Karnataka High Court
M N Prabhakara vs The Deputy Commissioner on 11 February, 2020
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2020
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.39142/2012(KLR-RES)
BETWEEN:
M. N. PRABHAKARA,
S/O M V NARAYANA,
AGED ABOUT 70 YEARS,
KUNHAMULE HOUSE,
IVERNAD VILLAGE, PO IVERNADU,
SULLIA TALUK, D.K DISTRICT-574239.
...PETITIONER
(BY SRI N. SHANKARANARAYANA BHAT, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
D.K. DISTRICT,
MANGALORE-575001.
2. THE ASSISTANT COMMISSIONER
PUTTUR SUB-DIVISION, PUTTUR,
D K DISTRICT-574201.
3. SRI I PRABHAKARA RAO
S/O RAGHAVA RAO,
AGED ABOUT 60 YEARS,
IVERNADU VILLAGE, PO IVERNAD,
SULLIA TALUK, D.K DISTRICT-574239.
...RESPONDENTS
(BY SRI Y.D. HARSHA, AGA FOR R1 & R2;
SMT. NEERAJA KARANTH, ADVOCATE FOR
SRI K. SRIHARI, ADVOCATE FOR R3)
****
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER OF THE DEPUTY COMMISSIONER, DAKSHINA KANNADA
DISTRICT, MANGALORE DATED 10.02.2012 VIDE ANNEXURE-A
ETC,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner in the above writ petition has sought for a writ of certiorari quashing the order dated 10.2.2012 passed in No.C.Dis.RAP.27/2011-12 by the Deputy Commissioner, Mangalore, Dakshina Kannda District, Annexure-A.
2. It is the case of the petitioner that the lands bearing Sy.Nos. 213/1, 215/1, 216/1B. 215/2 and 215/3 of Ivernadu village, Sullia Taluk are his Kumki lands as he was owning the adjacent 'Kadim' Warga lands. Without issuing any notice to him and his predecessor in title, the said lands were granted to the 3rd respondent against which, the petitioner filed an appeal before the Assistant Commissioner, Revenue 3 Sub-Division, Puttur, who after hearing both the parties, by the order dated 5.1.2011 dismissed the appeal. Against the said order, the petitioner filed Revenue Appeal in C.DIS.RAP.27/2011-12 before the Deputy Commissioner, who disposed off the appeal with a direction to the petitioner to approach the appropriate authority for suitable relief in view of the order passed by this Court on 18.8.2011 in W.P.No.11953/2011 holding that the Deputy Commissioner lacked jurisdiction to entertain the revision petition under the provisions of Section 136(3) of the Karnataka Land Revenue Act (for short, 'the Act') in respect of the order which was subject matter of appeal before the Assistant Commissioner under Section 136(2) of the Act. Hence, the present writ petition is filed for the relief sought for.
3. I have heard the learned Counsel for the parties to the lis.
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4. Sri N. Shankaranarayana Bhat, learned Counsel for the petitioner contended that the Deputy Commissioner erred in rejecting the appeal merely because while filing the appeal, it was wrongly mentioned as under the provisions of Section 50 of the Act instead of Section 136(3) of the Act. He further contended that the Deputy Commissioner is the authority to decide the revision though wrongly mentioned as appeal under Section 50 of the Act and a finding also has been recorded that against the order of the 2nd respondent, the appeal was filed wrongly quoting the provisions as "u/s 50 of the K.L.R. Act' which should have been filed under Section 136 (3) of the Act. Therefore, he contended that the Deputy Commissioner ought to have proceeded on merits instead of dismissing the appeal on technicality. Therefore, he sought to allow the writ petition.
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5. Per contra, Smt. Neeraja Karanth for Sri K. Shrihari, learned Counsel for respondent No.3 sought to justify the impugned order and contended that against the order passed by the Assistant Commissioner under the provisions of Section 136(2) of the Act, the petitioner ought to have filed revision under the provisions of Section 136(3) of the Act and as such, the filing of appeal under the provisions of Section 50 of the Act was not maintainable and accordingly, the liberty was reserved to the petitioner to approach appropriate authority for suitable relief. Therefore, she sought to dismiss the writ petition.
