Remand - the tribunal not decided the case as per law - issue wise analyzing the evidence = Hence set aside and remanded to pass judgement on merits =
When the issues are framed and evidence is led, the Tribunal should have
adverted to the same and disposed of the suit by taking a comprehensive view of
the matter, when once the matter is remanded back by observing that the earlier
disposal is not as per law. I am of the view that the Tribunal has not dealt
with the issues and the evidence in proper manner and the matter has to be again
remanded back to the Tribunal. As the Tribunal has committed material
irregularity, the same needs to be interfered within the scope of revisional
jurisdiction under Section 83(9) of the Act.
I am conscious of the fact that once the matter was already remitted back,
but as held in above decisions, I cannot re-appreciate the evidence afresh like
in appeal with reference to the issues framed and decide the suit, as such,
there is no other go except to remit the matter back to the Tribunal for its
decision on merits by considering the evidence with reference to the issues
framed. Since it is an old matter, time can be fixed for its disposal.
Accordingly, the Civil Revision Petition is allowed by setting aside the
judgment and decree under revision and the matter is remanded back to the
Tribunal for fresh disposal.
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
C.R.P.No.3636 of 2006
dated:02-07-2013
Mohammed Abdul Hameed Khursheed.. Petitioner
Zulfikhar Ahmed and two others.. Respondents
Counsel for petitioner : Sri L. Prabhakar Reddy
Counsel for 1st respondent : Sri B. Nalin Kumar
Counsel for 2nd respondent: Sri M.A. Mukheed
<GIST:
>HEAD NOTE:
?CASES REFERRED :
1) AIR 2004 SC 2049
2) AIR 2007 SC 1103
3) AIR 2007 SC 340(1)
4) (2001) 8 SCC 718
5) (2006) 11 SCC 67
6) (2007) 7 SCC 482
7) AIR 1997 SC 3760
8) 1996 (2) ALD 683 (D.B)
9) 2012 (4) ALD 385 (DB)
10) (1991) 1 SCC 343
11) AIR 1999 SC 2507
12) (2010) 6 SCC 257
13) (1993) 1 SCC 499
14) (1980) 4 SCC 259
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
CIVIL REVISION PETITION No.3636 of 2006
ORDER:
This Civil Revision Petition is filed by the petitioner/plaintiff against the
judgment and decree, dated 04.04.2006, in O.S.No.56 of 1998 on the file of the
Andhra Pradesh Wakf Tribunal, Hyderabad (the Tribunal).
For the sake of convenience and to avoid ambiguity in the discussion, the
parties will be referred to hereinafter as they were arrayed in the suit.
The plaintiff herein filed the above-mentioned suit for declaration that the
construction made by the 1st defendant on the graveyard land is illegal, for
perpetual injunction restraining the 1st defendant, his agents, henchmen,
relatives and anybody claiming through him from interfering with the graveyard
land of Bur Houz Goshamahal, Hyderabad, for mandatory injunction against the
defendants for removal of the construction made on the graveyard land and to
remove dumped material on it, for a money decree against defendant No.1 for
illegally using the graveyard land by dumping the construction material on it
and for costs of the suit.
With the following plaint averments:
There is an old graveyard called "Graveyard Burhouz", Goshamahal and it is
registered as wakf and managed by the Muthawalli and the present Muthawalli is
the plaintiff. At the eastern side of the graveyard abutting street, there was
encroachment by the 1st defendant and he opened doors at the western side of his
occupied house No.15-1-300 at about 169. aq. Yards of graveyard. The plaintiff
complained against encroachment and opening of the doors and window in the
graveyard land. But, the 2nd defendant has not taken any effective steps and
neither the Municipal Corporation of Hyderabad nor the Police has protected from
encroaching and opening the doors and thereby the 1st defendant has habitually
become law breaker and trouble monger for the institution of the graveyard and
it is managing affairs ignoring that the graveyard cannot be used for any other
purpose against the tenements of Islam and feeling and sentiment of kith and kin
of the buried. The 1st defendant as self styled leader of the locality people
have won over the political parties and in fact made proposals for laying road
and the water supply pipeline in the middle of the graveyard land against the
interest of the institution. The 1st defendant and his henchmen made to attempt
to make use of the open land of the graveyard for playground and they would have
succeeded in their evil attempts, had the plaintiff been little lethargic. The
1st defendant started the construction of his occupied house No.15-1-300 which
is on the encroached land of the graveyard without proper municipal permits and
plans and without No Objection Certificate from the 2nd defendant abutting and
encroaching the graveyard land during the first week of April, 1998.
Immediately, the plaintiff has complained to the 2nd defendant, police and
Municipal authorities, but they have not taken any action as per law. The
Municipal authorities, particularly, the Assistant Town Planner, Circle No.II
under the 3rd defendant have ignored their prime and foremost duty to implement
the Municipal law and save the wakf land. The 1st defendant against the law and
without any authority on 14.4.98 entered the graveyard and dumped the
construction material on the graveyard open land by removing the boundary
stones. The plaintiff has complained to the Police Inspector, Begum Bazar,
Hyderabad, but the police has not taken any action as per law and did not launch
prosecution against the 1st defendant.
The 2nd defendant after great persuasion
deputed their surveyor who made detailed survey of the graveyard and reported
the matter to the higher authorities for their action.
Thereupon, a notification
u/s 54(1) of the Wakf Act, 1995 (for short 'the Act') issued and the time
specified in the notice elapsed long back, except above notice, the 2nd
defendant could not take any effective action to stop the construction made by
the 1st defendant and protect the graveyard.
Taking advantage of the situation
and the lethargic attitude of the 2nd and 3rd defendants, the 1st defendant has
speed up the construction work day and night and he intoxicated any support of
anti-social elements and without minding the notice issued u/s 54(1) of the Act
and by-passing the Municipal laws attempted to complete the construction work
with an evil intention to cause loss to the institution. Hence, the suit.
The 1st defendant filed written statement contending that the plaintiff is not
the present Muthawalli and one Sri Gulam Mohd. @ Iqbal used to manage the
affairs of the graveyard. The plaintiff has fabricated a story of encroachment.
There is no encroachment on any part of the graveyard nor any door has been
opened on the western side of the House No.15-1-300. The extent of the house has
also not correctly been stated and also boundaries and dimensions. He has never
styled himself as leader nor has he ever proposed laying of roads and water
pipelines at any site. The 2nd defendant has not issued No Objection Certificate
nor there is any application to this effect by him. He has not dumped any
construction material nor he removed any boundary stones at site. He is not
aware of the proceedings of the VIII Asst. Judge, City Civil Court, Hyderabad
nor is he aware of the complaint to the police. He is not aware of survey by the
2nd defendant and has not received any notice about the survey proceedings from
the 2nd defendant.
The 2nd defendant also filed written statement contending that the graveyard
land is a registered wakf property and also notified in A.P.Gazette No.44, dated
7.11.1985 and the plaintiff is the approved Muthawalli by the 2nd defendant. On
receipt of representation, dated 15.4.98, from the plaintiff against the 1st
defendant, it addressed a letter to the Asst. Town Planner requesting him to
demolish the illegal structures and also not to allow anybody to carryout any
construction in the graveyard. It has deputed the office surveyor for inspection
and report and consequent on receipt of the report of the surveyor, it again
addressed to the Commissioner, MCH vide letter dated 11.5.1998 marking copy to
the Asst. Town Planner to demolish the unauthorized construction, but no action
was taken, as such, in exercise of the powers conferred under the Act, it issued
a show cause notice u/s 54/(1) of the Act for eviction of the encroached area by
12.5.1998. Since no reply was given by the 1st defendant and no cause shown
within the stipulated period, in exercise of the provisions as contemplated u/s
54(3) of the Act, it has issued orders directing the 1st defendant for delivery
of possession of the suit property to it. The 1st defendant has no authority or
right over the suit property to carry out construction over the same as the suit
property is a wakf property.
The 1st defendant also filed O.S.No.58 of 1998 against the plaintiff and
others.
On the above pleadings, the following common issues were framed for trial:
1) Whether the suit is bad for non-compliance of notice u/s 89 of Wakf Act
2) Whether the suit is properly valued
3) Whether the plaintiff is entitled to be declared as the owner of the suit
land
4) Whether the construction made by defendant No.1 over suit property and the
same comes under purview of MCH Act
5) Whether the construction made by defendant No.1 over the suit property is
liable to be demolished as prayed for
6) Whether the plaintiff is entitled for perpetual injunction against the
defendants
7) To what relief
The plaintiff got examined himself as P.W.1 and marked Exs.A.1 to A.37 on his
behalf. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B.1 to
B.22 were marked. Exs.X.1 to X.3 were marked with consent.
The Tribunal, by common judgment, dated 04.04.2003, dismissed O.S.No.56 of 1998
filed by the petitioner and decreed O.S.No.58 of 1998 filed by the 1st
respondent. Feeling aggrieved thereby, the petitioner filed C.R.P.Nos.2855 and
2827 of 2003 before this Court against the dismissal of O.S.No.56 of 1998 and
decreeing of O.S.No.58 of 1998 respectively. Both the revisions were allowed
through common order, dated 17.12.2003, and the matters were remitted back to
the lower Tribunal with a direction to give opportunity to all the parties
concerned inclusive of the Board to adduce further evidence, if any, relating to
all the issues which had been settled between the parties and dispose of the
matters, in accordance with law.
After remand, Ex.A.38 was marked on behalf of the plaintiff and D.Ws.5 and 6
were examined and Exs.B.23 to 26 were marked on behalf of the defendants.
The Tribunal, after considering the entire evidence, dismissed both the suits by common judgment dated 04.04.2006.
Being aggrieved by the same, the petitioner
filed the present revision against the dismissal of O.S.No.56 of 1998.
While so,
the 1st respondent has not filed any revision against the dismissal of O.S.No.58 of 1998.
