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2019 Supreme(Kar) 2235
IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)
G. NARENDAR, J.
Kariyappa Muttappa Muttur - Appellant
Versus
State Of Karnataka - Respondent
Writ Petition No. 105312 of 2019
Decided on : 19-02-2019
Advocate Appeared:
H.M. Dharigond, Adv., Raja Raghavendra Naik, Adv.
Headnote:
Karnataka Land Revenue Act - Section 49 - Commissioner without jurisdiction - Appointment petitioner - Assistant Commissioner erred in interfering with order of appointment and that respondent had no locus stand to call in question appointment of petitioner - It is further contended that impugned order said to have been passed in proceedings invoking proceedings Section Karnataka Land Revenue Act is unsustainable in view of rulings rendered by Division Bench of this Court in disposed - Counsel for petitioner would invite attention of this Court to findings rendered –Held, Apparent Authority to scrutinize and examine validity of appointments made to post of Gram by been specifically vested in Assistant Commissioner petitioner would submit that even if it is to be held that Division Bench has not looked into instant circular he would contend that respondent could not invoke provisions of Section Land Revenue Act to maintain appeal - Court any further for simple reason that though said provision was relied upon perusal of impugned order does not anywhere reflect respondent having invoked provisions of Section Act to pass impugned order - On contrary in penultimate paragraph of impugned order it is stated that order is passed invoking provisions of Karnataka Village Officers Abolition Act - That apart it is also settled law that mere invocation of wrong provision of law if authority otherwise is invested with jurisdiction to pass order same will not detract from validity of proceedings - Petition dismissed
JUDGMENT :
G. Narendar, J. - Heard the learned counsel for the petitioner and the learned HCGP.
2. The petitioner is before this Court being aggrieved by the order passed by the 3rd respondent Assistant Commissioner dated 02.01.2019 passed in proceedings bearing No.MISC/AP-87/2016-17 marked as Annexure-G to the writ petition.
3. The case of the petitioner is that, under circular dated 23.09.1982, the 1st respondent permitted appointment of Gram Sahayak on stipendiary basis to assist the Village Revenue Officers in the discharge of their duties and the circular came to be issued pursuant to the Government Notification dated 16.09.1978.
4. That in terms of the circular, the 4th respondent Tahasildar issued an advertisement calling for applications for the post of Gram Sahayak, which fell vacant on account of retirement of one Kudha Ladasab Sanadi. That the vacancy arouse on 31.05.2015 and pursuant to the advertisement the petitioner herein as well as the aunt of the 5th respondent filed an application for appointment to the said post. True copy of the application is produced as Annexure-B. That the 4th respondent obtained a report from the Revenue Inspector and on the basis of the report and after scrutinizing the applications, issued orders of appointment appointing the petitioner as the Gram Sahayak.
5. That the 5th respondent, who is not an applicant, questioning the appointment of the petitioner by filing an appeal before the 3rd respondent, the third respondent issued notices and after hearing both the parties, has been pleased to pass an order canceling the appointment of the petitioner as Gram Sahayak.
6. It is contended that the 5th respondent not being an applicant, the learned Assistant Commissioner erred in interfering with the order of appointment and that the 5th respondent had no locus standi to call in question the appointment of the petitioner. It is further contended that the impugned order said to have been passed in a proceedings invoking the proceedings of Section 49 of the Karnataka Land Revenue Act is unsustainable in view of the rulings rendered by the Division Bench of this Court in W.A.No.100174/2017 disposed of on 08.11.2017. The learned counsel for the petitioner would invite the attention of this Court to the findings rendered in para 10 of the said judgment:
"10. Prima facie, the Assistant Commissioner had no jurisdiction to entertain an appeal under Section 49 of the Act to set aside the order of appointment made by the Tahasildar. The appointment of Gram Sahayak was not made under the provisions of the Act. Thus, the order of the Assistant Commissioner dated 13.07.2016 compelled the appellant to prefer W.P.No.106344/2016. In view of the remand order made by the Assistant Commissioner to the Tahasildar to reconsider the matter, this Court directed the Tahasildar to proceed with the selection process afresh in terms of the order of the Assistant Commissioner. Once the Assistant Commissioner has passed the order without jurisdiction, the subsequent direction issued to the Tahasildar deserves to be negated. Any edifice built upon a foundation, which is not in conformity with law, i.e., without jurisdiction, shall fall. We are of the considered view that the Assistant Commissioner had no jurisdiction to entertain an appeal under Section 49 of the Act, when the matter was already seized of, before this Court. Passing of an order by the Assistant Commissioner without jurisdiction created the problem instead of mitigating the dispute, it aggravated the situation."
7. Per contra, learned HCGP would submit that the said ruling by the Division Bench is distinguishable in the light of the fact that the Division Bench has rendered the ruling without reference to the circular dated 22.03.1979, under which the authority to scrutinize the selections and revise/modify the order of the Tahasildar in case of violation is categorically vested in the 3rd respondent Assistant Commissioner.
8. The learned HCGP would further cont
