice had been occasioned. In exercising the certiorari jurisdiction, the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine, whether on the face of the record the inferior court has committed any of the errors as explained by this Court in Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 occasioning failure of justice.
58. From the aforesaid, it could be said in terms of a jurisdictional error that want of jurisdiction may arise from the nature of the subject matter so that the inferior court or tribunal might not have the authority to enter on the inquiry. It may also arise from the absence of some essential preliminary or jurisdictional fact. Where the jurisdiction of a body depends upon a preliminary finding of fact in a proceeding for a writ of certiorari, the court may determine, whether or not that finding of fact is correct. The reason is that by wrongly deciding such a fact, the court or tribunal cannot give itself jurisdiction.
59. In Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, the House of Lords has given a very broad connotation to the concept of 'jurisdictional error'. It has been laid down that a tribunal exceeds jurisdiction not only at the threshold when it enters into an inquiry which it is not entitled to undertake, but it may enter into an enquiry within its jurisdiction in the first instance and then do something which would deprive it of its jurisdiction and render its decision a nullity. In the words of Lord Reid:
23"But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive."
60. So far as the errors of law are concerned, a writ of certiorari could be issued if an error of law is apparent on the face of the record. To attract the writ of certiorari, a mere error of law is not sufficient. It must be one which is manifest or patent on the face of the record. Mere formal or technical errors, even of law, are not sufficient, so as to attract a writ of certiorari. As reminded by this Court time and again, this concept is indefinite and cannot be defined precisely or exhaustively and so it has to be determined judiciously on the facts of each case. The concept, according to this Court in K.M. Shanmugam v. The S.R.V.S. (P) Ltd., AIR 1963 SC 1626, 'is comprised of many imponderables... it is not capable of precise definition, as no objective criterion could be laid down, the apparent nature of the error, to a large extent, being dependent upon the subjective element.' A general test to apply, however, is that no error could be said to be apparent on the face of the record if it is not 'self-evident' or 'manifest'. If it requires an examination or argument to establish it, if it has to be established by a long drawn out process of reasoning, or lengthy or complicated arguments, on points where there may considerably be two opinions, then such an error would cease to be an error of law. (See : Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137.)
61. However, in our opinion, such a test should not be applied in a straitjacket formula and may fail because what 24 might be considered by one Judge as an error self-evident, might not be considered so by another Judge.
62. At this stage, it may not be out of place to remind ourselves of the observations of this Court in Syed Yakoob (supra) on this point, which are as follows:
"Where it is manifest or clear that the conclusion of law recorded by an inferior court or tribunal is based on an obvious misinterpretation of the relevant statutory provision, or something in ignorance of it, or may be even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. Certiorari would also not lie to correct mere errors of fact even though such errors may be apparent on the face of the record. The writ jurisdiction is supervisory and the court exercising it is not to act as an appellate court. It is well settled that the writ court would not re-appreciate the evidence and substitute its own conclusion of fact for that recorded by the adjudicating body, be it a court or a tribunal. A finding of fact, howsoever erroneous, recorded by a court or a tribunal cannot be challenged in proceedings for certiorari on the ground that the relevant and material evidence adduced before the court or the tribunal was insufficient or inadequate to sustain the impugned finding.
It is also well settled that 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 these points cannot be agitated before the writ court."
63. In the aforesaid context, it will be profitable for us to refer to the decision of this Court in the case of Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union, (2000) 4 SCC 245 : AIR 2000 SC 1508. This Court observed as under:
"... The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in 25 the opinion of the writ Court to warrant those findings at any rate, as long as they are based upon such materials which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly undertaken. ..."
64. However, we may clarify that findings of fact based on 'no evidence' or purely on surmises and conjectures or which are perverse points could be challenged by way of a certiorari as such findings could be regarded as an error of law.
65. Thus, from the various decisions referred to above, we have no hesitation in reaching to the conclusion that a writ of certiorari is a high prerogative writ and should not be issued on mere asking. For the issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course. To put it pithily, certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality. It shall also issue to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings. By its exercise, only a patent error can be corrected but not also a wrong decision. It should be well remembered at the cost of repetition that certiorari is not appellate but only supervisory.