Sri L. Prabhakar Reddy, learned counsel for the revision petitioner/plaintiff
submitted that the evidence of P.W.1 and D.Ws.5 and 6 is sufficient enough for
decreeing the suit. He contended that though several issues were framed, the
Tribunal had not at all discussed them with reference to the evidence adduced
and the documents marked, though there is a clear direction in the order passed
by this Court in C.R.P.Nos.2827 and 2855 of 2003 to consider the evidence and
dispose of the suits according to law. He further contended that the Tribunal
disposed of the suit without any application of mind by taking some portions of
evidence here and there instead of construing the entire evidence
comprehensively for coming to a right conclusion and that the Tribunal did not
answer the issues framed, as such, the order impugned in this revision is liable
to be set aside. He further contended that under Section 83 (9) of the Act, this
Court can examine the correctness, legality or propriety of such determination
and may confirm, reverse or modify such determination or pass such other orders
as it may think fit. He further contended that the scope of revision under
Section 83(9) of the Act is very wide and even the evidence can be re-
appreciated while examining the correctness, legality and propriety of such
determination. He further contended that the Wakf Board had issued a notice u/s
54(1) of the Act dated 12.5.98 directing the 1st defendant to vacate the suit
property and having received the notice, the 1st defendant had proceeded with
the construction work and the Board also exercised its powers styling the 1st
defendant as encroacher to remove the encroachments and deliver possession of
the suit property to the plaintiff. He also contended that the Tribunal had not
properly appreciated the scope and ambit of Section 83 of the Act and totally
erred in holding that the plaintiff failed to establish his case by producing
the record showing the extent of land attached to the Wakf Institution. In
support of his contention that the scope of revision under Section 83(9) of the
Act is as wide as appeal, he relied on the decisions in P.S. Pareed Kaka and
others V. Shafee Ahmed Saheb1, G.L. Vijain V. K. Shankar2, Shahabad Co-operative
Sugar Mills Ltd. V. Special Secretary to Govt. of Haryana Corp. and Ors.3
Kempaiah V. Lingaiah and others4 and Indian Airlines Ltd. V. Prabha D. Kanan5.
The learned counsel also contended that it is a public property and the same
should be protected as held by the Apex Court in the decision in A.A.
Gopalakrishnan V. Cochin Devaswom Board and others6. It is also contended that
the 1st respondent has not filed any revision against the dismissal of his suit
in O.S.No.58 of 1998 which operates as resjudicata against him. He relied on the
judgments in Ram Prakash V. Smt. Charan Kaur and another7, and Sri Chintala
Satyanarayana V. Smt. Chintala Kistamma8.
Sri B. Nalin Kumar, learned counsel for the 1st respondent/1st defendant
contended that the scope of the revision under the proviso to Section 83(9) of
the Act is very limited, that this Court cannot interfere with the findings of
fact arrived at by the Tribunal and that there cannot be any re-appreciation of
both oral and documentary evidence available on record like in appeal as Section
83(9) of the Act clearly bars appeal against the decision of the Tribunal and
only revision is provided, that too, to examine the correctness, legality or
propriety of such determination. He further contended that this Court cannot
extend the scope of revision and deal with it like an appeal, when the
legislature itself has barred the provision for appeal. The learned counsel
submitted that in all the decisions relied on by the petitioner, there was no
bar of appeal in the relevant enactments dealt with therein, as in the present
case. So, the decisions cited by the learned counsel for the petitioner have no
application. He further submitted that the petitioner has not given any specific
boundaries to the suit property and there is no identification as to how much
extent of the graveyard is encroached. He contended that the evidence of P.W.1
and D.Ws.5 and 6 is inconsistent and the total area of the graveyard is also not
correctly stated and the encroachment part is also not identified. He further
contended that the boundaries given in the suit schedule and the boundaries as
deposed by the witnesses are not tallying with each other. The so-called Exs.X.1
to X.3 are not binding on the 1st respondent, since no notice was issued to him
while conducting the survey. He also contended that the notice issued by the
Wakf Board under Section 54 of the Act is also very vague without any specific
boundaries. He further contended that the suit cannot be decreed on the basis of
Ex.X.2 which shows the extent of encroachment. He further contended that the
findings given in O.S.No.58 of 1998 cannot be interfered with, since no revision
is filed against the judgment and decree passed in the said suit. In support of
his contentions, he relied on the decisions in Lanco Hills Technology Park Pvt.
Ltd., Hyderabad V. Mahaboob Alam Khan and others9, Bhoolchand and another V. Kay
Pee Cee Investments and another10, Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta11,
Speedline Agencies Vs. T. Stanes and Company Limited12, Rukmini Amma Saradamma
V. Kallyani Sulochana and others13 and M/s. Sri Raja Lakshmi Dyeing Works and
others V. Rangaswamy Chettiar14.
Sri M.A. Mukheed, learned counsel for the 2nd respondent/2nd defendant contended
that the suit property was encroached by the 1st respondent, as such, they
issued a notice to him by invoking the provisions of Section 54 of the Act and
since the 1st respondent has not given any reply, they issued eviction
proceedings and at that time, the 1st respondent filed O.S.No.58 of 1998 and
obtained interim orders stalling their eviction proceedings. He submitted that
the suit property is part and parcel of the graveyard notified as wakf and the
Wakf Board also addressed several letters to the Municipal Corporation for
demolishing the same, but no action was taken. He further submitted that had the
1st respondent not filed the aforestated suit and obtained interim orders, the
2nd respondent could have proceeded with the removal of encroachments under
Section 54 of the Act. He further submitted that the 1st respondent has not
challenged the eviction proceedings and only filed the suit for injunction and
the suit was rightly dismissed by the Tribunal and having dismissed the suit for
injunction filed by the 1st respondent, the Tribunal should have decreed
O.S.No.56 of 1998 filed by the revision petitioner. He further submitted that
the encroachment made by the 1st respondent is demarcated by the Surveyor in
Ex.X.2, as such, the dismissal of O.S.No.56 of 1998 is erroneous.
P.W.1/revision petitioner deposed that he is the Muthawalli of the graveyard.
Ex.A.1 is munthakab issued by the A.P.State Wakf Board and that defendant No.1
in O.S.No.56 of 1998 opened door and window on the eastern side of the house and
he had reported the same to the Board and the Municipal Corporation and also to
the police, but they did not take any action. Exs.A.2 and A.3 are the copies of
letters sent to the wakf Board and the police. Ex.A.4 is the reply from HUDA and
Ex.A.5 is the reply given to HUDA. Ex.A.6 is the certified copy of graveyard
plan. He also deposed that the 1st defendant completely demolished the house
bearing No.15-1-300 and also constructed a new house by encroaching on the site
belonging to the graveyard and he gave a representation to the Board and Ex.A.7
is the copy of the said representation. Ex.A.8 is the representation given to
the Assistant Town Planner. Ex.A.9 is the copy of the letter addressed to the
police. Ex.A.10 is the copy of letter addressed to the Board. Ex.A.11 is the
copy of letter addressed to the Station House Officer, Begum Bazaar P.S. Ex.A.12
is the copy of letter to the Addl. Commissioner, MCH, Hyderabad. Ex.A.13 is the
office copy of letter to the Commissioner, MCH, Hyderabad. Ex.A.14 is the
another letter complaining about the encroachment. Ex.A.15 is the copy of the
proceedings and Exs.A.16 to 26 are the photos with negatives. Exs.A.27 to 29 are
the copies of letter. Ex.A.30 is the Gazette Notification notifying the wakf
property. Ex.A.31 is the representation. Ex.A.32 is the acknowledgment by the
Quli Qutub Shah Urban Development Authority. Ex.A.33 is the representation given
to the Chairman. Ex.A.34 is the copy of Ex.A.33 sent to the Deputy Director,
Hyderabad. Ex.A.36 is the copy of complaint. Ex.A.37 is the application to Wakf
Board for copies of Munthakab and other documents. Ex.A.38 is the certified copy
of plan.
D.Ws.5 and 6, who were examined on behalf of the 2nd defendant, also supported
the case of the revision petitioner/plaintiff. D.W.5, Md. Habeeb Uddin Ansari,
Executive Officer, A.P.State Wakf Board, in his evidence stated that the
graveyard situated at Gosha Mahal, Hyderabad, is notified wakf registered in the
year 1350 fasli under A.P.Gazette No.45, dated 17.11.1985 and being looked after
by the Muthawalli. He also stated that the suit property is a wakf property and
the authority has no power to issue pattas and D.W.1 encroached over the
property of graveyard. He further deposed that the Wakf Board directed the
Surveyor to inspect the illegal constructions and encroachments by D.W.1 and
submit a report and letter dated 15.08.1998 is addressed to the Asst. Town
Planner, Hyderabad requesting to demolish the illegal constructions and not to
carry out any further constructions. He further deposed that the Surveyor
submitted his report after examining the site and the Wakf Board addressed a
letter dated 11.05.1998 to the MCH to demolish the unauthorized constructions
and that the Wakf Board issued a notice u/s 54(1) of the Act to D.W.1 on
12.05.1998 calling upon him to explain as to why he should not be evicted from
the property which is encroached upon by him.
D.W.6 by name Md. Shujath Ali Khan, Surveyor in A.P. State Wakf Board, deposed
that the graveyard situated at Gosha Mahal, Hyderabad, is notified wakf
registered in the year 1350 fasli under A.P.Gazette No.45, dated 17.11.1985, and
P.W.1 is the Muthawalli and on the instructions of the Chief Executive Officer,
he inspected the graveyard and took measurements and prepared Ex.X.2 and found
that D.W.1 has encroached over a portion of the graveyard. Ex.A.38 is the
certified copy of the map of the graveyard. Ex.X.2 is the rough plan showing the
graveyard Bur Houz Goshamahal, it is signed by the Surveyor on 2.5.1998 in red
ink and it is mentioned that 169. sq. yards is illegally in occupation and
unauthorized constructions are made.
D.W.1 deposed that he did not encroach into the site belonging to the graveyard.
He filed Exs.B.1 to B.8 photos. Exs.B.9 and B.10 are the extracts of assessment
of property tax for the year 1946-48. Ex.B.11 to B.13 are the extracts of
assessment register for the years 1968-1973, 1973-1983 and 1982-1998. Ex.B.14 is
the certified copy of plan issued by the Wakf Board. Ex.B.15 is the certified
copy of munthakab relating to Bur Houz Graveyard. Exs.B.16 to 18 are the photos.
Exs.B.19 to B.21 are the electricity bills. Ex.B.22 is the true copy of Gazette
Notification. Ex.X.1 is the survey report. Ex.X.2 is the plan showing the Bur
Houz graveyard, Goshamahal. Ex.X.3 is the inspection report of the Executive
Officer of the Board, dated 13.5.1998.
Similarly, D.W.2 deposed that the 1st defendant is residing in the premises
bearing No.15-1-300, Feel Khana and the houses were originally constructed by
HEH, the Nizam and later on, handed over to the City Improvement Board and later
they were taken over by the Housing Board and from the Housing Board, the
Government acquired the same and issued pattas. The evidence of D.Ws.3 and 4 is
to the effect that D.W.1 never encroached any portion of the property belonging
to the graveyard.
Firstly, I will deal with the aspect of scope of interference under revisional
jurisdiction with reference to Section 83(9) of the Act which reads as follows:
"No appeal shall lie against any decision or order whether interim or otherwise,
given or made by the Tribunal.
