1. The petitioner filed this writ petition aggrieved by the order dated 29-1-1990 passed by the Special Court under A.P. Land Grabbing (Prohibition) Act, in L.G.C.No.21/89 rejecting the request of the petitioner to take action under Section 8 of the A.P. Land Grabbing (Prohibition) Act, 1982 hereinafter referred to as 'the Act', to evict the respondent herein from the schedule property and put him in possession of the same and take criminal action against the respondent.
2. The averments made by the petitioner in his application filed under Section 8 of the said Act before the Special Court under the A.P. Land Grabbing (Prohibition) Act, hereinafter referred to as 'the Special Court', are that the petitioner's father Md. Razzak, S/o Md. AH had purchased 8500 Sq, yards of land in S.No.218/3 on 6th Amardad 1344 Fasli under a registered sale deed. He was the Deputy Accountant General in the erstwhile Government of Hyderabad. The earlier boundaries of the said plot that was purchased by the petitioner's father were as follows:
North : Plot of Mir Laiq A1i South : Plot of Moin Nawaz Jung East : Makte Bhole Saheb West : Begumpet road The present boundaries of the said plot are as follows :-
The petitioner's father did not put any construction in the land. Whereas the other two persons, namely Mir Laiq A1i and Moin Nawaz Jung made constructions in their respective plots. During Hyderabad Police Action, Mr Laiq A1i and Nawaz Jung migrated to Pakistan. Their properties were declared evacuee properties by the Government. The house of Mir Laiq A1i was allotted to a refugee - Devt Dayal Marwah who in turn sold the same to one N. Veemswamy Naidu, father of the respondent. The house of Moin Nawaz Jung was allotted to Raja of Challapally. After the death of the petitioner's father, the petitioner came in possession of the application schedule property. In UK year 1970, the petitioner found that the respondent not only grabbed the land but also constructed a wall over the land of the petitioner. The petitioner asked the respondent to vacate the schedule property but in vain. Instead of vacating and handing over possession of the schedule property, the respondent further constructed a building consisting of four flats in the property. The remaining plots the respondent converted them into sites. The respondent has no right or title over the said land. As he is land grabber he shall be evicted and be dealt with in accordance with law.
3. The Special Court after taking cognizance of the case under Section 8(1) of the said Act issued notices to the respondents. The respondent in turn put appearance and filed his counter. The respondent in his counter submitted that the act has no application to the property in question, and the Special Court has no jurisdiction to consider the petitioner's claim. The respondent denied the right and title of the petitioner over the property, but took a contention that both in earlier civil and criminal proceedings, the possession and enjoyment of the respondent including title over the schedule property was observed in his favour. Though the petitioner is aware of the same, subsequently resorted to making a claim under the said Act. It is further averred in the counter that after Mir Laiq A1l escaped to Pakistan his property was declared an evacuee property and was auctioned in 1955 in which one Mr. Devi Dayal Marwah, a displaced person from Pakistan, purchased it who in turn agreed to sell the property of Laiq A1l to one Mr. Veeraswami Naidu, an IAS Officer. The said Veeraswamy Naidu paid the sale consideration. The Regional Settlement Commissioner issued a sale certificate in respect of the house bearing E.P.No.F-02-1112 situated at Somajiguda. When the property was declared an evacuee property the Government started housing its Ministers. At one stage the Government expressed their willingness to Veeraswami Naidu to purchase the said property but the sale transaction was not materialised. Thus, Veeraswami Naidu continued to be in possession of the said property.
4. According to the respondent Mir Laiq AH built houses in two stages during the years 1348 F and 1354 F. The first stage of construction can be found in the municipal file No.1227 of 1348 Fasli wherein he sought permission to build a bungalow in an area of 4434 Sq. yards with the following boundaries:
The areas shown in two plans measure 11385 Sq.yards. In the land that was sold by Kurshid Begum though 5 plots were shown but no lane was shown in between plots 3 and 4 which was originally sold to Abdul Razzak and Main Nawaz Jung. The lands sold to Abdul Razzak were subsequently acquired by Mir Laiq A1i. Thereafter Mir Laiq A1i obtained permission of the municipality for making additions and alterations. It is also contended by the respondent that Abdul Razzak was the Accountant General of erstwhile Hyderabad Government. As such he would not have allowed Mir Laiq A1i to construct a compound wall on his property. Abdul Razzak died in 1967. During his life time, he never claimed that the schedule property as his own. In the original lay out plan Kurshid Begum did not show any lane 'between Plot Nos.3 and 4 whereas this land was shown in the plan filed by Laiq A1i in the year 1354 Fasli. The lane shown in the plan of 1354 Fasli including a wall is still existing.
5. There was an attempt by one C. Narayana and other brokers to break open the compound wall of the building on the southern side with a view to occupy it and a case was registered against them in C.C. No.7518/73 on the file of the IV Metropolitan Magistrate, Hyderabad and they were convicted for the offence under Sections 148, 448 and 324 IPC during the year 1975. As on that day the petitioner was aware of the actual possession of the schedule property. Thus contending he sought the petition be dismissed.
6. On the above pleadings, the Special Court framed the following points for consideration:
(1) Whether the applicant is the owner of the application schedule property ?
(2) If so, whether the respondent is not land grabber?
(3) Whether the application is barred by time?
(4) Whether this Court has no jurisdiction to try this case?
