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Rao Bahadur Moolchand Nemichand Vs. District Judge and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1446 of 1964
Judge
Reported inAIR1965Raj184
ActsConstitution of India - Article 226; Rajasthan Relief of Agricultural Indebtedness Act, 1957 - Sections 2 and 6; Debt Law
AppellantRao Bahadur Moolchand Nemichand
RespondentDistrict Judge and ors.
Appellant Advocate S.D. Kalla, Adv.
Respondent Advocate M.C. Bhandari, Adv. for Non-Petitioner No. 2 and; M.M. Vyas, Govt. Adv.
DispositionPetition allowed
Cases ReferredT. C. Basappa v. T. Nagappa
Excerpt:
.....that agriculture was his sole or main source of livelihood before he could get any relief from the debt relief court and as he had completely failed to do so the debt relief court had no jurisdiction to go ahead with the proceedings. ' 9. the learned counsel for the respondent submits that at best the proceedings disclose only an erroneous conclusion of facts which cannot warrant interference by this court in exercise of its extraordinary jurisdiction under article 226 of the constitution. as we know the issue of the prerogative writ like certiorari had their origin in the english system. nagappa, air 1954 sc 440 which brings out the history of the writs may be quoted :as is well known, the issue of the prerogative writs, within which certiorari is included, had their origin in england..........under article 226 of the constitution by r.b. moolchand nemichand, a creditor of respondent no. 2. shri sohan chand, and is directed against the decision of the debt relief court (civil judge) chittorgarh dated 28-10-1963, whereby the debt relief court held in a proceeding under section 6 of the rajasthan relief of agricultural indebtedness act, 1957, hereinafter to be called the 'act', that shri sohan chand was an agriculturist within the meaning of section 2 (a) of the act. the creditor first went up in revision to the court of the district judge, partabgarh, but the latter dismissed the revision by his order dated 9-4-64, holding that the debt relief court was correct in coming to the conclusion that shri sohan chand was an agriculturist. consequently the petitioner is questioning the.....
Judgment:

Kan Singh, J.

1. This is a writ petition under Article 226 of the Constitution by R.B. Moolchand Nemichand, a creditor of respondent No. 2. Shri Sohan Chand, and is directed against the decision of the Debt Relief Court (Civil Judge) Chittorgarh dated 28-10-1963, whereby the Debt Relief Court held in a proceeding under Section 6 of the Rajasthan Relief of Agricultural Indebtedness Act, 1957, hereinafter to be called the 'Act', that Shri Sohan Chand was an agriculturist within the meaning of Section 2 (a) of the Act. The creditor first went up in revision to the Court of the District Judge, Partabgarh, but the latter dismissed the revision by his order dated 9-4-64, holding that the Debt Relief Court was correct in coming to the conclusion that Shri Sohan Chand was an agriculturist. Consequently the petitioner is questioning the correctness of the decision of the learned District Judge as well.

2. Respondent No. 2 Shri Sohan Chand approached the Debt Relief Court with the allegation that he was an agriculturist within the meaning of the Act, and that he was indebted to the tune of about Rs, 20,000/-. Respondent No. 2, specified R.B. Moolchand Nemichand and the State of Rajasthan as his creditors in his application under Section 6 of the Act. The creditors joined issue and contested the claim made by Shri Sohan Chand that he was an agriculturist. Accordingly the Debt Relief Court framed an issue whether Shri Sohan Chand was an agriculturist and whether the main source of his livelihood was agriculture. Evidence was led by the parties. Shri Sohan Chand offered himself as a witness and produced Servashri Rajmal, Fateh Singh and Mohammed Nazir as his witnesses. Petitioner R. B. Moolchand Nemichand examined one Shiv Prasad a retired Revenue Inspector of Badi Sadri in rebuttal. The main witness was Shri Sohan Chand, himself who stated that he had 50 bighas of land, out of which 40 bighas were mortgaged by him, and of the remaining 10 bighas he was in actual possession and was cultivating the same. He also stated that he was a Law Graduate and was enrolled as a lawyer from 1935 to 1945, but after 1945 he gave up the practice and took up agriculture which was his. main source of livelihood. He added that he had no other business. As regards the income that he earned from agriculture he stated that it was about Rs. 300/-a year and he put it at Rs. 25/- or Rs. 30/- per bigha per annum. In cross-examination, however, he admitted that he was keeping a maid-servant to whom, he was paying Rs. 30/- per month with food as her remuneration for services rendered to him. He also admitted that he had two sons of school going age and they were reading in VII or VIII class.