Provided that a High Court may, on its own motion or on the application of the
Board or any person aggrieved, call for and examine the records relating to any
dispute, question or other matter which has been determined by the Tribunal for
the purpose of satisfying itself as to the correctness, legality or propriety of
such determination and may conform, reverse or modify such determination or pass
such other orders as it may think fit."
In P.S. Pareed Kaka case (1 supra), the Supreme Court in para 17 of its judgment
held as under:
The High Court has jurisdiction to go into the legality or correctness of the
decision which, in our view, includes the power to reappreciate evidence and
that the High Court can interfere with the findings of fact also. This apart,
the jurisdiction of the High Court under Section 50 is to examine the legality
and correctness of the order of the trial Court. The examination as to the
correctness involves appreciation of evidence and that the High Court can
interfere if the finding of the Rent Controller is entirely improbable.
In G.L. Vijain case (2 supra), the Apex Court in para 14 of its judgment held as
follows:
"There is furthermore no dispute that the High Court can exercise its inherent
jurisdiction in appropriate cases. The revisional jurisdiction, however, in
effect and substance is an appellate jurisdiction.
In Narinder Mohan Arya V. United India Insurance Co.Ltd. and others ((2006) 4
SCC 713), this Court observed:
"47. A revisional jurisdiction as is well known involves exercise of appellate
jurisdiction. (See. Shankar Ramchandra Abhyankar V. Krishnaji Dattatreya Bapat
and Nalakath Sainuddin V. Koori-kadan Sulaiman.)"
In Shahabad Co-operative Sugar Mills Ltd. Case
(3 supra), the Apex Court held in paras 23 & 24 of its judgment as under:
"The revisional jurisdiction is akin to the appellate jurisdiction.
It would appear that their lordships of the Privy Council regarded the
revisional jurisdiction to be a part and parcel of the appellate jurisdiction of
the High Court. This is what was said in Nagendra nath Dey v. Suresh Chandra
Dey, 59 Ind App 283 at p.287 (AIR 1932 PC 165 at p.167).
"There is no definition of appeal in the Code of Civil Procedure, but their
Lordship have no doubt that any application by a party to an Appellate Court,
asking it to set aside or revise a decision of a subordinate Court, is an appeal
within the ordinary acceptation of the term......."
In Kempaiah case (4 supra), the Apex Court held in para 4 of its judgment
as follows:
"It has been held in Bhoolchand V. Kay Pee Cee Investments ((1991) 1 SCC 343)
that the revisional powers of the High Court, under the Act, are wider than the
powers conferred upon it under Section 115 of the Code of Civil Procedure. The
High Court is not precluded to appreciate the evidence for arriving at the
conclusion regarding the alleged reasonable bona fide requirement."
In Indian Airlines Ltd. Case (5 supra), the Supreme Court in paras 44 & 45 held
as under:
"But, in a case of this nature although there is no provision for appeal, but
even in a judicial review, the court may require the employer to produce the
records, on a perusal whereof the court may come to a finding as to whether the
order passed by the Board of Directors was bona fide or not.
A judicial review of such an order would be maintainable. In a case of judicial
review, where no appeal is provided for, the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India would not confine
its jurisdiction only to the known tests laid down therefor viz. illegality,
irrationality, procedural impropriety. It has to delve deeper into the matter.
It would require a deeper scrutiny."
In Lanko Hills Technology case (9 supra), the Division Bench of this Court held
in para 15 of its judgment as follows:
"The scope of a revision petition under the proviso to sub-section (9) of
Section 83 of the Wakf Act is to examine the correctness, legality or propriety
of order passed by the Wakf Tribunal in relation to a dispute or other matter.
It is not appellate jurisdiction stricto sensu nor original proceeding. If all
the relevant aspects of law and facts are considered by the Wakf Tribunal, no
exception can be taken thereto. Even if two views are possible from the evidence
on record, the High Court may not interfere with the order of the Wakf Tribunal,
unless it is ex facie relevant aspects or gave importance to irrelevant
factors."
In Bhoolchand case (10 supra), the Apex Court held in para 6 of its judgment as
under:
"However, the power of revision is not narrow as in S. 115 CPC but wider
requiring the High Court to examine the impugned order for the purpose of
satisfying itself as to the legality or correctness of such order or proceeding,
which enables the High Court to 'pass such order in reference thereto as it
thinks fit'. It is clear that the High Court in a revision under Section 50 of
the Act is required to satisfy itself not only as to the legality of the
impugned order or proceeding but also of its correctness. The. power of the High
Court, therefore, extends to correcting not merely errors of law but also errors
of fact. In other words, the High Court in a revision under Section 50 of the
Act is required to examine the correctness of not only findings on questions of
law but also on questions of fact. It is significant that the revision provided
is directly against the trial Court's order and not after a provision of appeal
on facts. All the same, the power in revision under Section 50 of the Act cannot
be equated with the power of the Appellate Court under Section 107(2) of the
Code of Civil Procedure which is the same as that of the original court; and the
revisional power under Section 50 of the Act even though wide as indicated must
fall short of the Appellate Court's power of interference with a finding of fact
where the finding of fact depends on the credibility of witnesses, there being a
conflict of oral evidence of the parties."
In Shiv Sarup Gupta case (11 supra), the Apex Court in para 11 of its judgment
held as follows:
Section 25-B of Delhi Rent Control Act, 1958 finding its place in Chapter III-A
of the Act was inserted into the body of the main Act by Act No.18 of 1976 with
effect from 1-12-1975. It provides for a special procedure to be followed for
the disposal of applications for eviction on the ground of bona fide need.
Obviously, this ground for eviction of the tenant has been treated on a footing
different from the one on which other grounds for eviction of the tenant stand.
Section 25-B is a self-contained provision in the sense that remedy against an
order passed by the Rent Controller thereunder is also provided by that
provision itself. Sub-section (8) provides that no appeal or second appeal shall
lie against an order for the recovery of possession of any premises made by the
Controller in accordance with the procedure specified in Section 25-B; provided
that the High Court may, for the purpose of satisfying itself that an order made
by the Controller under this Section is according to law (or not), call for the
records of the case and pass such order in respect thereto as it thinks fit'.
The phraseology of the provision as reproduced hereinbefore provides an
interesting reading placed in juxtaposition with the phraseology employed by the
Legislature in drafting Section 115 of the Code of Civil Procedure. Under the
latter provision the exercise of revisional jurisdiction of the High Court is
circumscribed by the subordinate court having committed one of the three errors,
namely (i) having exercised jurisdiction not vested in it by law, or (ii) having
failed to exercise a jurisdiction so vested, or (iii) having exercised its
jurisdiction with illegality or material irregularity. Under the proviso to
sub-section (8) of Section 25-B, the expression governing the exercise of
revisional jurisdiction by the High Court is for the purpose of, satisfying if
an order made by the Controller is according to law'. The revisional
jurisdiction exercisable by the High Court under Section 25-B (8) is not so
limited as is under Section 115, CPC nor so wide as that of an Appellate Court.
The High Court cannot enter into appreciation or re-appreciation of evidence
merely because it is inclined to take a different view of the facts as if it
were a Court of facts. However, the High Court is obliged to test the order of
the Rent Controller on the touchstone of 'whether it is according to law'. For
that limited purpose it may enter into reappraisal of evidence, that is, for the
purpose of ascertaining whether the conclusion arrived at by the Rent Controller
is wholly unreasonable or is one that no reasonable person acting with
objectivity could have reached that conclusion on the material available.
Ignoring the weight of evidence, proceeding on wrong premise of law or deriving
such conclusion from the established facts as betray the lack of reason and/or
objectivity would render the finding of the Controller 'not according to law'
calling for an interference under proviso to sub-section (8) of Section 25-B of
the Act. A judgment leading to miscarriage of justice is not a judgment
according to law. (See. Sarla Ahuja V. United India Insurance Co.Ltd., (1998) 8
SCC 119" (1998 AIR SCW 3451) and Ram Narain Arora V. Asha Rani, (1999 (1) SCC
141)."
In Speedline Agencies case (12 supra), the Apex Court in para 28 of its judgment
held as follows:
"In a revision under Section 25 of the Act, the Court is exercising a restricted
jurisdiction and not wide powers of the appellate court. In Sri Raja Lakshmi
Dyeing Works V. Rangaswamy Chettiar ((1980) 4 SCC 259) (p.262 para 3)
"3.... Therefore, despite the wide language employed in Section 25, the High
Court quite obviously should not interfere with findings of fact merely because
it does not agree with the finding of the subordinate authority. The power
conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease
and Rent Control) Act may not be as narrow as the revisional power of the High
Court under Section 115 of the Code of Civil Procedure but in the words of
Untwalia, J., in Dattonpant Goalvarao Devakate V. Vithalrao Maruthirao Janagaval
((1975) 2 SCC 246), it is not wide enough to make the High Court a second court
of first appeal.:
In Rukmini Amma Saradamma case (13 supra), the Supreme Court in paras 19 &
20 of its judgment held as under:
" 19. Therefore, the question would be whether in the context of this
provision the High Court was right in re-appreciating the evidence and coming to
a different conclusion In the impugned judgment in paragraph 7 the High Court
observed:
"Under S. 20 of the Act though re-appreciation of the evidence as such is not
called for, the pleadings and evidence have to be examined to satisfy the
legality, regularity of the order of the lower authorities."
20. We are afraid this approach of the High Court is wrong. Even the wider
language of S. 20 of the Act cannot enable the High Court to act as a first or a
second court of appeal. Otherwise the distinction between appellate and
revisional jurisdiction will get obliterated. Hence, the High Court was not
right in re-appreciating the entire evidence both oral or documentary in the
light of the Commissioner's report (Exts. C1 and C2 Mahazar). In our considered
view, the High Court had travelled far beyond the revisional jurisdiction. Even
by the presence of the word "propriety" it cannot mean that there could be a re-
appreciation of evidence. Of course, the revisional court can come to a
different conclusion but not on a re-appreciation of evidence; on the contrary,
by confining itself to legality, regularity and propriety of the order impugned
before it. Therefore, we are unable to agree with the reasoning of the High
Court with reference to the exercise of revisional jurisdiction."
