Division Bench made it clear that since the dispute between the parties was in respect of the area, as to what has been purchased in auction sale by Gulabai Desai and what is the area allotted to the Appellant by the orders of the Deputy Collector and Deputy Custodian of Evacuee Properties, the Appellant requested the Bench not to enter into the merits on this question in this LPA since the parties may prosecute their remedies in the Civil Court for such adjudication, and therefore, that aspect was not considered by the High Court.Before parting with the order, we must make it clear that in view of the request made by the appellant before the High Court not to enter into the merit of the case since the party may prosecute their remedies in the Civil Court for adjudication, we have not expressed any opinion with regard to the merit of the case of the parties. The parties may prosecute their remedies in Civil Court in accordance with law.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 5102 OF 2006


Gurudassing Nawoosing Panjwani               Appellant(s)

                                   versus

The State of Maharashtra and others          Respondent(s)


                               J U D G M E N T

|                                                         |
|M.Y. Eqbal, J.:                                          |


       This  appeal  by  special  leave  is  directed  against  order  dated
13.7.2005 passed by the Division Bench of the Bombay High Court.  Dismissing
Letter Patents Appeal preferred by the appellant against the  order  of  the
learned Single Judge who dismissed  his  writ  petition  and  confirmed  the
orders  passed  by  the  State  Minister  for  Revenue  in  the   proceeding
R.T.S.3402/ Pra.kra.309/L-6 dated 18th October, 2002.


2.    It is the appellant’s case that his father  Shri  Nawoosingh  Panjumal
Panjwani was a displaced person who migrated from Pakistan to  India  during
the period of partition and the appellant’s family  while  in  Pakistan  was
having agricultural land over there admeasuring 4 acres 10  gunthas.   After
migration, the family took shelter  at  Refugee  Camp  of  Pimpri,  Pune  in
Maharashtra. In view of enactment of  Displaced  Persons  (Compensation  and
Rehabilitation) Act, 1954 by the Union of India,  the  immovable  properties
left behind by Muslims who had migrated to Pakistan were  acquired  and  the
same  was  distributed  to  displaced  persons  as  a  “compensation  pool”.
Accordingly, father of the appellant  was  allotted  a  land  admeasuring  2
acres 5 gunthas  bearing  Revenue  Survey  Nos.351  and  118/2  situated  at
Village Lonavala, Taluka Maval, District Pune.  It has been pleaded  by  the
appellant that Survey No.118/1 and 118/2 are one and the same thing.

3.    The facts in brief, as  narrated  in  the  impugned  order,  are  that
Survey Nos.118, 328 and 351 of Lonavala were originally owned  by  one  Haji
Habib Tar Mohammed Janu. The said Haji Habib Tar Mohammed Janu  migrated  to
Pakistan and while going to Pakistan, he  sold  his  property  to  one  Smt.
Hajrabi Haji Yusuf on 4.6.1949. However, this transaction was  cancelled  by
the Collector and Custodian of Evacuee Property on 17.4.1949 as per  Section
8(i) of the Evacuee Properties Act and these lands were accordingly  entered
as Evacuee Property by the Tahsildar, Maval on 26.10.1949.  It appears  that
these survey numbers were also given C.T.S.No. 129, 130-A,  130-B  and  133.
It appears that in CTS No.129, 130-A, 130-B and 133, apart from vacant  land
there is a bungalow  No.52-  Habib  Villa.  It  appears  that  the  Regional
Settlement Commissioner placed this property for auction through  Government
Auctioner and one Gulabbai Desaipurchased the said property in  auction  for
a  consideration  of  Rs.16,750/-  on  17.5.1956  and,   accordingly,   sale
certificate was issued by the Regional Settlement  Commissioner,  Bombay  on
behalf of the Government. In the said sale certificate the  C.T.S.  No  129,
130-A, 130-B and 133 of Village Lonavala were mentioned.   The area of  this
CTS Nos. were as under:
129 - 55.16 sq.mts.
130A - 1651.1 sq.mts.
130B - 2934.02 sq.mts
133 - 3237.00 sq.mts
______________
Total 7897.21 sq.mts.
------------------


4.    On the basis of the said sale certificate the mutation  Entry  No.1836
was effected in the village record in favour of Gulabai Desai,  and  thereby
her name was entered in  Survey Nos.118/1B and 328 of  village  Lonavala  to
the extent of 29.30 Ares and  70  Ares  respectively.   Thereafter,  Gulabai
sold CTS No.133 admeasuring 33 Gunthas on 24.4.1977 to Respondent No.3  Genu
Kadu.  The said Gulabai also gifted her  remaining  area  from  this  Survey
numbers to her grandson Anil Gajanan Desai on 15.1.1979,  who  in  turn  has
sold his properties to Respondent no.2 - Prem Hasmatraj Lalwani in the  year
1980.

5. The Survey Nos.118/2 and 351, being Evacuee Properties, were allotted  to
the Appellant in the year 1956. Later on, it was found  that  the  Appellant
is in possession of more area and, therefore, the said  order  was  modified
on 6.5.1982 and excess area was granted  to  the  Appellant  on  payment  of
Rs.31,360/-, which Appellant had paid on 17.5.1982  in  Government  Treasury
and thereby the Deputy  Collector  and  Assistant  Settlement  Commissioner,
Pune granted the excess land to the Appellant, and  thereafter  the  dispute
started between the parties.

6.    In the impugned order, Division Bench made it  clear  that  since  the
dispute between the parties was in respect of the area, as to what has  been
purchased in auction sale by Gulabai Desai and what is the area allotted  to
the Appellant by the orders of the Deputy Collector and Deputy Custodian  of
Evacuee Properties, the Appellant requested the Bench not to enter into  the
merits on this question in this LPA since the parties  may  prosecute  their
remedies in the Civil Court  for  such  adjudication,  and  therefore,  that
aspect was not considered by the High Court. However, in the  facts  of  the
conflicting claims, the Appellant made grievance  to  the  Deputy  Collector
and the Deputy Custodian of Evacuee Properties in respect  of  the  Mutation
made in  favour  of  the  Respondent  Gulabai  and  other  Respondents  and,
therefore,  by  order  dated  18.9.1984  the  Deputy  Collector  and  Deputy
Custodian of Evacuee Properties, Pune, directed the Sub-Divisional  Officer,
Haveli Sub Division to take up the case in revision  under  Section  257  of
Maharashtra Land Revenue Code and pass necessary orders. In  view  of  these
directions,  the  Sub-Divisional  Officer,  Haveli,  Sub   Division,   Pune,
initiated proceeding RTS Revision 14 of 1984 and by  order  dated  30.7.1985
cancelled the mutation Entry No.1836 which comprises land  admeasuring  7897
sq. yards and directed necessary  corrections  in  the  record  as  per  the
observations made in the order.

7.    It appears that the said order was taken in appeal by  the  respondent
and the matter was remanded to the Sub  Divisional  Officer.  After  remand,
the Sub Divisional Officer, conducted inquiry and again passed an  order  on
29.10.1987 and confirmed  the  earlier  order.  Therefore,  the  RTS  Appeal
No.128 of 1987 was preferred before the Collector, which  was  disposed  off
by the Additional Collector on 13.7.1993. By the said order,  the  Order  of
the third Sub-Divisional Officer was maintained.  However,  further  inquiry
as directed by the SDO  was  to  be  conducted.  Since  the  mutation  Entry
No.1836 was cancelled by above order,  the  Talathi  gave  effect  to  these
orders and effected the mutation  Entry  No.2176  and  showed  the  disputed
properties in the name of the Collector  and  Deputy  Custodian  of  Evacuee
Properties. The directions were issued by the Collector to the Tahsildar  to
place the appellant in possession of the property as per the orders  of  the
Deputy Collector and the Deputy Custodian of  Evacuee  Properties.  However,
instead of giving effect to  those  orders,  it  appears  that  the  Revenue
Officers at Tahsil level effected two mutations, viz, Mutation  No.2377  and
2394. By mutation entry No.2377 the name of respondent was again mutated  in
the record and by the mutation Entry No.2394  the  name  of  Genu  Kadu  was
mutated in the record. Since the Collector noticed  on  complaint  that  the
orders of the Collector has been bypassed or surpassed  by  the  Subordinate
Revenue Officers, the Collector by order dated 12.7.1999  directed  the  SDO
to take these mutations namely mutation Entry No.2377 and 2394  in  revision
and therefore the Sub-Divisional Officer, Maval  Division  has  taken  these
mutations in revision bearing RTS Revision No.12 of 1999. The said  revision
was decided by the Sub Divisional officer at Maval on  28.1.2000  and  those
mutations were cancelled.

8.    Being aggrieved by the order passed in the said revision,   Respondent
No.2 Lalwani preferred RTS Appeal No.81 of  2000  and  the  Respondent  No.3
Genu Kadu preferred RTS Appeal No.114 of 2000. Both these RTS  Appeals  were
heard by the Additional Collector, Pune and by  order  dated  28.5.2001  the
Addl. Collector, Pune dismissed the said appeals and confirmed the order  of
the Sub Divisional Officer, Maval.  Aggrieved  by  the  said  order  of  the
Additional Collector, Respondent No.2 preferred RTS Revision No.330 of  2001
under Section  257  of  Maharashtra  Land  Revenue  Code,  1966  before  the
Additional  Commissioner,  Pune  Division,  Pune.  The  said   revision  was
decided by the Additional Commissioner, Pune by order dated  22.11.2001  and
the said revision was dismissed.

9.   Respondent No.2 challenged this order of  the  Additional  Commissioner
by filing the proceeding RTS 3402/Pra.kra.309/L-6 by way of second  revision
before the Revenue Minister for State and the said  proceeding  was  decided
by the Minister for State on 18.10.2002. The Revenue  Minister  allowed  the
said proceeding and set aside  the  orders  passed  by  the  Sub  Divisional
Officer,  Maval  dated  28.1.2000,   order  dated  28.5.2001  of  Additional
Collector, Pune and of Additional Commissioner dated 22.11.2001,  and  thus,
restored the position as reflected by  the  Mutation  Entries  Nos.1836  and
2377 and 2394. Thus, all the entries  in  favour  of  the  Respondents  were
protected and maintained by the order of the State Minister for Revenue.

10.    Appellant  challenged  the  order  dated  19.10.2002  passed  by  the
Minister by filing a writ petition, which was dismissed  by  learned  Single
Judge of the Bombay High Court.  Thereafter,  the  appellant  filed  Letters
Patent Appeal, which was also dismissed by the Division Bench  holding  that
when  the  State  Minister  for  Revenue  entertained  the  matter,  he  was
possessed of jurisdiction under Section 257 of the Maharashtra Land  Revenue
Code and, therefore, the order passed by him under  the  said  authority  is
within  his  jurisdiction,  power  and  competence.    The  Division   Bench
observed thus:
“…We record our finding that under  Section  257  of  the  Maharashtra  Land
Revenue Code more than one revision is possible. Now coming to the facts  of
the present  case,  the  mutation  Entry  No.1836  was  in  fact  certified.
However, the Sub-Divisional Officer has taken the said mutation in  revision
in RTS Revision No.14 of 1984 and has set aside the mutation by order  dated
30.7.1985. There was appeal as against that order  which  was  remanded.  It
was again decided by the Sub Divisional Officer on 29.10.1987 and  the  said
mutation was set aside. There was  RTS  Appeal  No.128  of  1987  which  was
decided on 13.7.1993. In view of these orders  the  mutation  entry  No.1836
was cancelled and Mutation Entry No.2176 was effected whereby  the  name  of
the Collector and the Deputy Collector of the Evacuee Property  was  entered
into 7 X 12 extracts. It is further  found  that  when  the  orders  of  the
Collector directing to put the petitioner into possession  were  not  obeyed
by the subordinate Revenue Officers and the Revenue  Officers  effected  the
mutation entry No.2377 in favour of the Respondent Nos.3 Gulabai  Desai  and
Mutation Entry No.2394 in favour  of  the  Respondent  No.5  Genu  Kadu  and
thereafter for second  time  the  special  Divisional  Officer,  Maval,  has
exercised the revisional powers under Section 257 and  initiated  proceeding
RTS Revision 12 of 1999 in respect of the mutation entry No.2377  and  2394.
The RTS Revision 12/99 was allowed on 28.1.2000  as  against  that  two  RTS
appeals namely, RTS Appeal No.81 of 2000 and RTS Appeal No.114 of 2000  were
preferred by the Respondent. They were  decided  on  28.5.2001.  As  against
that the RTS Revision No.330 of 2001 was preferred. The same was  dismissed.
As against that the RTS  proceeding  bearing  No.3402  /Pra.Kra.309/L-6  was
preferred before the Minister for State. All  these  proceedings  will  show
that twice the Sub-Divisional Officer has  exercised  the  revisional  power
under Section 257 at  the  directions  of  the  Collector,  namely  the  RTS
Revision No.14 of 1984 and RTS Revision  No.12  of  1999.  It  will  further
reveal that the appeals as against  the  RTS  Revision  No.14  of  1984  was
preferred by the parties in view of the provisions of Section  247  and  249
sub-section 2. It will equally appear that when the
orders were passed in Revision Application No.12  of  1999  before  the  Sub
Divisional Officer in exercise of the powers under Section 257  the  parties
have preferred two RTS appeals in view of the provisions of Section 247  and
249 sub-section 2. Not only that, thereafter the  RTS  Revision  Application
No.330 of 2001 was also preferred before the Commissioner and  if  the  view
is taken that the second revision is not tenable then in that  circumstances
since the first order passed in RTS Revision No.12 of 1999 is  a  revisional
order, this second revision  before  the  Commissioner  being  RTS  Revision
No.330 of 2001 would not have been tenable.  However, said revision RTS  330
of 2001 is tenable since the appeals as provided under Section 247  and  249
intervene in between the revisional  orders  passed  by  the  Sub-Divisional
officer and the Commissioner. Thus, in short, we find that the scheme  under
Maharashtra Land Revenue Code is quite different scheme and it permits  more
than one revision. Thus, viewed from any  angle,  we  find  that  the  State
Minister for Revenue when he entertained  the  matter,  State  Minister  for
revenue was possessed of jurisdiction under Section 257 of  the  Maharashtra
Land Revenue Code and therefore the order  passed  by  him  under  the  said
authority is within his jurisdiction, power and competence.”

11.   Hence, the present appeal by special leave.



12.    Mr.  Huzefa  Ahmadi,  learned  senior  counsel  appearing   for   the
appellant, mainly attacked the revisional power exercised  by  the  Minister
concerned in purported exercise of jurisdiction under  Section  257  of  the
Maharashtra Land Revenue Code.  In the alternative, learned  Senior  counsel
submitted that  even if it  were  to  be  admitted  without  prejudice  that
second  revision  is  maintainable,  the  Minister  being   the   revisional
authority should not have interfered with the findings recorded by  all  the
six Revenue Authorities.  Referring the decision of the  Bombay  High  Court
in the case of Sambappa vs.  State  of  Maharashtra  [(2002)  SCC  on  line,
Bombay  1222],  learned  counsel  submitted  that  when  the  Sub-Divisional
Officer, Additional Collector and Additional Commissioner  had  concurrently
recorded finding in favour of the appellant by observing  that  the  revenue
record is not in consonance with the factual aspect and they  have  directed
to correct the revenue entries,  in  such  a  case,  the  second  revisional
authority exceeded its jurisdiction in  entertaining  the  said  application
and interfering with the finding of fact.  Section 257 makes it  clear  that
a revisional authority has to consider only the legality  and  propriety  of
the decision.  Learned counsel referring the revisional jurisdiction of  the
High Court under Section 115  of  the  Code  of  Civil  Procedure  tried  to
impress us that when the power of revision is given to the  District  Judge,
then the High Court cannot entertain second revision petition under  Section
115 of the Code.  Learned counsel relied upon the decision of this Court  in
the  case of  State of Kerala vs. K.M. Charia Abdulla &  Co.,  AIR  1965  SC
1585 and Hari Shankar vs. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698.



13.   Mr. Ahmadi, learned senior counsel further submitted  that  a  request
was made to the High Court not to enter into the merit of the case,  and  to
confine itself to  the  question  whether  a  second  revision  was  at  all
maintainable, in the light of  the  ratio  in  Harishankar’s  case  (supra),
(1962) Suppl.(1) SCR 933, Hiralal Kapur vs. Prabhu Choudhury, (1988)  2  SCC
172 and  Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb  Kadri  and  others,
(1987) 3 SCC 538.  Learned counsel also drew our attention to  the  decision
of this Court in Dharampal vs. Ramshri, (1993) 1 SCC 435  where  this  Court
held that a second revision to the High  Court  under  Section  482  of  the
Cr.P.C. was not permitted.

14.   Lastly, Mr. Ahmadi submitted that the second revision  would  not  lie
under Section 257 of  the  Revenue  Code  since  Section  259  of  the  Code
provides an opportunity to the State Government to only correct  any  “Final
Order” while exercising power under the provisions of Section 257 i.e.  with
regard to its legality and propriety.

