Rajasthan High Court – Jodhpur
Kamla Bai vs State Of Rajasthan … on 27 March, 2025
Author: Manindra Mohan Shrivastava
Bench: Manindra Mohan Shrivastava
[2025:RJ-JD:16195-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 1040/2023
Kamla Bai W/o Sh. Chhogalal, Aged About 73 Years, Resident Of
Bhinder, Tehsil - Vallabhnagar, District - Udaipur (Rajasthan)
Substituted In Place Of M/s Kalika Industries, Proprietor Babulal
Nagouri.
----Appellant
Versus
1. State Of Rajasthan, Through Tehsildar Vallabhnagar,
Tehsil - Vallabhnagar, District - Udaipur (Rajasthan).
2. The Board Of Revenue For Rajasthan, At Ajmer, District -
Ajmer (Rajasthan)
----Respondents
For Appellant(s) : Mr. Manoj Bhandari, Sr. Advocate with
Mr. Rajendra Singh Rathore.
For Respondent(s) : Mr. Ravindra Jala and
Mr. Deepak Suthar on behalf of
Mr. Shyam Sunder Ladrecha, AAG.
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Order
REPORTABLE
27/03/2025
I.A. No.1/2023:
Heard on application for condonation of delay.
For the reasons mentioned in the application, the same is
allowed and the delay of 96 days in filing the present appeal is
condoned.
1. Heard learned counsel for the parties on merit.
2. Present appeal is directed against the order dated
10.05.2023 passed by the learned Single Judge in exercise of
jurisdiction under Articles 226 and 227 of the Constitution of
India, whereby, the learned Single Judge has upset the finding
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[2025:RJ-JD:16195-DB] (2 of 27) [SAW-1040/2023]recorded by the Board of Revenue (Revenue Appellate Authority),
set aside the order and allowed petition.
3. Briefly stated, the relevant facts of the case giving rise to the
appeal are that one Babu Lal Nagori was granted a lease of a
parcel of land for setting up of an industrial unit on 13.02.1987
under the provisions of Rajasthan Land Revenue (Industrial Areas
Allotment) Rules, 1959 (hereinafter referred to as “Allotment
Rules of 1959”). In course of time, the said Babu Lal Nagori sold
the land by a registered sale-deed in favour of the appellant-
Kamla Bai on 08.11.1996. The District Collector, Udaipur, however,
sent a notice on 19.07.2006 proposing to cancel the lease on the
ground that the industrial unit having not been set up within a
period of two years of grant of lease, resulted in violation of
mandate of Rule 7 of the Allotment Rules of 1959. The proceeding
so initiated upon issuance of notice eventually led to passing of an
order of cancellation of lease. The order passed by the District
Collector was challenged by filing appeal before the Revenue
Appellate Authority. It appears that when the first order was
passed by the District Collector, in the first instance, an appeal
was preferred and the case was remanded. Whereafter, again an
order was passed by the District Collector. That was again
challenged by filing an appeal and the Revenue Appellate
Authority again remanded the case. After the second remand, the
District Collector passed an order on 30.10.2010 ordering
cancellation of lease. The appellant preferred third appeal before
the Revenue Appellate Authority, though unsuccessfully, as the
appeal was dismissed vide order dated 29.11.2010. Aggrieved by
the said order, appeal was preferred before the Board of Revenue,
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who vide order dated 08.10.2015 upset the order passed by the
lower appellate authority and that of the Collector holding that no
case was made out for cancellation of lease under the provisions
of Rule 7 of the Allotment Rules of 1959. Aggrieved by the order
of the Board of Revenue, the State preferred a writ petition under
Articles 226 and 227 of the Constitution of India before this Court.
The learned Single Judge vide order impugned, set aside the order
passed by the Board of Revenue giving rise to the instant appeal.
4. When this case came up for hearing before this Court on
29.01.2025, while examining the material on record, it was
noticed that apart from the issue as to whether the industrial unit
was established within a period of two years as mandated under
Rule 7 of the Allotment Rules of 1959, it appears that without
permission of the allotting authority, the original allottee Babu Lal
Nagori had executed transfer deed in favour of the appellant
which, on prima facie consideration, appeared not only in violation
of terms and conditions of the lease earlier granted in favour of
Babu Lal Nagori but also in violation of statutory provisions
contained in Rule 9 of the Allotment Rules of 1959. The parties
were granted time to address the Court.
5. Learned counsel for the appellant raised following
submissions:
A) The order passed by the Board of Revenue is based on
correct factual premise and legally admissible documentary
evidence on record. He would submit that the finding
recorded by the Board of Revenue is essentially based on
spot inspection report dated 28.06.2006 on the basis of spot
inspection of the industrial unit which records that the
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[2025:RJ-JD:16195-DB] (4 of 27) [SAW-1040/2023]industrial unit was closed down 10 to 12 years before and
upon enquiry, it is revealed that the unit has been sold. The
report recorded that there was a shed constructed, though
closed, and machines are also situated. The unit is
surrounded by boundary wall. The finding of the Board of
Revenue that this does not constitute material to arrive at a
finding that the industrial unit was not established within a
period of two years of grant of lease in favour of Babu Lal
Nagori, is neither perverse nor can be said to be contrary to
the material on record or suffering from any other perversity
warranting interference in exercise of its certiorari or
supervisory jurisdiction under Article 226 and 227 of the
Constitution of India. He would submit that the finding
recorded by the Collector and the First Revenue Appellate
Authority were without any evidence collected by the State
and placed before the Court that after Babu Lal Nagori was
granted lease on 13.02.1987, he failed to establish an
industrial unit within a period of two years. The spot
inspection report dated 28.06.2006 prepared by the
Industries Department was completely misread and perverse
finding was recorded which was corrected by the Board of
Revenue. Therefore, the learned Single Judge ought not to
have interfered with the finding of fact recorded by the
Board of Revenue.
