Karnataka High Court
Shivanna vs Narayana Gowda on 23 January, 1995
Equivalent citations: ILR1995KAR1000, 1995 A I H C 4794
ORDER
Hari Nath Tilhari, J
1. By these Petitions, the petitioner has prayed for calling for the record of proceedings in R.A. (LKP) 32/92-93 and R.A. (LKP) 66/93-94, before the Sub-Division Officer, Ramanagaram Sub-Division, Ramanagaram in Bangalore Rural District The petitioner has further prayed for issuance of Writ of Certiorari or any other appropriate Writ, Order, direction or command against respondents and has prayed for quashing of the orders dated 29.7.1994 in Nos. R.A.(LKP)32/92-93 and R.A.(LKP) 66/93-94 on the file of the Sub-Division Officer, Ramanagaram, copies of which are Annexures -H and J to these Petitions, respectively, in respect of Sy.No. 166/2/(New) Sy.Nos. 555, 556, and 557 of Harisandra Village in Ramanagaram Taluk.
2. The facts of the case in brief are, that according to the petitioner's case as alleged in the Writ Petition, the petitioner's father had four sons as mentioned in paragraph-2 of the Writ Petition and that one of the brothers of the petitioner namely Sri. Dodda Veera Gowda, separated from the family some time in the year 1925 and shifted to Bilagumba village and began to live there. Other brothers of the petitioner as well as the petitioner continued to live jointly with their father till about 1945. According to the petitioner's case there came division and under the registered Deed of Partition, the partition did take place on 10.7.1945. The family properties were divided as per Schedules 'A', 'B', and 'C' to the said Partition Deeds and the properties which were allotted to the petitioner's share were described as Schedule-C to the Writ Petition. According to the petitioner's case, as appears from record, on an application moved by petitioner and also alleged to have been moved by his elder brother Chikke Gowda, the properties which were allotted to their respective shares were separately phoded (divided) in the year 1960-61 as per Mutation Register entry No. 54/60-61 in the revenue records. Petitioner claims that as per entry in the Mutation Register an extent of 29-00 acres in Sy.No. 166 has been entered in petitioner's name as per details given in paragraph-4 of the Petition, over which the petitioner alleges to have done the act of user by raising trees. The petitioner further alleged that his brother Chikke Gowda died some 10 years back, i.e., 10 years prior to the filing of the Writ Petition and respondents 1 and 2 are his sons. Respondents - 1 and 2 according to petitioner's case claim that what was originally Sy.No. 166, and belonged to the family of petitioner and his brothers and that the petitioner came to know about the second respondent's moving of some application to the Tahsildar, Ramanagaram on or about 1991 claiming an extent of 15-00 acres in Sy.No. 166/2 of Harisandra Village. The Tahsildar sent an endorsement dated 30.4.1992 to the second respondent informing him that he had no authority to take any action in the matter as the katha has already been made out in the name of the petitioner. Thereafter respondents 1 and 2 filed R.A.(LKP) 32/92-93 some times in 1992. The petitioner also challenged the correctness of the proceedings of M.R. No. 107 and 109/83-84, by way of abundant caution and this appeal was numbered as R.A.(LKP) 66/93-94 before Sub-Divisional Officer. That by two separate orders dated 29.7.1994, the Sub-Divisional Officer concerned exercising the appellate power allowed the appeal filed by respondents 1 and 2 and dismissed the appeal filed by the petitioner, the copies of the two orders passed in the two appeals mentioned above have been annexed by the petitioner as Annexures-H and J to the Writ Petition.
3. Having felt aggrieved from the order contained in Annexure-H, and J whereby the Appeal No. 32/92-93 was allowed and petitioner's Appeal No. 66/93-94 has been dismissed, the petitioner has come up before this Court by these Petitions under Articles 226 and 227 of the Constitution of India and sought for the reliefs mentioned above.
