CHAPTER IV

ADMINISTRATIVE ADJUDICATION AND JUDICIARY

In relation to the adjudicating tribunals the Courts sometimes

exercise the power of Judicial review. The word "review" is

formed by adding th^ prefix "re" to the word ' view". It is,

' the act qf looking over something again with a view to correc-

tion oft. improvement". Th£ expression "Judicial review",

therefore, primarily means reconsideration or re-examination

by a higher Judicial authority of the sentence or decree passed

by a lower court. It is thus analogous to appeal.1

The concept of judicial review is a concept taken from the

Constitution of the United States of America. It follows from

the fact that the Constitution is supreme: the Government has

limited powers, viz only those which it has been given by the

Constitution. Even the legislature derives its authority from

the Constitution and is subordinate to it. The doctrine of judicial

review was authoritatively propounded by Chief Justice Marshall

in that following words:

ft is, emphatically the province and duty of the

judicial department, to say what the law is ...
If a ffcw be in opposition to the Constitution;
if both, the law and the Constitution

1 Article 13 providesr"(l) All laws in force in the

territory of India immediately before the commencement
of this Constitution in so far as they are inconsistent with
the provisions of this Part, shall, to the extent of such
inconsistency, be void.
(2) The State shall not make any law which takes away
or abridges the rights conferred by this Part and any
law made in contravention of this clause shall, to the
extent of the contravention, be void".
Articles 254 provides that "a State law will be void to the
extent of its repugnaneywith a law made by Parliament."
The question may arise whether Parliament is competent
to make law: SUCh a dllRstinn ran nnlv ho «»w.
 150

apply to a particular case, so thfet the Court must

either decide that case, conformable to the law,
disregarding the Constitution; or conformable to the Con.stltu.ti.on.
court, disregarding the law; the court must determine
which of these conflicting rules governs the case.

The basis of judicial review in India lies in Articles 13

and 254. It also lies in the justifiability of an Act on the

grounds of a constitutional provision.24 53 6Articles 13 and 254

appear to have been formulated and incorporated in the

Constitution by way of abundant caution. 'Even in their absence'*,

Chief Justice Kania observed in Gopalan v. State of Madras,**

"if any of the fundamental rights was infringed by any legislative

enactment, the Court has power to declare the enactment, to

the extent it transgresses the limits, invalid."

Similarly, a law cannot take away or curtail the residuary

jurisdiction of the Supreme Court or of the High Courts under

Articles 136 and 228 respectively. In a number of cases the

courts have held that this jurisdiction cannot be limited or ousted

by any legislation, and a legislation is void and inoperative to

the extent it takes away or curtails the power of the courts

g
under these Articles.

2 Basu, Commentaries on the Constitution of India

(Calcutta, 1967), Vol.l edn.4, Pg. 135.

3 Marbury v. Madison (1893) 1 Cr.137

4 Basu, n.2 P.138

5 1959 S.C.R. 88(196)
6 Kochunni v. State of Madras, 1959 S.C.J. 858
 151

The importance of judicial review, is recognized by some

but questioned by other critics. It is held that the courts

are the only guarantee of the liberty of the subjects against

departmental aggression.

There are some scholars who think that administrative

law can serve its purpose better only by being independent

of the courts of law. ? This view h~ift ---- r been rejected

O' '

by the Committee on Ministers' Powers. In some cases

the courts also have turned it down. confers

widest discretionary powers the doctrine of ultra vires loses

much of its effectiveness as a means of controlling the executive.

Residuary Jurisdiction of the Supreme Court

Articles 32 and 136 give power to the Supreme Court

to issue orders or writs to a person or authority for the

enforcement of fundamental rights or for any other purpose.

Articles 136 says:

(1) Notwithstanding anything in this chapter the

Supreme Court may, in its discretion, grant
special leave to appeal from any judgement,
decree, determination, sentence or order in any
cause or matter passed or made by any court
of tribunal in the territory of India.

(2) Nothing in Clause (1) shall apply to any

judgement, determination, sentence, or order
passed or made by a court or tribunal
constituted by or made under any law relating
to the Armed Forces.

7 S.A. da Smith,"The Limits of Judicial Review", Modern Law

Reviews (London) July 1948, PP. 396 and 323.
8 See Report of the Committee on Ministers’ Powers,
Cmd. 4060 of 1932.
 152

The Supreme Court has examined its residuary jurisdiction

in several cases. The first case in which it did so was Gopalan

v* State of Madras.^ The court examined the scope of Section 14

of the Pre ventive Detention Act of 1950. The section provided:

No Court shall allow any statement to be made or

any evidence to be given before it of the substance
of communication made (under the Act) of the grounds
on which a detention order has been made against
any person or of any representation Jnade by him
against such order} and* notwithsiliUPftg anything con­
tained in any other law, no Court shall be entitled
to require any public officer to produce,, before it
or to disclose the substance of any board or
that part of the report of an advisoryoolit.rd which is
confidential.

The Supreme Court unanimously held that such a prohibition of

the disclosure of the grounds of detention was directly in

conflict with Clause (5) of Article 22.

Section 105 of the Representation of People Act, 1951 gave

finality to the orders of an election tribunal under the Act.

Justice S. R. Das made an obiter dictum in Rajkrishna Bose

v. Binod rCaungo and others, observing that "it is sufficient

to say that the powers conferred on us (viz the Supreire Court)

by Article 136 of the Constitution and on the High Courts under

Article 226 cannot be taken away or whittled down by the Legislature.

The same Section again came up before the Court for a ruling.

9 A.I.R. 1950 S.C.27

10 1954 S.C.R. 913 (918)
11 Durga Shankar Mehta v. Thakur Reghuraj Singh 1955(1)
S.C.R. 267
 153

This time the question for determination was posed rather widely.

The respondent based his plea on Article 329(b) and Sections 80

and 105 of the Representation of People Act, 1951. Article 329(b)

prohibits any challenge to an election except through an election

petition to such authority and in such a manner as may be provided

for by or under any law by the appropriate legislature. It was

under this Article that Parliament had authorized Section 105 of

the Representation of People Act, which ^provided for the setting

up of election tribunals with authority to paS$ final and conclusive

orders under the Act. The Supreme Court found untenable all

the arguments which on the basis of these provisions, sought to

oust its review power. It emphatically asserted that this special

jurisdiction conferred by Article 136

............ cannot be excluded by ay Parliamentary legislation.

The non-obstante clause with which Article 329 of the
Constitution begins---- debars us (the Supreme Court) as it
debars any other court in the land to entertain a suit
or proceeding calling in question any election to the
Parliament or the State Legislature.

The result of this provision is to deny initiation of proceedings

in any court except the tribunal specially constituted for this

purpose. But once a tribunal has given its judgement, the

Court assumes jurisdiction under Article 136. This power, being

special or residuary, is exercisable outside the purview of ordinary

law in cases where the needs of justice demand interference by

the Supreme Court.

12 Ibid. 271-2
 154
Article 136 is in the nature of over-riding power. No

technical hurdles as to the finality of the findings of the Executive

or otherwise can stand in the way of the exercise of this power

in cases of injustice and arbitrariness by a judicial authority. °

The reason for this is that the legality of an act or its conclu­

siveness in something which exists outside and apart from the

decision of an inferior tribunal.This special jurisdiction has

been asserted by the Supreme Court consistently in recent cases

also. Since the power is extraordinary, it is exercised sparingly.

Two conditions have to be satisfied before an appeal is entertained

by the Supreme Court. These conditions are (a) that the order

impugned should be an order of a judicial or quasi-judicial

character not just an administrative or executive order, and

(b) that it should have been passed either by a court or by a

tribunal.

