Karnataka High Court
Vijay Kumar S/O Ramanna Teli And Ors vs The Deputy Commissioner And Ors on 6 December, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 204862 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 204862 OF 2016 (KLR-RR/SUR)
BETWEEN:
1. VIJAY KUMAR
S/O RAMANNA TELI,
AGED ABOUT 32 YEARS,
OCC: AGRICULTURE,
R/O LONI B.K VILLAGE,
TQ: INDI, DIST: VIJAYAPURA.
2. DHAREPPA W/O CHAYAPPA TELI,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/O LONI B.K VILLAGE,
TQ: INDI, DIST: VIJAYAPURA.
3. SHIVANNA S/O CHAYAPPA TELI,
Digitally signed AGED ABOUT 41 YEARS,
by SACHIN
Location: HIGH
OCC: AGRICULTURE,
COURT OF R/O LONI B.K VILLAGE,
KARNATAKA
TQ: INDI, DIST: VIJAYAPURA.
...PETITIONERS
(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
VIJAYAPURA-586 101.
2. THE TECHNICAL ASSISTANT
DEPUTY COMMISSIONER CUM EX. OFFICIAL,
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WP No. 204862 of 2016
DDLR, VIJAYAPURA-586 101.
3. MALLANNNA S/O BASANNA TELI,
AGED ABOUT 40 YEARS,
OCC:TEACHER,
R/O LONI B.K.VILLAGE,
TQ: INDI, DIST: VIJAYAPURA-586 204.
4. SIDARAM S/O BASANNA TELI,
AGED ABOUT 36 YEARS,
OCC:TEACHER,
R/O LONI B.K VILLAGE,
TQ: INDI, DIST: VIJAYAPURA-586 204.
5. SMT. NEELAMMA W/O RAMANNA TELI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O LONI B.K. VILLAGE,
TQ: INDI, DIST: VIJAYAPURA-586 204.
...RESPONDENTS
(BY SRI. G. B. YADAV, HCGP FOR R1 AND R2;
SRI. AJAYKUMAR A. K. ADV. FOR R4;
NOTICE TO R3 SERVED;
V/O DATED 03.06.2022 NOTICE TO R5 DISPENSED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A)
ISSUE A WRIT OF CERTIORARI QUASHING IMPUGNED ORDER
ANNEXURE-D DATED 5.12.2012 PASSED BY RESPONDENT NO.2
IN NO: P.H.S/A.P.L/S.R/275/2011-12 AND ALSO QUASH
IMPUGNED ORDER ANNEXURE-H DATED 28.03.2016 IN
NO.RVN/PHS/APL/09/2015-16 PASSED BY RESPONDENT NO.1
AND DISMISS THE PETITION FILED BY RESPONDENT NO.3 AND
4 BEFORE RESPONDENT NO.2 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY THE COURT MADE THE FOLLOWING:
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WP No. 204862 of 2016
ORDER
Heard learned counsel Sri Shivakumar Kalloor, for
petitioners, learned High Court Government Pleader for
respondent nos.1 and 2/State and learned counsel
Sri Ajaykumar A.K, for respondent no.4.
2. This petition is filed seeking to quash the
impugned order at Annexure 'D' dated 05.12.2017 passed
by second respondent in No.P.H.S./A.P.L/S.R./275/2011-
12 and also to quash the impugned order Annexure-H
dated 28.03.2016 in No.RVN/PHS/APL/09/2015-16 passed
by first respondent and to dismiss the petition filed by
third respondent before second respondent.
3. It is the case of petitioners that on the basis of
partition, mutations were effected in their respective
names. The property bearing Sy.No.315 measuring 30
acres, situated at Loni B.K. village, Indi Taluk, Vijayapur
District came to be partitioned and respective portions
were allotted to three sons of one Sri Channagunda. On
the basis of partition, mutations were effected and the
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property was divided into Sy.Nos.315/1, 315/2, 314/3 and
314/4. Based on which, the Tahsildar made an entry in the
hissa and issued an endorsement in favour of petitioners.
The order of Tahsildar was challenged by third respondent
belonging to the family member of Channagunda, on the
ground that phodi and hissa was not done properly after
26 years and sought for cancellation of phodi made in
favour of petitioners, as it was in violation of the
Karnataka Land Revenue Act (for short, 'KLR Act'), phodi
is to be done as per Rule 50 of Karnataka Land Revenue
Rules.
4. It is contended by learned counsel for
petitioners that second respondent without issuing notice
to the petitioners and without providing an opportunity
allowed the petition filed by third respondent vide order
dated 05.12.2012 at Annexure-D. This order of second
respondent which was preferred after 26 years was clearly
barred by time and second respondent ought to have
rejected the said application, but however by the
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impugned order, the second respondent allowed the
application in favour of third respondent by colluding with
fourth respondent and the revenue authorities.
