WP/3558/1995 of Sri. V.Annapurnamma, Vs Government of Andhra Pradesh, on 30 December 2005

Facts

This petition is directed against order dated 21.12.1994passed by Commissioner of Land Reforms & Urban Land Ceilings,Nampally, Hyderabad (hereinafter described as ‘the Commissioner’)whereby he dismissed the appeal filed by the petitioner underSection 33 of the Urban Land (Ceiling and Regulation) Act, 1976 (forshort, ‘the Act’).

The factual matrix of the case lie in a narrow compass.

After coming into force of the Act, the petitioner fileddeclaration in the prescribed form. By an order dated 31.10.1985passed under Section 8(4) of the Act, the competent authoritydecided the surplus area case of the petitioner and held that 1051.80square metres of land was excess. The petitioner challenged thatorder by filing an appeal under Section 33 of the Act. She pleadedthat the property in question was joint family property purchased outof the contributions made by all members of the family and that shewas only a benami holder. She further pleaded that her major sonsshould have been treated as independent units and given theirindependent share.

The appeal of the petitioner was dismissed by theCommissioner vide his order dated 21-12-1994, the relevant portionof which is reproduced below:

“The properties declared by the appellant were admittedly acquiredin her name. No mention has been made in the statement filed underSection 6(1) of the Act about interest of any family members or the jointfamily nature of the properties, though there are specific columns (as inAnnexure-A) prescribed for indicating the same therein. It is however,contended that the properties were acquired by the joint efforts of thedeclarant/appellant and her son and daughter who, it is stated, weremajors on the date of filing of the declaration. No doubt a propertyacquired in the name of a family member can be, by proper evidence ofthe source of funds applied in such acquisition, claimed/proved as thejoint family property in which all the coparceners would have a share. Butit is essentially a question of fact that requires to be proved by evidenceas to the application of the joint family funds in the acquisition of theproperty. The appellants, it appears from the sale deeds in her favour,was working as teacher. The source of income of her son and daughterby way of employment, inheritance or otherwise is not even indicated, let alone supported by any evidence, anywhere in the averments before theCompetent Authority or in this appeal. Thus, in the absence of any suchevidence, there is no reason to interfere with the finding of theCompetent Authority, computing the properties under appeal to theholding of the appellant. The question of any share to the major son,therefore, does not arise. The contention as to non-inclusion of a H.U.F.in the definition of person under Section 2(i) also, therefore, is not of anyrelevance. The various decisions of the Courts cited by the learnedcounsel for the appellant, in the circumstances, have no application tothe facts of this case”.

Sri M.V.R. Narasimha Charya, learned counsel for thepetitioner argued that the finding recorded by the Commissionerabout the status of the property which became subject matter ofproceedings under the Act is perverse in as much as it is not basedon any evidence. He then argued that failure of the Commissioner totake into consideration the affidavits filed by the petitioner in supportof her case that the property in question is joint family property shouldbe treated as sufficient ground for grant of a declaration that theappellate order is vitiated by error of law apparent on the face of therecord. Another argument of the learned counsel is that thecompetent authority as well as the Commissioner committed aserious illegality by deciding the surplus area case of his clientignoring the fact that application dated 9.12.1977 filed by her underSection 20(1) of the Act for grant of exemption was not decided andwas kept pending till the decision of the appeal.

The learned Government Pleader supported the order ofthe Commissioner and argued that in exercise of power under Article226 of the Constitution of India the High Court cannot sit in appealover the finding recorded by the competent authority and theCommissioner regarding the status of the property. LearnedGovernment Pleader emphasized that the petitioner did not produceany evidence before the competent authority to prove that theproperty in question was joint family property and argued that in theabsence of such evidence, the competent authority and theCommissioner did not commit any illegality in determining the surplus area case of the appellant by treating the property in question as herown property. Learned Government Pleader countered the argumentof Sri Narsimha Charya on the issue of pendency of application dated9.12.1977 filed by the petitioner by arguing that no such plea hadbeen taken by the petitioner either before the competent authority orbefore the Commissioner and even in this petition she has not madea prayer for issuance of a mandamus for decision of that application.