In Kirloskar Electric Co. v. their Workmen the Supreme

Court stated how and where it would be obliged to exercise its

jurisdiction.*-^ it pointed out that it would exercise its

14 In several cases the Supreme Court has held that the Juris­
diction of the High Courts under Article 226 is similar to
that of the Supreme Court under Article 136. It remains
in the fullest extent despite such provisions as contained
in Section 105 of the Representation of the People Act, 1951.
See for example, Sangram Singh v. Election Tribunal, Kota
1955 (2) S.C.R. 1; H.V. Xamath v. Syed Ahmed Isaque 1955(1)
S.C.R. 1104, in Re Kerala Education Bill, 1957,1959 S.C.R.995.
The nature of Articles 226 and 226 is also discussed infra.
15 A.I. R. 1973 S.C. 2119. See also Hindustan Antibiotics v.
The Workmen , A.I. R. 1967 S.C. 1948; and Bengal Chemical
Pharmaceutical Works Ltd, v. Their Workmen.A.I. R. 1959
S.C. 633
 155

discretionary jurisdiction only in cases where awards were made

in violation of the principles of natural justice or where there

was an important principle of industrial law requiring elucidation

and final decision by the Supreme Court or where there were

such other exceptional or special circumstances meriting

the consideration of the Supreme Court. It held that the case

under examination did not fall under any of the clauses mentioned

and so refused to interfere. In Oil and Natural Gas Commission

v. Workmen, it interfered with the decision of the tribunal

on being satisfied that the tribunal had made contradictory

observations about the practice obtaining in certain projects

undertaken by the Commission.16 it found that the decision of

tribunal was tainted with serious infirmities: the tribunal had

misread the statement of witnesses and had wrongly interfered

with the Commission's decision in fixing the hours of work which

was within its decision and was not open to any valid objection.

The Supreme Court considered these factors enough for a

reappraisal of the evidence with a view to coming to its own

conclusions.

In The Divisional Forest Officer, South Kheri v. Ram Sanehi

gM,, the impugned order was passed by a public authority

modifying the order or proceeding of a subordinate forest authority.1^

.
...............—............... ................ . ■ « 1' ................................... ..... .... ........................................................................... .......... ........ ... ..... -.............. .......

i
16 A.I.R. 1973 3.C 968
17 A.I.R. 1973 S.C. 205 (206)
 153

The second order deprived the respondent of a valuable right.

The Supreme Court, therefore, held: "V-e are unable to hold

that merely because the source of the right which the respondent

claims was initially in a contract, for obtaining relief against any

arbitrary and unlawful action on the part of a public authority

he must resort to a suit and not to a petition by way of a writ3?

"It further held that the petition under Article 136 in such a case

was maint ainable. * ®

In Messrs Hindustan Hosiery Industries v. F.H. Lai the

Supreme Court recognized the special circumstances under which an in­

dustrial tribunal, has to give its award. Thus a free and liberal

exercise of power under Article 136 may materially affect the

fundamental basis of such decisions, namely quick resolution of

disputes to achieve industrial peace. The Court reiterated

that the jurisdiction under Article 136 would be exercised only

in those cases where the principles of natural justice had been

disregarded or where there was grave injustice to parties.

The Supreme Court, thus, does not allow an appeal from

the decision of a quasi-judicial tribunal in the exercise of its

20
extraordinary power under Article 136 in the following situation:

18 See also K.N. Guruswami v. State of Mysore, A.I. E. 1954

S.C. 592.
19 A.I.R. 1947 S.C. 526

20 Basu, a. 2, p.185.
 (i) Where the determination of the tribunal has not
been affected materially by an alleged wrong
interpretation of any word.

(ii) Where the tribunal has come to an alleged wrong

decision having the jurisdiction to come to that
decision;

(iii) That the award of the tribunal is based on no

evidence when this ground was not urged in
the application for special leave. At any rate
when the evidence that was shut out relates
to an isolated point which in the opinion of the
Tribunal had no bearing on the issue before
them, there is no sufficient ground for inter­
ference' by the Supreme Court;

(v) That the award has been signed by only two

members of the Tribunal though it originally
consisted of three persons and the entire
hearing had taken place before the three
persons, when the Statute provided that it
was not obligatory upon the Government to
fill the vacancy when one of the members
•ceases to be available’ at any time during
the proceedings.

(v) Where in a proceeding under the J3ar Councils

Act, the High Court agreed with the Bar
Council that the appellant was guilty of
professional misconduct, the Supreme Court
would not re-examine on merits this
concurrent finding of fact.
(vi) Where the matter has become stale;

(vii) Where the appellant has not appealed from a

decision of the High Court but from that of the
Tribunal, and the effect of the Supreme Court
entertaining the appeal from the Tribunal
would be to by-pass a decision of the High
Court which is final and is binding on the
parties under the law.

(viii) In general, under Article 136, the Court will

not sit as a regular court of appeal and will
not review the evidence unless it is shown
that exceptional circumstances exist, or that
substantial injustice has been done, or that a
case presents features of sufficient gravity
to warrnt a review of the decision appealed
from.
 158

On the other hand, the Supreme Court has granted special

leave to appeal from decisions of tribunals, on the following

grounds:

(i) Where the decision of the Tribunal was

without jurisdiction, or in excess of its jurisdic­
tion, e.g. (a) where an Election Tribunal allowed
a material amendment be^yond the time limited
in S.81 of the Representation of the People Act,
1951, for presenting an election petition, (b)
Where the Railway Rates Tribunal entered into
the reasonableness of terminal charges levied
according to the provisions of the Railways Act.
(c) Where an award was passed beyond the time
originally fixed by the Government and the
ex-post facto extension of time by Government
was ultra vires.

(ii) Where the Tribunal refused to exercise its

jurisdiction, e.g. by not performing its
duty under the law.

(iii) "Where the Tribunal misdirected itself upon a

material question and proceeded upon a speculative
view of things.

(xiv) Where a Tribunal acted in violation of the principles

of natural justice: (a) Where an Income Tax
Tribunal, in making an assessment acted not on
material, but on pure guess and suspicion, did not
disclose to the assessee what information had been
supplied to it by the Department did not give to
the assessee any opportunity to rebut the material
furnished to the Tribunal by the Department and
declined to take all the material that the assessee
wanted to produce in support of his case, (b) Where
a Sales Tax Officer, disbelieving the return filed
by the assessee, made an assessment on any
figures of gross turnover without giving any basis
to justify th3 adoption of that figure.
(v) Where the order of the Tribunal was vitiated by
an apparent error of law or the legal inference
drawn from proved facts was wrong. 21

21 Ibid, p. 186
 Z3S

As a rule the Supreme Court does not, under Article 136,

interfere with a finding of fact made by a tribunal. In short,

under Article 136, the Supreme Court does not sit as a court

of appeal on facts, or interfere on the ground of error committed

by the tribunal in the appreciation of evidence.

On the other hand, the Court does not interfere with a

finding of fact arrived at by a tribunal when it is based on

an error of law:

(a) Where an 31ection Tribunal found that a

business was a joint family business,
acting on the presumption that a new
business started by the father is a joint
family business (while there was no such
presumption in law).

(b) Where the finding is arbitrary or is

arrived at in violation of the principles
of natural justice.

(c) Where the tribunal has spoken in two voices

and given inconsistent and conflicting findings.
(d) Where the finding is not based on any legal
evidence and is wholly inconsistent with the
material on the record, or is based on
conjectures, or ignores material evidence.
(e) Where the finding of fact is based on
consideration of material which is irrelevant
to the inquiry or partly on relevant and partly
on irrelevant material and it is impossible
to say to what extent the mind of the Court
was affected by the irrelevant material.

(f) They are based partly upon admissible and

partly upon inadmissible evidence.

