KAILASH CHANDRA Vs. SOHAN LAL

JUDGEMENT

(1.) THIS is a petition under Art. 226 of the Constitution of India, wherein the petitioner prays that the orders of the Additional Commissioner II, Jaipur, dated August 16, 1960, and that of the Board of Revenue, Rajasthan, Ajmer, dated August 11, 1965, be quashed and the decree of the Assistant Collector (S. D. O.), Alwar, dated November 30, 1957, and June 13, 1960, be restored.

(2.) WAY back on January 6, 1888, a Patta was issued by the then Alwar State in the name of ancestor of the petitioners named Mansaram, for the purpose of the construction of Dharmashala, house, cultivating an orchard and digging of well for the benefit of the passengers. On May 24, 1949, the petitioner Badriprasad gave a Theka to respondents Nos. 1 and 2 for a period of 5 years and the consideration agreed upon was that the respondents Nos. 1 and 2 will pay Rs. 400/- per annum by way of Theka money. On September 16, 1957, the respondents made default in the payment and a sum of Rs. 600/- became due for a period of 1-1/2 years, adding interest Rs. 80/- thereto, petitioner Badriprasad (since deceased) instituted a suit in the Court of Sub-Divisional Officer, Alwar. On November 30, 1957; the suit was decreed for Rs. 620. An appeal was taken before the Additional Commissioner, Ajmer but it was rejected on July 12, 1958. The matter was then taken to the Board of Revenue, which, by its judgment dated July 27, 1959, remanded the case to the Court of Assistant Collector (S. D. O ), Alwar, to decide whether sec. 3 and 4 of the Rajasthan Agricultural Rent Control Act, 1954 (hereinafter referred to as "the Act") applied or not. The case came before the Assistant Collector (S. D. O ). On June 13, 1960, he expressed the view that the provisions of secs. 3 and 4 of the Act were not applicable and he again awarded a decree to Badriprasad in the sum of Rs. 620/ -. An appeal was taken by the respondents before the Additional Commissioner IT, Jaipur, who expressed the view that even though the land in dispute was not duly assessed under sec. 4, but the assessment of land revenue in regard to the neighbouring lands may be taken as a standard and he accordingly reduced the decree to the sum of Rs. 241/5/ -. This time it was Badriprasad, who went up to the Board of Revenue and the learned members of the Board of Revenue by their judgment dated August 11, 1965, agreed with the view taken by the learned Additional Commissioner II, Jaipur. Still dissatisfied Badriprasad filed the present writ petition.

(3.) LEARNED counsel for the petitioners has brought to out notice a number of cases from which the nature of the relief that can be granted in a writ of certiorari, can be spelt out. The first is Han Vishnu Kamath vs. Ahmad Ishaque (2 ). In this case in an election to the House of People in 1952, Ahmad Ishaque was declared elected. The election petition filed by Hari Vishnu Kamath was rejected and the election of Ahmad Ishaque was upheld. Shri Kamath submitted a petition under Art. 226 of the Constitution in the High Court of Nagpur praying for the issue of a writ of certiorari for quashing the decision of the Election Tribunal on the ground of its bring illegal and without jurisdiction. The writ petition was rejected. On a certificate an appeal was filed before the Supreme Court and their Lordships of the Supreme Court allowed the appeal and quashed the judgment of the High Court as well as of the Election Tribunal and set aside the whole election. The relevant observations in this context are contained in para 38, which read: "in the result, we must hold that in maintaining the election of the first respondent on the basis of 301 votes which were liable to be rejected under Rule 47 (1) (c) the Tribunal was plainly in error. Mr. Chatterjee would have it that this error is one of jurisdiction. We are unable to take this view, because the Tribunal had jurisdiction to decide whether on a construction of Section 100 (2) (c) it could go into the fact of breach of Rule 23, and if it committed an error, it was an error in the exercise of its jurisdiction and not in the assumption thereof. But the error is manifest on the face of the record and calls for interference in certiorari. "