Natha Singh & Ors Vs. The
Financial Commissioner, Taxation, Punjab & Ors [1976] INSC 51 (11 March
1976)
SINGH, JASWANT SINGH, JASWANT GUPTA, A.C.
CITATION: 1976 AIR 1053 1976 SCR (3) 620 1976
SCC (3) 28
ACT:
Constitution of India, Art. 226-Error of law absent
in concurrent decisions of Revenue authorities-High Court justified in
refraining to exercise appellate jurisdiction in writ proceedings.
Code of Civil Procedure, Order 41, r.
27-Reception of additional evidence by appellate courts discretionary- Limitations-Test
to be applied.
HEADNOTE:
Appellant Natha Singh was recorded as a land
owner in revenue records. Under the Punjab Security of Land Tenures Act, 1953,
the Collector, Ferozepore, declared an area of 63 standard acres and 4 units,
as surplus land in his hands.
The sons of Natha Singh appealed to the
Commissioner, Jullundur division, who remanded the case for fresh determination
of "surplus area". On a re-examination of facts, the Collector,
Ferozepure, overruled the pleas of the appellants. Their appeal to the
Commissioner, Jullundur division, and a further revision petition to the
Financial Commissioner, Taxation, Punjab, were also dismissed. All these orders
were challenged before the High Court under Art. 226. The High Court dismissed
the matter in limine, but granted a certificate under Art. 133(1)(a).
The appellants contended before this Court
that in the facts and circumstances of the case, the High Court could not
dismiss the writ petition in limine, as the revenue authorities had wrongly
computed the 'surplus area'. They further contended that appellants No. 2 and 3
were not afforded proper and adequate opportunity by the Collector to prove
their claims. The appellants also applied for permission to adduce additional
documentary evidence.
Dismissing the appeal, the Court,
HELD: (1) In dealing with a petition under
Art. 226 of the Constitution, the High Court cannot exercise the jurisdiction
of an appellate court, and cannot re-examine or disturb the findings of fact
arrived at by an inferior Court or a tribunal in the absence of an error of
law. [622E-F] (2) In the instant case, the orders passed by the revenue
authorities did not suffer from any error of law so as to warrant interference
in writ proceedings and the High Court was justified in dismissing in limine
the writ petition preferred by the appellants. [623F] (3) The application of
the appellants for additional evidence cannot be allowed in view of the
well-established principles of law that the discretion given to the appellate
court to receive and admit additional evidence is not an arbitrary one but is a
judicial one circumscribed by the limitations specified in order 41 rule 27 of
the Code of Civil Procedure. The true test to be applied in dealing with
applications for additional evidence is whether the appellate court is able to
pronounce judgment on the materials before it, without taking into
consideration the additional evidence sought to be adduced. [623G-H, 624A]
Arjun Singh alias Puran v. Kartar Singh & Ors. [1951] SCR 258 referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1308 of 1968.
From the order dated 1st May, 1967 of the
Punjab and Haryana High Court at Chandigarh in Civil Writ No. 707 of 1967.
621 Hardyal Hardy, Naunit Lal and Miss Lalita
Kohli, for the appellants.
O. P. Sharma and P. N. Puri, for the
respondents.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-This appeal by certificate under Article 133 (1) (a) of the
Constitution of India granted by the High Court of Punjab and Haryana at
Chandigarh is directed against its order dated May 1, 1967, dismissing in
limine the writ petition filed by the appellants herein.
