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1980 DIGILAW 295 (KAR)

KAGGODAPPA v. DIVL. COMMR. BANGALORE

1980-10-21

N.D.VENKATESH

body1980
N. D. VENKATESH, J. ( 1 ) ON Preliminary Hearing this petition has arisen out of an order dated 21-9-1979 (No. ILR. RP. 1/79-80) (Ex-C) of the Divisional commissioner Bangalore. By that order the Divisional Commr. declined to restore a revision petition (No. IRP 78-79) dismissed by him for default on 16-2-79. That was a revision filed by the petitioner under S. 66 of the Karnataka irrigation, Act, 1965 (the Act) against the order of the Assistant Executive engineer, No. 1 Sub-Division, Tumkur (respondent-1 herein) directing him not to obstruct the 3rd respondent (herein) from taking water to his (3rd respondent's) land bearing Sy. No. 115 of urdagere village, Tumkur Taluk. ( 2 ) THOUGH this petition had been listed for hearing re. Rule, the learned counsel appearing for both the parties agreed to argue the matter on merits, and were accordingly heard. ( 3 ) THE Divisional Commissioner dismissed the restoration application mainly on the ground that it was belated, in that, it had been preferred beyond the period of 30 days, the period prescribed to prefer such application. Apart from contending that the Divisional commissioner should not have dismissed the restoration application as barred by time, the learned Counsel for the petitioner also argued that the divisional Commissioner had committed an error in law in dismissing the revision for default in appearance of the party. ( 4 ) AS mentioned above the revision was dismissed on 16-2-1979. The restoration application came to be filed on 9-4-1979. Along with the restoration application the petitioner also filed an interlocutory application under Sections 5 and 12 of the Limitation Act, 1963, supported by an affidavit seeking condonation of delay on the ground, that he could not file that application within 30 days, for the reasons stated in the affidavit and therefore the delay in filing that application may be condoned. ( 5 ) THOUGH the Divisional Commissioner is an authority constituted under the Karnataka, Land Revenue Act, 1964, while dealing with this matter arising under S. 66 of the Act, he was exercising his jurisdiction having been specially empowered under the Act. S. 66 of the Act, which empowers him to revise the orders of certain authorities constituted under the Act, reads as follows:"66. S. 66 of the Act, which empowers him to revise the orders of certain authorities constituted under the Act, reads as follows:"66. Power o/ Revision-The divisional Commissioner may call for and examine the records of the proceedings under this Act of a deputy Commissioner or an Irrigation officer or any officer sub-ordinate to the Deputy Commissioner or the, irrigation Officer fqr the purposes of satisfying himself as to the correctness, legality or propriety of any decision or order passed and the regularity of the proceedings of such officer. When, on examination of the records of any case, the Divisional Commissioner considers that any order or decision of such officer should be revised, such order or decision may be revised or altered and the divisional Commissioner may pass such other orders as he may deem just. " ( 6 ) THE provisions of the Limitation act have not been made applicable to the proceedings taken up under the act. S. 65 provides for appeals to the deputy Commissioner of the district against the orders of the Irrigation officer and such appeals are required to be filed within 30 days from the date of the communication of the order as provided in that Section. S. 67 of the act provides that in conducting enquiries under the Act the officer concerned may exercise the powers of a civil court in the matter of summoning and examining of witnesses and the production of documents. So far as the revisional powers of the Divisional commissioner are concerned S. 66 of the Act does not provide for any limitation. The petitioner purports to have filed this restoration application invoking the inherent powers of the divisional Commissioner under S. 25 of the Karnataka Land Revenue Act, 1964. That provision, no doubt, confers inherent powers on the revenue courts"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". An, authority empowered to do a particular thing under a statute can be said to have such inherent or incidental powers of effectively dealing with that matter in order to do justice in the cause. In that view of the matter it is possible to hold that the Divisional Commissioner had powers to restore to his file a revision dismissed by him for adequate and valid reasons. In that view of the matter it is possible to hold that the Divisional Commissioner had powers to restore to his file a revision dismissed by him for adequate and valid reasons. In the instant case he purported to exercise that power at the instance of the petitioner, and on an application filed by him. But which is the law which provides that such an application ought to have been made within 30 days? though the petitioner had invoked sec. 25 of the Karnataka Land Revenue act, 1964 for preferring that restoration application, the Divisional Commissioner, while dealing with that matter was not exercising his powers under any of the, provisions of the Karnataka land Revenue Act, 1964. Though an application to restore a revision dismissed for default of appearance or for want of prosecution is required to be made within 30 days from the date of the dismissal of the revision as provided under Art. 122 of the Limitation act, 1963, that bar would apply only if it can be said that the provisions of that Act were applicable to the proceeding in question pending before the divisional Commissioner. Firstly, as stated above the revision pending before the Divisional Commissioner was not a revision arising under the karnataka Land Revenue