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Pooran Singh And Others v. The Additional Commissioner Agra And Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
The dispute concerns possession of certain plots. Respondent No. 2, Nitya Nand, was originally the tenant of the plots and illegally sub-let them. The zamindar filed a suit for ejectment under Section 171 of the U. P. Tenancy Act in 1942 and obtained a decree. After regaining possession the zamindar let the plots to Balwant Singh (respondent No. 3), and the appellants say they are Balwant Singh's sons and were let the plots along with him.
The U. P. Tenancy (Amendment) Act (Act X of 1947) was enacted and Nitya Nand applied under Section 27 for reinstatement over the plots. The Sub-Divisional Officer passed an order in his favour and declared Balwant Singh to be a sub-tenant entitled to retain possession for three years. On 16 September 1949 Balwant Singh applied for and, after depositing ten times the rent, received (on 19 September 1949) a certificate under Section 6 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949, covering him and his sons (the appellants).
After the three-year period expired, Nitya Nand sued Balwant Singh and his sons under Section 202 of the Zamindari Abolition and Land Reforms Act for ejectment; the trial Court decreed ejectment, the Additional Commissioner dismissed an appeal, and the Board of Revenue dismissed a second appeal on 18 April 1955. Because of the Section 6 certificate, Nitya Nand could not obtain actual possession and therefore filed an application under Section 12 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949, seeking cancellation of that certificate on the ground of alleged fraud (suppression of the Section 27 order).
The trial Court accepted Nitya Nand's contention and cancelled the certificate. On appeal the Additional Commissioner allowed the appellants' appeal ex parte (25 April 1955), primarily on the ground that the appellants and their father had not been parties to the Section 27 proceedings and so could not be affected by that order. After that ex parte allowance, Nitya Nand applied under Section 151 and Order 47, Rule 1, CPC to set aside the ex parte order; notice was issued, and on 20 September 1955 the Additional Commissioner set aside his earlier ex parte order, re-heard the appeal and dismissed it on merits.
The appellants filed a writ petition under Article 226 challenging the Additional Commissioner's power to review his own ex parte order. Chaturvedi J. dismissed the writ petition, finding the Additional Commissioner had in effect reviewed his prior order and acted without jurisdiction, but refusing to quash the later order because granting the writ would effectuate an injustice. The appellants then appealed the Single Judge's dismissal to the court whose opinion is summarised here.
Legal Issues Presented
- Whether the Additional Commissioner had jurisdiction to set aside his earlier ex parte order (i.e., whether he effectively reviewed his own previous order) and whether that constituted an action taken without statutory jurisdiction.
- Whether a High Court, in exercise of its powers under Article 226 of the Constitution, is bound to quash an order that was made without jurisdiction or whether it may refuse relief in the exercise of its judicial discretion where issuing the writ would effectuate an injustice.
Arguments of the Parties
Appellants' Arguments
- The Additional Commissioner had no jurisdiction to review his previous order that allowed the appellants' appeal ex parte; once an order has been made, the Additional Commissioner lacked power to review it.
- They relied specifically on the authority reported as Kalika Prasad v. Additional Commissioner, Agra (1955 All LJ 853; AIR 1956 All 108) in support of the proposition that the Additional Commissioner had no power to review his own order.
Respondents' Arguments
- The Additional Commissioner had not reviewed his previous order; rather, he set aside an ex parte order where respondents had established sufficient cause for their non-appearance and then heard the appeal on merits — which the learned Single Judge could not characterize as an unlawful review.
