Prabhatshinhji Bhupatsinhji vs Members of Shahpur Khedut Samettee and Others

Shah, C.J.—This is a petition under Article 226 of the Constitution for a writ of certiorari to quash an order made by the Revenue

Commissioner opponent No. 3 and for a further writ directing him to pass an order to pay to the Petitioner a certain sum which has been withheld.

The Petitioner has also prayed for interference with the Commissioner''s order under Article 227 of the Constitution. The Petitioner is a Talukdar

of the former Shahpur Taluka and is in that capacity entitled to receive from the kheduts (cultivators of the hinds a certain vighoti or cash rent. This

rent, when is fixed according to the area of the lands in the possession of the cultivator, is now being collected by the Government and is paid to

him. There was a dispute regarding the quantum of the rent in Samvat 2005-2006 and so certain lands in possession of the cultivators of Shahpur

and Veraval. villages were proposed to be measured. The cultivators, however, did not take part in these proceedings, and ultimately fourteen

survey numbers named by the Petitioner and in the occupation of eleven cultivators were measured. The cultivators, then applied for and obtained

orders of the Collector for a fresh measurement and nine survey numbers of their choice were measured but the Petitioner applied to the Collector

of Madhya Saurashtra, objecting to the said measurement. The Collector agreed with the Petitioner that, if the fields were not measured in the

presence of the parties, the measurements would not be binding on them, and he made an order on the 31st March, 1951 that the measurements

of the fields should be taken in the presence of both the parties. He, therefore, directed the District Inspector of Land Records to ask both sides to

name five survey numbers of their choice, in each of the two villages, and to got these lands measured in the presence of both parties. Accordingly

the parties were asked to name their survey numbers and, whereas the Petitioner named live survey numbers of Shahpur and five survey numbers

of Veraval, the cultivators named five survey numbers of Shahpur and four survey numbers of Veraval. It was explained to them that the

measurements of these lands would be binding on both sides, and their signatures were obtained in token thereof. That was on the 3th April 1951.

The survey numbers were then shown to the surveyor who proceeded to take the measurements. However the Veraval cultivators declined to

take part in the survey measurements and they wanted that the fourteen survey numbers which the Petitioner had originally got measured should be

measured this time and not those which the Petitioner had now named. This was reported to the Mahalkari of Kotda Sangni who made an order

that both the sides should have the liberty to name the survey numbers of their own choice and that if the cultivators did not agree to the

measurements of the survey numbers which had been already fixed, then the measurement should be proceeded with, and the cultivators will be

taken as not having objected to it. The cultivators remained firm and wanted the original fourteen survey numbers to be measured. They did not

take part in the proceedings and the measurements were taken ex parte.

The measurements thus taken showed, according to the Petitioner only a difference of 13 Percent, in area compared to the measurements of the

old survey appearing in the Talukdar''s records. The Petitioner applied to the Collector on the 21st June 1951 stating that the measurements of ten

survey numbers named by him and of the nine survey numbers named by the cultivators had been carried out by the Inspector of Land Records,

but the cultivators were not accepting them and were raising false objections. It appears that the cultivators objected to the payment of the whole

of the vighoti to the Petitioner and wanted that 22 per cent, of the same should be retained by the Government and the Petitioner was told by the

authorities to agree to this course. The Petitioner stated in his application of the 21st June 1951 that as he was being asked to accept 78 percent.

and leave the 22 per cent with the Government without prejudice to his rights, he was prepared to do so and that the 78 per cent, may be ordered

to be paid to him.

Thereupon the Collector heard both parties and made an order on the 20th June 3901. He observed that the cultivators were not opposed to

paying the vighoti according to the measurements of the lands and that the real dispute between the parties was as regards the measurements. He

stated, in the order, that originally fourteen survey numbers named by the Talukdar were measured, but the cultivators did not take part in those

proceedings, that the cultivators then named nine survey numbers which also were measured, but the Talukdar objected to the measurement of

these lands. In his view the survey numbers which wore named this time by the Talukdar did not furnish a correct criterion because, although a

particular survey number was being cultivated by more than one khedut, the land actually measured was that cultivated by only one of them, and

that this was not a proper standard to adopt. The Collector was also of the opinion, that if the Talukdar had named the very same fourteen survey

numbers which he had originally got measured, that would have furnished a proper clue as to the correct measurement of the lands. He held that as

the, rainy season was already on, it was not possible to take the measurements again and so he passed an order that 78 per cent of the rent should

be paid to the Petitioner and the remaining 22 per cent, should be kept with the Government until the final decision as to the measurement was

reached. Against this order the Petitioner appealed to the Revenue Commissioner. He held that the dispute was as regards the measurements and

that as the Collector had passed an interim order which was equitable, he saw no reason to interfere; and he, therefore, dismissed the appeal.

