Hem Kanta Buragohain vs The Assam Board of Revenue and Others

Saikia, J.—The writ Petitioner herein impugns the appellate judgment of the Assam Board of Revenue, shortly, ''the Board'' whereby the settlement of the Lahing Gaon C.S. shop made with him was set aside, with direction that the shop be settled with the second Respondeat.

Pursuant to Sibsagar Deputy Commissioner''s notice dated (sic)81 inviting tenders for settlement of excise shops of Jorhat, the Petitioner along with the second and the third Respondents duly submitted tenders for the Lahing Gaon C.S. shop No. 14, such were considered; and the Deputy Commissioner in consul-(sic)tion, with the Advisory Committee, by order dated 28.8.81 settled the shop with the Petitioner, where after he deposited the security money, took possession of the shop from the outgoing lessee and managed it. The second and the third Respondents appealed to he Board against the settlement in Excise Case Nos. 12E/81 and (sic)E/81, respespectively and by the impugned order the Board set aside the settlement order, rejected the appeal of the third Respondent, and allowing the second Respondent''s appeal, directed that the shop be settled with him. Hence this petition.

Mr. J.P. Bhattacharjee, the learned Advocate General assails the judgment on the grounds, firstly, that the Board itself having held that on the face of the facts and circumstances prevailing as on the date of settlement there was hardly anything to hold that the Advisory Committee and the Deputy Commissioner had been palpably wrong in their conclusion that the Respondent (present Petitioner) had sufficient financial backing, it could not have lawfully held, at a later part of the judgment, that the Petitioner''s financial suitability was not free from doubt and on that account he had to be considered unsuitable for the settlement; and secondly, the Board acted illegally in directing that the shop be settled with the second Respondent in face of the Deputy Commissioner''s report to the effect that the second Respondent was not financially sound and it was suspected that he was inanced by an old lessee (who was a benamdar) who had been carrying on liquor business from the days of British Rule and amassed too much wealth and that the old lessee enjoyed the lion''s share of the profits and the second Respondent remained a paid employee; and further it would go against the policy of the State Government as well as public policy to settle the shop with such a person. Mr. B.K. Goswami, the learned Counsel for the second Respondent (sic) the two grounds submitting firstly, that the Board in no part of its judgment held that the Petitioner was financially sound its only finding being that his financial suitability was not free from doubt wherefore he was considered unsuitable for settlement; and secondly, the Board was justified in not accepting the Deputy Commissioner''s report on the second Respondent for the reasons stated in the judgment. Counsel lastly submits that both the findings, namely that the second Respondent was financially suitable and the Petitioner was financially unsuitable are findings of the Board which is the final tribunal of facts and those findings of facts cannot be assailed in this writ petition.

In our judgment the last submission of Mr. Goswami must prevail and that we have no jurisdiction to interfere with the findings as to financial suitability of the second Respondent and financial unsuitabilty of the Petitioner. The scope of interference by the High Court in respect of the findings of tribunals has been delineated by a long and rolling train of decisions of the Hon''ble Supreme Court in line with English decisions on the writ of certiorari. In Rex v. Northumberland Compensation Appellate Tribunal, 1952-1 K.B. 338 ct p. 357 Morris L.J. said:

It is plain that ''certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for re-hearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown." In Veerappa Pillai Vs. Raman and Raman Ltd. and Others, it has been said:

Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.

These were followed in T.C. Basappa Vs. T. Nagappa and Another, it was reiterated that one of the fundamental principles to regard to the issuing of a writ of certiorari, is, that the writ can be availed of only to remove of adjudicate on the validity of judicial acts and that the control Which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity, In granting a writ of certiorari the superior Court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The supervision of the superior Court exercised through writs of certiorari goes on two points: one is the area of inferior jurisdiction and the qualifications and conditions of its exercise, the other is the observance of law in course of its exercise, these two heads normally cover all the grounds on which a writ of certiorari could be demanded. Certiorari may and is generally granted when a Court has acted without or in excess, of its jurisdiction. The want of jurisdiction may arise from the nature of the subject matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the Court depends upon the existence of some collateral fact, it is well settled that the Court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess. A tribunal lay be competent to enter upon an enquiry but in making the inquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest (sic)on apparent on the face of the proceedings, e. g. when it is (sic)nd on clear ignorance or disregard of the provisions of law. other words, it is a patent error which can be corrected by (sic)ari but not a mere wrong decision. In Prem Singh and Others Vs. Deputy Custodian General, Evacuee Property and Others, been reiterated that where there is no error apparent on (sic) of the record no certiorari shall assue if the (sic) out are errors of fact or are (sic) which (sic). but does not show a clear ignorance or disregard of the pro-visions of law, which can be corrected by a writ of certiorari, no writ shall issue. In Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, an excise case under the Eastern Bengal and Assam Excise Act, it has been reiterated that 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. Writ of certiorari is not means 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 administer. Mere forma! 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 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 for the High Court or the Supreme Court to examine the order in 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. So in Parry and Co. Ltd. Vs. P.C. Pal and Others, it has been reiterated that a writ of certiorari is generally granted when a Court has acted without or in excess of its jurisdiction, It is available in those cases where a tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. A mere wrong, decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected. Where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Article 226 unless it could be shown to be wholly unwarranted by the evidence. Where the Tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or where its conclusion on the, very face of it is so wholly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion interference under Article 226 would be justified. Similar is the ruling in Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, where it has been stated that a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act and not an administrative act. Before the writ can be issued the following conditions have to be complied with; (1) The body of persons must have legal authority; (2) there must be authority to determine questions affecting the rights of subjects; and (3) the body of persons should have a duty to act judicially. A writ of certiorari can be issued to quash a quasi-judieial act of an administrative tribunal or authority.