15.   Mr. Ravindra Srivastava, learned  senior  counsel  appearing  for  the
respondent–State, at the very outset submitted that the  appellant  conceded
before the High Court not to decide the merit of the case.  The  only  point
raised before the High Court was  with  regard  to  the  maintainability  of
second revision before  the  State  Government  under  Section  257  of  the
Revenue Code.  Learned counsel submitted that Section 257 expressly  confers
power of revision on the State Government which power is coupled with  power
of  control  and  superintendence.   Learned  counsel  submitted  that   the
Commissioner or the Additional Commissioner is  not  equal  in  a  rank  but
subordinate to the State Government.  Learned  counsel  submitted  that  the
State Government is the supreme revenue  authority  and  existence  of  more
than one appeal or revision to an aggrieved party is not  per  se  abhorrent
to any legal principle; depends  upon  the  Statute.   Mr.  Srivastava  then
contended that the High Court correctly analysed and appreciated the  scheme
of the Code vis a vis judicial review in revenue matters.   Learned  counsel
put heavy reliance on the decision of this Court  in  the  case  of   Ishwar
Singh vs.  State  of  Rajasthan  and  others,  (2005)  2  SCC  334  for  the
proposition that there can be a second revision under the same provision  of
the Statute.

16.   The only question that falls for consideration  is  as  to  whether  a
second revision under Section 257  is  maintainable  and  that  whether  the
State  Government  exceeds  its  jurisdiction  in  entertaining  the  second
revision?

17.   Before we proceed to decide the aforesaid question, we would  like  to
refer the relevant provisions of the Maharashtra Land Revenue Code 1966.

18.   Section 2(31) defines the Revenue Officer as under:-
“2 (31)" revenue  officer"  means  every  officer  of  any  rank  whatsoever
appointed under any of the provisions of  this  Code,  and  employed  in  or
about the business of the  land  revenue  or  of  the  surveys,  assessment,
accounts, or records connected therewith ;”


19.   Chapter II deals with the Revenue Officers, their powers  and  duties.
Sections 5, 6 and 7 reads as under:-
“5. Chief Controlling authority in revenue matters.  The  chief  controlling
authority in all matters connected with the land  revenue  in  his  division
shall vest in the Commissioner, subject to  the  superintendence,  direction
and control of the State Government.

6.Revenue Officers  in  division.  The  State  Government  shall  appoint  a
Commissioner of each division; and may appoint in a division  an  Additional
Commissioner and so many Assistant Commissioners as  may  be  expedient,  to
assist the Commissioner:
Provided that, nothing in this section shall  preclude  the  appointment  of
the same officer as Commissioner for two or more divisions.

7.Revenue officers in district. (1)The  State  Government  shall  appoint  a
Collector for each district (including the City of Bombay  who shall  be  in
charge of the revenue administration there of ; and  a  Tahsildar  for  each
taluka who shall be the chief  officer  entrusted  with  the  local  revenue
administration of a taluka.
(2)The State Government may appoint one or more  Additional  Collectors  and
in each district (including the  City  of  Bombay   and  so  many  Assistant
Collectors and Deputy Collectors (with such designations  such  as  "First",
"Second", Super numerary", etc. Assistants as may be expressed in the  order
of their appointment), one or more Naib-Tahsildars in a taluka, and  one  or
more Additional Tahsidars or Naib-Tahsildars therein and such other  persons
(having such designations) to assist the revenue officers  as  it  may  deem
expedient.
(3)Subject to the general orders of the State Government, the Collector  may
place any Assistant or Deputy Collector in charge of one more  sub-divisions
of a district, or may himself  retain  charge  thereof.  Such  Assistant  or
Deputy Collector may also be called a Sub-Divisional Officer.
(4) The Collector may appoint to each district as many persons as he  thinks
fit to be Circle Officers and  Circle  Inspectors  to  be  in  charge  of  a
Circle, and one or more Talathis for a saza, and  one  or  more  Kotwals  or
other village servants for each village or group  of  villages,  as  he  may
deem fit.”


20.   Section 11 of the Code is worth to be quoted herein below:-
“11.Subordination of officers.
 (1)All revenue officers shall be subordinate to the State Government.
(2)Unless the State Government directs otherwise, all revenue officers in  a
division shall be subordinate to the Commissioner, and all revenue  Officers
2[in a district (including the City of Bombay)] shall be subordinate to  the
Collector.
3)Unless the State Government directs otherwise, all other Revenue  Officers
Including survey officers shall be subordinated, the one to  the  other,  in
such order as the State Government may direct.”

21.   Sections 13 and 14 deal with the powers  and  duties  of  all  Revenue
Officers.

22.   From reading of the aforesaid provisions,  it  is  manifest  that  the
State Government makes appointment of the  Revenue  Officers  including  the
Commissioner and the Chief Controlling Authorities in the  revenue  matters.
Section 5 makes it  clear  that  the  Chief  Controlling  Authority  in  all
matters connected with the land revenue in his Division shall vest with  the
Commissioner, subject to superintendence, directions  and  control   of  the
State Government.  Section 11 provides that all Revenue  Officers  shall  be
subordinate to the State  Government.   It  is,  therefore,  clear  that  in
revenue matters the State Government is the Supreme Revenue Authority.

23.   In the present case, we noticed the scheme of the Code in the  matters
of hearing and disposal of appeals, revision and review.  Section 247  deals
with the appeal and appellate authorities, which reads as under:-

“247.Appeal and appellate authorities.
 (1)In the absence of any express provisions of this Code,  or  of  any  law
for the time being in force to the contrary, an appeal shall  lie  from  any
decision or order passed by a revenue or survey officer specified in  column
1 of the Schedule E under this Code or any other law for the time  being  in
force to the officer specified in column 2 of that Schedule whether  or  not
such decision or order may itself  have  been  passed  on  appeal  from  the
decision of order  of  the  officer  specified  in  column  1  of  the  said
Schedule.

Provided that, in no case the number of appeals
 shall exceed two.

(2)When on account of promotion of change of designation, an appeal  against
any decision or order lies under this section to the same  officer  who  has
passed the decision or order appealed against, the appeal shall lie to  such
other officer competent to decide the appeal to whom it may  be  transferred
under the provisions of this Code.”
24.   Section 248 is also relevant which provides the  forum  of  appeal  to
the State Government.  Similarly, Section  249  makes  provision  of  appeal
against the review or revision.

25.   The schedule preferred to in  Section  227  mentions  the  Authorities
before whom appeal would lie. The  Schedule  appended  to  the  Code  is  as
follows:-
                                 Schedule E
                              (See section 247)
|   |REVENUE OFFICER              |APPELLATE AUTHORITY    |
|1. |1., All Officers in a        |Sub-divisional Officer |
|   |Sub-Division, sub-ordinate to|or such Assistant or   |
|   |the  Sub-division Off        |Deputy Collector as may|
|   |                             |be specified by the    |
|   |                             |Collector in this      |
|   |                             |behalf.                |
|2. |Sub-Divisional Officer,      |Collector or such      |
|   |Assistant or Deputy          |Assistant or Deputy    |
|   |Collector.                   |Collector who may be   |
|   |                             |invested with powers of|
|   |                             |the Collector by the   |
|   |                             |State Government in    |
|   |                             |this behalf            |
|3. |Collector 1 (including the   |Divisional             |
|   |Collector of Bombay) or      |Commissioner.          |
|   |Assistant/Deputy Collector   |                       |
|   |invested with the appellate  |                       |
|   |power of the Collector.,     |                       |
|4. |A person exercising powers   |Such officer as may be |
|   |conferred by section 2 (15).,|specified by the State |
|   |                             |Government in this     |
|   |                             |behalf.                |


|   |Survey Officer               |Appellate Authority     |
|1. |District Inspector of Land   |Superintendent of Land  |
|   |Records, Survey Tahsildar and|Records or such Officers|
|   |other Officer not above the  |of equal ranks as may be|
|   |rank of District Inspector of|specified by the State  |
|   |Land Records.,               |Government in this      |
|   |                             |behalf.                 |
|2. |Superintendent of Land       |Director of Land Records|
|   |Records and other Officer of |or the Deputy Director  |
|   |equal ranks.,.               |of Land Records, who may|
|   |                             |be invested with the    |
|   |                             |powers of Director of   |
|   |                             |Land Records by the     |
|   |                             |State Government in this|
|   |                             |behalf.                 |


26.   Section 257 is the relevant provision which deals with  the  power  of
State Government and of certain revenue and survey officers to call for  and
examine the records and proceedings of Subordinate  Officers.   Section  257
reads as under:-
“257. Power of State Government and of certain revenue and  survey  officers
to call for and examine records and proceedings of subordinate officers.
(1) The State Government and any revenue of survey officer, not inferior  in
rank to an Assistant  or  Deputy  Collector  or  a  Superintendent  of  Land
Records, in their respective departments,  may  call  for  and  examine  the
record of any inquiry or the  proceedings  of  any  subordinate  revenue  or
survey officer, for the purpose of satisfying  itself  or  himself,  as  the
case may be, as to the legality  or  propriety  of  any  decision  or  order
passed, and as to the regularity of the proceedings of such officer.
(2) A Tahsildar, a Naib-Tahsildar, and a District Inspector of Land  Records
may in the same manner call for and examine the proceedings of  any  officer
subordinate to them in any matter in which neither a formal  nor  a  summary
inquiry has been held.
(3)If in any case, it shall appear to the State Government, or  any  officer
referred to in sub-section (1) or  sub-section  (2)  that  any  decision  or
order  or  proceedings  so  called  for  should  be  modified,  annulled  or
reversed, it or he may pass such order thereon as it or he deems fit.
Provided that, the State Government  or  such  officer  shall  not  vary  or
reverse any order affecting any question of right  between  private  persons
without having to the parties interested notice to appear and  to  be  heard
in support of such order.
Provided further that, an Assistant of Deputy Collector  shall  not  himself
pass such order in any matter in which a formal inquiry has been  held,  but
shall submit the record with his opinion to the Collector,  who  shall  pall
such order thereon as he may deem fit.”


