Karnataka High Court
Vasanth Narayana Tikare vs Joint Director Of Land Records on 3 February, 1995
Equivalent citations: ILR1995KAR560, 1995(3)KARLJ481, 1996 A I H C 3976
JUDGMENT Bharuka, J.
1. The question that needs to be considered and answered in this Writ Petition is as to whether a revision can lie before the Joint Director of Land Records against an appellate order passed by the Deputy Director of Land Records in the matter of mutation of names in the City Survey records in respect of building sites under the provisions of the Karnataka Land Revenue Act, 1964 (the Act, for short) and the Karnataka Land Revenue Rules 1966 (the Rules, for short).
2. Petitioner and the fourth respondent are own brothers. A house property bearing CTS No. 2999B situate in Gokak Town was ostensibly purchased by respondent No. 4 under a registered Sale Deed dated 2.12.1957 from one Sri Arjunsa Krishnasa Satapute for a consideration of Rs. 6,500/-. Since according to the petitioner the property was acquired out of the joint family funds, he filed a worthy before the respondent Assistant Director of Land Records for mutation of his name in the City Survey records to the extent of fifty per cent share in the said property. Respondent No. 4 disputed the source of acquiring the property on the plea that the property in question was acquired out of his own earnings and as such the fourth respondent has no share in it. The Assistant Director, for the reasons set out in his order dated 30.5.1992 (Annexure-A) rejected the said application. Petitioner then preferred an appeal before the respondent Deputy Director of Land Records who, after hearing the parties, allowed the appeal by his order dated 26.3.1994 (Annexure-B) directing entering of the name of the petitioner in the relevant records. This order was challenged by the fourth respondent before the respondent Joint Director of Land Records invoking his purported revisional jurisdiction. The Joint Director for the reasons assigned in his impugned order dated 30.7.1994 (Annexure-C) has set aside the order of the Deputy Director thereby affirming the order of the Assistant Director. Petitioner being aggrieved by this order has preferred the present Writ Petition.
3. Learned Counsel for the petitioner has assailed the impugned order of the Joint Director on the ground that under the provisions of the Act and the Rules, no revision is maintainable before him in the matter of mutation in revenue records. In support of his submission he relied on a Division Bench Decisions of this Court in the case of SRIMANMAHARAJA NIRANJANA JAGADGURU MALLIKARJUNA MURUGARAJENDRA MAHASWAMY v. DEPUTY COMMISSIONER and in the case of GANGADHARA MURTHY v. STATE In reply, learned Counsel for the contesting respondent has submitted that in view of Rule 69(2) of the Rules the second appeal was maintainable before the respondent Joint Director and therefore mere wrong filing of the appeal or the revision cannot affect the jurisdiction of the competent authority.
4. Learned Advocate General by referring to the scheme of the Act and the Rules and various provisions contained therein has submitted that in mutation matters neither a second appeal nor a revision against the appellate order is maintainable, and, therefore, the order of the Joint Director is without jurisdiction.
5. For eliciting an appropriate answer to the question posed, one has to first ascertain the respective provisions under the Act and the Rules which deal with mutation of names of the owners of building sites in the relevant revenue records.
6. Section 2 of the Act provides for definition of various terms and phrases used under the Act and it provides that unless the context otherwise requires the definitions of the respective words and phrases will be as defined therein.
7. Clause (2) of Section 2 of the Act defines "building site" to mean a plot of land held for building purposes, whether any building is actually erected thereupon or not, and to include the open ground or courtyard enclosed by, or adjacent to, any building erected thereupon.
8. Clause (14) of the said Section sets out an inclusive definition of the word 'land' inter alia to include therein benefits to arise out of land, and things attached to the earth. Therefore, unless in the body of the Act, the context otherwise requires, the inclusive definition of the word 'land' will take into its sweep the building sites as defined under Clause (2).