- There was nothing in law to prevent the Additional Commissioner from setting aside an ex parte order when adequate cause for non-appearance existed and hearing the appeal on merits.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kalika Prasad v. Additional Commissioner, Agra, 1955 All LJ 853; AIR 1956 All 108 | Cited by the appellants for the proposition that the Additional Commissioner had no power to review his previous order. | The court records that the appellants relied on this case; it formed part of the appellants' contention before the learned Single Judge. |
| Asiatic Engineering Co. v. Achhru Ram, AIR 1951 All 746 (FB) | Used to emphasize that the wide powers conferred by the High Court under Article 226 impose a responsibility to use them with circumspection. | The court quoted this authority to show that Article 226 confers broad discretion which must be exercised judicially and with circumspection. |
| Rashid & Sons v. Income Tax Investigation Committee, AIR 1954 SC 207 | Establishes that the remedy under Article 226 is discretionary and the High Court may refuse a writ if an adequate alternate remedy exists. | The court relied on this principle to support the view that even if an order is without jurisdiction, the High Court may exercise discretion to refuse relief (e.g., if adequate remedy elsewhere exists). |
| Veerappa Pillai v. Raman & Roman Ltd., 1952 SCR 583; AIR 1952 SC 192 | Explains that writs under Article 226 are intended for grave cases of jurisdictional excess, error apparent, violation of natural justice, etc., and where such error has resulted in manifest injustice. | The court cited this to highlight that an order's lack of jurisdiction alone is not always sufficient—there must also be a resultant manifest injustice to justify writ relief. |
| Chanderbhan Singh v. Lallu Singh, AIR 1947 All 343 | Indicates that the High Court generally refuses to set aside a wrong order if the immediate effect would be to restore another illegal order. | The court invoked this principle to support refusal to interfere when quashing one order would simply reinstate another illegal outcome. |
Court's Reasoning and Analysis
The court proceeded in stages. It first reviewed the factual and procedural history and the finding of the learned Single Judge (Chaturvedi J.) that the Additional Commissioner had in effect reviewed his own ex parte order and thus acted without jurisdiction. The Single Judge reached that view because the Additional Commissioner did not record a finding that the respondents had been unable to appear on the date fixed "for any sufficient cause", and therefore could not be held to have set aside the ex parte order in the exercise of inherent powers to do justice.
The core legal analysis focused on the proper scope of the High Court's powers under Article 226. The court emphasised that Article 226 confers broad powers and a correspondingly wide discretion on the High Courts, but that discretion must be exercised in accordance with judicial considerations and established principles. The court relied on precedent (Asiatic Engineering Co.) to stress that the vastness of the powers imposes an obligation to use them circumspectly.
The court then explained that not every order made without jurisdiction automatically requires writ relief. Drawing on Veerappa Pillai and Rashid & Sons, it held that Article 226 is a discretionary remedy: the High Court may refuse to grant writs where an aggrieved party can obtain adequate relief elsewhere or where issuing the writ would not serve justice. The opinion highlighted that the absence of jurisdiction or an error on the face of the record is not by itself sufficient; it must also be established that the order has resulted in manifest injustice.
Applying these principles to the facts, the court accepted the Single Judge's finding that the Additional Commissioner had acted without jurisdiction in reviewing his prior order. However, the court agreed with Chaturvedi J.'s exercise of discretion in refusing writ relief because granting the writ would have the practical effect of confirming a certificate that, on the trial court's finding, had been obtained by suppressing material facts. The court observed that Balwant Singh and his sons had only a limited three-year right under Section 27 of Act X of 1947 and that a decree for their ejectment had been passed and upheld by the Board of Revenue. Thus, allowing the writ would have the consequence of affirming a certificate that the trial court had rightly cancelled. The court also noted the general discretionary principle (citing Chanderbhan Singh) that a wrong order is not necessarily set aside if doing so would restore another illegal order.
On balance, the court concluded that the learned Single Judge properly exercised the breadth of discretion available under Article 226 by refusing to quash the Additional Commissioner's later order despite finding a want of jurisdiction, because issuing the writ would have effectuated an injustice in the circumstances of this case.
Holding and Implications
Holding: The appeal is dismissed.
Implications:
- The court upheld the learned Single Judge's discretionary refusal to quash the later order of the Additional Commissioner, even though that earlier judge found the later order to have been made without jurisdiction.
- The direct effect on the parties is that the decision below (i.e., the refusal to grant writ relief under Article 226) stands and the appellants' challenge fails.
- The opinion emphasises that Article 226 is a discretionary remedy: a finding that an order is without jurisdiction or contains an error on the face of the record does not automatically entitle a party to writ relief; the High Court may refuse relief where issuing a writ would result in manifest injustice or where other adequate remedies exist.
- This opinion does not purport to lay down a new general rule beyond applying established principles; it applies existing discretionary principles under Article 226 to the facts before the Court.
1. This Special Appeal has been filed against an order of Chaturvedi J. dismissing a writ petition filed by the appellants under Article 226 of the Constitution.
2. The facts which had led to the writ petition were that Nitya Nand, the present respondent No. 2, was the tenant of the plots in dispute He had illegally sub-let the plots. The zamindar then filed a suit against him and his sub-tenants under Section 171 of the U. P. Tenancy Act for their ejectment from the plots. That suit was filed in 1942 and was decreed. After the zamindar got possession he let out the plots to Balwant Singh, present respondent No. 3.
