Mistake - rectification - error of law - writ of certiorari - Supreme Court

1) Hiralal Bhagwati v. Commissioner of Income Tax, (2000) 246 ITR 188
2) Suhrid Geigy Limited v. Commissioner of Surtax, Gujarat, (1999) 237 ITR 834
3) Delhi Stock Exchange Assn. Ltd. v. Commissioner of Income Tax, (1997) 225 ITR 234 (SC)
4) Assistant Commissioner of Income Tax, Surat v. Surat City Gymikhana. Civil Appeal Nos. 4305-06 of 2002
5) Patel Narshi Thakershi & Ors. V. Pradyumansinghji Ariunsinghii. (1971) 3 SCC 844
6) T.S. Balaram v. Volkart Brothers, Bombay, (1971) 2 SCC 526
7) Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104
8) Batuk K. Vyas v. Surat Municipality, ILR 1953 Bom 191 : AIR 1953 Bom 133
9) Satyanarayan Laxminarayan Hegde & Ors. v. Mallikariun Bhavanappa Tirumale, (1960) 1 SCR 890
10) Syed Yakoob v. K.S. Radhakrishnan & Ors., (1964) 5 SCR 6
11) Kil Kotagiri Tea & Coffee Estates Co. Ltd. v. Income-Tax Appellate Tribunal & Ors., (1988) 174 ITR 579 (Ker)
12) Golak Nath v. Union of India, (1967) 2 SCR 762
13) S. Nagarai & Ors. v. State of Karnataka, 1993 Supp (4) SCC

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1171 OF 2004
ASSISTANT COMMISSIONER,
INCOME TAX, RAJKOT ... APPELLANT
VERSUS
SAURASHTRA KUTCH STOCK
EXCHANGE LTD. ... RESPONDENT

30. The main question, therefore, is: What is a 'mistake apparent from the record'? Now, a similar expression 'error apparent on the face of the record' came up for consideration before courts while exercising certiorari jurisdiction under Articles 32 and 226 of the Constitution. In T.S. Balaram v. Volkart Brothers, Bombay, (1971) 2 SCC 526, this Court held that "any mistake apparent from the record” is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record". It was, however, conceded in all leading cases that it is very difficult to define an "error apparent on the face of the record" precisely, scientifically and with certainty.

33. In Satyanarayan Laxminarayan Hegde & Ors. v. Mallikariun Bhavanappa Tirumale, (1960) 1 SCR 890, this Court referring to Batuk K. Vyas and Hari Vishnu Kamath stated as to what cannot be said to be an error apparent on the face of the record.
34. The Court observed;
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ”.

35. Again, in Syed Yakoob v. K.S. Radhakrishnan & Ors., (1964) 5 SCR 64, speaking for the Constitution Bench, Gajendragadkar, J. (as his Lordship then was) stated;

"A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised".

36. The Court concluded;

"It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-inter-pretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari.

43. Salmond in his well-known work states;
"(T)he theory of case law is that a judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicatae or accounts that have been settled in the meantime". (emphasis supplied)

44. It is no doubt true that after a historic decision in Golak Nath v. Union of India, (1967) 2 SCR 762, this Court has accepted the doctrine of 'prospective overruling'. It is based on the philosophy: "The past cannot always be erased by a new judicial declaration". It may, however, be stated that this is an exception to the general rule of the doctrine of precedent.

45. Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality.