Ramesh Chandra Vs Shyam Ji Misra

Sudhir Agarwal, J.@mdashHeard Sri Yogesh Agarwal, learned Counsel for petitioner and perused the record. The facts giving rise to the present dispute, in brief, to appreciate the contentions may be summarized as under.

2. Sri Triveni Madhav Prayagwal Shiksha Sabha, Prayag is a registered society, run for the benefit and uplift of Tirth Purohit of Allahabad, commonly known in the public as "Prayagwal, Allahabad". It had purchased certain property from Musammat Niyazunnisha Bibi, long back, which was sought to be sold by Society so that its proceeds may be used for welfare of Society. A public notice was issued on 26.4.1989 inviting potential purchasers to make their offers. An application was also filed before District Judge, Allahabad seeking "prior approval". The application was registered as Misc. Case No. 82 of 1990.

3. Petitioners filed their written statement before District Judge, Allahabad stating that they have entered into an agreement with the Society on 23.4.1990 for sale of land with construction throughout and all the three agreements have been got registered with Sub-Registrar, Allahabad on 13.6.1990. The sale consideration offered by petitioners is the highest and therefore adequate.

4. Some other persons moved application contesting the case making allegations against society and its members.

5. The District Judge allowed impleadment of some of the persons, vide order dated 4.7.1992, in respect whereto a Recall Application was filed by Society as well as proposed vendees including petitioners. The said prayer for recall was rejected by District Judge by order dated 18.7.1992.

6. When the matter was pending for prior approval before the District Judge, petitioners proceeded to execute sale-deed on 18.6.2001/19.6.2001. Consequently, the District Judge passed order on 20.4.2004 rejecting application seeking its prior approval. This order was challenged in Writ Petition No. 19299 of 2004 which was allowed vide judgment dated 4.4.2007. The matter was remanded to District Judge holding that he should have decided the matter of permission on merits.

7. Thereafter, District Judge again considered the matter and has passed impugned judgment dated 25.10.2008 holding that the reason given for sale of property was inadequate income which is no ground to permit such transfer of property by Society. Moreover, there is neither any reason nor occasion to seek ex post facto approval to a sale transaction which has already accomplished finally, since, the requirement is "prior approval" and not "subsequent approval".

8. Sri Yogesh Agarwal, learned Counsel for petitioners, submitted that the approval sought from District Judge is an administrative function. Therefore, even if the sale has already accomplished, the approval, if granted, would relate back, and, therefore there was nothing illegal. He further contended that inadequate income is also a just ground for transfer of property and the view taken by learned District Judge is patently erroneous. In order to contend that approval sought from District Judge is only administrative and not judicial or quasi judicial, he contended that the District Judge here acts as a persona designate and not as Court and placed reliance on judgment of this Court in Rajnath Misra Vs. The Xth Additional District Judge and Others, .

9. He lastly contended that the only scope for examination by District Judge was whether transfer was sought in the interest of Society or not, and nothing else. The mere fact that the Society had ceased to be the owner of property in dispute is of no importance or consequence.

10. In my view, the submission is thoroughly misconceived. The application itself rendered infructuous on execution of sale-deed on 18.6.2001/19.6.2001 in respect to property in dispute for which the application under section 5-A was filed before District Judge. What is contemplated in section 5-A is "previous approval" of the Court and not "post facto approval". The Statute declares a transfer of property unlawful without "previous approval" of Court. Some pari materia provisions requiring "prior approval" have been considered by Courts and its effect has also been explained.

11. In reference to "prior approval" required under Regulation 101, Chapter-III of the Regulations framed under the U.P. Intermediate Education Act, 1921, in Jagdish Singh etc. v. State of U.P. and others 2006 (3) ESC 2055 (All) (DB) : 2006 (64) ALR 17 (Sum) it has held "without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. Requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory."

12. Rule 11 of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 provides that no service can be terminated without "prior permission" from the District Basic Education Officer. A Division Bench of this Court in Ms. Shailja Shah v. Executive Committee, Bharat Varshiya National Association and another 1995 (25) ALR 88 held that expression "prior approval" and "approval" connotes different situation. Where a statute uses the term "prior approval" anything done without prior approval is nullity. Where a statute employs expression "approval", however, in such cases subsequent ratification can make the act valid.

13. Section 59(1)(a) of U.P. Urban Planning and Development Act, 1973 provides for "prior approval". The Apex Court in U.P. Avas Evam Vikas Parishad and another Vs. Friends Co-op. Housing Society Ltd. and another, held that "prior approval" and "approval" are two different connotations and if the statute does not mention "prior approval" what is material would be only "approval". The earlier judgment in Life Insurance Corporation of India Vs. Escorts Ltd. and Others, was also referred where it was held that the word "prior'' and "previous'' may be implied if the contextual situation or circumstances justify such reading and the Act which requires only approval, the action holds good until it is disapproved.

14. Section 9 of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 provides for "prior approval". In Director of Education and others Vs. Gajadhar Prasad Verma, , it was held that the absence of "prior approval" would not have an effect of creation of post and therefore the State is not obliged to reimburse salary to the management without "prior approval" of the Director or the competent authority under the Act. In Shiv Gorakh Nath Charitable Society, Kanpur and others v. Cantonment Board, Kanpur and others 1997 (3) ALR 616, a Division Bench while considering the effect of "prior permission" held where construction is made without "prior permission" a "post permission" cannot be granted and the construction, so made, has to be dismantled. Same view has been taken by another Division Bench in Vivek Srivastava Vs. Union of India (UOI) and Others, .