Included in the train are three Supreme Court decisions on cases under the Assam Excise Act. In Shri. Subhas Chandra Chetia Vs. Assam Board of Revenue and Others, where the Board, dealing with the "Assurance Certificate", criticised the Bank for issuing it and failed to note that the said Certificate was followed by bank''s letter allowing the Appellant to draw the loan one day before the commencement of the term of the settlement and the Certificate was filed by the Appellant before the Board which suspected the genuineness of the Certificate and criticised the Bank for issuing it merely because the Appellant''s brother was in employee of the Bank. This finding of the Board that the Certificate was fabricated was held to be based merely on suspicions and conjectures and on no evidence whatsoever and as such vitiated by error of law. The Board also held the Appellant to be a defaulter of land revenue. The Appellant, contended that the right or interest in the land in respect of which land revenue was outstanding did not belong to him or his brother but to his mother and in support of this contention he produced a copy of jamabandi showing that this land was mutated in favour of his mother. The Board, however, after taking into consideration a certificate from the Sub-Divisional Officer produced by the opposite party, rejected this contention. Thus the Board had on an appreciation of the evidence reached the finding that since the Appellant was a defaulter, it was not desirable to settle the shop with him. The Supreme Court held that assuming it was erroneous, then also this finding of fact could not be disturbed by the Court in exercise of its writ jurisdiction, The Supreme Court also observed that the period of settlement made in favour of the Respondent would be expiring shortly and that was an additional reason for not disturbing the impugned judgment of the Board and of the High Court. In Mukunda Bore Vs. Bangshidhar Buragohain and Others, it has been clearly ruled:

While on facts the order of the Board under appeal is not impecable, we must remember that under Article 226 of the Constitution, a finding of fact of a domestic tribunal cannot be interfered with. The High Court in the exercise of its special jurisdiction does not act as a Court of appeal. It interferes only when there is a jurisdictional error apparent on the face of the record committed by the domestic tribunal. Such is not the case here. It is true that a finding based on no evidence or purely on surmises and conjectures or which is manifestly against the basic principles of natural justice, may be said to suffer from an error of law. In the instant case, the finding of the Board that the Appellant does not possess the necessary financial capacity, is largely a rinding of fact Under Rule 206(2) of the Assam Excise Rules, an applicant for settlement of a shop is required to give full information regarding his financial capacity in the tender. Such information must include the details of sources of finances, cash in hand, bank balance, security assets, etc. Then, such information is verified by the Inquiry Officer.

Next comes the decision of the Supreme Court in Civil Appeal No. 5742 of 1983 (Bishnu Ram Borah and Anr. v. parag Saikia and Ors.) decided on 16.11.1983 where it has been held:

We do feel that the High Court exceeded its jurisdiction under Article 226 of the Constitution by embarking upon an inquiry into the fact as to whether or not Respondents Nos. 1 and 2 were entitled to the grant of licence in respect of Jorhat Country Spirit Shop No. 1 in preference to the Appellants. In doing so, it ignored the long lino of decisions starting from T.C. Basappa v. T. Nagappa which lay down that supervision of the High Court exercised through writ of certiorari goes on two points. One is the area of jurisdiction and the qualifications and conditions of its exercise and the other is the observance of law in the course of its exercise. Such writs are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act without jurisdiction, or in excess of it, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission, error or excess has resulted in manifest injustice. It was observed us long buck in the year 1953 in Basappa''s case that a writ of certiorari will not issue ''at a cloak of an appeal in disguise''. It does not lie to bring tin order or decision for rehearing. It exists to correct errors of law when revealed on the face of an order or decision or irregularity or absence or excess of jurisdiction when shown.

The Supreme Court further held that the High Court was clearly in error in dealing with the findings reached by the Board on the question as to whether the Respondent No. 1 was a benamdar and that the High Court was clearly in error in doing so as it could not enter upon any question of fact as to whether Respondent No. 1 was a benamidar or not. It was further held that while going into the question as to whether the Respondents No. 1 and 2 had the requisite financial capacity to fulfil the requirements of Rule 346 the High Court was oblivious of the limitations of its own powers under Article 226 of the Constitution in the matter of grant of a writ of certiorari.

It can hardly be disputed that the findings that the Petitioner was not financially suitable and that the second Respodent was financially suitable are pure findings of fact based on evidence. The appreciation of evidence and drawing of inferences for arriving at those findings are beyond scrutiny of this Court. We have examined the seemingly contradictory observations made in para 12 of the judgment, namely, that it could not be said that there was hardly anything to hold that the Advisory Committee and the Deputy Commissioner had been palpably wrong in their conclusion that the Respondent (present Petitioner) had sufficient financial backing and in para 17 of the judgment that in that situation the Board could not but hold that the financial suitability of the Respondent (present Petitioner) was not free from doubt and that on that account he had to be considered unsuitable for the settlement. We find that the observations in para 12 of the impugned judgment pertain to the Deputy Commissioner and the Advisory Committee at the time of settlement while the latter observations in para 17 of the judgment are the Board''s own findings on the basis of the evidence on record in the appeal. There is thus no contradiction between the two. Mr. Bhattacharjee''s submission that in face of the Deputy Commissioner''s report to the effect that the second Respondent was carrying on excise business giving lion''s share to an old lessee, again, in our opinion, is in the realm of appreciation of evidence and the Board has given adequate reasons for not acting upon it. It is not open for reappreciation by this Court.

For the reasons discussed above this petition is found to be without merit and it is dismissed. The Rule is discharged, we, however, leave the parties to bear their own costs.