B) Even if it is assumed that a technical breach had
occurred and Babu Lal Nagori, before selling the industrial unit
to the appellant vide deed dated 15.03.1997, had not
obtained the permission of the competent authority as
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[2025:RJ-JD:16195-DB] (5 of 27) [SAW-1040/2023]required under Rule 9(ii) of the Allotment Rules of 1959, can
even now be regularized under the scheme of the Allotment
Rules of 1959 as provided in Rule 13-A. In any case, it is
contended, that is not the basis on which the learned Single
Judge reversed the order of the Board of Revenue and none of
the authorities at any stage of proceedings held the lease in
favour of the appellant illegal on such ground of contravention
of provisions of law. An alternative submission has been made
by the learned counsel that even if, ultimately, it is found that
at the time of sale of land by way of transfer in favour of the
appellant, the original lessee Babu Lal Nagori had not
obtained any permission, in the peculiar circumstances of the
present case where the appellant had paid substantial amount
as consideration for transfer of right to Babu Lal Nagori way
back in the year 1997 and ever since that the appellant is in
possession of the same, a direction may be issued to the
respondents to grant lease in favour of the appellant. On such
appropriate terms and conditions including payment of
premium rent and/or penalty as may be considered
appropriate and the appellant is ready and willing to make
necessary payment in this regard in case the State grants
lease in favour of the appellant, in the peculiar circumstances
that the appellant has been in possession of the same under
semblance of authority since 1997.
6. Per contra, learned counsel for the respondents in support of
the order passed by the learned Single Judge would submit that
the Collector as well as the First Revenue Appellate Authority had
correctly interpreted and construed the inspection report dated
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28.06.2006 prepared by the Industrial Department but the Board
of Revenue while interfering with the concurrent finding of fact,
based its finding on patent misreading of documentary evidence
on record as also ignored to take into consideration that there was
violation of mandatory conditions of lease. Therefore, now there is
no scope for interference with the finding recorded by the Writ
Court. He would next submit that in any case, even at the stage of
appeal, a legal issue based on admitted facts on record can always
be taken into consideration by the Court. He would submit that
there is no material placed on record by the appellant even though
time was granted by this Court on 29.01.2025 to establish that
Babu Lal Nagori had obtained permission as mandated under Rule
9(ii) of the Allotment Rules of 1959 before transfer of rights in her
favour. Therefore, there is a patent violation of provision and
transfer itself being in violation of provisions of law. He would next
submit that regularization clause as contained in Rule 13-A of the
Allotment Rules of 1959 does not apply in the case of the
appellant but it seeks to regularize certain occupations in specified
circumstances enumerated in the regularization clause.
7. On the aspect of alternative submission, learned State
counsel would submit that it is open for the appellant to apply for
grant of lease to the competent authority and in that event the
same can always be examined.
8. The order passed by the Board of Revenue has been upset
by the learned Single Judge on the finding as below:
“20. The allotment order dated 13.2.1987 and lease-
deed dated 31.3.87 had been executed in favour of
Kalika Industries through Proprietor Babulal Nagori. It is
apparent that the respondent could not set up an
industry within a period of two years on the said land.(Downloaded on 03/04/2025 at 10:02:34 PM)
[2025:RJ-JD:16195-DB] (7 of 27) [SAW-1040/2023]The respondent was under an obligation to establish
that he had set up an industry on the said land within a
period of two years but nothing concrete was placed by
the respondent no.1, rather a copy of Registry was
placed on record showing that the allotted land in-
dispute was transferred in favour of the respondent no.1
on 15.03.1997 and the name of Smt. Kamla Bai is
entered instead of Kalika Industries. The learned
Revenue Appellate Authority in its order dated
8.10.2015 has given a finding that the respondent
sought some time before it to start a new industry on
account of closure of the earlier one and based on this
statement, the learned Revenue Appellate Authority
remanded the matter back to the District Collector for
passing order afresh. However, the respondent during
the arguments before the District Collector instead of
seeking time to establish a new industry prayed that the
nature of land in-dispute be changed from commercial
use to residential use and the District Collector,
therefore, upheld the order of cancellation of allotment
of land in- dispute. The act of the respondent shows the
intention of the respondent and the purpose for which
he wanted to utilize the land in-dispute. The learned
Revenue Appellate Authority held that on the one hand
the respondent sought time before the Revenue
Appellate Authority to establish a new industry and on
the other hand an application was moved before the
District Collector for changing the use of land from
commercial to residential.”
9. Having so noted, the learned Single Judge in the next
following paragraphs of the order concludes that the learned
Board of Revenue failed to appreciate the aforesaid aspects of the
case and without appreciating the record of the case held that
once industry was established and was running for two years, then
as per Rule 7 of the Allotment Rules of 1959, the whole of such
industrial unit can be sold.
10. The finding recorded by the learned Single Judge is that
basic requirement of fulfilling the condition of Rule 7 of the
Allotment Rules of 1959 has not been made by the appellant
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herein as industry had not been established within a period of two
years and nothing substantial was placed on record by the
appellant to demonstrate the same. On such considerate finding
and conclusion, the learned Single Judge has upset the order of
the Board of Revenue.
