Skip to content


Manu Pujhari and anr. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 239 of 1963
Judge
Reported inAIR1965Ori49
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1; Evidence Act, 1872 - Sections 3, 35 and 74; Constitution of India - Article 226
AppellantManu Pujhari and anr.
RespondentState of Orissa
Appellant AdvocateB. Mohapatra and ;R.K. Mohapatra, Advs.
Respondent AdvocateStanding Counsel
DispositionRevision allowed
Cases ReferredChhajiu Ram v. Neki
Excerpt:
.....certiorary that it is not easy to define precisely or exhaustively the exact concept of what is an error apparent on the face of the record. 'an erroneous view of law on a controversial matter, or a wrong exposition of law, or a wrong application of law, or failure to apply correct law has never been treated as a mistake or error apparent on the face of the record. it is well known that court having jurisdiction to decide matter may decide it either wrongly or rightly. the position of law has been well expressed by mr. - it is now well settled that the mistake or errorjustifying a review under order 47, rule 1, civil procedure code,is most often an error of fact and may in certain casesbe one of law also. so, an erroneous view on a debatablepoint of law or a failure to interpret the law..........by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.' before examining how far this rule has application to this case, it is necessary to clear the ground by narration of the circumstances under which review is sought. in paragraph 16 of the award, the arbitrator observed as follows:'it has not been shown before me from this settlement report that annual net yields of lands were calculated from crop-cutting experiments as in the case of lands coming within the hamid settlement operation. this no doubt.....
Judgment:

G.K. Misra, J.

1. Initially there were three objectors. Dibakar Pujhari a brother of other objectors, died during the pendency of the arbitration proceedings. The disputed lands constitute 13.09 acres and are described as Brahmattar Mafi (Niskar) Sir lands in village Berhampura in Mahadebpalli, P. S. in the district of Sambalpur. The objectors claim Rs. 43,460/- as compensation on the basis of 16 times of the net annual yield. The Land Acquisition Officer offered only Rs. 8265/9/-. On 30-4-1983 the arbitrator held that the objectors failed to give any evidence as to what was the net annual yield. He accordingly awarded compensation of Rs. 8265/9/- as offered by the Land Acquisition Officer. In the body of the award, he, however, held that the disputed lands were transferable and objectors were entitled to compensation at 16 times of the net annual yield. He rejected the claim of the petitioners to get compensation at 16 times of the net annual yield on the basis of Verma Settlement Report of 1932 on a finding that there was no crop cutting experiment performed in the Verma Settlement proceedings for determination of the net annual yield. His conclusion was based on the finding that there was no evidence on either side as to what was the net annual yield. The onus being on the petitioners, he awarded the compensation only to the extent admitted by the! Land Acquisition Officer.

2. Aggrieved by this decision, the petitioners filed a review application on 8-5-1963 raising two contentions --(i). In similar cases arising out of Mahadebpalli P. S., the Arbitrator himself directed the Land Acquisition Officer to determine the net yield and award compensation. The learned Arbitrator rejected this contention on the ground that the remand order in previous cases referred to areas governed by the Hamid Settlement in which there was crop cutting experiment; and (ii) Verma Settlement Report was a piece of admissible evidence determining the net annual yield and the statement of the Arbitrator that there was no evidence on record is based on error of law apparent on the face of the record.

3. The Arbitrator rejected the application for review on both the grounds. He held that his view of Verma Settlement Report was correct in law and that as there was no error of law apparent on the face of the record, he had no jurisdiction to review the award. Against this order passed on 3-8-63, the Civil Revision has been filed.

4. Mr. R.K. Mohapatra raised two contentions saying that Verma Settlement Report is not admissible in evidence for determination of net annual yield, merely because there was no crop cutting experiment. Even there the Arbitrator committed an error of record in saying that the Verma Settlement Report was based on no crop cutting experiment; and (ii) The Arbitrator illegally refused to exercise his jurisdiction in saying that there was no error of law apparent on the face of the record and that he had no jurisdiction to review the award.

5. The first contention must prevail. The position of law is well settled that Survey & Settlement Report is a public document and is admissible in evidence Brajasunder Deb v. Rajendra Narayan, AIR 1941 Pat 260. In Martand Rao v. Malhar Rao, AIR 1928 P. C. 10, their Lordships observed that official reports regarding the nature of the estate are valuable and in many cases the best evidence of facts stated therein, but opinion therein expressed should not be treated as conclusive in respect of matters requiring judicial determination, however eminent the authors of such reports may be. In (S) AIR 1955 Orissa 97, State of Orissa v. Bharat Chandra Naik, a Bench of this Court held .-

'To our mind, in the absence of any other evidenceas to the annual yield of Bhogra lands, this settlementreport which is an authorised one may be accepted as thesafe guide.'