In M/s. Sri Raja Lakshmi Dyeing Works case (14 supra), the Apex Court in paras 2
and 3 of its judgment held as follows:
"2. 'Appeal' and 'revision' are expressions of common usage in Indian statute
and the distinction between 'appellate jurisdiction' and 'revisional
jurisdiction' is well-known though not well defined, Ordinarily, appellate
jurisdiction involves a rehearing, as it were, on law as well as fact and is
invoked by an aggrieved person. Such jurisdiction may, however, be limited in
some way as, for instance has been done in the case of second appeal under the
Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily
again, revisional jurisdiction is analogous to a power of superintendence and
may sometimes be exercised even without its being invoked by a party. The extent
of revisional jurisdiction is defined by the statute conferring such
jurisdiction. The conferment of revisional jurisdiction is generally for the
purpose of keeping tribunals subordinate to the revising tribunal within the
bounds of their authority to make them act according to law, according to the
procedure established by law and according to well defined principles of
justice. Revisional jurisdiction as ordinarily understood with reference to our
statutes is always included in appellate jurisdiction but not vice versa. These
are general observations. The question of the extent of appellate or revisional
jurisdiction has to be considered in each case with reference to the language
employed by the statute.
3. Section 23 of the Tamil Nadu Building (Less and Rent Control) Act, 1960,
enables any person aggrieved by an order passed by the Controller to prefer an
appeal to the appellate authority having jurisdiction. Section 25 provides that:
The High Court may on the application of any person aggrieved by an order of the
appellate authority, call for and examine the record of appellate authority, to
satisfy itself as to the regularity of such proceeding or the correctness,
legality or propriety of any decision or order passed therein and if, in any
case it appears to the High Court that any such decision or order should be
modified, annulled, reversed or remitted for reconsideration it may pass orders
accordingly'.
The language of section 25 is indeed very wide. But we must attach some
significance to the circumstance that both the expressions 'appeal' and
'revision' are employed in the statute. Quite obviously, the expression revision
is meant to convey the idea of a much narrower jurisdiction than that conveyed
by the expression 'appeal'. In fact it has to be noticed that under Section 25
the High Court calls for and examines the record of the appellate authority in
order to satisfy itself. The dominant idea conveyed by the incorporation of the
words to satisfy 'itself' under Section 25 appears to be that the power
conferred on the High Court under Sec. 25 is essentially a power of
superintendence. Therefore, despite the wide language employed in Section 25 the
High Court quite obviously should not interfere with findings of fact merely
because to does not agree with the finding of the subordinate authority. The
power conferred on the High Court under Sec. 25 of the Tamil Nadu Buildings
(Lease and Rent Control) Act may not be as narrow as the revisional power of the
High Court under Section 115 of the Code of Civil Procedure but in the words of
Untwalia, J., in Dattopant Gopalvarao v. Vithalrao Marutirao (1975) 2 SCC 246:
(AIR 1975 SC 1111) "it is not wide enough to make the High Court a second Court
of first appeal".
In the decision in P.S. Pareed Kaka case (1 supra) cited by the learned
counsel for the petitioner, The Apex Court, while dealing with the interference
under revisional jurisdiction, held that the examination as to the correctness
involves appreciation of evidence and that the High Court can interfere if the
finding of the court below is entirely improbable. In G.L. Vijain case (2
supra), the Apex Court observed that the revisional jurisdiction, however, in
effect and substance is an appellate jurisdiction. In Kempaiah case (4 supra),
it is also observed that the revisional powers of the High Court are wider than
the powers conferred upon it under Section 115 of CPC and the High Court is not
precluded to appreciate the evidence for arriving at the conclusion. In Indian
Airlines Ltd. Case (5 supra), it is observed by the Apex Court that in a case of
judicial review, where no appeal is provided for, the High Court in exercise of
its jurisdiction under Article 226 of the Constitution of India would not
confine its jurisdiction only to the known tests laid down therefor viz.
illegality, irrationality, procedural impropriety and it has to delve deeper
into the matter and it would require a deeper scrutiny. The Hon'ble Supreme
Court in the above cases was interpreting the provisions regarding the scope of
revisional power where there is no bar of appeal like the one provided in
Section 83(9) of the Act, as such, the ratio laid down in the decisions may not
be applicable to the present case, since Section 83(9) of the Act clearly
provides that no appeal shall lie against any decision or order whether interim
or otherwise given or made by the Tribunal. The bar of appeal provided in the
Act itself makes all the difference while interpreting Section 83(9) of the Act.
When the Legislature itself bars the provision for appeal, question of treating
revision like appeal may not arise, as a result, appreciation of evidence like
that of appeal is ruled out. In view of the same, the above decisions cited by
the learned counsel for the petitioner, do not apply to the facts of the present
case.
In the decision in Lanko Hills Technology case (9 supra) cited by the
learned counsel for the 1st respondent, the Division Bench of this Court held
that it is not appellate jurisdiction stricto sensu nor original proceeding. In
Bhoolchand case (10 supra) also, the Apex Court held that revision provided
under Section 50 of the Karnataka Rent Control Act, 1961 cannot be equated with
the power of the appellate Court under Section 107(2) of CPC and that the
revisional power under Section 50 of the said Act even though wide as indicated
must fall short of the appellate court's power of interference with a finding of
fact. In Shiv Sarup Gupta case (11 supra) also, the Apex Court, while
interpreting Section 25-B(8) of the Delhi Rent Control Act (59 of 1958), held
that the High Court cannot enter into appreciation or re-appreciation of
evidence merely because it is inclined to take a different view of the facts as
if were a Court of facts. In the said Act also,
Section 25-B(8) bars provision for appeal or second appeal like the present
case. In Speedline Agencies case (12 supra) and in M/s. Sri Raja Lakshmi Dyeing
Works case (14 supra) also, the Supreme Court held that the power conferred on
the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent
Control) Act may not be as narrow as the revisional power of the High Court
under Section 115 of CPC, but it is not wide enough to make the High Court a
second court of first appeal. Similarly, in Rukmini Amma Saradamma case (13
supra) also, the Apex Court held that the High Court was not right in re-
appreciating the entire evidence as it had travelled far beyond the revisional
jurisdiction and that the word 'propriety' cannot mean that there could be a re-
appreciation of evidence.
In view of the above decisions, I hold that the scope of revisional
jurisdiction under Section 83(9) of the Act is not like that of appeal, since
the Legislature itself barred the appeal provision, but however, it is wider
than the revisional jurisdiction under Section 115 of CPC. But for satisfying as
to the correctness, legality or propriety of such determination, Court can
examine the facts in each case whether the decision is entirely improbable and
perverse and the Court below has followed the procedure contemplated under law.
Secondly, I will deal with the aspect of res judicata. In Ram Prakash case
(7 supra), the Apex Court in para 2 of its judgment held as under:
"It would be obvious that since the claims of the petitioner and the respondents
have arisen from the same cause of action and the finding of the appellate Court
that damages had accrued to the respondents due to misfeasance or malfeasance
having been allowed to become final, the decree which is subject matter of the
special leave petition cannot be assailed. The self same question was directly
in issue and was the subject matter of both the suits. The same having been
allowed to become final, it cannot be gone into since the same had attained
finality, the petitioner having not filed any appeal against the appeal
dismissing the suit. In view of this situation, the High Court was right in
concluding that the decree of dismissal of the suit against the petitioner would
operate as res judicata under Section 11 of CPC in the appeal against which the
petitioner has filed the second appeal."
In Sri Chintala Satyanarayana case (8 supra), the Division Bench of this Court
in para 7 of its judgment held as follows:
"As already stated supra, the common issue in both the suits was whether the
plaint schedule properties were self acquired properties of Agaiah or joint
family properties The finding recorded in O.S.18/74, as well as the suit under
appeal (O.S.73/76) was that the properties were self acquired properties of the
husband of the defendant. In so far as this aspect is concerned, it is not open
to the appellant-plaintiff to canvass the correctness of that finding. It is
well settled that when two suits are tried together and disposed of by a common
judgment and if only one appeal is filed against one of the suits, the judgment
and decree in the other having attained finality cannot be disturbed in the
appeal preferred against the other judgment (vide K.Krishnan V. T.T.Devasthanams
(1995 (2) ALT 122 (D.B.)."
The decisions in Ram Prakash case (7 supra) & Sri Chintala Satyanarayana case (8
supra), wherein it is held that the finding which has become final cannot be
reagitated in the appeal, also apply to the facts of the present case, since the
1st respondent has not challenged the dismissal of the other suit in O.S.No.58
of 1998.
Further, in A.A.Gopalakrishnan case (6 supra), the Supreme Court held that
it is also the duty of courts to protect and safeguard the properties of
religious and charitable institutions from wrongful claims or misappropriation.
Having gone through the evidence on record, the judgment of the Tribunal and the
decisions relied on by both the learned counsel, I am thoroughly satisfied that
the Tribunal has not considered the evidence on record with reference to the
issues framed and the pleadings on record and the same needs interference within
the scope of revisional jurisdiction under Section 83(9) of the Act. Though
several issues were framed and several witnesses were examined, the evidence
referred to above and the issues framed in the suit are not properly dealt with.
The Tribunal has not understood the scope of Section 83(5) of the Act. As per
this Section, the Tribunal shall be deemed to be a civil court and shall have
the same powers as may be exercised by a civil court under the Code of Civil
Procedure, 1908 while trying a suit or executing a decree or order. As per Sub-
Section 7 of Section 83 of the Act, the decision of the Tribunal shall be final
and binding upon the parties to the application and it shall have the force of a
decree made by a civil court.
When the issues are framed and evidence is led, the Tribunal should have
adverted to the same and disposed of the suit by taking a comprehensive view of
the matter, when once the matter is remanded back by observing that the earlier
disposal is not as per law. I am of the view that the Tribunal has not dealt
with the issues and the evidence in proper manner and the matter has to be again
remanded back to the Tribunal. As the Tribunal has committed material
irregularity, the same needs to be interfered within the scope of revisional
jurisdiction under Section 83(9) of the Act.
I am conscious of the fact that once the matter was already remitted back,
but as held in above decisions, I cannot re-appreciate the evidence afresh like
in appeal with reference to the issues framed and decide the suit, as such,
there is no other go except to remit the matter back to the Tribunal for its
decision on merits by considering the evidence with reference to the issues
framed. Since it is an old matter, time can be fixed for its disposal.
Accordingly, the Civil Revision Petition is allowed by setting aside the
judgment and decree under revision and the matter is remanded back to the
Tribunal for fresh disposal. The Tribunal is directed to dispose of the suit
without being influenced by any of the observations made herein, in accordance
with law, within a period of four (4) months from the date of receipt of a copy
of this order. There shall be no order as to costs.
The order of status quo dated 11.08.2006 granted earlier in this appeal
shall continue till disposal of the suit
As a sequel, miscellaneous petitions, if any, pending in the civil revision
petition shall stand disposed of.
