Hukam Singh and Others vs Mst. Indri and Others

K.V. Gopalakrishnan Nair, J.—The Petitioners seek to get the order of the Custodian General dated 23-4-1958 quashed by certiorari and

to restore the order of the Provincial Rehabilitation Officer Jammu dated 14-7-1956. The salient facts of the case may briefly be stated.

Hari Chand, deceased husband of Respondents 1 and 2 was allotted an extent of land measuring 13 kanals and 5 marlas in village Bhore.

According to the affidavit of Respondents 1 and 2 this allotment was made in Maghar 2005 (1948/49). Subsequently 29 kanals and 13 marlas of

land in village Arnia was allotted to him in 2011 (Bikrami) and he took possession of it in March, 1935.

The Petitioners who are some of the displaced persons who have been allotted land in the Bhore village complained to the Provincial Rehabilitation

Officer Jammu some time in January 1956 that Hari Chand has obtained double allotment and that the allotment to him in Bhore village may be

cancelled. Meanwhile, Hari Chand informed the Asstt, Custodian at R.S. Pura that he was willing to give up the land allotted to him in Arnia

village. This request of Hari Chand was duly forwarded to the Provincial Rehabilitation Officer who on 3-3-1956 issued an order cancelling the

Arnia allotment in favour of Hari Chand.

This order enabled Harichand to retain the land allotted to him in the Bhore village. But the Petitioners did not rest content and they continued to

agitate the question of cancelling the allotment in favour of Hari Chand in Bhore village. They, petitioned the Provincial Rehabilitation Officer again.

Consequently by an order issued by the Provincial Rehabilitation Officer on 14-7-1956 the allotment in favour of Hari Chand in the Bhore village

was cancelled and that in the Arnia village was regularized.

Hari Chand preferred an appeal to the. Dy. Custodian General on 25-8-1956. The appeal was allowed on 12-6-1957 and Hari Chand was held

entitled to retain the land allotted to him in Bhore village. The allotment in Arnia village was cancelled. The Petitioners made an unsuccessful

application for review before the Dy. Custodian General, Thereafter they moved the Custodian General for setting aside the order of the Dy.

Custodian General. Here also they failed.

The Custodian General by his order dated 23-4-1958 dismissed the application of the Petitioners and confirmed the order of the Dy. Custodian

General dated 12-6-1957. The Petitioners have now moved this Court in certiorari for quashing the order of the Custodian General dated 23-4-

1958 and restoring that of the Provincial Rehabilitation Officer issued on 14-7-1956.

The Custodian General is the third Respondent. The Respondents contend that the writ petition is mis-conceived that the order complained of is

not amenable to certiorari that the orders passed by the Dy. Custodian General and the Custodian General were just and proper and that the

application for writ is devoid of merit. They also contend that the application is not maintainable be cause the order challenged is a pre-constitution

order.

We shall first dispose of the objection that the writ petition is not competent because it is directed against a pre-constitution order. The argument

on behalf of the Respondents is that writ jurisdiction was conferred on this Court only by Article 103 of the State Constitution which came into

force on 26th January, 1957. There is admittedly no question in this case of any fundamental right so as to attract the provisions of Article 32 of the

Constitution of India as applied to the State by the president's Order of 1954.

The authority of this Court to issue the writ is therefore confined to Section 103 of the State Constitution. This section has no retrospective

operation. It can be invoked only to deal with matters which arose subsequent to its coming into force, that is to say, on and after 26-1-1957. No

writ can therefore issue in the instant case. Reliance is placed upon the decision of the Supreme Court in the State of U.P. v. Mohd. Nooh AIR

1958 SC 86.

The learned Counsel for the Petitioners has Vigorously urged that the decision of the Supreme Court in Mohd. Nooh's case AIR 1958 SC 86,

has no application here and that the argument of the Respondents purporting to base upon that ruling is fallacious-. We are inclined to agree with

the contention of the Petitioners' learned Counsel on this point. In AIR 1958 SC 86 the order of dismissal of the Head Constable was made much

before the Constitution came into force.

An appeal and a revision preferred by the aggrieved officer against the pre-constitution order of his dismissal proved unsuccessful. This

circumstance only served to emphasize the fact that the effective order against him was the one passed prior to the coming into force of the

Constitution. The operation of that order was in. no way suspended or affected by the appeal and the revision preferred by the aggrieved officer.

On the facts of that case it is abundantly clear that it was the pre-constitution order of dismissal which really aggrieved the officer concerned.