Doubtless that particular case was one governed by the Hamid Settlement Report. But it makes no difference in principle so far as the admissibility, relevancy and the value of such evidence are concerned.

There is no dispute that Verma Settlement Report governs the disputed lands. Para. 30 of the Report at page 10 relates to out-turns of Crops. The standard outturns of the principal crops are mentioned therein. There is a reference to experiment conducted by the settlement staff to determine the yield of the rice crop. There were in all 40 experiments carried out in dry lands and the average out-turn of crops was determined. So also there were experiments made in respect of irrigate rice. The learned Arbitrator therefore was not correct in saying that there was no experiment conducted by the settlement staff for determining the out-turn of crops. He completely missed to notice paragraph 30 of that Report which deals with cut-turns of crops. He confined his attention only to paragraph 32 of the Report which deals with costs and profits of cultivation and determination of gross and net yield. In that paragraph, the net average profit has been determined.

For the settlement authorities to determine the net annual yield, different modes are available. One mode of determining may be more accurate than another mode. But it cannot be contended by any stretch of imagination that the mode adopted by them which is incorporated in the Report for determination of the outturn is inadmissible or has no probative value at all. I am, therefore, satisfied that the Arbitrator misread the Verma Settlement Report and committed an error of law in concluding that it is wholly inadmissible and without any probative value.

If this report is regarded as a piece of evidence, the position is that there is some evidence on behalf of the petitioners justifying award of compensation at the rate sanctioned in the Verma Settlement Report and there Is no evidence on the part of the State of Orissa to challenge that. It is not a criminal case but a Civil litigation in which the balance of probabilities is the governing standard. On the authority of (S) AIR 1955 Orissa 97, the petitioners are entitled to compensation at 16 times the net annual yield as given in the Verma Settlement Report. Mr. Das, the learned Standing Counsel, frankly conceded that he cannot support the judgment of the Arbitrator on this part of the case.

6. The more important question is whether the application for review before the; Arbitrator was maintainable. Under Rule 16 of the Orissa Development of Indutries, irrigation, Agriculture, Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Rules, 1950, framed under Orissa Act 18 of 1948, Civil Procedure Code applies to all proceedings before the arbitrator notwithstanding anything to the contrary contained in any other law, in terms of the rules, the case is to be disposed of under Order 47, Rule 1, C. P. C. The relevant portions of Rule 1 of Order 47 may be extracted.

'Rule 1.--(1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) x x x (c) x x x and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.'

Before examining how far this Rule has application to this case, it is necessary to clear the ground by narration of the circumstances under which review is sought. In paragraph 16 of the award, the Arbitrator observed as follows:

'It has not been shown before me from this Settlement Report that annual net yields of lands were calculated from crop-cutting experiments as in the case of lands coming within the Hamid Settlement Operation. This no doubt offers an insurrountable difficulty, and thus, there is no way out from the impasse. When the net annual yield of the acquired land cannot be calculated under any prescribed standard, the question of calculation of compensation at 16 years' net annual yield cannot arise. Thus it becomes impossible to assess the compensation of acquired Sir lands at the market value of Bhogra lands of similar quality and similarly situated.........'

It is to be noted that no reference has been made in the award to any particular passage from Verma Settlement Report showing that it furnishes no basis for calculation of the net annual yield.

In paragraph 6 of the order dated 3-8-1963 refusing to review, the Arbitrator made the following observations-

'It may be mentioned here that in the body of the Award, it was observed that the results of crop-cutting experiments were not recorded in the Verma Settlement report, ,If in fact the settlement report be found to be otherwise, then, I think, there may be some justifying reason for reviewing under the first.............'

I have already discussed that the settlement report in paragraphs 30 and 32 embodies reference to determination of the out-turn by performance of experiments by the settlement authorities. Had not the Arbitrator committed an error of fact as well as of law in misconceiving the scope of paragraphs 30 and 32, he is himself of opinion that he would have allowed the review application. His view that in these circumstances he would have reviewed the matter does not, however, conclude the difficulties inherent in the subject. I would accordingly examine whether in law review can be permitted in the particular circumstances of this case. In this connexion, it may also be noted that in the review judgment, the Arbitrator confines his attention only to paragraph 32 and does not make any reference to paragraph 30 of the Verma Settlement Report. In this case, the petitioners have not filed any appeal against the award of the Arbitrator. The case also does not come within the scope of the first condition that there was discovery of any new important matter of evidence which, after exercise of due diligence, was not within the knowledge of the petitioners. The Verma Settlement Report had been pressed into service by the petitioners before the Arbitrator before delivery of the award.