11. Before proceeding further, it is apposite to refer to recent
Supreme Court decision in the case of Central Council for
Research in Ayurvedic Sciences & Ors. Vs. Bikartan Das &
Ors. : (2023) 16 SCC 462.
The principles governing ambit and scope of judicial review
while exercising certiorari jurisdiction under Article 226 of the
Constitution of India, succinctly stated in several decisions, outline
development of jurisprudence in this regard, it was surveyed and
concluded as below:-
“48. Before we close this matter, we would like to
observe something important in the aforesaid context:
Two cardinal principles of law governing
exercise of extraordinary jurisdiction under Article
226 of the Constitution more particularly when it
comes to issue of writ of certiorari.
49. The first cardinal principle of law that governs
the exercise of extraordinary jurisdiction under Article
226 of the Constitution, more particularly when it comes
to the issue of a writ of certiorari is that in granting such
a writ, the High Court does not exercise the powers of
the Appellate Tribunal. It 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 views for
those of the inferior tribunal. The writ of certiorari can
be issued if an error of law is apparent on the face of
the record. A writ of certiorari, being a high prerogative
writ, should not be issued on mere asking.
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50. The second cardinal principle of exercise of
extraordinary jurisdiction under Article 226 of the
Constitution is that in a given case, even if some action
or order challenged in the writ petition is found to be
illegal and invalid, the High Court while exercising its
extraordinary jurisdiction thereunder can refuse to upset
it with a view to doing substantial justice between the
parties. Article 226 of the Constitution grants an
extraordinary remedy, which is essentially discretionary,
although founded on legal injury. It is perfectly open for
the writ court, exercising this flexible power to pass
such orders as public interest dictates & equity projects.
The legal formulations cannot be enforced divorced from
the realities of the fact situation of the case. While
administering law, it is to be tempered with equity and if
the equitable situation demands after setting right the
legal formulations, not to take it to the logical end, the
High Court would be failing in its duty if it does not
notice equitable consideration and mould the final order
in exercise of its extraordinary jurisdiction. Any other
approach would render the High Court a normal court of
appeal which it is not.
51. The essential features of a writ of certiorari,
including a brief history, have been very exhaustively
explained by B.K. Mukherjea, J. in T.C. Basappa v. T.
Nagappa. The Court held that a writ in the nature of
certiorari could be issued in “all appropriate cases and in
appropriate manner” so long as the broad and
fundamental principles were kept in mind. Those
principles were delineated as follows : (SCC p. 914
paras 8-10)
“8. … In granting a writ of “certiorari”, the
superior court does not exercise the powers of an
Appellate Tribunal. It 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 views for those of the
inferior tribunal. …
9. The supervision of the superior court
exercised through writs of “certiorari” goes on two
points, as has been expressed by Lord Summer in
R. v. Nat Bell Liquors Ltd., AC at p. 156. One is the
area of inferior jurisdiction and the qualifications
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and conditions of its exercise; the other is the
observance of law in the course of its exercise. …
10. “Certiorari” may and is generally granted
when a court has acted without or in excess of its
jurisdiction.”
52. Relying on T.C. Basappa, the Constitution Bench of
this Court in Hari Vishnu Kamath, laid down the following
propositions as well established : (Hari Vishnu Kamath case,
SCC p. 899, para 24)
“24. … 24.1. “Certiorari” will be issued for
correcting errors of jurisdiction, as when an
inferior court or tribunal acts without jurisdiction
or in excess of it, or fails to exercise it.
24.2. “Certiorari” will also be issued when the
court or tribunal acts illegally in the exercise of its
undoubted jurisdiction, as when it decides without
giving an opportunity to the parties to be heard, or
violates the principles of natural justice.
24.3. The court issuing a writ of “certiorari”
acts in exercise of a supervisory and not appellate
jurisdiction. One consequence of this is that the
court will not review findings of fact reached by
the inferior court or tribunal, even if they be
erroneous.”
53. This Court explained that a court which has
jurisdiction over a subject-matter has jurisdiction to
decide wrong as well as right, and when the legislature
does not choose to confer a right of appeal against that
decision, it would be defeating its purpose and policy if a
superior court were to rehear the case on the evidence
and substitute its own finding in certiorari.
