Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on 17.11.2015
Pronounced on 03.02.2016
+ LPA 30/2015 and CM Appl. 3272/2015(for vacation of stay) &
1095/2015(stay)
RAVINDER SINGH & ANR ..... Appellants
Through: Mr.Sudhir Nandrajog, Sr.
Advocate with Mr.Parvinder Chauhan and
Mr.Abhilash Vashisht, Advocates.
Versus
GOVT OF NCT OF DELHI & ORS ..... Respondents
Through: Mr.Satyakam, Standing Counsel
with Mr.Nikhil Bardwaj, Advocate for R-1.
Respondent No.2-in-person.
Mr.D.Rajeshwar Rao and Mr.Charanjeet Singh,
Advocates for G.S.Nangli Poona/R-3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAYANT NATH
JUDGMENT
JAYANT NATH, J.
1. The present appeal is filed seeking to impugn the order of the
learned Single Judge dated 29.10.2014. By the impugned order the
learned Single Judge has quashed the order dated 15.12.2009 passed by
the Financial Commissioner.
2. The brief facts which can be culled out from the pleadings and
various documents placed on record are that one Shri Anant Ram was the
recorded owner of land measuring 2 bighas and 13 biswas bearing Khasra
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No.41/12 situated in village Nangli Poona, Delhi. Out of the said land of
Shri Anant Ram 1 bigha and 6 biswas of land was said to have been sold
to Shri Ram Lal Aggarwal father of appellant No.2 on 29.08.1989.
During the consolidation proceedings the ownership of appellant No.2
was reduced to 1 bigha and 4 biswas (hereinafter referred to as the „said
land‟). Shri Ram Lal Aggarwal then sold the said land to his son appellant
No.2 on 28.5.1990. Thereafter appellant No.2 on 24.3.2005 sold the land
vide Power of Attorney to appellant No.1. Respondent No.2 claims that
his father was in possession of the said land and on the death of his father
on 22.9.2002 respondent No.2 claims to have come in possession of the
land.
3. Respondent No.2 moved two applications dated 20.12.2004 and
12.01.2005 for recording of his cultivatory possession over the said land
before the Tehsildar. Claiming that the Tehsildar was not dealing with
these applications, respondent No.2 filed a Writ Petition before this High
Court being W.P.(C) No.7435/2005. This Writ Petition was disposed off
on 25.10.2005 with a direction to the Tehsildar to decide the applications
as per law. The applications were dismissed by the Tehsildar vide orders
dated 22.6.2006. In the meantime, another application was also filed by
respondent No.2 for recording of cultivatory possession in relation to
crop period Kharif for 2006 for the said land. This was also dismissed by
the Tehsildar vide order dated 13.8.2007.
4. The respondent No.2 thereafter filed an appeal under section 64 of
the Delhi Land Revenue Act, 1954 in the Court of Deputy Commissioner
against the two orders passed by the Tehsildar dated 22.6.2006 and
13.8.2007. The Tehsildar after going through the evidence came to the
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conclusion that there is no logical basis or reasoning in the impugned
orders and set aside the orders dated 22.6.2006 and 13.8.2007 of the
Tehsildar. A direction was passed that the name of respondent No.2 be
entered in the Khasra Gidawaris for the year 2004 (Rabi and Kharif),
2005 (Rabi) and 2006 (Kharif) with respect to the said land falling in
Khasra No.41/12 village Nangli Poona, Delhi.
5. The appellants thereafter filed an appeal before the Financial
Commissioner under section 66 and 72 of the Delhi Land Revenue Act,
1954. The Financial Commissioner vide order dated 15.12.2009 held the
order of the Deputy Commissioner dated 10.4.2008 as unsustainable and
set aside the same.
6. The respondent No.2 filed the present Writ Petition No.3316/2010
challenging the order of the Financial Commissiner. This Writ Petition
was allowed vide impugned order dated 29.10.2014 quashing the order of
the Financial Commissioner dated 15.12.2009 and upholding the order of
the Deputy Commissioner dated 10.4.2008.
7. We have heard learned counsel for the parties and gone through the
record. Learned senior counsel appearing for the appellant has urged that
the impugned order passed by the learned Single Judge is entirely
erroneous. It is stated that vide the impugned order the court has
converted itself into an appellate court reappreciating the evidence led by
the parties and has come to a different conclusion on facts which was
impermissible while exercising powers under Article 226 of the
Constitution of India. Reliance is placed on Hari Vishnnu Kamath vs.
