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Dr. Tilak Raj Chadha Vs. Chief Commissioner, Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 25-D of 1958
Judge
Reported inAIR1961P& H275
ActsPunjab Municipal Act, 1911 - Sections 121, 123 and 237; Constitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Sections 100 and 101
AppellantDr. Tilak Raj Chadha
RespondentChief Commissioner, Delhi and ors.
Appellant Advocate R.S. Narula and; P.C. Khanna, Advs.
Respondent Advocate Jindra Lal,; Daljit Singh,; Bishamber Dayal,;
DispositionAppeal dismissed
Cases ReferredNagendra Nath Bora v. Commissioner of Hills Division and Appeal
Excerpt:
.....that references in the enactments to the state government shall be construed as references to the chief commissioner of delhi. the very words 'an error apparent on the face of the record' clearly show that the error must be such which can be detected or noticed without much difficulty. in this connection, the counsel drew our attention to three facts, (a) that the chief commissioner in the impugned order has stated that it was the petitioner who failed in the suit upon the high court. 3 who failed in the suit upon the high courtalthough the chief commissioner mentioned thatit was the petitioner who failed, but the learnedsingle judge did not consider this sufficient tovitiate the impugned order, this cannot be saidto be an error of law apparent on the face of therecord. if it is..........the pendency of the suit mentioned above, in may, 1957, hunda singh filed a petition before the chief commissioner, delhi, for setting aside the order of shri d. d. sharma. the chief commissioner granted ex parte stay, but on 7th june, 1957, after hearing the parties the same was vacated. on 9th december, 1957, however, he accepted the petition of hunda singh holding that the municipal committee was free to grant the licence to the applicant in accordance with the opinion of their medical officers, as a result of which the order of the appellate authority was set aside. against that order dr. tilak raj filed c. w. no. 458-d of 1957 under article 226 of the constitution which was dismissed by mehar singh j., on 23rd may, 1958. it is against this order that the present letters patent.....
Judgment:

J.S. Bedi, J.

1. Dr. Tilak Raj Appellant was allotted shop No. 104 in the South Block of Rajinder Nagar Market, New Delhi, in the month of November, 1949, while in the adjoining shop No. 103 the Government opened a homoeopathic health centre and put Dr. Chander Parkash in charge of the same. This scheme, however, failed and in 1955 the health centre was closed as a result of which shop No. 103 fell vacant. Hunda Singh respondent, who originally was an allottee of shop No. 3 in the North Block, applied for the allotment of shop No. 103 and after some difficulty managed to get the same, and shifted in this shop in 1956.

He made an application to the Municipal Committee in January, 1956, under Section 121 of the Punjab Municipal Act, 1911, as extended to Delhi, for obtaining a licence to instal an oil-expeller (kohlu) in that shop. Objections were raised by the Market association, which protested to the Municipal Committee by a telegram, and by other residents of the adjoining block, who submitted a written protest. In spite of that however, Hunda Singh secured the licence on 17-2-1956 for setting up a kohlu in that shop.

2. The appellant filed an appeal to the Appellate Authority, which happened to be the Additional District Magistrate Shafiq Hussain, under Section 225 of the Punjab Municipal Act against the grant of the licence. The appeal was accepted by the Additional District Magistrate on 21-6-1956 who Cancelled the licence granted to Hunda Singh on the ground that the Municipal Committee had made incorrect use of its power in permitting Hunda Singh to instal a kohlu in the shop, in close proximity to a health centre, probably meaning thereby the shop of the appellant.

3. On 17-8-1956, the Municipal Committee again renewed the licence of Hunda Singh to run a kohlu in shop No. 103 under the provisions of Section 121 of the Punjab Municipal Act. It however, appears that although Hunda Singh installed a Kohlu there, he did not run it till 25-11-1956 when it came to the notice of the appellant. The appellant, therefore, again filed an appeal to the Appellate Authority under Section 225 of the Punjab Municipal Act which was heard by Shri D. D, Sharma, the then Additional District Magistrate, lie accepted the same on 11th April, 1957, and passed some strictures against the Municipal Committee as well.

4. On I5th April, 1957, Hunda Singh filed a civil suit against the Municipal Committee and Dr. Tilak Raj for an injunction restraining them from interfering with his business and an Interiminjunction was granted. Dr. Tilak Raj appealed against that injunction to the District Judge. The appeal was accepted and the injunction was vacated on 29th August, 1957. On 25th September, 1957, Hunda Singh filed Civil Revision No. 446-D of 1957 in the High Court which was dismissed in limine on 27th September, 1957.