54. In Yakoob v. K.S. Radhakrishnan, P.B.
Gajendragadkar, C.J., speaking for the Constitution
Bench, placed the matter beyond any position of doubt
by holding that a writ of certiorari can be issued for
correcting errors of jurisdiction committed by inferior
courts or tribunals. The observations of this Court in
para 7 are worth taking note of : (SCC OnLine SC para
7)
“7. The question about the limits of the
jurisdiction of High Courts in issuing a writ of
certiorari under Article 226 has been frequently
considered by this Court and the true legal
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position in that behalf is no longer in doubt. A writ
of certiorari can be issued for correcting errors of
jurisdiction committed by inferior courts or
tribunals : these are cases where orders are
passed by inferior courts or tribunals without
jurisdiction, or is in excess of it, or as a result of
failure to exercise jurisdiction. A writ can similarly
be issued where in exercise of jurisdiction
conferred on it, the Court or Tribunal acts illegally
or improperly, as for instance, it decides a
question without giving an opportunity to be heard
to the party affected by the order, or where the
procedure adopted in dealing with the dispute is
opposed to principles of natural justice. There is,
however, no doubt that the jurisdiction to issue a
writ of certiorari is a supervisory jurisdiction and
the Court exercising it is not entitled to act as an
appellate court. This limitation necessarily means
that findings of fact reached by the inferior court
or Tribunal as a result of the appreciation of
evidence cannot be reopened or questioned in writ
proceedings. An error of law which is apparent on
the face of the record can be corrected by a writ,
but not an error of fact, however grave it may
appear to be. In regard to a finding of fact
recorded by the Tribunal, a writ of certiorari can
be issued if it is shown that in recording the said
finding, the Tribunal had erroneously refused to
admit admissible and material evidence, or had
erroneously admitted inadmissible evidence which
has influenced the impugned finding. Similarly, if a
finding of fact is based on no evidence, that would
be regarded as an error of law which can be
corrected by a writ of certiorari. In dealing with
this category of cases, however, we must always
bear in mind that a finding of fact recorded by the
Tribunal cannot be challenged in proceedings for a
writ of certiorari on the ground that the relevant
and material evidence adduced before the Tribunal
was insufficient or inadequate to sustain the
impugned finding. The adequacy or sufficiency of
evidence led on a point and the inference of fact to
be drawn from the said finding are within the
exclusive jurisdiction of the Tribunal, and the said
points cannot be agitated before a writ court. It is
within these limits that the jurisdiction conferred
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on the High Courts under Article 226 to issue a
writ of certiorari can be legitimately exercised….”
55. In Surya Dev Rai v. Ram Chander Rai, a Bench
of two Judges held that the certiorari jurisdiction though
available, should not be exercised as a matter of course.
The High Court would be justified in refusing the writ of
certiorari if no failure of justice had been occasioned. In
exercising the certiorari jurisdiction, the procedure
ordinarily followed by the High Court is to command the
inferior court or tribunal to certify its record or
proceedings to the High Court for its inspection so as to
enable the High Court to determine, whether on the face
of the record the inferior court has committed any of the
errors as explained by this Court in Hari Vishnu Kamath
v. Ahmad Ishaque occasioning failure of justice.
56. From the aforesaid, it could be said in terms of
a jurisdictional error that want of jurisdiction may arise
from the nature of the subject-matter so that the
inferior court or tribunal might not have the authority to
enter on the inquiry. It may also arise from the absence
of some essential preliminary or jurisdictional fact.
Where the jurisdiction of a body depends upon a
preliminary finding of fact in a proceeding for a writ of
certiorari, the court may determine, whether or not that
finding of fact is correct. The reason is that by wrongly
deciding such a fact, the court or tribunal cannot give
itself jurisdiction.
57. In Anisminic Ltd. v. Foreign Compensation
Commission, the House of Lords has given a very broad
connotation to the concept of “jurisdictional error”. It
has been laid down that a tribunal exceeds jurisdiction
not only at the threshold when it enters into an inquiry
which it is not entitled to undertake, but it may enter
into an enquiry within its jurisdiction in the first instance
and then do something which would deprive it of its
jurisdiction and render its decision a nullity. In the
words of Lord Reid : (AC p. 171)
“… But there are many cases where, although
the tribunal had jurisdiction to enter on the
enquiry, it has done or failed to do something in
the course of the enquiry which is of such a nature
that its decision is a nullity. It may have given its
decision in bad faith. It may have made a decision
which it had no power to make. It may have failed
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in the course of the enquiry to comply with the
requirements of natural justice. It may in perfect
good faith have misconstrued the provisions giving
it power to act so that it failed to deal with the
question remitted to it and decided some question
which was not remitted to it. It may have refused
to take into account something which it was
required to take into account. Or it may have
based its decision on some matter which, under
the provisions setting it up, it had no right to take
into account. I do not intend this list to be
exhaustive.”
58. So far as the errors of law are concerned, a
writ of certiorari could be issued if an error of law is
apparent on the face of the record. To attract the writ of
certiorari, a mere error of law is not sufficient. It must
be one which is manifest or patent on the face of the
record. Mere formal or technical errors, even of law, are
not sufficient, so as to attract a writ of certiorari. As
reminded by this Court time and again, this concept is
indefinite and cannot be defined precisely or
exhaustively and so it has to be determined judiciously
on the facts of each case. The concept, according to this
Court in K.M. Shanmugam v. S.R.V.S. (P) Ltd., “is
comprised of many imponderables … it is not capable of
precise definition, as no objective criterion could be laid
down, the apparent nature of the error, to a large
extent, being dependent upon the subjective element.”
A general test to apply, however, is that no error could
be said to be apparent on the face of the record if it is
not “self-evident” or “manifest”. If it requires an
examination or argument to establish it, if it has to be
established by a long-drawn out process of reasoning,
or lengthy or complicated arguments, on points where
there may considerably be two opinions, then such an
error would cease to be an error of law. (See :
Satyanarayan Laxminarayan Hegde v. Millikarjun
Bhavanappa Tirumale.)
59. However, in our opinion, such a test should
not be applied in a straitjacket formula and may fail
because what might be considered by one Judge as an
error self-evident, might not be considered so by
another Judge.
60. At this stage, it may not be out of place to
remind ourselves of the observations of this Court in
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Yakoob on this point, which are as follows : (SCC OnLine
SC paras 7-8)
Where it is manifest or clear that the
conclusion of law recorded by an inferior court or
tribunal is based on an obvious misinterpretation
of the relevant statutory provision, or something in
ignorance of it, or may be even in disregard of it,
or is expressly founded on reasons which are
wrong in law, the said conclusion can be corrected
by a writ of certiorari. Certiorari would also not lie
to correct mere errors of fact even though such
errors may be apparent on the face of the record.