The facts giving rise to this appeal are:
Natha Singh, appellant No. 1 herein, was recorded in revenue records as land-owner
in respect of 39 standard acres and 9 3/4 units of land in village Malout, 53
standard acres and 5 1/2 units in village Kanamgarh and 4 standard acres and 2
units in village Bhagwanpur. By his order dated July 5, 1959, the then
Collector, Ferozepore, acting under the provisions of the Punjab Security of
Land Tenures Act, 1953, hereinafter referred to as 'the Act' declared an area
of 63 standard acres and 1 1/4 units out of the aforesaid land aggregating 93
standard acres and 1 1/4 units as surplus in the hands of Natha Singh. Rajinder
Singh and Jarnail Singh, appellants Nos. 2 and 3 herein, who are the sons of
appellant No. 1, went up in appeal against the said order of the Collector to
the Commissioner, Jullundur Division, who vide his order dated July 20, 1965
allowed the appeal, set aside the aforesaid order of the Collector and remanded
the case for fresh determination of the "Surplus Area." After re-
examination of the case on remand, the Collector, Ferozepore, vide his order
dated December 20, 1965, overruled the plea raised by appellants Nos. 2 and 3
that the area comprised in khasra Nos. 296, 297, 517, 519, 285, 293 and 206
which was in their cultivating possession as tenants under appellant No. 1
before the commencement of the Act should be treated 'Tenants Permissible Area'
and excluded from the surplus pool and held that the entries in khasra
girdawaries on which the claim of the said appellants was grounded could not be
relied upon as they had been tampered with. The Collector further held that
even taking the entries at their face value, appellants Nos. 2 and 3 could not
be treated tenants as contemplated by the Punjab Tenancy Act, 1887 (Act XVI of
1887) as they were not paying any rent to appellant No. 1. The Collector also
overruled the plea raised by appellant No. 1 that there was some 'banjar' land
which had to be excluded while reckoning the permissible area. Dissatisfied
with this order, the appellants preferred an appeal to the Commissioner,
Jullundur Division, who by his order dated November 7, 1966 dismissed the same
and upheld the aforesaid order of the Collector, Ferozepore. Aggrieved by these
orders, the appellants took the matter in revision to the Financial
Commissioner, Taxation, Punjab, who also by his order dated March 3, 1967,
affirmed the aforesaid orders of the Collector, Ferozepore, and Commissioner,
Jullundur Division.
All these orders were challenged by the
appellants before the High Court of Punjab and Haryana by means of a petition
under Article 226 of the Constitution but the same, as already stated, was
dismissed in limine. The High Court, however, granted a certificate to the
appellants under Article 133(1) (a) of the Constitution.
622 Appearing in support of the appeal, Mr.
Hardayal Hardy has contended that the writ petition filed by the appellants
could not, in the facts and circumstances of the case, be dismissed in limine
by the High Court. Elaborating by his submission, the learned counsel has urged
that the orders passed by the revenue authorities could not be sustained as
they did not, while computing the 'Surplus Area', leave out the permissible
area which even according to the khasra girdawaries and Roznamcha Waqaiti which
is maintained for the purpose of recording changes in cultivation was being
cultivated by appellants Nos. 2 and 3, as tenants of appellant No. 1 since
1951-52; that 30 bighas of land which was recorded as 'banjar' at the time of
the commencement of the Act and did not fall within the definition of land as
contained in section 2(8) of the Act had not been taken into account while
evaluating and assessing the "Surplus Area", and that appellants Nos.
2 and 3 were not afforded proper and adequate opportunity by the Collector to
prove the claim put forth by them.
Mr. Hardayal Hardy has, in conclusion, drawn
our attention to the application made by the appellants for permission to
adduce additional documentary evidence in the form of khasra girdawaries for
the years 1952 to 1960, the grounds of appeal preferred by the appellants
before the Commissioner, the grounds of revision filed by them before the
Financial Commissioner, the depositions of appellant No. 1 and Gurcharan Singh,
Patwari, and forms A.D.E. and F. and its inclusion in the record and has
emphasized that the aforesaid documents which are relevant and necessary for
disposal of the appeal should be allowed to be produced.
With regard to the first contention advanced
on behalf of the appellants, it is sufficient to observe that it has been time
and again observed by this Court that in dealing with a petition under Article
226 of the Constitution, the High Court cannot exercise the jurisdiction of an
appellate court and cannot re-examine or disturb the findings of fact arrived
at by an inferior court or a tribunal in the absence of any error of law.
So far as the contention of the learned
counsel for the appellants based on the revenue record is concerned, it may be
remarked that it has been concurrently found by the Collector and the
Commissioner who examined the original khasra girdawaries that they had been
tampered with by the revenue staff in collusion with the appellants. In the
circumstances, it would not be safe to place any reliance on them. The reliance
sought to be placed on 'Roznamcha Waqaiti' is also an afterthought. No authenticated
copy of the 'Roznamcha Waqaiti' with reference to which we are invited to
verify the entries in the khasra girdawaries has been included in the record.
