2018 Supreme(Ori) 606

IN THE HIGH COURT OF ORISSA
S.K. MISHRA, J.
WRIT PETITION (CIVIL) No. 5098 of 2003
In the matter of an application under Articles 226 and 227 of the Constitution of India.
Decided on 06th July, 2018.
Jhasketan Bhoi (dead) and others … Petitioners
Versus
Krushna Bhoi (dead) and others … Opp.Parties

Headnote:1. ORISSA CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION OF LAND ACT, 1972 - Sec. 9 (3), 36 - Petitioners claimed right, title, interest and possession over the land in question - Hence prayed at the consolidation stage to delete the note of forcible possession of the remarks column under the disputed land in favour of the opposite parties - Consolidation Officer allowed the application filed by the opposite parties declaring their right, title, interest and possession over the disputed land disallowing the claim of the petitioners - Findings confirmed by the Appellate as well as Revisional Authority - Error committed by the Consolidation Officer and confirmed by the Appellate Court and revisional authorities is a patent error which is self-evident - It has been demonstrated without involving any lengthy argument and long drawn process of reasoning - Court is inclined to interfere in the matter - A gross failure of justice would occasion if the lands recorded in the names of ancestors of the petitioners in the Hamid Settlement, in the Settlement of 1947, in Mutation Proceedings of 1951, which has been held to be ceiling lands of the petitioners family in an O.L.R. Proceeding and for acquisition of portion of such land the petitioners have received compensation are allowed to be recorded in the names of opposite parties on the basis of three unregistered sale deeds, one of which has not been filed before the learned Consolidation Officer, which never saw the light of the day for almost sixty two years - Orders cannot be sustained - Writ application allowed on contest - Annexures - 1 to 3 quashed.

        2. CONSTITUTION OF INDIA, 1950 - Art. 226 - A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals, these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as result of failure to exercise jurisdiction - Further stated.

        A writ can similarly be issued wherein exercise of jurisdiction conferred upon it, the Court or Tribunal acted illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. The Hon’ble Supreme Court further laid down that there is however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court can exercise it is not entitled to act as an appellate Court. This limitation necessarily means that findings of facts reached by the inferior Court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ jurisdiction. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. (Para - 12)

        3. CONSTITUTION OF INDIA, 1950 - Art. 227 - Supervisory jurisdiction is exercised for keeping the Subordinate Courts within the bounds of their jurisdiction - When a 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 into exercise its supervisory jurisdiction.

        The Hon’ble Supreme Court further held that be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact 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.

        The Hon’ble Supreme Court defines a patent error as an error which is self-evidence 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.

        The Hon’ble Supreme Court held that 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 above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court. (Para - 13)

        4. (INDIAN) EVIDENCE ACT, 1872 - Sec. 90 - When a document is purportedly to be more than thirty years old, if it be produced from what the Court considers to be proper custody, it may be presumed (a) that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and (b) that it was duly executed and attested by the person by whom it purports to be executed and attested - Thirty year old document produced from proper custody, not looking exfacie suspicious, presumption could be drawn in favour of proper execution of the document - It is not necessary that the signatures of the attesting witnesses or of the scribe be proved; if everything was proved there would be no need to presume anything - There can, however, be no presumption as to who is the person, who executed the document was and what authority he had to execute the document, and whether he had the requisite authority, or whether the contents of the documents are true. (Para -15)

        5. TRANSFER OF PROPERTY ACT, 1882 - Sec. 54 - Sale - Any land or immovable properties can be sold without registration of the same, if the same is of the value of Rs.100/- or less to which Indian Registration Act applies if the same is accompanied by delivery of possession. (Para -17)