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2002 Supreme(Kar) 447
Karnataka High Court
H.N.CHANDRASHEKAR - Appellant
Versus
DEPUTY COMMISSIONER, CHICKMAGALUR DISTRICT, CHICKMAGALUR - Respondent
Decided On : 07-17-02
W.P. : 26208 of 2002
B.RUDRA GOWDA, T.A.Ramachandraiah
Headnote:Maintainability of revision
KARNATAKA LAND REFORMS APPELLATE AUTHORITY RULES
Sections 49, 50, 56 -Whether revision lies against the order of the second Appellate Authority? No.
[N. Kumar, J.] - Against the order of the first Appellate Court passed under Section 49 of the Act, the aggrieved party has two remedies. Either he can prefer a second appeal under Section 50 of the Act, or he can prefer a revision against the order of the first Appellate Court under Section 56 of the Act to the tribunal. If he exercises one of these options, the other option is barred. The reason for such exclusion of the other remedy is if against the very same order if an aggrieved party is permitted to have two remedies by way of an appeal and revision before two Forums it would give raise to conflict in decisions which is to be avoided under any circumstances, i.e., if the aggrieved person were to file a second appeal under Section 50 against the order passed under Section 49 and if the second Appellate Authority dismisses the appeal and if the aggrieved person is permitted to prefer a revision against the order tinder Section 49 to the Tribunal and if the Tribunal were to set aside the order of the first Appellate Authority there would be two decisions one by the second Appellate Authority confirming the order of the first Appellate Authority, other by the Tribunal setting aside the order of the first Appellate Authority. Such a situation was never contemplated and therefore the Supreme Court has held the party who had availed of the remedy of second appeal under Section 50 is prohibited to avail of the revisional remedy under Section 56. That is precisely what Section 56(3) of the Act declares. Another principle behind this reasoning is when the order of the first Appellate Authority is challenged in second appeal and the second Appellate authority passes an order on merits either allowing the appeal or dismissing the appeal, the order of the first Appellate Authority merges with the order of the second Appellate Authority. In other words by application of doctrine of merger there is only one order i.e. of the second Appellate Authority and the order of the first Appellate Authority ceases to exist. Similar is the position even if the revisional Court either allows the revision or dismisses the revision, which is preferred against the order of the first Appellate Authority. Once such a merger takes place there is no order in existence of the first Appellate Authority, which could be challenged in another forum. But it does not mean that against the order of the first Appellate Authority under Section 49 when the aggrieved party prefers a second appeal under Section 50 of the Act, no further revision lies at the instance of the aggrieved person against the order passed by the second Appellate Authority under Section 50. What is prohibited is no revision lies against the order, which was impugned, in the second appeal. Section 56 of the Act specifically provides the Tribunal, any Revenue Officer not inferior in rank to an Assistant Commissioner, and any Survey Officer not inferior in rank to a Superintendent of Land Records or an Assistant Settlement Officer in their respective departments may call for and examine the record of any inquiry or the proceedings of any subordinate officer under this Act for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of the proceedings of such officer. It cannot be disputed that the second Appellate Authority under Section 50 of the Act is an officer inferior in rank to that of the Tribunal. Therefore, the Tribunal may call for and examine the record of any enquiry or proceedings of the second Appellate Authority for the purpose of satisfying itself as to the legality or propriety of the proceedings of such authority. This power of the Tribunal is not taken away when the aggrieved person prefers a second appeal against the order of the first Appellate Court, otherwise any other interpretation would render this provision otiose. That was not the intention of the legislature. In the aforesaid Supreme Court Judgment, the Supreme Court has not held that no revision lies against the order of the second Appellate Authority. All that has been said is if the aggrieved person has availed the remedy by way of second appeal under Section 50 of the Act the said aggrieved person is prohibited to avail the revisional remedy under Section 56 of the Act against the order of the first Appellate Authority.
( 1 ) PETITIONERS' father Sri Nirvanappa lost the land under Bhadra Reservoir project and in consideration of the same he was granted land bearing sy. No. 30 measuring 3 acres in Kenchikoppa Village under the rehabilitation Scheme. The grant was made at an upset price of Rs. 75. 00 per acre. The said grant was in the year 1961-62 and in spite of the payment of upset price saguvali chit was not issued and possession was not given. Therefore, he filed W. P. No. 52 of 1978. The said writ petition was allowed with a direction to consider the case of Nirvanappa and to issue grant certificate within three months. In pursuance of the direction issued by this Court saguvali chit was issued on 31-7-1987, mutation has been made out in the name of the petitioners as by that time their father had expired. The third respondent-Erappa who claims to be in unauthorised occupation of the said land challenged the grant in favour of the petitioners' father and also sought for regularisation of his unauthorised occupation. The Assistant Commissioner is exercise of power under Section 49 rejected the claim of the third respondent on the ground that the said land has been granted to the petitioner in pursuance of the High Court order. Aggrieved by the same, third respondent preferred a second appeal under Section 50 of the Karnataka Land revenue Act (for short, called "the Act") to the Deputy Commissioner. The Deputy Commissioner after consideration held that there is no material on record to establish the claim of the third respondent that he is in unauthorised occupation of the said land and also as the said land is granted to Nirvanappa by direction of the High Court, he declined to interfere with the order of the Assistant Commissioner and dismissed the appeal. Aggrieved by the same, Erappa preferred a revision before the Karnataka Appellate Tribunal under Section" 56 of the Act. The karnataka Appellate Tribunal on consideration of the rival contentions came to the conclusion though there was no direction by the High Court for eviction of the third respondent, the authorities by misinterpreting the said order have ordered for eviction of the third respondent which is grossly unfair and illegal and therefore set aside the orders passed both by the Assistant Commissioner and the Deputy Commissioner and remanded the matter back to the Deputy Commissioner for fresh consideration. It is against the said order, the petitioners have preferred this writ petition.
( 2 ) SRI B. Rudra Gowda, learned Counsel appearing for the petitioners, submitted when the third respondent has preferred a second appeal against the order of the Assistant Commissioner under Section 50 he was not entitled to invoke Section 56 of the Act and prefer a revision challenging the said order and therefore, the revision petition was not maintainable and consequently the order passed in revision petition is one without jurisdiction and is liable to be set aside. In support of his contention he relied on the judgment of the Supreme Court in the case of puttahonnamma v C. Gangadhara Murthy and also the judgment of this Court in the case of Madan Kumar and Others v State of Karnataka and Others.
( 3 ) SECTION 56 of the Act reads as under. "56. Power of revision. (1) The Tribunal, any Revenue Officer not inferior in rank to an Assistant Commissioner, and any Survey officer not inferior in rank to a Superintendent of Land Records or an Assistant Settlement Officer in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate officer under this Act or under Section 54 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908), for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of the proceedings of such officer. (Explanation. For the purposes of this sub-section. (i) Special Deputy Commissioner shall be deemed to be not subordinate to the Deputy Commissioner; and (