3. In challenging the decision of the Debt Relief Court and that of the learned District Judge, Partabgarh it is urged on behalf of the petitioner that it was the duty of respondent No. 2, to establish clearly that agriculture was his sole or main source of livelihood before he could get any relief from the Debt Relief Court and as he had completely failed to do so the Debt Relief Court had no jurisdiction to go ahead with the proceedings.

4. The writ petition has been opposed by respondent No. 2. Shri Sohan Chand and it is urged on his behalf that there was no error of law committed by any of the two Courts and it was only a question of fact whether the petitioner was or was not an agriculturist and the Courts of fact were entitled to take the view which they did on the evidence before them and even if that view were erroneous this Court would not be justified in interfering with the findings of the Courts below on a question of fact.

5. Now the Act has been made with a view to providing, relief to agriculturists in the State of Rajasthan from indebtedness. Section 2 (b) defines an 'agriculturist' to mean :

'a person who earns his livelihood wholly or mainly from-

1. agriculture, or

2. rent from agricultural land, in case he belongs to any of the categories mentioned in clauses (a) to (h) of Sub-section (1) of Section 46 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955),

and includes a person who ordinarily engages in agricultural labour or who works as an agricultural artisan;'

From this definition it will be clear that to be an agriculturist a person must earn his livelihood wholly or mainly from agriculture. The words 'wholly' or 'mainly' are of great significance and it is not enough that a person has agriculture as one of the sources of his earning, but he must be able to earn his livelihood wholly or mainly from agriculture. This term 'agriculturist' as used in the Act came up for consideration recently before a Division Bench of this Court in Firm Jani Khushalji Jethaji v. Maharaj Bhopal Singh, 1964 Raj L W 118, to which one of us was a party. The relevant observations from that case dealing with the connotation of the term 'agriculturist' may be quoted with advantage :

'It is clear from the definition of the term 'agriculturist' reproduced above that a person in order to come within the ambit of the said term must be a person who earns his livelihood wholly or mainly from agriculture It may be pointed out that the words 'wholly' or 'mainly' are very significant and therefore, whenever an application is made by a person claiming himself to be an agriculturist it becomes duty of the Court to see whether the applicant, who wants to take advantage of the Act, is earning his livelihood wholly or mainly from agriculture. It is not enough for him to say that agriculture is also one of the means of his livelihood.'

6. The Debt Relief Court has, while formulating the question for its consideration correctly, not examined the matter from a correct standard. The main evidence in the case for determination of the question was the statement of Shri Sohan Chand himself. The effect of his statement has been set out by us in the narration of the facts above. He has stated that he was cultivating only an area of about 10 bighas of land and this brought him an income of Rs. 250/- or Rs. 300/- per annum. He admitted in cross-examination that he was having a maid-servant to whom he was paying Rs. 30/- per month together with meals. He further admitted that his wife expired sometime in 1950 and he had two sons who were reading in school. He also admitted that he was paying rent for this land at the rate of annas 4 per bigha, and that his tractor and other machinery were under attachment since 1961. The net effect of this statement was that his only source of income namely, agriculture was hardly sufficient even for maintaining the maidservant. One fails to see, in the circumstances, how Shri Sohan Chand could be said to be maintaining himself entirely or mainly from agriculture. The statement creates an impression that Shri Sohan Chand has other undisclosed resources from out of which he is maintaining himself.