Ahmad Ishaque and Others, AIR 1955 SC 233 and Ranjeet Singh vs.
Ravi Prakash 2004 (3) SCC 682 to contend that the jurisdiction of the
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High Court was not available to exercise any reappreciation or
revaluation of documents/evidence or correct errors of conclusion of facts
by the Court of Appeal. The Court could not have acted as an appellate
Court. A Writ of Certiorari can only be issued to correct an error of law.
It is further urged that the impugned order has also gone into the issues
which were never even raised before the Tehsildar and relief has been
granted on grounds which were not even sought from the Tehsildar.
Reference is made to findings recorded in the impugned order, namely,
that the land was originally allotted under the 20 Point Programme and
hence could not have been sold. A finding is also recorded that the sale
effected in favour of appellant No.2 Shri Anil Kumar Aggarwal is
contrary to Section 33 of the Delhi Land Reforms Act. It is urged that
these findings and issues were not a subject matter of the application filed
by respondent No.2 before the Tehsildar and no such relief had been
sought by the respondent No.2 and yet while dealing with challenge to
the order of the Financial Commissioner, the learned Single Judge has
granted these reliefs. Hence, it is urged that the order of the Single Judge
is liable to be set aside.
8. The respondent No.2 appeared in person. He has relied upon some
of the documents to contend that he was in cultivatory possession of the
land and the order of the learned Single Judge is in order.
9. It would be useful to first see the legal position regarding a Writ of
Certiorari that may be issued by the High Court when exercising power
under Article 226 of the Constitution of India. Reference may be had to
the judgment of the Supreme Court in the case of Hari Vishnnu Kamath
vs. Ahmad Ishaque (supra) where a constitutional bench of Supreme
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Court held as follows:-
21. Then the question is whether there are proper grounds for
the issue of certiorari in the present case. There was
considerable argument before us as to the character and scope
of the writ of certiorari and the conditions under which it could
be issued. The question has been considered by this Court in
Parry & Co. v.Commercial Employees' Association, Madras,
AIR 1952 SC 179 (L), Veerappa Pillai v. Raman and Raman,
AIR 1952 SC 192 (M), Ibrahim Aboobaker v. Custodian
General of Evacuee Property, New Delhi, AIR 1952 SC 319
(N) and quite recently in AIR 1954 SC 440 (C) On these
authorities, the following propositions may be taken as
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. This is on the
principle 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 re-hear the case on the
evidence, and substitute its own findings in certiorari. These
propositions are well settled and are not in dispute.
22..
23. It may therefore be taken as settled that a writ of certiorari
could be issued to correct an error of law. But it is essential that
it should be something more than a mere error; it must be one
which must be manifest on the face of the record. The real
difficulty with reference to this matter, however, is not so much
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in the statement of the principle as in its application to the facts
of a particular case. When does an error cease to be mere error,
and become an error apparent on the face of the record ?
Learned Counsel on either side were unable to suggest any
clear-cut rule by which the boundary between the two classes of
errors could be demarcated. Mr. Pathak for the first respondent
contended on the strength of certain observations Chagla, C.J.
in Batuk K. Vyas v. Surat Borough Municipality,
AIR1953Bom133 (R) that no error could be said to be apparent
on the face of the record if it was not self-evident, and if it
required an examination or argument to establish it. This test
might afford a satisfactory basis for decision in the majority of
cases. But there must be cases in which even this test might
break down, because judicial opinions also differ, and an error
that might be considered by one Judge as self-evident might not
be so considered by another. The fact is that what is an error
apparent on the face of the record cannot be defined precisely
or exhaustively, there being an element of indefiniteness
inherent in its very nature, and it must be left to be determined
judicially on the facts of each case.”
10. In Surya Dev Rai vs. Ram Chander Rai and Ors., AIR 2003 SC
3044 (MANU/SC/0559/2003) the Supreme Court held as follows:-
“37. Such like matters frequently arise before the High Courts.
We sum up our conclusions in a nutshell, even at the risk of
repetition and state the same as hereunder:-
(1)……..
(2)…..