Act, 1964, but was one by virtue of a special jurisdiction conferred on, him under S. 66 of the Act. Even, under the Karnataka land Revenue Act, 1964, the provisions of the Limitation Act, 1963, are not made applicable wholesale. Only in the case of preferring of appeals arising under that Act, Ss. 4, 5 and 12 of the Limitation, Act, 1963 are made applicable (See S. 52 of the Karnataka land Revenue Act, 1964 ). In so far as a revision under that Act is concerned, an application seeking revision is required to be presented within a period, of four months from the date of thei order (Sec s. 56 (3) of the Karnataka, Land Revenue act, 1964 ). ( 7 ) IN Smt. Susheela Bai v. Ramanandan (1) a raiyat had been given, by an order made by the concerned authority under the Kosy Area, (Restoration of lands to Raiyots) Act, 1951, the benefit of paying the arrears of rent in instalments and some time had been stipulated to make such payments. ( 7 ) IN Smt. Susheela Bai v. Ramanandan (1) a raiyat had been given, by an order made by the concerned authority under the Kosy Area, (Restoration of lands to Raiyots) Act, 1951, the benefit of paying the arrears of rent in instalments and some time had been stipulated to make such payments. He committed default and thereby, in law, lost the benefit of the order of restoration of the land to him. The land, which had already been sold, was in possession of the auction purchaser. Having committed default and having lost the right to get the land restored, he filed an application before the Collector for extension of time for payment of the instalments by condoning the delay. Having failed to obtain an order in his favour by the authorities constituted under that Act the raiyat preferred an appeal to the patna High Court and that Court allowed the writ petition holding, inter alia, that"in any case, after the coming into force of the new Limitation Act, 1963, the petitioner. . . . . . had a right to ask the Court concerned to condone the delay in depositing the same under S. 5 of that Act". While disagreeing with the view expressed by the Patna, High court, the Supreme Court has observed as follows ir para-6 of its judgment:"the third ground on which the decision of the High Court rests relates to the applicability of S. 5 of the limitation Act, 1963. We do not see how S. 5 could be invoked in connection with the application made on october, 1965, by the I respondent. Under S. 5 of the Limitation Act an appeal or an application 'may be admitted after the prescribed period if the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period'. The collector to whom the application was made was not a court, though S. 15 of the Act vested him with certain specified powers under the Code of Civil Procedure; also, the kind of application that was made had no time limit prescribed for it, and no question of extending the time could therefore arise. We therefore think that the High Court mis-directed itself in referring to S. 5 of the Limitation act. We therefore think that the High Court mis-directed itself in referring to S. 5 of the Limitation act. " (In this connection may also see air 1970 SC 209 ; AIR 1973 SC 239 ; and AIR 1969 SC 872 .) the Divisional Commissioner, while dealing with the revision in question or the restoration application, was not functioning as a Court within the Indian limitation Act, 1963. Further, the Act also has not made applicable any of the provisions of the Limitation Act to a revision preferred before the Divisional commissioner under S. 66 of the Act. ( 8 ) SINCE the provisions of the Limitation act, 1963, were not attracted to the restoration application filed by the petitioner before the Divisional Commissioner, he had erred in holding that that application ought to have been made within 30 days, that having been made beyond the period of 30 days and having failed to explain this delay, that application was liable to be dismissed in limine. ( 9 ) IN this petition it is not merely the order of the Divisional Commissioner on the restoration application that is questioned but also his order at Ext. D earlier passed dismissing the revision for default. There is no provision, either under the Act or under the Rules, for dismissing the revision, entertained under S. 66 of the Act, for default. In fact under S. 66 the Divisional Commissioner can suo motu call for and examine the records of the proceedings under the Act of the Deputy Commissioner, the irrigation Officer, or any officer subordinate to the Deputy Commissioner and irrigation Officer, and this is to satisfy himself about the legality or propriety of any decision, order, or regularity of the proceedings of any such officer. As can be seen from the wide powers conferred on the Divisional Commissioner under S. 66 of the Act, when once he entertains a revision against any order of any subordinate official, either suo motu or at the instance of the party aggrieved, he cannot dismiss the revision for default, but is bound to examine the the legality or propriety of the decision or order or the regularity of the proceedings of that officer and dispose of the matter on merits. ( 10 ) FOR the reasons mentioned; above the following order is made: rule issued. Petition allowed. The rule issued is made absolute. ( 10 ) FOR the reasons mentioned; above the following order is made: rule issued. Petition allowed. The rule issued is made absolute. The impugned orders of the Divisional Commissioner, bangalore Division (I respondent herein), Exts. 'c' and 'd' are hereby quashed. The matter is remitted to the I respondent for a fresh disposal according to law and in the light of the observations made above. The respondent will restore to his file the revision, irr. RP. 3/78-79, and will dispose of the same on merits after providing an opportunity to the parties concerned to have their say in the matter. No costs. --- *** --- .