7. In support of their rival contentions, both sides adduced evidence both oral and documentary. On behalf of the petitioner Mohd. Iqbal and Mohd. Kareemuddin were examined as PWs.1 and 2 respectively and Exs.A1 to A3 were marked. Ex.A1 is the xerox copy of the original sale deed dated 6th Amardad 1344 Fasli executed by Kursheed Begum. Ex.A2 is the xerox copy of sale deed under which Laiq A1i had purchased his plot adjacent to PW1's land dated 6th Amardad 1344 F. Ex.A3 is the xerox copy of certificate of encumberance dated 28-4-1986 on schedule property declaring that the schedule property belongs to Mohd. Abdul Razzak. The respondent examined himself as RW1 and one Mr. Prabhakar was also examined as RW2 and got marked 22 documents as Exs.Bl to B22. Ex.B1 is the xerox copy of sale deed dated 31-8-1965 executed by Devi Dayal Marwah in favour of Name Veeraswamy Naidu and Name Surinder. Ex.B2 is the xerox copy of sale deed dated 28-8-1965 executed by Devi Dayal Marwa in favour of N. Prabhakar and N. Ramesh. Ex.B3 is the xerox copy of letter addressed by the Tahsildar Urban Taluq to the Collector, Hyderabad District informing about the compliance of orders of the Collector by handing over symbolic possessions of the evacuee property in favour of N. Veeraswamy Naidu. Ex.B4 is the xerox copy of letter addressed by the Commissioner of Police, Hyderabad to the Executive Engineer, PWD (R&B) Hyderabad dated 29-8-1967, informing about the handing over of the vacant possession of the private residential building at 6-3-1112, Begumpet to Sri N. Veeraswamy Naidu.Ex.B5 is the xerox copy of the letter addressed by the E.E., PWD (R&B), Hyderabad to the Joint Secretary to Government, GAD, Hyderabad informing the handing over of the land to its landlord. Ex.B6, is the xerox copy of letter addressed by Assistant Electrical Engineer, PWD, Hyderabad to Commissioner of Police, Hyderabad dated 27-11-1967 requesting to pay the arrear bills. Ex.B7 is the xerox copy of the letter retaining the electrical fittings and appliances, given by the special electrical engineer. Ex.B8 is the xerox copy of clearance certificate issued by the Special Tahsildar, Non-agriculture, Assistant Hyderabad Unit to Sri T.V. Prabhakar. Ex.B9 is the notice given under Section 8 of Madras Act II of 1864 by the Revenue Inspector. Ex.BlO is the xerox copy of letter addressed by Laiq A1i to the Commissioner, Hyderabad Municipality. Ex.Bl 1 is the xerox copy of site plan of Mr Laiq A1i at Begumpet Hyderabad. Ex.B12 is the xerox copy of plan of the land belonging to Mir Laiq A1i, Begumpet, Hyderabad.
Ex.B13 is the xerox copy of the judgment in CC No.5718/73, dated 21-7-75 on the file of IV Metropolitan Magistrate at Hyderabad Ex.B 14 is the xerox copy of judgment delivered in R.A.No.727/70 on the file of Chief Judge, Small Causes Court, Hyderabad. Ex.B15 is the xerox copy, of letter issued from the office of MCH, Hyderabad to Sri N. Veeraswamy Naidu requesting for payment of property tax. Ex.B16 is the xerox copy of letter addressed by Sri N. Veeraswamy Naidu to the Assistant Commissioner, MCH, Hyderabad. Ex.B17 is the xerox copy of notice of transfer of property under section 280 of hmc act given by N. Veeraswamy Naidu. Ex.BIS is the xerox copy of the receipt No.6134 issued in favour of N. Veeraswamy Naidu. Ex.B19 is the xerox copy of G.O.Ms.No.26, dated 4-1-1979 issued by the Revenue (U.C.II) Department. Ex.B20 is the xerox copy of 'Marpulu Register' of Khairatabad village in respect of S.No.218/1. Ex.B21 is the letter dated 1-6-1966 from Superintendent Engineer R&B Buildings Branch to the Secretary to Government PWD in respect of House bearing No.F-2-1112 belonging to Sri N. Veeraswami Naidu. Ex.B22 is the plan attached to Ex.B21 letter.
8. The Special Court on the basis of the evidence made available by both the parties, considered Points 1 and 3 together. It took into consideration the earlier sale deeds produced by the petitioner, the documents produced by the respondent, the extents mentioned in the sale deeds, the fact of original owner Mir Laiq A1i escaping into Pakistan, subsequently Government treating the same as evacuee property and allotting it to a refugee one Mr. Devi Dayal Marwah from whom Veeraswami Naidu purchased and later Government negotiating with Veeraswami Naidu to purchase the schedule property which was turn down and allowed Veeraswamy Naidu to continue in the said property from whom the respondent succeeded to the property. The Special Court took into consideration the extent of the property; the conduct of the applicant in not eveincing any interest to take steps to get the respondent evicted if really he was the owner of the schedule property; keeping quite for a long time and then approaching the Special Court even suppressing the order of the IV Metropolitan Magistrate in CC No.7518/73 filed against Appayya and other who were claiming right over the property and the petitioner. It also took into consideration the effect of Article 65 of the Limitation Act which prescribes 12 years period of limitation for possession of the immovable property or any interest therein based on title which speaks about running of 12 years period from the point of time when the possession of the defendant becomes adverse to the plaintiff; the effect of Section 27 of the Limitation Act which extinguishes the right to property; the scope of Sections 8,9,10 and 15 of the Act and found that the petitioner failed to file a suit for recovery of possession within 12 years from the date of alleged knowledge and observed that Section 8 of the Act has no application to the case of the petitioner for the reason that the Special Court cannot decide the land grabbing cases and order eviction even though such action has been committed before the application and the petitioner was out of possession for more than twelve years. The Special Court found as per Section 9 of the Act, the Special Court is deemed to be a Civil Court. The application brought before the Special Court will attract the provisions of the Limitation Act. It also referred to the word 'suo moto' and held that the Court has not taken the cognizance suo moto but took cognizance basing on the application submitted by the petitioner with a specific prayer for possession after evicting the respondent. It found that any prima facie proof of ownership of the land mentioned in the application filed before the Special Court shall be meant as ownership of the land on the date of application but not otherwise. Having satisfied that the applicant's father's title had extinguished long ago held it is not open for the petitioner now to contend that he is the owner of the schedule property as on the date of the application or a little earlier to that. Secondly if any right the petitioner had, he had lost it by virtue of the delay and latches. Thus, the Special Court answered Issues 1 and 3 against the petitioner and in favour of the respondent.