27.   A bare  reading  of  the  aforesaid  provision  would  show  that  the
provision uses the word ‘and’ for State Government  but  for  other  Revenue
officers it uses the word ‘or’.  The language and  the  words  used  in  the
said  provision  suggest  that  jurisdiction  of  the  State  Government  is
concurrent with the jurisdiction of other Revenue officers in  deciding  the
revision.  Hence, even if one party goes to the  Commissioner  in  revision,
the  State  Government  can  still  be  approached  under  Section  257  for
revision.  The power of revision exercised by any Revenue officer  including
the Commissioner is a proceeding by a  subordinate  officer  and  the  State
Government can satisfy itself as  to  the  legality  and  propriety  of  any
decision including the order passed in revision by the Revenue officers.

28.   Further, in view of the fact that  State  Government  itself  appoints
the Revenue officers including the Commissioner  under  the  scheme  of  the
Code and all Revenue officers are subordinate to  the  State  Government  as
per Section 11 of the Act, and even the Chief Controlling Authority  in  all
matters connected with the land revenue in his Division is vested  with  the
Commissioner,  they  are  subject  to  the  superintendence,  direction  and
control of the State Government as provided under Section  5  of  the  Code.
The power of the State Government has further been widened  by  Section  259
of the Code, which reads as under:-
“259. Rules as to decisions or orders expressly made final

      Whenever in this Code, it is provided that a decision or  order  shall
be final or conclusive, such provision shall mean that no appeal  lies  from
any such decision or order; but it shall be lawful to the  State  Government
alone to modify, annul or reverse any  such  decision  or  order  under  the
provision of Section 257.”

29.   The aforesaid provision makes it clear that even if  the  decision  is
considered to be final,  the  State  Government’s  power  to  call  for  and
examine the record and proceedings of subordinate  officers  is  saved.   In
other words, the State Government in exercise of its revisional as  well  as
general power of superintendence and control can  call  for  any  record  of
proceedings and consider the legality and propriety of the orders passed  by
the Revenue officers under Section 247 or 257 of the Code.

30.   From perusal of the entire scheme of the Code including  Section  257,
it is manifest that the revisional powers are not only  exercisable  by  the
State Government but also by  certain  other  Revenue  officers.   There  is
nothing in  the  Code  to  suggest  that  if  these  revisional  powers  are
exercised by a Revenue officer who has jurisdiction, it  cannot  be  further
exercised by a superior Revenue officer or by the State Government.  A  fair
reading of Sections 257 and 259  suggests  that  if  revisional  powers  are
exercised by a  Revenue  officer  having  jurisdiction  to  do  so,  further
revisional power can be exercised by the superior officer or  by  the  State
Government.

31.   A similar question came for consideration before  this  Court  in  the
case of Ishwar Singh vs. State of Rajasthan and Others,  (2005)  2  SCC  334
under the Rajasthan Cooperative  Societies  Act,  1965.   In  that  Ac,t  by
Section 128 power was conferred upon the State Government and the  Registrar
to call for and examine the records of any enquiry  or  proceedings  of  any
other  matter, of any  officer subordinate  to  them,  for  the  purpose  of
satisfying themselves as to the legality or propriety  of  any  decision  or
order passed by such officer.  It was submitted by the counsel that  Section
128   related  to  two  authorities  i.e.  the  State  Government  and   the
Registrar.  In  fact  the  two  authorities  are  interchangeable.   If  one
authority exercises revisional power, the other authority  logically  cannot
have exercised such power. Hence, it was argued  that  second  revision  was
not maintainable. Rejecting the submission this Court held:-
“20. Sub-section (2) of Section 124 provides that if the decision  or  order
is made by the Registrar, appeal lies to the Government and if the  decision
or order is made by any other person, or a cooperative society,  the  appeal
lies to the Registrar. Therefore, under Chapter XIII a clear distinction  is
made between the State Government and the Registrar.  The  test  is  whether
the two authorities with concurrent revisional  jurisdiction  are  equal  in
rank. It is, therefore, not correct as contended by learned counsel for  the
appellant that the  two  authorities  i.e.  the  State  Government  and  the
Registrar  are  interchangeable.  The  power  of  the  Government  and   the
Registrar in terms of Section 128 excludes  matters  which  are  covered  by
Section 125 i.e. revision by the Tribunal.”


32.   Considering  the  entire  scheme  of  the  Code,  and  the  provisions
contained in Sections 257 and 259, we are of the definite opinion  that  the
Minister concerned of the State Government can entertain second revision  to
satisfy the legality and propriety  of  the  order  passed  by  the  Revenue
Officer.  The Division Bench  of  the  Bombay  High  Court  has  elaborately
discussed the question and passed the impugned order  holding  that  Section
257 confers jurisdiction to the State Government to entertain  its  revision
against the order passed by any Revenue  Officer  either  in  appeal  or  in
revision.  We find no infirmity in the impugned order  passed  by  the  High
Court. Hence, this appeal has no merit which is accordingly dismissed.

33.   Before parting with the order, we must make it clear that in  view  of
the request made by the appellant before the High Court not  to  enter  into
the merit of the case since the party may prosecute their  remedies  in  the
Civil Court for adjudication, we have not expressed any opinion with  regard
to the merit of the case of the parties. The  parties  may  prosecute  their
remedies in Civil Court in accordance with law.



                                                              …………………………….J.
                                                                (M.Y. Eqbal)



                                                              …………………………….J.
                                                               (C. Nagappan)
New Delhi
November 06, 2015

The question of adducing any kind of oral evidence to substantiate the plea or stand or stance does not arise. It has to be shown from the proceedings carried on before the arbitrator and the evidence adduced before the arbitrator. Evidence cannot be adduced in court to substantiate the challenge on the score of legal misconduct. We are not entering upon any discussion pertaining to moral misconduct as that is not the issue in the case at hand. The decision in Fiza Developers and Inter-Trade Private Limited (supra) has been rendered by this Court while interpreting Section 34 of the 1996 Act. The context being different, we are not inclined to apply the principles enumerated therein to the objection filed under Sections 30 and 33 of the 1940 Act, for the simon pure reason that the authorities are plenty to make it limpid that the issue of legal misconduct on the part of the arbitrator should be manifestly discernable from the record. In the instant case, the High Court has granted liberty to the respondent herein to examine its General Manager to substantiate its claim and further opining that the said evidence should be considered within the parameters of Sections 30 and 33 of the 1940 Act. Therefore, we have clearly opined that to substantiate a stance of legal misconduct on the part of the arbitrator, examination of any witness in court is impermissible. It is because it must be palpable from the proceedings and the learned single Judge has already directed that the proceedings before the arbitrator to be requisitioned by the civil court. Least to say, it will be open for the respondent to establish the ground of legal misconduct from the arbitral proceedings. We may hasten to add that we have not said anything as regards legal misconduct pertaining to the present case, although we have referred to certain authorities as regards the legal misconduct.In view of the aforesaid premises, the appeal is allowed in part as far as it grants permission/liberty to the respondent to examine any witness in court. The learned Civil Judge would requisition the records from the learned arbitrator, if not already done, and the respondent would be at liberty to advance its arguments for pressing the factum of misconduct from the said records. There shall be no order as to costs.

REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.  9187  of 2015
                        (@ SLP(C) NO. 34309 OF 2014)


M/s Cochin Shipyard Ltd.                     ...   Appellant

                                Versus

M/s Apeejay Shipping Ltd.               ...  Respondent




                               J U D G M E N T



Dipak Misra, J.
       In this Appeal, by special leave, the  appellant  calls  in  question
the legal tenability of the order passed by the learned single Judge of  the
High Court of Kerala in O.P. (C) No. 482 of  2013  whereby  he  has  granted
liberty to the respondent to  substantiate  its  objection  preferred  under
Sections 30 and 33 of the Arbitration Act,  1940  (for  brevity,  “the  1940
Act”) by adducing evidence which would be considered within  the  ambit  and
scope of the aforesaid provisions.
2.    The facts which are essential to be stated  for  the  adjudication  of
this appeal are that an agreement was entered into between  the  parties  on
29.11.1980.  As  per  the  terms  and  conditions  of  the  agreement,   the
appellant, a Government undertaking, had  agreed  to  build  and  deliver  a
cargo ship to the respondent for the price of  Rs.  32.527  crores.  Certain
differences  arose  between  the  parties  which  led  to   an   arbitration
proceeding  and  a  former  Judge  of  this  Court  was  appointed  as   the
arbitrator/sole umpire to resolve the  disputes  between  the  parties.   As
facts would unveil, the learned arbitrator after holding series of  sittings
passed an award on 15.07.2009.  After  the  award  was  sent  to  the  civil
court, the claimant-appellant moved the Court for  passing  a  decree  under
Section 17 of the 1940 Act in terms of the award and  the  respondent  filed
O.P. (Arb.) No. 30 of 2009 under Sections 30 and 33 to set aside the  award.
During the pendency of  the  said  petition,  the  respondent  almost  after
expiry of two years filed an application, that is, I.A.  No.  5625  of  2011
seeking permission  to  examine  the  learned  arbitrator  and  the  General
Manager of the respondent as witnesses. The learned  Additional  Subordinate
Judge, vide order dated 23.12.2011, rejected the  application  holding  that
there was no justification to examine the arbitrator; that the  Court  while
considering the objections under Sections 30 and 33 of  the  1940  Act  does
not sit in appeal over the arbitrator’s  award;  that  the  Court  does  not
assess or re-appreciate the evidence; that the award passed by  the  learned
arbitrator can only be assailed on the grounds as engrafted  under  Sections
30 and 33 of the 1940 Act; and that no reason  had  been  disclosed  by  the
respondent, the applicant before  the  Subordinate  Judge,  to  examine  the
witness No. 2, that is, the General Manager.
3.    The aforesaid rejection of the application constrained the  respondent
to file a Writ Petition before the High Court which concurred with the  view
expressed by the court below opining that there was no necessity to  examine
the arbitrator as a witness as more than five years had  elapsed  since  the
award  was  passed.  The  High  Court  further  appreciated  the   reasoning
expressed by the rule making Court and ruled that even if  umpire  would  be
examined, no fruitful purpose will be  served  and,  accordingly,  gave  the
stamp of approval to the same.  However, the High Court granted  liberty  to
the writ petitioner to produce other available evidence to substantiate  its
claim and specifically permitted to examine its employee  as  a  witness  in
the proceeding.  The High Court further observed that his evidence would  be
appreciated bearing in mind the scope of Sections 30 and 33 of the 1940  Act
and, accordingly, modified the order passed  by  the  civil  court.   Be  it
noted, further liberty was granted to summon  the  entire  record  including
the orders passed in the course of the arbitral proceeding.
4.    At the very outset, we are obliged to state that  the  respondent  has
not challenged the order passed by the High Court and, therefore, as far  as
examination of the umpire is concerned, it stands  foreclosed.   As  far  as
liberty to examine the witness  to  substantiate  the  claim  for  the  rule
making Court is concerned, it is contended  by  Mr.  Ranjit  Kumar,  learned
Solicitor General for the appellant, that the respondent  has  been  allowed
to examine the employee as a witness to prove the misconduct of the  learned
arbitrator in conducting of the arbitral  proceedings  as  the  grounds  had
been raised pertaining to grant of adequate opportunity  to  the  respondent
and the recording of minutes. In essence, the stand of  the  respondent  was
that there had been violation of the principles of the  natural  justice  by
the learned arbitrator.   It is urged by the learned senior counsel for  the
appellant that it is  totally  unwarranted  to  examine  witnesses  for  the
purpose of  substantiating  the  claims  before  the  Court  which  has  the
authority to accept the objection under Sections 30 and 33 of the  1940  Act
or to pass a decree in terms of the award.  In essence, the  attack  on  the
order by Mr. Ranjit Kumar is that the witness No. 2, General Manager,  could
not have been permitted by the High Court to be examined  as  a  witness  in
the Court to prove any kind of legal misconduct, for  the  same  has  to  be
demonstrated from the records of the arbitral proceedings  as  well  as  the
evidence adduced before the learned arbitrator.   It  is  further  contended
that the witness sought to be examined had already been examined before  the
learned arbitrator and his evidence can  be  read  by  the  trial  court  to
discern  and  decide  if  there  is  any  perversity  of  approach  by   the
arbitrator.  Learned Solicitor General,  to  bolster  his  submissions,  has
placed  reliance  on  Arosan  Enterprises  Ltd.   v.   Union  of  India  and
Another[1], Inder Sain Mittal  v.  Housing  Board,  Haryana  and  Others[2],
State of U.P.  v. Allied Constructions[3], State Bank of India  v.  Ram  Das
and Another[4], D.D. Sharma v. Union of  India[5],  Hari  Om  Maheshwari  v.
Vinitkumar Parikh[6], Bhagawati Oxygen Ltd.   v.  Hindustan  Copper  Ltd.[7]
and Oil and Natural Gas Corporation v. Wig Brothers Builders  and  Engineers
Private Limited[8].
5.    Resisting the aforesaid submissions, Mr. Vivek Tankha, learned  senior
counsel for the respondent, would contend that adducing of oral evidence  in
a proceedings under Sections 30 and 33 of the 1940  Act  is  not  prohibited
and in the obtaining factual matrix the High Court has  correctly  exercised
its discretion by granting the liberty to  the  respondent  and,  therefore,
the order cannot be found fault with. It is urged by him that  to  establish
the legal misconduct on the part of the learned arbitrator  as  asserted  by
the respondent, it is necessary to examine the General Manager  so  that  he
can throw light on the proceedings before the  learned  arbitrator  and,  in
fact, that is the only way it can be proven.  It is  further  propounded  by
him that this Court in Fiza Developers and Inter-Trade  Private  Limited  v.
AMCI (India) Private Limited and Another[9] while dealing  with  Section  34
of the Arbitration and Conciliation Act, 1996 (for brevity, “the 1996  Act”)
has clearly held that evidence can be adduced.  Learned senior  counsel  has
drawn inspiration from the authorities in K.P. Poulose v.  State  of  Kerala
and Another[10], Union of India v. Jain Associates and Another[11] and  Food
Corporation of India v. Chandu Construction and Another[12].
6.    We have already indicated hereinbefore that the rule making Court  had
declined the prayer to  examine  the  learned  arbitrator  as  well  as  the
General Manager.  The said order was the subject matter  of  assail  in  the
Writ Petition under Article 227 of the  Constitution.   We  have  noted  the
submissions of the  learned  senior  counsel  for  the  appellant  that  the
application preferred under Section 151 of the Code of Civil Procedure  read
with Order XVI Rule  1  of  the  Code  of  Civil  Procedure  was  filed  for
substantiating the plea of legal  misconduct  alleged  in  the  application.
The  learned  senior  counsel  has  drawn  our  attention  to  the   various
paragraphs of the petition and the relevant clauses to highlight  the  right
to call for the learned arbitrator as a witness has  been  foreclosed.   The
purpose to examine the General Manager, serial No. 2  in  the  list,  is  to
substantiate its stand/claim  as  has  been  observed  by  the  High  Court.
Therefore, the thrust  of  the  matter  is  whether  on  the  basis  of  the
allegations  of  legal  misconduct  the  High  Court  should  have   allowed
examination of the witness.
7.    To appreciate the controversy in proper perspective, it  is  pertinent
to refer to Sections 30 and 33 of the 1940 Act. They read as under:-
      “Section 30. Grounds for setting aside award.–
An award shall not be set aside except on  one  or  more  of  the  following
grounds, namely:-

(a)  that  an  arbitrator  or  umpire  has  misconducted  himself   or   the
proceedings;

(b) that an award has been made after the issue of an  order  by  the  Court
superseding the arbitration or after  arbitration  proceedings  have  become
invalid under section 35;

(c) that an award has been improperly procured or is otherwise invalid.


Section 33. Arbitration agreement or award to be contested by  application.–
Any party to an arbitration agreement  or  any  person  claiming  under  him
desiring to challenge the existence or validity of an arbitration  agreement
or an award or to have the effect of either determined shall  apply  to  the
Court and the Court shall decide the question on affidavits:


Provided that where the Court deems it just and expedient, it may  set  down
the application for hearing on other evidence also, and  it  may  pass  such
orders for discovery and particulars as it may do in a suit.”

