Subbiah thevar Vs. State of Tamil Nadu - Court Judgment

Excerpt:
- [j.c. shah,; k. subba rao,; k.n. wanchoo,; p.b. gajendragadkar and; raghubar dayal, jj.] the state transport authority issued a notification under the motor vehicles act, 1939, calling for applications for the grant of two stage carriage permits for the route madras to chidambaram. a large number of applications were received. the authority granted the first permit to one of the applicants and for the second it decided to call for fresh applications. the appellant, as also a number of other applicants, appealed to the state transport appellate tribunal. the tribunal confirmed the grant of the first permit and as regards the second it allowed the appeal of the appellant and directed that it should be granted to him. respondent no. 1 moved the high court under art.226 of the constitution for the issue of a writ of certiorari and the single judge who heard the matter held that the appellate tribunal had overlooked relevant considerations, and allowed irrelevant considerations to prevail and so made the rule absolute. a letters patent appeal was preferred by the appellant. the division bench affirmed the order of the single judge on the ground that the appellate tribunal had overlooked material considerations in favour of the respondent no. 1 and dismissed the appeal the appellant came to this court by special leave and it was contended on his behalf that in issuing the writ of certiorari the high court exceeded its jurisdiction under art. 226 of the constitution. held: (per gajendragadkar, wanchoo, shah and dayal jj.). the contention raised on behalf of the appellant was well founded and must prevail. a writ of certiorari is issued for correcting errors of jurisdiction committed by courts or tribunals, in cases where they exceed their jurisdiction or fail to exercise it or exercise it illegally or improperly, i.e. where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to principles of natural justice. the jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appeal. that necessarily means that the findings of fact arrived at by the inferior court or tribunal arc binding. an error of law apparent on the face of the record can, however, be corrected by a writ of certiorari, but not an error of fact however grave it may appear to be. a writ of certiorari can also be issued if it is shown that in recording a finding of fact, admissible and material evidence has, not been admitted, or inadmissible evidence affecting the impugned finding has been admitted. a finding of fact based on no evidence would also be an error of law and as such amenable to such a writ. but a finding of fact cannot be challenged in such a proceeding on the ground that the relevant and material evidence was insufficient to sustain the finding. adequacy or sufficiency of evidence or an inference of fact to be drawn from the evidence or finding of fact are entirely within the jurisdiction of the tribunal. hari vishnu kamath v. syed ahmed ishaque, [1955] 1 s.c.r. 1104, nagendra nath bora v. the commissioner of hills division and appeals, assam, [1958] s.c.r. 1240 and kaushalya devi v. bachittar singh, a.i.r. 1960 s.c. 1168, relied on. it is neither possible nor desirable to define or describe all cases of errors which can be said to be errors of law apparent on the face of the record. whether or not an error is such an error would depend on the facts and circumstances of each case and the nature and scope of the law misconstrued or contravened. it was not open to a party on the authority of the decision of this court in k.m. shanmugam v.s.r.v.s. (p) ltd., to come to the high court under art. 226 to have all questions of fact reconsidered so as to invoke the plea of 'public interest' under s. 47 of the motor vehicles act. k. m. shamnugam v. s.r.v.s. (p) ltd., 1 [1964] 1 s.c.r. 809, held inapplicable. in the present case the controversy centered round the fact whether the respondent no. 1 had a workshop at chidambaram, one of the two terminii of the route and that the tribunal had failed to duly consider some evidence in that connection. that argument was an argument related to appreciation of evidence and as such was outside the purview of a proceeding for a writ of certiorari. the high court was therefore, in error in issuing the writ of certiorari. in issuing a writ and in making it absolute, care should be taken to draw the order accurately. unless allegations are made against them, the state transport authority or the appellate tribunal should not be represented through lawyers. their position in ordinary cases is just the same as that of courts and other tribunals. per subba rao j.--where the tribunal ignores or fails to investigate a material circumstance germane to a question of public 1 sci/64—5 interest under s. 47 of the act put forward by a claimant for permit and gives a finding against him, that finding is vitiated by an error of law apparent on the face of the record and is liable to be quashed by a writ of certiorari. and the appellate tribunal failed to consider the specific claim of the respondent 1 as to the existence of his workshop at chidambaram and was, therefore, right in setting aside their orders. the high court could not be said to have exceeded its jurisdiction under art. 226 of the constitution. this was a clear case where the tribunal made a finding that was based on no evidence and was contrary to the specific claim made before it. since the first respondent had secured the highest number of marks, this claim, if substantiated, would tilt the balance in his favour. this court would not interfere in such a matter in the exercise of its extraordinary jurisdiction under art. 136 of the constitution to set aside the high court's