J. N. APPAJI GOWDA v. KAR. APP. TRIBUNAL — 1980 DIGILAW 299 (KAR)

( 1 ) THE petitioner, an agriculturist of village Jinnejaahalli, Channaray- apatna Taluk, Hassan District, was granted 4 acres of dry land from out of Sy. No. 25 of that village by the T'ahsildar of Channarayapatria taluk (3rd respondent herein) in the month of September, 1962. After (obtaining the certificate of title - saguvali Chit - the petitioner obtained possession of the land and is in possession thereof. Some villagers raised objections by filing a petition before the Assistant Commissioner re: this grant of land in favour of the petitioner- the Assistant Commissioner, on 6-12-1965, by his order in case No. R. A. 50/ 62-63 allowed their petition cancelling the grant made in favour of the petitioner. The petitioner preferre4 an appeal against that order before the deputy Commissioner, Hassan District (2nd respondent herein) in R. A. No. 8167-68. That appeal was dismissed on 4-9-1967. The petitioner preferred; a further appeal against that order to the Karnataka Revenue Appellate tribunal (Tribunal) (respondent-1 herein ). The Tribunal, by its order dated 31-3-1969 and passed in its Appeal no. 346/68 (LR), set aside the orders of the Assistant Commissioner and the deputy Commissioner, and directed the Deputy Commissioner to regularise the grant made to the appellant. Since the entire case of the petitioner in this petition rests on this direction the same is extracted below:"in view of the fact that the appellant-grantee is reported to be a landless person and the Assistant commissioner has recorded a definite finding that there was excess gomal, we feel that this is a case where interference of this Tribunal is called for, we accordingly allow this appeal and set aside the order of the learned Deputy Commissioner as well as the order of the learned assistant Commissioner. We direct that the learned Deputy Commissioner should take action to deter- mjne the excess of gomal after giving opportunity to the concerned Village panchayat as laid down in Apl. 675) 67 (F. B.) of this Tribunal and take action for re-appropriating the excess and regularise the grant made to the appellant. Appeal allowed and case remanded- sd. B. V. K. lyengar, chairman 31-3-69 in accordance with the aforesaid directions the Deputy Commassioner, Hassan, in Case No. B. Dis. RA-18 of 1969-70 (Annexure-B) passed further orders on 18-10-1969 as follows: "as already mentioned by me, the directions of the learned Tribunal are specific and clear. Appeal allowed and case remanded- sd. B. V. K. lyengar, chairman 31-3-69 in accordance with the aforesaid directions the Deputy Commassioner, Hassan, in Case No. B. Dis. RA-18 of 1969-70 (Annexure-B) passed further orders on 18-10-1969 as follows: "as already mentioned by me, the directions of the learned Tribunal are specific and clear. In the face of this direction the arguments presented by the respondents' counsel do, not merit any consideration. The Tribunal have laid Jown that the Deputy commissioner should determine the excess gomal available and should consult the Village Panchayat concerned as laid down in Appeal No. 675167 (FB) and then regularise the grant. I do not think that 1 can go beyond these directions. As such, i consider that a discussion of the arguments of the learned Advocates is not necessary. Accordingly, it is ordered that action may be taken on the; administrative side to refer the records to the lower Revenue officers for determination of the excess gomal and to consult the village Panchayat of Jinnenahalli village and to confirm the land in favour of appellant after necessary appropriation. "on receiving the aforesaid directions from the Deputy Commissioner, instead of taking steps to confer the grant in favour of the petitioner, the Assistant commissioner submitted a report to the deputy Commissioner to cancel the original grant itself. On the basis of this report the Deputy Commissioner, by his order dated 3-1-1972, cancelled the grant made by the Tahsildar in the year 1962. Against this order the petitioner preferred an appeal to the divisional Commissioner, Mysore, in r. A. No. 8 of 1972-73, and the divisional Commissioner, by his order dated 16-4-1975, held that in view of the change in law he had lost jurisdiction to deal with this matter and returned the papers for presentation to the proper forum. The petitioner then approached the Tribunal, and the tribunal registered his petition as a revision in Revision No. 114 of 1976 (LRGM ). By its order dated 29-5-1976 the Tribunal held in that revision that the Deputy Commissioner, Hassan, had erred in not following the directions given to him by the Tribunal in Appeal no. 346168 and further directed him in the following terms:"in the result, therefore, the revision petition is allowed and the impugned order of the learned divisional Commissioner dated 15-4-1975 and also the endorsement dated 23-4-1975 is set asido. 