I have thoughtfully considered the respective argumentsand carefully scanned the record. The parameters for exercise of theHigh Court’s power to issue a writ of certiorari are well defined by theSupreme Court. In Syed Yakoob v. K.S. Radhakrishnan theSupreme Court held as under:

“A writ of certiorari can be issued for correcting errors ofjurisdiction committed by inferior courts or tribunals: these are caseswhere orders are passed by inferior courts or tribunals withoutjurisdiction, or is in excess of it, or as a result of failure to exercisejurisdiction. A writ can similarly be issued where in exercise ofjurisdiction conferred on it, the Court or Tribunal acts illegally or properly,as for instance, it decides a question without giving an opportunity, beheard to the party affected by the order, or where the procedure adoptedin dealing with the dispute is opposed to principles of natural justice.

The jurisdiction of High Court to issue a writ of certiorari is asupervisory jurisdiction and the Court exercising it is not entitled to actas an appellate Court. This limitation necessarily means that findings offact reached by the inferior Court or Tribunal as result of the appreciationof evidence cannot be reopened or questioned in writ proceedings. Anerror of law which is apparent on the face of the record can be correctedby a writ, but not an error of fact, however grave it may appear to be. Inregard to a finding of fact recorded by the Tribunal, a writ of certiorarican be issued if it is shown that in recording the said finding, the Tribunalhad erroneously refused to admit admissible and material evidence, orhad erroneously admitted inadmissible evidence which has influencedthe impugned finding. Similarly, if a finding of fact is based on noevidence, that would be regarded as an error of law which can becorrected by a writ of certiorari”.

I n Surya Dev Rai v. Ram Chander Rai the Supreme Court noted the history of the development of High Court’s jurisdiction toissue writs, orders or directions under Articles 226 and 227 of theConstitution of India and laid down the following propositions:

1. The power to issue a writ of certiorari and the supervisoryjurisdiction are to be exercised sparingly and only in appropriatecases where the judicial conscience of the High Court dictates itto act lest a gross failure of justice or grave injustice shouldoccasion. Care, caution and circumspection need to beexercised, when any of the abovesaid two jurisdictions is soughtto be invoked during the pendency of any suit or proceedings ina subordinate court and the error though calling for correction isyet capable of being corrected at the conclusion of theproceedings in an appeal or revision preferred thereagainst andentertaining a petition invoking certiorari or supervisoryjurisdiction of the High Court would obstruct the smooth flowand/or early disposal of the suit or proceedings. The High Courtmay feel inclined to intervene where the error is such, as, if notcorrected at that very moment, may become incapable ofcorrection at a later stage and refusal to intervene would resultin travesty of justice or where such refusal itself would result inprolonging of the lis.jurisdiction are to be exercised sparingly and only in appropriatecases where the judicial conscience of the High Court dictates itto act lest a gross failure of justice or grave injustice shouldoccasion. Care, caution and circumspection need to beexercised, when any of the abovesaid two jurisdictions is soughtto be invoked during the pendency of any suit or proceedings ina subordinate court and the error though calling for correction isyet capable of being corrected at the conclusion of theproceedings in an appeal or revision preferred thereagainst andentertaining a petition invoking certiorari or supervisoryjurisdiction of the High Court would obstruct the smooth flowand/or early disposal of the suit or proceedings. The High Courtmay feel inclined to intervene where the error is such, as, if notcorrected at that very moment, may become incapable ofcorrection at a later stage and refusal to intervene would resultin travesty of justice or where such refusal itself would result inprolonging of the lis.

2. The High Court in exercise of certiorari or supervisory jurisdictionwill not convert itself into a court of appeal and indulge inreappreciation or evaluation of evidence or correct errors indrawing inferences or correct errors of mere formal or technicalcharacter.will not convert itself into a court of appeal and indulge inreappreciation or evaluation of evidence or correct errors indrawing inferences or correct errors of mere formal or technicalcharacter.

3. In practice, the parameters for exercising jurisdiction to issue a writof certiorari and those calling for exercise of supervisoryjurisdiction are almost similar and the width of jurisdictionexercised by the High Courts in India unlike English courts hasalmost obliterated the distinction between the two jurisdictions.While exercising jurisdiction to issue a writ of certiorari, the HighCourt may annul or set aside the act, order or proceedings ofthe subordinate courts but cannot substitute its own decision inplace thereof. In exercise of supervisory jurisdiction the HighCourt may not only give suitable directions so as to guide thesubordinate court as to the manner in which it would act orproceed thereafter or afresh, the High Court may in appropriatecases itself make an order in super session or substitution ofthe order of the subordinate court as the court should havemade in the facts and circumstances of the case.of certiorari and those calling for exercise of supervisoryjurisdiction are almost similar and the width of jurisdictionexercised by the High Courts in India unlike English courts hasalmost obliterated the distinction between the two jurisdictions.While exercising jurisdiction to issue a writ of certiorari, the HighCourt may annul or set aside the act, order or proceedings ofthe subordinate courts but cannot substitute its own decision inplace thereof. In exercise of supervisory jurisdiction the HighCourt may not only give suitable directions so as to guide thesubordinate court as to the manner in which it would act orproceed thereafter or afresh, the High Court may in appropriatecases itself make an order in super session or substitution ofthe order of the subordinate court as the court should havemade in the facts and circumstances of the case.