The writ jurisdiction is supervisory and the court
exercising it is not to act as an appellate court. It
is well settled that the writ court would not
reappreciate the evidence and substitute its own
conclusion of fact for that recorded by the
adjudicating body, be it a court or a tribunal. A
finding of fact, howsoever erroneous, recorded by
a court or a tribunal cannot be challenged in
proceedings for certiorari on the ground that the
relevant and material evidence adduced before the
court or the tribunal was insufficient or inadequate
to sustain the impugned finding.
It is also well settled that adequacy or
sufficiency of evidence led on a point and the
inference of fact to be drawn from the said finding
are within the exclusive jurisdiction of the tribunal
and these points cannot be agitated before the
writ court.
61. In the aforesaid context, it will be profitable
for us to refer to the decision of this Court in Indian
Overseas Bank v. Staff Canteen Workers’ Union. This
Court observed as under : (SCC pp. 259-60, para 17)
“17. … The findings of fact recorded by a fact-
finding authority duly constituted for the purpose
and which ordinarily should be considered to have
become final, cannot be disturbed for the mere
reason of having been based on materials or
evidence not sufficient or credible in the opinion of
the writ court to warrant those findings, at any
rate, as long as they are based upon some
material which are relevant for the purpose or
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even on the ground that there is yet another view
which can reasonably and possibly be taken.”
62. However, we may clarify that findings of fact
based on “no evidence” or purely on surmises and
conjectures or which are perverse points could be
challenged by way of a certiorari as such findings could
be regarded as an error of law.
63. Thus, from the various decisions referred to
above, we have no hesitation in reaching to the
conclusion that a writ of certiorari is a high prerogative
writ and should not be issued on mere asking. For the
issue of a writ of certiorari, the party concerned has to
make out a definite case for the same and is not a
matter of course. To put it pithily, certiorari shall issue
to correct errors of jurisdiction, that is to say, absence,
excess or failure to exercise and also when in the
exercise of undoubted jurisdiction, there has been
illegality. It shall also issue to correct an error in the
decision or determination itself, if it is an error manifest
on the face of the proceedings. By its exercise, only a
patent error can be corrected but not also a wrong
decision. It should be well remembered at the cost of
repetition that certiorari is not appellate but only
supervisory.
64. A writ of certiorari, being a high prerogative
writ, is issued by a superior court in respect of the
exercise of judicial or quasi-judicial functions by another
authority when the contention is that the exercising
authority had no jurisdiction or exceeded the
jurisdiction. It cannot be denied that the tribunals or the
authorities concerned in this batch of appeals had the
jurisdiction to deal with the matter. However, the
argument would be that the tribunals had acted
arbitrarily and illegally and that they had failed to give
proper findings on the facts and circumstances of the
case. We may only say that while adjudicating a writ
application for a writ of certiorari, the court is not sitting
as a court of appeal against the order of the tribunals to
test the legality thereof with a view to reach a different
conclusion. If there is any evidence, the court will not
examine whether the right conclusion is drawn from it
or not. It is a well-established principle of law that a writ
of certiorari will not lie where the order or decision of a
tribunal or authority is wrong in matter of facts or on
merits. (See : R. v. Nat Bell Liquors Ltd.)”
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[2025:RJ-JD:16195-DB] (16 of 27) [SAW-1040/2023]
12. Keeping in forefront the aforesaid settled principles, we shall
endeavor to answer the submission of learned Senior Counsel
appearing on behalf of the appellant that the learned Single Judge
has interfered with the findings of fact by assuming to itself the
role of appellate authority.
13. The facts which have been revealed from the orders and
proceedings and which are beyond dispute are that an allotment
order for a parcel of land for industrial purpose was issued in
favour of Babu Lal Nagori on 13.02.1987 followed by execution of
lease deed on 31.03.1987. Rule 7 of the Allotment Rules of 1959
reads as below:
“7. Setting up of industry.- (1) Industry other than
tourism unit shall be set up within a period of two years
from the date of allotment of land:
Provided that the allotting authority may, on the
application of allottee, extend the period of setting up of
industry upto two years. If allottee fails to use of land
within such extended period, the allotting authority may
on application of allottee refer the matter to the State
Government for extension of above period. The State
Government may extend the above period in appropriate
cases.
(2) If the land is not used within the stipulated period or
time extended as per provisions of sub- rule (1), the
land shall revert back to the State Government free from
all encumbrances.”
14. The aforesaid rule, amongst other things, requires that
industries other than tourism unit shall be setup within a period of
two years from the date of allotment of land. The proviso
appended thereto provides for extension of period for setting up of
industry upto two years. The consequences of non-use of land
within the stipulated period or time extended have also been
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[2025:RJ-JD:16195-DB] (17 of 27) [SAW-1040/2023]
provided in the manner that the land shall revert back to the State
Government free from all encumbrances.
15. Logical and fair interpretation of the aforesaid provision leads
to the conclusion that the person who has been granted lease for
setting up of industry other than tourism unit has to setup the
industrial unit within a period of two years from the date of
allotment of land. The land was allotted on 13.02.1987. Even
assuming that the date of execution of lease (31.03.1987) should
be taken as the date of commencement for the purpose of
application of law, the industry was required to be set up on or
before 31.03.1989.
