STATE OF KARNATAKA v. T. K. RAMACHANDRACHAR — 1977 DIGILAW 100 (KAR)

TEWATIA, J. ( 1 ) THIS appeal, at the instance of the State, is directed against the judgment rendered in WP. 4257 of 1975, by a learned single Judge dismissing the writ petition filed by the State and directing the Deputy Commissioner, coorg (appellant-2 herein), to give effect to the order of the Tribunal dt. 24-3-1975 whereby it had reversed the order of the Deputy Commr, coorg, dt. 28-6-1974. ( 2 ) A short history of the case preceding the launching of the writ proceedings by the State deserves to be noticed. Respondents 1 to 3 owned sy No. 29/20, measuring about 247 acres, in Aiyangeri village, Coorg Dist. The land in question was described in the jamabandi records upto the year 1918 as "redeemed Coffee Saguvali Malai". However, in that year, by the order of the Commissioner bearing No. 1636 dt. 11-1-1918 the said land came to be described in the jamabandi records as "unredeemed". ( 3 ) THE respondents herein moved an application before the Deputy Commr, Coorg, on 25-9-1963 in which they detailed the aforesaid manner of the change of the description of the land and sought permission for cutting and removing the standing trees as they wanted the whole area for raising cardamom crop. When for many years the Deputy Commr did not pass any order on that application, the said respondents moved this Court on the writ side through WP. 523 of 1972 seeking a writ in the nature of mandamus against the Deputy Commr. That petition was allowed and the Deputy Commr was directed to dispose of the application dated 25-9-1963. ( 4 ) THE Deputy Commr, in pursuance of the direction of this Court, took up the said application for consideration and dismissed the same with the observation, inter alia, that "the Deputy Commr cannot interfere with the order passed by the Commr of Coorg, as far back as 1918". He wag referred to a Division Bench decision of this Court in State of Mysore v. Kainthaje Thimmanna Bhat, (1968) 2 Myslj. 227. in which this Court had held that the commr could legally pass the order bearing No. 1631 dt. He wag referred to a Division Bench decision of this Court in State of Mysore v. Kainthaje Thimmanna Bhat, (1968) 2 Myslj. 227. in which this Court had held that the commr could legally pass the order bearing No. 1631 dt. 11-1-1918 only after a notification under S. 29 of the Coorg Land and Revenue Regulations, 1899, by the Chief Commr, Coorg, had been promulgated and since no such notification for revision of the entries in the record of rights of the concerned estate had been shown to have been issued by the Chief Commr, the order aforesaid of the Commr was contrary to law, and, therefore, was illegal and void. The Deputy Commr, without saying so in express words, disagreed with the view enunciated in the aforesaid decision of this Court, when he observed in his order that the procedure laid down in Ss. 17 and 29 of the Coorg Land and Revenue Regulations, 1899 had to be followed only when the tenure of the land had to be changed, but the change of word from "redeemed" to "unredeemed" did not amount to change of tenure. ( 5 ) THIS order of the Deputy Commr was challenged by the aforesaid respondents before the Tribunal which reversed the said order of the deputy Commissioner and directed him to correct the entries in the light of the decision in K. Thtmmanna Bhat's cose (I) (supra ). The State challenged this order of the Tribunal in WP. 4257 of 1975, from which the present writ appeal had arisen. ( 6 ) THE learned Counsel for the appellants has raised two contentions. (1) That the application dt. 25-9-1963 was an application with a prayer for permission to cut and remove the trees standing in the land in question and not for correction of the entries in the record of rights; and (2) That the deputy Commr, in any case, had no competency to correct the entries in the record of rights, and, therefore, such an application was not maintainable before him. The first application dt. 25-9-1963, no doubl,, carried the prayer only for permission of cutting and removing of the trees, though the respondents in that application had stated that the land in question was 'redeemed' upto 1918 and it was thereafter only that it came to be described as 'unredeemed'. The first application dt. 25-9-1963, no doubl,, carried the prayer only for permission of cutting and removing of the trees, though the respondents in that application had stated that the land in question was 'redeemed' upto 1918 and it was thereafter only that it came to be described as 'unredeemed'. But, when the Deputy Commr took up the case in pursuance of the direction of this Court in WP. 523 of 1972, he called upon the respondent to supply him with the copy of the second application, which they were alleged to have moved on the very day on which the first application was moved. The respondents submitted copy of the alleged second application. From the perusal of the order of the Deputy Commr dt. 28-6-1974, it is clear that he disposed of the second application which carried the prayer for correction of the entries in the record of rights and it is this application that had been considered by the Tribunal as well as the learned single judge in the writ petition from which the present appeal has arisen. In view of the above, it cannot be said that the application decided by the deputy Commissioner was not for the correction of the entries in the record of rights. ( 7 ) COUNSEL for respondents, while rebutting the second contention advanced on behalf of the appellants, contended that at the relevant time when the Deputy Commr disposed of the application of the respondents it was the provisions of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the 'act') that were applicable and that sub-sec (3) of S. . 