(3) Certiorari, under Article 226 of the Constitution, is issued
for correcting gross errors of jurisdiction, i.e., when a
subordinate court is found to have acted (i) without jurisdiction
- by assuming jurisdiction where there exists none, or (ii) in
excess of its jurisdiction - by overstepping or crossing the limits
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of jurisdiction, or (iii) acting in flagrant disregard of law or the
rules or procedure or acting in violation of principles of natural
justice where there is no procedure specified, and thereby
occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate courts
within the bounds of their jurisdiction. When the subordinate
Court has assumed a jurisdiction which it does not have or has
failed to exercise a jurisdiction which it does have or the
jurisdiction though available is being exercised by the Court in
a manner not permitted by law and failure of justice or grave
injustice has occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact or of
law unless the following requirements are satisfied: (i) the error
is manifest and apparent on the face of the proceedings such as
when it is based on clear ignorance or utter disregard of the
provisions of law, and (ii) a grave injustice or gross failure of
justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which
can be perceived or demonstrated without involving into any
lengthy or complicated argument or a long-drawn process of
reasoning. Where two inferences are reasonably possible and
the subordinate court has chosen to take one view the error
cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory
jurisdiction are to be exercised sparingly and only in
appropriate cases where the judicial conscience of the High
Court dictates it to act lest a gross failure of justice or grave
injustice should occasion. Care, caution and circumspection
need to be exercised, when any of the abovesaid two
jurisdictions is sought to be invoked during the pendency of
any suit or proceedings in a subordinate court and the error
though calling for correction is yet capable of being corrected at
the conclusion of the proceedings in an appeal or revision
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preferred there against and entertaining a petition invoking
certiorari or supervisory jurisdiction of High Court would
obstruct the smooth flow and/or early disposal of the suit or
proceedings. The High Court may feel inclined to intervene
where the error is such, as, if not corrected at that very moment,
may become incapable of correction at a later stage and refusal
to intervene would result in travesty of justice or where such
refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory
jurisdiction will not covert itself into a Court of Appeal and
indulge in re-appreciation or evaluation of evidence or correct
errors in drawing inferences or correct errors of mere formal or
technical character.”
11. Hence, when exercising power under Article 226 when issuing a
Writ of Certiorari, the High Court would not review findings of facts
reached by an inferior Court or Tribunal even if they are erroneous. The
Court is exercising only supervisory and not appellate jurisdiction. It
would not be for the superior Court to re-hear the case on the findings of
facts and substitute its own findings.
12. We may now see the scheme of the statutory provisions under
which the proceedings have been carried on. The application was filed by
respondent No.2 before the Tehsildar under section 27(2) of the Delhi
Land Revenue Act, 1954 which provides that all disputes regarding
entries in the annual register shall be decided by the Tehsildar on the
basis of possession. The appeal before the Deputy Commissioner was
filed under Section 64 of the said Act. Similarly, the appeal before the
Financial Commissioner was filed under section 66 of the Act which
provides for a second appeal on grounds as stated in the provision.
Financial Commissiner also exercised powers under section 72 of the said
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Act whereby he has supervisory powers and he may summon any file and
exercise jurisdiction as per the said provisions. No further appeal is
envisaged in the said act.
13. We may first have a look at the order passed by the Tehsildar
rejecting the original application of respondent No.2. The order notes that
as per revenue record appellant No.2 is the recorded owner of the land
and that respondent No.2 is claiming cultivatory possession of the land
which belonged to somebody else i.e. possession is stated to be
unauthorised and without the consent of the recorded owner. The order
notes that the respondent No.2 has examined four witnesses including
himself. It also notes that respondent No.2 is a government servant
working in the Ministry of Petroleum and residing at New Rajinder Place,
New Delhi. The evidence of respondent No.2 was noted that he is not
able to come to the village daily and there are several occasions when he
is not able to cultivate the land because of paucity of time. The Tehsildar
also noted that respondent No.2 has indulged in dirty tactics to
manipulate and fabricate the evidence in his favour. The Tehsildar also
noted that four witnesses claimed that they were tilling the land of
respondent No.2 though none of them were named in the affidvit by way
of evidence filed by respondent No.2. The evidence of the witnesses was
disbelieved and the application of respondent No.2 was dismissed.
Regarding the second applicaton the Tehsildar carried out a site visit of
the land and based on that and other circumstances concluded that
cultivatory possession of respondent No.2 is not proved. He also
dismissed the said application.