What is of importance to note is that the Supreme Court held against the aggrieved officer not because disciplinary proceedings against him had

been started before the date of the commencement of the Constitution, but because the order of dismissal against him was passed before that date.

It cannot be doubted that if the order which is sought to be challenged by way of writ is a pre-constitution order, the subsequently conferred writ

jurisdiction cannot successfully be invoked to quash that order.

But in the instant case, the order which is challenged by the Petitioners was passed much after 26-1-1957 when the State Constitution came into

force. It is not at all material whether the facts which led to the proceedings which culminated in that order had occurred before the commencement

of the Constitution, nor would it matter even if the proceedings had started before the commencement of the Constitution. The crucial fact to

ascertain is when was the effective order which really prejudiced the Petitioners passed?

If that order was passed before the Commencement of the Constitution, the Petitioners cannot invoke Article 226 (Section 103 of the State

Constitution) to quash it. But if that order was passed after the Constitution came into force, although the proceedings might have been pending

from a date prior to the commencement of the Constitution, that order will not be a pre-constitution order but a post-constitution order which can

legitimately attract the writ jurisdiction conferred on the High Court by the Constitution.

Applying this test to the facts of the present case, it clearly emerges that the Provincial Rehabilitation Officer had issued an order on 14-7-56

cancelling the allotment in favour of Hari Chand in the Bhore village. That order was favourable to the Petitioners. It was only when the Dy.

Custodian General by his order dated 12-6-1957 set aside the order of the Provincial Rehabilitation Officer that the Petitioners felt aggrieved.

Thereupon, the Custodian General was moved but he on 23-4-1958 confirmed the order of the Dy. Custodian General.

It cannot, therefore, be said that the order with which the Petitioners were aggrieved was in any sense a pre-Constitution order. As we have

already pointed out, it is immaterial whether the proceedings had commenced even before the Constitution had come into force. What is crucial is

the date of the order which in truth and effect prejudiced the Petitioners. That order in the present case was made after the Constitution came into

force and, therefore, the objection that the writ is not competent because it relates to a pre-Constitution matter is untenable.

The next point for consideration is whether a writ of certiorari can properly be issued in the present case. The nature of the powers of the High

Court to issue a writ of certiorari and the grounds on which it can be issued have been authoritatively pointed out in several decisions of the

Supreme Court and also in the decisions of English Courts. In Veerappa Pillai Vs. Raman and Raman Ltd. and Others, it was pointed out;

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 decisions impugned and decide what is the pro. per view to be taken or

the order to be made.

In T.C. Basappa Vs. T. Nagappa and Another, , the Supreme Court again examined at length the principles governing the exercise of certiorari

jurisdiction. ""One of the fundamental principles in regard to the issuing of a writ of certiorari', is that the writ can be availed of only to remove or

adjudicate on the validity of judicial acts....

The second essential feature of a writ of ""certiorari"" is that the control which is exercised through it over judicial or quasi-judicial tribunal's or

bodies is not in an appellate but supervisory capacity. 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....

The supervision of the superior court exercised through writs of 'certiorari' goes on two points, as has been expressed by Lord Sumner in King v.

Nat Bell Liquors Ltd. (1922) 2 AC 128 at p. 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; these two heads normally cover all the grounds on which a writ of 'certiorari' could be

demanded....

An error in the decision or determination itself may also be amenable to a writ of 'certiorari' but it must be a manifest error apparent on the face of

the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words it is a patent error which can be

corrected by 'certiorari' but not a mere wrong decision.

The essential features of the remedy by way of 'certiorari have been lucidly though briefly stated by Morris L.J., in Rex v. Northumberland

Compensation Appellate Tribunal 1952 1 KB 338 at p. 357, as follows:

It is plain that 'certiorari' will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for re-hearing of

the issue raised in the proceedings. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of

or excess of jurisdiction when shows.

In Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, , a Full Bench of the Supreme Court pointed out the character and scope of a

writ of 'certiorari' and the conditions under which it could be issued. The following four propositions were laid down by the Supreme Court in that

case:

(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

juris- diction 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 finding in 'certiorari.

Regarding the fourth proposition the Supreme Court observed as follows.:

The further question on which there has been some controversy is whether a writ can be issued, when the decision of the inferior court or Tribunal

is erroneous in law.

After discussing the several English and Indian decisions bearing on 1he point the conclusion is set out in the following words at page 244:

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 latest decision of the Supreme Court on the subject is in Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and

Appeals, Assam and Others, , where His Lordship Mr. Justice Sinha observed at p. 412:

It is clear from an examination of the authorities of this Court as also of the courts in England, that one of the grounds on which the jurisdiction of

the High Court on certiorari may be invoked, is an error of law apparent on the face of the record and not every error either of law or fact which

can be corrected by a superior court, in exercise of its statutory powers as a court of appeal or revision.