16. The consequences which follow under the law that the land
shall revert back to the State Government free from all
encumbrances in case of violation of provisions contained in Sub-
Rule 1 of Rule 7 of the Allotment Rules of 1959, would not be
attracted unless there is specific material brought on record before
the competent authority on which reliance is placed and a definite
conclusion is arrived at by the competent authority that the
industrial unit was not setup within a period of two years.
17. The very foundation of initiation of proceedings and issuance
of Show Cause Notice to the appellant was premised on the spot
inspection report dated 28.06.2006. The Collector as well as the
Revenue Appellate Authority have relied upon this particular
documentary evidence to return a finding of fact that the
respondent therein failed to establish an industrial unit within a
period of two years. It is an admitted fact that Babu Lal Nagori
had transferred the land in favour of the appellant vide deed dated
08.11.1996. The spot inspection report which has been considered
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[2025:RJ-JD:16195-DB] (18 of 27) [SAW-1040/2023]
by the Board of Revenue as well as the Collector and the Revenue
Appellate Authority does not contain any stipulation that Babu Lal
Nagori failed to establish an industrial unit within a period of two
years as mandated under Rule 7 of the Allotment Rules of 1959.
The report, on the contrary, states that the unit stands closed
since last 10 to 12 years. Moreover, other part of the report is that
the unit has been sold and that there is a shed constructed as also
machines situated.
18. The contents of the report, as it is, do not lead to a
conclusion that no industrial unit was established. The report on
facts stated as it is, only shows that the unit was closed
somewhere around 1994-1996. Moreover, existence of machines
and shed as also construction of boundary wall only lead to an
inference that Babu Lal Nagori had established a unit which was
sold to the appellant. The Collector as well as Revenue Appellate
Authority have not referred to any report that Babu Lal Nagori
after grant of lease, failed to establish unit within a period of two
years.
19. Application of Rule 7 of the Allotment Rules of 1959 would
arise only when the original allottee after allotment of land has
failed to establish industrial unit. Rule 7 is not attracted in a case
where the original allottee having established an industrial unit
within the time stipulated, later on, sells the unit to a third party.
The object and purpose of Rule 7 was to ensure that the land
which has been sought and allotted for industrial use should be
used for that purpose within a reasonable time. The object seeks
to ensure that one may not obtain lease of land in the name of
setting up of industrial unit and thereafter fail to establish an
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[2025:RJ-JD:16195-DB] (19 of 27) [SAW-1040/2023]
industrial unit within reasonable time. Allotment of land for
industrial purpose is based on a public policy to encourage
industrial development. That purpose would be frustrated if the
industrial unit is not set up within a reasonable time. It was on
this statutory policy based on public consideration that Rule 7
provided consequences that if the unit is not established within
two years, the land shall automatically revert back to the State
Government. This statutory consequence would follow only on a
concurrent proof and definite finding that the industrial unit was
not established by Babu Lal Nagori. In the absence of there being
any such material on record, the Collector as well the Revenue
Appellate Authority acted in excess of jurisdiction and perversely
recorded finding that the land stood reverted to the State
Government by operation of provisions contained in Rule 7(2) of
the Allotment Rules of 1959.
20. It appears that the provision contained in Rule 7 was applied
to the fact situation of the present case that after having
purchased the land from Babu Lal Nagori, the appellant was found
not running any industrial unit but it was found closed. Even if this
factual aspect is taken as it is, in our considered view, Rule 7
would not be attracted. There may be other consequences that the
State authorities may proceed to cancel the lease on the ground
that the land is not being used for industrial purposes. But the
legal consequence which flow per force provision contained in Rule
7(2) of the Allotment Rules of 1959 would not be attracted.
21. In the present case, the factual aspect of the case applied to
the provisions of law lead to conclusion that lease would not
terminate by operation of provisions contained in Rule 7 of the
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[2025:RJ-JD:16195-DB] (20 of 27) [SAW-1040/2023]
Allotment Rules of 1959. This legal aspect based on admitted
factual backdrop was rightly appreciated by the Board of Revenue.
The finding recorded by the Board of Revenue did not suffer from
any perversity or apparent violation of law or principles of natural
justice, much less defect of jurisdiction. The finding of the Board
of Revenue was essentially based on a documentary evidence in
the form of spot inspection report dated 28.06.2006. Therefore, in
our view, it was outside the scope of judicial review under Article
226 of the Constitution of India. It is well settled, as has been
adumbrated in the decisions which we have cited hereinabove, the
Writ Court while exercising its jurisdiction under Article 226 of the
Constitution of India would not assume to itself the role of
appellate authority.
22. We are therefore of the view that the learned Single Judge
was not justified in interfering with the order of Board of Revenue
in exercise of Certiorari jurisdiction.
23. But then the other issue which has incidentally cropped up
before this Court is whether the transaction between the appellant
and Babu Lal Nagori was with the permission of the competent
authority as required under Rule 9 of the Allotment Rules of 1959.
Learned Senior Counsel appearing for the appellant would
vehemently submit that this issue was not one of the basis to
cancel the lease, therefore, at this stage it cannot be allowed to be
raised, we are of the view that this is a pure issue of law without
involving enquiry into any disputed questions of fact. Since it goes
to the root of the matter and an issue of legality of the transaction
is involved, despite this objection, we have considered this aspect.
