2005 Supreme(Bom) 762

IN THE HIGH COURT OF BOMBAY
KISHAN s/o GANPATI MULEY, INDRABAI w/o KISHANRAO MULEY
Versus
ABDUL RAZAK s/o ABDUL KADAR
Decided on 21.6.2005

Headnote:Constitution Of India, 1950 - Article 227 - Scope of Article 227 of Constitution. - Article 227 of Constitution gives High Court power of superintendence over all Courts and Tribunals to meet ends of justice. - Article 227 of the Constitution gives this Court the power of superintendence over all Courts and Tribunals. The supervisory jurisdiction extends to keeping the subordinate Tribunal within the limits of the authority and to see that they obey the law. The power under Article 227 are wide and can be used to meet the ends of justice. A writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law if (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 to provisions of law; (ii) a grave injustice or gross failure of justice has occasioned thereby. Similarly, this Court in dealing with the petitions filed under Article 227 cannot act like Appellate Court, re-appreciate or reevaluate the evidence on record and if such error which is self-evident; even in cases where two views are reasonably possible in the same material, the findings arrived at cannot be called as a patent error. The authorities below, erroneously and ignoring the provisions of Sections 34, 38, 38-E of the Act and Rules 4, 5, 6 of the Rules cancelled/set aside the declaration made in favour of the tenant. As such, viewed the point in right perspective the decision of the authorities that the individual holding of each of the heirs of deceased required to be considered for considering the grant of ownership on the tenant under Section 38-E of the Act, though concurrent need not detain this Court from deciding the petition in favour of the petitioner by upsetting that finding which if allowed to stand will cause great injustice to the tenant and deprive him his valuable right to become owner of the land.

       Hyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 2(r), 34 and 38 - (Added by Bombay Act 32 of 1958) and Section 38-E and Hyderabad Transfer of Ownership Rules 1955, Rules 3 to 7 - Transfer of ownership. - Rights of parties are crystallised when provisional declaration is made for confirmation of ownership of holding under Section 38-E and to transfer of ownership in favour of tenant under statute. - The controversy in the present proceedings is that if the original land-holder died before the notified date whose family holding is to be considered i.e. of the deceased landholder or of his heirs. In the present case, the landlord is admittedly a Mohammedan and on his death all his heirs succeeds to definite shares, thus, whether the holding of each heirs or successors is to be taken into con sideration, while confirming ownerships of the land on the protected tenant, or whether the right accrued to the tenant under the Statute i.e. Section 34 read with Section 38-E of the Act taken away by the fact that the landholder died before the notified date, by entertaining the plea that the holding of each of his (deceased landholder) is to be taken into consideration while confirming ownership on tenant which by operation of Section 38-E is final one.

       Held, that the rights of the parties are crystallised when the provisional declaration is made and the position existed on that day is only relevant, for confirmation of ownership under Section 38-E and to transfer of ownership in favour of the tenant under the statute. The original landlord died on 5th May, 1957 and the notification making the declaration in favour of the tenant was issued on 25th May, 1957 after publication of provisional list by the ALT during the lifetime of the original owner which was not objected by him. The heirs of deceased Mohammedan succeeded to the property of the deceased as per the definite shares prescribed under the Mohammedan Law. Therefore when the provisional declaration was made in favour of the tenant the landlords have no right or share in the property of deceased and the land remained undivided even after 5th May, 1957. Therefore, all the three authorities below have committed patent error appearing on the face of record in holding that the family holding of each of the heirs of deceased is to be taken into consideration, while making a declaration in favour of tenant under Section 38-E of the Act.

       Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 - Section 38-E - Declaration under Section 38-E - Held, is not appealable.

       HYDERABAD TRANSFER OF OWNERSHIP RULES, 1955 - Rules 3 to 7 - Provisional declaration of ownership of tenant. - For purpose of provisional declaration of ownership of tenant, individual notice to parties concerned not necessary.

       Hyderabad Tenancy of Agricultural Lands Act, 1950 - Section 38-E - Ownership to tenant - Transfer of. - Confirmation of ownership under Section 38-E in favour of tenant is proper because tenant’s rights are crystallised because there was no objection filed by land holder in his life time.