_________________________
A. RAJASHEKER REDDY, J.
2nd July, 2013
When the issues are framed and evidence is led, the Tribunal should have
adverted to the same and disposed of the suit by taking a comprehensive view of
the matter, when once the matter is remanded back by observing that the earlier
disposal is not as per law. I am of the view that the Tribunal has not dealt
with the issues and the evidence in proper manner and the matter has to be again
remanded back to the Tribunal. As the Tribunal has committed material
irregularity, the same needs to be interfered within the scope of revisional
jurisdiction under Section 83(9) of the Act.
I am conscious of the fact that once the matter was already remitted back,
but as held in above decisions, I cannot re-appreciate the evidence afresh like
in appeal with reference to the issues framed and decide the suit, as such,
there is no other go except to remit the matter back to the Tribunal for its
decision on merits by considering the evidence with reference to the issues
framed. Since it is an old matter, time can be fixed for its disposal.
Accordingly, the Civil Revision Petition is allowed by setting aside the
judgment and decree under revision and the matter is remanded back to the
Tribunal for fresh disposal.
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
C.R.P.No.3636 of 2006
dated:02-07-2013
Mohammed Abdul Hameed Khursheed.. Petitioner
Zulfikhar Ahmed and two others.. Respondents
Counsel for petitioner : Sri L. Prabhakar Reddy
Counsel for 1st respondent : Sri B. Nalin Kumar
Counsel for 2nd respondent: Sri M.A. Mukheed
<GIST:
>HEAD NOTE:
?CASES REFERRED :
1) AIR 2004 SC 2049
2) AIR 2007 SC 1103
3) AIR 2007 SC 340(1)
4) (2001) 8 SCC 718
5) (2006) 11 SCC 67
6) (2007) 7 SCC 482
7) AIR 1997 SC 3760
8) 1996 (2) ALD 683 (D.B)
9) 2012 (4) ALD 385 (DB)
10) (1991) 1 SCC 343
11) AIR 1999 SC 2507
12) (2010) 6 SCC 257
13) (1993) 1 SCC 499
14) (1980) 4 SCC 259
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
CIVIL REVISION PETITION No.3636 of 2006
ORDER:
This Civil Revision Petition is filed by the petitioner/plaintiff against the
judgment and decree, dated 04.04.2006, in O.S.No.56 of 1998 on the file of the
Andhra Pradesh Wakf Tribunal, Hyderabad (the Tribunal).
For the sake of convenience and to avoid ambiguity in the discussion, the
parties will be referred to hereinafter as they were arrayed in the suit.
The plaintiff herein filed the above-mentioned suit for declaration that the
construction made by the 1st defendant on the graveyard land is illegal, for
perpetual injunction restraining the 1st defendant, his agents, henchmen,
relatives and anybody claiming through him from interfering with the graveyard
land of Bur Houz Goshamahal, Hyderabad, for mandatory injunction against the
defendants for removal of the construction made on the graveyard land and to
remove dumped material on it, for a money decree against defendant No.1 for
illegally using the graveyard land by dumping the construction material on it
and for costs of the suit.
With the following plaint averments:
There is an old graveyard called "Graveyard Burhouz", Goshamahal and it is
registered as wakf and managed by the Muthawalli and the present Muthawalli is
the plaintiff. At the eastern side of the graveyard abutting street, there was
encroachment by the 1st defendant and he opened doors at the western side of his
occupied house No.15-1-300 at about 169. aq. Yards of graveyard. The plaintiff
complained against encroachment and opening of the doors and window in the
graveyard land. But, the 2nd defendant has not taken any effective steps and
neither the Municipal Corporation of Hyderabad nor the Police has protected from
encroaching and opening the doors and thereby the 1st defendant has habitually
become law breaker and trouble monger for the institution of the graveyard and
it is managing affairs ignoring that the graveyard cannot be used for any other
purpose against the tenements of Islam and feeling and sentiment of kith and kin
of the buried. The 1st defendant as self styled leader of the locality people
have won over the political parties and in fact made proposals for laying road
and the water supply pipeline in the middle of the graveyard land against the
interest of the institution. The 1st defendant and his henchmen made to attempt
to make use of the open land of the graveyard for playground and they would have
succeeded in their evil attempts, had the plaintiff been little lethargic. The
1st defendant started the construction of his occupied house No.15-1-300 which
is on the encroached land of the graveyard without proper municipal permits and
plans and without No Objection Certificate from the 2nd defendant abutting and
encroaching the graveyard land during the first week of April, 1998.
Immediately, the plaintiff has complained to the 2nd defendant, police and
Municipal authorities, but they have not taken any action as per law. The
Municipal authorities, particularly, the Assistant Town Planner, Circle No.II
under the 3rd defendant have ignored their prime and foremost duty to implement
the Municipal law and save the wakf land. The 1st defendant against the law and
without any authority on 14.4.98 entered the graveyard and dumped the
construction material on the graveyard open land by removing the boundary
stones. The plaintiff has complained to the Police Inspector, Begum Bazar,
Hyderabad, but the police has not taken any action as per law and did not launch
prosecution against the 1st defendant.
The 2nd defendant after great persuasion
deputed their surveyor who made detailed survey of the graveyard and reported
the matter to the higher authorities for their action.
Thereupon, a notification
u/s 54(1) of the Wakf Act, 1995 (for short 'the Act') issued and the time
specified in the notice elapsed long back, except above notice, the 2nd
defendant could not take any effective action to stop the construction made by
the 1st defendant and protect the graveyard.
Taking advantage of the situation
and the lethargic attitude of the 2nd and 3rd defendants, the 1st defendant has
speed up the construction work day and night and he intoxicated any support of
anti-social elements and without minding the notice issued u/s 54(1) of the Act
and by-passing the Municipal laws attempted to complete the construction work
with an evil intention to cause loss to the institution. Hence, the suit.
The 1st defendant filed written statement contending that the plaintiff is not
the present Muthawalli and one Sri Gulam Mohd. @ Iqbal used to manage the
affairs of the graveyard. The plaintiff has fabricated a story of encroachment.
There is no encroachment on any part of the graveyard nor any door has been
opened on the western side of the House No.15-1-300. The extent of the house has
also not correctly been stated and also boundaries and dimensions. He has never
styled himself as leader nor has he ever proposed laying of roads and water
pipelines at any site. The 2nd defendant has not issued No Objection Certificate
nor there is any application to this effect by him. He has not dumped any
construction material nor he removed any boundary stones at site. He is not
aware of the proceedings of the VIII Asst. Judge, City Civil Court, Hyderabad
nor is he aware of the complaint to the police. He is not aware of survey by the
2nd defendant and has not received any notice about the survey proceedings from
the 2nd defendant.
The 2nd defendant also filed written statement contending that the graveyard
land is a registered wakf property and also notified in A.P.Gazette No.44, dated
7.11.1985 and the plaintiff is the approved Muthawalli by the 2nd defendant. On
receipt of representation, dated 15.4.98, from the plaintiff against the 1st
defendant, it addressed a letter to the Asst. Town Planner requesting him to
demolish the illegal structures and also not to allow anybody to carryout any
construction in the graveyard. It has deputed the office surveyor for inspection
and report and consequent on receipt of the report of the surveyor, it again
addressed to the Commissioner, MCH vide letter dated 11.5.1998 marking copy to
the Asst. Town Planner to demolish the unauthorized construction, but no action
was taken, as such, in exercise of the powers conferred under the Act, it issued
a show cause notice u/s 54/(1) of the Act for eviction of the encroached area by
12.5.1998. Since no reply was given by the 1st defendant and no cause shown
within the stipulated period, in exercise of the provisions as contemplated u/s
54(3) of the Act, it has issued orders directing the 1st defendant for delivery
of possession of the suit property to it. The 1st defendant has no authority or
right over the suit property to carry out construction over the same as the suit
property is a wakf property.
The 1st defendant also filed O.S.No.58 of 1998 against the plaintiff and
others.
On the above pleadings, the following common issues were framed for trial:
1) Whether the suit is bad for non-compliance of notice u/s 89 of Wakf Act
2) Whether the suit is properly valued
3) Whether the plaintiff is entitled to be declared as the owner of the suit
land
4) Whether the construction made by defendant No.1 over suit property and the
same comes under purview of MCH Act
5) Whether the construction made by defendant No.1 over the suit property is
liable to be demolished as prayed for
6) Whether the plaintiff is entitled for perpetual injunction against the
defendants
7) To what relief
The plaintiff got examined himself as P.W.1 and marked Exs.A.1 to A.37 on his
behalf. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B.1 to
B.22 were marked. Exs.X.1 to X.3 were marked with consent.
The Tribunal, by common judgment, dated 04.04.2003, dismissed O.S.No.56 of 1998
filed by the petitioner and decreed O.S.No.58 of 1998 filed by the 1st
respondent. Feeling aggrieved thereby, the petitioner filed C.R.P.Nos.2855 and
2827 of 2003 before this Court against the dismissal of O.S.No.56 of 1998 and
decreeing of O.S.No.58 of 1998 respectively. Both the revisions were allowed
through common order, dated 17.12.2003, and the matters were remitted back to
the lower Tribunal with a direction to give opportunity to all the parties
concerned inclusive of the Board to adduce further evidence, if any, relating to
all the issues which had been settled between the parties and dispose of the
matters, in accordance with law.
After remand, Ex.A.38 was marked on behalf of the plaintiff and D.Ws.5 and 6
were examined and Exs.B.23 to 26 were marked on behalf of the defendants.
The Tribunal, after considering the entire evidence, dismissed both the suits by common judgment dated 04.04.2006.
Being aggrieved by the same, the petitioner
filed the present revision against the dismissal of O.S.No.56 of 1998.
While so,
the 1st respondent has not filed any revision against the dismissal of O.S.No.58 of 1998.