Mr. Buch, who appears for the Petitioner, has contended that the Collector had no powers to change his order dated 31st March 1951 and that

in any event he could not have done so because the parties had given their consent to the measurement of these particular survey numbers. It is

argued that under the said order, it was the choice of the parties to name their own survey numbers, and as the lands named by the Petitioner had

been already measured, it was no longer open to the Collector to ignore the said measurements and to ask that measurements may be made

afresh. We are unable to accept either of these contentions. It is not disputed that the Collector had the jurisdiction to fix the rent payable by the

cultivators to the Talukdar and that this was to be assessed on the measurement of the lands. It is true the Collector had adopted a certain

procedure and measurements had been taken of certain lands in accordance therewith, but if he found that this worked to the detriment of one of

the parties and was inequitable, it was certainly open to him to revise his own order and he had the jurisdiction to do so. It is also wrong to

contend, as has been done for the Petitioner, that the parties having consented to the survey numbers to be measured, the Collector could not go

behind the consent. The contention is fallacious because it was not the consent of the parties that vested the Collector with the jurisdiction. The

jurisdiction was already there and the question was one of procedure as to how best to determine the real area. The ten fields on either side were

taken as a norm but if this norm was found to be unfair in its working and detrimental to the interests of the cultivators, the Collector had also

jurisdiction to resort to a fresh measurement. If the survey numbers named by the parties had not been measured and it was represented to the

Collector that the measurements of the survey numbers named by the Petitioner, or for the matter of that by the cultivators, will result in unfairness

to the other party, it cannot be argued with any show of reason that the Collector could not have changed his original order. It is difficult to see

how the mere fact that the measurements had been actually taken makes any difference. The Petitioner''s contention is thus unsustainable on both

the grounds.

But assuming that the Collector ought not to have revised his original order and should have made the parties to abide by the order, the question

still is whether this is a matter in which the High Court should interfere by the issue of a writ. The Collector''s order of 26th June, 1951 may or may

not be right, but it cannot be suggested that in making that order he acted without jurisdiction or in excess of his powers. It was the Petitioner who,

by his application dated the 21st June 1951, asked the Collector that 78 per cent of the rent may be paid to him, and that the balance may be

reserved till the decision of the dispute, and the Collector has made the order at his invitation. But assuming that the Collector''s view, viz. that fresh

measurements of the survey numbers were necessary, was erroneous, he had still the jurisdiction to decide the question; nor can it be said that he

has acted in excess of his powers. Dealing with a similar point in- Parry and Co. Ltd. Vs. Commercial Employees'' Association, Madras, the

Supreme Court observed as follows:

At the worst he (Labour Commissioner) may have come to an erroneous conclusion, but the conclusion is in respect of a matter which lies entirely

within the jurisdiction of the Labour Commissioner to decide and it does not relate to anything collateral, an erroneous decision upon which might

affect his jurisdiction. The records of the case do not disclose any error apparent on the face of the proceeding or any irregularity in the procedure

adopted by the Labour Commissioner which goes contrary to the principles of natural justice. Thus there was absolutely no grounds here which

would justify a superior court in issuing a writ of certiorari for removal of an order or proceeding of an inferior tribunal vested with powers to

exercise judicial or quasi-judicial functions. What the High-Court has done really is to exercise the powers of an appellate court and correct what it

considered to be an error in the decision of the Labour Commissioner. This obviously if cannot do. The position might have been different if the

Labour Commissioner had omitted to decide a matter which he was bound to decide and in such cases a mandamus might legitimately issue

commanding the, authority to determine questions which it left undecided; but no certiorari is available to quash a decision passed with jurisdiction

by an inferior tribunal on the mere ground that such decision is erroneous.

In Anr. case reported as- Veerappa Pillai Vs. Raman and Raman Ltd. and Others, their Lordships held as follows:

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 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 decisions impugned and decide what is the proper view to be taken or the order to be made.

Applying this test to the facts here, even if the impugned order of the Commissioner, which confirmed the Collector''s order, was erroneous, still as

it was passed in the exercise of his jurisdiction, and, as it did not contravene any principles of natural justice, we see no reason to interfere. The

Petitioner is therefore not entitled to any of the writs prayed for and this petition is dismissed with costs.

Baxi, J.

I agree.