It is not disputed that Babu Lal Nagori was the original allottee
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[2025:RJ-JD:16195-DB] (21 of 27) [SAW-1040/2023]
and later on, vide lease deed dated 08.11.1996, he transferred
the land/unit in favour of the appellant. Admittedly, the land was
allotted to Babu Lal Nagori under the provisions of Allotment Rules
of 1959 for the purpose of setting up industrial unit. It appears
that Babu Lal Nagori after having setup the industrial unit, later on
disposed off the same in favour of the appellant. This mandatorily
required permission of the authorities as mandated in Rule 9 of
the Allotment Rules of 1959 which for ready reference is extracted
hereinbelow:
“9. Lessee debarred from sale of land etc. – The
lessee shall have the limited ownership on the land
leased till the lease subsists and shall have the right of
assignment only for the purpose of taking a loan for the
development of the industry or for pledging as collateral
security for a loan taken by the lessee or some other
industry owned by the same management. The lessee
shall have no right to sell the land:
(i) Provided that the land can be pledged as
collateral security only in favour of industrial Financial
Corporation of India, Rajasthan Finance Corporation,
IDBI, ICICI, LIC, IRBI, HDFC, SIDBI, EXIM Bank, Co-
operative Banks and any Public Fincancial Institution as
defined in the Public Financial Institution Act or
Scheduled Banks or private lending agencies subject to
ensuring that the lessee has cleared all the outstanding
dues of the lessor and the lessee creates first charge in
favour of the State Government and second to the
financing body or bodies.
(ii) Provided further that once the land has been
utilized for the purpose for which it was allotted within
the period specified in rule 7, the lessee may, with the
permission of the Allotting Authority transfer his right or
interest in the whole land, so leased out, on the
following conditions:-
(a) In case of government land allotted under these
rules, he shall pay 50% of prevailing market
price of land after deducting allotment price
charged under rule 3A and the transferee shall
pay 50% of excess amount of yearly lease land(Downloaded on 03/04/2025 at 10:02:34 PM)
[2025:RJ-JD:16195-DB] (22 of 27) [SAW-1040/2023]mentioned in rule 5 and other conditions of lease
shall be remain unchanged.
(b) In case of converted Khatedari land allotted
under these rules for industrial purpose, the
transferee shall pay 50% excess amount of
yearly lease rent mentioned in rule 5 and other
conditions of lease shall be remain unchanged.
(iia) Provided also that if after grant of permission
the transferee has failed to execute the lease deed and
further transferred the allotted land without prior
permission of allotting authority, such transfer may be
regularized by the allotting authority on payment of
penalty of Rs. 3000/- for each transfer. The lease deed
may be executed in favour of such transferee for the
remaining period of lease may be executed in favour of
such transferee for the remaining period of lease.
The transferee shall pay 50% excess amount of the
yearly lease rent mentioned in Rule 5 on such transfer.
(iii) ijUrq ;g Hkh fd [kkrsnkjh Hkwfe dh n’kk esa] iV~Vsnkj vkoaVu
vf/kdkjh dh vuqKk ls] bl izdkj iV~Vkd`r lEiw.kZ Hkwfe esa vius
vf/kdkj ;k fgr dk vUrj.k] iV~Vs dh ‘krsZa vifjofrZr jgrs gq,] dj
ldsxkA vUrfjrh ,sls vUrj.k ij fu;e 5 esa mfYyf[kr okf”kZd iV~Vk
fdjk;s dh 50% vf/kd jde dk lank; djsxkA
(iiia) Provide also that if any industrial plot is
divided or sub-divided without obtaining prior permission
of the State Government, the lessee shall apply for
permission of division or sub-division to the allotting
authority along with a copy of the challan depositing an
amount of Rs. 3000/. The allotting authority, with prior
approval of the State Government, may regularize the
division or sub-division.
(iv) Provided also that in case an industrial plot is
proposed to be divided or sub-divided for any purpose,
whatsoever, prior permission of the State Government in
Revenue Department shall be obtained by the allotting
authority:
(v) Provided also that, in case of sick unit as per
RBI guidelines, the lessee with the prior permission of
the State Government, may transfer his right or interest
in the leased land sub-divided under the above proviso
on the following conditions:-
(a) That NOC from financial Institutions/Bank shall be
obtained, in case land is mortgaged.
(b) that the conditions of lease shall remain
unchanged.
(c) that the transfree shall pay additional 100 percent
excess amount of the proportionate yearly lease(Downloaded on 03/04/2025 at 10:02:34 PM)
[2025:RJ-JD:16195-DB] (23 of 27) [SAW-1040/2023]rent applicable from the date of transfer of right or
interest in leased land.
(d) that the transferee shall use the land for the
Industrial purpose only.
(e) that in case of government land allotted under
these rules, the transferee shall pay 50% of
prevailing market price of land after deducting
allotment price charged under rule 3A.
(vi) Provided also that no permission of transfer
under the above proviso, shall be allowed in case of a
Government land unless the unit is declared sick by
Board of Industrial and Financial Reconstruction (BIFR).
(vii) Provided also that in case of any doubt of any
kind the allotting authority shall refer the matter to the
State Government in the Revenue Department whose
decision shall be final.
(vii) Provided also that the developer of micro,
small and medium enterprises clusters, as per approved
plan, may transfer his right or interest in the whole land,
so leased out to entrepreneurs. The conditions of lease
remaining unchanged. The transferee shall pay 50%
excess amount of the yearly lease rent mentioned in
Rule 5 on such transfer.”
24. Clause (ii) of Rule 9 provides that once land has been utilized
for the purpose for which it was allotted within the period specified
in Rule 7, the lessee may, with the permission of the allotting
authority, transfer his right or interest in the whole land so leased
out on the conditions enumerated therein.
