HIGH COURT OF ORISSA: CUTTACK. O.J.C. No.375 of 1995 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------ Absalam Paik and others ……. Petitioners. -Versus- Collector & District Magistrate, Gajapati and others ……. Opposite Parties For petitioners : M/s A.R. Dash, N. Lenka and N. Das For opp. parties : M/s. G.K. Mishra, G.N. Mishra, K.C. Swain and B.K. Raj (for O.P.4) M/s. P.K. Kar, D.K. Rath & P.K. Sahoo (O.P. 5) PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL ------------------------------------------------------------------------------------------- Date of argument – 14.12.2010 :: Date of judgment - 4.3.2011 ------------------------------------------------------------------------------------------- B.K.PATEL, J. In this application for writ of certiorari, petitioners have assailed legality of order dated 14.12.1994 under Annxure-9 passed by learned Collector, Gajapati dismissing Regulation Appeal No.5 of 1984 preferred by petitioners’ deceased father Durman Paik and directing to enter name of opposite party no.4’s deceased father Buluka Gamango in the ROR in respect of the case land. Regulation Appeal No.5 of 1984 was preferred assailing legality of order dated 30.4.1984 under Annexure-8 passed by learned Officer-on-Special Duty, Parlakhemundi in R.M.C. No.416 of 1971 directing eviction of opposite party no.4’s father from and restoration of the case land to petitioners’ deceased father. 2. R.M.C. No.416 of 1971 appears to have been initiated on the basis of allegations made by late Buluka Gamango under Section 3(2) of Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (for short ‘Regulation 2 of 1956). Opposite parties being members of Lanjia Saora Tribe claim to be belonging to Scheduled Tribe. By orders dated 2.12.1974 and 17.5.1976 it was held that the case land belonged to late Buluka Gamango. However, it was held that Lanjia Saora Tribe is not a Scheduled Tribe. However, the matter was ultimately remanded by the appellate authority for fresh enquiry to ascertain regarding the claim of Buluka Gamango to be a member of Scheduled Tribe and regarding mode of acquisition of possession over the disputed land. On an appraisal of materials on record including oral evidence adduced by the parties learned Special Officer passed the order under Annexure-8 upholding the claim of late Buluka Gamango to be a member of Scheduled Tribe. Considering the materials on record it was held that petitioners’ father late Durman Paik whose name has been recorded in the ROR failed to produce any evidence to establish valid acquisition of the case land which has been recorded in his favour. Learned Special Officer also took note of 2 admission made by late Durman Paik to the effect that he gave up cultivation of the case land after filing of the case by late Buluka Gamango. Order under Annexure-9 has been passed on reappraisal of evidence on record and taking note of the fact that late Durman Paik admitted to have vacated the case land. 3. In course of hearing, it was fairly submitted by the learned counsel for the petitioners that though there was some doubt earlier regarding inclusion of Lanjia Saora among the Scheduled Tribes at present Lanjia Saora has been specifically included under entry 59 by the Constitution (Scheduled Tribes) Amendment Act, 2002, (Act No.10 of 2003). Therefore, it was submitted, dispute between the parties is confined to rival claim of title of the parties over the case land. 4. Case land, which was recorded in the name of petitioners’ father late Durman Paik, has in the meanwhile been recorded in the name of late Buluka Gamango pursuant to orders under Annexures-8 and 9. 5. In assailing the orders under Annexures-8 and 9 it was contended by the learned counsel for the petitioners that there being valid entry of his name in the ROR by the settlement authorities, learned authorities below had no basis to record the finding that the case land belonged to late Buluka Gamango. Finding of the authorities to the effect that Durman Paik illegally possessed the case land on the basis of mortgage without obtaining permission from the competent authority as 3 required under Regulation 2 of 1956 is not supported by acceptable evidence on record. In upholding the claim of late Buluka Gamango over the case land, both the learned Special Officer as well as Collector utterly failed to appreciate presumptive value of the entry in the ROR which has not been rebutted by the tribal claimants. 6. A counter affidavit has been filed by the opposite party no.4. It was contended on behalf of opposite party nos.4 and 5 that authorities below have come to the concurrent finding that case land belonging to tribal land owner was taken on mortgage by petitioners’ father without obtaining permission from competent authority. Such concurrent finding is not amenable to any interference by invoking jurisdiction under Articles 226 and 227 of the Constitution of India. Moreover, in coming to such finding, learned authorities below have placed reliance on the admission in court made by late Durman Paik to the effect that he gave up cultivation of the case land after institution of the present proceeding by late Buluka Gamango. It was further submitted that entry made in the ROR does not create or extinguish title. It is for the non-tribal to establish the claim of valid title and legal possession over the case land. Petitioners having failed to establish their claim of title over the case land, there is absolutely no scope for interference with the orders under Annexures-8 and 9. 