9. To consider Point No.2, the Special Court took into consideration the averments made in the application and in the counter and found that the petitioner failed to mention the exact date on which the alleged grabbing by the respondent took place. It took into consideration the inconsistent statement of the petitioner before the Court that he was in possession of the property till 1970. But he failed to know as to what had happened subsequent to that date. Further he handed over possession of the property in 1968 to one S. Appayya under an agreement of sale. He came to know in the year 1975 when S. Appayya told him that he cannot purchase the land because somebody is in occupation. The Special Court not only referred to the oral evidence, but took into consideration the effect of documentary evidence produced by both sides. It found that as per the evidence of the petitioner himself that he was not in possession of the land in the year 1970 but it was given to Mr. S. Appayya who was in possession of the land. But the said Appayya was not examined to prove the fact of grabbing. It made a reference to Exs.Bl0, 11 and 12 and held that by the time Mr Laiq A1l submitted Exs.BlO and B12, Abdul Razzak ceased to be the owner of the property which was purchased by him under Ex.A1. It took into consideration the area of the property mentioned in Exs.Bll and B12, namely 4562 Sq. yards and 7645 Sq.yards. It also took into consideration the existence of 20' road between the land of Abdul Razzak and Md. Main Nawaz Jung and found that evidently that this 20' had been left as a road separating the properties of these two persons each leaving 491 Sq.yards which comes to 982 Sq.yards which occupied by the 20' road. The Special Court found that if there is any slight mistake in the extent of area, the same is insignificant. The Special Court found that by 1354 Fasli, in view of Exs.B10 toB12 the petition schedule property ceased to be the property of Abdul Razzak, but it went into the hands of Mir Laiq A1i. The Special Court also took into consideration the conduct of the parties in mentioning in Ex.B1 the extent of the property as 11380 Sq.yards and observed that it is not satisfactorily explained why the extent is not mentioned in the earlier sale deeds. It placed reliance on the orders of the Rent Control case namely R.A.No.727/70 before the Chief Judge, City Small Causes Court, Hyderabad where the Court had enhanced the rent as requested by Veeraswami Naidu in respect of the schedule property. The Court below found that Exs.B21 and B22 clinchingly proved that the Government was the tenant under Veeraswami Naidu and it was in possession of the building and the total area was 11385 Sq.yards. Later the building was put in possession of Veeraswami Naidu. The Special Court took note of that the plan shown in Ex.B22 was the plan of both the plots covered by Exs.A1 and A2 which tallied with the plans covered by Exs.Bll and B12. It found the discrepancies made out in S.Nos.218/l and 218/3 as two different names namely Waheedunnisa Begum and Khurseed Begum. The Special Court held that from the documents referred to it is clear that at least from the year 1945, Mir Laiq AH was in possession of the schedule property till he was fled to Pakistan in 1949. Thereafter the Government declared the property as evacuee property and the Government came in possession of the same as tenant till it was sold to Veeraswami Naidu and that right from 1967 Veeraswami Naidu and after his death, the respondent and his brothers have been continuing in possession of the building known as Laliq AH building bearing Door No.6-3-1112 (F-2-1112 Old) with appurtenant site of about 11300 Sq.yards enclosed by a compound wall in their own right. Therefore, the respondent and his brothers perfected their title over the application schedule property by adverse possession. It found that adverse possession not pleaded by the respondent in his counter. However, from the pleadings of the petitioner and assertion that the respondent and his brothers have been in possession of the schedule property since 1970 and finally the same itself suggested that they perfected their title over the schedule property by adverse possession. Considering the reason asserted by the petitioner for approaching the Special Court seeking the present relief, the Trial Court observed that the explanation offered by the petitioner that he could not take any action against the respondent till 1989 because he was a big and influential man cannot be accepted. According to the Special Court the reason for the petitioner to keep quite till 1989 was that the petitioner knew pretty well that his case was hopelessly barred by time under ordinary civil law. He filed the present application thinking that there is no limitation for land grabbing cases whereas the Special Court was constituted in August, 1988 and this case was filed in February, 1989. The Special Court observed that there was no grabbing of the land by the respondent. The grabbing if any only by the petitioner. The Revenue Member of the Court while agreeing with the finding given by the Judicial Member observed that while making reference to Section 2(e) of the said Act observed that the respondent is not a land grabber. The learned Member further held that there is no need to give any finding on the respondent's title as the case is not civil case for declaration of title. The learned Member further held that as the respondent is not a land grabber the other relief does not require to be considered. With the above discussion and findings, the Special Court by its order dated 29-1-1990 dismissed the application filed under Section 8 of the said Act. Hence this writ petition.
10. Sri V.V.S, Rao, learned senior Advocate appearing for the petitioner attacked the judgment passed by the Special Court contending that the Special Court is not right in holding tliat the claim of the petitioner is barred under Article 65 of the Limitation Act and the title of the petitioner extinguished under Section 27 of the Limitation Act. The finding of the Special Court that the respondent perfected his title by adverse possession is quite incorrect and unsustainable for the reason that plea of adverse possession was never raised by the respondent. According to him, the Special Court should have noticed that the Limitation Act has no application to the claim made under A.P. Land Grabbing (Prohibition) Act particularly when Section 15 of the said Act states that the Special Act shall prevail over the provisions of any other law. To make a claim under Section 8 of the said Act, the Act docs not prescribe any limitation. On the other hand Section 8 confers power on the Special Court to entertain an application when once the alleged act of land grabbing has been complained of irrespective of such grabbing was whether before or after commencement of the Special Act. The Special Court should not have observed that the power to examine under Section 8 of the said Act is subject to the provisions of other Act. The Special Court committed a mistake in holding that Mir Laiq A1i conveyed Plot No.1 measuring 8500 Sq.yards. As such the finding that Mir Laiq A1i acquired vacant plot and enclosed it with a compound wall is incorrect and baseless. The Special Court should have taken judicial notice of non-filing of the sale certificate by the respondent. As such adverse inference should have been drawn against the respondent. Non-consideration of Ex.A3, dated 28-4-1986 the certificate of encumberance of property declaring that the property belongs to Abdul Razzak, the father of the petitioner, is another mistake on the part of the Special Court. The Special Court should not have placed reliance on Exs.B10, B11 and B12 as the said documents are spurious, Exs.B10 to B12 arc the site plans filed for approval. Hence, it falsifies the case of the respondent that Mir Laiq A1i constructed a compound wall enclosing with Plot No. 1 of Md. Abdul Razzak. Exs.B3, 4, 5 and 7 which deal about the delivery of possession of property to Veemswami Naidu has no evidenciary value as the said documents do not contain the extent of area or extent of vacant site whose possession was delivered to Veeraswami Naidu. The Special Court should not have placed reliance on Ex.B22 and the oral evidence ofRWs.l and 2. Sri V.V.S. Rao also contended that the entire case of the respondent is the result of playing fraud by the respondent. Further no documents conveyed title to the respondent. No other material was available to hold that the respondent perfected his title by adverse possession. To support his contentions, Sri V. V.S. Rao placed reliance on the following decisions - "Changalvaraya Naidu v. Jagannath, 1994 (1) SCC 1 wherein the Supreme Court while considering the scope of Section 25 of the Indian Penal Code, Section 17 of the Contract Act, Article 136 of the Constitution of India and Sections 33 and 13 of CPC and Order 6 Rule 4 of CPC, and His Lordship Justice Kuldip Singh speaking for the bench by making a reference to the observation of Edward Coke, C.J. of England, on playing of Fraud observed that Fraud avoids all judicial acts, ecclesiastical or temporal, held as follows :-
"The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. A person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first Court or by the highest Court -has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings.