4. The notice of this Petition have been accepted on behalf of respondents 3 and 4 by the learned Government Pleader and Shri. H.H. Kaladgi learned Government Pleader put in appearance on their behalf and he has also produced before the Court the original records of the appeals and the case. On behalf of respondents 1 and 2 appearance has been put by Smt. Manjula Devi, an Advocate of this Court. No counter affidavit has been filed and it has been stated before me by the Counsel for the parties, namely, Counsel for the petitioner Smt. Geetha Devi and by Counsel for respondents - 1 and 2 Smt. Manjula Devi that the Writ Petition can be heard finally and disposed off on questions of law and Smt. Manjula Devi further added that application for vacation of interim order has already been filed in which facts have been narrated. It may not be necessary to go into the counter affidavit, because questions of law are intended to be agitated by the petitioner primarily.
5. I have heard Smt. Geetha Devi, Counsel for the petitioner as well as Smt. Manjula Devi, Counsel for respondents 1 and 2 and learned Government Counsel Sri. H.H. Kaladgi, who had placed before me the records.
6. On behalf of the petitioner, the learned Counsel Smt. Geetha Devi submitted that the order passed in the appeal is without jurisdiction and illegal and as such it deserves to be quashed. Elaborating the contention on behalf of the petitioner, petitioner's Counsel Smt. Geetha Devi further submitted that the appeal in this case has been filed beyond limitation - after the expiry of the period of about 30 years and in every case it has been filed at least beyond 10 years from the date or time of the death of the father of respondents 1 and 2. The learned Counsel submitted that the Appellate Authority did not at all apply its mind to the question of limitation or to the question of condonation of delay and without having recorded any finding as to sufficient cause etc. allowed the appeal. The alternative contentions in this behalf have been taken to the effect that mutation had been made on the joint application and with the consent of the parties. The bretheren in whose favour the original mutation had been done in 1960-61 did not challenge that order in appeal, though father of respondents 1 and 2 remained alive for more than 20 years from the date of passing of the order and when they did not file the appeal, there was no right in the sons to have filed any, as the father might have had that right, if he had any. The question on merits of case had been tried to be raised about the change of numbers of old plots into new. But this Court is not going to take notice of this contention, which raises the question of appreciation of evidence. So the Writ Petition is being confined purely to questions of law and this Court is not going to entertain the dispute which relates to appreciation of evidence.
7. On behalf of the respondents Smt. Manjula Devi, appearing for respondents 1 and 2 firstly submitted that this Court should refuse to exercise jurisdiction under Article 226 of the Constitution, as petitioner had got the remedy of filing the suit under Section 135 of the Land Revenue Act. Smt. Manjula Devi further urged that earlier suit filed by respondents 1 and 2 is still pending and there also the petitioner can raise his grievance. The learned Counsel for the respondents Smt. Manjula Devi made two alternative submissions in this behalf i.e., in respect of non-maintainability of this Petition she submitted firstly that in view of Section 135 of the Karnataka Land Revenue Act, the only remedy available to a party aggrieved by any order passed by the authorities, on original or appellate side on entry in revenue records is a regular suit, after his claim or application made under Land Revenue Act is rejected either by original authority or denial by appellate authority. Article 226 is not the remedy available. Smt. Manjula Devi further submitted that once the Section says that entry shall be final and the remedy for challenging the same is the suit, Writ Petition is barred in view of the provisions of Section 136 of the Land Revenue Act. The alternative contention strenuously made by Smt Manjula Devi for respondents 1 and 2 in this regard is even if for a moment it could be taken that suit is not only the remedy available to the petitioner and that there are two remedies available to the petitioner i.e., filing of the suit under Section 135 of the Land Revenue Act and the remedy of approaching this Court under Article 226 of the Constitution, she submitted that the remedy of the suit is the very efficacious remedy, where question of facts and law can be decided by the competent Civil Court, while exercising of jurisdiction under Article 226, this Court will not like to interfere with the facts or matters which require appreciation of facts. She submitted that in that case also in view of the well settled principle of law that if the alternative remedy is available, this Court should refuse to exercise Article 226 jurisdiction. In support of her contention Smt. Manjula Devi made a reference to the Division Bench Decision of this Court in the case of SRIMAMAHARAJA NIRANJANA JAGADGURU MALLIKARJUNA MURUGARAJENDRA MAHASWAMY v. DEPUTY COMMISSIONER .