5. During the pendency of the suit mentioned above, in May, 1957, Hunda Singh filed a petition before the Chief Commissioner, Delhi, for setting aside the order of Shri D. D. Sharma. The Chief Commissioner granted ex parte stay, but on 7th June, 1957, after hearing the parties the same was vacated. On 9th December, 1957, however, he accepted the petition of Hunda Singh holding that the Municipal Committee was free to grant the licence to the applicant in accordance with the opinion of their medical officers, as a result of which the order of the Appellate Authority was set aside. Against that order Dr. Tilak Raj filed C. W. No. 458-D of 1957 under Article 226 of the Constitution which was dismissed by Mehar Singh J., on 23rd May, 1958. It is against this order that the present Letters Patent Appeal has been put in.

6. The appeal was argued by the parties ai considerable length. The appellant's Counsel raised before us the same points which he had also raised before the learned Single Judge, namely (i) that the Chief Commissioner was not the State Government; (ii) that at any rate he could not go beyond his jurisdiction to pass the impugned order under Section 237 of the Punjab Municipal Act and (iii) that the order of the Chief Commissioner suffered from an error apparent on the face of the record and as such should be set aside.

7. Dealing with the first point, it is an admitted fact that Delhi is a centrally administered area and is administered by the Chief Commissioner who enjoys the same powers which are exercised by the President and delegated to the Chief Com-missioner by virtue of Notification No. S. R. O. 2536, dated 1st November, 1956, issued by the Ministry of Home Affairs.

Our attention was also drawn to Notification No. 189/38 dated 30th May, 1939, of the Homy Department, Clause (ii) of which clearly says that references in the enactments to the State Government shall be construed as references to the Chief Commissioner of Delhi. The latter notification, in my opinion, leaves no room for doubt on the point at issue. Moreover, this point was not taken before the Chief Commissioner and cannot, therefore, be agitated in this Court in Letters Patent Appeal.

8. The second point raised by the appellant's counsel was that the Chief Commissioner could not go beyond his jurisdiction to pass the impugned order under Section 237 of the Punjab Municipal Act. Section 237 of the Punjab Municipal Act runs as under:-

'Notwithstanding anything in this Act, the State Government shall have the power of reversing or modifying any order of any officer of the State Government passed or purporting to have been passed under this Act, if it considers it to be not in accordance with the said Act or the rules or to be for any reason inexpedient, and generally for carrying out the purposes of this Act the State Government shall exercise over its officers and the Commissioner shall exercise over the Deputy Commissioner all powers of superintendence, direction and control.'

The learned counsel for the appellant contended that the Chief Commissioner, if he had the power at all, could exercise that power in reversing or modifying an order of any officer of the State GOV-ernment passed or purported to have been passed under this Act if he considered it to be not in accordance with the said Act or rules and generally for carrying out the purposes of the Municipal Act, The counsel however, forgets the underlying words 'or to be for any reason inexpedient' appearing in Section 237 of the Punjab Municipal Act, which give the Chief Commissioner very wide powers so much so that his hands are unfettered and he Can pass almost any order under the Punjab Municipal Act. The counsel for the appellant, however, did not place much reliance on points Nos. (i) and (ii), but vehemently pressed point No. (iii).

9. Dealing now with point No. (iii), we have to bear in mind the extent to which the High Court can take action under Article 226 of the Constitution. The basic authority on the point is G. Veerappa Pillai v. Raman and Raman Ltd, AIR 1952 SG 192, in which their Lordships of the Supreme Court have laid down that such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the lace of the record, and such act, omission, error, or excess has resulted in manifest injustice.

However extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions im-pugnecl and decide what is the proper view to be taken or the order to be made. Now, what is 'an error apparent on the face of the record' has been elucidated in Satyanarayan v. Mallikarjun, AIR 1960 SC 137.

It was held therein that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.

The very words 'an error apparent on the face of the record' clearly show that the error must be such which can be detected or noticed without much difficulty. The same view is reiterated in Mangal Sain v. Chief Settlement Commissioner, New Delhi, (1960) 62 Pun LR 374 : (AIR 1960 Punj 626). These authorities lay down the general principles which govern the High Courts while dealing with writs under Article 226 of the Constitution.

