Kanwar Nahar Singh vs The Custodian General of Evacuee Property and Others

Shamsher Bahadur, J.—This appeal is directed against the judgment of a Single Judge dismissing the petition for a writ of certiorari preferred by Kanwar Nahar Singh against the Custodian of Evacuee Property.

Nahar Singh appellant purchased a house situated in Jaipur from Mohammad Hamid Hussain for a sum of Rs. 35,000/- and a sale-deed was executed in respect of this transaction on 17th of January 1948. It was recited in the sale deed that a sum of Rs. 5000/- had been received as an advance and the balance of Rs. 30,000/- would be paid at the time of registration of the sale deed. As section 6 of the Jaipur Evacuee (Administration of Evacuee Property) Ordinance No. IV of 1948, promulgated on 12th of March 1948, required all sales by evacuees registered before the 29th of February 1948 to be confirmed by Custodian an application was presented on 13th of April 1948 by the petitioner, Nahar Singh, to the appropriate authority for confirmation. The application, in the first instance, came up before the Deputy Custodian, Jaipur, who forwarded the papers to the Custodian adding his own recommendation that "the sale is fit to be confirmed." No order of the Custodian was passed and subsequently Jaipur became a part of Rajasthan. Ultimately, an order was passed by Mr. Thakur, Deputy Custodian of Rajasthan, on 24th of February 1951 that the transaction being colourable, the sale should not be confirmed. The Deputy Custodian considered the evidence which was produced by the vendee and came to the conclusion that he had failed to establish consideration for the sale. The decision of Mr. Thakur was affirmed in appeal by the Custodian of Rajasthan on 19th of January, 1952. Still feeling aggrieved, the petitioner preferred a revision petition which was dismissed by the Custodian General, Mr. Nawal Kishore, on 11th of September 1952.

A writ petition was then filed in the Rajasthan High Court on 8th of December 1952 but this was withdrawn in December 1956 as it was held by that Court that it had no jurisdiction to issue writs in respect of the orders passed by the Custodian General. Ultimately, the petitioner sought his remedy in this Court and prayed for the issuance of a writ of certiorari under Articles 226 and 227 of the Constitution of India. The learned Single Judge (Bishan Narain J.) having dismissed the writ, the petitioner has come in appeal.

Mr. Gurbachan Singh, the learned counsel for the appellant, has urged that the order of the Deputy Custodian recommending confirmation of sale must be deemed to be a final order inasmuch as he did not require the authority of the Custodian for confirmation of the sale, it is true that clause (a) of section 2 of Ordinance IV of 1948, defines a "Custodian" to mean a Deputy Custodian also: but finality cannot be spelled out from mere recommendation which had been made by the Deputy Custodian. The order has to be upheld or rejected in its entirety. It cannot be said that one part of the order is good and the other bad. Mr. Gurbachan Singh has invited us to hold that the order which the Deputy Custodian recommended the Custodian to pass was the one which he himself was minded to pass and should be regarded as a final order. It was to the Custodian that the papers were sent for final orders and it would not be right to substitute a substantive order for a mere recommendation.

It is next contended that at the time when the sale deed was executed, a confirmation of sale was not required by Custodian. Section 6 of the Ordinance, however, applied to past transactions and for this reason an application was made before the Custodian for confirmation. The order of the Deputy Custodian refusing confirmation has been attacked on the ground that it laid undue emphasis on the requirement in the sale deed that the sale price had to be paid in presence of the Registrar. It is to be borne in mind that the Custodian is empowered to reject an application for confirmation if in his opinion the transaction was not a bona fide one for valuable consideration. The Deputy Custodian was entitled to take into consideration the surrounding circumstances which tended to cast a shadow of suspicion on the transaction. It is idle to contend, as Mr. Gurbachan Singh has done, that the payment before the Registrar of the sum of Rs. 30,000/- was just a purposeless formality.

Lastly, it has been very strenously urged by the learned counsel for the appellant that the decisions of the Deputy Custodian, the Custodian and the Custodian General are contrary to the evidence adduced in the case. All these three authorities have appraised the evidence of the sale deed, the receipt Exhibit P. 2, and other relevant material before coming to the conclusion that the consideration for the sale has not been established. Indeed, the Custodian General stated that "the learned counsel frankly conceded that the payment of consideration could not be said to have been proved on the record as it stood, but contended that on a proper interpretation of the law, prevailing at the time, it was wholly unnecessary to do so." The High Court is not a fact finding tribunal in certiorari proceedings under Article 226 of the Constitution of India. On this aspect of the case, we have the authority of their Lordships of the Supreme Court in Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, . It was held that it is only in case of an error of law apparent on the face of the record that the jurisdiction of the High Court can be invoked in certiorari proceedings. At page 412, it was observed:-

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 ah order of an inferior tribunal on the ground of a mistake of fact apparent on the face of the record.