136 of the Act empowered the Deputy Commr to effect any correction in the record of rights. S. 136 deals with appeal and 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-sec (4) or an entry certified under sub-sec (6) of S. 129 may within a period of sixty days from the date of communication of the order or the knowledge of the entry certified, appeal to such officer as may be prescribed by the State Govt in this behalf and his decision shall be final. (3) The Deputy Commr may, on his own motion or on application of a party, call for and examine any records made under S. 127 and s. 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. " ( 8 ) THE other provisions in the Act, to which our attention was invited and which deal with the power of the Deputy Commr in regard to the corrections of entries in the record of rights, are those which are contained in Ss. 132 and 135 and no other. For ease of reference, the provisions of thesp two sections also deserve to be extracted:" 132. Certified copies of records to be. annexed to plaint or application.- (1) The plaintiff or applicant in every suit or application, as hereinafter defined relating to land situated in any area to which this chapter applies, shall annex to the plaint or application, a certified copy of any entry in the Record of Rights or Register of Mutations relevant to such land. (2) If the plaintiff or applicant fails so to do for anv cause which the Court deems sufficient, he shall produce such certified copv within a reasonable time to be fixed by the Court and if such certified copy is not so annexed or produced, the plaint or application shall be rejected, but the rejection thereof shall not of its own force preclude the presentation of a fresh plaint in respect of the same cause of action or of a fresh application in respect of the same subject matter with a certified copy annexed. (3) After the disposal of anv case in which a certified copy of any such entrv has been recorded, the Court shall communicate to the deputy Commr anv error appearing in such entrv and anv alteration therein that may be required by reason of the decree or order and a copy of such communication shall be kept with the record. The Deputy commr shall in such case cause the entry to be corrected in accordance with the decree or decision of the Court, so far as it adjudicates upon anv right required to be entered in the Record of Rights or Register of mutations. The Deputy commr shall in such case cause the entry to be corrected in accordance with the decree or decision of the Court, so far as it adjudicates upon anv right required to be entered in the Record of Rights or Register of mutations. The provisions of this sub-section shall apply also to an appellate or revisional Court: provided that in the case of an apnellate or revisional decree or order passed by the High Court or the Supreme Court the communication shall be made by the original Court from which the appeal lay or the record was called for. (4) In this section,- (a) 'suit' means a suit to which the provisions of the Code of Civil Procedure apply; (b) 'application' means an application- (i) for the execution of a decree or order in a suit; (ii) for the filing of an agreement stating a case fcr the opinion of the Court under the Code of Civil Procedure, 1908; (iii) for the filing of an agreement to refer to arbitration under s. 20 of the Arbitration Act, 1940 (Central Act 10 of 1940); (iv) for the filing of an award under S. 14 of the said Arbitration Act; (v) of any other kind to which the State Govt may, by notification, direct that this section shall apply; (c) an application shall be deemed to relate to land, if the decree or other matter with respect to which an application is made, relates to land; (d) a suit, decree or other matter relating to land shall, without prejudice to the generality of the expression, be deemed to include a suit, decree or other matter relating to rent or tenancy of land. 135. 