7. The next question for consideration is whether there is mistake or error apparent on the face of the record. The jurisdiction for interference under Article 226 of the Constitution of India would arise when there is a mistake or error of law apparent on the face of the record and not of fact. But Order 47, Rule 1, C. P. C. covers both cases of review on grounds of mistake or error of fact as well as of law provided it is apparent on the face of the record. Their Lordships of the Supreme Court have laid down in course of discussion of the scope of Writ of Certiorary that it is not easy to define precisely or exhaustively the exact concept of what is an error apparent on the face of the record. There is an element of indefiniteness inherent in its very nature and must be left to be judicially determined on the facts of each case, Hari Vishnu Kamath v. Ahmad Ishaque, (S) AIR 1955 SC 233 and K.M. Shanmugam v. S. R. V. S. (P) Ltd; AIR 1963 SC 1626. In the latter case, their Lordships expressed the position as;

'In the ultimate analysis the said concept is comprised of many imponderables; it is not capable of precise definition, as no objective criterion can be laid down, the apparent nature of the error, to a large extent, being dependent upon the subjective element................

The question Whether the said errors are errors of law or fact cannot be posited on a priori reasoning, but falls to be decided in each case. We do not, therefore, propose to define with any precision the concept of 'error of law apparent on the face of the record'; but it should be left, as it has always been done, to be decided in each case.'

The same principles also apply to determination oferrors of facts apparent on the face of the record. Someillustrations may be given as to what have been takento be errors apparent on the face of the record. An errorwhich does not require any extraneous matter to show itsuncorrectness has been treated as being apparent. Sucherrors are not demonstrated by any process of closereasoning. 'An erroneous view of law on a controversial matter, or a wrong exposition of law, or a wrong application of law, or failure to apply correct law has never been treated as a mistake or error apparent on the face of the record. It is well known that Court having jurisdiction to decide matter may decide it either wrongly or rightly. Correction of such mistaken conclusion does not come within the ambit or purview of review. If the Court applies its mind to a particular fact or law and then comes to a wrong conclusion after conscious reasoning, it can never be contended that the error is one apparent on the face of the record and can be corrected by it. The position of law has been well expressed by Mr. Justice Ramaswami in Ramaswami Padayachi v. Shanmugha Padayachi, 1959-2 Mad LJ 201. It would be profitable to extract the relevant observation:-

'It is now well settled that the mistake or errorjustifying a review under Order 47, Rule 1, Civil Procedure Code,is most often an error of fact and may in certain casesbe one of law also. But in all cases it should be anerror of inadvertence; in the case of an error of law itshould not have been arrived at by a process of consciousreasoning. Further, if it is an error of law, the correctionsuggested or asked for should be such that the bare statement carries conviction without further reasoning or extraneous matter. So, an erroneous view on a debatablepoint of law or a failure to interpret the law correctlywould not be an error of law apparent on the face of therecord. The test in such matters is whether the Courtitself would have made the correction if it was aware ofthe particular fact or circumstance while writing thejudgment. In other words, whether it is an inadvertentmistake or error or a conscious application of mind leadingto a result which one party may consider to be erroneousor a mistake.................'

In Bisheshwar Pratap Sahi v. Parath Nath, AIR 1934 PC 213 their Lordships placed reliance on Chhajiu Ram v. Neki, AIR 1922 PC 112 and held that a court hearing an application for review of a decree had no jurisdiction to order review because it was of opinion that a different conclusion should have been arrived at, and it was held that Order 47, Rule 1 must be read as in itself definitive of the limits within which review is permitted.

8. As appears from the award, the arbitrator was not shown from the settlement report that the net annual yield of the land was calculated from the crop-cutting experiments. At that stage his attention does not seem to have been drawn to paragraphs 30 and 32 of Verma Settlement Report. It was only at the review stage that paragraph 32 was placed before him. The Settlement Report had determined the average net annual yield of different classes of lands and furnishes admissible and relevant evidence of some probative value to determine the quantum in the absence of any other evidence on either side. This is not capable of two views. The Arbitrator committed both an error of law as well as of fact in not looking into the settlement report but merely saying that it was not shown before him (obviously by the Advocate of the petitioners). The error here is apparent on the face of the record. By unfortunate oversight the Arbitrator went wrong in thinking that Verma Settlement Report furnished no evidence for determination of the net annual yield. The position would be completely different If the Arbitrator had applied his mind to paragraphs 30 and 32 of Verma Settlement Report and would have consciously come to the determination that it furnished no evidence at all whether there were crop-cutting experiments or not. That would be a case of an error of law born of error of judgment to be corrected by a court of appeal and not by a court of review. 1 am satisfied that in the peculiar facts of this case the application for review before him is maintainable. The mistake committed here is an error of inadvertence apparent on the face of the record.

9. Though the Arbitrator could review the award, he failed to exercise his Jurisdiction vested in him. The order dated 3-8-63 is accordingly set aside and the Arbitrator is directed to review his judgment and to determine the net annual yield in the light of Verma Settlement Report on the principles enunciated in (S) AIR 1955 Orissa 97 and award compensation accordingly.

10. In the result, the Civil Revision is allowed, but in the circumstances, parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //