Patna High Court
Qamru Zaman Khan And Ors. vs Sarju Hajam And Ors. on 16 July, 1956
Equivalent citations: AIR1957PAT725, AIR 1957 PATNA 725, ILR 35 PAT 730
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. All these four cases are directed against one and the same order namely the order dated the 19th February, 1954 of Mr. K. Abraham District Magistrate and Collector Gaya passed under Sections 3 and 4 of the Bihar Bakasht Disputes Settlement Act, 1947 (Bihar Act XIII of 1947) which hereafter will be mentioned as "the Act," referring the dispute regarding possession of Bakasht land, between the landlords and the opposite party, to a Board.
2. In M.J.C. No. 114 of 1954 and Criminal Revision No. 48 of 1956, the landlords are the petitioners. In M.J.C. No. 120 of 1954 and Criminal Revision No. 49 of 1956, the Settlees, from the landlords, are the petitioners.
3. As all these cases arise out of the same proceeding, and, are directed against the same order and, are between the same parties, they have all been heard together and therefore, this judgment will govern them.
4. The facts leading up to the present applications may shortly be stated as follows:
5. In 1947-48, there was a dispute about the possession of bakasht lands between the landlords, the petitioners in M. J. C. No. 114 and Criminal Revision No. 48, and some persons who were claiming them as tenants In possession. This led to the initiation of a proceeding under Section 145 of the Code of Criminal Procedure. The dispute between the parties of that proceeding was preferred to a Board under the Act. The Board, on the 28th of June, 1948, decided, under Section 8, Clause (1) of the Act, that the landlords were in possession, at the date of the notification issued under Section 3 of the Act, over 150 bighas of the lands' in dispute, and, the tenants who were parties to that proceeding, were in possession of the remaining 150 bighas, After the decision of the Board, the 145 proceeding was disposed of in terms of the decision of the Board on the 29th June, 1948.
6. After the above decision of the Board, the landlords instituted a suit, as required by the proviso to Section 11 6f the Act, in 1948, in the Civil Court, which was registered and numbered as Title Suit No. 75 of 1948, in respect of 150 bighas, which had been held to be in possession of the tenants of that proceeding. The suit was compromised on the 1st June, 1950, between the parties to that suit, and, according to the compromise, a decree was passed. According to the compromise between the landlords and some of the defendants of that suit, the defendants were given 27 bighas out of 150 bighas, which were the subject matter of that suit, and the landlords were declared to be in possession of the remaining 123 bighas. The landlords, therefore, as a result of the decision of the Board and the title-suit came to be declared to be in possession of 273 bighas out of the total bakasht lands.
7. The landlords, after that according to their case in their affidavit, settled all the lands in 1359 Fasli, corresponding to the year 1952, with different persons, some of those settlees are petitioners in M. J. C. No. 120 and Criminal Revision No. 49.
8. Sometime in 1953, a dispute again cropped up, between the landlords and the present opposite party, regarding the entire Bakasht lands. This led to the institution of a fresh proceeding under Section 145, Code of Criminal Procedure, in respect of 248 bighas, 3 kathas, 13 dhurs between the landlords and the opposite party. During the pendency of this proceeding, the opposite party, on the 21st of January, 1954, made an application, under Sections 3 and 4 of the Act, before the District Magistrate, Gaya. He issued notice to the parties and also directed the Third Officer, Nawadah, to make a local enquiry and submit a report to him. On the 18th February, 1954, the landlords-petitioners as well as the settlees-petitioners before this court appeared and showed cause. The settless originally were not parties to the proceeding, but they appeared as interveners.
After hearing the parties, including the settlees, the District Magistrate on the 19th February, 1954 came to the conclusion that the lands in dispute were bakasht, the story of settlement with the intervenors was unconvincing, the opposite party, applicants before him, were in cultivating possession of the lands, and, that, therefore, there was a bona fide dispute regarding possession of bakasht lands between the landlords' and the appellants, who are the opposite party here, and as such it was necessary for the maintenance of public order that this dispute should be referred to Board. He accordingly referred the dispute to a Board of which the Anchal Adhikari, Nawadah, was appointed its Chairman. This is the order which has been challenged by the landlords, and, their settlees before this Court.
9. In M.J.C. Nos. 114 and 120, which are by the landlords and their settlees, the applications have been filed under Articles 226 and 227 of the Constitution of India, to call up and quash the order of the District Magistrate, Gaya dated the 19th February, 1954, and to quash the proceeding under the Act. In the two criminal Revisions also, the same prayer has been made by the landlords and their settlees, for setting aside the above order of the District Magistrate.
10. Dr. Sultan Ahmad appearing for the petitioners has attacked the impugned order of the District Magistrate, dated the 19th February, 1954 on two grounds (1) that the Collector has no jurisdiction to ignore the claim of the settlees on the ground that they were the landlords' relations, and (2) that the lands in dispute having been declared previously by the Board appointed under the Act, and, later by the civil court, to be bakasht lands, there was no dispute within the meaning of Section 3 of the Act which could be referred for the decision of a new Board.
11. Mr. Sarwar Ali, who appeared for all the opposite party contended that the Collector has absolute jurisdiction to decide whether there was a dispute within the meaning of Section 3 of the Act, which should be referred for a decision to a Board, and, as such, the order complained of was perfectly valid and with jurisdiction, and, it could not be quashed by this court. He has further contended that the previous decisions of the Board and the Civil Court are of no effect, because the opposite party were not parties to those proceedings.
12. The Bihar Bakasht Disputes Settlement Act, 1947, was enacted to make certain provisions for the speedy settlement or decision, of disputes between the proprietors or tenure holders and raiyats regarding possession of Bakasht lands in this State. Section 2, Clause (c), of the Act, defines 'dispute' as meaning a dispute or difference regarding the possession of any bakasht land between a proprietor or tenure-holder and a person who claims to be in possession of the said land as a raiyat.
Under Section 3, if in the opinion of the State Government it is necessary or expedient so to do, for the maintenance of peace or public order or for any other sufficient reason, the State Government may, by notification, refer any dispute, arising within the local limits of any subdivision in the State of Bihar (whether any proceeding be or be not pending in a Criminal Court in regard to the whole or part of the subject of such dispute) to a Board to be appointed by the State Government in this behalf for the purpose of bringing about an amicable settlement of such dispute, and, if no such settlement can be brought about, for deciding the same in such manner as appears to the Board to be fair and equitable.
Under Section 14, the State Government may, by notification, delegate the powers vested in it by Section 3 and Section 4 to any officer not below the rank of an Additional Dispute Magistrate subordinate to the State Government. The District Magistrate, Gaya, has been delegated with such a power, and therefore, he could act under Sections 3 and 4. It is for the District Magistrate as provided by Section 3 to be satisfied if there is a 'dispute' within the meaning of Section 2(c) of the Act, and, further, if it is necessary or expedient, for the maintenance of peace or public order or any other sufficient reason, to refer such 'dispute' to a Board.
It is manifest, therefore, that the district Magistrate is the sole authority, who is to be satisfied whether a 'dispute', within the meaning of the Act exists between the parties before him, and if he is satisfied that such a 'dispute' exists, then it is open to him to refer such 'dispute' for decision to a Board.
13. In the present case, the learned District Magistrate has given reasons for coming to the conclusion that the lands in dispute were bakasht lands till the date of the impugned order the settlees intervenors were the relations of the landlords, and their story of settlement was unconvincing; the opposite party were in cultivating possession; and, that there was a bona fide dispute regarding possession of bakasht land between the landlords and the opposite party; and, that it was necessary for the maintenance of public order that this dispute should be referred to a Board. He, therefore, referred the dispute to a Board under Section 3 and appointed the Anchal Adhikari as its Chairman under Section 4 of the Act.
14. The contention of Dr. Sultan Ahmad is that the findings of the District Magistrate are wrong in fact and are not supported by adequate evidence. But the question of adequacy or sufficiency of evidence cannot be investigated in a proceeding under Article 226. It is not the contention of the petitioner that the findings of the District Magistrate are based on no evidence at all. The District Magistrate has taken into consideration the previous decisions of the Board and of the Civil Court. The finding of the District Magistrate that the settlees were not bona fide settlees from the landlords and, that their story of settlement was unconvincing is based on a consideration of the evidence before him. When, therefore, on the findings of the District Magistrate, the settlees were not the real settlees and their settlements were sham transactions, the District Magistrate was justified in ignoring the so called settlees.
15. The opposite party in the present case have in para 9 of their counter-affidavit filed in M. J. C. No. 114 definitely stated:--
"That the opposite party were never parties to the Title suit No. 75/48 and the title suit has not been decided in their presence nor was there any adjudication of the rights of your petitioners in Bakasht Settlement Case No. 93-53/54."
This assertion of the opposite party has not been denied either by the landlords or their alleged settlees. In their application under Articles 226 and 227, neither the landlords, nor their so called settlees, have alleged anywhere, that the opposite party were parties to the two proceedings referred to above.
16. Dr. Sultan Ahmad filed a typed list, mentioning the names of nineteen persons, from amongst the opposite party, who according to him, were parties to the previous proceeding also before the Board. This position is not accepted by the opposite party; and, moreover, there is no affidavit in support of it. Even however, they were parties, that would not make any difference in the decision of the present cases. The District Magistrate, as I have said before, has taken into consideration the decision of the previous Board, and it was open to him to say that in spite of the previous decision of the Board in 1948, there existed a 'dispute' in respect of these lands in 1954, when he passed the order complained of.