9. Similarly, Clause (36) of Section 2 defines 'town' to include a Panchayat town or a town area under the Karnataka Village Panchayats and Local Boards Act, 1959; whereas Clause (38) of the Section defines 'village' to mean a local area which is recognised in the land records as a village for purposes of revenue administration and to include a town or city and all the land comprised within the limits of a village, town or city.
10. From a conspectus of various provisions of the Act, I find that only the provisions contained in Chapter XI of the Act containing Sections 127 to 136 deals with the maintenance of record of rights. But this Chapter in terms deals with preparation and maintenance of record of rights and mutations on subsequent acquisitions, only in respect of 'lands' situated in 'villages'. There is no whisper in this Chapter regarding maintenance of records of 'building sites' whether located in villages or towns.
11. Chapter XIII of the Act running from Sections 148 to 156 provides for fixing limits of sites of villages, towns and cites and assigning and disposal of 'building sites'. This Chapter though in certain respects makes specific provisions for building sites, it does not contain any provision for preparation of record of rights in respect of building sites. In this view of the matter, I am of the opinion that in the absence of any specific provisions under the Act in respect of building sites situated in towns, the provisions made in this regard for lands situated in villages, will be applicable to buildings sites situated in towns and villages as well. This is because of the extended definition of the 'land' and 'village' noticed above.
12. Coming to the Rules, it is found that Chapters VIII, IX and XII deal with preparation and maintenance of record of rights in respect of lands and building sites. Under the Rules, the Rule making authority has tried to maintain a distinction in respect of maintenance of records pertaining to agricultural lands in contradistinction to 'building sites'. Chapter VIII sets out a machinery for introduction of records of rights in villages in respect of agricultural lands. Chapter IX of the Rules provides for procedure of mutation in the record of rights in cases of acquisition of rights subsequent to introduction of records under Chapter VIII. This interpretation of the provisions of these two Chapters is supported by various steps envisaged thereunder. The authorities are required to deal with enquiries in this regard and requisite information which are to be filled in the prescribed Forms at various stages, ultimately culminating in preparation of 'Phani Patrike, Record of Rights and Tenancy Particulars', the Form of which being No. 16 is appended to the Schedule of the Act. In this regard, the nature of information required to be entered about the description of lands and the person in possession necessarily refer only to agricultural lands. Therefore, these two Chapters per se has no bearing on maintenance of records pertaining to rights in 'building sites'.
13. The next and the only relevant Chapter under the Rules is Chapter XII comprised of Rules 82 to 93-A. This Chapter specifically provides for survey, maintenance of records of building sites and mutations in cases of change in the rights over such sites on account of succession, survivorship, inheritance or otherwise. Whereas in respect of agricultural lands, records relating to certain interests in agricultural lands have to be maintained in Form No. 16, commonly known as 'Pahani Patrike' or RTC, under Rule 83(2)(d) such records pertaining to building sites are to be maintained in Form No. 13 described as 'property card'.
14. As I have held earlier, Chapter XI of the Act will have its application even in respect of building sites. Section 128 provides that in case of acquisition of rights by any person in any lands, such person has to give information in that regard to the Prescribed Authority. In case of agricultural lands, under Rule 62 information has to be given to the Village Accountant. But in respect of building sites as provided under Rule 88, the said information has to be given to the City Surveyor. Similarly, if there be any dispute in relation to mutation of a particular name, it has to be disposed of under Section 129(4) of the Act by the prescribed authority in the manner laid down under that Section by passing an order to that effect. In case of agricultural lands, Rule 67 read with Rule 43 prescribes 'Sheristedar' or any officer of the Revenue Department equal or superior in rank to him, as the prescribed authority for the said purpose. But in case of building sites, Rule 90 provides that the disputed cases shall be disposed of according to the procedure prescribed in Rule 67. But as noticed above, Rule 67 refers to Rule 43. Does it mean that even in case of building sites the dispute relating to the record of rights have to be disposed of by the Sheristedar or the officers of the Revenue Department referred to therein? An answer to this question needs a detailed discussion.