135. Bar of suits: No suit shall lie against the State Govt or any officer of the State Government in respect of a claim to have an entry made in any record or register that is maintained under this Chapter or to have any such entry omitted or amended : provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in any record or register maintained under this Chapter, he may institute a suit against any person denying or interested to deny his title to such right, for a declaration of his right under Chapter VI of the Specific Relief Act, 1877; and the entry in the record or register shall be amended in accordance with any such declaration. " ( 9 ) A perusal Of the provision of sub-sec (3) of S. 136 would show that it confers revisional jurisdiction on the Deputy Commr in the matters arising under Ss. 127 and 129 of the Act. S. 127 deals with the preparation of the record of rights. S. 128 deals with contingencies which may occasion correction of the entries in the record of rights. S. 129 envisages corrections of the entries in the record of rights in the event of the occurring of the contingencies envisaged in Section 128. ( 10 ) SINCE the provisions of these three sections also have a bearing on the point under consideration, so the relevant portions thereof deserve to be noticed:" 127. Record of Rights: (1) A record of rights shall be prepared in the prescribed manner in respect of every village and such record shall include the following particulars- (a) the names of persons who are holders, occupants, owners, mortgagees, landlords or tenants of the land or assignees of the rent or revenue thereof; (b) the nature and extent of the respective interest of such persons and the conditions or liabilities (if any) attaching thereto; (c) the rent or revenue (if any) payable by or to any of such persons; and (d) such other particulars as may be prescribed. (2) The record of rights shall be maintained by such officers in such areas as may be prescribed and different officers may be prescribed for different areas. (2) The record of rights shall be maintained by such officers in such areas as may be prescribed and different officers may be prescribed for different areas. (3) When the preparation of the record of rights referred to in sub-sec (1) is completed in respect of any village, the fact of such completion shall be notified in the Official Gazette and in such manner as may be prescribed. 128. Acquisitions of rights to be reported.- (1) Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof, snail report orally or in writing his acquisition of such right to the prescribed officer of the village within three months from the date of such acquisition, and the said officer shall at once give a written acknowledgment of the receipt of the report to the person making it: provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person haying charge of his property shall make the report to the prescribed officer: provided further that any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the prescribed officer. Explanation-I : The rights mentioned above include a mortgage without possession but do not include an easement or a charge not amounting to a mortgage of the kind specified in S. 100 of the Transfer of Property Act, 1382 (Central Act 4 of 1882} explanation-II: A person in whose favour a mortgage is discharged or extinguished or a lease determined acquires a right within the meaning of this section. (2) Notwithstanding anything contained in sub-sec (1),, the State govt may, by notification appoint any Revenue Officer to whom a report under sub-sec (1) may be made, in which case such officer shall give a written acknowledgment of the receipt of such report to the person making it, and forward the report to the prescribed officer of the village concerned. (2) Notwithstanding anything contained in sub-sec (1),, the State govt may, by notification appoint any Revenue Officer to whom a report under sub-sec (1) may be made, in which case such officer shall give a written acknowledgment of the receipt of such report to the person making it, and forward the report to the prescribed officer of the village concerned. (3) * * * * (4) No document by virtue of which any person acquires a right in any land as holder, occupant, owner, mortgagee, landlord or tenant or assignee of the rent or revenue thereunder, shall be registered under the Indian Registration Act, 1908 (Central Act 12 of 1908), unless the person liable to pay the registration fee also pays to the registering authority such fees as may be prescribed for making the necessary entries in the record of rights and registers referred to in S. 129; and on the registration of such a document the registering authority shall make a report of the acquisition of the light to the prescribed officer. 129. Registration of mutations and register of disputed cases:- (1) The prescribed officer shall enter in the Register of, Mutations every report made to him under sub-sec (1) of S. 128 or received by him under sub-sec (2) or sub-sec (4) of the said section. (2) Whenever a. prescribed officer makes an entry in the Register of Mutations, he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavadi and shall give written intimation to all persons appearing from the Record of Rights or Register of Mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein. (3) Should any objection to any entry made under sub-sec (1) in the Register of Mutations be made either orally or in writing to the prescribed officer, it shall be the duty of the prescribed officer to enter the particulars of the objections