It is also significant that no reliance either before the Collector or before
the Commissioner or even before the Financial Commissioner seems to have been
placed upon the 'Roznamcha Waqaiti'. It is also to be noted that even in the
application for leave to adduce additional evidence, no mention has been made
of any entry in 'Roznamcha Waqaiti'. Even if the entries in khasra girdawaries
are treated as genuine, they can be of little 623 assistance to the appellants
as they do not at all, as observed by the Collector, appear to show that any
rent was being paid by the appellants Nos. 2 and 3 to appellant No.
1. In the absence of payment of rent or in
the absence of material to show that there was a contract between appellant No.
1 and appellants Nos. 2 and 3 absolving the latter of the liability to pay
rent, it is difficult to uphold the claim of appellants Nos. 2 and 3 that they
were tenants of appellant No. 1.
So far as the claim regarding 'banjar' land
is concerned, it would suffice to say that the Collector who examined the
revenue record found that there was no land which fell within that category. It
cannot be disputed that a land-owner who wishes to claim the benefit of the
exclusion of 'banjar qadim' or 'banjar jadid' land from the purview of land has
to prove that it was not at the relevant date being put to any agricultural
purpose or a purpose subservient to agriculture or used for pasture. No such
proof seems to have been adduced in the instant case. It is also important to
note that even before the Commissioner, the appellant did not plead that any
'banjar' land was not left out of consideration while assessing the 'Surplus
Area'. All that was urged before the Commissioner was that the land comprised
in khasra No. 864 of village Malout had not been left out of account although
it was banjar. The Commissioner repelled this plea as he found from the
examination of the record that the area comprised in the said khasra number was
'Chair Pumkin Sarak' which had not been taken into account while assessing the
'Surplus Area of appellant No. 1.
The contention raised on behalf of the
appellants that they were not allowed an opportunity of establishing their
claim cannot also be countenanced. There is nothing on the record to indicate
that the appellants were denied opportunity to prove their case. The Financial
Commissioner has categorically found that appellants Nos. 1 and 2 had full
opportunity to place on record their evidence to establish that they were
cultivating the land of their father as his tenants and that they did not avail
of that opportunity by placing any material on the record to show that, or that
there was a private partition as sought to be urged by them before him.
In view of the foregoing reasons we are
satisfied that the orders passed by the revenue authorities did not suffer from
any error of law so as to warrant interference in writ proceedings and the High
Court was justified in dismissing in limine that writ petition preferred by the
appellants.
So far as the application of the appellants
for additional evidence is concerned, it cannot be allowed in view of the well
settled principles of law that the discretion given to the appellate court to
receive and admit additional evidence is not an arbitrary one but is a judicial
one circumscribed by the limitations specified in Order 41, Rule 27 of the Code
of Civil Procedure. If the additional evidence is allowed to be adduced
contrary to the principles governing the reception of such evidence, it will be
a case of improper exercise of discretion and the additional evidence so
brought on the record will have to be ignored. The true test to be applied in
dealing with applications for additional 624 evidence is whether the appellate
court is able to pronounce judgment on the materials before it, without taking
into consideration the additional evidence sought to be adduced.
(See Arjun Singh Alias Puran v. Kartar Singh
and Ors.(1). In the instant case, we have not been able to experience any
difficulty in rendering the judgment on the material already before us. Instead
we feel that the prayer for adducing additional evidence has been made merely
to fill up gaps on the basis of some revenue record which has been found by the
Collector and the Commissioner to the spurious.
We also do not find any other substantial
reason to accede to the request of the appellants to allow them to adduce
additional evidence. There is no inherent lacuna or obscurity which we require
to be filled up or removed to be able to pronounce judgment. The application of
the appellants is accordingly rejected.
In the result we do not find any merit in
this appeal which is also hereby dismissed but in the circumstances of the case
without any order as to costs.
M.R. Appeal dismissed.
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