Sri L. Prabhakar Reddy, learned counsel for the revision petitioner/plaintiff
submitted that the evidence of P.W.1 and D.Ws.5 and 6 is sufficient enough for
decreeing the suit. He contended that though several issues were framed, the
Tribunal had not at all discussed them with reference to the evidence adduced
and the documents marked, though there is a clear direction in the order passed
by this Court in C.R.P.Nos.2827 and 2855 of 2003 to consider the evidence and
dispose of the suits according to law. He further contended that the Tribunal
disposed of the suit without any application of mind by taking some portions of
evidence here and there instead of construing the entire evidence
comprehensively for coming to a right conclusion and that the Tribunal did not
answer the issues framed, as such, the order impugned in this revision is liable
to be set aside. He further contended that under Section 83 (9) of the Act, this
Court can examine the correctness, legality or propriety of such determination
and may confirm, reverse or modify such determination or pass such other orders
as it may think fit. He further contended that the scope of revision under
Section 83(9) of the Act is very wide and even the evidence can be re-
appreciated while examining the correctness, legality and propriety of such
determination. He further contended that the Wakf Board had issued a notice u/s
54(1) of the Act dated 12.5.98 directing the 1st defendant to vacate the suit
property and having received the notice, the 1st defendant had proceeded with
the construction work and the Board also exercised its powers styling the 1st
defendant as encroacher to remove the encroachments and deliver possession of
the suit property to the plaintiff. He also contended that the Tribunal had not
properly appreciated the scope and ambit of Section 83 of the Act and totally
erred in holding that the plaintiff failed to establish his case by producing
the record showing the extent of land attached to the Wakf Institution. In
support of his contention that the scope of revision under Section 83(9) of the
Act is as wide as appeal, he relied on the decisions in P.S. Pareed Kaka and
others V. Shafee Ahmed Saheb1, G.L. Vijain V. K. Shankar2, Shahabad Co-operative
Sugar Mills Ltd. V. Special Secretary to Govt. of Haryana Corp. and Ors.3
Kempaiah V. Lingaiah and others4 and Indian Airlines Ltd. V. Prabha D. Kanan5.
The learned counsel also contended that it is a public property and the same
should be protected as held by the Apex Court in the decision in A.A.
Gopalakrishnan V. Cochin Devaswom Board and others6. It is also contended that
the 1st respondent has not filed any revision against the dismissal of his suit
in O.S.No.58 of 1998 which operates as resjudicata against him. He relied on the
judgments in Ram Prakash V. Smt. Charan Kaur and another7, and Sri Chintala
Satyanarayana V. Smt. Chintala Kistamma8.
Sri B. Nalin Kumar, learned counsel for the 1st respondent/1st defendant
contended that the scope of the revision under the proviso to Section 83(9) of
the Act is very limited, that this Court cannot interfere with the findings of
fact arrived at by the Tribunal and that there cannot be any re-appreciation of
both oral and documentary evidence available on record like in appeal as Section
83(9) of the Act clearly bars appeal against the decision of the Tribunal and
only revision is provided, that too, to examine the correctness, legality or
propriety of such determination. He further contended that this Court cannot
extend the scope of revision and deal with it like an appeal, when the
legislature itself has barred the provision for appeal. The learned counsel
submitted that in all the decisions relied on by the petitioner, there was no
bar of appeal in the relevant enactments dealt with therein, as in the present
case. So, the decisions cited by the learned counsel for the petitioner have no
application. He further submitted that the petitioner has not given any specific
boundaries to the suit property and there is no identification as to how much
extent of the graveyard is encroached. He contended that the evidence of P.W.1
and D.Ws.5 and 6 is inconsistent and the total area of the graveyard is also not
correctly stated and the encroachment part is also not identified. He further
contended that the boundaries given in the suit schedule and the boundaries as
deposed by the witnesses are not tallying with each other. The so-called Exs.X.1
to X.3 are not binding on the 1st respondent, since no notice was issued to him
while conducting the survey. He also contended that the notice issued by the
Wakf Board under Section 54 of the Act is also very vague without any specific
boundaries. He further contended that the suit cannot be decreed on the basis of
Ex.X.2 which shows the extent of encroachment. He further contended that the
findings given in O.S.No.58 of 1998 cannot be interfered with, since no revision
is filed against the judgment and decree passed in the said suit. In support of
his contentions, he relied on the decisions in Lanco Hills Technology Park Pvt.
Ltd., Hyderabad V. Mahaboob Alam Khan and others9, Bhoolchand and another V. Kay
Pee Cee Investments and another10, Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta11,
Speedline Agencies Vs. T. Stanes and Company Limited12, Rukmini Amma Saradamma
V. Kallyani Sulochana and others13 and M/s. Sri Raja Lakshmi Dyeing Works and
others V. Rangaswamy Chettiar14.
Sri M.A. Mukheed, learned counsel for the 2nd respondent/2nd defendant contended
that the suit property was encroached by the 1st respondent, as such, they
issued a notice to him by invoking the provisions of Section 54 of the Act and
since the 1st respondent has not given any reply, they issued eviction
proceedings and at that time, the 1st respondent filed O.S.No.58 of 1998 and
obtained interim orders stalling their eviction proceedings. He submitted that
the suit property is part and parcel of the graveyard notified as wakf and the
Wakf Board also addressed several letters to the Municipal Corporation for
demolishing the same, but no action was taken. He further submitted that had the
1st respondent not filed the aforestated suit and obtained interim orders, the
2nd respondent could have proceeded with the removal of encroachments under
Section 54 of the Act. He further submitted that the 1st respondent has not
challenged the eviction proceedings and only filed the suit for injunction and
the suit was rightly dismissed by the Tribunal and having dismissed the suit for
injunction filed by the 1st respondent, the Tribunal should have decreed
O.S.No.56 of 1998 filed by the revision petitioner. He further submitted that
the encroachment made by the 1st respondent is demarcated by the Surveyor in
Ex.X.2, as such, the dismissal of O.S.No.56 of 1998 is erroneous.
P.W.1/revision petitioner deposed that he is the Muthawalli of the graveyard.
Ex.A.1 is munthakab issued by the A.P.State Wakf Board and that defendant No.1
in O.S.No.56 of 1998 opened door and window on the eastern side of the house and
he had reported the same to the Board and the Municipal Corporation and also to
the police, but they did not take any action. Exs.A.2 and A.3 are the copies of
letters sent to the wakf Board and the police. Ex.A.4 is the reply from HUDA and
Ex.A.5 is the reply given to HUDA. Ex.A.6 is the certified copy of graveyard
plan. He also deposed that the 1st defendant completely demolished the house
bearing No.15-1-300 and also constructed a new house by encroaching on the site
belonging to the graveyard and he gave a representation to the Board and Ex.A.7
is the copy of the said representation. Ex.A.8 is the representation given to
the Assistant Town Planner. Ex.A.9 is the copy of the letter addressed to the
police. Ex.A.10 is the copy of letter addressed to the Board. Ex.A.11 is the
copy of letter addressed to the Station House Officer, Begum Bazaar P.S. Ex.A.12
is the copy of letter to the Addl. Commissioner, MCH, Hyderabad. Ex.A.13 is the
office copy of letter to the Commissioner, MCH, Hyderabad. Ex.A.14 is the
another letter complaining about the encroachment. Ex.A.15 is the copy of the
proceedings and Exs.A.16 to 26 are the photos with negatives. Exs.A.27 to 29 are
the copies of letter. Ex.A.30 is the Gazette Notification notifying the wakf
property. Ex.A.31 is the representation. Ex.A.32 is the acknowledgment by the
Quli Qutub Shah Urban Development Authority. Ex.A.33 is the representation given
to the Chairman. Ex.A.34 is the copy of Ex.A.33 sent to the Deputy Director,
Hyderabad. Ex.A.36 is the copy of complaint. Ex.A.37 is the application to Wakf
Board for copies of Munthakab and other documents. Ex.A.38 is the certified copy
of plan.
D.Ws.5 and 6, who were examined on behalf of the 2nd defendant, also supported
the case of the revision petitioner/plaintiff. D.W.5, Md. Habeeb Uddin Ansari,
Executive Officer, A.P.State Wakf Board, in his evidence stated that the
graveyard situated at Gosha Mahal, Hyderabad, is notified wakf registered in the
year 1350 fasli under A.P.Gazette No.45, dated 17.11.1985 and being looked after
by the Muthawalli. He also stated that the suit property is a wakf property and
the authority has no power to issue pattas and D.W.1 encroached over the
property of graveyard. He further deposed that the Wakf Board directed the
Surveyor to inspect the illegal constructions and encroachments by D.W.1 and
submit a report and letter dated 15.08.1998 is addressed to the Asst. Town
Planner, Hyderabad requesting to demolish the illegal constructions and not to
carry out any further constructions. He further deposed that the Surveyor
submitted his report after examining the site and the Wakf Board addressed a
letter dated 11.05.1998 to the MCH to demolish the unauthorized constructions
and that the Wakf Board issued a notice u/s 54(1) of the Act to D.W.1 on
12.05.1998 calling upon him to explain as to why he should not be evicted from
the property which is encroached upon by him.
D.W.6 by name Md. Shujath Ali Khan, Surveyor in A.P. State Wakf Board, deposed
that the graveyard situated at Gosha Mahal, Hyderabad, is notified wakf
registered in the year 1350 fasli under A.P.Gazette No.45, dated 17.11.1985, and
P.W.1 is the Muthawalli and on the instructions of the Chief Executive Officer,
he inspected the graveyard and took measurements and prepared Ex.X.2 and found
that D.W.1 has encroached over a portion of the graveyard. Ex.A.38 is the
certified copy of the map of the graveyard. Ex.X.2 is the rough plan showing the
graveyard Bur Houz Goshamahal, it is signed by the Surveyor on 2.5.1998 in red
ink and it is mentioned that 169. sq. yards is illegally in occupation and
unauthorized constructions are made.
D.W.1 deposed that he did not encroach into the site belonging to the graveyard.
He filed Exs.B.1 to B.8 photos. Exs.B.9 and B.10 are the extracts of assessment
of property tax for the year 1946-48. Ex.B.11 to B.13 are the extracts of
assessment register for the years 1968-1973, 1973-1983 and 1982-1998. Ex.B.14 is
the certified copy of plan issued by the Wakf Board. Ex.B.15 is the certified
copy of munthakab relating to Bur Houz Graveyard. Exs.B.16 to 18 are the photos.
Exs.B.19 to B.21 are the electricity bills. Ex.B.22 is the true copy of Gazette
Notification. Ex.X.1 is the survey report. Ex.X.2 is the plan showing the Bur
Houz graveyard, Goshamahal. Ex.X.3 is the inspection report of the Executive
Officer of the Board, dated 13.5.1998.
Similarly, D.W.2 deposed that the 1st defendant is residing in the premises
bearing No.15-1-300, Feel Khana and the houses were originally constructed by
HEH, the Nizam and later on, handed over to the City Improvement Board and later
they were taken over by the Housing Board and from the Housing Board, the
Government acquired the same and issued pattas. The evidence of D.Ws.3 and 4 is
to the effect that D.W.1 never encroached any portion of the property belonging
to the graveyard.
Firstly, I will deal with the aspect of scope of interference under revisional
jurisdiction with reference to Section 83(9) of the Act which reads as follows:
"No appeal shall lie against any decision or order whether interim or otherwise,
given or made by the Tribunal.