66. A writ of certiorari, being a high prerogative writ, is issued by a superior court in respect of the exercise of judicial or quasi-judicial functions by another authority when the contention is that the exercising authority had no jurisdiction or exceeded the jurisdiction. It cannot be denied that the tribunals or the authorities concerned in this batch of appeals had the jurisdiction to deal with the matter. However, the argument would be that the tribunals had acted arbitrarily and illegally and that they had failed to give proper findings on the facts and circumstances of the case. We may only say that while adjudicating a writ-application for a writ of certiorari, the court is not sitting as a court of appeal against the order of the tribunals to test the legality thereof with a view to reach a different conclusion. If 26 there is any evidence, the court will not examine whether the right conclusion is drawn from it or not. It is a well- established principle of law that a writ of certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of facts or on merits. (See : King v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128 (PC))
67. We may quote with profit a decision of this Court in the case of Satyanarayan Laxminarayan Hegde (supra) to understand the true purport and meaning of an error apparent on the face of the record or an error which could be termed as self-evident. The facts of that case were as below:
68. The respondent made an application in the Revenue Court of the Mamlatdar of Sirsi praying for the delivery of possession of property which the appellant was on that date possessing as the tenant under him on the basis of a 'Mulegeni' deed executed by the respondent's predecessor-in-interest in favour of the appellant's predecessor-in-interest. The case was governed by the Bombay Tenancy and Agricultural Lands Act, 1948, and one of the questions in controversy was whether before applying for the delivery of possession, it was incumbent upon the respondent to have given a notice terminating the tenancy. The Mamlatdar made an order for possession in favour of the respondent. The Collector allowed the appeal and set aside the order of the Mamlatdar. The Bombay Revenue Tribunal, to whom the matter was taken up on appeal, held that as the respondent had failed to terminate the tenancy by notice before instituting the ac***tion for ejectment, he was not entitled to entertain the application for recovery of possession.
69. Thereafter, the respondent made an application to the High Court of Bombay under Article 227 of the Constitution of India for the quashing of the order of the Revenue Tribunal and the Collector and for the restoration of the order of the Mamlatdar. The High Court was of the opinion that the Tribunal had committed an error which was apparent on the face of the record in holding that an order of possession could not be made unless a notice terminating the tenancy had been given before the institution of the proceeding and it issued a writ of certiorari quashing the order of the Tribunal and restoring that of the Mamlatdar.
2770. An appeal was filed against the order of the High Court and this Court reversed that order on the ground that the alleged error in the judgment of the Bombay Revenue Tribunal, namely that an order for possession should not be made unless a previous notice required by Section 14 of the Bombay Tenancy and Agricultural Lands Act, 1948, had been given, was not an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari and the following observations were made by this Court:
"17..... An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self- evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. ...."
71. We may also quote with profit one more decision of this Court explaining the true scope of issue of a writ of certiorari and what is an error apparent on the face of the record, which could be corrected by issue of a high prerogative writ like certiorari. In the case of Ebrahim Aboobakar and Hawabai Aboobakar v. The Custodian General of Evacuee Property, New Delhi, (1952) 1 SCC 798, this Court made the observations in paras 12, 13, 14 and 15, which we quote below:
"12. The remaining three questions canvassed before us, unless they are of such a nature as would make the decision of the respondent dated 13-5- 1950, a nullity, cannot be the subject-matter of a writ of certiorari. It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order 28 acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject- matter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. The three questions agitated before us do not seem to be questions which bear upon the jurisdiction of the court of appeal, or its authority to entertain them.
13. It was contended that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit of its jurisdiction depends and that the questions involved in the appeal before the respondent were collateral to the merits of the case. As pointed out by Lord Esher, M.R., in R. v. CIT [R. v. CIT, [L.R.] 21 Q.B. 313 (CA)], the formula enunciated above is quite plain but its application is often misleading. The learned Master of the Rolls classified the cases under two categories thus : (QBD pp. 319-20) "... When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, [and] on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for 29 otherwise there will be none. In the second of the two cases, I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction."
14. The tribunal constituted to hear appeals under Section 24 has been constituted in these terms:
"Any person aggrieved by an order made under Section 7, Section 16, Section 19 or Section 38 may prefer an appeal in such manner and within such time as may be prescribed
--
(a) to the Custodian, where the original order has been passed by a Deputy or Assistant Custodian;
(b) to the Custodian General, where the original order has been passed by the Custodian, an Additional Custodian or an authorised Deputy Custodian."
15. Like all courts of appeal exercising general jurisdiction in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties. Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate court so constituted. Such a tribunal falls within Class 2 of the classification of the Master of the Rolls [R. v. CIT, [L.R.] 21 Q.B. 313 (CA)]. In these circumstances, it seems to us that the order of the High Court of Punjab that a writ of certiorari could not be issued to the respondent quashing the order of 13-5-1950, was right. We are further of the opinion that none of the contentions raised has any merit whatsoever."
3072. This Court in Parry and Company Limited v. Commercial Employees' Association, Madras, (1952) 1 SCC 449 : AIR 1952 SC 179, held:
"14. The records of the case do not disclose any error apparent on the face of the proceeding or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice. Thus there was absolutely no grounds here which would justify a superior court in issuing a writ of certiorari for removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi-judicial functions. What the High Court has done really is to exercise the powers of an appellate court and correct what it considered to be an error in the decision of the Labour Commissioner. This obviously it cannot do. The position might have been different if the Labour Commissioner had omitted to decide a matter which he was bound to decide and in such cases a mandamus might legitimately issue commanding the authority to determine questions which it left undecided [Board of Education v. Rice, [1911] A.C. 179 (HL)]; but no certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous. The judgment of the High Court, therefore, in our opinion, is plainly unsustainable.