6. Sri Y.D. Harsha, learned Additional Government Advocate for respondent Nos.1 and 2 submits that though against the order dated 5.1.2011 passed by the Assistant Commissioner, a revision lies before the Deputy Commissioner under the provisions of Section 136(3) of the Act, the Deputy Commissioner erroneously 6 disposed off the appeal mainly on the ground that in view of the order dated 18.8.2011 passed by this Court in W.P.11953/2011, the Deputy Commissioner lacked jurisdiction to entertain the revision petition under the provisions of Section 136(3) of the Act in respect of an order which was the subject matter of appeal before the Assistant Commissioner under the provisions of Section 136(2) of the Act. He further submits that in view of the dictum of this Court in the case of K. Ashok vs. Shri Pandurang and Others reported in ILR 2012 KAR 4571 (FB) the Full Bench has held that against any order passed by the Assistant Commissioner under Section 136(2) of the Act, the Deputy Commissioner is entitled to entertain revision petition under Sub-section (3) of Section 136 of the KLR Act. As such, he contended that the Deputy Commissioner is entitled to entertain the revision afresh on merits. The said submission is placed on record. 7
7. Having heard the learned Counsel for the parties, it is an undisputed fact that according to the petitioner, the properties in question are Kumki lands which is his properties in respect of Warga lands and without notice to him, all the lands were granted to the 3rd respondent. As such, an appeal came to be filed before the Assistant Commissioner, who dismissed the appeal on 5.1.2011 exercising the powers under the provisions of Section 136(2) of the Act. Against the said order, the petitioner instead of filing revision before the Deputy Commissioner under the provisions of Section 136(3) of the Act, he has filed an appeal under the provisions of Section 50 of the Act. The Deputy Commissioner observing that as against the order of the Assistant Commissioner, the appeal is filed before him by wrongly quoting the provision as under Section 50 of the Act which should have been under Section 136(3) of the Act, proceeded to dispose off the appeal on the 8 ground that there is no jurisdiction to entertain the appeal.
8. The Full Bench of this Court in the case stated supra has held that any order passed by the Assistant Commissioner under the provisions of Section 136(2) of the Act, the Deputy Commissioner is entitled to entertain the revision under the provisions of Section 136(3) of the Act and the relevant paragraph Nos.15, 17 and 18 read as under:
15. The scheme and provisions of the Acts and the language employed in the above said provisions cannot be said that they are different. The word 'final' appearing in the provision cannot take away the right of the aggrieved party to challenge the order of the Appellate Authority before the Deputy Commissioner, who is the highest authority of the Revenue District/Court, by way of revision petition, before approaching the Law Courts.9
17. The pronouncement of the Larger Bench made in the case of Muthalik Desai's case, supra, is applicable on all the fours to the present case. In our view the intention of the Legislature is to provide an opportunity to the aggrieved party to prefer a revision under Section 136(3) of the Land Revenue Act as against the order of the Appellate Authority, before approaching the Law Courts and therefore the provision of Sections 136(3) of the Land Revenue Act has been made. Hence, the observation of the Division Bench in Murugarajendra Mahaswamy's case, that "if the intention of the Legislature was that the Deputy Commissioner should also have the power to interfere with an appellate order made under sub-Section (2) of Section 136 of the Land Revenue Act, it would have specified the said provision also in sub-
Section (3) of Section 136 of the Land Revenue Act just as Sections 127 and 129" is not correct.
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18. Keeping in view the Doctrine of 'stare decisis' and the reasons stated supra, it has to be held that the Deputy Commissioner is entitled to entertain a revision petition under sub-Section (3) of Section 136 of the Land Revenue Act, as against the orders made under sub-
Section (2) of Section 136 of the Land Revenue Act.
9. For the aforesaid reasons and the dictum of the Full Bench of this Court stated supra, writ petition is allowed. The impugned order dated 10.2.2012 passed by the Deputy Commissioner in No.C.DIS.RAP.27/2011- 12, Annexure-A dismissing the revision petition as not maintainable is hereby quashed holding that the revision petition filed by the petitioner before the Deputy Commissioner under the provisions of Section 136(3) of the Act is maintainable. The Deputy Commissioner is directed to consider the appeal filed under the provisions of Section 136(3) of the Act on merits after 11 providing an opportunity to both the parties, pass appropriate orders strictly in accordance with law.
10. All the contentions raised by both parties are left open to be urged before the Deputy Commissioner.
Sd/-
Judge Nsu/-