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1979 DIGILAW 244 (KAR)

VIRUPAKSHAPPA v. DIVISIONAL COMMISSIONER BELGAUM

1979-11-05

K.S.PUTTASWAMY

body1979
K. S. PUTTASWAMY, J. ( 1 ) IN this petition, under Art. 226 of the Constitution, the petitioner has challenged the order dated 11-7-1977 of the divisional Commissioner, Belgaum Dn. , belgaum (hereinafter referred to as the 'dc. ') in Revision Petition No. MUM. Br. A. 18 (EEx. 'h' ). ( 2 ) THE petitioner is a resident of bagalkot City at which place there is a city Municipality constituted under the provisions of the Karnataka Municipalities Act of 1964 (hereinafter referred to as the 'act' ). On or about 23-6-1976, respondent No. 4 applied to the Chief officer of the Municipality for a license under S. 256 of the Act for running a calcite factory in that City, which was opposed by the petitioner on various grounds. On a consideration of the contentions urged by the parties in support of their respective cases, the chief Officer, by his order No. PHD. WP. PMM/639/74-75 dated 10-12-1976 ex. 'j') overruled the objections filed by the petitioner and directed the issue of a license to respondent No. 4 on the terms and conditions set out therein. In pursuance of the said order, on the same day, the Chief Officer, also issued a license to respondent No. 4 (Ex. 'e' ). Against the order dated 10-12 -1976 and the license issued by the Chief Officer, the petitioner filed a revision petition under S. 322 of the Act before the D. C. before whom respondent No. 4 raised a preliminary objection to the maintainability of the said revision petition. Accepting the said preliminary objection raised by respondent No. 4, the D. C. , holding that the order challenged was appealable before the City municipal Council and therefore the revision Petition was not maintainable before him, has directed its return to the petitioner. The discussion of the D. C. ard the nature of the order made by Km is contained in para 4 of his order which reads thus :-"an appeal lies to the Municipal council, from an order passed by the chief Officer, as pointed out above. It is therefore, ordered that the revision application be returned to the applicant, as it does not lie to this court, the remedy of appeal not having been exhausted. It is therefore, ordered that the revision application be returned to the applicant, as it does not lie to this court, the remedy of appeal not having been exhausted. " ( 3 ) SRI I. S. Antin, learned counsel for the petitioner, contended that notwithstanding the remedy of an appeal provided by the provisions of the Karnataka Municipalities (Appeal and Revision) Rules, 1967 (hereinafter referred to as the ('rules') and the failure to avail that remedy, it was open to the petitioner to move the Divisional Commissioner in a revision petition under s. 322 of the Act and the same was maintainable before him. ( 4 ) SRI Annadanayya Puranik, learned first Addl. Government Advocate appearing for respondent No. 1, Sri. Padma- nabha Mahale, learned counsel for respondent Nos. 2 and 3 and Sri. U. L. Narayana Rao, learned counsel for respondent No. 4 supported the order of the Divisional Commissioner. ( 5 ) SRI Antin does not dispute that the order made by the Chief Officer is appealable to the Municipal Council under Rule 3 of the Rules. But he strenuously contended that that provision or S. 322 of the Act does not make it obligatory to exhaust that remedy to entertain a revision petition as held by the D. C. ( 6 ) LEARNED counsel for respondents in my opinion, did rot rightly dispute that the Chief Officer was subordinate to the D. C. and that the proceeding was also a proceeding under the Act. In any evert S. 327 of the Act which empowers the Divisional Commissioner to appoint the Chief Officer to a Municipal Council puts the matter beyond all doubt. The chief Officer who is rppointed by the divisional Commissioner is undoubtedly subordinate to him. ( 7 ) SUB-SECTION (1) of S. 322 as amerded by the Karnataka Municipalities (Amendment) Act, 1976 (Karnataka Act no. 83 of 1976) that is material reads thus :-"the Government or the Commissioner may call for and examine the lecord of any proceedings including orders of assessment and revision of assessment under this Act of any subordinate officer, and after such enquiry as is deemed fit, if the Government or the Commissioner, as the case may be, is satisfied that the order of the subordinate officer is contrary to law and has resulted in miscarriage of justice, pass such orders thereon as the Government or the Commissioner deems just. "sub-section (1) of S. 322 in clear and unambiguous terms provides for the remedy of a revision to an aggrieved pe son either before the Government or d. C. against any proceeding including orders of assessment and revision of assessment made under the Act by any subordinate officer. The only limitation placed by sub-section (1) of S. 322, is that the proceeding or an order of assessment and revision of assessment must be made under the Act and must have been made by a subordinate officer. Unlike s. 115 C. P. C. or similar provisions made in various other enactments, Section 322 (1) does not provide for a revision where no appeal lies. The section does not also provide that a person should exhaust the remedy of an appeal available to him under the Rules before he can invoke the revisional jurisdiction of Government or the Commissioner. The remedies provided are concurrent and are not dependent on exhausting one of the remedies before availing the other lemedy. As to which remedy a person should choose is a matter essentially for him to decide. But that cannot be a ground for holding that a person who has not exhausted the remedy of an appeal available to him under the Rules cannot approach the Govt. or the Commissioner in a revision petition under S. 322 of the Act. The D. C. has placed a restriction on S. 322 (1) of the Act that is not placed by the legislature itself. For the foregoing reasons, the view taken by the D. C. that the revision petition filed by the petitioner was incompetent is opposed to the plain language of S. 322 of the Act and is manifestly illegal. ( 8 ) AS the D. C. has failed to exercise a jurisdiction conferred on him, it is necessary to quash his order and direct him to entertain the revision petition and dispose of the same in accordance with law. I therefore quash the impugned order (Ex. 'h') and issue a writ in the nature of mandamus to respondent No. 1 to entertain the revision petition filed by the petitioner and dispose of the same in accordance with law and in the light of the observations made in this order. ( 9 ) RULE issued is made absolute. I therefore quash the impugned order (Ex. 'h') and issue a writ in the nature of mandamus to respondent No. 1 to entertain the revision petition filed by the petitioner and dispose of the same in accordance with law and in the light of the observations made in this order. ( 9 ) RULE issued is made absolute. ( 10 ) IN the circumstances of the case, i direct the parties to bear their own costs. --- *** --- .