7. This writ petition has been described to be an application under Articles 226 and 227 of the Constitution of India. Writ court is not 4 a court of appeal. Nature and scope of exercise of jurisdiction under Articles 226 and 227 of the Constitution of India have been pointed out by the Hon’ble Apex Court in Surya Dev Rai –v- Ram Chander Rai and others : (2003)6 SCC 675. It has been held that 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 of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. On the other hand, supervisory jurisdiction under Article 227 of the Constitution 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 in to exercise its supervisory jurisdiction. 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 fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of 5 law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. 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. The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a court which has jurisdiction over a subject-matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an appellate court and step into reappreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court. 8. In Hari Vishnu Kamath –v- Ahmad Ishaque and others: AIR 1955 S.C.233 it has been held: “With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, 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 6 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 rehear the case on the evidence and substitute its own findings in certiorari.” It has also been pointed out that a writ of certiorari can 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. 9. In the present case, order under Annexure-8 is found to have been passed on an appraisal of materials on record including oral evidence of the witnesses placed by the parties. Learned Special Officer has referred to inconsistencies in the oral evidence of witnesses examined on behalf of the petitioners to hold that their evidence is not convincing and acceptable. The witnesses were not consistent with regard to description of boundary of the suit land. Also no evidence was adduced on behalf of the petitioners indicating the manner in which case land was acquired by late Durman Paik. Durman Paik himself stated that he had reclaimed and developed case land which was a portion of the bed of a stream by putting embankment over the stream. Moreover, late Durman Paik also admitted in evidence that he gave up cultivation of the case land as soon as proceeding under Regulation 2 of 1956 was initiated. Appellate Court also took note of such admission made by late 7 Durman Paik and upheld the finding that the case land belonging to late Buluka Gamango, a tribal was in unauthorized possession of petitioners’ father late Durman Paik. In absence of any error in exercise of jurisdiction by the authorities under Regulation 2 of 1956, there is no scope for interfering with the concurrent finding of fact in exercise of writ jurisdiction. 10. Much emphasis appears to have been placed by the petitioners and their father on documents prepared by settlement authorities including the Record of Rights. It was contended that in course of settlement operation in the year 1973 title of late Durman Paik over the case land was established upon which R.O.R. was recorded in his name. However, yaddast documents prepared by the settlement authorities prior to recording of name of late Durman Paik in the R.O.R. brought to the notice of the Court by the learned counsel for the petitioners in course of hearing also do not indicate the basis of possession over the case land. Case land appears to have been recorded in the name of late Durman Paik on the basis of claim of long possession made before settlement authorities. Learned counsel for the opposite party no.4 has cited decisions of this Court in Krushna Das and others –v- Commissioner, Land Records and Settlement, Orissa, Cuttack and others : 2001(I) OLR 288 and Kishore Chandra Das and another – v- Gouranga Das and others: Vol.62(1986) CLT 322 in this connection. In absence of any valid document establishing late Durman Paik’s title 8 over the case land entry in the R.O.R. is of no help to the petitioners. It is well settled that entries in the settlement records do not ever create or extinguish title. Presumption, if any, arising from the entries made in the settlement records has been rebutted by oral evidence adduced on behalf of tribal land owner. 11. In view of the discussions made above, there appears absolutely no scope to interfere with the orders under Annexures- 8 and 9. There is no merit in the writ petition. Hence, the writ petition is dismissed. ………………….. B.K. Patel, J. Orissa High Court, Cuttack, dated the 4th March, 2011/B. Jhankar 9