(g) They are based upon a view of the facts which

cannot be reasonably entertained or, in
other words, the conclusions are such that
no tribunal of reasonable and unbiased men
could have reached.
 160

(h) Where the Tribunal has not directed its mind

to the real question to be decided under the
relevant law and has made its order on the
basis of an irrelevant finding, which has re­
sulted in manifest injustice. 2
Residuary Jurisdiction of the High Court

Article 226 confers on the High Courts jurisdiction

comparable to that conferred by Article 136. A High Court

has power to issue direction, orders or writs or any of them

to any person or authority for enforcement "of any of the

fundamental rights or for any other purpose." Article 227

vests in a High Court the power ;of superintendence over

courts other than the tribunals under a law relating to the

Armed Forces:

(1) Every High Court shall have superintendence

over all courts and tribunals throughout the
territories in relation to which it exercises
jurisdiction.

(2) Without prejudice to the generality of the

foregoing provisions the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and
prescribe forms for,, regulating
the practice and proceedings of
such courts; and
(c) prescribe forms in which books,
entries, and accounts shall be
kept by the officers of any such
courts.

22 Ibid, p.187
 161

The Supreme Court has reviewed the scope of the power

under Article 226. An arbitrator who has power to give a

decision under Section 10A of the Industrial Disputes Act,1948

which may bind even those who are not parties to the reference

or agreement, derives authority from the statute:

It is legitimate to regard such an arbitrator as part

of the methodology of the sovereign's dispensation
of justice, thus falling within the rainbow of statutory
tribunals amenable to judicial review. An award-
under Section 12A is not only not invulnerable but
more sensitively susceptible to the writ lancet being
a quasi-statutory body's decision. Admittedly, such
an award can be upset if an apparent error of law
stains its face. The distinction, in this area,
between a private award and one under Section 10A
is fine, but real.22

When a tribunal exercises jurisdiction illegally and the

Act provides no specific remedy against it, the High Court

?4
can grant relief through a writ.

The jurisdiction of the High Court is derived directly

from the Constitution. Hence no statute can curtail it

or ban it. To the extent a statute seeks to circumscribe

it the statute itself is null and void. Hence the jurisdiction

given to the High Courts under Article 226 is not affected

by the finality given by a statute to the decision of a statutory

body.25

23 Rohtas Industries Ltd, v. Hohtas Industries Staff . Union.

A.I.R. 1976 S.C. 425; See Also A.I.R/ 1963 S.C.874.
24 Cbinteda Kasivishwanadhan v. Sub-Collector, Berhampur
26 C.L.T. 552.
25 Sadanand Panda v. The State of Orissa, 23 C.L.T. 733;
Messrs. Orient Paper Mills Ltd, v. The State of Orissa,
23 C.L.T. 221; Swaran Singh, Hirakud v. The State of
Orissa, 26 C.L.T. 65; Gobind Ch. Panda v. Darsan Ch,
Bout, A.I.R. 1970 Orissa 15? and Babur am v. Zilla Parishad
A.I.R. 1969 S.C.556
 152

A finality clause does not exclude those cases where the

provisions of the Act concerned have not been complied with .

or where the statutory tribunal has not acted in conformity

with the fundamental principles of judicial procedure.

The law on certiorari is fairly well developed. The High

Court does not interfere with the decision of a tribunal made

in exercise of its certiorari jurisdiction. The writ jurisdic­

tion extends only to cases where orders are passed by inferior

courts or tribunals in excess of their jurisdiction, or where

inferior courts refuse to exercise the jurisdiction vested in them,

or where they act illegally or improperly in the exercise of

their jurisdiction causing grave miscarriage of justice. The

certiorari jurisdiction is exercised for correcting errors of

jurisdiction by inferior courts or tribunals. The High Court

issues the writ in exercise of its supervisory jurisdiction, which

is different from its appellate jurisdiction. The court exercise®

special jurisdiction under Article 226 is not entitled to act

as an appellate Court. The Supreme Court has explained it thus:

26 Mirchumal v. Union of India A. 1.3.. 1974 Gujarat 174;

Dhulbhafr v. State of Madhya Pradesh, A.I. R. 1969 S.C.78
and, Srinivas v. State of Andhra Pradesh A.I. E. 1871 S.C.71
 163
Tkis limitation necessarily means that findings of
facts reached by the inferior court or tribunal as
a result of the appreciation of evidence, cannot be
reopened or questioned in a writ proceeding. An
error of law which is apparent on the face of the
record can be corrected by a writ; but not an O ^7
error of fact however grave it may appear to be.

The Supreme Court accepted this position in Swaran Singh v.

State of Punjab,but observed:

In regard to a finding of fact recorded by an inferior

tribunal, a writ of certiorari can be issued only if
. in recording such a finding the tribunal has acted on
evidence which is legally inadmissible, or has refused
to admit admissible evidence, or if* the finding is not
supported by an evidence at all, because in such cases
the error amounts to an error of law.^8

In an earlier decision also the Supreme Court had held the

same opinion. ^

A mere wrong decision cannot be corrected by a writ

of certiorari as that would be using it as the cloak
of an appeal in disguise but a manifest error apparent
on the face of the proceedings based on a clear ignorance
or disregard of the provisions of law or absence of or
excess of jurisdiction, when, shown can be so corrected.
Where the tribunal having jurisdiction to decide a question
comes to a finding of fact, such a finding is not open
to question under Article 226 unless it could be shown to
be wholly unwarranted by the evidence. Where the
Tribunal has disabled itself from reaching a fair decision
by some considerations extraneous to the evidence and the
merits of the case or where its conclusion on the very face
of iti5; is so wholly arbitrary and capricious that no

27 Syed Yakoob v. Kadhakrishan, A.I. E. 1964 S.C. 477.

28 A.I.R. 1976 S.C. 232
29 Parry and Co. v. Judge of the Second Industrial Tribunal
Calcutta, A.I.R. 1970, S.C. 1334; Also Paiii Narayan Rao
v. State of Orissa, A.I.R. 1973 S.C.54.
 164

reasonable person could ever have arrived at that conclusion

interference under Article 226 would be justified.

The High Court does not interfere normally with the findings

of fact. It starts by looking at the facts found by the tribunal and

answers the questions of law on that footing. ^ The Supreme

Court also acts likewise: it proceeds with a presumption in favour

of the records of the tribunal: " Normally we have to proceed on

the basis that the records made by the court or tribunal regarding

what happened before it represent the correct facts, unless there

is any strong circumstance established which would indicste to the

contrary. 3*

Thus, in The Collector of Customs v. Pednekar Co. (Pvt.)

Ltd, the Supreme Court upheld interference by the High Court

because the adjudicator had committed "an error of law apparent

32
on the face of the order of confiscation." The Orissa High

Court, in Giridhari Mohapatra v. Raghunath Jew refused to review

the correctness and propriety of the factual aspects of the order

"because it does not do so as an appellate court over the decisions

of the courts below in such matters in the exercise of its writs

30 Sridhar Saha v. Member-in-Charge, Commercial Taxes Board

of Revenue, Orissa, 23 C.L.T. 384
31 Works Manager, Bihar State Superphosphate Factory Sindri
v. C.P. Singh A.I. R. 1973 S.C. 273
32 A.I. R.1976 S.C.1408
 165

jurisdiction.From a similar consideration, the Rajasthan

High Court did not interfere in the quantum of punishment awarded

by a lower tribunal.