So far as we know, it has never been contended before this Court that an error of fact, even though apparent on the face of the record, could be a

ground for interference by the court exercising its writ jurisdiction. No ruling was brought to our notice in support of the proposition that the court

exercising its powers under Article 226 of the Constitution, could quash an order of an inferior tribunal, on the ground of a mistake of fact apparent

on the face of the record.

But the question still remains as to what is the legal import of the expression 'error of law apparent on the face of the record.' Is it every error of

law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned? This court, as observed above, has settled the law

in this respect by laying down that in order to attract such jurisdiction it is essential that the error should be something more than mere error of law;

that it must be one which is manifest on the face of the record.

In this respect the law in India and the law in England are, therefore, the same. It is also clear, on an examination of all the authorities of this Court

and those in England, referred to above, as also those considered in the several judgments of this Court, that the common-law writ, now called

order of certiorari which was also adopted by our Constitution, is not meant to take the place of an appeal where the statute does not confer a

right of appeal.

Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction, or has not proceeded

in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will

not be sufficient to attract this extraordinary jurisdiction.

We may also notice with advantage another decision of the Supreme Court in Prem Singh and Others Vs. Deputy Custodian General, Evacuee

Property and Others, , where the learned Chief Justice at pp. 809, 810, indicated in the following words the import of an error apparent on the

face of the record which would justify interference on certiorari

The errors pointed out, if they are errors at all, are mostly errors of fact and even if the errors may by any stretch of argument be said to constitute

errors of law, they are nothing more than mere errors of law, which may be corrected by a court of appeal, but which do not render the order

speaking order"" showing a clear ignorance or disregard of the provisions of the law, so as to be amenable to correction by a writ of certiorari.

There is in our opinion, no substance in this contention.

Having set out the true scope and nature of a writ of certiorari, and the grounds on which it can properly issue, we have now to see whether such a

writ can issue in the present case. The main point urged by the Petitioner's learned Counsel was that the Dy. Custodian General as well as the

Custodian General did not exercise their discretion properly in allowing the Respondents to retain in the land allotted to them in the Bhore village.

This attack on the exercise of discretion is entirely based on facts.

The manner in which Hari Chand, the late husband of the Respondents, obtained allotment of the land in two different villages, was specially

stressed to show that no discretion in favour of Hari Chand should have been exercised. In this connexion our attention was also drawn to para 12

of Cabinet Order No. 578-C under which the authorities are given power to cancel both the allotments in case a double allotment obtained by a

displaced person is suppressed by him.

But this paragraph does not make it obligatory upon the authorities to cancel both the allotments. It is a matter resting with their discretion. Further

more, Hari Chand himself had brought to the notice of the Provincial Rehabilitation Officer that the allotment of land made in Arnia village in his

favour may be cancelled. What was the motive which actuated Hari Chand to take this step, it is not necessary for us to ascertain.

Whether the conduct of Hari Chand deserved cancellation of the entire land allotted to him or not is left by the relevant rules to the determination of

the concerned authorities. And the mere circumstance that those authorities exercised their discretion in one way and not in another way or that

they reached one conclusion and not the other on their own appreciation of the facts of the case is surely not a ground for interfering on certiorari.

A Faint attempt was made to suggest that under the rules embodied in Cabinet Order 578-C of 1954 no allotment at all could have been made

to Hari Chand. But this point was not seriously pressed before us, and rightly so. Even the order of the Custodian General dated 23-4-1958 which

is impugned in these proceedings has clearly stated ""it is not disputed that the non-applicants are entitled to allotment under rules.

Not even the slightest attempt has been made to show that this statement in the Custodian General's order is in any manner incorrect. It is not open

to the Petitioners to adopt an entirely different stand before this Court in writ proceedings. What is even more important is that there is nothing in

the rules which precluded land being allotted to Hari Chand. It appears that the first allotment in Bhore village was made in his favour in Maghar

2005, i.e., some years before the coming into force of the rules embodied in Cabinet Order 578-C of 1954 on which reliance is placed by the

Petitioners.

It is common ground that these rules came into force only on 7-5-1954. Even these rules did by necessary implication confirm the allotments

previously made. They, however, provided against double allotments and against continuance of allotments of lands in excess of prescribed areas.