A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty or playing fraud on the Court as well as on the opposite party."
11. He also placed reliance on a decision in "Gawrishankar v. Joshi Amba Shankar Family Trust and others" JT 1996 (2) SC 560 = 1996 (3) SCC 310 wherein the Supreme Court making a reference to Changalvaraya 's case while explaining the scope of a decree obtained by fraud, observed as follows:
"Suppression of facts - Decree obtained by playing fraud on the Court is a nullity and non est in the eye of law - Such a decree has to be treated as nullity by every Court, whether superior or inferior.'' The third decision on which Sri V.V.S. Rao placed reliance on is "Indian Bank v. M/s Satyam Fibres (India) Pvt.Ltd" JT 1996(7) SC 135 = (1996) 5 SCC 550 wherein the Supreme Court held as follows :-
"...The Commission which needs to be reminded that the Authorities be they Constitutional, Statutory or Administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud of Fraud and Justice never dwell together (Frausel jus nunquam cohabitant). It has been repeatedly said that Fraud and deceit defend or excuse no man (fraus et dolus nemini patrocinari debent).
The Judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent power are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of die Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business.
Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. (See : Benoy Krishna Mukherjee v. Mohanlal Goenka, AIR 1950 Cal. 287; Gajanand Sha and Ors. v. Dayanand Thahur, AIR 1943 Pat. 127; Krishna Kumar v. Jawand Singh, AIR 1947 Nagpur 236; Devendra Nath Sarkar v. Ram Rachpal Singh, ILR (1926) 1 Lucknow 341 = AIR 1926 Oudh 315; Saiyed Muhammad Raza v. Ram Saroop and Ors., ILR (1929) 4 Lucknow 562 = AIR 1929 Oudh 385 (FB); Bankey Behari lal and Am. v. Abdul Rahman -and Ors., ILR (1932) 7 Lucknow 350 = AIR 1932 Oudh 63; Lekshmi Amma Chacki Amma v. Mammen Mammen, 1955 Kerala Law Times459). The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court (Ishwar Mahton and Anr.v. Sitaram Kumar and Ors., AIR 1954 Patna 450) or to set aside the order recording compromise obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh and Ors., ); Smt. Tara Bai v. V.S. Krishnaswamy Rao, AIR 1985 Karnataka 270)."
12. With the above contentions, Sri V.V.S. Rao urged that the judgment of the Special Court to be set aside and the writ petition be allowed granting the relief as requested before the Special Court.
13. As an answer to these contentions Sri Rajendra Prasad, learned Counsel for the 1st respondent submitted that there are no merits in the contentions raised in the writ petition and the arguments advanced by Sri V. V.S. Rao. He argued that the respondent did not come in possession of the property by playing fraud or deceit. On the other hand his predecessor purchased the property under registered sale deed and that has been clearly explained by the Special Court while discussing the entire evidence. The Special Court clearly held that how this respondent came in possession of the property and why the claim of the petitioner is baseless and imaginary one.
According to him, the petitioner except avering, did not establish his case that at any point of time he was the owner of the disputed property. If the petitioner was really the owner of the schedule property he would not have kept quite for a long period of about 18 to 19 years. At least when the criminal proceedings initiated against Sri Appalaswamy went against him, the petitioner should have taken steps. If really the petitioner was the owner of the properly and entitled for its possession he would have taken steps well in time. The documents produced by him did not throw any light on his right and ownership over the property. His application filed under Section 8 of the Act is not maintainable. Section 15 of the said Act has no application to the facts and circumstances, Article 65 and Section 27 of the Limitation Act went against the petitioner's case. Even if the petitioner was the owner of the property but the same was extinguished by 12 years from the date of respondent's purchase and coming in possession of the property. Though adverse possession not pleaded in so many words both the parties understood that this respondent perfected his title over the schedule property by way of adverse possession. Thus, the right if any the petitioner had, was either barred by time or extinguished by operation of law. His further case is that the scope under Article 226 of the Constitution is not to appreciate the findings of fact or to give findings on disputed question of fact. Its scope is in the nature of Supervisory one. It is to examine whether any illegality or irregularity committed by the Court below or any authority whose order is under challenge or there is any transgression of statutory requirements or depriving of fundamental right or the order complained of suffers from non-application of principles of natural justice. To support his contentions, he took us to various events. He also placed reliance on several decisions of the Supreme Court and other Courts to support his contentions namely that when it can be said that a person has perfected adverse possession and the scope of Article 226 of the Constitution to interfere with the orders of the authorities or Tribunals or Special Court.
