WP.5102-91 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 5102 OF 1991 1. Yeshwant Shankar Kulkarni, ) 2. Popat Shankar Kulkarni, ) Both resident of Pimpri, Taluka - ) Koregaon, District – Satara ) ...Petitioners Vs. Shankar Bala Panaskar alias ) Pawar, resident of Pimpri, Taluka - ) Koregaon, District – Satara ) ...Respondent *** Ms. S. M. Dandekar, for the Petitioners. Mr. L. S. Gaikwad, for the Respondent. *** CORAM: V. M. KANADE J. DATE : FEBRUARY 18, 2011 ORAL JUDGMENT : 1. Heard the learned counsel appearing on behalf of the petitioners and respondent. The learned counsel appearing on behalf of the respondent has raised a preliminary objection regarding maintainability of this petition. In support of this submission, he relied WP.5102-91 - 2 - upon the Division Bench judgment of the Apex Court, in the case of – Shalini Shyam Shetty and Anr., Appellants vs. Rajendra Shankar Patil, Respondent [2010(6) Mh.L.J. 661]1. 2. On the other hand, the learned counsel appearing on behalf of the petitioners relied on the judgment of the Apex Court in the case of - Surya Dev Rai, Appellant vs. Ram Chander Rai & Ors, Respondents [(2003) 6 Supreme Court Cases 675]1. The Apex Court in the above has laid-down the parameters for issuance of writ under Article 227 of the Constitution of India. It is submitted that the ratio of the above judgment will prevail. 3. Brief facts are that suit land consisted of two survey numbers being Survey No. 50/1 admeasuring 1 Acre 7 Gunthas and Survey No. 77/3-C admeasuring 1 Acre 2 Gunthas. The original owner of these lands was one Pilubai widow of Krishnaji Sontakke, who was a widow on 1-4-1957. The petitioners’ father was a tenant in respect of the suit lands and his name was shown in the record of rights. 32-G proceedings were initiated in favour of the petitioners for declaring them as deemed purchasers. However, the said proceedings were postponed, since the original landlady Pilubai was a widow. Thereafter on 11-3-1965 1. 2010(6) Mh.L.J. 661 WP.5102-91 - 3 - the landlady Pilubai executed a will in favour of the petitioners. Said Pilubai expired on 1-9-1967. Thereafter inquiry under Section 32-F of the Tenancy Act was initiated in the year 1981 and in the said inquiry it was held that lands were deemed to have been purchased by the respondent. It was further held that though the landlords were minor on 1-4-1957 therefore, purchase by the tenant/respondent herein was wrongly postponed. The said order was confirmed in Appeal by the Sub Divisional Officer, Koregaon and the Appeal was dismissed, and the Revision Application filed by the petitioners was also dismissed. Against the said order passed by the lower authority, the petitioners have filed this petition under Art. 227 of the Constitution of India. 4. During pendency of the petition, the petitioners filed a Civil Application for bringing on record the additional evidence. Copy of the order dated 21-8-1970 passed by the Agricultural Lands Tribunal, and the proceedings under Section 32-G inquiry is annexed to the application. It is submitted that lower authorities have committed error of law which is apparent on the face of record since it proceeded on the assumption that since the petitioners were minors, the proceedings under Section 32-G were postponed. It is, therefore, submitted that the impugned order passed by the authority below is liable to be set aside. WP.5102-91 - 4 - 5. On the other hand, the learned counsel appearing on behalf of the respondent submitted that writ petition is not maintainable, in view of the judgment of the Apex Court in the case of Shalini Shetty (supra). He also submitted that since concurrent finding of fact is recorded by all the three authorities below, this Court should not interfere with the impugned order while exercising powers under Art. 227 of the Constitution of India. It is then submitted that at this stage this Court cannot look into new document, which is sought to be produced by the petitioners and therefore, the Civil Application filed by the petitioners should be rejected. 6. After having heard both the counsel at length, in my view, all the authorities below have committed clear error of law which is apparent on the face of record. Perusal of the order which is produced by the petitioner, under S. 32-G inquiry which was initiated in favour of the petitioners in regard to declaration of tenancy of petitioners indicates that said proceedings were postponed because the original landlady was a widow and therefore, under Section 32-F, said proceedings were postponed. All the lower authorities have ignored this fact though it was pleaded on behalf of the petitioners that the authorities below have wrongly held that 32-G proceedings were postponed because the WP.5102-91 - 5 - petitioners were minors on 1-4-1957. The said finding, therefore, is contrary to the evidence which is on record and therefore, is perverse. The entire order, therefore, proceeds on this assumption and thereafter the authorities have come to the conclusion that the respondents are tenants. It is quite well settled that once the land is occupied by the tenant, it cannot be occupied by another tenant, in view of the provisions of the said Act. In my view, therefore, it would be appropriate if the matter is remanded back to the Tahsildar for making a fresh inquiry under Section 32-F of the Tenancy Act and consider the various documents which are on record. Parties are at liberty to lead additional evidence in support of their contention. The impugned order passed by the authorities below, therefore, is quashed and set aside and the matter is remanded back for fresh inquiry, under Section 32-F before the Tahsildar who shall decide the same on merits and in accordance with the law after giving opportunity to both the parties to lead further evidence. 