346168 and further directed him in the following terms:"in the result, therefore, the revision petition is allowed and the impugned order of the learned divisional Commissioner dated 15-4-1975 and also the endorsement dated 23-4-1975 is set asido. The case is remanded to the learned Deputy commissioner, Hassan, with a direction to take action as per the direction issued by the Tribunal in Appeal No. 346/68 (LR) dated 31-3-1969. The deputy Commissioner should take into consideration the report made by the learned Assistant Commissioner in R. A. 50162-63 dated 8-12-1965 and the area of gomal mentioned by the tahsildar at the time of grant ma,de to the petitioner on 15-9-1962. Revision petition allowed and case remanded. "but the Deputy Commissioner, by his order dated 1-5-1979 and passed in case no. RA-29|76-77 on his file, held that the Tahsildar, while granting the land in favour to the petitioner in the year 1962, had committed grave mistake and that, therefore, that order granting the land in favour of the petitioner cannot be regularised even though there was a direction by the appellate' authority to regularise the same (vide Annexure- d ). Against this order the petitioner again, for the 3rd: time, approached the Tribunal, but the Tribunal in A ppeal no. 306/79 (LGMA) confirmed the order of the, Deputy Commissioner (Vide Annexure-E ). ( 2 ) IN this petition, filed under Article 226 of the Constitution, petitioner seeks a writ of certiorari to quash the impugned orders, Annexures 'd' and 'e'. He also seeks a further direction to respondents 2 and 3 to follow the earlier appellate orders of the Tribunal. ( 3 ) THE question that arises for consideration in this case is, as to whether the Deputy Commissioner, Hassan (2nd respondent) could have disregarded the directions given by the Tribunal in its Appeal No. 346 of 1968 (LR) (Annexure-A) and passed an qrder as per Annexure-D. ( 4 ) THE direction of the Tribunal, by its order at Annexure-A, was to re- appropriate the excess gomal and to regularise the grant made to the appellant. In the impugned order, annexure-D, what the Deputy Com- missioner says is that, no doubt, there was excess gomal to an extent of 177 acres 21 gunlas available in the village for grant but, even then the grant of 4 acres of land in favour of the petitioner in 1962 cannot be regularised as directed by the Tribunal for the reason that that grant made in 1962 was not in conformity with rules then in vogue. In particular, he felt that it was not possible to verify from the records available with the Tahsildar whether the mandatory provisions of rules 43e and 43f of the Land Grant rules then in force had been complied with by the Tahsildar at the time of the grant in favour of the petitioner. The Deputy Commissioner is said to have inspected the spot. There, he is said to have found out something new which had not been canvassed by any of the parties at any point of time previously before any authority. The deputy Commissioner says that the land granted appeared to be in the bed of an old tank. He also found there was no storage of water at all in the said tank. It is true that he did not make much of this fact, but mainly stuck to his position that the Tahsildar had not fulfilled the mandatory provisions of rules 43e and 43f of the Land Grant rules then in force. ( 5 ) IT is not in dispute that in the year 1962 there were a set of rules called the Mysore Land Revenue Rules, 1960 framed under the Mysore Land revenue Code, 1888, providing guide lines in the matter of grant of lands. Rule 43e provided for reservation of lands at a certain ratio to Scheduled Caste, scheduled Tribe, and political sufferers, and Rule 43f laid down the order of preference to be followed amongst different categories of eligible grantees in the; matter of grant of lands under Rule 43e if the land available for disposal in a village was less than 10 acres that entire extent had to be reserved for Scheduled Caste and scheduled Tribe people (residing in the village ). If the available land was more than 10 acres, 50 per cent of the land available, subject to a mini mum of 10 acres, had to be reserved for grant t-) Schedule Caste and Scheduled Tribe people of the village, and the balance could have been disposed of to other residents of the village in the order of priority specified at Rule 43f. Further, if the available land, in a village was more than 10 acres, 20 per cent of that available land had to be reserved for political sufferers and that was subject to minimum of 10 acres, being reserved for Scheduled Caste and; scheduled Tribe people^ After providing for reservation to the members of the, S. C , S. T. , and political sufferers. as provided in Rule 43e, the remaining extent had to be granted, by following the order of preference amongst the various categories of eligible grantees. ( 6 ) NOW, assuming that the Tahsildar had not followed the guide lines given in these two Rules, is it open to the deputy Commisisioner, in 'the light of the remand order of the Tribunal (Annexure-A) directing him to regularise the grant made to the petitioner to gq behind that direction. It may be noted that to Appeal No. 346 (68 (Annex. A) the Govt. of Karnataka was a party (3rd respondent) and had been represented by the Assistant state representative. That order could have been challenged by the State government, but it had not dope so. It is not now open to the Deputy commissioner, an authority subordinate to the Tribunal, to disregard the directions given by the Tribunal on the pretext that some guide lines provided in the Land Grant Rules had not been complied with by the Tashildar in granting the 4 acres of which the petitioner has been in possession. It is nobody's case that the Tahsildar lacked inherent jurisdiction to make this grant. The order of the Tribunal at annexure-A shows of the Tribunal having taken into consideration that the petitioner was a person eligible for grant of land. They have also taken into, consideration that there was excess gomal in the village. After considering all aspects of. the case, the tribunal was of the view, that that grant, as directed by it, should be regularised. They have also taken into, consideration that there was excess gomal in the village. After considering all aspects of. the case, the tribunal was of the view, that that grant, as directed by it, should be regularised. When the Deputy Commissioner