H. N. TILHARI, J. ( 1 ) APPLICATION for early hearing has been listed before me. It is allowed. Parties are called upon to argue the matter immediately because it is a very old case of 1987. Hence, it is taken up for final disposal. ( 2 ) BY this petition, petitioner has sought for a relief by issuance of writ of certiorari or writ Order or direction in the nature of writ of certiorari quashing the Order dated 22-10-1986 passed by the divisional commissioner, belgaum division, belgaum in revision no mun. D. ra. 1/86-87 annexed as Annexure 'c' to the writ petition. Petitioner has further prayed for grant of any further or other relief which this Hon'ble court deems fit under the circumstances of the case. ( 3 ) THE facts of the case in brief are that the site in dispute having an area of 10' x 60' on gandhi road by the side of cts No. 1126 at haven is owned by the town municipal council, haveri. In the year 1967, an application was made by one Sri P. S. Hiremath, the father of the present petitioner who applied to the town municipal council, for grant of that site on lease basis or on the basis of outright sale as the town municipal council thought it proper. By resolution No. 54 dated 7-10-1967, the town municipal council, initially rejected the request taking the view that the site is necessary for town municipal council for its future requirements. But later on, on june 29, 1976, the tmc, haveri, passed another resolution retaining the ownership of the land referred to above, providing that the said land shall be leased out for public functions only. In the year 1978, the present petitioner made another request to tmc to grant the above site and by resolution dated 28th march, 1978, the tmc was pleased to consider the request of the petitioner and resolved to grant the site in question to the petitioner gangadharayya hiremath on payment of occupancy price at the rate of Rs. 9. 22 per sq. Yd, and to send the proposal to the deputy commissioner after getting the occupancy price credited by the grantee. 9. 22 per sq. Yd, and to send the proposal to the deputy commissioner after getting the occupancy price credited by the grantee. The present respondents 1 and 2 preferred a revision challenging the resolution dated 28th march, 1978 passed by the town municipal council referred to above, in the court of deputy commissioner, dharwad vide revision petition dated 14-6-1978. During the pendency of the revision of the present respondents 1 and 2, municipal council again reconsidered the matter and passed another resolution dated february 22, 1980 to move the deputy commissioner to cancel the earlier resolution dated 28-3-1978 as the municipal council again thought in its revised resolution that the land was suitable for being used for public purpose and sent a copy of that resolution to the deputy commissioner, dharwad. Thereafter, the deputy commissioner inspected the site and passed an Order on 27-11-1980 to the effect as per that the relevant paras thereof of which reads as under:"i have inspected the site on 12-7-1985 along with the president and the chief officer of the tmc, haveri. I found that the surip of land in question is measuring approximately 10' x 60'. The tmc, haveri is the owner of piece of land. The site is surrounded by the walls of the houses of opponent No. 1 on three sides and a road on the south. The impugned site cannot be independently made use of by any other public or the tmc, haveri since it will cause nuisance and inconvenience to the peaceful enjoyment of his houses by the opponent No. 1. The situational peculiarity of the site makes it impossible for any outside person or institution to use it in any manner without causing unbearable nuisance and inconvenience to the opponent No. 1. It will be best used by Shri g. p. Hiremath as the site is surrounded on all three sides by the walls of the house of Shri Hiremath. I have no doubt that granting to him is the only eminently feasible solution to this problem. I likewise order. In the circumstances, discussed in the preamble, the resolution dated 28-3-1978 by tmc, haveri is confirmed. The subsequent resolution dated 22-2-1980 by the tmc, haveri is not disputed by the parties in this court. I have no doubt that granting to him is the only eminently feasible solution to this problem. I likewise order. In the circumstances, discussed in the preamble, the resolution dated 28-3-1978 by tmc, haveri is confirmed. The subsequent resolution dated 22-2-1980 by the tmc, haveri is not disputed by the parties in this court. " ( 4 ) HAVING felt aggrieved from this Order dated 20-7-1985, passed by the deputy commissioner, dharwad, the respondents 1 and 2 preferred a revision application under Section 322 of the Karnataka Municipalities Act, 1964. The divisional commissioner, belgaum division, belgaum by order dated 22-10-1986 set aside the Order of the deputy commissioner, taking view that the said Order of the deputy commissioner was without jurisdiction as the petition before the deputy commissioner had been filed under Section 306 (1) of Karnataka Municipalities Act, 1964. Thus the divisional commissioner allowed the revision application filed by the present respondents 1 and 2 under Section 322 of the act. That having felt aggrieved from the Order of the divisional commissioner, belgaum division, belgaum the present petitioner, Sri Gangadharayya Hiremath has come up before this court by moving the petition under Article 226 of the constitution of india. ( 5 ) I have heard Smt. Asha kumbaragirimath, learned counsel for the petitioner and Sri B. N. Hiremath on behalf of the respondents. On behalf of the petitioner, Smt. Asha kumbaragirimath, submitted that the Order of the divisional commissioner is per se without jurisdiction and really there are two