14. In "Chennabasavana Gowd v. Mahabaleswarappa, . The Supreme Court while dealing with Article 144 of the Limitation Act held as follows :
"Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of ouster, the mere assertion of his joint title by the dispossessee co-sharer will not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it is possible to do. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the continuity of adverse possession of the deseizor. It may also check the running of time if the co-sharer who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property."
In "Nannekhan v. Ganpati (FB), AIR 1954 Hyd. 45 the Full Bench while dealing with Sections 28, 6 and 8 of the Limitation Act held as follows:
"The facts proved were (a) that the sale deed was executed on 30th Isfander 1328F in favour of the plaintiff by the guardian of Defendant 1 when the latter was of ten years of age; (b) that the plaintiff got possession on 30th Isfandar 1328F and (c) that he was dispossessed on 6th Meher 1346F. The guardian of Defendant 1 had no right to sell the property on behalf of the defendant who was then a minor. The plea of the defendant was that, as his guardian was not legally entitled to sell the property, no title passed to the plaintiff. The argument of the plaintiff was that the possession of the plaintiff had become adverse and that under the provisions of Section 28, Limitation Act read with Sections 6 and 8, the title of defendant had become extinguished and, therefore, he had no right to dispossess the plaintiff.
Held that the defendant's right had been extinguished in the property by virtue of Section 28 read with Sections 6 and 8 Limitation Act so he could not dispossess the plaintiff. 24 Mad 387(PC); AIR 1941 Nag. 357; AIR 1948 Nag. 253 and followed :-
In "Inderdeo Rai v. Deokaran Rai, the Patna High Court while dealing with Section 28 and Articles 142 and 144 held as follows :-
"Ordinarily, when a plaintiff sues for possession and alleges dispossession but fails to show that he has brought the suit within 12 years of dispossession there is a complete extinguishment of his title under Section 28, Limitation Act and the title is taken as transferred to the adverse possessor after the lapse of the statutory period. It is also well-established that in order to constitute adverse possession the possession must be adequate in continuity in publicity and in extent; in other words, the possession must be actual, visible, exclusive, hostile and continual during the time necessary to create a bar under the statute of limitation."
In D.R. Adinarayanaswamy v. Girraju Papamma, the High Court of the Andhra Pradesh while dealing with Articles 142 and 144 of Limitation Act held as follows :-
"Adverse possession - Co-owners - Sisters and brothers - Sisters enjoying their l/3rd share of property - Cist receipts obtained by them in their name - Sisters creating simple and usufructuary mortgages of their share - Mortgagee put in possession - Held that there was ouster of brothers and the sisters' adverse possession, inasmuch as they openly put the mortgagee in possession, to the knowledge of the brothers - The adverse possession held lasted for more than 12 years. AIR 1943 Mad. 622 (FB) and AIR 1934 PC 23, Foll.)"
The Supreme Court in the case of "State Of West Bengal v. Dalhousie Institute Society., wherein their Lordships while dealing with Articles 64 and 65 of Limitation Act held as follows:
"There is no material placed before us to show that the grant has been made in the manner required by law though as a fact a grant of the site has been made in favour of the Institute. The evidence relied on by the Special Land Acquisition Judge and the High Court also clearly establishes that the respondent has been in open, continuous and uninterrupted possession and enjoyment of the site for over 60 years. In this respect the material documentary evidence referred to by me High Court clearly establishes that the respondent has been treated as owner of the site not only by the Corporation, but also by the Government. The possession of the respondent must have been on the basis of the grant made by the Government, which no doubt, is invalid in law. As to what exactly is the legal effect of such possession has been considered by this Court in Collector of Bombay v. Municipal Corporation of the City of Bombay, as follows:
"..... the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid. grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title to it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purpose of a market in terms of the Government Resolution of 1865,....."
The above extract establishes that a person in such possession clearly acquires title by adverse possession. In the case before us there are concurrent findings recorded by the High Court and the Special Land Acquisition Judge in favour of the respondent on this point and we agree with those findings."
In "Rajendar Singh v. Santa Singh,'" the Supreme Court while dealing with Sections 3, 28, Articles 142, 144 of Limitation Act held as follows :-
"The object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence, or laches."
In G. Moorthanna v. G. Chinna Ankish, this Court while dealing with the scope of Sections 64 and 65 of the Limitation Act held as follows :
However, this does not completely solve the problem. The respondents have brought the suit claiming the enforcement of the trust and for possession of the trust properties and so it is for them to show that a trust in fact and in law existed as on the date of the suit. The plea of estoppel would help them to defeat the 1st defendant only when they establish this preliminary and basic position. What has been discussed above shows that though the endowments or trust created by Kotamma under her will was invalid under her personal law, nevertheless, it was acted upon right upto the date of the suit. Each set of trustees managed the two houses and Defendants 2 and 3 were collecting rents only on behalf of the trustees as admitted by the 1st defendant himself as DW2. The conclusion is, therefore irresistible that the trustees constituted as per the provisions of the will were in legal possession of the two houses from 1931 when Koiamma died right upto 1968, and that possession was on behalf of the trust. They were in possession for nearly 37 or 38 years on behalf of the trust and in their capacity as trustees to the exclusion of heirs of Kotamma and everybody else that is to say, the heirs of Kotamma cannot now claim the properties and the trustees have acquired a possessory title against any other possible claimant to the properties. This possessory title is that of the trust though the endowment to start with, was invalid and void. In other words the title of the trust now rests not so much on the provisions of the will, but on the possessory and adverse title acquired for its benefit by continuous and uninterrupted possession its trustees have acquired for over the statutory period. Thus, as on the date of the suit the trust was legal and valid, whatever might have been its infirmity to start with. No person, much less the 1st defendant who had been a trustee, can now question the legality of the ownership of the trust of these two houses.
