Gani Dar vs The Financial Commissioner and Others

J.N. Bhat, J.—This is a writ petition by one Grni Dar with the prayer that the order of the Financial Commissioner dated 30-7-63 be

quashed by means of a proper writ.

The case of the Petitioner is that he was appointed, Lumberdar of the village Sriwaripura Tehsil Baraniulla by nomination by the Tehsildar

Bararnulla under the Lambardari Rules. This order of the Tehsildar was confirmed by the Dy. Commissioner Bararnulla. An appeal was filed by

Respondent 2 Qadir Dar before the Revenue Commissioner who by his order dated 3-4-63 upheld the order of the Dy. Commissioner. A revision

was filed against this order of the Commissioner by Respondent No. 2 Qidir Dar before the Financial Commissioner who by means of his order

which is' the subject-matter of the present writ petition, reversed the findings of the subordinate revenue officers and ordered a new nomination.

According to the Petitioner this order of the Financial Commissioner is violative of the Lumberdari Rules as well as the principles of natural justice.

It is further stated by the Petitioner that the subordinate revenue-officers had decided the mutter correctly and in accordance with the rules; that the

direction of the Financial Commissioner is illegal and his interpretation of the Lumberdari Rules is incorrect, and that the order of the Financial

Com. missioner is also in disregard of the rules.

On behalf of the Financial Commissioner objections have been filed wherein the allegations of the Petitioner have been controverted and the

maintainability of the application challenged. On merits it has been stated that the order of the Financial Commissioner is quite in accordance with

law.

The learned Counsel appearing for the Petitioner has argued that four grounds have been mentioned in the order of the Financial Commissioner

in setting aside the orders of the subordinate officers and all the four are not in accordance with the rules. The order of the Financial Commissioner,

therefore, deserves to be set aside.

The learned Advocate General and the learned Counsel for Qadir Dar have argued that in order to succeed in a writ petition, there must be an

error apparent on the face of the record. In such proceedings the Court should not probe into the merits of the case. In this behalf the following

authorities have been cited by the learned Counsel for the Respondents: Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, ; Prem Singh

and Others Vs. Deputy Custodian General, Evacuee Property and Others, ; Sagendra Nath v. Commissioner of Hills Divn., A I R 1953 S C 398

and Satyanarayan v. Mallikarjun, A I R 1980 S C 137.

My attention has further been drawn by the learned Counsel for the Respondents to an instruction which is on page 36 of the Lumberdari Rules

and is a letter addressed by the Under-Secretary to the Government Revenue Department to the Dy. Com- missioner-Udhampur, dated July

1953. This letter will be referred to at its proper place.

In AIR I960 S C 137 it has been held that.

An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be

said to be an error apparent of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by

lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior

Court to issue such a writ.

In this case (S) AIR 1955 S C 233 was also discussed.

In A I R 1958 S C 398 it was held:

One of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law apparent on the face of the record

and not every error either of law or fact, which can be corrected by a superior Court, in exercise of its statutory powers as a Court of appeal or

revision. In this respect the law in India and the law in England are the same. The Common Law writ, now called the order of certiorari, which has

also been adopted by our constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose

is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance

with the essential requirements of the law which it was meant to adminter. Mere formal or technical errors, even though of law, will not be sufficient

to attract this extraordinary jurisdiction. Where the errors cannot be said to be errors of law .apparent on the face of the record, but they are

merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other words

errors which a Court sitting as a Court of appeal only, could have examined and if necessary corrected and the appellate authority under the statute

in question has unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction and it has not

been shown that in exercising its powers the appellate authority disregarded"" any mandatory provisions of the law but what can be said at the most

was that it had disregarded certain executive instructions not having the force of law, there is no case for the exercise of the jurisdiction Under

Article 226. The non-observance of the executive instructions cannot affect the power of the appellate authority and render its order invalid. It is

not for the High Court or Supreme Court to examine the order in any detail. Where an Act has created its own hierarchy of officers and appellate

authorities to administer the law the High Court has no concern with the manner in which those powers have been exercised so long as those

authorities have, functioned within the letter and spirit of the law.

Similarly in (S) A I R 1957 S C 804 it was held that.

there were no errors apparent on the face of the record, so as to enable the Court to issue writ of certiorari for quashing the orders of the Dy.

