Karnataka High Court
Smt. S. Sunanda vs State Of Karnataka And Others on 7 April, 1999
Equivalent citations: ILR1999KAR2847, 1999(5)KARLJ57
ORDER
1. This matter has been listed for preliminary hearing. By consent of the parties before Court, the matter had been taken up for final disposal. Accordingly, rule is issued.
2. The petitioner herein had challenged the show-cause Notice dated 28-10-1998 in No. LRF. CR. 69 issued to the petitioner and one L.K. Sheshappa (the father of the petitioner herein) a non-party to the instant writ petition and also stated to be no more, by the respondent 2-the Divisional Commissioner, Bangalore Sub-Division. In issuing the same, the said Revenue Authority while setting aside the order passed in the proceedings in No. A.C. PUC.M.C.R:211 of 1987 initiated under Section 83 of the Land Reforms Act (henceforth referred to as the Act) for violation of Section 79-A of the said Act, passed by respondent 3 - the Assistant Commissioner and prevention of unauthorised construction, called upon the petitioner and the above said L.K Sheshappa to show cause as to why the proceedings be not reopened. The respondent 2 further called upon the said persons therein to appear before him on 12-2-1999.
3. I heard the learned Counsel for the petitioner, Sri T.N. Vish-wanath and the learned Government Advocate appearing for the respondents 1 to 3.
4. The learned Counsel for the petitioner while taking me through the impugned notice under challenge at the outset submitted that the same was issued without any jurisdiction in as much as, according to him, such a notice could not be issued by the Authority at all under Section 118-A of the Land Reforms Act. It is his sub-mission in this connection that invoking the powers under Section 118-A of the Act arises only when no appeal can be filed as against the orders passed by the Assistant Commissioner. While falling back upon sub-section (2) of Section 118, it was argued by him that, when the orders came to be passed under Section 83 of the Act, an appeal would lie to K.A.T. Therefore, admittedly when in the instant case in hand, the orders by the respondent 3 came to be passed under Section 83 of the Act, it was an appealable order as per sub-section (2) of Section 118 and therefore it is obvious that the Divisional Commissioner would not have invoked the jurisdiction under Section 118-A of the Act to issue the impugned show-cause notice. Nextly, Sri Vishwanath argued that even if for argument sake it were to be taken that the Divisional Commissioner had authority to issue the show-cause notice, the Divisional Commissioner would not have issued the same after 10 long years. What Sri Vishwanath wanted to submit" in this context is that the Divisional Commissioner would have issued the show-cause notice within reasonable time. In support of that argument, he had also cited before me Mansaram v S.P. Pathak and Venkatagiriyappa v State of Karnataka, Revenue Department. He also submitted that the Divisional Commissioner had got jurisdiction under Section 118-A of the Act only in case the orders by the respondent 3 came to be passed under sub-section (2-B) of Section 118. In this regard he had also cited before me two decisions. They are, Gururaj alias Gurunath Govind Rao Mutalik Desai v State of Karnataka and q * * Others and Lakshminarayana Hariyachar v Divisional Commissioner. To sum up his argument, Sri Vishwanath, submitted that viewed from any angle the impugned show-cause notice issued by the Divisional Commissioner, was totally opposed to law.
5. The learned Additional Government Advocate appearing for respondent 1 to respondent 3 on the other side counter argued that in issuing the show-cause notice at Annexure-C, all that the Divisional Commissioner did was only to call upon the petitioner to show-cause as to why the proceedings that culminated with the order dated 31-3-1989 by the respondent 3 copy at Annexure-B to writ petition be not re-opened. Therefore, according to him, it was very much available for the petitioner to show cause before respondent 2-Divisional Commissioner instead of resorting to the instant writ petition before this Court. Therefore, he submitted that the instant writ petition does not merit any consideration in the hands of this Court. Hence, he prayed that the writ petition be dismissed.
6. Having heard both sides, I think that the issue before me in the writ petition is purely a legal issue. The learned Counsel for the petitioner vehemently argued that when an appealable order under Section 83 was passed by the Authority i.e., the Assistant Commissioner it was totally impermissible for the Divisional Commissioner to recourse to Section 118-A of the Act. I think it is appropriate to refer to said sections and further the provisions in Section 83 of the Act.
7. Section 118 of the Act reads as hereunder:
"118. Appeals.-xxx (1-A) xxxx.