In the present case, the matter has been fully examined in the first instance by the Deputy Custodian. The Custodian as the appellate authority has reviewed the matter, and has come to the same conclusion as the Deputy Custodian, and finally the Custodian General in the exercise of his revisional power has again gone into the question whether consideration for this transaction had actually passed. The question of fact, which has been agitated by Mr. Gurbachan Singh, is a matter which lies within the peculiar province of those statutory authorities and though a misconstruction of documents may become an error of law apparent on the face of the record, we do not think there is any reason to reach such a conclusion in the circumstances of this case. The error even if it be so, does not provide in the setting of this case a foothold for the exercise of certiorari jurisdiction by this Court.

In our opinion, the decision of the learned Single Judge is correct and this appeal is accordingly dismissed with costs.

Dua, J.

I agree that this appeal fails and the appellant pays the costs of the respondent.

The facts are not in dispute and have been stated by my learned brother in the judgment prepared by him. I would only add a few words and that also merely out of deference to the position at the Bar of the learned counsel for the appellant who in all seriousness contended that this Court is, in proceedings for a writ of certiorari, competent and fully empowered to, and in the interest of justice must, go into the merits of the controversy and to interfere on questions of fact if they are wrongly decided or if they are perverse. To begin with, reliance in support of this contention was placed on rule 9, Chapter 4-F(b), Volume V, Rules & Orders of the Punjab High Court, which provides as follows:-

If cause be shown or answer made upon affidavit putting in issue any material question of fact, the Court may allow oral testimony of witnesses to be taken and for that purpose may adjourn the hearing of the rule to some other date. In such a case either party may obtain summonses to witnesses, and the procedure in all other respects shall be similar to that followed in original causes in the High Court.

It has been submitted that this rule contemplates an enquiry into facts in proceedings under Article 126 of the Constitution for issue of writs of mandamus, prohibition, quo warranto and certiorari which presupposes the existence of power in this Court to investigate into disputed questions of fact. I find it difficult to sustain this contention. Without deciding as to how far this rule has the force of law and thus serves as a basis for such power in this Court, it must be remembered that according to our Constitution the law declared by the Supreme Court is binding on all Courts within the, territory of India. And the Supreme Court having unequivocally laid down the scope of proceedings for writs in the nature of certiorari and the power of High Courts in such proceedings to investigate and adjudicate upon questions of fact, the law so laid down must prevail over any rule made by this Court. In Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, , B.P. Sinha J., (as he then was), who delivered the judgment on behalf of the Bench of rive judges, stated the position in these words:-

The High Court, in its several Judgments and orders, has scrutinised, in great detail, the orders passed by the Excise Authorities under the Act. We have not thought it fit to examine the record or the orders below in any detail, because, in our opinion, it is not the function of the High Court or of this Court to do so. The jurisdiction under Article 226 of the Constitution is limited to seeing that the judicial or quasi judicial tribunals or administrative bodies exercising quasi-judicial powers, do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. The Act has created its own hierarchy of officers and Appellate authorities, as indicated above, to administer the law. So long as those Authorities function within the letter. And spirit of the law, the High Court has no concern with the manner in which those powers have been exercised. In the instant cases, the High Court appears to have gone beyond the limits of its powers under Articles 226 and 227 of the Constitution.

I have as a matter of fact in another case reproduced certain other passages as well from this judgment for arriving at the conclusion that this Court does not under Article 226 of the Constitution interfere with the conclusions of facts of the subordinate tribunals. (See Ram Dass T. Chugani v. Custodian General & others, L.P.A. 57-D of 1958, decided on 25th July, 1960). Nothing has been said at the Bar to induce me to change my opinion. As a matter of fact in a more recent decision of the Supreme Court in the case of Satyanarayan Laxminarayan Hedge and others v. Mallikarjun Bhavnapa Tirumale, Civil Appeal No. 189 of 1955, decided on 25th September, 1959, K.C. Das Gupta J., who prepared the judgment on behalf of the Bench, again summarised the position in the following words:-

The character and scope of writs of certiorari have been dealt with by this Court in some detail in its decision Hari Vishnu Kamath v. Sayed Ahmed Ishaque (1955) I.S.C.R. 1104. After referring to certain earlier decisions of this Court cited therein this Court observed:-

On these authorities, the following propositions may be taken to be established: (1) Certiorari will be issued for correcting errors of jurisdiction, as and when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it, (2) Certiorari will 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 act 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 interior 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 consider 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.

Besides the above three propositions, a fourth proposition as to which there appears to have been some controversy, was also discussed, namely, whether certiorari can be issued when the decision of the inferior Court or Tribunal is erroneous in law. After referring to certain reported decisions, English as well as Indian, the position was thus summarized by this Court at page 1123 as follows:-

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 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 of Chagla. C.J. in Batuk K. Vyas Vs. Surat Borough Municipality and Others, that no error could be said to be apparent oil the face of the record if it was not self-evident, and if it required an examination of 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.