Provided that a High Court may, on its own motion or on the application of the
Board or any person aggrieved, call for and examine the records relating to any
dispute, question or other matter which has been determined by the Tribunal for
the purpose of satisfying itself as to the correctness, legality or propriety of
such determination and may conform, reverse or modify such determination or pass
such other orders as it may think fit."
In P.S. Pareed Kaka case (1 supra), the Supreme Court in para 17 of its judgment
held as under:
The High Court has jurisdiction to go into the legality or correctness of the
decision which, in our view, includes the power to reappreciate evidence and
that the High Court can interfere with the findings of fact also. This apart,
the jurisdiction of the High Court under Section 50 is to examine the legality
and correctness of the order of the trial Court. The examination as to the
correctness involves appreciation of evidence and that the High Court can
interfere if the finding of the Rent Controller is entirely improbable.
In G.L. Vijain case (2 supra), the Apex Court in para 14 of its judgment held as
follows:
"There is furthermore no dispute that the High Court can exercise its inherent
jurisdiction in appropriate cases. The revisional jurisdiction, however, in
effect and substance is an appellate jurisdiction.
In Narinder Mohan Arya V. United India Insurance Co.Ltd. and others ((2006) 4
SCC 713), this Court observed:
"47. A revisional jurisdiction as is well known involves exercise of appellate
jurisdiction. (See. Shankar Ramchandra Abhyankar V. Krishnaji Dattatreya Bapat
and Nalakath Sainuddin V. Koori-kadan Sulaiman.)"
In Shahabad Co-operative Sugar Mills Ltd. Case
(3 supra), the Apex Court held in paras 23 & 24 of its judgment as under:
"The revisional jurisdiction is akin to the appellate jurisdiction.
It would appear that their lordships of the Privy Council regarded the
revisional jurisdiction to be a part and parcel of the appellate jurisdiction of
the High Court. This is what was said in Nagendra nath Dey v. Suresh Chandra
Dey, 59 Ind App 283 at p.287 (AIR 1932 PC 165 at p.167).
"There is no definition of appeal in the Code of Civil Procedure, but their
Lordship have no doubt that any application by a party to an Appellate Court,
asking it to set aside or revise a decision of a subordinate Court, is an appeal
within the ordinary acceptation of the term......."
In Kempaiah case (4 supra), the Apex Court held in para 4 of its judgment
as follows:
"It has been held in Bhoolchand V. Kay Pee Cee Investments ((1991) 1 SCC 343)
that the revisional powers of the High Court, under the Act, are wider than the
powers conferred upon it under Section 115 of the Code of Civil Procedure. The
High Court is not precluded to appreciate the evidence for arriving at the
conclusion regarding the alleged reasonable bona fide requirement."
In Indian Airlines Ltd. Case (5 supra), the Supreme Court in paras 44 & 45 held
as under:
"But, in a case of this nature although there is no provision for appeal, but
even in a judicial review, the court may require the employer to produce the
records, on a perusal whereof the court may come to a finding as to whether the
order passed by the Board of Directors was bona fide or not.
A judicial review of such an order would be maintainable. In a case of judicial
review, where no appeal is provided for, the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India would not confine
its jurisdiction only to the known tests laid down therefor viz. illegality,
irrationality, procedural impropriety. It has to delve deeper into the matter.
It would require a deeper scrutiny."
In Lanko Hills Technology case (9 supra), the Division Bench of this Court held
in para 15 of its judgment as follows:
"The scope of a revision petition under the proviso to sub-section (9) of
Section 83 of the Wakf Act is to examine the correctness, legality or propriety
of order passed by the Wakf Tribunal in relation to a dispute or other matter.
It is not appellate jurisdiction stricto sensu nor original proceeding. If all
the relevant aspects of law and facts are considered by the Wakf Tribunal, no
exception can be taken thereto. Even if two views are possible from the evidence
on record, the High Court may not interfere with the order of the Wakf Tribunal,
unless it is ex facie relevant aspects or gave importance to irrelevant
factors."
In Bhoolchand case (10 supra), the Apex Court held in para 6 of its judgment as
under:
"However, the power of revision is not narrow as in S. 115 CPC but wider
requiring the High Court to examine the impugned order for the purpose of
satisfying itself as to the legality or correctness of such order or proceeding,
which enables the High Court to 'pass such order in reference thereto as it
thinks fit'. It is clear that the High Court in a revision under Section 50 of
the Act is required to satisfy itself not only as to the legality of the
impugned order or proceeding but also of its correctness. The. power of the High
Court, therefore, extends to correcting not merely errors of law but also errors
of fact. In other words, the High Court in a revision under Section 50 of the
Act is required to examine the correctness of not only findings on questions of
law but also on questions of fact. It is significant that the revision provided
is directly against the trial Court's order and not after a provision of appeal
on facts. All the same, the power in revision under Section 50 of the Act cannot
be equated with the power of the Appellate Court under Section 107(2) of the
Code of Civil Procedure which is the same as that of the original court; and the
revisional power under Section 50 of the Act even though wide as indicated must
fall short of the Appellate Court's power of interference with a finding of fact
where the finding of fact depends on the credibility of witnesses, there being a
conflict of oral evidence of the parties."
In Shiv Sarup Gupta case (11 supra), the Apex Court in para 11 of its judgment
held as follows:
Section 25-B of Delhi Rent Control Act, 1958 finding its place in Chapter III-A
of the Act was inserted into the body of the main Act by Act No.18 of 1976 with
effect from 1-12-1975. It provides for a special procedure to be followed for
the disposal of applications for eviction on the ground of bona fide need.
Obviously, this ground for eviction of the tenant has been treated on a footing
different from the one on which other grounds for eviction of the tenant stand.
Section 25-B is a self-contained provision in the sense that remedy against an
order passed by the Rent Controller thereunder is also provided by that
provision itself. Sub-section (8) provides that no appeal or second appeal shall
lie against an order for the recovery of possession of any premises made by the
Controller in accordance with the procedure specified in Section 25-B; provided
that the High Court may, for the purpose of satisfying itself that an order made
by the Controller under this Section is according to law (or not), call for the
records of the case and pass such order in respect thereto as it thinks fit'.
The phraseology of the provision as reproduced hereinbefore provides an
interesting reading placed in juxtaposition with the phraseology employed by the
Legislature in drafting Section 115 of the Code of Civil Procedure. Under the
latter provision the exercise of revisional jurisdiction of the High Court is
circumscribed by the subordinate court having committed one of the three errors,
namely (i) having exercised jurisdiction not vested in it by law, or (ii) having
failed to exercise a jurisdiction so vested, or (iii) having exercised its
jurisdiction with illegality or material irregularity. Under the proviso to
sub-section (8) of Section 25-B, the expression governing the exercise of
revisional jurisdiction by the High Court is for the purpose of, satisfying if
an order made by the Controller is according to law'. The revisional
jurisdiction exercisable by the High Court under Section 25-B (8) is not so
limited as is under Section 115, CPC nor so wide as that of an Appellate Court.
The High Court cannot enter into appreciation or re-appreciation of evidence
merely because it is inclined to take a different view of the facts as if it
were a Court of facts. However, the High Court is obliged to test the order of
the Rent Controller on the touchstone of 'whether it is according to law'. For
that limited purpose it may enter into reappraisal of evidence, that is, for the
purpose of ascertaining whether the conclusion arrived at by the Rent Controller
is wholly unreasonable or is one that no reasonable person acting with
objectivity could have reached that conclusion on the material available.
Ignoring the weight of evidence, proceeding on wrong premise of law or deriving
such conclusion from the established facts as betray the lack of reason and/or
objectivity would render the finding of the Controller 'not according to law'
calling for an interference under proviso to sub-section (8) of Section 25-B of
the Act. A judgment leading to miscarriage of justice is not a judgment
according to law. (See. Sarla Ahuja V. United India Insurance Co.Ltd., (1998) 8
SCC 119" (1998 AIR SCW 3451) and Ram Narain Arora V. Asha Rani, (1999 (1) SCC
141)."
In Speedline Agencies case (12 supra), the Apex Court in para 28 of its judgment
held as follows:
"In a revision under Section 25 of the Act, the Court is exercising a restricted
jurisdiction and not wide powers of the appellate court. In Sri Raja Lakshmi
Dyeing Works V. Rangaswamy Chettiar ((1980) 4 SCC 259) (p.262 para 3)
"3.... Therefore, despite the wide language employed in Section 25, the High
Court quite obviously should not interfere with findings of fact merely because
it does not agree with the finding of the subordinate authority. The power
conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease
and Rent Control) Act may not be as narrow as the revisional power of the High
Court under Section 115 of the Code of Civil Procedure but in the words of
Untwalia, J., in Dattonpant Goalvarao Devakate V. Vithalrao Maruthirao Janagaval
((1975) 2 SCC 246), it is not wide enough to make the High Court a second court
of first appeal.:
In Rukmini Amma Saradamma case (13 supra), the Supreme Court in paras 19 &
20 of its judgment held as under:
" 19. Therefore, the question would be whether in the context of this
provision the High Court was right in re-appreciating the evidence and coming to
a different conclusion In the impugned judgment in paragraph 7 the High Court
observed:
"Under S. 20 of the Act though re-appreciation of the evidence as such is not
called for, the pleadings and evidence have to be examined to satisfy the
legality, regularity of the order of the lower authorities."
20. We are afraid this approach of the High Court is wrong. Even the wider
language of S. 20 of the Act cannot enable the High Court to act as a first or a
second court of appeal. Otherwise the distinction between appellate and
revisional jurisdiction will get obliterated. Hence, the High Court was not
right in re-appreciating the entire evidence both oral or documentary in the
light of the Commissioner's report (Exts. C1 and C2 Mahazar). In our considered
view, the High Court had travelled far beyond the revisional jurisdiction. Even
by the presence of the word "propriety" it cannot mean that there could be a re-
appreciation of evidence. Of course, the revisional court can come to a
different conclusion but not on a re-appreciation of evidence; on the contrary,
by confining itself to legality, regularity and propriety of the order impugned
before it. Therefore, we are unable to agree with the reasoning of the High
Court with reference to the exercise of revisional jurisdiction."