7. Shri Bhandari, the learned Counsel for Shri Sohan Chand, has strongly urged that in exercise of our extraordinary jurisdiction under Article 226 of the Constitution of India it is not open to us to interfere with these proceedings of the Debt Relief Court as there was no error of law apparent on the face of the record.

He has placed reliance on Nagendra Nath v. Commissioner of Hills Division, AIR 1958 S C 398 and Shri Ambica Mills Co., Ltd. v. Shri S.B. Bhatt, AIR 1961 SC 970. In Nagendra's case, AIR 1958 S C 398, the relevant observations on which reliance is placed are as follows :

'One of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law apparent on the face of the record and not every error either of law or fact; which can be corrected by a Superior Court, in exercise of its statutory powers as a Court of appeal or revision. In this respect the law in India and the law in England are the same. The common law writ, now called the order of certiorari, which has also been adopted by our Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extra-ordinary jurisdiction.'

8. In Shri Ambica Mills Company's case, AIR 1961 SC 970 while referring to the earlier Nagendra Nath Bora's case, AIR 1958 S C 398 their Lordships made the following observations :

'Writ of certiorari can be issued not only in cases of illegal exercise of jurisdiction but also to correct errors of law apparent on the face of the record. Errors of fact, though they may be apparent on the face of the record, cannot be corrected. Though it cannot be easy to lay down an unfailing test of general application it is usually not difficult to decide whether the impugned error of law is apparent on the face of the record or not.'

9. The learned counsel for the respondent submits that at best the proceedings disclose only an erroneous conclusion of facts which cannot warrant interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution.

As we know the issue of the prerogative writ like certiorari had their origin in the English system. The King in exercising his prerogative powers of superintendence over his officials and tribunals used to issue such writs in appropriate cases. The main object behind such writs was that an inferior tribunal which was vested with the power to adjudicate on certain matters should remain within the bounds of its authority and it should exercise its jurisdiction properly. By incident of history these writs came to be transplanted on Indian Soil first in the three presidency High Courts by virtue of the royal charters and then by their adoption by the Constitution. The following passage from T. C. Basappa v. T. Nagappa, AIR 1954 SC 440 which brings out the history of the writs may be quoted :

'As is well known, the issue of the prerogative writs, within which certiorari is included, had their origin in England in the King's prerogative power of superintendence over the due observance of law by his officials and Tribunals. The writ of certiorari is so named because in its original form it required that the King should be 'certified of' the proceedings to be investigated and the object was to secure by the authority of a superior Court, that the jurisdiction of the inferior Tribunal should be properly exercised. These principles were transplanted to other parts of the King's dominions. In India, during the British days the three chartered High Courts of Calcutta, Bombay and Madras were alone competent to issue writs and that too within specified limits and the power was not exercisable by the other High Courts at all. The language used in Articles 32 and 226 of the Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution the Court need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. It can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as it keeps to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.'

10. While the Courts in India have not felt oppressed by the technicalities of English law or by the opinions expressed by English Judges in particular cases the basic principles which regulate the exercise of writ jurisdiction in England have always been kept in view. The essential considerations that guide the issuing of writs in the nature of certiorari have been settled by numerous authorities. One of the basic consideration for granting the writ of certiorari has been whether a Court or Tribunal has acted without or in excess of its jurisdiction. The lack of jurisdiction may arise on account of a number of facts: (i) from the nature of the subject matter of the proceedings; (ii) the Court or Tribunal may not be properly constituted; and (iii) when the jurisdiction of the Court depends upon the existence of some collateral facts. In such a case it is well settled that the Court or the Tribunal cannot, by a wrong decision of the collateral fact, give itself jurisdiction which it would not otherwise possess.

11. There are other kinds of cases where while the Tribunal may be acting with jurisdiction, yet in exercising its jurisdiction 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. Also an erroneous decision or determination may be amenable to a writ of certiorari if the error is a manifest error apparent on the face of the proceedings. In other words, the error is a patent one and is on account of a clear breach or disregard of the provisions of law.

We may, in this connection, quote the following observations from T.C. Basappa's case, AIR 1954 SC 440.