The boundaries of the jurisdiction of the High Courts

under Article 226 are clearly and strongly built and cannot be
breached without risking jurisprudential confusion. The power
is supervisory and not appellate. If, therefore, "the High Court
finds errors of law vitiating the tribunal's findings, the same
cannot be finally decided by the court itself. The case must go
back to the tribunal for fresh consideration as a matter of
law and in the interests of justice."35 Errors apparent on the

face of the record are treated as errors of jurisdiction for the

purposes of quashing and issuing a writ of certiorari. Thus,

where a Sales Tax Officer does not make out a case in the
assessment order to estimate the suppressed turn-over, his
orders will be held vitiated by an error apparent on the face
of the record and contrary to law. ^ ®

The courts do not permit an entirely new point not

arising out of the pleadings to be agitated before the court

33 A.I.R. 1976 Orissa 60.

34 Messrs. Malik Medical Hall v. Union of India, A.I. R.
1975 Rajasthan 108.
35 M. Naine Mohammed v. K.A. Natrajan, A.I.R.1975 S.C.1867
36 Fami Narasaya Prusty & Brothers v. State of Orissa,24.
C.L.T. 377
 166
nn
below by way of remand. Here a party must avaijL itself
of other remedies, if any.
A writ of certiorari, being an extraordinary thing, should
not be the first choice. A person must first avail himself of the
other remedies, if available. Where no other remedy is availa­
ble, or where all other remedies fail to secure substantial
justice to a per son, the Hi|fh Court will not deny its writ
jurisdiction. The alternative is a bar to the writ jurisdiction,
but not an absolute bar. In Orissa Mineral Development

Company Ltd. Commissioner of Sales Tax, Orissa, the

legislature conferred on the aggrieved party a regular right to
appeal before an independent judicial tribunal at a time when
its application was pending in the High Court.38 In this case

the High Court held that the party should be directed to seek
redress before that tribunal 4nd should not be permitted to
invoke the extraordinary jurisdiction of the High Court under
Article 226.

In Gobind Ch. Panda v. Darshan Ch. Rout the Orissa

High Court reviewed the provisions relating to the election of
Chairman and Vice-Chairman and held thht under Section 44-A
of the Act, the Election Commissioner had jurisdiction to

37 Collector of Customs v. Pednekar & Co. (PI Ltd, A.I.H. 1978

S.C.llSi
38 Chakradlmra Samantrai v. Linearaj Mahapatra,
26 C.L. t1. (toote8 64)34; Also see
 1S7

entertain an election dispute relating to the election of

Chairman.The Act, it noted, did not provide a remedy

<

against the decision of the Election Commissioner. It further ' '

observed: ’'The remedy of review in the Act can also not

be revised as bar to exercise our jurisdiction in a writ of

t
4*.

certiorari if, on examination

*
of the material, we find that an

error apparent on the face of the record of the court below

is manifest."

In Kuduru Podhan v. Gangadhar Behera the Orissa High

Court held that even though a petitioner might have an

alternative remedy by#way of a regular suit, the court can,

in exercise of its extraordinary jurisdiction under Articles

226 and 227'of the Constitution, interfere where the alternative

remedy is not equally convenient, beneficial or effective.

In Ori3sa Mineral Development Limited v. Commissioner of Sales

Tax, Orissa , the High Court reaffirmed the above view. An

alternative remedy may not always be a sufficient ground for

the High Court to refuse to exercise its jurisdiction under

41
Article 226. Cases may arise where the unconstitutionality

or the illegality of the order under challenge is so apparent

that notwithstanding the existence of the alternative remedy the

Court may interfere under this Article.

39 A.I. It. 1973 Orissa 15.

4® I.L.R. 1952 Cuttack 615(610>

41 26 C.Lf.T. 34.
 168

However, a party should not be permitted to escape the

rigorous effects of the law of limitation by applying to this

Court under Article 226 after the expiry of the period prescribed

by law to get relief from the appropriate revisional or appellate

•h

authorities.
42
Following the ruling of the Supreme Court in an earlier

case, the Karnatak High Court held that the rule requiring resort

to all statutory remedies before the writ might be granted was a

rule of policy, convenience* and discretion, rather than a rule

of law. ^ it said that the case it was considering was, therefore,

pre-eminently a case in which the Government should not have

acted without giving an opportunity to the Panchayat and the

petitioner to show cause why the lease granted by the panchayat

to the petitioner should not be held to be illegal.

The Supreme Court ruled in the Maharashtra State Road

Transport Corporation v. Babu Goverdhan Regular Motor Service,

Waror a, that under Article 226 the High Court had power to quash

an order when the error committed by a tribunal or authority

44
was one of law and that was apparent on the face of the record.

In The Sub-Divisional Officer and Collector, Shivsagar v. Gopal

Chandra Khound it found that the orders of the Board of Revenue

42 A.I.H. 1961 S.C. 1596

43 T. R. Ramaiah v. Deputy Commissioner Chitradurg District,
A.I.H. 1975 Karnataka 77, Also Messrs Xalinga Tubes Ltd.
v. State of Orissa A.I.H. 1975 Orissa. 18
44 A.I.H. 1979 S.C.1928(1929)
 189

suffered from an apparent error of law in the matter of raising

45
presumption, and that they violated principles of natural justice.

It, therefore, held that the High Court could not be charged With

exceeding i£$ jurisdiction iri quashing the orders of the appellant

and the Board of Revenue.

High Court*s Power of Superintendence.

Article 227 of the Constitution is very Wide in its terms

and confers power of superintendence over all inferior courts

and tribunals. The High Court in the exercise of this power can

also revise the order of a tribunal.^® The scope of the Article

is as follows according to the Supreme Court:

The powers of the High Court under Article 227

are not greater than the powers under Articles 226
of the Constitution. It has been further laid down
that the power of interference under Article 227 is
limited to seeing that the tribunals function within
the limits of their authority and that the High Courts
cannot sit on appeal against Article 227.^
u%
In Samant Radha Frasanna Das v. Province of Orissa,

the High Court held that the Collector, while exercising power

45 A.I. R. 1971 S.C. 1190 (1193)

46 Nimai Charan Kamila v. Sham Mohan Nandi, 18 C.L.T.279

47 Nagendra Nath Bora v. Commissioner of Hill Division,

A.I. R. 1958 S.C. 398; Eambhan v. Shankar Singh (Civil
Appeal No. 35 of 1966); and Siyabhai Vithal Rao Gajre
v. Pathankhan, A.I.R. 1971 S.C. 315.

48 18 C.L.T. 106
 173

under the Land Acquisition Act, was a tribunal and that, therefore,

he was subject to the jurisdiction of the Court under Article 227.^

It held the order of the Collector in the above case as manifestly

opposed to law, and said that it had resulted in great injustice.

It was, therefore, incumbent upon the Eigh Court to set right the

injustice and afford relief. Similarly, in Baradakant Mishra v.

Bhimsen Dixit, the Supreme Court held that the Commissioner

of Hindu Religious Endowment acted as a quasi-judicial authority

and was subject to the superintendence of the High Court and that
the decisions of the High Court Were binding on him. ^

Exclusion of the Jurisdiction of Civil Courts.

Exclusion of jurisdiction of civil courts is not to be readily

inferred. Such exclusion must either be explicitly expressed or

clearly implied.