5. Being aggrieved by orders passed by second
respondent, petitioners herein preferred a revision petition
before first respondent under Section 56 of the Karnataka
Land Revenue Rules, 1964 before first respondent-Deputy
Commissioner. After hearing both parties, first respondent
- Deputy Commissioner dismissed the revision petition
filed by petitioner. Aggrieved by the said order of first
respondent - Deputy Commissioner, it is stated by
petitioners that he has preferred an appeal before the
Tribunal in Appeal No.425/2016 and the said appeal
preferred by petitioners came to be withdrawn as the
appeal was not maintainable as stated by petitioners in
para 10 of petition. The petitioners are aggrieved by the
impugned orders passed at Annexures 'D' and 'H' before
this Court and seek to quash the said impugned orders.
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6. Learned High Court Government Pleader
representing respondent nos.1 and 2/State contends that
the petition preferred by petitioners herein is not
maintainable and there is an appeal provision provided on
the ground that respondent-authority has issued notice to
the petitioners and provided sufficient opportunity to file
their objection and after hearing the contentions of
petitioners, the impugned orders are passed which do not
call for interference and sought for dismissal of petition.
7. Learned counsel representing fourth respondent
concurs with the arguments put-forth by learned High
Court Government Pleader for respondent nos.1 and
2/State and similar arguments are addressed with regard
to the impugned order being in conformity with the rules
and regulations and not having been violated any
provisions of law, the same is sustainable and does not
call for interference.
8. I have heard learned counsel for petitioners and
the respondents.
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9. It is an admitted fact that being aggrieved by
the entries made by Tahsildar, third respondent had
challenged the hissa and phodi before second respondent
under Section 49(a) of the Karnataka Land Revenue Act of
1964 (for short, 'the Act of 1964').
10. It is relevant to extract Section 49(a) of the
Karnataka Land Revenue Act, 1964.
"49. Appeals from original orders.--Save
as otherwise expressly provided, an appeal shall lie
from every original order passed under this Act or
the rules made thereunder, 1[and from every order
made in exercise of the powers conferred by section
54 of the Code of Civil Procedure, 1908 (Central Act
5 of 1908)],--
(a) if such an order is passed by a Revenue
Officer subordinate to the Assistant Commissioner,
1[whether or not invested 2[or delegated]2 with the
powers of the Assistant Commissioner or the Deputy
Commissioner]1 to the Assistant Commissioner;
(b) xxx
(c) xxx"
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11. Aggrieved by order passed under Section 49(a)
of the Act of 1964, the petitioners herein preferred a
revision before Deputy Commissioner vide Annexure-H
under Section 56 of the Act 1964, which has been
entertained, but however dismissed the petition by
ordering for fresh phodi and hissa to be made and
aggrieved by which, the petitioners herein preferred an
appeal before the Karnataka Appellate Tribunal in Appeal
No.425/2015. However, the said appeal came to be
withdrawn by them for the reason that the appeal would
not maintainable and the petitioners have approached this
Court.
12. Section 50 of the Act, 1964 deals with the
second appeal. It is relevant to extract Section 50 of the
Act, 1964 -
"50. Second Appeal.--(1) A second appeal
shall lie against any order passed in a first appeal
under section 49,--
(a) if such an order is passed by the Assistant
Commissioner, to the Deputy Commissioner;
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(b) if such an order is passed by the Deputy
Commissioner, to the Tribunal;
(b1) if such an order is passed by the
[Assistant Director for Settlement or the Assistant
Director of Land Records], to the Director of Survey,
Settlement and Land Records;
(c) if such an order is passed by the [Joint
Director of Land Records or Joint Director for
Settlement] or by the [Director of Survey],
Settlement and Land Records to the Tribunal.
(2) An order passed on second appeal shall be
final."
13. Section 50(1)(b) of the Act, 1964 deals with a
second appeal would lie on any order passed by Deputy
Commissioner to the Tribunal and this being the case, the
petitioners ought to have preferred a second appeal
aggrieved by the order by first respondent-Deputy
Commissioner under Section 50(1)(b) of the Act, 1964
whereas the petitioners have preferred a revision under
Section 56 of the Act, 1964 before the Deputy
Commissioner, who has entertained the revision petition
and passed an order by dismissing and giving a direction
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to make fresh phodi and hissa. In my humble opinion that
may not be correct position of law in view of second
appeal provided under the Act of 1964.
14. This Court is not inclined to go into merits of
the matter. The revision petition filed by the petitioner
itself is flawed and the orders passed by second
respondent is not correct as the petitioners ought to have
preferred a second appeal as contemplated under
Section 50(1)(b) of the Act 1964. The further proceedings
thereafter preferring the appeal before the Administrative
Appellate Tribunal may not be a much consequence and as
the same is withdrawn.