order.mathew, j.1. in this case, on the application for special leave to appeal filed by four petitioners, we issued notice to the state of tamil nadu on the question of the propriety of sentence of death imposed upon the appellant petitioner and dismissed the application of the other petitioners.2. in pursuance to the notice the state has entered appearance. after hearing counsel on both sides, we granted special leave limited to the question of sentence and heard the appeal itself and passed an order on december 22, 1972 reducing the sentence to imprisonment for life for reasons to be given later.3. the prosecution case was as follows. p.w. 1 was running a grocery shop. accused no. 1 and his wife lakshmi used to purchase provisions from the shop. about a month prior to the date of the occurrence, pw 1 went to the house of accused no. 1 in his absence for getting an amount of rs. 2/- due to pw 1 on account of the purchase of grains from the shop. this conduct of p.w. 1 in having visited his house in his absence aroused the suspicion of accused no. 1. p.w. 1 apprehended an attack from accused no. 1 for this reason and so he left the village for the time being. during his absence from the village, a meeting of the village panchayat was held to judge the propriety of his conduct in having visited the house of accused no. 1 in his absence. p.w. 1 was found guilty and a fine of rs. 30/- was imposed on p.w. 1 and that was paid on behalf of p.w. 1. on april 26, 1970, the day prior to the date of occurrence, accused no. 1 came to the shop of p.w. 1 at about 3 p.m. and beat him with a chappal for visiting his house in his absence. on april 27, 1970, at about 8.30 a.m. the deceased lakshmi ammal, mother of pw.1, pw.2, pw.3 and one alagiriswami pillai went to the house of accused no. 1 to ask him why he beat p.w. 1 with a chappal on the previous day inspite of the fact that a fine of rs. 30/- was imposed on p.w. 1. then accused no. 1 came out of the house with an aruval: but the aruval was caught hold of by alagiriswami pillai. the deceased then beat accused no. 1 with a broom stick. this was considered to be a great humiliation not only by accused no. 1 but also by all neighbouring members of the marva (thevar) community to which accused no. 1 belongs. on the same day at about 1 p.m. the deceased was sitting in front of the shop of p.w. 1 which was situated very near to the house of accused no. 1. then subhammal, wife of accused no. 6 and alagammal, wife of accused no. 3 came in front of the house of accused no. 1 and said that since a vellala woman (deceased) beat a maravaman (accused no. 4) with a broomstick, vellala women should be molested. on hearing this, accused no. 4 said that the vellala women need not be molested, but, on the other hand, vellala men who came in the morning to the house of accused no. 4 should be properly dealt with. on hearing the utterance of accused no. 4, lakshmi ammal, the deceased, said that p.w. 1 was beaten with a chappal and made some sarcastic remark indicating that thevars (harvas) are not very special people. on hearing this, accused no. 7, who was standing in front of the house of accused no. 1 said:come (follows). we will find out whether the thevar's flag flies or the flag of vellalas.this was a retort to the sarcastic remark of the deceased and a challenge. thereafter, accused no. 1 to 7 proceeded towards the house of p.w. 1 from the house of accused no. 1. accused no. 1 was armed with an aruval. accused no. 2 and accused no. 3 were armed with a vel stick. on seeing accused no. 1 to 7 advancing towards the shop. p.w. 1 threw soda bottles to scare them away. the accused came in front of the shop, and the cheed nith cut the deceased, who was sitting in front of the shop, on the head with the aruval. thereafter, accused no. 2 and accused no. 3 stabbed the deceased with a vel stick. lakshmi ammal died on the spot instantaneously.4. the trial court disbelieved the prosecution case that all the accused formed themselves into an unlawful assembly with the common object of causing the death of the deceased but found, on the basis of the evidence of p.w. 1, p.w. 2 and p.w. 5 that the injury on the head of the deceased inflicted by accused no. 1 caused her death and that he was guilty of an offence under section 302 of the i.p.c. and sentenced him to death. the court further found that accused no. 2 to 4 were guilty of various offences under the i.p.c. and sentenced them with imprisonment of various descriptions. and as there was no evidence against accused no. 5 to 7, they were acquitted.5. the high court confirmed the convictions and sentences.6. we think that on the evidence it is clear that all the accused who were thavars felt humiliated by reason of the fact that a woman belonging to the vellala community beat accused no. 1 with a broom stick. the deceased indulged in a sarcastic expression indicating that the community to which the accused belong is not a special one implying that beating a member of the community with a broom stick need not be considered as great insult. the altercation between the accused and the deceased would show that the accused were smarting under the feeling that their community itself was humiliated by one of its members being beaten with broom stick and that the attack was prompted by that feeling and the insolent attitude of the deceased towards their community. in these circumstances we feel that the extreme penalty of death was not called for and that the lesser sentence of imprisonment for life would meet the ends of justice.7. we, therefore, set aside the sentence of death imposed upon accused no. 1 (appellant) and impose on him the sentence of imprisonment for life. the appeal is allowed to this extent and is dismissed in all other respects.