8. The learned Government Pleader Sri. H.H. Kaladgi, has been pleased to place before me the record of the case and made submissions supporting the contentions made by Smt. Manjula Devi learned Counsel for respondents 1 and 2 and submitted that in the Civil Suit it would be open to the parties to agitate the whole matter and questions of fact and law and therefore the Petition should be dismissed.
9. I have applied my mind to the contentions of the learned Counsel for the parties. It is no doubt welt settled principle of law that Writ Jurisdiction under Article 226 of the Constitution is extraordinary jurisdiction of this Court. It is also well settled that Writ Jurisdiction is to be exercised ordinarily where the order is one which suffers from either error of jurisdiction, which may render the order challenged to be null and void or where the order or proceedings of the case suffer from error of law apparent on the face of record, such orders may have the tendency of causing injury to the party. It has also been very clearly laid by Their Lordships of the Supreme Court in very many cases including the case of ASSISTANT COLLECTOR OF CENTRAL EXCISE CHANDAN NAGAR, WEST BENGAL v. DUNLOP INDIA LTD. , that where the statute provides a statutory remedy, ordinarily this Court should avoid exercising its power under Article 226 of the Constitution, but in exceptional circumstances the Court may exercise its power under Article 226 of the Constitution as well and the alternative remedy may not operate as the Bar. It is no doubt very clearly laid down that Article 226 is not meant to short circuit or circumvent the statutory remedies. It is also well settled principle of law and it has been repeated in Assistant Collector of Central Excise v. Dunlop India's case, that the principle of refraining from exercise of jurisdiction under Article 226 on the ground of alternative remedy, is only a principle of guidance and caution, which Courts of Record do adopt in the matter of exercise of jurisdiction under Article 226, but it per se does not bar the jurisdiction. It is a Rule of caution. What are the exceptional cases in which the Court exercises jurisdiction irrespective of the fact that there is alternative remedy as well has been laid down in the case of STATE OF UTTAR PRADESH v. MOHAMMED NOOH AIR 1958 SC 86 and following that Decision, Division Bench of this Court in the case of H.S. VASANTASENAIAH v. DIVISIONAL CONTROLLER, KSRTC , has laid it down that doctrine of alternative remedy does not by itself create a bar for Courts exercising jurisdiction under Article 226 of the Constitution, in case the order is per se without jurisdiction or the order impugned has been passed under an Act which is by itself ultra vires or that the order in question has been passed in violation of the principles of Natural Justice and fair play or the order in question has been passed in clear cut breach of the provision of law and the like. It may also be mentioned that if the order is of such a nature that it touches the conscience of the Court, then it can also be interfered with. So as regards the Doctrine of Alternative Remedy, if the order can be shown to be suffering from jurisdictional error and appears to be per se void, alternative remedy may not come into the way.
10. Before I deal with the merits of the Writ Petition, it is also necessary on my part to deal with one more aspect of the contention of the learned Counsel for respondents 1 and 2. Learned Counsel for respondents 1 and 2 Smt. Manjula Devi laid great emphasis on Section 135 of the Land Revenue Act. Section 135 of the Karnataka Land Revenue Act and its Proviso read as under :-
"135. No suit shall lie against the State Government or any officer of the State Government in respect of a claim to have an entry made in any record or register that is maintained under this Chapter or to have any such entry omitted or amended:
Provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in any record or register maintained under this Chapter, he may institute a suit against any person denying or interested to deny his title to such right, for a declaration of his right under Chapter VI of the Specific Relief Act, 1877; and the entry in the record or register shall be amended in accordance with any such declaration."
