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Synopsis

The Supreme Court recently observed that the High Court, while exercising its jurisdiction under Article 226 of the Constitution, cannot reappreciate evidence or arrive at findings of fact unless the authorities below have either exceeded their jurisdiction or acted perversely.

A bench of Justices C T Ravikumar (since retired) and Sanjay Karol allowed an appeal against the Allahabad High Court's judgments in the review petition of May 13, 2013, and the final judgment of January 17, 2013, in a writ petition.

"In our considered view, the High Court has committed an error of law and facts in setting aside the concurrent findings in both the impugned judgment and order. There was no basis for the High Court to ignore the findings of the authorities and come to its own conclusion by appreciating the evidence on record. The same was outside the purview of Article 226 of the Constitution in the absence of any perversity or illegality afflicting the findings of the authorities," the bench said.

With regard to the order passed in the civil review petition, the bench said, "We are constrained to make certain observations."

In the said order, the court noted, it was observed that by virtue of the order passed in the writ petition, the order of the Collector was set aside and, therefore, the permanent injunction granted by the Civil Judge, Junior Division, Ghaziabad, automatically rendered ineffective.

"We find the said observation of the High Court to be problematic on at least two counts. One, that the order of the Collector formed only one part of the basis for seeking a permanent injunction and was not the raison d’etre of the permanent injunction so issued. Second, that an order granting a permanent injunction, with the authority having given its independent and anxious consideration, cannot be set aside in such a cursory and callous manner, more so under the supervisory jurisdiction of the court. A permanent injunction is an order of substance and ought to be treated as such. This manner of setting aside the permanent injunction has to be deprecated," the bench said.

Acting on appeal filed by Ajay Singh, the apex court restored the findings of the authorities declaring the disputed land as Johad (pond).

The appellant initiated proceedings before the Civil Judge (Junior Division) at Ghaziabad, seeking a permanent injunction against the respondent regarding the disputed land. The suit proceeded ex-parte on default of the appearance of the respondent.

The Civil Judge passed an ex-parte decree in favour of the appellant, permanently prohibiting the respondent from disturbing the villagers’ right to use the land as a Johad (pond) or interfering with its use as a water reservoir.

Being dissatisfied and aggrieved by the judgments and orders passed by the authorities, the respondent preferred a writ petition before the High Court, which allowed the writ petition and set aside the orders of the Additional District Magistrate/Additional Collector and Additional Commissioner, which were based on the concurrent findings of law and facts. The High Court observed that the disputed land was mistakenly recorded as “Johad (pond)” in revenue records due to some confusion, while it should have been treated as “Usar.”

The appellant filed a review petition against the judgment and order on the ground that the respondent suffered an ex-parte decree permanently restraining him from interfering with the disputed land passed by the Civil Judge (Junior Division) at Ghaziabad.

The High Court dismissed the review petition, stating that the decree passed by the Civil Judge (Junior Division) was based on the findings of the order of August 27, 2004, passed by the Additional District Magistrate/Additional Collector, which was set aside vide the judgment of January 17, 2013, meaning thereby that since the basis of the order of the Civil Judge no longer stood, the said decree also became non est in law.

The court examined the question of whether the concurrent findings recorded by the Additional District Magistrate/ Additional Collector and Additional Commissioner, that the disputed land was recorded as a Johad (Pond) in the revenue record, could have been interfered with by the High Court in a writ jurisdiction under Article 226 of the Constitution.

"In the adjudication of this question, we find that the record speaks to the fact that the document annexed in the present appeals stated that in 1970, the disputed land was found to be Johad (Pond) at serial No.257, mentioned as Khasra No 84 in revenue records," the bench said.

The court noted the authorities below had concurrently held that as per the revenue record, the disputed land had been shown as Johad (Pond). Further, it was held that a valid patta was never executed in favour of the respondent and that there was no record of allotment entry regarding the said patta. No such entry was available in Tehsil in this regard.

Thereafter, they further observed that the entries made in Khatauni 1385 to 1390 Fasli are fictitious as Lekhpal and Kanungo signed it on contradictory dates, i.e., August 06, 1982, and May 06, 1982, respectively, the bench noted.

"The said finding of facts was reversed by the High Court in writ proceedings only on the ground that at all relevant times, the disputed land was recorded as 'Oosar’ in the revenue records and under some confusion it was entered as Johad (Pond). The High Court further said that the writ petitioner could not be responsible for the non-availability of allotment files in the tehsil office," the bench said.

The court also pointed out that a plain reading of the impugned judgment showed that the High Court had exceeded its jurisdiction in reappreciating the evidence and substituting the factual findings recorded by the authorities below.

"The conclusion that the disputed land should be treated as “Oosar” land is unsupported by the evidence on record. Further, the authorities below rightly observed that the disputed land was Johad (Pond) and was kept out of the consolidation scheme, as it was being used as a water reservoir by the villagers for their daily needs," the bench said.

Given the ex-parte decree passed in favour of the appellant, whereby the respondent was permanently prohibited from disturbing the villagers’ right to use the land as Johad (Pond), the High Court erred in disturbing the orders of the lower authorities, the court held.

Case Title: Ajay Singh Vs Khacheru And Ors