It, is also well settled that even if jurisdiction is

so excluded, the civil courts have jurisdiction to
examine into cases when the provisions of the Act
have not been complied with or the statutory tribunal
has not acted in conformity with the fundamental
principles of judicial procedure. Once it is found
that the Abolition Collector has acted within
his jurisdiction the matter is not open to challenge.50

49 Baradakant Mishra v. Bhimsen Dixit, A.I.R. 1972

S.C. 2466
50 Choudhary Krushna Chandra v. Smt. Hemamani Biswal,19t0
(1) -CWR 224. See also Benudhar Dalai v. State of Orissa
A.I.E. 1968 Orissa 197; and Collector of Puri v. Budhinath
Samantary I. L.R. 1969 Cuttack 716.
 171

When a Statute creates new rights, it alsq creates new

remedies. It is also possible for new remedies to be created

in an existing field. In a case where there are rights and

new remedies, the prima facie presumption would be that the

jurisdiction of the regular civil courts is excluded. The High

Court examined the provisions of the Orissa Land Reforms Act,

1660 and concluded thusi

The scheme Pf the Act clearly indicates that there is a

hierarchy of authorities to administer the provisions
of the Act and those authorities are competent to
decide all questions of fact and law which fall to be
considered under any of the provisions of the Act.
Thus, apart from creating a complete code wMafc
which authorises investment of powers in the said
hierarchy of authorities to administer the Act, it also
creates new rights and provides new remedy. The
Revenue Officer is thus, the only competent authority
to decide the dispute regarding existence of relation­
ship of landlord and tenant between the parties as is
indicated in Section 15 (1) (d) of the Act and the
legislative intent is quite clear that such dispute must
be decided in accordance with provisions of the Act,
notwithstanding the pendency of a suit in the Civil
Court regarding the self-same matter and notwithstand­
ing the general law that the right of suit including
right of appeal is a vested right. This conclusion
is fortified by the language of S.15(l) of the Act
requiring the Revenue Officer to decide all disputed
questions enumerated in clause (a)(d) thereof as
mandatory. Further the expression to entertain
any suit in Section 67 means to receive and to deal
with it or to admit it to consideration. Consequently
the Civil Court would not only have no jurisdiction
to decide the question of existence of relationship
of landlord and tenant between the partieslwould /Lbu.t
lose the further jurisdiction to decide such question
after the coming into force of the President's Act 17
of 1973.51

51 Sankar Kumar Bhattar v. Tehsildar-cum-Revenue Officer

Basta, A.I.R. 1976 Orissa 193.
 172

Thus, in matters which fall within the jurisdiction of the special

tribunals, the civil courts do not have jurisdiction. ^ 2

A provision excluding the jurisdiction of a civil court,

does not exclude challenge to a determination which takes into

consideration factors which the officer has no right to take into

account. ^ Accordingly, the Gujarat High Court ruled in

Mirchumal v. Union df India that when an act was ultra vires

the power Of the administrative officer, it was not protected. ^

The bar to Court's jurisdiction would not be attracted, and the

courts would have jurisdiction to entertain a suit challenging such

an action.

Section 9(1) of the Madras Sstates Land Act, 1908,

provides that the Settlement Officer "Shstil he^iiire Srid determine

whether an inam village in his jurisdiction is an inam estate or

not." An appeal lies from the decision of the Settlement Officer

to the tribunal under Section 9(4)(a). Section 9(4)(c) provides

52 Aparti Gochait v. Satrughan Mai, 20 C.L.T. 565;

Smt. Gajendra Kumari Devi v. Guru Gadabe A, I. K. 1966
Orissa 198; Yalialka Apanne v. Bhagirathi Padhi,
Xarunakar Pradhan v. Kashi Vishwanath Deb, 28 C.L.T.
311; and Kadhamohan Deb v. Chandrasekhar Mahapatra,
36 CLT 1129.

53 Union of India v. Tarachand Gupta, A. I. R. 1971,SC.1558;

See also Anisminic Ltd, v. The Foreign Compensation
Commission (1969), 1 All E.R.20R
54 A.I.R. 1974 Gujarat 174

55 Riaz Ahmed v. Union of India, A.I.R. 1974 Delhi 151.

 173

that "the decision of the tribunal shall be final and not be

liable to be questioned in any court of law." This provision

has been subjected to interpretation by the Supreme Court in

K. C. Dora v. G. Annemanaidu. The Court said that under

Section 92 of the Civil Procedure Code, the courts had jurisdic­

tion to decide all suits of a civil nature excepting those of vh ich

cognizance was barred either expressly or by implication.®®

The exclusion of the jurisdiction of the Civil Courts is not to be

readily assumed unless the relevant statute does so.

Directives to The Tribunal.

The statutory powers given td art authority tnlist be

examined isy the Authority itself* it c An not delegate dt* transfer

those powers. Nor can any other authority usurp those powers.

The Supreme Court held in the Partabpur Company Ltd, v. Gane

Commissioner of 3ihar, that the Gane Commissioner had no

right to transfer his responsibility in favour of any one, not even

in favour of his Minister.®® It ruled that the Chief Minister

had acted wrongly in interfering with the functions of the Cane

Commissioner.

56 A.I.R. 1974 S.C.1059

57 Desika Charyula v. State of Andhra Pradesh , A.I. R.1964
S.C.807
58 A.I.R. 1970 S.C.1896
 . 174

in K. S. Ramamurthy v. Chief Commissioner, Pondicheryj>9

the Supreme Court clearly stated that the Government had no

authority to control the functioning of quasi-judicial authorities

or to direct them to decide any particular matter in a particular

go
manner. w In several similar cases the courts have emphasized

the duty of quasi-judicial authorities to decide the matters before

them according to their own judgement and to resist dictation

from any quarters.

In Raja Bhanugangfr, Tribhuban Deo v. the State of Orissa

the High Court struck down the orders of the subordinates of the

Collector on the ground that the Revenue Commissioner had vested

the authority to pass them in the Collector, not in the subordinates

of the Collector:

The competent authority appointed by the Revenue

Commissioner according to the notification of the
Government is the District Magistrate (District
Collector) of every district and as the rent was
not settled by him and as the occupancy rights
were not conferred by him, but by his subordinates,
the orders made by persons unauthorised or
incompetent to pass them, are void and cannot
stand. The fact that they were approved by the
Collector could not save them.

59 A.I.R. 1963 S.C.1464

60 Also Masthan Sahib v. Chief Commissioner, Pondichery,
A.I.R. 1962 S.C.797
61 West Bengal v. Ruttonjee % Co., A.I.R. 1970 Calcutta 548
R. Roderigues v. W.C. Randive, A.I.R. .1970 Goa 94;
Sirpur Paper Mills v. Commissioner of Wealth Tax, A.I.R.
1970 S.C.1529; and Mahadayal Prem Chandra v. Commercial
Tax Officer, A.I.R. 1958 S.C.667
62 22 C.L.T. 130
 175
Some mention may be made here of the case of Dr.

Sarojini Pradhan v. Union of India. ln this case the

petitioner filed an application with the State Government for

the grant of a prospecting licence for iron and manganese ore.

The State Government did not pass any orders. The application

therefore, was, under the rules, deemed to have been rejected

after a lapse of nine months. The Petitioner then filed a

revision application with the Central Government. This was also

rejected. Aggrieved by this rejection, the Petitioner approached

the High Court for relief. The High Court issued a writ of

certiorari quashing the order of the Centrd Government. A writ

of mandamus was also issued directing the Central Government to

redispose of the revision application in the light of tke observa -

tions of the Court and in accordance with law: :

On the very face of it, the impugned Order shows that

there was no application of the mind by the Central
Government. It is to be noted that in this particular
case the State Government gave no decision and the
revision was filed agai nst a deeming order on the
expiry of the prescribed period. It is, therefore,
difficult to imagine what the Central Government
meant by saying that there was careful consideration
of the grounds stated in the application. That apart,
the impugned order gives absolutely no reason. It does
not refer to the comments and counter comments.'
The order is, therefore, wholly indefensible.

The Petitioner again went to the High Court against

the decision of the Central Government. Under orders from the

High Court, the Central Government again invited and received

comments from the State Government. Without communicating

these comments to the petitioner it dismissed the revision

63 36(1970) C.L.T. 369

 176

application again, on the ground that the area was reserved for

the public sector.