11. A perusal of the Proviso per se shows that Land Revenue Act provides that it is open to the person who is aggrieved, as to his right, by any entry made in the record or register maintained either by original authority or appellate authority, I may say, to maintain the suit against the person denied or interested in denying his title or such right, seeking the relief for declaration of his rights under Chapter VI of the Specific Relief Act and on the suit being decreed, the entry in the record and the register shall be amended in accordance with such declaration. Section 136 of the Act declares the orders passed in the proceedings under Section 129, particularly by the Appellate Authority at the stage of appeal to be final. A reading of these two provisions no doubt shows that so far as the remedies under statutory law are concerned against the entries made in record or affirmed in appeal or made under appellate order are concerned that decision of the appellate authority is final subject to the right of the person aggrieved by that order or entries so far as his right is concerned, that he should file the suit for declaration. This finality is a statutory finality. It means and it can be argued that revision under Sub-section (3) of Section 136 of the Land Revenue Act is not maintainable against that order, as has been laid down by the Division Bench in the case of Srimanmaharaja Niranjana Jagadguru's case (supra) and the revision is not maintainable for the present, I feel there is no necessity to express anything on that matter, beyond that an attempt was made to challenge that decision but that is not necessary in this case, because here no revision had been filed on the appellate order. So, I do not express any view upon the correctness or otherwise of the Decision. I only follow it at present that the suit has been held in this case to be the remedy and not its revision.
12. On the basis of this Decision, learned Counsel for the respondent submitted that when the only remedy provided under the Act is the suit, Petition under Article 226 is not maintainable. In my opinion the learned Counsel for Respondents 1 and 2 Smt. Manjula Devi's contentions cannot be accepted to this extent. No doubt under statutory law the other resources have been closed, except filing of the suit under Proviso to Section 135 of the Land Revenue Act and it has been held by the Court that revision is not maintainable, but the statutory bar against the maintainability of remedies under the Land Revenue Act, cannot be deemed to have the effect of denying, depriving the jurisdiction or exercise of jurisdiction or the operation and extent of the powers of this Court under Article 226 of the Constitution. It is well settled that if any provision has the effect of curtailing or otherwise affecting the jurisdiction or the Constitutional powers of the Court, that provision of statutory law to the extent it comes in conflict with the provisions of the Constitution, shall be deemed to be ultra vires and inoperative. As such keeping in view the settled principle of law of interpretation as laid down in the case of JOHRI MAL v. DIRECTOR OF CONSOLIDATION , STATE OF MADHYA PRADESH v. CHHOTA BHAI JETHABHAI PATIL and STATE OF KERALA v. M.K. KRISHNAN N AIR AIR 1978 SC 748, to the effect that when there are two interpretations possible, the one which saves the Constitutionality and the vires of the provision, has got to be adopted, I am of the opinion that the finalities which have been attached under Section 36 of the Karnataka Land Revenue Act, to the orders cannot be deemed to affect the jurisdiction of this Court under Article 226 of the Constitution and it cannot be urged that there is only one remedy available, namely - suit and not the remedy of approaching this Court under Article 226. It may be another thing to submit that there are two alternative remedies available to the petitioner, in view of this statutory remedy such as, one is of suit under the Proviso to Section 135 of the Act read with Specific Relief Act and that this Court though it has full powers to entertain the Writ Petition under Article 226 of the Constitution, should abstain from exercising the jurisdiction vested in it, on the ground of alternative remedy is available, but it cannot be said that effect of Section 135 of Act by itself would be a bar to control the Jurisdiction of the Court or could reduce the scope of Jurisdiction of this Court under Article 226 of the Constitution. In that view of the matter, I am of the opinion that the contention of learned Counsel for Respondents 1 and 2, Smt. Manjula Devi to the effect that the petitioner has got only remedy i.e., filing the suit is without force.
13. As regards the question of alternative remedy, keeping the above principles which have been laid down by Their Lordships of the Supreme Court, the matter has got to be decided.