Custodian General. The errors pointed out, if they were errors at all, were mostly errors of fact and even if the errors might, by any stretch of

argument, be said to constitute errors of law, they were nothing more than mere errors of law, which might be corrected by a Court of appeal, but

which did not render the order a 'speaking order' showing a clear ignorance or disregard of the provisions of the law, so as to be amenable to

correction by a writ of certiorari.

Mr. Raina, on the other hand, has laid stress on an authority of the Supreme Court, reported as The Provincial Transport Service Vs. State

Industrial Court, . According to him, a liberal interpretation has been given in this authority on the powers of the High"" Court in examining the

record and it has been held that a perverse finding by a subordinate tribunal can be looked into by the High Court in issuing a writ of certiorari and

if it discovers that the finding is not warranted from the record, the High Court has power to interfere in writ proceedings.

I am in respectful agreement with the observations of their Lordships in this case, but I am afraid this authority does not help the Petitioner but

rather goes against him, as will presently appear from this judgment.

u/s 15 of the Land Revenue Act the Financial Commissioner has the power to call for the record of any case pending before or disposed of by

any of the revenue officers under his control and under Sub-section (4) of the same section the Financial Commissioner has the power to pass such

order in the case as he thinks fit. There is no dispute that the Deputy Commissioner and the Tehsildar are under the control of the Financial

Commissioner. This Section gives very wide powers to the Financial Com. missioner to pass, in a given case, any order which in the opinion of the

Financial Commissioner is proper and just. The only limitation may be that it should not be contrary to any statutory provision or any rule having

the force of law.

The Lumberdari Rules have been framed u/s 20 of the Laud Revenue Act and therefore proceedings under the Lumberdari Rules will be Sub-

section to the main provisions of the Land Revenue Act which in other words means that under the Lumberdari Rules the Financial Commissioner

has the power to pass such orders in a particular case us he thinks fit.

With this background let me analyse the four propositions enunciated by the learned Financial Commissioner in remanding the case. As already

stated, Mr. Raina contends that all the four propositions have been wrongly decided by the Financial Commissioner with the inevitable result that

his writ petition must succeed and the order must ho .set. aside. I shall examine each one of the grounds taken by the Financial Commissioner.

The first finding, of the Financial Commissioner is that a Naib-Tehsildar is not competent to make any inquiry under the provisions of the

Lumberdari Rules and as such all proceedings taken by the Naib-Tehsildar are a nullity. It has to be noted hero that the basic order of the

Tehsildar in nominating, Gani Dar as the Lumberdar of Sriwaripura dated 5-8-1961 confirmed by the Deputy Commissioner is mainly based on

the inquiry held by the Naib Thehsildar in this case in-his report dated 21.2.1961 There proposition of law enunciated by the Financial

Commissioner is not correct in view of the addition of Section 19.A to the Land Revenue Act which reads as, under.

A Revenue Officer may refer a case which he is empowered to dispose of under this Act: to Anr. 'Revenue Officer subordinate for enquiry and

report, and may decide the case upon such enquiry and report.

The Tehsildar was empowered to base his nomination solely and simply on the inquiry and report of his subordinate, Naib-Tesildar. To that extent

the augment of the learned Counsel for the Petitioner is correct.

The second proposition laid down by the Financial Commissioner that the Tehsildar was not competent to entertain the fourth application alter

period of one year when the three nominations had already been filed, also appears to be incorrect. In this behalf the finding of the Commissioner

am:; as under:-

The objection of the Appellant that when there were only three candidates initially an application from a fourth candidate should not have been

entertained later is not correct. Under rules it: is not even necessary to invite such applications. Apparently such applications are invited merely to

ascertain that the person applying is willing to work as Lumberdar. If the Tehsildar or the Naib-Tehsildar in ins discretion consider it necessary to

consider some more persons along with those who had come earlier for appointment as Lamberdar, there is no bar to it.

This statement of the law by the learned Commissioner is correct. There is nothing in the Lumberdari Rules which requires applications to be made

for being appointed as a Lumberdar. It is a question of appointment by the proper authority. Sub-rule (3) of Rule 19 of the Lumberdari Rules gives

the power to the Tehsildar to appoint the headman of a village subject to confirmation by the Collector. It lays down nothing further. If in a

particular case a Tehsildar comes to the conclusion that a person, even though he has not applied in time or has not at all applied but is willing to

work as a headman, should be appointed no rule is contravened.