The appellants say that they are the sons of Balwant Singh and the zamindar let out the plots to them also along with Balwant Singh. The U. P. Tenancy (Amendment) Act (Act X of 1947) was then enacted and Nitya Nand applied under Section 27 of the Act for his reinstatement over the plots. The Sub-Divisional Officer passed an order in his favour and under the provisions of that section declared Balwant Singh respondent No. 3 to be a subtenant entitled to retain possession for three years. On the 16th of September, 1949 Balwant Singh applied to the Sub-Divisional Officer for a certificate under Section 6 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949.
He made the necessary deposit of ten times the rent and a certificate was actually issued to him along with his sons, the present appellants, on the 19th of September, 1949. When the three years period during which Balwant Singh had been declared entitled to retain possession according to Act X of 1947 expired, Nitya Nand brought a suit against him and his sons, the present appellants, under Section 202 of the Zamindari Abolition and Land Reforms Act praying for their ejectment. He treated them as asamis. The trial Court decreed the suit and an appeal was filed before the Additional Commissioner but that was also dismissed.
A second appeal was then filed before the Board of Revenue, but was dismissed on the 18th of April. 1955. In spite of the decree for ejectment, Nitya Nand could not actually eject the appellants or their father Balwant Singh because a certificate under Section 6 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act had been issued in their favour. Before he could get actual possession it was necessary for Nitya Nand to have this certificate cancelled. Nitya Nand, therefore filed an application under Section 12 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act. 1949 praying for the cancellation of the certificate.
The ground put forward for the prayer of cancellation of the certificate was that the appellants and Balwant Singh had obtained the certificate fraudulently by concealing the facts that there was an order passed under Section 27 of the Act X of 1947 according to which they were only sub-tenants en-
titled to retain possession for a limited period of three years. The trial Court accepted this contention and cancelled the certificate. The appellants and their father then went up in appeal to the Commissioner and this appeal was allowed ex parte on the 25th of April, 1955. The main ground which weighed with the Additional Commissioner who heard the appeal was that the appellants and their father were not parties to the proceedings under Section 27 of Act X of 1947 and the order passed under that section could not therefore affect their rights.
The appeal haying been allowed ex parte Nitya Nand filed an application purporting to be one under Section 151 and Order 47, Rule 1, C. P. C., before the Additional Commissioner for setting aside the order passed in appeal. Notice was ordered to be issued and the application was heard on the 20th September 1955. The Additional Commissioner held that fairness demanded that the ex parte order should be set aside and the appeal should be heard on merits. He, therefore, set aside his previous ex parte order allowing the appeal of Balwant Singh and his sons and after hearing the appeal on merits on the same day he dismissed the appeal.
3. The appellants then filed the writ petition out of which the present appeal has arisen, and the main point which they urged before Chaturvedi J., who heard the petition was that the Additional Commissioner had no jurisdiction to review his previous order allowing the appeal ex parte. In support of this contention they relied on the case reported in Kalika prasad v. Additional Commssioner, Agra, 1955 All LJ 853: (AIR 1956 All 108) (A).
4. It was not seriously disputed before the learned Single Judge that the Additional Commissioner had no power to review his previous order. What was urged on behalf of the respondents was that he had not in fact reviewed his previous order. The previous order had been passed ex parte and the learned Additional Commissioner had only held that in the circumstances of the case the ex parte order should be set aside and the appeal should be heard on merits.
The respondents had made out sufficient cause for not appearing on the date fixed for the hearing of the appeal and there was nothing in law to prevent the Additional Commissioner from setting aside his ex parte order and his hearing the appeal on merits. This contention was, however, not accepted by the learned Single Judge because he found that the Additional Commissioner had not recorded any finding that the respondents in the appeal before him had been unable to "appear on the date fixed for any sufficient cause.
The learned Additional Commissioner could not in the circumstances be held to have set aside the ex parte order in the exercise of his inherent powers to do justice. Chaturvedi J., therefore, took the view that the Additional Commissioner had really reviewed his previous order. As the power of review was a creation of statute and no Court had any inherent power to review its own decision, the order of the Additional Commissioner reviewing his previous ex parte order was held to be without jurisdiction.