10. Arguments were advanced on the point whether an error of fact apparent on the face of record would justify interference by this Court under Article 220. The respondents' counsel contended that if the error was on a point of fact, it would not entitle the High Court to interfere under this provision. In support, he cited Nagendra Nath Bora v. Commissioner of Hills Division and Appeal, AIR 1958 SC 398 at page 412, para 25. In that case it was observed by their Lordships:-

'So far as we know, it has never been contended before this Court that an error of fact, even though apparent on the face of the record, could be a ground for interference by the Court exercising its writ jurisdiction. No ruling was brought to our notice in support of the proposition that the Court exercising its powers under Article 226 of the Constitution could quash an order of an interior tribunal, on the ground of a mistake of fact apparent on the face of the record.'

This according to the respondents' counsel clinches the issue. The counsel for the appellant, however, contended that the error found in the order of the Chief Commissioner was not an error of fact but an error of law. The question, therefore, is whether the order of the Chief Commissioner suffers from an error of law apparent on the face of the record. The counsel was, however unable to cite any direct authority to show that even if the error was on a point of fact, the High Court could interfere under Article 226.

11. What is an error of law is given in section 100 of the Code of Civil Procedure. The counsel submitted that a finding based on no evidence or in disregard of evidence or on inadmissible evidence or on assumption of facts without enquiry is an error of law. He further submitted that a refusal to draw any inference from proved facts one way or the other or the drawing of an inference which cannot be drawn from, and is not warranted by the facts, is an error of law.

Keeping the above principles in view, we have to see whether the order of the Chief Commissioner suffers from any error of law or fact. In this connection, the counsel drew our attention to three facts, (a) that the Chief Commissioner in the impugned order has stated that it was the petitioner who failed in the suit upon the High Court. whereas the fact is that it was respondent No. 3; (b) that there was a kohlu in shop No. 88 run under a license, which is not true and (c) that the neighbours made no representations against the grant of licence for a kohlu to respondent No. 3, whereas the fact is that they did so.

All these three points were raised even beforethe learned Single Judge and they were rejected.The learned Single Judge disposed of the first pointby saying that it was true that it was respondentNo. 3 who failed in the suit upon the High Courtalthough the Chief Commissioner mentioned thatit was the petitioner who failed, but the learnedSingle Judge did not consider this sufficient tovitiate the impugned order, This cannot be saidto be an error of law apparent on the face of therecord.

The second point was also rejected by the learned Single Judge saying that although in shop No. 88 no kohlu was actually installed, a properlicence for installing the same had been granted and the Chief Commissioner, therefore, was, probably under the impression that the person who obtained the licence must have installed the kohlu. The third point agitated was that the Chief Commissioner was under some misapprehension that no protests were lodged against the grant of licence to the respondent by anybody else except the appellant, although there is an affidavit on the record to show that some representations were made by others also.

There is also a counter affidavit that it was the appellant who was responsible for those representations. The Chief Commissioner, however, based his order mainly on the recommendations of the Additional Medical Officer who was an expert and a responsible officer. It, therefore, cannot, be said that the Chief Commissioner acted on no evidence or committed any error of law. It is true that some of the facts he gave were not quite true but they were not of much consequence in determining the real issue.

12. Another point which has also to be kept in mind is that the impugned order was passed in 1956 and the Chief Commissioner, while accepting the petition of Hunda Singh, held that the Municipal Committee was free to grant licence to the applicant in accordance with the opinion of their Medical Officer. This order does not in any way show that the Chief Commissioner, while acting under Section 237 of the Municipal Act, gave any direction to the Municipal Committee to issue licence in favour of the respondent.

According to the provisions of Section 121 of the Municipal Act it is the satisfaction of the Municipal Committee which is required. If it is satisfied it can issue licence under that section for engine-house etc. and if somebody feels aggrieved, he can apply to the Municipal Committee under the provisions of Section 123 and get the same cancelled. It is, therefore, clear that if the appellant feels aggrieved, he has a remedy under Section 123. Moreover, the appellant can, if so advised, approach the Civil Courts for an injunction or file a suit fort damages or take any other action permissible under the law.

13. For the reasons given above, I do not see any force in this appeal and would dismiss the same. Taking, however, all the facts and circumstances of the case into consideration, I leave the parties to bear their own costs.

Tek Chand, J.

14. I agree.


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