7. So far as the preliminary objection raised by the learned counsel for the respondent is concerned, in my view, the ratio of the judgment on which the reliance is placed by the learned counsel for the petitioner, will not apply to the facts of the present case. In the said case the arguments which were advanced before the Apex Court was that, WP.5102-91 - 6 - petitions under Art. 227 of the Constitution are filed against the order of the Civil Court and even in dispute between the landlord and tenant. The Apex Court after taking into consideration the relevant provisions of the Bombay High Court (Appellate Side) Rules, 1960 has observed in paragraph 32 as under- “32. No writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution. Therefore, a petition filed under Article 27 of the Constitution cannot be called a writ petition. This is clearly the constitutional position. No rule of any High Court can amend or alter this clear constitutional scheme. In fact the Rules of Bombay High Court have not done that and proceedings under Articles 226 and 227 have been separately dealt with under the said Rules.” 8. The Apex Court thereafter has taken into consideration the High Courts’ powers of superintendence under Article 227 of the Constitution after tracing its origin in the Indian High Courts Act of 1861. It thereafter has traced the history of Article 227 in the Constitutional Bench Judgment in the case of – Waryam Singh & Anr. vs. Amarnath & Anr. [AIR 1954 SC 215]1. Finally the Apex Court after taking into consideration the various judgments delivered by the Apex 1. AIR 1954 SC 215 WP.5102-91 - 7 - Court, has observed in paragraph 82 as under- “This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon’ble High Court will follow the time honoured principles discussed above. Those principles have been formulatged by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhare to them strictly.” 9. The Apex Court, therefore, in its judgment has observed that while entertaining the petition under Article 227, the High Courts should keep in view the ratio of the judgment of the Apex Court on the exercise of power under Art. 227 of the Constitution. There cannot be, therefore, any dispute regarding ratio of the said judgment. The Apex Court in the case of - Surya Dev Rai, Appellant vs. Ram Chander Rai & Ors, Respondents [(2003) 6 Supreme Court Cases 675]1 has laid down the guidelines as to the circumstances under which High Courts should exercise the writ jurisdiction under Art. 227 of the Constitution of India, as under- “12. 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 1. (2003) 6 Supreme Court Cases 675 WP.5102-91 - 8 - purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court. ... 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:- (1) ... ... (5) 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 face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, 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. WP.5102-91 - 9 - (7) 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 abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.” 10. From the observations made by the Apex Court in both WP.5102-91 - 10 - these judgments, it is, therefore, abundantly clear that this Court came to the conclusion that the Tribunal or the Lower Authorities have committed an error of law which is apparent on the face of record, which has resulted in recording a perverse finding, this Court can entertain a petition filed under Article 227 of the Constitution. 11. In the present case, as observed by me hereinabove in an inquiry under Section 32-F, the Tahsildar has erroneously proceeded on the footing that the 32-G proceedings which were initiated in favour of the petitioners were postponed because they were minors. In reality, the record indicates that said inquiry was postponed because the landlady Pilubai was a widow. In my view, therefore, this is a fit case for remanding the matter back to the Tahsildar. Writ petition is, accordingly, allowed in terms of prayer clause (b). The Tahsildar shall expeditiously dispose of the inquiry, in any case within six months. All contentions raised by the parties are kept open. The record and proceedings of the case be sent forthwith. 12. The writ petition is disposed of in above terms. [ V. M. KANADE J.]