In Smt. Anjanabai v. Smt. Jaswantibat, the Bombay High Court while dealing with the scope of Articles 64, 65 and Section 27 of the Limitation Act held as follows :
"It is the case of the purchasers, viz., the defendants that they were dispossessed by the plaintiffs in June 1975 and that was the period when cause of action arose to them to file the suit. Chindhabai (DW2) admits that she took possession of suit land in June, 1975. It is hence clear that the purchaser remained in possession from the date of sale deed, that is, 31-10-1962 till they were dispossessed in June, 1975. Even if the time is computed from the date of knowledge, that is, somewhere in November, 1962 then the purchasers were in uninterrupted possession for the period of twelve years. The suit of declaration, partition and possession is filed on 21-2-1975, that is, after a period of 12 years from the date the defendants were placed in possession and to the knowledge of the plaintiff. It was hence contended on behalf of the purchasers (defendants) that they have perfected their title by prescription against the plaintiffs and we find that the contention needs to be upheld.
A controversy is raised in respect of the date of ouster. The plaintiffs allege by placing reliance on the decision of this Court in Vishwanath Krishna Gokhala v. Mahadeo Arjun Kokata, AIR 1960 Bom. 50, that the starting point of limitation is actually denied, In the case cited, a suit for possession is filed by the purchaser of undivided interest of the separated member of the Hindu family, his rights would be governed by ordinary law. By his purchase, he acquires all the rights of his vendor, including his right as a co-owner to the joint possession of the property jointly held and also his right to obtain by partition separate possession of his share in the property. The suit for possession would be governed by Article 144 of the Indian Limitation Act and the starting point would be as stated above.
The purchasers (the defendants) on the other hand rely upon the Full Bench decision of this Court in Bhavrao v. Rakhmin, (1899) ILR 23 Bom. 137. Where coparceners have alienated their shares in the joint family property by sale and mortgage and the alienees have been in possession for more than 12 years, a claim for partition, as against such alienees, is barred by limitation under Article 144 of the Limitation Act. We have extracted the relevant portion as under:
"What, then, is the purchasers position with reference to the coparceners of his vendor or mortgagor ? The answer, we think must be that, as he enters as owner and in right of his conveyance, his possession is adverse to them also. In the eye of the law, all the coparceners, though for the sake of convenience they may be in separate possession of portions of the joint estate, are the owners of the whole estate including the alienated portion. It may be and indeed is the case that such a purchaser by his purchase does not get a good title to the land conveyed to him by a single coparcener, but only the qualified right laid down in Pandurang v. Bhaskar, (1874)(11) Bom.
HCR 72) (supra), and he is liable under some circumstances even to be evicted if the coparceners take the requisite steps within the statutory period. Nevertheless his exclusive possession does not on that account does not cease to be adverse. He, entering as owner, his possession must, we think, necessarily be adverse to the true owners. Adverse possession depends upon the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested - whether in a single person or in many jointly. "Adverse possession is possession by a person holding the land, on his own behalf, or of some person other than the true owner" - Per Markby, J. in Bejoy Chunder v. Kally Prosonno, (1879 ILR 4 Cal. 327). In favour of such a holder limitation begins to run from the date of his possession, provided the true owner is not under disability and is capable of suing."
15. As an answer to the authorities cited by Sri Rajendra Prasad on the point of seeking delivery of possession after 12 years and extinguishment of right if any, Sri V.V.S. Rao, learned senior Counsel appearing for the petitioner placed reliance on a decision of the Supreme Court in the case of "Meethiyan Sidhiqu v. Muhammad Kunju Pareeth Kutty", 1996 (1) Supreme 622 wherein the Supreme Court while considering the scope of Article 136 of the Constitution of India where sale deed found void a claim for title set up by adverse possession or prescription in the absence of such pleading in suits defence nor proof in this behalf, held the appellant has failed to establish that he perfected his title by prescription. The authorities cited on the petitioner's side are one to say that the claim of the respondent if any is the claim by fraud. The petitioner's contention is that any right accrued or derived or even a decree obtained by playing fraud, the same is a nullity and no right will flow to the party who is claiming right or title on a fraudulent document. We entirely agree with the contentions of Sri V. V.S. Rao that if a judgment is obtained by fraud or any judgment is obtained by suppressing material facts or documents is a non est in the eye of law. If judgments are obtained by playing fraud or by deceitful means, the same deserve to be recalled by the Courts by exercising their inherent powers. Further, whenever the Court is mislead by playing fraud, that Court can even set aside the sale brought about by practising fraud on such Court or it can even set aside the order recording compromise obtained by fraud. If we test the evidence given by the petitioner both oral and documentary in the light of the principles explained above, the conclusion that we can draw is that the conduct of the petitioner including his silence for several years railed to suggest that the other side played any fraud on the Court or suppressed any material facts so as to obtain an order in his favour. On the other hand, the attitude of the petitioner who was dispossessed in the year 1970 and unaccompanied by any change of possession has not affected the continuity of adverse possession of the respondent. In the case on hand, the respondent by producing material showed the Court that his possession is more than twelve years, the same is adequate in continuity, in publicity and in extent. In other words, the respondent's possession was actual, visible, exclusive, hostile and continued even during the time when the petitioner sought to avoid it by filing the application under Section 8 of the 1982 Act. The petitioner failed to establish that in any way he was under any disability or was incapable of initiating proceedings against the respondent to recover the property within twelve years period. Apart from the documents which the respondent relied upon, even on the grounds of equity and justice by virtue of his long enjoyment of the schedule property, it is not proper to disturb his possession and enjoyment. The petitioner has to blame himself for his negligence or laches and cannot accuse the respondent who came in possession of the property by inheriting the same from his father who had purchased the same under registered sale deeds which transaction was within the knowledge of the petitioner. To say that the respondent did not acquire any title, the petitioner should have shown how the documents obtained by the respondent are the result of fraud for deceit played by him or by his predecessor-in-title. The documents relied upon the petitioner namely Exs A1 to A3 and admission of himself and his witnesses that they lost possession of the schedule property in the year 1970 or even a little earlier to that, belies the theory that either the petitioner or his prcdecessor-in-title was in possession of the schedule property or made attempts to avoid any disturbance of his possession and enjoyment. The Special Court rightly observed that the petitioner's father was a responsible officer of the State. If there was any dispossession or denial of right Over the schedule property he would have taken steps to get the same set right. If the petitioner was in possession of the property, no explanation is forthcoming from him as to why he did not examine Appayya with whom the petitioner entered into an agreement to sell the schedule property somewhere in the year 1968 and who subsequently refused to perform the contract as the property in question was not free for possession and enjoyment. The findings of the Criminal Court in C.C. No.7518/73 and the rent control proceedings in R.A.No.727/70 again go against the petitioner as to his possession and enjoyment of the schedule property. On the other hand, they throw light that this respondent and his predecessor-in-title have been in possession and enjoyment of the schedule property. The documents produced by the respondent are voluminous. They range from registered sale deeds, payment of cist and municipal tax approval of plans for construction of building or structures, sale transactions, correspondence between the respondent's prcdecessor-in-title and the Government and the municipality and the Government recognising the respondent's predecessor-in-title as the owner of the property and paying him the rents in respect of the building which was taken on lease to house its ministers and other dignitories and further supported by Exs.B10, B11 and B12 whose veracity was not discredited by the petitioner in any way. They all go in support of the respondent's contention that the property which he purchased did not belong to the petitioner's predecessor-in-title. The evidence adduced also supports the respondent's possession and enjoyment of the schedule property for more than the statutory period.