25. Therefore, it is a condition precedent for transfer that
permission of competent authority should be obtained. It being a
mandatory requirement of law, any transfer of land in violation of
provisions of law would be void and incapable of transferring any
legally enforceable right on the strength of the lease of transfer.
26. Learned Senior Counsel appearing for the appellant has
sought to persuade this Court on the submission that even if it is
admitted that Babu Lal Nagori, before effecting transfer in favour
of the appellant, had not sought permission of the competent
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[2025:RJ-JD:16195-DB] (24 of 27) [SAW-1040/2023]
authority, there are inbuilt provisions contained in the Allotment
Rules of 1959 which permit regularization on certain terms and
conditions.
27. Sub-Rule (ii-a) of Rule 9 of the Allotment Rules of 1959 deals
with a case where after grant of permission the transferee has
failed to execute the lease deed and further transferred the
allotted land without prior permission of the allotting authority.
This class of transfer may be regularized by the allotting authority
on fulfillment of certain conditions. However, this would not be
applicable to provide for regularization if there is no permission at
all. Rationally construed, this provision provides for regularization
because in any case, the authority has granted permission but
consequent upon such permission, the transferee fails to execute
lease deed and further transfers the land without prior permission.
In such a case, there is in fact, a permission to transfer the land
but because of certain subsequent defaults, the scheme of
regularization has been incorporated in the Rules. This provision
will not come to the aid of the appellant because it is not a case
where Babu Lal otherwise sought permission for transfer of land
but failed to execute the lease deed and then further transferred
the allotted land to the appellant.
28. Other provision which has been relied upon to claim
regularization is incorporated in Rule 13-A of the Allotment Rules
of 1959 which was incorporated vide notification dated
06.05.2002. The aforesaid provision is reproduced hereinbelow for
ready reference :
“13-A Regularisation of Land.- Any Government
agricultural land which is used for industrial purpose
without proper allotment upto dated 15-07-1994 may be(Downloaded on 03/04/2025 at 10:02:34 PM)
[2025:RJ-JD:16195-DB] (25 of 27) [SAW-1040/2023]regularised on the payment of prevalent highest market
price of land in the neighborhood and with an additional
penalty equal to five times of the prevailing market price
of land.
Provided also that in town or village that are not
municipalities and the population whereof does not
exceed eight thousand, such penalty shall not exceed the
prevailing market price of the land.”
The aforesaid provisions is in effect, incorporation of a
statutory policy with reference to a cut off date where it is found
that any government agricultural land has been found used for
industrial purpose without proper allotment. Fixation of cut off
date of 15.07.1994 cannot be ignored and has to be given full
effect to and meaning as unless it is warranted or barring
exceptional cases, addition or deletion of any word or expression
in a statute is not permissible, it being a cardinal principle of
interpretation of statutes. Fixation of cut off date to 15.07.1994 is
indicative of the object behind such provision. It appears that
certain government agricultural lands were being used for
industrial purposes without proper allotment. The rule-making
authority, in its wisdom, decided to regularize all such uses up to
15.071994. This clearly is a provision for regularization as a one
time measure and is not a perennial source of regularization of all
industrial activities on government agricultural lands after
15.07.1994. In its very essence, the regularization of those lands
which have been used for industrial purposes without allotment
could be regularized with cut off date of 15.07.1994. Present is
not a case where Babu Lal Nagori was using a government
agricultural land for industrial purpose without proper allotment.
In fact, he was allotted that land on 13.02.1987 and which
remained in his hand until he sold it on 08.11.1996 in favour of
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[2025:RJ-JD:16195-DB] (26 of 27) [SAW-1040/2023]
the petitioner. Therefore, as on 15.07.1994, the land was in the
hands of Babu Lal Nagori. The cut off date means that Rule 13-A
of the Allotment Rule of 1959 stood exhausted once regularization
of a class of illegal occupants had been undertaken. It does not
apply to those transactions which have been made after
15.07.994 much less the transaction of selling the land by Babu
Lal Nagori.
29. Therefore, in view of the above consideration, the
submission of learned Senior Counsel appearing for the appellant
that it is a case of regularization under the Allotment Rules of
1959 cannot be accepted and is rejected.
30. We have given our anxious consideration to the last
submission of learned Senior Counsel for the appellant which
perhaps we would not have granted but for the fact that the
appellant had entered into a transaction way back in the year
1997 on payment of consideration and claims to be in possession
of land since 1997 till date. However, as the transaction is in
violation of law and there is no specific provision contained in the
Rules permitting regularization of such cases, we find ourselves
unable to grant any relief in favour of the appellant. Yet, taking
into consideration the long standing possession, we would leave
the appellant to approach the competent authority for grant of
lease of the land on such terms and conditions as may be
considered appropriate by the authority. It will be open for the
authority to consider such application and take decision thereon as
may be considered appropriate by it, of course, keeping in view
that appellant has remained in possession, without enjoying its
fruit.
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[2025:RJ-JD:16195-DB] (27 of 27) [SAW-1040/2023]
31. In the result, even though we find that the order passed by
the learned Single Judge reversing the order of the Board of
Revenue was not proper, in view of other considerations which we
have bestowed hereinabove, we are unable to grant any relief to
the appellant and the appeal is disposed off. The order dated
10.05.2023 passed by the learned Single Judge is, therefore,
modified in the manner and to the extent stated hereinabove.
32. All pending applications also stand disposed off.
(MUNNURI LAXMAN),J (MANINDRA MOHAN SHRIVASTAVA),CJ
19-BhumikaP/Mohan/-
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