(Emphasis supplied)
73. In another case, the same Court held:
""A certiorari cannot be granted to quash the decision of the appellate tribunal on these points on the ground that the decision is wrong" - 'Ebrahim Aboobakar v. The Custodian General of Evacuee Property', 1952 MWN 502 (SC)."
74. It is, therefore, clear that in all findings on matters of fact and interpretation of law except in cases of defective jurisdiction, the decision of the tribunal must be deemed to be final.
3175. The position is authoritatively summed up in Halsbury's Laws of England Vol.IX in para 1493 where it is laid down thus:
"1493. Where the proceedings are regular upon their face and the magistrates had jurisdiction, the superior court will not grant the writ of certiorari on the ground that the Court below has misconceived a point of law. When the Court below has jurisdiction to decide a matter, it cannot be deemed to exceed or abuse its jurisdiction, merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence, or misdirects itself as to the weight of the evidence, or convicts without evidence. Nor will certiorari be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong in matters of fact, and the Court will not hear evidence impeaching the decision on the facts. ...."
76. Similarly in the case reported in - 'Colonial Bank of Australasia v. Willan', [L.R.] 5 P.C. 417, it is observed by their Lordships thus:"The question is whether the inferior court has jurisdiction to enter upon the enquiry and not whether there has been miscarriage of the procedure in the course of enquiry." At page 443 of the same case, the learned Judges observed - "An adjudication by a Judge having jurisdiction over the subject- matter is, if no defect appears on the face of it, to be taken as conclusive of facts stated therein. "The case in [L.R.] 5 P.C. 417 has been approvingly cited by Fazl Ali, J. who held - 'Rai Brij Raj Krishna v. S.K. Shaw and Brothers', 1951 SCC 102 : AIR 1951 SC 115 that an error of law does not constitute an error of jurisdiction and that a wrong decision on facts or law cannot be questioned in a civil Court.
77. It being open to the tribunals to come to one or the other conclusion on the materials before them, it cannot by any means be said that the decisions are incorrect so as to attract the extraordinary jurisdiction for interference by a writ of certiorari. In a King's Bench decision in R. v. Brighton and Area Rent Tribunal, [1950] 1 All ER 946, Lord Goddard, CJ. observed that:
"... As the tribunal had observed all the formalities of the Act, had offended against none of its provisions or 32 against the regulations made under it, there was no ground for holding that the tribunal's determination was not in accordance with law, and, therefore, the motions for certiorari and mandamus should be refused".
78. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Raman and Raman Ltd. Kumbakonam, Tanjore District, (1952) 1 SCC 334 observed:
"26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."
79. In view of the aforesaid discussion, we have reached to the conclusion that the impugned order passed by the High Court is not sustainable in law and the same deserves to be set aside."
(Emphasis supplied) The Apex Court holds that the High Court by issuing a writ of certiorari under Article 226 of the Constitution of India cannot enter 33 into the disputed questions of facts, those will have to be presented before the Tribunal.
9. In the case at hand, the entire dispute is regarding title of the property and genuineness of the award, pursuant to land acquisition. Both the petitioners and respondent No.4 have produced copies of awards. The petitioners contend that their documents are genuine. The 4th respondent contends that its documents are genuine. Therefore, such genuinity or otherwise cannot be considered in a petition filed under Article 226 of the Constitution. They are purely factual in nature and will require a whole lot of evidence. In the light of the preceding analysis, I deem it appropriate to relegate the parties to the competent civil Court to agitate their rights with regard to the title and also genuinity of documents to claim compensation for acquisition/award.
10. For the aforesaid reasons, the following:
ORDER
(i) Writ petition is allowed in part.34
(ii) The order passed by the 2nd respondent in CTS Appeal 17 of 2011-12 dated 12-09-2012 and the order in REV/SR No.7/2012-13 passed by the 3rd respondent stand quashed.
(iii) The parties are directed to knock at the doors of the civil Court of jurisdiction agitating their rights and contentions that are advanced before this Court in the subject petition, to prove their title or genuinity of documents.
(iv) There shall be a status quo maintained of the mutation entries as obtaining today, which shall be subject to change, depending upon the outcome of civil proceedings.
(v) All consequential rights, of both parties, will be subject to the outcome of civil proceedings.
35Pending applications, if any, also stand disposed, as a consequence.
Sd/-
JUDGE BKP CT:MJ