14. We may now come to the impugned order of the learned Single
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Judge and see the grounds on which it has reversed the judgment of the
Financial Commissioner. The grounds noted by the learned Single Judge
to quash the order of the Financial Commissioner are as follows:-
(i) Appellant No.1 had filed W.P.(Crl.) No.1667/2005
before this Court to restore his possession on the land and
sought quashing of FIR No.254/2005. The same was dismissed
on 29.9.2005. The impugned order concludes as the petition
was filed by respondent No.2 was obviously in possession of
the land in question. Similarly, reference is also made to
W.P.(C) 2657/2006 where also appellant No.1 sought directions
to restore his possession. This petition was dismissed on
17.8.2007 for non prosecution. Hence, the order states that
respondent No.2 was in possession of the land.
(ii) Appellant No.1 on 6.1.2006 filed objections against an
illegal entry in Form P-5 in favour of the respondent No.2
where he has admitted that he was dispossessed illegally and
unauthorisedly from the said land.
(iii) Reliance is also placed on a report by Shri Rajinder
Singh Kannugo dated 28.5.2005 who is stated to have inspected
the spot and found that the land was being cultivated by
respondent No.2.
(iv) Similarly, reliance is placed on Form P-5 where under
Rule 66 changes are recorded on 15.10.2009 in Column No.8
where name of the person found in possesson is recorded as
respondent No.2. It is also noted that under section 67(d) of the
Act if a person is deprived of his possession the right to
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recover the same is for a limited period of three years. Section
85 provides that if the suit is not filed under section 84 within
the period of limitation the person taking or retaining
possession shall become a bhumidar.
(v) Reliance is also placed on an application filed on
22.1.1982 before the SDM by Shri Anant Ram, the original
allottee for being declared Bhumidar. It is urged that an order
was passed on 19.4.1983 declaring the applicant as the
Bhumidar. Reliance is also placed on a Circular dated
3.10.1996 issued by the Office of Additional District
Magistrate, (Revenue) that transfer of land where a Bhumidari
right was conferred under the 20 Point Programme shall be in
violation of section 33 of the Act. Reliance was placed on
various judgments to hold that the land cannot be permitted to
be sold.
(vi) Reliance is also placed on section 33 of The Delhi Land
Reforms Act to hold that the transfer in favour of Shri Ram Lal
Aggarwal is in violation of the said provisions. It was also held
that the sale of the land being in contravention of section 33,
67 and 85 of the Act was illegal and void ab initio. As the
purchase was illegal the order holds that the mutation in favour
of appellant No.2 automatically becomes illegal and the
appellants have no right to claim bhumidari rights over the land.
(vii) The appellants have not produced any witness in support
of their case before the Tehsildar whereas respondent No.2 has
examined four witnesses. Despite this, the Tehsildar has
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rejected the applications of respondent No.2 including the
evidence led by him and the site inspection report filed by
Rajinder Singh Kannugo.
15. Numerous other such facts have been gone into in the impugned
order. The order finally concludes as follows:-
“99. The Financial Commissioner has erred in not relying upon
the report of Rajinder Singh, Kanungo, statement of Bhoop
Singh and other facts as discussed above, however, relied upon
the testimony of Halka Patwari, who admitted in cross-
examination that he did not find the petitioner in possession
while passing its judgment dated 15.12.2009. The fact remains
that the said Patwari also admitted that he did not file any report
pursuant to order made by Tehsildar. There is no explanation as
to why he did not file the report pursuant to the order passed by
the Tehsildar, Narela.
100. In view of the above discussion, impugned order dated
15.12.2009 passed by the Financial Commissioner is hereby set
aside and order dated 10.04.2008 passed by the Deputy
Commissioner is upheld.”
16. A perusal of the above reasons for setting aside the order of the
Financial Commissioner makes it quite clear that the impugned order
contrary to the legal position regarding exercise of powers under Article
226 of the Constitution of India and contrary to the principles governing
issue of Writ of Certiorari has carried out a detailed exercise reviewing
the findings of facts recorded by the Lower Court. It has gone into
evidence in detail, reappreciated the whole evidence and substituted its
own findings with that of the concerned Courts. In our opinion, the
impugned order is erroneous and is liable to be set aside.
17. There is another reason on account of which in our opinion the
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impugned order is liable to be set aside. The order has adjudicated upon
issues and granted relief to respondent No.2 which was never claimed
in the original application filed before the Tehsildar or never arose in the
said proceedings.