17. Dr. Sultan Ahmad next argued that because Zamindari has vested in the State of Bihar since the 26th January, 1955, and Bakasht lands have become raiyati lands of the proprietor under Section 6 of the Bihar Land Reforms Act, 1950, the present proceedings under the Act have now become infructuous inasmuch as the lands in dispute are no longer Bakasht lands, and, therefore, there could be no 'dispute' under the Act in respect thereof Dr. Sultan Ahmad, therefore, submitted that this Court should take into account the new facts, which have come into existence after the impugned order and during the pendency of these proceedings in this Court, and decide the cases accordingly.
18. An appellate court can grant relief according to the new law which had come into force in the meantime even though the order of the court below had been correct according to the law as it then stood. It is entitled to take into consideration legislative changes, which had supervened since the decision in appeal was given, because the admission of the appeal is the key which unlocks the door into the court of appeal, and, a litigant, who has once passed through that door, cannot afterwards be ejected by the happening of events outside and beyond his control; The underlying principle, for the above rule, is that a Court cannot shut its eyes to the events that come into existence during the pendency of any suit or proceedings, which is the subject-matter of the appeal before it. Once a decree or order of a court is appealed against, the matter becomes sub-judice again, and, thereafter, the court of appeal has seisin of the whole case, though for certain purposes, i.e. execution, the decree is regarded as final, and courts below retain jurisdiction.
As a general rule, however, a court of appeal, in considering the correctness of the judgment of the court below, will confine itself to the state of the case at the time such judgment was rendered and see whether that judgment was right when it was given, and will not take) any notice of any facts which may have arisen subsequently, But the Court will, in exceptional cases, depart from this rule, especially where, by so doing, it can shorten litigation and best attain the ends of justice. In such cases, it is not only competent to a Court of appeal, but it may be its duty to take notice of events which have happened subsequently to the passing of the decree or order appealed against see Shyamakant Lal v. Rambhajan Singh, 1939 FCR 193: (AIR 1939 PC 74) (A); Subhanand Chowdhary v. Apurba Krishna Mitra, 1940 FCR 31: (AIR 1940 FC 7) (B); Lachmeshwar Prasad v. Keshwar Lal, 1940 FCR 84: (AIR 1941 FC 5) (C); Georg'e Hill v. Satan Singh, 4 Pat LJ 312: (AIR 1920 Pat 559) (D); and Mussumauin Anundmoyee Chowdhoorayan v. Sheeb Chandra Roy, 9 Moo Ind App. 287 at P. 300 (PC) (E).
19. But the above principles, which govern a court of appeal do not apply to the powers of High Court under Article 226. Under Article 226, however extensive the jurisdiction may be, 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 decisions impugned, and decide what is the proper view to be taken, or the order to be made. The High Court, issuing a writ of certiorari, acts in exercise of its supervisory, and not appellate jurisdiction; and one consequence is that the Court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous, because, 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 control which the High Court exercises under. Article 226, through a writ of certiorari, over judicial or quashi-judicial tribunals or bodies, being not in an appellate but supervisory capacity, the High Court does not review, or re-weigh, 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. In such circumstances, the High Court will issue a writ of certiorari only for correcting errors of jurisdiction. Decision, even if wrong, on facts or law, cannot be corrected by a writ of certiorari.
It is not liable to be questioned on the ground that it was erroneous on the merits, or that it was reached without considering some aspects which ought to have been considered, unless the failure to consider them is of such a character as to amount to their being no exercise of judgment at all. See Parry and Co. Ltd. v. Commercial Employees Association, AIR 1952 S. C. 179 (F), Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 S.C. 192; 1952 S. C. R. 583 (G) Ebrahim Aboobakar v. Custodian General, AIR 1952 S.C. 319 (H); Vice-Chancellor, Utkal University v. S.K. Ghose, AIR 1954 S.C. 217 (I); T.C. Basappa v. T.T. Nagappa, AIR 1954 S.C. 440 (J); Hari Vishnu Kamath v. Ahmad Ishaque, (S) AIR 1955 SC 233: 1955 S.C.R. 1055 (K): Karanpura Development Co. Ltd. v. Kamakshya Narain Singh, (S) AIR 1956 S. C. 446 (L); and. Raman and Raman Ltd. v. State of Madras (S) AIR 1956 S. C. 463 (M).
20. It follows, therefore, that this Court is concerned only with the validity of the order complained of, when it was actually passed; and no subsequent event or devolution of interest, can affect this question; because to give effect to these, should justice require it, would be the function of a court of appeal, but not the function of this Court on an application under Article 226. I have already held that there is no error of jurisdiction in the order complained of. In view of this, Dr. Sultan Ahmad's contention must be rejected. This Court will not take notice of subsequent events, which may, or may not, invalidate the impugned order, on the present application under Article 226.
21. For the reasons given above, all the applications fail. No case, therefore, has been made out for issuing a writ as prayed for. The rules must, therefore, be discharged in all the four cases. The Miscellaneous Judicial Cases are dismissed with costs; hearing fee Rs. 100/-.
Ramaswami, C.J.
22. I agree.