was considering this matter in R. A. No. 29/76-77 he was acting within the limits of the order of remand. He had no option but to carry out the terms of that order, by which the matter had been remitted to him, and had to give effect to, its (Tribunal's) directions. Even if the Deputy Commissioner had considered those directions as not in accordance with law, he had no option but to follow the same. It is not in dispute that the Tribunal has powers, as an appellate authority under the karnataka Land Revenue Act, 1964, to reverse, notify or confirm any order appealed against before it. It has also the powers to remit the case to a subordinate authority to dispose of the same in accordance. with the directions given by it (the Tribunal ). In this connection I may usefully refer to two decisions, one of Madras High Court and another of Andhra Pradesh High court, wherein the scope of a remand order and the powers of the authority to deal with the matter remitted to it have been considered. Though in those cases the Courts were considering the scope of the remand order passed by the appellate courts under the Code of Civil Procedure, the principles enunciated therein can be taken note of while considering the scope of a remand order made by an appellate authority under the Karnataka Land revenue Act, 1964. ( 7 ) IN Konappa Mudaliar v. Kusalaru alias Munuswami Pillar ( AIR 1970 Mad 328 .), Alagiri- swamy, J. , (as he then was) hag observed as follows:" (A) Civil P. C. (1908) O. 41, r. 23 - Remand - Duty of lower court to ca,rry out terms of remand even if it considers the remand order to be not in accordance with law. It is not open to the lower court when an appellate court remands the case to it, to do anything but to carry out the terms of the remand even if it considers that the order of remand was not in accordance with law. It cannot apply what it might consider the correct position of law. It is not open to the lower court when an appellate court remands the case to it, to do anything but to carry out the terms of the remand even if it considers that the order of remand was not in accordance with law. It cannot apply what it might consider the correct position of law. (B) Civil P, C. (1908) S, 11 - constructive res judicata - Remand - Supreme Court in a later decision taking contrary view - High Court cannot reconsider its own decision, when comes back to it after remand. When a case conies back to the high Court after disposal by the lower appellate court. after remand, the High Court cannot take into consideration a later decision of the supreme Court and go back on its own earlier order of remand passed by it on a view that was dissented from by the Supreme Court in a different case. The decision of the high Court in the order of remand operates as constructive res judicata". ( 8 ) A Division Bench of the Andhra- pradesh High Court has observed as follows (at paras 9 and 12) in Balaswaraswami Varu v. Mallidi Dorayya ( AIR 1972 AP 250 ). "the Assistant Settlement Officer held in the, first instance on 30-5-1958 that the tenants were the ryots within the meaning of S. 11 of the estates Abolition Act and directed the issue of a patta accordingly. This decision was questioned on appeal not by the Government but, only by the deities. The Tribunal that decided the appeal set aside the finding and directed a fresh enquiry. So far as the Government was concerned there was no challenge of the finding that the land was ryoti. In view of this position it is contended by the counsel for the appellants that the Government is precluded from asserting after the remand, that the land is of such a nature that it vests in Government absloutely and ryotwari patta is capable of being granted by any party. The scope of the remand is very limited- the function of the Settlement officer is to determine in terms of of the order of remand, whether the deities or the tenants are to be the grantees of the patta. There is no warrant for re-opening the settled issue that a patta could be granted. The scope of the remand is very limited- the function of the Settlement officer is to determine in terms of of the order of remand, whether the deities or the tenants are to be the grantees of the patta. There is no warrant for re-opening the settled issue that a patta could be granted. This position was not canvassed in the counter-affidavit of the Collector filed on behalf of the respondent. The position therefore is that one of the two rival claimants is entited to the issue of ryotwari patta. The tribunal, it is manifest did not consider that question. Nor did the assistant Settlement Officer approach the question in the true perspective. He exceeded the limit of his jurisdiction which was to conform to the limits of the orders of remand". ( 9 ) I should say that in the, instant case the Deputy Commissioner, Hassan, while passing the order as per Annex- ure-D exceeded his limits and proceeded in violation of the directions of the tribunal as found at the order of the tribunal at Annexure-A. It is indeed strange that the very Tribunal upheld the wrong order of the Deputy Commissioner by its (the Tribunal's) subsequent order at Annexure-E. Both these orders deserve to be quashed. ( 10 ) FOR the reasons mentioned above, the petition is allowed; the rule issued is made absolute; and the impugned orders of the Deputy Commissioner at annexure-D, and of the Tribunal at Annexure-E are hereby quashed. Further, the Deputy Commissioner, Hassan, (2nd respondent) is directed to give effect to the terms of the order of the Tribunal at annexure-A within three months from the date of the receipt of a copy of this order. No costs. --- *** --- .