15. In the present case, mere fact that there was an agreement for sale between the Society and prospective vendees makes no difference inasmuch the restriction is on a transfer of property by Society. Section 5-A is worded with non obstante clause having overriding effect over any law, contract or other Statute to the contrary. Therefore, the provision is mandatory. Any infraction thereof would make a transfer, illegal and void. In the present case, the transfer of property by sale was already given effect during the pendency of application though no previous approval of the Court has been obtained on the date of such transfer.

16. Court has also looked into the question, whether transfer was in the interest of Society or not. It has found that transfer was permissible if it was necessary to meet requisite unavoidable expenses and the Society has no means to meet the same, but that was not so in the case in hand. This is a finding of fact also and warrants no interference unless shown perverse or contrary to record or otherwise illegal.

17. The issue, whether the power is judicial or quasi judicial or administrative, in my view, has no consequence for validity of transfer as also the validity of order impugned in this writ petition.

18. It is then contended that section 5-A of Act, 1860, which was inserted by U.P. Act No. 26 of 1979 with effect from 16.7.1979 has now been repealed.

19. Repeal of Statute is prospective. It would have no impact on the transactions already taken place in utter violation of statutory prohibition. The present case would be governed by the said provision since at that time section 5-A was in operation. Scope of section 5-A has been discussed in detail by this Court in Rajnath Mishra v. Xth Additional District Judge, Varanasi 1991 AHLJ 486 and in para. 8 of the judgment the Court has said:

"Section 5A has been enacted for putting a check on the society from transferring its immovable properties without the previous approval of the Court so that the Court may also look into it and give permission only if it is satisfied that the transfer of any immovable property is being made in the interest of the society and not in the manner which is detrimental to the interest of the society. This is the entire scope of said section. The only objection which is contemplated within the purview of the aforesaid section, is that the governing body of the society is proposing to transfer its immovable property, which is contrary to the interest of the institution. It is not within the scope of the said section to examine as to whether the society has ceased to be the owner of its immovable property. If there is any such case, the forum is not under section 5 of the Societies Registration Act. The concerned person may have his remedy in some other provisions of the law. All the submission and objections raised by the Counsel for the petitioner in this Court are out side the scope of section 5A of the Societies Registration Act as applicable to the State of Uttar Pradesh. In this view of the matter I have rejected all the contentions made by the Counsel for petitioner."

20. In my view, the view taken by District Judge in rejecting application in the case in hand is neither erroneous nor has been shown to be illegal so as to justify interference in writ jurisdiction under Article 226/ 227 of the Constitution since the scope of judicial review in such matter is very limited and narrow.

21. In supervisory jurisdiction of this Court over Subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the Court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.

22. This power involves a duty on the High Court to keep the Inferior Courts and Tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.

23. In D.N. Banerji Vs. P.R. Mukherjee and Others, the Court said:

"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere."

24. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and Another Vs. Amarnath and Another, and made following observations at p. 571:

"This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, , to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."

25. In Mohd. Yunus Vs. Mohd. Mustaqim and Others, the Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.

26. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag etc. Vs. Mahendra Nath Ghughu, : Rukumanand Bairoliya Vs. The State of Bihar, ; Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, ; Laxmikant Revchand Bhojwani and Another Vs. Pratapsing Mohansingh Pardeshi Deceased through his Heirs and Legal Representatives, ; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel and others, ; Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, and Virendra Kashinath Ravat and Another Vs. Vinayak N. Joshi and Others, ).

27. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Mrs. Rena Drego Vs. Lalchand Soni, Etc., ; Chandra Bhushan (Deceased) by Lrs. Vs. Beni Prasad and Others, ; Smt. Savitrabai Bhausaheb Kevate and Others Vs. Raichand Dhanraj Lunja, and M/s. Savita Chemicals (Pvt.) Ltd. Vs. Dyes and Chemical Workers Union and Another, ).

28. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India and Others Vs. Himmat Singh Chahar, ).

29. In Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, , the Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/Courts below as the same is not permissible in proceedings under Articles 226/ 227 of the Constitution.

30. In Mohan Amba Prasad Agnihotri and Others Vs. Bhaskar Balwant Aher (D) Through I.Rs., , the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.

31. In Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers'' Union and Another, , the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court cannot interfere.

32. In Union of India and Others Vs. Rajendra Prabha and Another, , the Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.

33. Similar view has been reiterated in State of Maharashtra Vs. Milind and Others, ; M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., and Ouseph Mathai and Others Vs. M. Abdul Khadir, .

34. In Surya Dev Rai Vs. Ram Chander Rai and Others, , it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by Subordinate Courts. It also held that when Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.

35. In Jasbir Singh Vs. State of Punjab, , the Court said:

"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority. The power of superintendence exercised over the Subordinate Courts and Tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the Subordinate Courts in the discharge of their judicial functions is of paramount importance, just as the independence of the Superior Courts in the discharge of their judicial functions."

36. In Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the Tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and Others Vs. K.D. Ganapathi and Another, and Bandaru Satyanarayana Vs. Imandi Anasuya and Others, .

37. In Abdul Razak (D) through L.Rs. and Others Vs. Mangesh Rajaram Wagle and Others, , Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.

38. In T.G N. Kumar Vs. State of Kerala and Others, , the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority.

39. In The Commandant, 22 Battalion, CRPF Srinagar, C/o 56/APO and Others Vs. Surinder Kumar, , Apex Court referring to its earlier decision in Union of India and Others Vs. R.K. Sharma, observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.

40. In view thereof, I find no justification warranting interference with the orders impugned in this writ petition. Dismissed.