15. Rule 90 of the Rules though has sought to adopt the procedure prescribed under Rule 67 for resolution of disputes in mutation matters, it has not prescribed any authority for taking a decision and passing orders. Incorporation of a statute by reference into another statute is a well recognised legislative device adopted as a convenient mode of avoiding repetition. Use of such a device is quite permissible even within the framework of a particular legislation, by incorporating one provision into another by reference. But then, the incorporated provision can be read into the incorporating provision only to the extent it is intended to be incorporated. If the intention is to incorporate only the procedural part of it, then the other part investing powers on certain authorities cannot be automatically imported. An authority and the procedure to be followed by such authority lie in identifiable independent areas. In such cases, only the procedural part of the incorporated provision has to be culled out and applied. But reading of Rule 90 even by incorporating procedure envisaged in Rules 67 & 43 leaves it unworkable since it does not ex-facie prescribe any authority to deal with the dispute. Stopping here would lead to an incongruous situation.
16. Section 195 of the Act provides for delegation of powers to officers and authorities subordinate to the State Government in respect of powers to be exercised under the Act. It reads as under:
"195. Delegation of powers.-(1) The State Government may, by notification delegate to any officer or authority subordinate to it, any of the powers conferred on the State Government or any officer subordinate to it under this Act, to be exercised by such officer or authority, subject to such restrictions and conditions, if any, as may be specified in the said notification.
(2) Notwithstanding anything contained in Sub-section (1), the State Government shall not delegate any of the powers under Sections 3, 4, 6, 7, 8, 9, 10, 18, 20, 21, 40, 43, 48, 114, 115, 121 or 125 or the power to make rules under Section 197 or the power to remove difficulties under Section 201."
In exercise of the said powers under Section 195(1) of the Act, the State Government under its Notification No. RD.296.FLR.80 dated 18th May 1989 has delegated the powers and functions of the prescribed officer as envisaged under Section 129(4) of the Act to the Assistant Director of Land Records. Under the Notification the jurisdiction has been prescribed to be within the city survey limits of any town or city as declared under Section 148 of the Act and as specified by the Director in this behalf.
17. Here I feel like observing that the Government would have done better by prescribing appropriate authority in Rule 90 itself instead of reflecting its discretion through a Notification since Section 129(4) speaks about 'prescribed' authority, which under Section 2(22) means as prescribed by Rules.
18. Therefore, keeping in view the Rule of Harmonious Construction and the avowed object of making the provisions workable and effective, it can be safely held that in case of building sites the Assistant Director of Land Records is the authority who has been empowered to pass appropriate orders after due enquiry in the disputed cases.
19. The next question that arises is as to what is the remedy of a person who is aggrieved by an order passed by the Assistant Director under Rule 90. Chapter XII of the Rules has made no provision in this regard. Rule 69 of the Rules provides for an appeal to the Prescribed authority against the orders passed under Rule 67. But in my opinion, the absence of any provision providing for a remedy against an order under Rule 90, is not of much consequence, because the three Chapters namely Chapters VIII, IX and some Rules under Chapter XII merely provide for details relating to maintenance of record of rights as envisaged under Chapter IX of the Act dealing with the record of rights in respect of all lands - whether agriculture or non-agriculture, including the house sites; and therefore, the rights and remedies of the parties have to be culled out from the provisions of the said Act and the respective Rules made in this regard are required to be read in conformity with the provisions of the parent Act.
20. Section 136 of the Act provides for an appeal and a revision and is in the following terms:
"136. Appeal and Revision.- (1) The provisions of Chapter V shall not apply to any decision or order under this Chapter.
(2) Any person affected by an order made under Sub-section (4) or an entry certified under Sub-section (G) of Section 129 may within a period of sixty days from the date of communication of the order or the acknowledgement of the entry certified, appeal to such officer as may be prescribed by the State Government in this behalf and his decision shall be final.