Once it is established that the area was refused

on the ground that the land in question should be
reserved for any purpose. Rule 58 of the Mineral
Concession Rules 1960 becomes applicable and no
other application can be considered unless the area
ist thrown open by a notification.

The High Court, however, rejected the arguments of the

Central Government:

When detailed provision have been made in the

statute and the rules for so many purposes we do
not find any scope for the contention that reserva­
tion could be at the whim of the State Government
and even without notifying the fact of reservation.
More so when the effect of such a notification
is that applications fob grarit to prospecting
licence dnd mining leases would not be entertaina-
bie........... It, therefore, follows that the sole
reason given by the Central Government in rejecting
the application of the petitioner is not a valki one in
law and was not germane for the purpose.

‘ The State Government had not eJcercised its powers properly,

and hence the conclusion of the Central Government was rejected.

The case of Kays Concern v. Union of India is comparable

to the above case of Dk. Sarojini Pradhan. 65 In the former case,

the "State Govt, failed to dispose of the application within a

period of nine months from the date of its receipt and application

was deemed to have been refused by the State Govt." The

Central Government, however, by an order dated 2nd December, 1967

64 A.I. R. 1074 Orissa 44.

65 A.I.R. 1976 S.C.1525
 177
rejected the revision application. It stated:

.... the Central Government have come to conclusion

that as the State Government are anxious to do
phosphate mining for their own fertilizer factory
in public sector, there is no valid ground for
interfering with the decision of the State Government
rejecting your application for grant of mining lease
for apatite and phosphate in Singhbhum district.

It is apparent from the order passed by the Central

Government on 2nd December, 1987 that the Central Government

had rejected the revision application of the applicants, on the

ground that the State Government was anxious to do phosphate

mining for its own fertilizer factory in the public sector.

This was undoubtedly the original ground put forward by the

State Government for rejecting the application of the applicants

for a mining lease. But it does not appear prima facie from the

advertisement in the issue of The Statesman of 13th September,

1967 that the proposal cff the State Government to mine apatite and

phosphate for its own fertilizer factory in the public sector

has been abandoned and that the State Government was prepared

to give the mining lease to any party that was prepared to

undertake the project of setting up a plant for beneficiation

of this mineral so as to make it suitable for use as raw material

for the manufacture of phosphatie fertilizer. The appellants

brought this advertisement to the notice of the Central Govt.

The Central Government passed its order of 2nd December 1967

in complete disregard of the advertisement and the change it

 178

indicated in the stand of the State Government. The order of

the Central Government clearly showed that it had failed to

apply its mind to this advertisement inspite of its having been

brought to its notice in time and had proceeded to dispose of

the revision application as if no such advertisement had keen

issued by the State Government*

'The Supreme Court, therefore, held}

This was clear non-application of mind on the
part of the Central Government to a very material
circumstance which was brought to its notice
before it disposed of the revision application.
The order of the Central Government therefore,
suffers from a patent error and it must be
quashed and set aside and the matter must go
back to the Central Government for fresh
determination.

The decision of the Madras High Court in Fapanasam

Fisherman Co-operative Society Ltd, v. The Collector of

Thanjavur is also interesting in this context.®® It "illustrates

how Government directives and their observance by the

subordinate authorities result in the non-application of mind."

by the quasi-judicial authorities concerned. Commenting on the

issue of direction to the Collector to cancel the lease under

Section 56 of the Fisheries Act,1 8 97, the High Court held

that it was irregular, and said that "the Government ought

not to have issued such instruction to the Collector."

66 A.I.R. 1975 Madras 81

 179

Questions of jurisdiction

A tribunal's order may invite judicial scrutiny oil the

ground of jurisdiction. Any defect in jurisdiction can affect

the validity of the order. A jurisdictional defect may consist

in a tribuanl's exercising a power not conferred on it by Statute.

Similarly, if a tribunal refused to exercise a power that has

been conferred on it, it is serious. Often it may happen that

a tribunal goes beyond the authority conferred on it. The

87
actions of a tribunal ade open to the doctrine of ultra vires.

In a number of cases the courts hatfe reviewed the question

of jurisdiction of quasi-judicial authorities.

In Chintamani Subudhi v. Commissioner of Hindu

Religious Endowment, Orissa, the High Court held that the

Commissioner had jurisdiction to entertain an application for

go
a lease. There was, in the opinion of the Court, no express

prohibition either in the old rules or in the Act against

making such an application directly to the Commissioner.

Section 205 of the Madras Estates Land Act, 1908,

confers jurisdiction on the Board of Revenue and the

District Collector concurrently. Hence, if one of the two

has exercised it in a matter, the power is exhausted.®^

67 Sridhar v. Re gional Transport Authority. A.I. R. 1959

Mysore 120; and Srinivas v. State of Mysore, A. I. R. 1960
S.C. 350.
68 26 C.L.T. 487
69 R. Thambanadham v. Basu Behera, 21 C.L.T.302.
 180

A person has option to approach either of the two, but not both.

In Ramkrushna Jena v. Collector of Balasore, the High

Cburt quashed the order of the Collector, on the ground that

it was ultra vires;

The Collector by his order held that the land under

dispute was set apart far the common use of the
villagers for the purpose of pasturage and as the
lease was given after the Act of 1948 came into
force, the transaction is void and inoperative
under Section 4(1) of the said Act, and ordered
that the lessee should make over the land to the
Anchal Adhikari within one month from the date
of the order. He also held that in view of the above
decision, it is not necessary for him to consider
the question of taking any action under section 5(1)
of the Orissa Estate Abolition Act, 1951. ^

The Court thus held that the Collector had no power or

jurisdiction to pass the above order.

The Supreme Court also has examined the question of

jurisdiction. In Lferuti Bala Ravt v. Dashrath Babu Wathara

the Supreme Court affiimedjthe decision of the Bombay High

Court and observed;

On a reference under S. 70(b) of the Act, the

Mamlatdar came to the conclusion that one was
tenant in possession on the particular date. But
his order was reversed in appeal by the Special
Deputy Collector. There was elaborate discussion
of the evidence in the decision of the special
Deputy Collector. The Revenue Tribunal in revision,
however, went into the evidence and after discussing
the evidence set aside the order of the appellate court.

The Supreme Court affirmed the decision of the Bombay

High Court and held that the Tribunal acted in complete
disregard of its power and proceeded as though it

70 I. L.R. 1956 Cuttack 431.

 m
£
nt were either dealing with the matter as a court of
first instance or as an appellate court. While the Special
Deputy Collector dealt with the Mamlatdar's order as an
appellate authority and was, therefore, entitled to
appreciate the evidence and come to his own conclusion,
the Tribunal exercising its powers under Section 76 had
no such power. 71

Under Sections 18(1) and 2(c) only a Claims Officer can

decide claim cases of the Orissa Estates Abolition Act, 1951;

an Additional District Judge who is not so appointed has no

jurisdiction. The District Judge, therefore, cannot transfer the

file of the Additional District Judge. Similarly, it is held that

the Rent Suit Officer, not having the power of the Collector under

Orissa Tenants Relief Act, has no jurisdiction to divide the produce

under Section 79 of the Orissa Tenancy Act in the ratio contemplated

under Section 3(1) (b) of the Orissa Tenants Relief Act. 7^ Also »

holding the order appointing an interim trustee under the Hindu

Religious Endowments Act, 1951, ultra vires, the High Court stated

in Sarat Kumar Mohanty v. Gourhari Samantary: "Any order of a

statutory body passed in excess of jurisdiction is liable to be

quashed in exercise of powers under Article 276 ......... even though

the order is construed as a pure administrative order, it is, on

the very ground of having been passed in excess of jurisdiction,

71 A.I.R. 1974 S.C. 2051

72 Chandramani Patnaik v. P.C. Deb, ILR 1961 Cuttack 509.
See also Land Acquisition Officer Kalahandi v. Mst.
Rahim Rai, A.I.R. 1971 Orissa 71
73 Kuber Chandra Pradhan v. Anant Pradhan, A.I.R. 1951 Orissa 41
 162

liable to be quashed".^

Similarly, the High Court of Orissa in anothei^ase has

observed:

