Karnataka High Court
Puttakamaiah vs State Of Karnataka And Others on 9 June, 1989
Equivalent citations: AIR1990KANT79, ILR1990KAR1265, 1989(2)KARLJ521
ORDER
1. The short point for consideration herein is tenability of proceedings held by the Tahasildar leading to the auction sale of certain properties that were the subject-matter of the decree of a Civil Court. The proceedings of the Tahasildar is at Annexure 'B' wherein he purported to put up the subject-matter of the decree of the Civil Court to an auction at which the bidders were the parties to the suit and was eventually knocked down by the successful bidder i.e., the 7th respondent. The petitioner is one of the parties to the auction sale. Being himself a judgment-debtor under the decree obtained by the 7(h respondent who is the plaintiff in the suit questioned the auction proceedings and the subsequent affirmance of the same by the Deputy Commissioner and finally by the Kainataka Appellate Tribunal on appeal.
2. The point raised herein is the competence of the Tahasildar to have taken the step of putting up the properties for auetion as a step in aid to executing the decree that had been admittedly sent by the Civil Court to the Deputy Commissioner under Section 54 of the Code of Civil Procedure, Under the said provision the execution of the decree following its commendation to the Deputy Commissioner had to be done either by him or by a gazetted Assistant of the Collector. Section 54 reads:
"Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estate."
3. A plain reading of the aforesaid provision makes it clear that while it was the duty of the Deputy Commissioner to execute the decree forwarded by the Civil Court, he had also the option and liberty to direct his Gazetted Assistant to do the needful in the matter by standing in for him by relegation or entrustment of authority to carry out the direction of the Civil Court in that behalf can be made as aforesaid by the Deputy Commissioner provided by Section 54 itself.
4. But that section however, does not contemplate a further delegation by the Gazetted Assistant to his own assistant as has happened in this case. From the facts it becomes clear, the Assistant Commissioner who had been asked by the Deputy Commissioner to execute the decree transmitted by the Civil Court to the Deputy Commissioner had in turn assigned that work to the Tahsildar with the result, a case of delegates making a further delegation having arisen, the question whether it is legally permissible. 'Delegatus poleste non delegare' is the maxim i.e., one who is himself a delegate cannot further delegate the task entrusted to him. Section 54 makes clearly permits only one delegation i.e., delegation by the Deputy Commissioner to his Gazetted Assistant and hence there can be no further delegation by the Gazetted Assistant to any one else.
5. If that is so, it becomes clear all the steps taken by the Tahsildar and the acts done by him in executing the decree of the Civil Court was clearly vitiated and void in the eye of law. Thus the proceeding under Annexure 'B' which is without jurisdiction, has got to be quashed.
6. The Government pleader says that the proceedings under Annexure 'B' were concurred in specifically by all the parties including the petitioner and at their behest the Tahsildar held the auction proceedings. It may be so, but the established principle is that no amount of acquiescence in the exercise of authority by a person in whom such authority is not vested will not render the resultant exercise of power valid or give it a semblance of validity.
7. Therefore the acquiescence of the petitioner in the proceedings at Annexure 'B' is of no consequence and does not confer competence in the Tahsildar for holding the auction proceedings.
8. The mere fact that the petitioner had concurred in the holding of the auction proceedings and had not protested against it is in the light of the foregoing not of any consequence at all. Therefore, it is, I cannot entertain the submission of the Government Pleader asking me not to interfere with the impugned proceedings of the Tahsildar, because the petitioner had acquiesced in the said order. This argument is clearly without any substance and has therefore to be rejected.
9. In the result, this writ petition succeeds and is allowed. The auction proceedings of the Tahsildar at Annexure 'B' is quashed as also all other orders made by the Assistant Commissioner and the Deputy Commissioner, Karnataka Appellate Tribunal also stand quashed. The matter will now go back to the Deputy Commissioner for appropriate disposal in accordance with law in the light of the observation made in the course of this order. The Deputy Commissioner will dispose of the proceedings now remitted to him within 3 months from the date of receipt of this order, subject of course to hearing the parties whenever it is necessary. No costs.
10. Petition allowed.