(2) From every order passed by the Deputy Commissioner or (an officer authorised under sub-section (1) of Section 77, the Assistant Commissioner or the prescribed authority under Section 83) an appeal shall lie to the (Karnataka Appellate Tribunal) and the order of the (Karnataka Appellate Tribunal) on such appeal shall be final.
(2-A) xxxx.
(2-B) From every order passed by the Tahsildar, an appeal shall lie to the Assistant Commissioner and the order of the Assistant Commissioner on such appeal shall be final".
Section 118-A reads as under:
"118-A. Revision by the Divisional Commissioner.--The Division Commissioner may of his own motion or on the application of any person at any time call for and examine the record of any order passed by the Assistant Commissioner against which no appeal lies or the record of any order passed or proceeding recorded by the Tahsildar for the purposes of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order with respect thereto as he thinks fit:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard".
Section 83 of the Act reads as hereunder:
"83. Inquiry regarding illegal transaction.--The prescribed authority shall, after a summary inquiry, determine whether the transaction reported to it under Section 82 or coming to its notice in any other manner is in contravention of (or is unlawful or invalid under) the provisions of this Act, (as they stood before or as they stand after the date of commencement of the Amendment Act) and make a declaration accordingly. Any transaction so declared to be in contravention of (or is unlawful or invalid under) any of the provisions of this Act (as they stood before or as they stand after the date of commencement of the Amendment Act) shall be null and void. (The land in respect of which such transaction has taken place shall, as penalty, be forfeited to and vest in the State Government, (free from all encumbrances). No amount is payable therefor)".
8. From the sub-section (2) of Section 118, it is clear that an order under Section 83 of the Act is an appealable order and that appeal lies before the K.A.T. On a simple reading of Section 118-A, it is also clear that the Divisional Commissioner may on his own or on an application to him can call for at any time for examining of order passed by the Assistant Commissioner against which no appeal lies or the record of any order passed or proceedings recorded by the Tahsildar for the purpose of satisfying himself as to the legality of such order. From the first part of the said provision, it is clear that invoking the provisions in Section 118-A of the Act arises only when no appeal lies as against the order of the Assistant Commissioner. In the instant case, admittedly the orders came to be passed by the said authority under Section 83 and that as per sub-section (2) of Section 118, the same is an order appealable before the K.A.T. If the Assistant Commissioner had passed an appealable order under Section 83 of the Act, as pointed out by me as above, it is obvious that it was totally impermissible for the Divisional Commissioner to invoke the provisions under Section 118-A of the Act. Therefore sufficies to say that the respondent 2-Divisional Commissioner, had no jurisdiction to issue the impugned show-cause notice to the petitioner as well as her late father L.K. Sheshappa.
9. Yet another aspect of the error on the part of the Divisional Commissioner in issuing of the show-cause notice to the petitioner as well as her father, as I have observed, is that the Divisional Commissioner, had set-aside a non-existing order. The reason being that in the show-cause notice, it is stated that the orders passed was in No.MCR. 211 of 1988-89, whereas if he refer to the order that was passed by respondent 3 copy at Annexure-B to writ petition, it is clear therefrom that the proceedings was in SC.PUC.MCR. 211 of 1987-88 and was dated 31-3-1989. It is to be observed here that in the impugned notice not only the reference was wrongly quoted besides there was no reference for the date at all.
10. The learned Counsel for the petitioner had also cited before me, the decisions in Venkatagiriyappa, Mansaram, Gururaj and Lakshminarayana Hariyachar cases, supra, wherein this Court had held that invoking the provision under Section 118 of the Act, arises only when the orders came to be passed under sub-section (2-B) of Section 118 of the Act.
11. Therefore, I have got no hesitation to endorse the argument of the learned Counsel for the petitioner that the impugned order passed by the Divisional Commissioner was totally without jurisdiction and that the same is therefore liable to be quashed. On reaching that conclusion, I pass the following order:
12. The impugned show-cause notice dated 28-10-1998 in case No. LRF.CR.69 issued by the respondent 2-Divisional Commissioner to the petitioner and to her late father L.K. Sheshappa is quashed.
13. That the order passed by the respondent 3-Assistant Commissioner on 31-3-1989 in case No. SC.PUC.MCR. 211 of 1987-88 copy at Annexure-B to writ petition is confirmed.
14. In the result, the writ petition succeeds and accordingly stands allowed. Rule issued made absolute. No cost.