14. In the present case the learned Government Pleader has produced the record before me. The contentions of the learned Counsel for the petitioner has been that an appeal has been, filed much beyond the expiry of limitation and the appeal should have been dismissed on that ground, but the appellate authority did not consider that aspect of the matter inspite of that question having been raised early and in writing afterwards. The learned Counsel for Respondents - 1 and 2 Smt. Manjula Devi submitted that when the appeals have been filed by the petitioner as well as respondent, both were time barred and beyond limitation but the authority - Sub Divisional Officer really entertained both the appeals, while it allowed the appeal of respondent No. 2 and dismissed the appeal of the petitioner on merits. Smt. Manjula Devi, learned Counsel for respondents 1 and 2 as well as the Counsel for the petitioner Smt. Geetha Devi, very clearly conceded that the appeals of both the parties were beyond time. As regard the appeal filed by the petitioner, it has already been dismissed, there is no question of going into that question and the order which had been passed with respect to order of 1983, so far as the appeal filed before the Commissioner, the learned Counsel for the respondents 1 and 2 submitted that really it had already condoned. The learned Government Pleader placed before me the records. I have gone through the records of the case. The record of the case produced before me at page-100 per se shows that as per order sheet of the case, the appellate authority admitted the appeal first and thereafter condoned the delay without applying the mind to the sufficient cause and without recording any finding on the question, if sufficient cause for delay has been shown and established. I may quote that order passed in the Appeal, which reads :-
"This is an appeal under Section 136 K.L.R., Act, 1964, against the order of the Tahsildar Ramanagaram Taluk in No. M.R-54/60-61, in respect of land in Sy.No. 166/2 (New No. 556) of Chikkegowdanna Doddi, village Harisandra, Kasba Hobli, Ramanagaram Taluk, Appeal admitted, Delay condoned. Stay granted up to 31.7.1992. Call for the lower Court record. Further case posted for hearing on 31.7.1992."
15. The record further shows that along with the appeal, an application for condonation of delay had been filed and in that it had been stated that the appellants i.e., the heirs of Chikkegowda had no notice of the change and they came to know of it later on, so they are filing the appeal. It has nowhere been stated therein whether their father did not know about the orders passed. Any way the appeal had been filed on 20th June, 1992 along with the application for condonation of delay. I may mention it that in the memo of appeal it was also stated that the appeal is filed from the date of knowledge. The learned Counsel for the respondents 1 and 2 very fairly submitted that the appeal was time barred and it could not be said to be within the limitation. The record further shows that before condoning the delay no notice had been issued by the appellate authority to the present petitioners i.e., to the respondents in the appeal. After notice having been served it appears from the record that the question of limitation was raised, as appears from the copy of the written arguments filed in that case on behalf of the respondents as well from the objections filed by respondents which is dated 9.10.92. The record further shows that vide., pages 86 to 90, that written submissions were also made on behalf of the present respondents 1 and 2 and on behalf of the present petitioner who was respondent in the appeal, the arguments on question of maintainability was taken. Any way the order admitting the appeal per se shows that admission of the appeal was without jurisdiction and appeal could have been admitted only after condonation of delay. In this case the appellate authority has put the cart before the horse i.e., first he has admitted the appeal itself and then passed the order - "Condone the delay". As appears from the record, apart from that it appears that the appellate authority while condoning the delay has committed two jurisdictional errors - if the appeal had been filed beyond limitation the delay could not be condoned without giving opportunity to the other side, to have their say in the matter of condonation of delay. But in this case delay has been condoned without giving notice of application for condonation of delay to the respondent in appeal and respondent i.e., the present petitioner could not have his say in the matter of condonation of delay and if sufficient cause had been shown and established by the appellant before the appellate authority. It is also one of the principles of law under Section 5 of the Limitation Act that in the matter of condonation of delay that power to condone delay is always there in the Court, but that power cannot be exercised unless the appellate Court or authority comes to the conclusion and it records a finding to the effect that under the facts and circumstances mentioned in the affidavit and narrated in the order, the appellant-applicant has proved and has established satisfactorily the cause for delay and has explained the delay, No such finding appears to have been recorded in the order condoning the delay. So the order condoning the delay by itself is illegal and without jurisdiction as sine qua non exercise of jurisdiction under Section 5, namely existence or proof of sufficient cause has not been shown to have been established before appellate authority by the appellant and the appellate authority has not recorded a finding to that effect. That being the position, the order condoning the delay itself has been illegal and without jurisdiction.