8.    In the present case, the issue that has travelled to this  Court  does
not even remotely relate to Section 33 of the 1940 Act.  It  centres  around
Section 30 of the 1940 Act.   Though  certain  grounds  have  been  provided
under Section 30, we only require to deal with the ambit and sweep of  legal
misconduct on the part of the  learned  arbitrator  inasmuch  as  there  are
allegations as regards non-consideration of relevant  documents,  ascription
of reasons of passing of the award which do not flow from  the  material  on
record and  further the  conduct  of  the  arbitrator  during  the  arbitral
proceedingsin recording of the minutes.  The  assail  does  not  pertain  to
personal misconduct or moral misconduct of the learned arbitrator.
9.    In this regard, reference to a  three-Judge  Bench  decision  in  Firm
Madanlal Roshanlal Mahajan v. Hukumchand Mills  Ltd.,  Indore[13]  would  be
apposite. In the said case, issue arose with regard to misconduct.   It  was
contended before this Court  that  the  learned  arbitrator  was  guilty  of
misconduct as he had amended an issue behind  the  back  of  the  appellant.
Repelling the said submission, the Court opined :-
“Counsel then submitted that by amending an issue behind the back   of   the
appellant,  the arbitrator  was    guilty  of  misconduct.  This  contention
has no force. The  arbitrator had  raised  two  issues.   The  second  issue
referred  to the respondent's claim in respect of 46-1/2 bales  a claim  for
loss in respect of the bales.  At the time of the writing of the award,  the
arbitrator corrected this issue so as to show that  the  claim was  for  the
price  of  the   bales.  By  this  amendment,  the  appellant  suffered   no
prejudice. The parties well knew that the respondent claimed the  price   of
46-1/2 bales  and  fought the case before  the       arbitrator   on    that
footing.”

10.   In the said authority, the Court referred to the decision in  Champsey
Bhara & Company v. Jivraj  Balloo  Spinning  and  Weaving  Company  Ltd.[14]
wherein it has been laid down :-

"An  error  in law on the face  of  the  award  means,  in their  Lordship's
view,   that  you  can  find   in  the   award  or   a   document   actually
incorporated  thereto,  as  for  instance  a  note       appended   by   the
arbitrator  stating  the  reasons       for   his   judgment,   some   legal
proposition which      is  the  basis  of  the  award  and  which   you  can
then say is erroneous."

      Be it noted, the proposition laid down in  Champsey  Bhara  &  Company
(supra) has also been followed in Firm Madanlal Roshanlal Mahajan (supra).
11.   In K.P. Poulose (supra) while dealing with the concept of  misconduct,
a three-Judge Bench was dealing with the speaking award  where  the  reasons
had been ascribed by the learned arbitrator.  A contention was  raised  that
the learned arbitrator was guilty of  legal  misconduct  in  conducting  the
proceedings, for two very material documents were absolutely ignored by  the
arbitrator resulting in miscarriage of justice.  The Court referred  to  the
said two documents and took note of the finding recorded by  the  arbitrator
in the award but  made  an  observation  which  was  inconsistent  with  his
conclusion that the contractor  had  no  right  to  extra  payment  for  the
particular work.  In  that  context,  the  Court  proceeded  to  observe  as
follows:-
“We now come to the award. Although the arbitrator has held  that  “jetting,
however, is not an authorised extra covered by the agreement”, he  has  made
the  following  significant  observation  which  is  inconsistent  with  his
conclusion that the contractor has  no  right  for  extra  payment  for  the
jetting:

“The Chief Engineer has rejected the claims of the contractor on grounds  of
non-inclusion  of  this  (jetting)  in  the  agreement  which  was  executed
subsequent to the direction issued by the department to adopt  jetting.  The
Chief Engineer’s decision totally ignores the next sentence in  that  letter
‘Meanwhile you may execute the agreement’. By this  sentence  the  issue  of
extra payment for jetting is left open  even  after  the  execution  of  the
agreement.”

If the above is the conclusion of the arbitrator, rejection of the claim  on
the ground that “jetting, however, is not an  authorised  extra  covered  by
the agreement” cannot be anything but rationally  inconsistent.  The  award,
therefore, suffers from a manifest error apparent ex facie.”

12.   After so stating, the three-Judge  Bench  opined  that  under  Section
30(a) of the 1940 Act an award can be  set  aside  when  an  arbitrator  has
misconducted himself or the proceedings and misconduct under  Section  30(a)
has not  a  connotation  of  moral  lapse.   It  further  observed  that  it
comprises legal misconduct which is complete if the arbitrator on  the  face
of the award arises at an inconsistent conclusion even on  his  own  finding
or arrives at a decision by  ignoring  the  very  material  documents  which
throw abundant light on the controversy to help a just  and  fair  decision.
On that backdrop, the Court opined that there was a legal misconduct.
13.   In Jain Associates  (supra), the Court referred to  the  authority  in
K.P. Poulose (supra) and Dandasi Sahu v. State of  Orissa[15]  and  observed
thus:-
“... The arbitrator/umpire may not be guilty of any act which  can  possibly
be construed as indicative of partiality or unfairness. Misconduct is  often
used, in a technical sense denoting irregularity and not guilt of any  moral
turpitude, that is, in the sense of  non-application  of  the  mind  to  the
relevant aspects of the dispute in  its  adjudication.  In  K.V.  George  v.
Secretary to Government, Water & Power Department, Trivandrum, (1989) 4  SCC
595, this Court held that the arbitrator had  committed  misconduct  in  the
proceedings by making an award without adjudicating the  counter-claim  made
by the respondent...”


14.   In this regard we may usefully refer to the authority in Paradip  Port
Trust and Others v. Unique Builders[16].  In the  said  case,  a  contention
was raised that the award was passed in violation of  principle  of  natural
justice inasmuch as, certain documents were received without notice  to  the
Port Trust.  Such a contention was raised before  the  High  Court  and  the
said stand was abandoned after perusal of the order sheet of the  arbitrator
which showed that at each stage adequate opportunity was given to  both  the
parties.   Thereafter  the  court  referred  to  the  principles  stated  in
Jivarajbhai Ujamshi Sheth  v.  Chintamanrao  Balaji[17],  Puri  Construction
Pvt. Ltd. v. Union of India[18], State of Orissa v. M/s  Lall  Brothers[19],
Gujarat Water Supply and Sewerage Board v.  Unique  Erectors  (Gujarat)  (P)
Ltd. and Another[20], Rajasthan State Mines and  Minerals  Ltd.  v.  Eastern
Engineering Enterprises and Another[21] and opined thus:-
“…  It  is  not  a  case  where  the  arbitrator  has   acted   arbitrarily,
irrationally,  capriciously  or  independently  of  the  contract.   It   is
difficult for us to take a view that there has been a  deliberate  departure
or conscious disregard  of  the  contract  to   say   that   the  arbitrator
misconducted himself...”

15.   In the case of Ispat Engineering & Foundry Works,  B.S.  City,  Bokaro
v. Steel Authority of India Ltd., B.S. City, Bokaro[22], it  has  been  held
that reappraisal of evidence by the  court  is  not  permissible  and  as  a
matter of fact, exercise of power to reappraise the evidence is  unknown  to
a proceeding under Section 30 of the Arbitration Act. The court as a  matter
of fact cannot substitute its own evaluation  and  come  to  the  conclusion
that the arbitrator had acted contrary to the bargain between the parties.
16.   At this juncture, we may refer to some other  authorities  as  regards
the scope of Section 30 of the 1940 Act.  In Allied Constructions   (supra),
a three-Judge Bench after referring to earlier judgments has opined that  an
award passed by an arbitrator  can  be  set  aside  only  if  one  or  other
condition contained in Sections 30 and 33 of  the  1940  Act  is  satisfied.
The Court further opined that the term provided for setting aside  an  award
under Section 30 is restrictive in its operation and  unless  one  or  other
condition contained in Section 30 is  satisfied,  an  award  cannot  be  set
aside, for the arbitrator is a Judge chosen by the parties and his  decision
is final.  It has been further observed that even in a case where the  award
contains reasons, the interference therewith would still  be  not  available
within the jurisdiction of the court unless,  of  course,  the  reasons  are
totally perverse or the judgment is based on a wrong proposition of law  and
further an error apparent on the face of the record would not  imply  closer
scrutiny of the merits of documents and materials on record.
17.   In Hari Om Maheshwari  (supra),  the  Court  after  referring  to  the
decisions in  Arosan  Enterprises  Ltd.  (supra)  and  Allied  Constructions
(supra) opined thus:-
“From the above it is seen that the jurisdiction of the  court  entertaining
a petition or application for setting aside an award  under  Section  30  of
the Act is extremely limited to the grounds mentioned therein and we do  not
think that grant or refusal of an adjournment by an arbitrator comes  within
the parameters of Section 30 of the Act...”

18.   In Wig  Brothers  (supra)  while  dealing  with  the  challenge  under
Sections 30 and 33 of the 1940 Act, the Court  opined  that  a  court  while
considering a challenge to an award under Sections 30 and  33  of  the  1940
Act, does not sit as an appellate  court  and  it  cannot  reappreciate  the
material on record.  The Court further proceeded to state that an  award  is
not open to challenge on the ground that the arbitrator had reached a  wrong
conclusion or had failed to appreciate some facts, but if there is an  error
apparent on the face of the award or if there is misconduct on the  part  of
the arbitrator or legal misconduct  in  conducting  the  proceedings  or  in
making the award, the court will interfere with the  award.    In  the  said
case reference was made to Rajasthan State Mines and Minerals  Ltd.  (supra)
and certain passages were quoted.  We think it seemly to reproduce the  said
paragraphs:-
“22. … The rates agreed were firm, fixed and  binding  irrespective  of  any
fall or rise in the cost of the work covered by  the  contract  or  for  any
other reason or any ground whatsoever. It is specifically  agreed  that  the
contractor will not be  entitled  or  justified  in  raising  any  claim  or
dispute because of increase in cost of expenses on  any  ground  whatsoever.
By ignoring  the  said  terms,  the  arbitrator  has  travelled  beyond  his
jurisdiction as his existence depends upon the agreement  and  his  function
is to  act  within  the  limits  of  the  said  agreement.  This  deliberate
departure from the contract amounts not only to manifest  disregard  of  the
authority or misconduct on his part but  it  may  tantamount  to  mala  fide
action.

