- (1.) THIS is a petition under Art. 226 of the Constitution of India.
(2.) RESPONDENT No. 4 Badley instituted a suit for cancellation of notice of ejectment in the court of Collector, Bharatpur, against Ghure, the landlord, who had given the notice of ejectment. The suit was dismissed. On application by Ghure, Badley was dispossessed some time in 1943. On second appeal by Badlay the case was remanded for fresh trial. The suit was again dismissed by the Collector, but on appeal the Revenue Commissioner allowed the appeal, and gave a decree upholding the rights of Badley as occupancy tenant, and declared him not liable to ejectment. The date of the decision was 19th March, 1947, Ghure filed an appeal to the Board of Revenue, which was dismissed on 1st February, 19 49, and a review petition was dismissed on the 12th July, 1919. Badley made an application to the Assistant Collector Deeg, for compliance with the decree in the suit on the 16th of August, 1951. The Collector directed the correction of the entries in the revenue record by entering him as an occupancy tenant; but the directed Badley to make an application for restitution in order to get back the possession of land. He applied on 21st February, 1952. The Assistant Collector rejected the application as; being time-barred. On appeal the Additional Commissioner held that the period of limitation was three years from the last date of judgment under Art 182 of the Limitation Act, and computed that period from the 12th of July, 1949, and held the application within time. Ghure's appeal to Board was dismissed on 3rd January, 1955. It is contended by learned counsel for the petitioner that the right to apply for restitution arose, in the first instance, when the order of dismissal of the suit was set aside by the Board of Revenue on 31st May, 1945, and that, in any case, it arose on 19th March, 1947, when his suit was decreed by the Revenue Commissioner. It is contended that Art. 181 of the Limitation Act is applicable which provides a period of three years from the date when the applicants becomes entitled to make an application for restitution. On going through the judgment of the Additional Commissioner, Jaipur, which has been upheld by the Board, it is apparent that of the two divergent views, the Additional Commissioner preferred to accept the view that the application for restitution was also in the nature of an application for execution of a decree and to which the provisions of Art. 182 were applicable, and the three years limitation would being from the final date of the decree The date of the final order was said to be 1st February, 1949, or 12th July, 1949, but it did not make any difference according to the learned Additional Commissioner, because he held that the first application dated 16th August, 1951, had been properly made and the second application dated 21st February, 1952, was only an application in furtherance of his previous prayer. The view taken by the learned Additional Commissioner is shared by the Madras, Bombay, patna and Rangoon High Courts as also the Chief Court of Oudh as mentioned in Note 7 of Chitaley's commentary on Limitationact, while discussing this question under Art. 181 of the Limitation Act. The other view which is shared by the Calcutta, Allahabad and Lahore High Courts is that an application for restitution is not one for execution of a decree, and comes under Art. 181 of the Limitation Act, and the limitation starts when for the first time a decision is given entitling the party to apply for restitution. Learned counsel urged that the second view is more in consonance with the principles of law, and should have prevailed before the Board of Revenue, and in that case, the Revenue Courts had no jurisdiction to entertain the application of the respondent, even if the application be considered to have been presented on 16th August, 1951, as the limitation started on 19th March, 1947. Learned counsel for the respondents' contention is that when the decisions of the High Courts were conflicting on this question and the Board accepted one of the two view it had not committed any error apparent on the face of the record, and therefore, this Court should not interfere. The principles on which the jurisdiction of this Court depends in a writ of certiorari have been recently explained by their Lordships of the Supreme Court in T. C. Basappa vs. T. Nagappa (1), wherein it has been observed that - "certiorari may and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot, by a wrong decision of the fact, give it jurisdiction which it would not otherwise possess. A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e. g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. " Mukherjea J. (as he then was) further relied on the following observation of Morris L. J. in the case of Rex vs. Northumberland Compensation Appellate Tribunal (2): - "it is plain that 'certiorari' will not issue as the cloak of an appeal in disguise. It dose not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown. " In the present case, the error is not patent one, for the various High Courts have taken different view on the applicability of Art. 181 or Art. l82,to an application for restitution. As we are not sitting in appeal over Board of Revenue, the jurisdiction of this Court does not permit of an interference in a case of this nature. The Board had jurisdiction to decide and in deciding the question has preferred to accept one of the two views that were possible on this question. The petition has no force, and is accordingly dismissed. We do not allow any cost to the respondent. .;