condition precedents for exercise of revisional jurisdiction under Section 322 of the ACT which have not been established and found by the commissioner himself. The learned counsel submitted that under Section 322, revisional power may be exercised if two condition precedents are shown to exist namely, that the Order impugned challenged before the commissioner is contrary to law and that the same has resulted in miscarriage of Justice and it is then and then, the revisional authority under Section 322 could interfere with the Order in question and pass suitable orders as it deems fit. Smt. Asha kumbaragirimath further submitted that the site in respect of the lease was surrounded by walls of the petitioner's house and it could not be made use of by any person or public body including municipal council except without causing nuisance or harrasment to the petitioner, it can only be utilised properly by the petitioner and the lease thereof ought to have been granted to petitioner which the deputy commissioner has done, and which had also been resolved by the municipal council by its resolution dated 28-3-1978. A reference has been made to the resolution dated 22-2-1980 to contend that the municipal council, when the matter was pending before the deputy commissioner, could not cancel that resolution dated 28-3-1978, by resolution dated 22-2-1980 and therefore, the deputy commissioner could have rejected the application under Section 306 moved by respondents. She submitted that the deputy commissioner has referred to these aspects in his Order and this fact that the site in dispute is suitable to be used only by the petitioner. So, the learned counsel for the petitioner submitted that the revisional Order is without jurisdiction. On behalf of the respondents, Sri Hiremath submitted by inviting my attention to the following observations of the commissioner which are as under:"the powers of deputy commissioner under Section 306 (1) of Karnataka Municipalities Act, 1964, are restricted to the extent of suspension of a resolution of town municipal council for the various ingredients mentioned therein. In the instant case, the deputy commissioner, dharwad confirmed the resolution of town municipal council, haven. This action of the deputy commissioner, dharwad is without jurisdiction, since the petition was filed before him was under Section 306 (1) of k. m. Act, 1964. " ( 6 ) HE further submits that as the Order of the deputy commissioner was without jurisdiction, the commissioner was justified in setting aside the Order of the deputy commissioner (order dated 22-7-1985) and as such, the divisional commissioner did not commit any jurisdictional error in passing the Order impugned. I have applied my mind to the contentions of the learned counsel for the parties and I have also examined the records. Before proceeding to examine the correctness and the contentions of the learned counsel for the parties, I would like to refer relevant provisions of law, particularly, Section 322 of the Karnataka Municipalities Act, 1964. "322. Revision. I have applied my mind to the contentions of the learned counsel for the parties and I have also examined the records. Before proceeding to examine the correctness and the contentions of the learned counsel for the parties, I would like to refer relevant provisions of law, particularly, Section 322 of the Karnataka Municipalities Act, 1964. "322. Revision. (1) the commissioner may call for and examine the record 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 he is satisfied that the Order of the subordinate officer is contrary to law and has resulted in a miscarriage of justice, pass such orders thereon as he deems just. (2) notwithstanding anything in sub-section (1) the commissioner may call for and examine the records of any proceedings of the municipal council including proceedings as appellate authority and if satisfied that any Order in such proceedings is contrary to law or is prejudicial to the interests of the municipality, pass such orders as he deems just. (3) no Order under sub-sections (1) and (2) shall be made to the prejudice of any party unless he has had an opportunity of being heard. " ( 7 ) SECTION 322 empowers the government or the commissioner to call for the record of any proceedings under the ACT and the subordinate officer. If the government or the commissioner is satisfied that the Order of the subordinate officer is contrary to law and has resulted in miscarriage of justice, then he can pass orders as he deems fit. A bare reading of sub-section (1) per se shows that there are two condition precedents which have got to be established and in respect of the existence thereof finding is got to be recorded by the revisional authority before it can exercise its revisional powers to pass orders either setting aside the impugned Order or to issue such other directions as it deems fit. I mean to say that existence of jurisdictional conditions are sine qua non for exercise of such power under Section 322 (1) of the act. In case of absence of either of them revisional authority or the power cannot be exercised as occasion for the exercise of revisional jurisdiction does not arise. Authority or the commissioner cannot exercise those powers. I mean to say that existence of jurisdictional conditions are sine qua non for exercise of such power under Section 322 (1) of the act. In case of absence of either of them revisional authority or the power cannot be exercised as occasion for the exercise of revisional jurisdiction does not arise. Authority or the commissioner cannot exercise those powers. The Order if are passed, in absence of existence of either of the conditions, by either government or the commissioner under Section 322 of the ACT cannot be considered in