Then we take up the third and fourth propositions in the order of the Financial Commr. which are inter-linked. The crux of raising these two

propositions and replying them in the order of the Financial Commr. is that the popular will of the villagers concerned has also to be considered

while appointing a Lumberdar. It has to be kept in view that the Lumberdari Rules were enacted for the purpose of filling in the posts of

Lumberdars by election; an elaborate process of election is laid down in the rules. The Legislature at the same time kept an alternative available to

the revenue authorities to appoint a Lumberdar if an election was not possible. The election part of the rules was not, as a rule, subsequently

applied, and the lumberdars continued to be appointed by the Tehsildars subject to confirmation by the Collector. But the principle of the rules, so

far as election was concerned, had to be more or less kept in view. In this behalf a letter of the Under Secretary to the Government Revenue

Department to the Dy. Commr. Udhampur dated July 1953 has already been mentioned. In that letter it is stated.

I am accordingly directed to ask you that in future any vacancy of headman filled up under the said rules should invariably be intimated to this

Ministry along with requisite particulars for information of the Revenue Minister. The Revenue Minister has further desired that even in cases of

such nominations the Dy. Commr. concerned should ascertain public opinion in a general way.

Though this letter has no statutory force, yet it has a good deal of moral and administrative force for the subordinate officers who have to

appoint headmen. This has been at the back of the mind of the Financial Commr., and in this particular case the aforesaid order of the Financial

Commr. indicates that he has found that the will of the local people has not been properly assessed by either the Tehsildar or the Dy Commr.

concerned.

Under the rules anybody can be appointed as a Lumberdar who is eligible under rules to contest an election for the said post. No further

criteria are laid down which should be taken into consideration while making such an appointment. The Revenue Minister, has however thought fit

that the will of the local people should be ascertained before any such appointment is made. Therefore this qualification of commanding the support

of a majority of the inhabitants ot the village is a circumstance which has to be definitely kept in view by the officers making such appointment.

It was argued before me that when the Naib-Tehsildar's report of 21.2-1961 was received by the Tehsildar, the Tehsildar made an

endorsement thereon to the elfect that he had perused the report, the Naib-Tehsildar had recommended Gani Dar for appointment, ignoring the

direction of the Tehsildar given in his order dated 26.7.1960. In view of the divergence in the report of the Naib-Tehsildar and the direction of the

Tehsildar, the Tehsildar considered it expedient to go on spot and ascertain the wishes of the zamindars. Therefore he ordered the file to be put up

locally at the village. This order is dated 25-2-1961. The Tehsildar, without even remembering what he had said in his endorsement of 25.2-1961,

later on recorded that his going to the spot for further inquiry would mean waste of time. He therefore mainly based his order on the report of the

Naib-Tehsildar dated 21-2-1961 which he had himself disregarded by his endorsement of 25-2-1961. It has therefore been argued by the

Respondents' learned Counsel that the Financial Commr. was influenced by all these considerations - which a cursory glance at the record would

indicate - to quash the order of the Tehsildar confirmed by the Dy. Commr. The Commissioner had not at all discussed the defects which were

apparent in the order of the Tehsildar. The Financial Commr. was the head of the department and responsible for the smooth administration of the

same and the Lumberdar being an important link in the chain of the hierarchy of revenue officers, was not satisfied with the method in which this

matter had been dealt with by his subordinates. The Financial Commr. had very wide powers u/s 15 of the Land Revenue Act and exercising those

powers he was convinced that the appointment of the Petitioner was not in accordance with the letter and spirit of the Lumberdaii Rules and the

instructions conveyed to the Revenue officers n making such appointment. In passing the order of remand and fresh appointment the Financial

Commr. was properly exercising the powers vested in him under law.

It has to be remembered as already discussed in detail by reference to S.G. authorities that in writ proceedings the High Court will not act as a

Court of revision or a Court of appeal and see whether the findings of fact arrived at by the subordinate officers should be upheld or not as if the

High Court were hearing an appeal or a revision from the orders of the subordinate officers. But the High Court can interferes only if on taking the

impugned order as it is, some error apparent on the face of the record exists in a particular case. In view of the law laid down repeatedly by the

Supreme Court, it is not at all within my province to say that this order of the Financial Commr. is bad on merits, though on merits also I do not

consider anything wrong about the crder in view of the method in which the Tehsildar and the Dy. Commr. have dealt with this case.

The result is that there is no force in this writ petition which is rejected.