Disciplinary proceedings against judicial officers

including District Judges can be initiated only by
the High Court. The Governor has no power either
to initiate, stay or transfer such a proceeding to
the Administrative Tribunal. The Administrative
Tribunal has no jurisdiction either to initiate or to
hear a disciplinary proceeding against any judicial
officer. The Disciplinary proceedings (Administrative
Tribunal) Rules, 1951 have no application to members
of Judicial Service including the District Judges.
The Administrative Tribunal has no jurisdiction
over a member of the judicial service and if there
is any particular rule to the contrary it would be
ultra vires the Article 235 of the Constitution."^

A statute may provide for the grant of a licence, and say

that the authority granting the exclusive privilege licence,permit,

or pass under the Act, may cancel or suspend it. In such

a case, an Officer who has not granted the licence has no

jurisdiction to cancel it."*®

The case Ramchandra Mardaraj Deo v. Collector of

Agricultural Income Tax arose out of an application
under Subsection (3) of section 29 of the Orissa
Agricultural Income Tax Act, 1947, again an order of

74 21. C.L.T. 93. See also Nabaghan Naik v. Sadanand Das,

A.I.R. 1972 Orissa 188.
75 Registrar of the Orissa High Court v. Baroda Kanta Misra,
A.I.R. 1973 Orissa 224.
76 Chaitram v. Superintendent of Excise, Puri,A.I. R.1974
Orissa 31
 183

the Revenue Commissioner refusing to state a case

for the decision of the High Court in respect of
the Assessment of the petitioner on agricultural
I ncome-Tax for the year 1947-48.
On the 26th May, 1949, the Agricultural Income Thx
Officer of Ganjam made an assessment on the total
agricultural income of the petitioner for the year
1947-48 as estimated by him. Against that order
the petitioner filed an appeal under section 25
of the Act before the Collector of Agricultural
Income Tax Officer, Orissa, who dismissed the
appeal and confirmed the assessment on the 6th
March, 1950. The petitioner then filed a revision
petition under section 28 of the Act before the
Revenue Commissioner who rejected this petition.
Then he applied to him under subsection (2)
of the section 29 of the Act for stating a case on
the ground that important questions of law were
involved in his order passed under section 28 of the
Act. The learned Revenue Commissioner rejected
this petition solely because he thought that his
order under section 28 neither enhanced the assessment
. nor was it otherwise prejudicial to the petitioner
and that consequently he (Revenue Commissioner)
had no jurisdiction to state a case under subsection (2)
of the Section 29 of the Act.

The High Court held that the order of the Revenue

Commissioner was prejudicial to the assessee inasmuch
as it had the effect of confirming the orders of the
subordinate authorities which were themselves prejudicial
to the assessee. The Revenue Commissioner had,
therefore, taken a wrong view of law in refusing to
state a case in exercise of the powers conferred by
subsection (2) of section 29 of the Agricultural Income
Tax Act. 77

Arbitary Order

Any arbitrary order by a tribunal attracts judicial scrutiny.

An order may be held arbitrary if it is based on subjective

77 I.L.R. 1952 Cuttack 439

 184

satisfaction on a misunderstanding of the statements of witnessed,

if it has no basis in facts, if it is not supported by reasons,

if it is inconsistent with the facts on record, oi if.it ignores

the mandatory provisions of the statute.

In the State of Orissa v. Maharaja Shri B. P. Singh Deo,

the Supreme Court affirmed the decision of the High Court and

upheld the powers of the latter to interfere with the order of

the Agricultural Income Tax, Tribunal. The assessing authority,

being unable to rely on the books of account produced by the

assessee, had assessed him on the basis of its "best judgement".

Aggrieved by the Assessment order, the assessee appealed

to the Assistant Collector of Agricultural Income Tax, who,

instead of providing relief, enhanced the assessment. On

further appeal, the tribunal affirmed the decision.

The Supreme Court observed that the mere fact

that the material placed by the assessee
before the assessing authorities is unreliable
does not empower those authorities to make an
arbitrary order. The power to levy assessment
on the basis of best judgement is not an arbitrary
power. In other words, assessment must be
based on some relevant material. It is not a
power that can be exercised under the sweet will
and pleasure of the concerned authorities.
The agricultural Income Tax Tribunal gave no
reasons in its order for affirming the decision of
the Assistant Collector. It appears to have been
of the view that once the assessing authorities
reject the material placed before them as being
unreliable, those authorities can proceed to levy
whatever tax they may levy. It failed to bear in
mind the scope of the power of the assessing
authorities to levy assessment on the basis of

78 A.I.R. 1970 S.C. 670

 185

best judgement. Therefore, the tribunal was clearly

in error in confirming the decision of the Assistant
Collector. withfft-d=r
interfering Hence the of
High
theCourt was justified in
tribunal.

In Fami Narasaya Prusty v. State of Orissa the Orissa

High Court reviewed the provisions of the Bihar Sales Tax Act

and the Indian Income Tax Act. The High Court held that a

Sales Tax Officer was not entitled to make a pure guess and

assess tax liability without reference to any evidence or material

at all. He must take into consideration such material as the

assessing officer has before him, including the circumstances of

the assessees, knowledge of previous returns, and all other

matters as might assist him in arriving at a fair and proper

estimate. The Supreme Court has said that if the facts on

record do not reasonably lead to the conclusion arrived at by

a tribunal, the order made by the tribunal was liable to be

quashed. In Messrs Hind Trading Co. v. Union of India, it

observed:
Having regard to the facts on the record,
no Tribunal could reasonably come to the
conclusion that the dollars were liable to
confiscation if they properly understood
the relevant enactments. In the circumstances,
the order of the Collector confiscating the
goods is liable to be quashed by a writ of
certiorari.

In Messrs Bharat Sabaigrass Ltd.. Calcutta, v. The

Collector of Commercial Sales Tax, Orissa, Cuttack, the Orissa

High Court reviewed the Sales Tax assessment order and defined

79 24 C.L.T. 377
80 A.I.R. 1970 S.C.1858
 18S

the term "sale". The Petitioner had approached the Assistant

Collector in appeal and the Collector and the Commissioner

in revision. He had also approached the Commissioner for

stating a case and for permission to refer the matter to the

High Court but such application was rejected. The Commissioner

had held:

The goods were collected in Orissa and were

despatched from Orissa. Normally, ,therefore,
it is reasonable to presume that the sales were
completed in Orissa. No doubt there may be
different contracts belying this presumption but
as no evidence have been produced by the party
this presumption of station of despatch will
prevail. It is, therefore, not at aU unreasonable
that the sales tax officer has treated the gross
turn over as assessable.

Aggrieved by this order the Petitioner went to the High Court.

The High Court held that there was before the Sales Tax Officer

absolutely no material from which he could conclude that the

sales were completed within the State of Orissa. The basis

of his assessment was a letter from the Collector on a

taxable transaction. It held further that the Commissioner had

unwarrantedly presumed that the goods were collected in Orissa

and were despatched from Orissa. There was according to it

no material to support that the sales were actually completed in

Orissa. The High Court, therefore, required the Commissioner,

Northern Division, Sambalpur, to state a case and refer it back

to it on the point whether in the circumstances of the case, the

assessment was legally based on the position that the export of

 187

goods from Orissa was sufficient for taxation under the Orissa

Sales Tax Act. 1947. The High Court later quashed the

findings on the ground that they were not based on evidence and
81
there was an error of law apparent on the face of records.