(3) The Deputy Commissioner may, on his own motion or on application of a party, call for and examine any records made under Section 127 and Section 129 and pass such orders as he may deem fit:
Provided that no order shall be passed except after hearing the party who would be adversely affected by such order."
Under Sub-section (2) of Section 136, an appeal is entertainable by an officer prescribed in this behalf. But under Section 136(3) a revision can be entertained only by the Deputy Commissioner of the District.
21. Rule 69 of the Rules prescribes the authorities who can hear the appeals against the orders passed by the appropriate authorities in disputed cases. This Rule reads as under:
"69. Appeal during the maintenance stage.- In respect of an order passed under rule 67,-
(i) by the Revenue Inspector, Sheristedar or Tahsildar or an Assistant Superintendent of Land Records or an officer of equal status, an appeal shall lie to the Assistant Commissioner; and
(ii) by the Assistant Commissioner or by an officer of the Land Records Department of equal rank, an appeal shall lie to the Deputy Commissioner."
22. By the Notification dated 18th May 1989 issued under Section 195(1), as noticed above, the jurisdiction to hear the appeals under Rule 69(1) as conferred on the Assistant Commissioner, has been delegated to the Deputy Director of Land Records to be exercised within the city survey limits of any town or city as declared under Section 148 of the Act and as specified by the Director in this behalf. Similarly, under the very Notification the appellate power envisaged under Rule 69(2) and the revisional power conferred under Section 136(3) on the Deputy Commissioner has been delegated to the Joint Directors of Land Records within the limits assigned to him under the Notification in their respective territorial jurisdiction,
23. Therefore, keeping in view the scheme of the Act and the nature of administrative functions discharged by the respective officers who have now been vested with the statutory functions, it seems to be a plausible and reasonable interpretation to hold that in case of building sites the original jurisdiction to resolve the disputes is vested in the Assistant Directors and that of entertaining the appeals against the orders passed by them lies with the Deputy Directors; and that the revisional power in this regard has to be exercised by the Joint Directors.
24. Now coming to the main question as to whether a second appeal or a revision can lie against the appellate order passed under Section 136(2) of the Act. The answer to this question does not require any detailed discussion, because the question is no more res integra in view of the Division Bench Decision of this Court in the case of Srimanmaharaja Niranjana Jagadguru Mallikarjuna Murugarajendra Mahaswamy v. Deputy Commissioner. In the said case, on examination of the entire scheme of the Act and the provisions specifically contained in Section 136 it has been held that under Sub-section (3) of Section 136 of the Act the Deputy Commissioner has no power to interfere with the appellate order made by the authorities exercising the appellate jurisdiction under Sub-section (2) of Section 136 of the Act.
25. For the said reasons, keeping in view the facts of the respective provisions applicable to the present case, it has to be held that the Joint Director had no jurisdiction to entertain either a second appeal or a revision against an appellate order passed by the Deputy Director under Section 136(2) of the Act. Therefore, the impugned order at Annexure-C is liable to be, quashed as having been passed without jurisdiction. I may clarify here that neither Rule 43(3) nor Rule 69 of the Rules provide for any independent appellate forum since in the matter of mutation disputes the remedies of the aggrieved parties are to be governed by Section 136 alone. The said Rules merely prescribe the authorities, as envisaged under the said Section, who can exercise the appellate jurisdiction. The Joint Director has misconstrued Rule 69(2) as to having invested in him with the jurisdiction of second appellate authority.
26. Before parting with the Judgment, it may be noticed here that admittedly a Civil Suit being OS No. 8 of 1992 filed by the petitioner for declaration of title and recovery of possession is pending consideration on the file of the Civil Court at Gokak. It is also an admitted fact that respondent No. 4, who is the ostensible owner of the property, is in possession thereof and the same cannot be disturbed except under the authority of law i.e. in the facts of the present case, only through the process of the Civil Court.
27. For the reasons and discussions as above, the impugned order dated 30.7.1994 passed by the first respondent (Annexure-C) is quashed as being without jurisdiction. The Writ Petition is thus allowed but without any costs.