It is not disputed that the extent of the land allotted to Hari Chand in Bhore village does not exceed the prescribed quota fixed by the rules.

Thus there appears no good ground for saying that Hari Chand was not entitled to any allotment at all. It is also well to remember that the

Petitioners themselves conceded that the allotments in favour of Hari Chand in Arnia village may be allowed to stand. If this were so, one finds no

reason why the allotment in the Bhore village should not he allowed to stand instead of that in Arnia village.

Another attempt on behalf of the Petitioners was to show that the Custodian General had no jurisdiction to pass the order dated 23-4-1958.

But it was the Petitioners themselves who moved the Custodian General, and got an adverse order. It is not, therefore, open to them to challenge

the jurisdiction of the Custodian General to pass that order. It is obvious that the Petitioners banked on the possibility of the Custodian General

passing an order in their favour.

With such a possible contingency in view, they moved him and put forward their case before him as strongly as they could. But it eventually

transpired that the order of the Custodian General went against them. Therefore, they have now attempted to get rid of it by saying that under the

provisions of the Evacuee Property Act the Custodian General had no power to hear a revision against the order of the Dy. Custodian General,

whose powers are concurrent with those of the Custodian General. -

It is not necessary in this case to decide whether or not the Custodian General is empowered under the Act to revise the orders of the Dy.

Custodian General. It is clear that the Petitioners having themselves invoked the jurisdiction of the Custodian General, cannot, when they find that

his order is not in their favour; challenge its validity on the ground that he had no jurisdiction.

In a case where a person submits to the jurisdiction of a Subordinate Tribunal without objecting to its jurisdiction he cannot be heard to urge in

certiorari proceedings that the subordinate Tribunal had no jurisdiction, except perhaps where it is shown by his affidavit that he had no knowledge

of the facts which constituted the defect of jurisdiction of the subordinate tribunal. This position is well settled. Please see Lachmanan Chettiar v.

Commr. Corporation of Madras AIR 1927 Mad 130; Gandhinagar Motor Transport Society Vs. State of Bombay, and Pannalal Binjraj Vs.

Union of india (UOI), at p. 412.

The principle of these decisions applies a fortiori, where the Petitioner himself moved the subordinate tribunal and invited it to adjudicate upon his

grievance. In the case on hand even if we Hold that the order of the Custodian General is without jurisdiction, the Petitioners cannot succeed,

because that would leave intact the order of Dy. Custodian General which is to the same effect as that of the Custodian General. The order of the

Custodian General confirming the order of the Dy. Custodian General will in that case be treated as a mere surplusage.

There is absolutely no valid ground for holding that the order of the Dy. Custodian General is bad and is liable to be quashed in certiorari.

Therefore, the argument relating to lack of jurisdiction on the part of the Custodian General does not avail the Petitioners from any point of view.

The facts of the present case do not disclose any valid ground or show a legitimate occasion for issuing a writ of certiorari.

We may also point out that even if there be some technical error of law or formal defect of jurisdiction in a given case, we are not bound to

issue a writ of certiorari unless we are satisfied that the interests of justice demand the granting of such a writ. We may in this connection refer to

the following observations of the Supreme Court in; Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, , at p. 429:

That, however is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not act as

Courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be

exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise

jurisdiction in this class of case unless substantial injustice has ensured, or is likely to ensure.

To the same effect is the decision in A.M. Allison Vs. B.L. Sen, , where Bhagwati J., stated:

Proceedings by way of certiorari are ""not of course"" (Vide Halsbury's 'Laws of England', Hailsham Ed. Vol. 9, paras 1480 and 1481, pp. 877,

878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in these appeals which

are directed against the orders of High Court in application under Article 226, we could refuse to interfere unless we are satisfied that the justice of

the case requires it.

We have at an earlier part of this judgment cited the decision in Veerappa Pillai Vs. Raman and Raman Ltd. and Others, , where their

Lordships of the Supreme Court have clearly stated that a writ will issue only ""when such act, omission, error or excess has resulted in manifest

injustice.

Both the Dy. Custodian General and the Custodian General have pointed out in their orders that justice requires that the land in Bhore village

should be allowed to be retained by the Respondents because they have construed houses on that land and have been residing there long enough.

The interests of justice do not require that we should interfere; on the other hand if we interfere as asked for by the Petitioners substantial injustice

will ensue to the Respondents. This is an added reason and a weighty one at that for not allowing the petition.

In view of the foregoing the petition is dismissed with costs. One set Advocates fee Rs. 50/ -.

J.N. Wazir, C.J.

I agree.