in a Register of Disputed Cases. (4) The objections entered in the Register of Disputed Cases and such other objections as may be made during the enquiry shall be enquired into and disposed of by such offiecr and in such manner as may be prescribed. Orders disposing of such objections shall be recorded in the Register of Mutations by such officer. (4) The objections entered in the Register of Disputed Cases and such other objections as may be made during the enquiry shall be enquired into and disposed of by such offiecr and in such manner as may be prescribed. Orders disposing of such objections shall be recorded in the Register of Mutations by such officer. (5) The officer holding an enquiry under sub-sec (4) shall have all the powers under Chapter III, that a Revenue Officer has in making formal or summary enquiry under this Act. (6) Entries in the Register of Mutations shall be tested and if found correct or after correction, as the case may be, shall be certified by such officer as may be prescribed. (7) The transfer of entries from the Register of Mutations to the record of Rights shall be effected in the prescribed manner, provided that an entry in the Register of Mutations shall not be transferred to the Record of Rights until such entry has been duly certified. " ( 11 ) FROM the perusal of the aforesaid provisions, it would be seen that the Dy Commr is brought into the picture by the said provisions of Ss. 132 and 135 of the Act only for the purpose of giving effect to the order or decree of the Civil Court by effecting changes of the entries in the record of rights in accordance therewith and S. 136 envisages exercise of powers by the Deputy Commr only in his appellate and revisional capacity. Such powers in the very nature of things, would come to be exercised when the entries in the record of rights had not attained finality and in the state in which these entries existed, did so by virtue of the orders of officials whose orders were amenable for correction by the Deputy Commr in the exercise of his appellate and revisional jurisdiction. By necessary implication it means that if such entries in the record of rights as got incorporated as a result of orders passed by the Deputy Commr or a competent authority superior to him, then such entries were not amenable to correction by the deputy Commr in the exercise of his powers under sub-sec (3) of S. 136 of the Act; otherwise, the presumption of truth attaching to the entries in the record of rights as envisaged by the provisions of sub-sec (3) of Sec. 136 would be virtually set at naught. ( 12 ) IN our opinion, the implication of the provisions of S. 133 of the Act could be no other than this that once the entries in the record of rights achieved finality, then thereafter, so far as the revenue authorities are concerned, these entries were sacrosanct and could not be changed by the deputy Commr or any authority superior to him, except in accordance with the provisions of Ss. 132, 135 and under S. 136 in the light of the provisions of Sections 128 and 129 of the Act. ( 13 ) THE learned Counsel for the respondents, however, contended that the plea that the Deputy Commr did not have the jurisdiction to correct the entries in the record of rights was neither raised before the Deputy commissioner, nor before the Tribunal in the form in which it has been raised now. We do not think there is any merit in this contention. The Deputy commr did express himself about his incompetency to change the entries in the record of rights. It is no doubt true that the point of his incompetency was not pursued either before the Tribunal or before the learned single Judge, but, the question of jurisdiction being a pure question of law, the same could be raised at any stage of the proceedings. And it was for that reason! that we entertained the plea of the appellant-State regarding the jurisdiction and competency of the Deputy Commr to effect changes in the entries in the record of rights. ( 14 ) FOR the reasons stated, we hold that the order of the Deputy Commr rejecting the application of the respondents did not suffer from any illegality. that we entertained the plea of the appellant-State regarding the jurisdiction and competency of the Deputy Commr to effect changes in the entries in the record of rights. ( 14 ) FOR the reasons stated, we hold that the order of the Deputy Commr rejecting the application of the respondents did not suffer from any illegality. In view of our finding that the Deputy Commr was not competent to effect changes in the entries in the record of rights, neither the Tribunal nor the learned single Judge was competent to direct the Deputy Commr to do what, in law, he was not competent to do, and therefore, the order of the Tribunal suffered from an error of law apparent on the face of the record and hence deserved to be quashed. ( 15 ) WE, accordingly, allow the appeal, set aside the order of the learned single Judge, quash the order of the Tribunal and sustain that of the Deputy Commissioner. However, in the circumstances of the case, we leave the parties to bear their own costs. --- *** --- .