4The parameters for exercise of jurisdiction under Articles 226 or

4The parameters for exercise of jurisdiction under Articles 226 or

4. The parameters for exercise of jurisdiction under Articles 226 or227 of the Constitution cannot be tied down in a strait-jacketformula or rigid rules. Not less than often, the High Court wouldbe faced with a dilemma. If it intervenes in pending proceedingsthere is bound to be delay in termination of proceedings. If itdoes not intervene, the error of the moment may earn immunityfrom correction. The facts and circumstances of a given casemay make it more appropriate for the High Court to exerciseself-restraint and not to intervene because the error ofjurisdiction though committed is yet capable of being taken careof and corrected at a later stage and the wrong done, if any,would be set right and rights and equities adjusted in appeal orrevision preferred at the conclusion of the proceedings. Butthere may be cases where “a stitch in time would save nine”. Atthe end, we may sum up by saying that the power is there butthe exercise is discretionary which will be governed solely bythe dictates of judicial conscience enriched by judicialexperience and practical wisdom of the judge.227 of the Constitution cannot be tied down in a strait-jacketformula or rigid rules. Not less than often, the High Court wouldbe faced with a dilemma. If it intervenes in pending proceedingsthere is bound to be delay in termination of proceedings. If itdoes not intervene, the error of the moment may earn immunityfrom correction. The facts and circumstances of a given casemay make it more appropriate for the High Court to exerciseself-restraint and not to intervene because the error ofjurisdiction though committed is yet capable of being taken careof and corrected at a later stage and the wrong done, if any,would be set right and rights and equities adjusted in appeal orrevision preferred at the conclusion of the proceedings. Butthere may be cases where “a stitch in time would save nine”. Atthe end, we may sum up by saying that the power is there butthe exercise is discretionary which will be governed solely bythe dictates of judicial conscience enriched by judicialexperience and practical wisdom of the judge.

If the petitioner’s case is examined in the light of thelimited scope of the High Court’s power of judicial review in suchmatters, it is not possible to hold that the order impugned in the writpetition is vitiated by an error of law. The petitioner’s assertion that theCommissioner had rejected her plea regarding the status of theproperty in question without taking into account the affidavits filed byher is totally devoid of substance because no material has beenplaced on record of this writ petition to show that the petitioner hadfiled affidavits to substantiate her claim that the property whichbecame subject matter of surplus area case was joint family property.In the course of hearing, I repeatedly asked the learned counsel toshow the affidavits which are said to have been field by his clientbefore the Commissioner, but he could not draw my attention to anysuch affidavits.

In my view, the petitioner’s failure to produce evidencebefore the Commissioner to show that the property in question wasjoint family property is more than sufficient to negate her plea that thefinding recorded regarding the status of the property is vitiated by anerror of law.

The question whether the property which was declaredsurplus by the competent authority was part and parcel of the jointfamily property is a pure question of fact which can be decided onlyon the basis of evidence produced by the parties. The burden toprove that the land was joint family property squarely lay on thepetitioner and, as she failed to adduce primary evidence tosubstantiate the same, the Commissioner had no option but to rejecther claim.

The submission of Sri Narsimha Charya that thecompetent authority was duty bound to decide application dated 9-12-1977 filed by the petitioner under Section 20 (1) of the Act forgrant of exemption and even at this stage the Court may issue a writof mandamus for that purpose sounds attractive, but lacks merit. Thepetitioner is not shown to have raised this plea either before thecompetent authority or before the Commissioner and no such prayerhas been made in the writ petition. Therefore, after a gap of almost 28years from the date of filing of the application, I do not find any validground to entertain the oral prayer made by the learned counsel.

There is another reason for refusing relief to thepetitioner. For the reasons best known to her, the petitioner has notchallenged order dated 31-10-1985 passed by the competentauthority for determination of her surplus area. Therefore, even if theappellate order is to be quashed, no effective relief can be given tothe petitioner.

No other point has been argued.

In the result, the writ petition is dismissed.

December 30, 2005.

G.S. SINGHVI, CJ