23. It is settled law that the arbitrator is the creature  of  the  contract
between the parties and hence if  he  ignores  the  specific  terms  of  the
contract, it would be a question of  jurisdictional  error  which  could  be
corrected by the court and for that limited purpose  agreement  is  required
to be considered. …”

19.   We have referred to series of decisions to appreciate the  concept  of
misconduct and how a party is entitled to make it the fulcrum of  assail  in
his objection under Sections 30 and 33 of the 1940 Act.  Misconduct, as  has
been laid down, does not always have a moral connotation. To  elaborate,  it
may not have any connection with  the  individual/personal  conduct  of  the
arbitrator. The said conduct would be in sphere  of  moral  misconduct.   As
far as legal misconduct is concerned, as the authorities would  demonstrate,
the same must be manifest  or  palpable  from  the  proceedings  before  the
arbitrator. To elaborate, a person urging the  ground  of  legal  misconduct
has to satisfy the court from the records of the arbitral  proceedings  that
there has been a legal misconduct  on  the  part  of  the  arbitrator  as  a
consequence of which the award gets vitiated.  The question of adducing  any
kind of oral evidence to substantiate the plea or stand or stance  does  not
arise.  It has to be shown  from  the  proceedings  carried  on  before  the
arbitrator and the evidence adduced before the arbitrator.  Evidence  cannot
be adduced in court to substantiate the challenge  on  the  score  of  legal
misconduct.  We are not entering upon any  discussion  pertaining  to  moral
misconduct as that is not the issue in the case at  hand.  The  decision  in
Fiza Developers and Inter-Trade Private Limited (supra)  has  been  rendered
by this Court while interpreting Section 34 of the 1996  Act.   The  context
being different, we are not inclined  to  apply  the  principles  enumerated
therein to the objection filed under Sections 30 and 33  of  the  1940  Act,
for the simon pure reason that the authorities are plenty to make it  limpid
that the issue of legal misconduct on the part of the arbitrator  should  be
manifestly discernable from the record.
20.   In the instant case,  the  High  Court  has  granted  liberty  to  the
respondent herein to examine its General Manager to substantiate  its  claim
and further opining that the said evidence should be considered  within  the
parameters of Sections 30 and 33  of  the  1940  Act.   The  learned  senior
counsels for the parties have  pressed  their  argument  relating  to  legal
misconduct. Both the learned senior counsels for the parties have  construed
the  order  that  the  said  liberty  has  been  granted  to  establish  the
misconduct and precisely that is the subject matter of challenge before  us.
 Therefore, we have clearly opined that to substantiate a  stance  of  legal
misconduct on the part of the arbitrator,  examination  of  any  witness  in
court is impermissible.   It  is  because  it  must  be  palpable  from  the
proceedings and the learned single  Judge  has  already  directed  that  the
proceedings before the arbitrator to be requisitioned by  the  civil  court.
Least to say, it will be open for the respondent to establish the ground  of
legal misconduct from the arbitral proceedings.  We may hasten to  add  that
we have not said anything as regards  legal  misconduct  pertaining  to  the
present case, although we have referred to certain  authorities  as  regards
the legal misconduct.
21.    In view of the aforesaid premises, the appeal is allowed in  part  as
far as it  grants  permission/liberty  to  the  respondent  to  examine  any
witness in court.  The learned Civil Judge  would  requisition  the  records
from the learned arbitrator, if not already done, and the  respondent  would
be  at  liberty  to  advance  its  arguments  for  pressing  the  factum  of
misconduct from the said records.  There shall be no order as to costs.
                                             .............................J.
                                                               [Dipak Misra]


                                             ..........................., J.
                                                          [Prafulla C. Pant]
New Delhi
November 06, 2015

-----------------------
[1]    (1999) 9 SCC 449
[2]    (2002) 3 SCC 175
[3]    (2003) 7 SCC 396
[4]    (2003) 12 SCC 474
[5]    (2004) 5 SCC 325
[6]    (2005) 1 SCC 379
[7]    (2005) 6 SCC 462
[8]    (2010) 13 SCC 377
[9]    (2009) 17 SCC 796
[10]   (1975) 2 SCC 236
[11]   (1994) 4 SCC 665
[12]   (2007) 4 SCC 697
[13]   AIR 1967 SC 1030
[14]   AIR 1923 PC 66
[15]   (1990) 1 SCC 214
[16]   (2001) 2 SCC 680
[17]   (1964) 5 SCR 480
[18]   (1989) 1 SCC 411
[19]   (1988) 4 SCC 153
[20]   (1989) 1 SCC 532
[21]   (1999) 9 SCC 283
[22]   (2001) 6 SCC 347

-----------------------
20

the High Court that in order to be an eligible candidate, the appellant should have done B.Sc. in Forestry and since he had not done so, he was not considered as an eligible candidate. = In our considered view, firstly, if there was any ambiguity or vagueness noticed in prescribing the qualification in the advertisement, then it should have been clarified by the authority concerned in the advertisement itself. Secondly, if it was not clarified, then benefit should have been given to the candidate rather than to the respondents. Thirdly, even assuming that there was no ambiguity or/and any vagueness yet we find that the appellant was admittedly having B.Sc. degree with Forestry as one of the major subjects in his graduation and further he was also having Masters degree in Forestry, i.e., M.Sc.(Forestry). In the light of these facts, we are of the view that the appellant was possessed of the prescribed qualification to apply for the post in question and his application could not have been rejected treating him to be an ineligible candidate for not possessing prescribed qualification. 25. In our view, if a candidate has done B.Sc. in Forestry as one of the major subjects and has also done Masters in the Forestry, i.e., M.Sc.(Forestry) then in the absence of any clarification on such issue, the candidate possessing such higher qualification has to be held to possess the required qualification to apply for the post. In fact, acquiring higher qualification in the prescribed subject i.e. Forestry was sufficient to hold that the appellant had possessed the prescribed qualification. It was coupled with the fact that Forestry was one of the appellant’s major subjects in graduation, due to which he was able to do his Masters in Forestry. 26. Learned counsel for the respondents contended that if the appellant is held eligible on the basis of his qualification, the candidates alike him would be deprived of applying for the said post. The argument, in our view, has no merit. 27. In the first place, no such candidate or/and applied for the post and secondly, the argument being wholly hypothical in nature cannot be accepted. 28. In the light of foregoing discussion, we are not in agreement with the view taken by the High Court when it was held that the appellant did not possess the prescribed qualification. This finding, as held above, is unsustainable and thus cannot be upheld. The appeal thus succeeds and is accordingly allowed. Impugned order is set aside. As a consequence, the writ petition filed by the appellant succeeds and is accordingly allowed. Since the appellant has already cleared the written examination and had appeared in the interview and further one post was directed to be kept reserved for him by the orders of the High Court in the event, the appellant succeeds in this litigation, we consider it appropriate to direct the respondents to issue necessary appointment order in favour of the appellant for the said post after ensuring compliance of the procedural formalities within one month from the date of receipt of this judgment.

                                                               REPORTABLE  [
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.  13368  OF 2015
                   (ARISING OUT OF SLP (C) No. 26131/2013)


Parvaiz Ahmad Parry                     …..….Appellant(s)


                             VERSUS


State of Jammu & Kashmir
& Ors.                                  ……Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1.    Leave granted.
2.    This appeal is filed  against  the  final  judgment  and  order  dated
10.05.2013 passed by the High Court of Jammu & Kashmir at  Jammu  in  L.P.A.
No. 102 of 2012 whereby the Division Bench of the High Court  dismissed  the
appeal filed by the appellant herein  while  upholding  the  judgment  dated
12.11.2012 passed by the learned Single Judge of the High Court in  SWP  No.
2699 of 2010.
3.    In order to appreciate the issues involved in the  appeal,  which  lie
in a narrow compass, few relevant facts need mention infra.
4.    The appellant completed B.Sc.  with  Forestry  as  one  of  the  major
subjects from Garhwal University, Uttarakhand in the year  2001.  Thereafter
he also completed his M.Sc.(Forestry) from the same University in  the  year
2003.
5.    The appellant also passed  the  National  Eligibility  Test  (NET)  in
Forestry from Indian Council of Agricultural Research  (ICAR)  in  the  year
2005-2006.
6.    The J & K Forest Service (Gazetted) Recruitment Rules, 1970 (in  short
‘the Rules’) lays down the eligibility qualifications for the post of  Range
Officer Grade-I (Forest) which is “B.Sc. Forestry  or  its  equivalent  from
any University recognized by the Indian Council of  Agricultural  Research”.