In M/s. Sri Raja Lakshmi Dyeing Works case (14 supra), the Apex Court in paras 2
and 3 of its judgment held as follows:
"2. 'Appeal' and 'revision' are expressions of common usage in Indian statute
and the distinction between 'appellate jurisdiction' and 'revisional
jurisdiction' is well-known though not well defined, Ordinarily, appellate
jurisdiction involves a rehearing, as it were, on law as well as fact and is
invoked by an aggrieved person. Such jurisdiction may, however, be limited in
some way as, for instance has been done in the case of second appeal under the
Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily
again, revisional jurisdiction is analogous to a power of superintendence and
may sometimes be exercised even without its being invoked by a party. The extent
of revisional jurisdiction is defined by the statute conferring such
jurisdiction. The conferment of revisional jurisdiction is generally for the
purpose of keeping tribunals subordinate to the revising tribunal within the
bounds of their authority to make them act according to law, according to the
procedure established by law and according to well defined principles of
justice. Revisional jurisdiction as ordinarily understood with reference to our
statutes is always included in appellate jurisdiction but not vice versa. These
are general observations. The question of the extent of appellate or revisional
jurisdiction has to be considered in each case with reference to the language
employed by the statute.
3. Section 23 of the Tamil Nadu Building (Less and Rent Control) Act, 1960,
enables any person aggrieved by an order passed by the Controller to prefer an
appeal to the appellate authority having jurisdiction. Section 25 provides that:
The High Court may on the application of any person aggrieved by an order of the
appellate authority, call for and examine the record of appellate authority, to
satisfy itself as to the regularity of such proceeding or the correctness,
legality or propriety of any decision or order passed therein and if, in any
case it appears to the High Court that any such decision or order should be
modified, annulled, reversed or remitted for reconsideration it may pass orders
accordingly'.
The language of section 25 is indeed very wide. But we must attach some
significance to the circumstance that both the expressions 'appeal' and
'revision' are employed in the statute. Quite obviously, the expression revision
is meant to convey the idea of a much narrower jurisdiction than that conveyed
by the expression 'appeal'. In fact it has to be noticed that under Section 25
the High Court calls for and examines the record of the appellate authority in
order to satisfy itself. The dominant idea conveyed by the incorporation of the
words to satisfy 'itself' under Section 25 appears to be that the power
conferred on the High Court under Sec. 25 is essentially a power of
superintendence. Therefore, despite the wide language employed in Section 25 the
High Court quite obviously should not interfere with findings of fact merely
because to does not agree with the finding of the subordinate authority. The
power conferred on the High Court under Sec. 25 of the Tamil Nadu Buildings
(Lease and Rent Control) Act may not be as narrow as the revisional power of the
High Court under Section 115 of the Code of Civil Procedure but in the words of
Untwalia, J., in Dattopant Gopalvarao v. Vithalrao Marutirao (1975) 2 SCC 246:
(AIR 1975 SC 1111) "it is not wide enough to make the High Court a second Court
of first appeal".
In the decision in P.S. Pareed Kaka case (1 supra) cited by the learned
counsel for the petitioner, The Apex Court, while dealing with the interference
under revisional jurisdiction, held that the examination as to the correctness
involves appreciation of evidence and that the High Court can interfere if the
finding of the court below is entirely improbable. In G.L. Vijain case (2
supra), the Apex Court observed that the revisional jurisdiction, however, in
effect and substance is an appellate jurisdiction. In Kempaiah case (4 supra),
it is also observed that the revisional powers of the High Court are wider than
the powers conferred upon it under Section 115 of CPC and the High Court is not
precluded to appreciate the evidence for arriving at the conclusion. In Indian
Airlines Ltd. Case (5 supra), it is observed by the Apex Court that in a case of
judicial review, where no appeal is provided for, the High Court in exercise of
its jurisdiction under Article 226 of the Constitution of India would not
confine its jurisdiction only to the known tests laid down therefor viz.
illegality, irrationality, procedural impropriety and it has to delve deeper
into the matter and it would require a deeper scrutiny. The Hon'ble Supreme
Court in the above cases was interpreting the provisions regarding the scope of
revisional power where there is no bar of appeal like the one provided in
Section 83(9) of the Act, as such, the ratio laid down in the decisions may not
be applicable to the present case, since Section 83(9) of the Act clearly
provides that no appeal shall lie against any decision or order whether interim
or otherwise given or made by the Tribunal. The bar of appeal provided in the
Act itself makes all the difference while interpreting Section 83(9) of the Act.
When the Legislature itself bars the provision for appeal, question of treating
revision like appeal may not arise, as a result, appreciation of evidence like
that of appeal is ruled out. In view of the same, the above decisions cited by
the learned counsel for the petitioner, do not apply to the facts of the present
case.
In the decision in Lanko Hills Technology case (9 supra) cited by the
learned counsel for the 1st respondent, the Division Bench of this Court held
that it is not appellate jurisdiction stricto sensu nor original proceeding. In
Bhoolchand case (10 supra) also, the Apex Court held that revision provided
under Section 50 of the Karnataka Rent Control Act, 1961 cannot be equated with
the power of the appellate Court under Section 107(2) of CPC and that the
revisional power under Section 50 of the said Act even though wide as indicated
must fall short of the appellate court's power of interference with a finding of
fact. In Shiv Sarup Gupta case (11 supra) also, the Apex Court, while
interpreting Section 25-B(8) of the Delhi Rent Control Act (59 of 1958), held
that the High Court cannot enter into appreciation or re-appreciation of
evidence merely because it is inclined to take a different view of the facts as
if were a Court of facts. In the said Act also,
Section 25-B(8) bars provision for appeal or second appeal like the present
case. In Speedline Agencies case (12 supra) and in M/s. Sri Raja Lakshmi Dyeing
Works case (14 supra) also, the Supreme Court held that the power conferred on
the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent
Control) Act may not be as narrow as the revisional power of the High Court
under Section 115 of CPC, but it is not wide enough to make the High Court a
second court of first appeal. Similarly, in Rukmini Amma Saradamma case (13
supra) also, the Apex Court held that the High Court was not right in re-
appreciating the entire evidence as it had travelled far beyond the revisional
jurisdiction and that the word 'propriety' cannot mean that there could be a re-
appreciation of evidence.
In view of the above decisions, I hold that the scope of revisional
jurisdiction under Section 83(9) of the Act is not like that of appeal, since
the Legislature itself barred the appeal provision, but however, it is wider
than the revisional jurisdiction under Section 115 of CPC. But for satisfying as
to the correctness, legality or propriety of such determination, Court can
examine the facts in each case whether the decision is entirely improbable and
perverse and the Court below has followed the procedure contemplated under law.
Secondly, I will deal with the aspect of res judicata. In Ram Prakash case
(7 supra), the Apex Court in para 2 of its judgment held as under:
"It would be obvious that since the claims of the petitioner and the respondents
have arisen from the same cause of action and the finding of the appellate Court
that damages had accrued to the respondents due to misfeasance or malfeasance
having been allowed to become final, the decree which is subject matter of the
special leave petition cannot be assailed. The self same question was directly
in issue and was the subject matter of both the suits. The same having been
allowed to become final, it cannot be gone into since the same had attained
finality, the petitioner having not filed any appeal against the appeal
dismissing the suit. In view of this situation, the High Court was right in
concluding that the decree of dismissal of the suit against the petitioner would
operate as res judicata under Section 11 of CPC in the appeal against which the
petitioner has filed the second appeal."
In Sri Chintala Satyanarayana case (8 supra), the Division Bench of this Court
in para 7 of its judgment held as follows:
"As already stated supra, the common issue in both the suits was whether the
plaint schedule properties were self acquired properties of Agaiah or joint
family properties The finding recorded in O.S.18/74, as well as the suit under
appeal (O.S.73/76) was that the properties were self acquired properties of the
husband of the defendant. In so far as this aspect is concerned, it is not open
to the appellant-plaintiff to canvass the correctness of that finding. It is
well settled that when two suits are tried together and disposed of by a common
judgment and if only one appeal is filed against one of the suits, the judgment
and decree in the other having attained finality cannot be disturbed in the
appeal preferred against the other judgment (vide K.Krishnan V. T.T.Devasthanams
(1995 (2) ALT 122 (D.B.)."
The decisions in Ram Prakash case (7 supra) & Sri Chintala Satyanarayana case (8
supra), wherein it is held that the finding which has become final cannot be
reagitated in the appeal, also apply to the facts of the present case, since the
1st respondent has not challenged the dismissal of the other suit in O.S.No.58
of 1998.
Further, in A.A.Gopalakrishnan case (6 supra), the Supreme Court held that
it is also the duty of courts to protect and safeguard the properties of
religious and charitable institutions from wrongful claims or misappropriation.
Having gone through the evidence on record, the judgment of the Tribunal and the
decisions relied on by both the learned counsel, I am thoroughly satisfied that
the Tribunal has not considered the evidence on record with reference to the
issues framed and the pleadings on record and the same needs interference within
the scope of revisional jurisdiction under Section 83(9) of the Act. Though
several issues were framed and several witnesses were examined, the evidence
referred to above and the issues framed in the suit are not properly dealt with.
The Tribunal has not understood the scope of Section 83(5) of the Act. As per
this Section, the Tribunal shall be deemed to be a civil court and shall have
the same powers as may be exercised by a civil court under the Code of Civil
Procedure, 1908 while trying a suit or executing a decree or order. As per Sub-
Section 7 of Section 83 of the Act, the decision of the Tribunal shall be final
and binding upon the parties to the application and it shall have the force of a
decree made by a civil court.
When the issues are framed and evidence is led, the Tribunal should have
adverted to the same and disposed of the suit by taking a comprehensive view of
the matter, when once the matter is remanded back by observing that the earlier
disposal is not as per law. I am of the view that the Tribunal has not dealt
with the issues and the evidence in proper manner and the matter has to be again
remanded back to the Tribunal. As the Tribunal has committed material
irregularity, the same needs to be interfered within the scope of revisional
jurisdiction under Section 83(9) of the Act.
I am conscious of the fact that once the matter was already remitted back,
but as held in above decisions, I cannot re-appreciate the evidence afresh like
in appeal with reference to the issues framed and decide the suit, as such,
there is no other go except to remit the matter back to the Tribunal for its
decision on merits by considering the evidence with reference to the issues
framed. Since it is an old matter, time can be fixed for its disposal.
Accordingly, the Civil Revision Petition is allowed by setting aside the
judgment and decree under revision and the matter is remanded back to the
Tribunal for fresh disposal. The Tribunal is directed to dispose of the suit
without being influenced by any of the observations made herein, in accordance
with law, within a period of four (4) months from the date of receipt of a copy
of this order. There shall be no order as to costs.
The order of status quo dated 11.08.2006 granted earlier in this appeal
shall continue till disposal of the suit
As a sequel, miscellaneous petitions, if any, pending in the civil revision
petition shall stand disposed of.
_________________________
A. RAJASHEKER REDDY, J.
2nd July, 2013
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.