Siddeshwar Yuvak Mandal vs State of Karnataka and Others

This petition, filed under Arts. 226 and 227 of the Constitution of India, is directed against an order of the Special Deputy Commissioner, Belgaum, dated 22-4-1980 Annexure-E (in case No. RB. LND. 12/79 on his file). It is preferred by an Association of young men called Siddeswar Yuvak Mandal, village Siddasamudra, Taluka Bailhongal, Belgaum District (hereinafter referred to as the Yuvak Mandal). The Yuvak Mandal and Fakiragouda Siddanagouda Patil (respondent-4 herein) (Sri Patil) were rival claimants for the grant of eksal lease of an agricultural land comprised in Sy. No. 4/8 of village Siddasamudra by the Revenue Department. By his order dated 14-6-1979, Annexure-D (in case No. LAQ. SR. 698 on his file) the Tahsildar Bailhongal (respondent-3) leased the said land on Eksal basis to the Yuvak Mandal. Sri Patil questioned the correctness of this order before the Special Deputy Commissioner. After hearing the parties the Special Deputy Commissioner passed the impugned order (Annexure-E) allowing the appeal by setting aside the order of the Tahsildar.

The learned Counsel appearing for the Yuvak Mandal submitted that under the Karnataka Land Revenue Act, 1964 (the Act) the appeal against the order of the Tahsildar lies only to the Assistant Commissioner and not to the Deputy Commissioner and, therefore, the proceeding before the Special Deputy Commissioner culminating in the impugned order was vitiated, the same having been initiated in a court lacking in inherent jurisdiction in law to entertain the said appeal.

On the other hand, the learned Counsel appearing for Sri Patil, white supporting the impugned order, submitted that, though it was true under the Act an appeal against the order of the Tahsildar lies to the Assistant Commissioner but not straightaway to the Deputy Commissioner, the Deputy Commissioner has inherent powers to deal with an appeal of this nature and the order having been passed in exercise of his inherent powers cannot be characterised as unsustainable in law.

The Tahsildar purported to have leased the land exercising his powers under the Karnataka Land Grant Rules, 1969 (the Rules). The Act maintains a distinction between a "Revenue Officer" and a "Revenue Court". As defined in sub-section (24) of S. 2 of the Act ''Revenue Officer'' means every officer of any rank whatsoever appointed under or employed for the purposes of this Act. Such a Revenue Officer not below the rank of a Tahsildar "while exercising the powers under this Act or any other law for the time being in force to inquire into or to decide any question arising, for determination between the State Government and any person or between the parties to any proceeding" is deemed to be a Revenue Court as provided under S. 24 of the Act. The procedure to be followed by officers presiding over such Courts is laid down in Chapter III of the Act which contains Ss. 24 to 39. S. 25 of the Act confers inherent powers on the Revenue Courts That section reads as follows:

"25. Having of Inherent Powers of a Revenue Court; Nothing in this Act, shall be deemed to limit or otherwise affect the inherent power of the Revenue Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Revenue Court".

The Special Deputy Commissioner was not unaware of the fact that an appeal against an order of the Tahsildar does not directly lie to him, but to the Assistant Commissioner. But. purporting to exercise his inherent powers under the above provision, he dealt with that appeal on merits. In the impugned order he observes that the appeal no doubt had been preferred in a wrong forum; that it should have been preferred before the Assistant Commissioner; and that even then he feels that, exercising his inherent powers under S. 25 of the Act, he can deal with that "manifestly unjust" order of the Tahsildar.

S. 25 of the Act is in pari-materia with S. 151 of the Code of Civil Procedure. In a similar situation, when this Court had purported to try a cause in exercise of its inherent powers under S. 151 of the Code, the Supreme Court observed that the inherent powers saved under S. 151 cannot be used to assume jurisdiction which the Court does not other wise possess. In Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC 1449, the Supreme Court has observed as follows at paras 7, 8 and 9:

"The jurisdiction to try a suit, appeal or proceeding by a High Court under the power reserved by S. 24 (1) (b) (i) arises only if the suit, appeal or proceeding is properly instituted in a Court subordinate to the High Court, and the suit, appeal or proceeding is in exercise of the power of the High Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate Court of competent jurisdiction and transferred thereof to the High Court. Power to try and dispose of a proceeding after transfer from a Court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court.

S. 151 preserves the inherent power of the Court as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. That power may be exercised where there is a proceeding lawfully before the High Court; it does not, however, authorise the High Court to invest itself with jurisdiction where it is not conferred by law.

The High Court is not competent to assume to itself jurisdiction which it does not otherwise possess, merely because an "extraordinary situation" has arisen. By "jurisdiction" is meant the extent of the power which is conferred upon the Court by its constitution to try a proceeding; its exercise cannot be enlarged because an extraordinary situation requires the Court to exercise it." (Head note)

In another decision, the Supreme Court Nain Singh v. Koonwarjee, AIR 1970 SC. 997, observes that the inherent power vested in a Court should not be exercised as an appellate power. In that case the observations of the Court at Paragraph-4 may be noted:

"The High Court, in our opinion erred in holding that the correctness of the remand order was open to review by it. The order in question was made under Rule 23 Order 41 CPC. That order was appealable under Order 41 of that Code. As the same was not appealed against, its correctness was no more open to examination in view of S. 105 (2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness. The High Court has misconceived the scope of its inherent powers. Under the inherent powers of Courts recognised by S. 151 CPC, a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the Court cannot make use of the special provisions of S. 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under S. 151 of the Code cannot be exercised as an appellate power" (Underlining Italics supplied).

While trying to justify his view in his order the Special Deputy Commissioner refers to a decision of the Supreme Court said to have been reported in AIR 1953 SC. 2. I was unable to lay my hands on any such decision reported therein. The observations of the Supreme Court in the decisions referred to above can be said to apply to similar cases arising under the Act.

Counsel appearing for Sri Patil, relying on (i) 1958 Mys.L.J. 442, (ii) 1964 Mys.L.J. supplement 721 and (iii) 1964 (1) Mys.L.J. 318, submitted that Yuvak Mandal, which was a party to the proceeding before the Special Deputy Commissioner, had participated in the proceeding before him without raising any objection as to his jurisdiction and, therefore, was estopped from taking a plea in this Court that the Special Deputy Commissioner had no jurisdiction to deal with that appeal. The order of the Special Deputy Commissioner does not contain any observation that the Yuvak Mandal had not taken any such plea before him and that he himself, suo motu, had raised that question and had explained it away as stated above. Even otherwise, since the Deputy Commissioner could not have exercised his appellate power invoking S. 25 of the Act, I feel the impugned order should not be sustained on this technical plea advanced by the Counsel appearing for Sri Patil.

In this case I have not examined as to whether the Deputy Commissioner could have treated that appeal memo as a revision and dealt with the same according to law. It is still open to consider this aspect of the matter and deal with the same if permissible and in accordance with law.

Therefore, the petition is allowed; the Rule issued is made absolute; and the impugned order is hereby quashed. The Special Deputy Commissioner may examine, after hearing both the parties, whether he can entertain this matter as a revision and deal with the same accordingly. Otherwise, he may return the appeal memo to the party who had presented the same for presentation to the proper forum or Court. No costs.