16. Article 65 read with Section 27 of the Limitation Act supports the case of the respondent. Article 65 of the Limitation Act reads as follows:
"Description cf suit Period of limitation Time from which period begins to run For possession of immovable properly or any interest therein based on title.
Twelve years When the possession of the defendant becomes adverse to the plaintiff Explanation -
(a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisce the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisce as the case may be, falls into possession.
(b) ......
(c) ........"
Section 27 of the Limitation Act reads as follows :
"Extinguishment of right to property :-
At the determination of the period hereby limited to any person for instituting a suit for possession or any property his right to such property shall be extinguished."
The above extracts will support the case of the respondent as explained by the Supreme Court and other High Courts cited supra and relied upon by the respondent. The respondent has not taken an alternative plea that he perfected his title over the schedule property by adverse possession. Sri V.V.S. Rao, learned senior Counsel is right in his argument that if a party fails to take a specific pleading as to the establishment of title by adverse possession, he cannot avail of the same as held by the Supreme Court in Meethiyan Sidhiqui's case. But the facts in Meethiyan Sidhiqu's case are distinguishable from the facts involved in this case. In the case on hand sufficient material was made available by the respondent before the Court. Both the parties understood that the respondent set up his claim on the basis of several documents alternatively on his peaceful, continuous and undisturbed possession for more than 12 years. As admitted by the petitioner himself, the respondent has been in possession and enjoyment of the schedule property from 1970 till the filing of application before the Special Court during February, 1989. Thus, though adverse possession is not specifically pleaded, the proof was there that the respondent had even perfected his title by adverse possession. In the absence of a pleading if the parties entered into the witness box understanding the issues involved and the evidence given is directed in respect of certain point and that particular point is established, then it is not open for the other side to contend that in the absence of raising such a point, the finding should not have been given in favour of his opposite party. Here both the petitioner and the respondent understood their position well, gave evidence, the point went in favour of the respondent. As such, it is not open for the petitioner to say that the Special Court should not have given the finding that the respondent perfected his title by adverse possession. Such a contention is not tenable.
17. Sri V.V.S. Rao learned senior Counsel contended that the Land Grabbing Act Special Act and the Court constituted thereunder is a Special Court. The provisions of either the Civil Procedure Code or Limitation Act including applicability of period of limitation seeking possession back etc., have no application. Whereas this position is disputed by Sri Rajendra Prasad. According to him, the Limitation Act be still made applicable to the provisions of the A.P. Land Grabbing (Prohibition) Act, 1982. Cognizance was not taken suo moto but on the application filed by the petitioner it is proper to extract herein some of the provisions of the Act, 1982. Section 2 sub-section (d) of the Act defines the 'land grabber' which means as follows :-
" 'land grabber' means a person or a group of persons who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for consideration of unauthorised structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts, and also includes the successors in interest."
Section 2 sub-section (e) of the Act defines 'land grabbing' which means as follows :
" 'land grabbing' means every activity of grabbing of any land (whether belonging to the Government, a local authority, a religious or charitable institution or endowment, including a wakf, or any other private person) by a person or group of persons, without any lawful entitlement' and with a view to illegally taking possession of such lands, or enter into or create illegal tenancies or lease and licence agreements or any other illegal agreements in respect of such lands, or to construct unauthorised structures thereon for sale or hire, or give such lands to any person or rental or lease and licence basis for construction, or use and occupation, of unauthorised structures: and the term "to grab land" shall be construed accordingly.''
18. From the above, it is clear that a person is a land grabber if he commits the act of land grabbing without any lawful entitlement and with a view to illegally taking possessor of such lands, or enter into or create illegal tenancies or lesee and licence agreements or any other illegal agreements in respect of such lands, or to construct unauthorised structures In other words there shall be a sudden and unscrupulous seizure of the land with a view to appropriate the same for himself.
19. Section 3 of the Act 1982 says that land grabbing is unlawful and an activity of land grabbing is punishable under the Act. Section 4 sub-section (2) prohibits land grabbing which is extracted herein :
"Any person who, on or after the commencement of this Act, continues to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, local authority, religious or charitable institution or endowment including a wakf, or other private person, shall be guilty of an offence under this Act."
According to the said above section, any person who, on or after the commencement of the Act continues to be in unlawful occupation of the land belonging to others is guilty of an offence under the Act.
20. Section 5 of the Act deals with the penalty for other offences in connection with land grabbing.
21. Section 8 of the Act deals with the procedure and powers of the Special Court. Section 8 sub-section (1) reads as follows :
"The Special Court may, either suo motu or on application made by any person, officer or authority take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership and title to, or lawful possession of, the land grabbed, whether before or after the commencement of this Act, and pass such orders (including orders by way of interim directions) as it deems fit."
Section 8 sub-section (2) reads as follows :
Notwithstanding anything in the Code of Civil Procedure, 1908 (Central Act of 5 of 1980) (the Code of Criminal Procedure, 1973) or in the Andhra Pradesh Civil Courts Act, 1972, (Act 9 of 1972) any case in respect of an alleged act of land grabbing or the determination of questions of title and ownership to, or lawful possession of any land grabbed under this Act, (shall, subject to the provisions of this Act, be triable in the Special Court) and the decision of Special Court shall be final.