7.    The Indian Council of Forest Research & Education (in  short  “ICFRE”)
issued Notification dated 15.01.1999 clarifying that the syllabus  of  State
Forest Service (in short ‘SFS’) Colleges was  very  much  akin  to  that  of
Indira  Gandhi  National  Forest  Academy  (in  Short  “IGNFA”),  therefore,
considering  the  high  standard  of  training  and  education  in  the  SFS
Colleges, the ICFRE resolved that “SFS College  Diploma  to  be  treated  as
equivalent to M.Sc.(Forestry).”
8.    By letter dated 15.02.2007, the Forest Research  Institute  (in  short
‘FRI’) informed the Department of Forest, J & K  Government,  that  the  SFS
Colleges Diploma be treated as equivalent to M.Sc. (Forestry).  In turn,  on
12.03.2007, the Forest Department informed  the  same  to  the  J.K.  Public
Service  Commission  (JKPSC)  endorsing  the  opinion  of  the   FRI   dated
15.02.2007.
9.    By Notification dated 20.07.2007,  the JKPSC advertised 23 posts of  J
& K Forest Service Range Officers Grade-I (Forest) and invited  applications
from the eligible candidates.  The eligibility  qualification  mentioned  in
the Notification was “B.Sc.(Forestry)  or  equivalent  from  any  University
recognized by the ICAR”.  The appointment to the post was to be made on  the
basis of written test, viva-voce test, walking test and medical  test.   The
appellant applied for the said post.
10.   By Notification dated 08.09.2010, the JKPSC declared the appellant  as
an ineligible candidate for appointment to the post of Range Officer  Grade-
I(Forest)  on  the  ground  that  he  does  not   possess   the   prescribed
qualification.
11.   On 07.10.2010, the appellant sent a representation to the JKPSC to re-
consider his case as  according  to  him,  he  possessed  the  qualification
prescribed  for  the  post.  On  11.10.2010,  the  appellant  sent   another
representation to the JKPSC requesting it to allow  him  to  participate  in
the selection.  Since  no  action  was  taken  on  the  representation,  the
appellant filed a petition being SWP No. 2699 of 2010 before the High  Court
for issuance of writ of certiorari for quashing the said notification  dated
08.09.2010  and  for  further  direction  to  the  JKPSC  to  allow  him  to
participate in the selection process.
12.   The learned Single Judge, by interim order dated  24.11.2010,  allowed
the appellant to appear in the written examination subject  to  the  outcome
of  the  writ  petition.   Accordingly,  the  appellant  appeared   in   the
examination.
13.   On 22.02.2011, the result of the written examination was  produced  in
the Court by the JKPSC, which declared the  appellant  as  successful.   The
learned Single Judge permitted the appellant to appear in the interview.
14.   On 22.07.2011, the JKPSC published a list of selected  candidates  who
were recommended for appointment on the basis of merit but the list did  not
reflect the name of the appellant.
15.   By order dated 12.11.2012, the  learned  Single  Judge  dismissed  the
writ petition.
16.   Against by the said order, the appellant  preferred  an  appeal  being
L.P.A. No. 102 of 2012 before the  High  Court.   Pending  disposal  of  the
appeal, the Division Bench, by interim order  dated  22.11.2012,    directed
that one post  of  Range  Officer  Grade-I  (Forest)  be  reserved  for  the
appellant.   However,  by  order  dated  10.05.2013,  the   Division   Bench
dismissed the appeal.
17.   Aggrieved by the said judgment, the appellant  preferred  this  appeal
by way of special leave before this Court.
18.   Heard learned counsel for the parties.
19.   Learned Counsel for the appellant while  assailing  the  legality  and
correctness of the impugned judgment made  two  submissions.  In  the  first
place, he contended that the writ court and the  appellate  court  erred  in
dismissing the  appellant's  writ  petition  and  the  appeal.  It  was  his
submission that the reasoning of the writ court, which was simply upheld  by
the appellate Court without examining the real  issue,  is  wholly  perverse
and being unsustainable in law deserves to  be  set  aside.  In  the  second
place, learned counsel contended that  when  admittedly  the  appellant  was
having B.Sc. degree in Forestry as one of the major subjects and further  he
had also obtained Masters degree in  Forestry,  M.Sc.(Forestry),  and  later
acquired higher qualification of Masters  degree,  i.e.,  M.Sc.  in  Natural
Resources and Environment from the University of Michigan,  USA,  he  should
have been held as an eligible candidate  for  the  post  of  J  &  K  Forest
Service Range Officers Grade-I for which he  had  applied  pursuant  to  the
advertisement.
20.   In reply, learned counsel for the respondents supported  the  impugned
judgment and contended that  no  case  is  made  out  to  interfere  in  the
impugned order and hence the appeal should be dismissed.
21.   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find  force  in  the  submissions  urged  by  the
learned counsel for the appellant.
22.   As would be clear from  the  undisputed  facts  mentioned  above,  the
minimum qualification prescribed for applying to the post of J  &  K  Forest
Service Range Officers Grade-I was "B.Sc. (Forestry) or equivalent from  any
University recognized by ICAR".  It is not disputed that the  appellant  was
to his credit a qualification of B.Sc. with Forestry as  one  of  the  major
subjects and Masters in Forestry, i.e. M.Sc.(Forestry), on the date when  he
applied for the post in question, which satisfied the  eligibility  criteria
so far as the qualification was concerned.
23.   We do not agree with the reasoning of the High Court that in order  to
be an eligible candidate, the appellant should have done B.Sc.  in  Forestry
and since he had  not  done  so,  he  was  not  considered  as  an  eligible
candidate. This reasoning, in our view, does not stand to any logic and  is,
therefore, not acceptable insofar as the facts of this case are concerned.
24.   In our considered  view,  firstly,  if  there  was  any  ambiguity  or
vagueness noticed in prescribing the  qualification  in  the  advertisement,
then it should have  been  clarified  by  the  authority  concerned  in  the
advertisement itself.  Secondly, if  it  was  not  clarified,  then  benefit
should have been given to the candidate  rather  than  to  the  respondents.
Thirdly, even assuming that there was no ambiguity or/and any vagueness  yet
we find that the appellant was admittedly having B.Sc. degree with  Forestry
as one of the major subjects in his  graduation  and  further  he  was  also
having Masters degree in Forestry, i.e., M.Sc.(Forestry).  In the  light  of
these facts, we are of the view that the appellant   was  possessed  of  the
prescribed  qualification  to  apply  for  the  post  in  question  and  his
application could not have been rejected treating him to  be  an  ineligible
candidate for not possessing prescribed qualification.
25.   In our view, if a candidate has done B.Sc. in Forestry as one  of  the
major  subjects  and  has  also  done  Masters  in   the   Forestry,   i.e.,
M.Sc.(Forestry) then in the absence of any clarification on such issue,  the
candidate possessing such higher qualification has to  be  held  to  possess
the required qualification to  apply  for  the  post.   In  fact,  acquiring
higher qualification in the prescribed subject i.e. Forestry was  sufficient
to hold that the appellant had possessed the prescribed  qualification.   It
was coupled with the fact that Forestry was one  of  the  appellant’s  major
subjects in graduation, due to which he  was  able  to  do  his  Masters  in
Forestry.
26.   Learned counsel for the respondents contended that  if  the  appellant
is held eligible on the basis of his  qualification,  the  candidates  alike
him would be deprived of applying for the said post.  The argument,  in  our
view, has no merit.
27.   In the first place, no such candidate or/and applied for the post  and
secondly,  the  argument  being  wholly  hypothical  in  nature  cannot   be
accepted.
28.   In the light of foregoing discussion, we are  not  in  agreement  with
the view taken by the High Court when it was held  that  the  appellant  did
not possess the prescribed qualification. This finding, as  held  above,  is
unsustainable and thus cannot be upheld.  The appeal thus  succeeds  and  is
accordingly allowed. Impugned order is set  aside.  As  a  consequence,  the
writ petition filed by the appellant succeeds and  is  accordingly  allowed.
Since the appellant has already cleared  the  written  examination  and  had
appeared in the interview and further one  post  was  directed  to  be  kept
reserved for him by  the  orders  of  the  High  Court  in  the  event,  the
appellant succeeds in this litigation, we consider it appropriate to  direct
the respondents to issue  necessary  appointment  order  in  favour  of  the
appellant for the said post after  ensuring  compliance  of  the  procedural
formalities within one month from the date of receipt of this judgment.



……...................................J.
                                  [J. CHELAMESWAR]


                       ..……..................................J.
                                     [ABHAY MANOHAR SAPRE]    New Delhi;
      November 06, 2015.

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