the eye of law to be valid and the Order is passed would be without jurisdiction. Applying this basic principle of law I have to examine if the Order of the commissioner dated 22-10-1986 has any jurisdictional error as contended by the learned counsel for the petitioner. The commissioner in his Order as I have mentioned earlier has taken the view that the Order of the deputy commissioner is without jurisdiction since the petition was filed before him was under Section 306 (1) of the act. According to the commissioner, the deputy commissioner can only suspend the operation of the resolution of the town municipal council and it could not affirm the resolution dated 28-3-1978. Even for a moment, if it be taken that the Order of the deputy commissioner was without jurisdiction, in fact as submitted by the counsel for the respondent and as opined by the commissioner that the deputy commissioner can only suspend the operation of the resolution if condition precedents of exercise of power under Section 306 of ACT did exist there crops one question if that aspect of the matter was a sufficient ground for revisional court i. e. , the divisional commissioner to interfere with deputy commissioner's order. Without considering to question of miscarriage of Justice was resulting therefrom i. e. , from that Order or error in the Order if any. From the perusal of the Order, I find that the commissioner has not applied his mind to this aspect of the matter in the context of facts and circumstances of the case and as this second condition has not been shown to exist, in my opinion, the commissioner could not have passed the Order impugned setting aside the deputy commissioner's Order dated 22-7-1985 simply on the ground that respondent's petition before the deputy commissioner was under Section 306 of the act. It would be appropriate to refer and quote Section 306 of the act. Section 306 of the Karnataka Municipalities Act, 1964 reads as under:"306. Deputy commissioner's power of suspending execution of orders etc. , of municipal council. (1) if, in the opinion of the deputy commissioner, the execution of any Order or resolution of a town municipal council, or the doing of anything which is about to be done or is being done or on behalf a town municipal council, is unlawful or is causing or is likely to cause injury or annoyance to the public, or to lead to a breach of the peace, he may, by Order in writing under his signature, suspend the execution or prohibit the doing thereof. (2) when a deputy commissioner makes any Order under this section, he shall forthwith forward to government and to the commissioner and to the municipal council affected thereby a copy of the Order, with a statement of the reasons for making it; and it shall be in the discretion of the government to rescind the Order, or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit: provided that no Order of the deputy commissioner passed under this Section shall be confirmed, revised or modified by the government without giving the municipal council, a reasonable opportunity of showing cause against the said order". ( 8 ) A reading of Section per se shows that if the deputy commissioner is of the opinion (a) that the execution of any Order or resolution of a town municipal council, or the doing of anything which is about to be done or is being done by or on behalf of the municipal council is unlawful or is causing or is likely to cause injury or annoyance to the public or to lead to a breach of peace, then the deputy commissioner may by Order in writing suspend the execution or prohibit the doing of that thing or of such resolution. Sub-section (2) further provides that thereafter, the deputy commissioner shall forward to the government and to the commissioner and to the municipal council a statement of reasons effect thereby that Order statement of reasons for making that order. Sub-section (2) further provides that thereafter, the deputy commissioner shall forward to the government and to the commissioner and to the municipal council a statement of reasons effect thereby that Order statement of reasons for making that order. And then, when the matter is referred by the deputy commissioner to the state government or the commissioner, sub-section (2) provides a discretionary power to the government to rescind the Order or to direct that it shall be continued in force with or without modifications, etc. Thus as per Section 306 of the ACT the deputy commissioner in certain specified condition or on specific ground provided therein can exercise his powers to suspend or prohibit the implementation of resolution or Order and of making reference of the matter along with the reasons therefor, and then, the power is vested in the government or the commissioner to pass the suitable orders. The learned counsel for the respondents has submitted that therefore, if in the opinion of the deputy commissioner resolution or ACT of municipal council is unlawful or is having the cause injury or annoyance to the public, deputy commissioner could refer to the government but deputy commissioner could not pass any Order in the matter and this is the view taken by the learned commissioner himself as well. Therefore, no error of law of jurisdiction has been committed by the commissioner openly. Let us examine whether the deputy commissioner has done this. We must be clear that the deputy commissioner can exercise his power under Section 326 of the ACT if he is of the opinion that any ACT or resolution of municipal council is unlawful or that the ACT or resolution is causing or likely to cause injury or annoyance to the public or to lead to a breach of peace. Otherwise, the deputy commissioner has to reject the petition if any is made under Section 306 (1) instead of referring the