'One of the fundamental principles in regard to the issuing of a writ of certiorari, is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression 'judicial acts' includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior Court does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own view for those of the inferior tribunal.'

'The supervision of the superior Court exercised through writs of certiorari goes on two points. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of certiorari could be demanded.'

'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.'

12. We may also usefully extract the following passage from Halsbury's Laws of England (Third Edition Vol II p. 50) which brings out the principles on which the English Courts nave been acting in issuing writs of certiorari :

'116. Collateral facts and the jurisdiction of inferior tribunals. 'The orders cannot be used to give an appeal from the decision of an inferior Court, or of a person or body which is under a duty to act judicially where the legislature has not granted the right of appeal. The primary function of the three orders is to prevent any excess of jurisdiction (prohibition and certiorari), or to ensure the exercise of jurisdiction (mandamus). The jurisdiction of an inferior tribunal may depend upon the fulfilment of some condition precedent (such as notice) or upon the existence of some particular facts. Such a fact is collateral to the actual matter which the inferior tribunal has to try, and the determination whether it exists or not is logically and temporally prior to the determination of the actual question which the inferior tribunal has to try. The inferior tribunal must itself decide as to the collateral fact: When, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction the tribunal has to makeup its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not.'

The passages quoted from the Indian cases and that from the Halsbury's Laws of England will show the marked identity of the approach in the matter of writs of this kind by the Indian Courts and the English Courts. The passages relied on by Shri Bhandari do not, in any manner, lay anything to the contrary.

13. The proceedings before a Debt Relief Court are commenced at the instance of a debtor who is an agriculturist and he is required to file an application in accordance with Section 6 of the Act. Section 7 provides that when an application under Section 6 is admitted, notice shall be issued to all creditors of the debtor and the Debt Relief Court shall fix a date of hearing. Section 8 provides for the submission of claims by the creditors. It will be clear from this narration that the Debt Relief Court acquires jurisdiction only when the application has been filed before it by an agriculturist and not otherwise. The determination of the question whether Shri Sohan Chand was or was not an agriculturist was a collateral fact on which the jurisdiction of the Debt Relief Court depended. It is, therefore, open to us to see whether this foundational fact has been properly determined by the tribunal concerned.

We are most reluctant to appraise the evidence for ourselves in exercise of our extraordinary jurisdiction, but having given our careful consideration to the statement made by Shri Sohan Chand before the Debt Relief Court we are left with the impression that Shri Sohan Chand has not disclosed all his sources of earning from which he is eking out his existence. The so-called main source of his livelihood namely, agriculture was hardly sufficient to maintain even his maid-servant.

We are, therefore, of the opinion that on the matter as it stands it cannot be said that the basic fact of jurisdiction has been correctly determined by the Debt Relief Court. Consequently we are constrained to hold that the Debt Relief Court has not dealt with the matter from a correct angle. It was its duty to find out from the petitioner before it namely, Shri Sohan Chand as to what were his several sources of income. If they were more than one, then to see as to whether his main source of livelihood was agriculture. If the only source of his income was agriculture, then it should have been found out as to how he was able to maintain himself on a meagre income of Rs. 250/-or Rs. 300/- per annum specially when he was paying a sum of Rs. 30/- per month to his maid-servant together with food. Also the Court should have found out as to how he was maintaining his children. Thus, we are not satisfied that on the matter as it stands Shri Sohan Chand has established that he was an agriculturist within the meaning of the Act.

14. Consequently we allow the present writ petition and quash the order of the Debt Relief Court (Civil Judge,) Chittorgarh, (Ex-2 on the record) and the order passed by the District Judge, Partabgarh, (Ex. 1 on the record), and hereby direct that the case shall go back to the Debt Relief Court (Civil Judge), Chittorgarh, with the direction that he shall bring out the necessary details from the examination of the parties and take such further evidence which they may like to adduce and then determine the question whether Shri Sohan Chand was an agriculturist within the meaning of the Act, afresh. There will be no order as to costs.


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