The main question that arises for our consideration in this appeal by special leave granted by this Court is whether there is any error apparent on the face of the record so as to enable the superior Court to call for the records and quash the order by a writ of certiorari or whether the error, if any, was ''a mere error not so apparent on the face of the record'', which can only be corrected by an appeal if an appeal lies at all.

The Counsel then referred us to Kavalappara Kottarathil Kochunni Moopil Nayar Vs. The State of Madras and Others, , in which another Bench of five Judges, while dealing with a petition under Article 32 of the Constitution, rejected the contention that the Supreme Court should decline to entertain an application under Article 32 of the Constitution on the ground that it involved the determination of disputed questions of fact. The counsel before us laid great stress on the fact that this was also a decision of five Judges of the Supreme Court and was given on the 4th of March, 1959, more than a year after the decision in Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, the contention presumably being that the Supreme Court must be deemed to have modified the view expressed in the earlier case. I do not find it possible to sustain this contention. The only point on which the Supreme Court was called upon to express a considered a opinion in Kavalappara Kottarathil Kochunni Moopil Nayar Vs. The State of Madras and Others, was the scope and effect of Article 32 of the Constitution and it is difficult to assume by inferential reasoning that the well considered decisions in a large number of earlier cases which were cited and digested in Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, case were disapproved or dissented from in Kavalappara Kottarathil Kochunni Moopil Nayar Vs. The State of Madras and Others, . It is instructive to note in this connection that the judgment in Satyanarayan Laxminarayan''s case C.A. 189 of 1955 is a still later pronouncement of a Bench of three Judges of the Supreme Court (S.R. Das, C.J. being party to this decision who actually prepared the judgment in Kavalappara Kottarathil Kochunni Moopil Nayar Vs. The State of Madras and Others, having been delivered on 25th September, 1959, in which the earlier decisions holding that disputed questions of fact cannot be gone into by the High Courts on a petition for certiorari, were approved and affirmed. It is well-settled that the Supreme Court does not express any considered opinion on a point which does not call for a decision on the facts of the case before it or which is not strictly necessary for the disposal of the case. But this apart, I find that in Kavalappara Kottarathil Kochunni Moopil Nayar Vs. The State of Madras and Others, itself S.R. Das, C.J., was careful enough to expressly state that they were not called upon, on that occasion, to enter into a discussion or express any opinion as to the jurisdiction and power of the High Courts to entertain and to deal with applications under Article 226 of the Constitution where the disputed questions of fact have to be decided and that the Court preferred to confine its observations to the immediate problem before it in the particular case, namely, the limits of the jurisdiction and power of the Supreme Court when acting under Article 32 of the Constitution. (See page 733, Col. 2 and page 734 Col. 1 of Kavalappara Kottarathil Kochunni Moopil Nayar Vs. The State of Madras and Others, ). I have, therefore, no hesitation in repelling his contention as untenable and without substance.

The Counsel then argued that the sale-deed and the receipt which are on this record, amply establish the bona fide nature of the transaction in his favour and that the departmental officers have erred in their conclusion and that the error is one of law and is apparent on the face of the record. It is also contended that the finding is in any case perverse and that the receipt has been misread. On the basis of this submission it is claimed on behalf of the appellant that the learned Single Judge was in error in not issuing a writ of certiorari as prayed. I do not find it possible to uphold this contention. As is clear from the judgment of the learned Single Judge under appeal, the counsel for the petitioner-appellant limited his arguments there on two points only viz., (1) that the order dated 24th of February, 1949, amounted to confirmation of sale and that this order could not be reviewed subsequently and (2) that further opportunity should have been given to the petitioner by the Custodian General to prove the bona fide nature of the transaction. Both these arguments were repelled by the learned Judge, the first point on the ground that it had not been raised before the departmental authorities before whom the case was only argued on the merits. On the second point the learned Judge came to the conclusion that the Custodian General had held that no useful purpose would be served by allowing the petitioner to lead oral evidence to prove that Rs. 35,000/- had been paid by the petitioner before the Sub Registrar and that this position had, according to the Custodian General, never been taken by the petitioner before the Deputy Custodian or before the Custodian. Indeed before the learned Single Judge it was conceded on behalf of the petitioner-appellant that it was so and that this position had not been taken before the Deputy Custodian or the Custodian. The learned Single Judge in his discussion also felt that it was too late for the petitioner-appellant to revive the old case which he had urged before the Deputy Custodian or the Custodian although the prayer to reopen the case was also refused on the ground that the petitioner had full opportunity to produce his evidence. This being the position, in my opinion, no new point can be permitted to be agitated before us on Letters Patent Appeal and on the two points raised before the learned Single Judge nothing convincing has been said to persuade us that the decision thereon is in any way incorrect or erroneous so as to justify interference on Letters Patent Appeal.

In the light of the above discussion, I agree that this appeal should be dismissed with costs.