5. In spite of his finding that the order sought to be quashed in the writ petition was an order without jurisdiction, the learned Single Judge refused to quash the order because in his view the order was quite just and the setting aside of that order "would clearly effectuate an injustice in the case". Balwant Singh and his sons had under Section 27 of Act X of 1947 only a limited right to continue in possession for three years. A decree for their ejectment had already been passed in favour of Nitya Hand and had been upheld even by the Board of Revenue. They could not, therefore, obtain any certificate under Section 6 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 and they had obtained the certificate by suppressing material facts.
The order of the trial Court cancelling the certificate in the proceedings under Section 12 of the Act was therefore perfectly correct. The order of th3 Commissioner allowing the appeal of the appellants ex parte and restoring the certificate was in the circumstances, an order which was wrong and unjust. By the subsequent order the Commissioner had only cancelled the wrong order and restored the just order passed by the trial Court in the matter, Chaturvedi J., therefore, refused to exercise the discretion that was vested in hin under Article 226 of the Constitution and dismissed the writ petition lor quashing the later order of the Additional Commissioner.
6. The appellants have come up in appeal and the only contention urged on their behalf is that having come to the conclusion that the later order of the Additional Commissioner had been made without jurisdiction, the learned Single Judge was bound to interfere and to quash the order; he had no discretion in the matter.
7. Under English Law a distinction exists between' writs of course and writs of right on the one hand and discretionary writs on the other. No such distinction has, however, been made in Article 226 of the Constitution and that Article puts all writs, orders and direction on the same powers conferred by Article 226 of the Constitution on the High Courts are certainly very wide and confer on them a discretion of a most extensive nature. That discretion, however, must necessarily foe exercised in accordance with judicial considerations and well-established principles. As was observed in Asiatic Engineering Co. v Achhru Ram, AIR 1951 All 746 (FB) CB)
"the very vastness of the powers conferred imposes on the High Courts the responsibility to use them with circumspection."
The High Court will certainly not hesitate in issuing an appropriate direction, order or writ when necessary, but no person can claim to be entitled to such an order or writ as a matter of course without satisfying the High Court that the case is suitable one for the issue of such an order or writ. Various facts and circumstances have to be taken into account before deciding whether a writ is to be issued in a particular case or not, Whether any other equally efficacious and speedy remedy is available; where a complaint is marie against any act done or purrported to be done under any statutory provision whether there exits in that very act itself a possible remedy; whether material facts have been suppressed by the ap licant; whether he has come to Court with clean hands; whether the issue of the writ is likely to be futile or unnecessary and whether it is in the interest of justice to issue a writ in the circumstances of the particular case, are all matters which have to be given due consideration. If the High Court has no discretion in the matter and is bound to interfere in every case in which order sought to be quashed was passed without juridiction, all these considerations will become out of place. That this is not so is clear from what Mukherjea J. said in respect of one of these considerations in the case of Rashid & Sons v. Income Tax Investigation Committee, AIR 1954 SC 207 at p. 210 (C). He observed:
".......the remedy provided for in Arti cle 226 is a discretionary remedy and the High Court has al-
ways the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere."
The discretion is therefore there and in suitable cases the High Court may refuse to exercise that discretion in favour of the applicant.
8. It must also be borne in mind, as was observed in the case of Veerappa Pillai v Raman & Roman Ltd.. 1952 SCR 583 at p. 594: (AIR 1952 SO 192 at pp. 195-196) (D) that
"Such writs as are referred to in Art. 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record 'and such act, omission error or excess has resulted in manifest injustice'."
The words we have underlined (here into ' ') show clearly that the mere fact, that an order is without jurisdiction or that there is an error apparent on the face of the record is not sufficient to justify the issue of a writ. In addition to that it must be established that the order has resulted in , manifest injustice. It is therefore open to the High Court to refuse to issue a writ if it feels, as was felt by the learned Single Judge in the present case, that if the writ prayed for is issued "it will clearly effectuate an injustice in the case."
9. Even in the exercise of its ordinary revisionary powers the High Court generally refuses to set aside a wrong order if the effect is to restore another illegal order vide Chanderbhan Singh v. Lallu Singh, AIR 1947 All 343 (E).
10. In our opinion, therefore, in the circumstances of the present case the learned Single Judge was perfectly justified in refusing to issue a writ in favour of the appellants which would have resulted in the confirmation of a certificate obtained by them wrongly by suppressing material facts.
11. The appeal must therefore fail and is dismissed.
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