The case Lax midha r Panigrahi v. The State of Orissa

relates to an enquiry under the Land Reforms Act.®^ The

High Court held:

We are satisfied that there is no material on

record to support the conclusion of the revisions!
authority that boundary witnesses were examined.
The Revenue Officer did not say so. On the
allegations raised before us we are satisfied
that there has been no adequate enquiry as
contemplated in law. On the other hand some
secret enquiry had been made by the Revenue
Officer. He was admittedly acting as a judicial
authority while disposing of application under
Section 15 of the Act. He could not have
collected materials confidentially and without
disclosing the same to the opposite parties
before him, the Revenue Officer could not have
utilised them for coming to his conclusion
regarding the fate of the lis. The action of
the Revenue Officer is clearly violation of the
principles of natural justice.

The Rajasthan High Court quashed an order of the Transport

Tribunal granting permit to on© erf the applicants by cancelling

that of the Petitioner. The Court held that the tribunal

"based its findings qua the Petitioner on no evidence, wrong

presumption and unwarranted assumptions despite a clear averment

81 Kailash Chandra Sahau v. S.M. NanjiA.I. R. 1973

Orissa 188; and Ramkrishna Jana v. Collector of Balasore, 22
C.L.T. 169.
82 A.I.R. 1974 Orissa 127.
 188
of the petitioner in his affidavit." It, therefore, issued a

directive to the tribunal ' to reconsider the matter afresh

oq
according to law." The Supreme Court has struck down many

an order based on 1 pure assumption' and conjectures and on no

evidence whatsoever," 84 the High Courts and other authorities

may similarly strike down such an order.

The orders of a tribunal are "tainted with serious infirmity

if the tribunal makes contradictory observations, or misreads the

statements of the witnesses. It is within the competence of the

management to fix the hours of work. Such a decision of the

management is not open to valid objections. In such a case, the

Supreme Court is justified in coming to its own independent

conclusions on a reappraisal of evidence.88 Similarly, a Sales

Tax Assessing Authority must take into consideration the mandatory

provisions of the Act. Non-compliance with those provisions

Qg
renders the assessment illegal and invalid.

The Supreme Court does not interfere with the decision

of a tribunal if it does not suffer from any infirmity in the

appreciation of evidence. The Court treats such questions as

88 Kandhari Babu v. State Transport Appellate Tribunal,

Rajasthan, A.I.E. 1975 Rajasthan 293.
84 Rukmanand Bairadhya v. State of Bihar, A.I.E. 1971,
S.C. 746; and State of Assam v. Mohan Chandra Kalita,
A.I.R. 1972 S.C. 253
85 Oil and Natural Gas Corr«r.'. pion v. The Workmen,
A.I.E. 1973 S.C.968

86 Slto-ttam Kq-mo-L Fk-asoxl V. ColLeglotg- of S&l&S Tax , OuSSQ-

2,1 C-L.T. |6|
 189

questions of fact.®"* But failure to assess the settlement

e ntry at its proper worth under the Agency Tracts Interests and
Land Transfer Act, 1917, and also to read the other evidence

collected by the Deputy Tehsildar carefully renders an order of

the tribunal improper and liable to be quashed.The Orissa

High Court on similar grounds quashed the order of the Collector

in Ramkrishna Jena v. Collector of Balasore.^ It held that there

was no mention of the land being communal land in the record-of-

rights, so that the order made by the Collector on the presumption

that it was a communal land was void in the absence of clear

evidence.

When the facts do not lead to the conclusion that the

decision of the authority is unfair, capricious, or arbitrary the

Supreme Court does not interfere with an order. Thus, in

Raghunandan Panda v. State of Orissa, the Court held:

No rule was violated if the authorities concerned

took into consideration benefits to and needs of
the public in general of getting supply of medicine
at all times during day and night. Interference
with the order and action of the Revenue and
administrative Authorities could follow, as we
have said above, only if they could be found to

87 Messrs Tata Iron & Steel Co, Ltd, v. Their Workmen.

A.I.R. 1973 S.C.1401
88 Koduru Fodhan v. Gangadhar Behera, I.L. E. 1952
Cuttack 615
89 I.L.R. 1956 Cuttack 431.
90 Electric Supply Co. v. Commercial Tax Officer, A.I.R. 1956
Calcutta 299
 190

be uhfair, capricious or arbitrary.***

A SUMMING-UP

The fact that the tribunals fall outside the system of courts

raises the question of the relationship between the two. This

question we have tried to answer elaborately in the preceding

pages of the present chapter.

It has been shown how the tribunals enjoy a large measure

of autonomy in the exercise of their quasi-judicial power. Even

then, far from being unfettered, the power of tribunals is subject

%

to scrutiny and review by the superior courts such as the High

Courts and the Supreme Court.

At the apex of the judiciary of the country, the Supreme

Court derives its power of residuary jurisdiction over the tribunals,

not from any ordinary law, but from Article 136 of the Constitution.

In exercise of its power it has granted special leave to the affected

parties to appeal from the decisions, awards, or orders of a

tribunal. The Supreme Court has interfered with the decisions

of tribunals:

(i) wherever the decision of the tribunal has been

found to be without jurisdiction or in excess of its juris­
diction;

(ii) wherever an award has been passed beyond the time

originally fixed by the Government;
(iii) wherever the tribunal has refused to perform its
duty under the law; and

91 A.I.H. 1975 S.C. 434

 191

(iv) wherever the tribunal has acted in violation of the

' principles of natural justice.

Normally the Supreme Court does not interfere with a

finding of facts by a tribunal unless the finding of the tribunal

is based on an error of law.

The tribunals in a State are closento the High Court of

that State than with the Supreme Court of the whole country.

The powers of the High Court over the tribunals are derived

from several sources? the Constitution, the laws of the State

legislature and the regulations made thereunder, as well as from

codes like the Civil Procedure Code. The most important is

the residuary jurisdiction of the High Court conferred on it

by Article 226 of the Constitution. This power remains substan­

tial despite the restrictions imposed on it by the new Article 226

inserted by the 42nd Amendment. It has been pointed out how

the High Court's residuary jurisdiction is not affected by the

finality given by a statute to the decision of a statutory body with

quasi-judicial power. The High Court could intervene and has

intervened in cases where the tribunals have not acted in

conformity with the fundamental principles of judicial procedure.

The writ jurisdiction of the High Court has been exercised

rather cautiously and sparingly. It has been exercised especially

in circumstances where the tribunals have either passed orders

in excess, of jurisdiction, or caused grave miscarriage of justice

by refusing to exercise jurisdiction, or acted illegally or

 192

improperly. On the whole it has been exercised to correct

"an error of law, but not an error of facts." By citing

appropriate cases it has been shown how the Orissa High Court

has corrected errors of law committed by the adjudicating

bodies.

Further, relevant cases have been cited to analyse the

scope, extent, and limitations of the High Court's power of

superintendence under Article 227. It has also been emphasized

that the decisions of the Supreme Court and the Orissa High

Court have contributed to the safeguard of the autonomy of

quasi-judicial authorities by protecting their functioning from

the control, direction, and dictation of the Government.

Decisions of the superior courts have been useful in
determining several intricate issues like (a) the validity or

otherwise of the orders of a tribunal in case of defects in

jurisdiction; (b) the inherent power of a tribunal to review its

own decisions; (c) the nature of the power of revision vested

by certain Acts in the Board of Revenue; (d) the scope of the

power of a tribunal to refer a case to a higher tribunal or .to

the High Court; and (e) the arbitrariness or otherwise of any

order that may be made by a tribunal and the possibility of

its attracting judicial scrutiny.