15. Learned counsel for petitioners has relied on the
judgment of a Co-ordinate Bench of this Court in the case
of Monnappa vs Secretary, Government of
Karnataka1. Paragraph no.5 of the said judgment it is
held as under :-
ILR 1995 KAR 1206
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"5. A perusal of sub-section (3) of Section 56
per se says that it provides that in case of an order
against which an appeal has been preferred and is
filed by a person aggrieved from the order, no
revision shall be entertained. In cases where against
an order, an appeal is already filed and thereafter
the party prefers the revision either during pendency
of the appeal or after decision of the appeal, in view
of Section 56(3) the revision will not be
maintainable. But in case where from the original
order no appeal has been filed, sub-section (3)
would not apply. If an appeal has been filed against
an order then revisional power will not be exercised.
If no appeal has been preferred under this Chapter,
the revisional powers can be exercised. - Any
Revenue Officer or Survey Officer referred to under
sub-section (1) may exercise powers of revision in
respect of any order passed by an authority
subordinate to him against which no appeal has been
preferred under this chapter.
According to the learned Counsel for the
petitioner, no appeal had been filed. But the revision
has been preferred from the order of the Tahasildar.
As such thee is no force in the contention of the
learned Counsel for the petitioner that revision was
not maintainable. The revisional authority has full
jurisdiction to entertain the revision petition in
exercise of its revisional jurisdiction. The learned
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Counsel for the petitioner argued that the revision
was filed beyond the period of limitation. However,
he could not indicate the date of the order and the
date on which the revision was filed before the
Assistant Commissioner to substantiate his
contentions that the revision was filed before the
Assistant Commissioner beyond limitation."
16. There is no dispute with regard to law laid down
by the Coordinate Bench of this Court with regard to
Section 56(3) of the Act, 1964 which deals with revisional
powers and how revision is maintainable under what
circumstances. The order of Coordinate Bench of this Court
is self explanatory and in fact, it has held that if the appeal
is not preferred against the original order under sub-
section (3) of Section 56 of the Act 1964 would not apply.
17. Sub-section (3) of Section 56 of the Act, 1964
reads as under :-
"56. Power of Revision.--(1) xxx
(2) xxx
(3) No application for revision under this
section and no power of revision on such application
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shall be exercised against any order in respect of
which an appeal under this Chapter has been
preferred and no application for revision shall be
entertained unless such application is presented
within a period of four months from the date of such
order: Provided that any Revenue Officer or Survey
Officer referred to in sub-section (1) may exercise
power under this section in respect of any order
against which no appeal has been preferred under
this Chapter, at any time within three years from the
date of the order sought to be revised.
Explanation.--In computing the period of
limitation for the purpose of this subsection, any
period during which any proceeding under this
section is stayed by an order or an injunction by any
court shall be excluded."
18. In the present case on hand, the petitioners
being aggrieved by the order passed by second
respondent, straightaway preferred a revision under
Section 56 of the Act, 1964 instead of exploring the option
provided under Section 50 of the Act, 1964 which
contemplates second appeal against an order passed by
second respondent-Deputy Commissioner to the Tribunal.
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In my humble opinion second respondent-Deputy
Commissioner ought not to have entertained the revision
petition filed under Section 56 of the Act, 1964. Second
respondent ought to have relegated the petitioners to file
a second appeal under Section 50(1)(b) of the Act, 1964
rather than entertaining the petition on merits by passing
the impugned order.
19. With these observations made herein above, I
am of the considered opinion that second respondent
ought not to have entertained the revision petition under
Section 56 of the Act, 1964 and the same deserves to be
quashed and the petitioners deserves to be provided an
opportunity to prefer an appeal under
Section 50(1)(b) of the Act, 1964 before the appropriate
forum.
20. In view of the above discussions, I pass the
following :
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ORDER
(i) The impugned order at Annexure-H
dated 28.03.2016 passed by first
respondent is hereby quashed.
(ii) Liberty is given to the petitioners to file
an appeal under Section 50(1)(b) of the
Karnataka Land Revenue Act, 1964
being aggrieved by the order at
Annexure-D dated 05.12.2012 by
second respondent.
(iii) In view of the fact that petitioners had
approached first respondent - Deputy
Commissioner and also preferred an
appeal thereafter and the writ petition
before this Court, the period spent by
the petitioners before the Courts shall be
condoned for the purposes of limitation.
(iv) The petitioners are provided one month
time to prefer a second appeal as stated
herein above and on preferring such
appeal, the Tribunal shall deal with the
matter strictly in accordance with law.
(v) It is needless to mention that this Court
has not expressed any opinion on the
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merits of the matter. All contentions are
kept open.
Accordingly, writ petition is disposed of.
Sd/-
JUDGE
SN