same or passing Order suspending that resolution. In the present case, the deputy commissioner was examining under annexure-b whether resolution dated 28-3-1978 was unlawful or if it was to be implemented and allowed to be implemented whether it would inconvenience or annoyance to public etc. In the present case, the deputy commissioner was examining under annexure-b whether resolution dated 28-3-1978 was unlawful or if it was to be implemented and allowed to be implemented whether it would inconvenience or annoyance to public etc. For the present, a perusal of the Order shows that the deputy commissioner took a view that if the land is not granted to Sri Hiremath on lease it cannot either be used by municipal council or by any institution or by public without causing harassment and nuisance and inconvenience to the peaceful enjoyment and use their houses by the present petitioner. It appears considering that aspect of the matter, the deputy commissioner did not think it fit to exercise his power under Section 306 (1) and he rejected the revision of the present respondents. He therefore, affirmed and maintained the resolution dated 28-3-1978. The deputy commissioner with respect to resolution dated 22-2-1980 has said that resolution is not in dispute as it appears from the Order that by that resolution, recommendation was made to the deputy commissioner by municipal council that resolution dated 28-3-1978 be cancelled by the deputy commissioner. It appears from perusal of page 17 of the paper book resolution dated 22-2-1980 was to the effect that the deputy commissioner be moved to cancel the earlier resolution dated 28-3-1978 as the site is suitable for being used for public purpose. A bare reading thereof of per se shows that by resolution dated 22-2-1980 the resolution 28-3-1978 had not been cancelled and nor a recommendation was made. Thus in my opinion the deputy commissioner simply rejected the petition made to him as the regulate condition precedents. Subject to which powers under Section 306 of the ACT had been conferred on him, did not exist in the case in hand in his opinion so he refused to suspend the resolution dated 28-3-1978 as well as refused to refer the matter to government or commissioner and he maintained resolution dated 28-3-1978. ( 9 ) THUS considered, I am unable to accept the contention of the respondent's counsel that the Order passed by the deputy commissioner is per se without jurisdiction, because if petition was not maintainable and necessary ingredients were not shown to exist so, it was open to deputy commissioner to reject the same and to maintain the Order or resolution passed earlier. Therefore, in my opinion, commissioner committed jurisdictional error by setting aside the Order of deputy commissioner i. e. , annexure-b on an erroneous view of law as well is not considering the above aspect of the case i. e. , that deputy commissioner only dismissed the respondents application under Section 306 of the ACT as no ground for exercise of power under Section 306 had been made out. Learned counsel for the opposite party submitted that resolution that had been passed by the municipal council also cannot be passed as there was jurisdictional error. As the land has been granted to Sri Hiremath and therefore the resolution is illegal and unlawful. This aspect had not been considered by the deputy commissioner and the learned counsel submitted that this was the plea taken by him before the deputy commissioner that the deputy commissioner had not considered the fact that the resolution dated 28-3-1978 of tmc, haveri offended and violates Rule 39 of Karnataka municipal (guidance of officers, grant of certified copies and miscellaneous provisions) rules, 1966 which is mandatory and as such the resolution was unlawful. This aspect of matter has neither been considered by the deputy commissioner nor has been considered by the commissioner and therefore learned counsel for the respondent submitted that the matter may be remanded to the commissioner or divisional commissioner for reconsideration of the revision. It would have been better, if the opposite parties would have filed a copy of the objections under Section 306 which would have revealed what grounds were taken in the revision challenging the resolution. Anyway, in regard to the resolution passed by the tmc, haveri as is mentioned at page 26, no authorities appear to have considered this aspect of matter. ( 10 ) UNDER the circumstances, as considered by me above, in my opinion, writ petition deserves to be allowed and the Order of the divisional commissioner, belgaum dated 26-10-1986 needs to be quashed as the said Order suffers from jurisdictional error as well as error of law apparent from the records and the matter needs to be remanded to the commissioner with a direction to hear the parties and decide the revision afresh and it will be open to parties to raise all necessary and possible contentions before the revisional authority i. e. , commissioner. ( 11 ) HAVING thus considered, I hereby allow the writ petition and issue writ of certiorari quasting the Order dated 22-10-1986 passed by the commissioner, belgaum and a copy of which is annexed with this writ petition as Annexure c and let a direction in the nature of writ of mandamus be issued to the divisional commissioner, belgaum to issue notice to the parties within a period of one month from the date of service of a copy of this Order on him by the petitioner and fix a date for hearing in this case. Revision may be decided keeping the above observations made by me in the judgment. Pending decision of the revision by the commissioner, parties are directed to maintain status quo. Thus this writ petition is allowed and the parties are to bear their own costs. --- *** --- .