18. The impugned order states that the land in dispute was allotted to
Shri Anant Ram under The 20 Point Programme and relying upon the
judgment of this High Court in Pawan Kumar and Ganga Bishan Gupta
vs. Financial Commissioner and Others , 107(2003) DLT 726 the
impugned order holds that no sale of such land was permissible. The
order also holds that under section 33 of the Delhi Land Reforms Act the
said Shri Anant Ram is said to have sold a portion of his land which was
below the permissible limit and hence the land could not have been sold
under section 33,67 and 85 of the Act and the purchase by Ram Lal
Aggarwal and the appellants herein is illegal and void ab initio.
Accordingly, the order holds that the sale deed in favour of the appellant
is illegal and void ab initio and the mutation in favour of the appellant is
also illegal.
19. The above relief had never been sought for by the respondent No.2
(petitioner) before the Tehsildar. The original application before the
Tehsildar was filed by respondent No.2 for recording his cultivatory
possession over the land in dispute. There is no discussion in the said
order of the Tehsildar dated 22.6.2006 or 13.8.2007 regarding the said
issues on which relief has also been granted to respondent No.2. The
learned Single Judge while issuing a Writ of Certiorari could not have
gone into issues which are not subject matter of the relief as originally
claimed by respondent No.2. The impugned order suffers from illegality
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and has to be set aside on this ground also.
20. In fact these issues were noted in a litigation between the parties
which was adjudicated upon by the Supreme Court pertaining to a certain
criminal complaint filed by respondent No.2. In the judgment being
Ravinder Singh vs. Sukhbir Singh and Others, 2013(9) SCC 245 the
Supreme Court noting such arguments held that even if the sale by the
original allottee in favour of R.L.Aggarwal was illegal as he could not
transfer the land allotted to him by the government under the Poverty
Elevation Programme, such illegality would not confer any right on
respondent No.2.
21. While disposing the appeal and allowing the SLP the Supreme
Court commented on the conduct of respondent No.2 as follows:-
“32. The facts on record make it evident that the land on which
both parties claim title/interest had initially been allotted to one
Anant Ram, a member of the Schedule Caste community, under
the 20 Point Programme of the Government of India (Poverty
Elevation Programme) and he sold it to one Ram Lal Aggarwal
in the year 1989, who further transferred it to his son Anil
Kumar Aggarwal in the year 1990. Anil Kumar Aggarwal sold
the same to Appellant Ravinder Singh in the year 2005.
Respondent No. 1, who at the relevant time was holding a very
high position in the Central Government, claimed that initial
transfer by Anant Ram, the original allottee, in favour of Ram
Lal Aggarwal was illegal and he could not transfer the land
allotted to him by the Government under Poverty Elevation
Programme and further that as the said land had been
encroached upon by his father, he had a right to get his name
entered in the revenue record. Thus, it is clear that the
Respondent No. 1, became the law unto himself and assumed
the jurisdiction to decide the legal dispute himself to which he
himself had been a party being the son of a rank trespasser.
Transfer by the original allottee at initial stage, even if illegal,
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would not confer any right in favour of the Respondent No. 1.
Thus, he adopted intimidatory tactics by resorting to revenue as
well as criminal proceedings against the Appellant without
realising that even if the initial transfer by the original allottee
Anant Ram was illegal, the land may revert back to the
Government, and not to him merely because his father had
encroached upon the same.
33. The High Court has dealt with the issue involved herein and
the matter stood closed at the instance of Respondent No. 1
himself. Therefore, there can be no justification whatsoever to
launch criminal prosecution on that basis afresh. The inherent
power of the court in dealing with an extraordinary situation is
in the larger interest of administration of justice and for
preventing manifest injustice being done. Thus, it is a judicial
obligation on the court to undo a wrong in course of
administration of justice and to prevent continuation of
unnecessary judicial process. It may be so necessary to curb the
menace of criminal prosecution as an instrument of operation of
needless harassment. A person cannot be permitted to unleash
vendetta to harass any person needlessly. Ex debito justitiae is
inbuilt in the inherent power of the court and the whole idea is
to do real, complete and substantial justice for which the courts
exist. Thus, it becomes the paramount duty of the court to
protect an apparently innocent person, not to be subjected to
prosecution on the basis of wholly untenable complaint.”
22. We have mentioned the above para to show the conduct of
respondent No.2 who continues to litigate for the said land.
23. In view of the position as stated above, we allow the present appeal
and set aside the impugned order dated 29.10.2014.
(JAYANT NATH)
JUDGE
(CHIEF JUSTICE)
February 03, 2016/ n
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