16. When the point of limitation was taken in the arguments, it was the duty of the appellate authority to have first considered that question. That has also not been done. They have not considered this aspect of the matter. I am of the opinion that the order passed by the appellate authority in an appeal which was admittedly beyond limitation can be said to be suffering from error of jurisdiction and to be illegal, null and void. That being the position, in my opinion, the appellate order deserves to be quashed. The authorities exercising Judicial or quasi-judicial functions or exercising Judicial or quasi judicial powers are expected to give reasoned order and if reasoned order is not given, then such an order can be said to be illegal, null and void, because arbitrary action is negation of Rule of Law and the Doctrine of Equality envisaged in Article 14 of the Constitution of India.
17. Having thus considered, I am of the opinion that this Petition as such cannot be dismissed on the ground of alternative remedy, instead it has got to be allowed, by quashing the appellate order, but the question is what proper order should be passed.
18. Before I proceed with this, I may point it that in the case that has been relied by Counsel for the respondent - Srimanmaharaja Niranjana Jagadguru Mallikarjuna Murugarajendra Mahaswamy v. Deputy Commissioner, this Court even exercised its Writ Jurisdiction irrespective of the fact that the suit was pending in the Court, taking the view that the revision did not lie and revisional order was without jurisdiction. So I may mention that the case relied by respondents support the view I have taken in the earlier part of the Judgment. It has been stated by both the Counsel appearing for the petitioner and respondents, that Civil suit namely Suit No. 8/93 that had been filed by the respondents for declaration of their rights and title in respect of the property in dispute is pending. In the suit question of title can be considered and decided. Learned Counsel for respondents 1 and 2 tried to contend that the change in katha were ordered without notice to the appellants or their father and that point had been taken in appeal. At this stage I do not wish to express any opinion on that point. No doubt Section 133(3) of the Karnataka Land Revenue Act, provides for rebuttal presumption about the correctness or otherwise of the entries and it is open to the parties in course of the trial of the suit to show and prove that the presumption is not correct or the entry is not correct. This aspect is always open to the respondents Counsel to be taken at the time of the trial of the suit, with respect to the entries if the present respondents can prove and show that the entries are not correct.
19. So the Petitions are disposed off by the above order to the effect that the order impugned dated 29.7.1994, contained in Annexure-H is hereby quashed. As regards Annexure-J, which has been passed in the appeal on the basis of Order - Annexure-H, that had been passed in Appeal No. 32/93-94 and that order is held to be void and has been quashed, as an order passed which is based on an order without jurisdiction must also go, but be held to be illegal and void. As regards that decision on merits, when the appeal filed by the petitioner is also said to be barred by limitation, there is no question of quashing that order of dismissal of Appeal No. 66/93-94, as admittedly appeal of the petitioner has been barred.
20. Any way it is open to both the parties to prove their title in the regular suit. When the order passed under Annexure-J contained in Appeal No. 66/93-94, is based on the order contained in Annexure-H and as Annexure-H has been held to be illegal, null and void and has been quashed, any order passed on the basis thereof also cannot be allowed to stand in the way of petitioner or respondent.
21. Both the Petitions are thus disposed off. There is no need to pass any further order in the Writ Petitions. It is open to the parties to agitate their claim and get the title question decided by Civil Court in the suit pending in the light of provisions of law and Section 133 of Land Revenue Act.
22. The Writ Petitions are thus disposed off. No order as to costs.