Section 9 of the Act deals with the Special Court to have the powers of the Civil Court and the Court of Sessions, which reads as follows:
"Save as expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908, (Central Act 5 of 1908) the Andhra Pradesh Civil Courts Act, 1972 (Act 19 of 1972) and the Code of Criminal Procedure, 1973, (Central Act, 2 of 1974) in so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings before the Special Court and for the purpose of the provisions of the said enactments, Special Court shall be deemed to be a Civil Court or as the case may be a Court of Sessions and shall have all the powers of a Civil Court and a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor.'' Section 10 of the Act deals with the burden of proof which reads as follows :-
"Where in any proceedings under this Act, a land is alleged to have been grabbed, and such land is prima facie proved to be the land owned by the Government or by a private person the Special Court or as the case may be, the Special Tribunal shall presume that the person who is alleged to have grabbed the land is a land-grabber and the burden of proving that the land has not been grabbed by him shall be on such person."
From the above section, it is clear that the person alleges that the other side has committed an act of grabbing shall prima facie prove that the land owned by the Government or a private person etc., has been grabbed.
Section 15 of the Act reads as follows:-
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or custom, usage or agreement or decree or order of a Court of any other tribunal or authority.
A Division Bench of this Court in "K.V. Sreenivasa Rao v. Special Court", 1996 (4) ALD 1033 (DB) while considering the effect of Section 15 of the Act, 1982 held as follows:
"There is nothing in the act to hold the provisions of limitation act as regards adverse possession to have been given a go-bye under the provisions of the Land Grabbing (Prohibition) Act. It is true that under the Act a different limitation period could have been prescribed as the Act is one with the assent of the President. But unless that is done, the provisions of the Limitation Act, so for as not inconsistent with the provisions of the Land Grabbing (Prohibition) Act, would supplement the later Act."
The above discussion being an answer to the questions raised by the learned Counsel for the petitioner, it is now proper to bear in mind the scope of Article 226 of the Constitution of India to interfere with such finding of fact. In other words, on finding of fact, when a finality has been reached by a Court, it is not open for judicial review under Article 226 of the Constitution. When similar question was cropped up before this Court in the case of "Tadi Surya Rao v. Dr. Gurubhavatula Ramakrishna Rao", 1996 (4) ALD 556 (DB) a Division Bench of this Court held as follows :
"Before considering the rival contentions urged by the learned Counsel for both sides, we must restate the well accepted legal principles concerning the limits of the power of judicial review, since the matter at length has been argued by Sri Poornaiah, learned Counsel for the petitioner, drawing our attention in extenso to the evidence, endeavouring to convince us to take a view different from the one arrived at by the Special Court. As the questions determined by the Special Court attained finality by virtue of Section 8(2) of the Act, any enquiry by us of a nature akin to the exercise of appellate jurisdiction is plainly forbidden.
The celebrated passage from the judgment of Lord Atkin in R. v. Electricity Commissioners (1) 1924 (1) KB 171 at 204 serves as the foundation in the modern times for the issue of a writ of Certiorari:
"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
The duty to act judicially may arise in varied situations and it is difficult to define precisely, the circumstances under which such duty may arise. Each case turns upon its own facts. Gajendragadkar, J., (as the then was) in Syed Yakoob v. Radhakrishna, , after reviewing the case law, has stated the legal position for issue of a writ of certiorari under Article 226 of the Constitution of India.
"A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts of tribunals; these are cases where orders are passed by interior Courts or tribunals without jurisdiction, or is in excess of it or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is however no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or tribunal as a result of appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be... if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari "but" a finding of fact recorded By the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court"
Elaborating what is meant by an error apparent on the face of the record, the learned Judge held:
"Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it or is expressly founded on reasons which arc wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record."
Stating that in judicial review, the Court is not concerned with the decision but with the decision making process, Lord Brightman held in Chief Constable v. Evans, (1982) I WLR 1155;
"Judicial review is concerned not with the decision but with the decision making process. Unless that restriction on the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
The permissible grounds on which the power of judicial review could be exercised were stated by Lord Diplock in C.C.S.U. v. Minister for Civil Service, 1985 AC 374 : (1) illegality; (ii) irrationality; and (iii) procedural impropriety. Accepting the parametres for the exercise of the power of judicial review as held by the British Courts, our Supreme Court held in M/s. Dwarakadas Marfatia and Sons v. Board of Trustees. Bombay Port, ;
"It is not within the purview of a Court to substitute the decision taken by a constituted authority simply because the decision sought to be substituted is a better one."
Thus under Article 226 of the Constitution of India, this .Court is neither a fact finding authority nor it has power to reappreciate the evidence when we have been asked to decide legal issue under Article 226 of the Constitution. A1l that we have to see is whether there is any procedural illegality or irregularity or any violation of the statutory rights or denial of fundamental rights. From the material placed before us it is difficult to hold the existence of any of the above circumstances in order to interfere. On facts also, the Special Court while discussing elaborately held all the points against the petitioner. The petitioner failed to make out a prima facie case that the respondent is a land grabber and has been in unlawful possession of the schedule land. On the other hand, he has been in possession and enjoyment of the schedule land pursuant to the title which his predecessor-in-title had either by the petitioner or by his predecessor-in-title for a period more than 18 years. But the petitioner attempted to put a claim only during February, 1989 when the A.P. Land Grabbing (Prohibition) Act, 1982 came into effect.
22. In our view, there are no merits in any of the contentions raised by the petitioner. The direction sought by the petitioner in his application filed before the Special Court to take action against the respondent under the provisions of A.P. Land Grabbing (Prohibition) Act, 1982 was not warranted and the Special Court rightly rejected that application. The writ petition is a misconceived one. The order of the Special Court is a just one and we see no illegality or any irregularity in it. The writ petition fails and, hence, it is liable to be dismissed.
23. Accordingly, the writ petition is dismissed. However, there is no order as to costs.
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