K. R. LAKSHMAN v. STATE OF KARNATAKA — 1995 DIGILAW 185 (KAR)

H. N. TILHARI, J. ( 1 ) BY this petition, petitioner has prayed for grant and issuance of writ of certiorari or any other writ or order or direction in the nature of writ of certiorari for quashing order Annexure-F dated 14-7-1994, passed by Tahsildar-2nd respondent in Case No. RRT (1) CR 171/94-95,whereby the Tahsildar has reviewed and recalled his earlier order dated 23-6-1994, copy of which is Annexure-E to the writ petition. That by order dated 23-6-1994, Annexure-E to the petition, passed in Case No. RRT (1) CR 171 of 1994-95, the respondent No. 2 i. e. , Tahsildar, ordered in maintaining of Khata of property in dispute in the name of the petitioner and his brothers. It is petitioner's case that the Tahsildar, by order dated 14-7-1994, reviewed and recalled the order dated 23-6-1994, taking the view that petitioners are not in possession. The petitioner's case is that Tahsildar had no jurisdiction to review his order dated 23-6-1994 firstly and secondly the order dated 14-7-1994 is illegal and has been reviewed without any notice or opportunity of hearing being given to the petitioner. ( 2 ) I have heard Sri T. Seshagiri Rao, learned counsel for the petitioner and Sri D. V. Padmanabhaiah, learned counsel for respondents 3 and 4 and Smt. Meenakumari, learned High Court Government Pleader who had been put her appearance on behalf of respondents 1 and 2. On behalf of the petitioner, Sri Seshagiri Rao made two submissions, he firstly submitted before me that Tahsildar had no power to review his earlier order dated 23-06-1994, as there is no power under the provisions of the Act conferred for review. Sri Rao further submitted that even if for a moment this Court holds that there exist power to review in the revenue Court viz. , Tahsildar while exercising review power viz. , order Annexure-F has been passed in violation of principles of natural justice in fair play, as no notice had been given to the petitioner and no opportunity of hearing has been given to the petitioner, by the Tahsildar while allowing the review application or reviewing or recalling his earlier order. ( 3 ) ON behalf of the respondents, Sri Padmanabhaiah learned counsel for the respondents 3 and 4 as well as Smt. Meenakumari, Government Counsel urged that the petitioner had alternative remedy by filing a suit. ( 3 ) ON behalf of the respondents, Sri Padmanabhaiah learned counsel for the respondents 3 and 4 as well as Smt. Meenakumari, Government Counsel urged that the petitioner had alternative remedy by filing a suit. It has been further urged on behalf of the respondents 1 to 4 that in view of the provisions of S. 25 of the Karnataka Land Revenue Act 1964 r/w S. 24 thereof there is inherent power vested in the revenue Courts and that Tahsildar or any revenue officer not below the rank of Tahsildar which are designated to the Revenue Court and S. 25 provides that inherent power of the Revenue Court shall not be deemed to be curtailed by any provisions of the Act. So learned counsel appearing for the respondents submitted that it has been within the jurisdiction of the Tahsildar to review and recall his earlier order. As regards notice to the other side is concerned that Sri Padmanabhaiah had not been able to show that any notice has been issued nor in the counter affidavit filed on behalf of the respondents, there is any such averment that any notice had been issued by the Tahsildar before passing the impugned order dated 14-7-1994. ( 4 ) I have applied my mind to the contentions of learned counsel for the parties. As regards alternative remedy available in a routine course, it has been held by Lordships of the Supreme Court that alternative remedy if it is available no doubt, party should be required to avail the alternative remedy. The existence of alternative remedy is firstly no bar to the exercise of jurisdiction under Art. 226 in appropriate cases. Such cases may be whether the order firstly appears to be without jurisdiction or order appears to have been passed under the provisions which appear to be ultra vires of the Constitution or they may also be cases in which the jurisdiction vested under Art. 226 may be exercised, like the cases where the order had been passed by the authorities or by the subordinate authorities or the Court in violation of principles of natural justice and the Court below should have given notice to the parties, likely to be effected by the order but order has been passed without giving any notice or opportunity to such party as is asserted in the present case. In the present case, the petitioner case, the petitioner has raised two questions firstly questioning want of jurisdiction and the petitioner's submission is that order is without jurisdiction and that there is no powers to review vested in the Revenue Courts or Revenue Officer and the second ground is that the order impugned, even if it is within jurisdiction to review, has been passed in violation of the principles of natural justice and in case of failure on the part of respondent No. 2 to give due notice and opportunity of hearing to the petitioner. That as such, this is not a case where Court should refuse to exercise jurisdiction vested under Art. 226 of the Constitution and relegate the party to alternative remedy available to him. ( 5 ) WHILE referring to the question of jurisdiction viz. , to the fact that the Revenue Authority viz. , the revenue Court where they have power to review or not we must apply in mind to the law applicable and must bear distinction between the Courts and the Tribunals. As regards the Courts originally it is well settled principles of law that inherent power in the Courts to pass orders which are required in the interest of justice as well as in order to avoid the multiplicity of legal proceedings. It is also the trait and principle of law as laid down by the Supreme Court in the case of Jagat Dhish v. Jawaharlal, reported in AIR 1961 SC 832 , as under:-"there can be no doubt that the litigant deserves to be protected against the default committed or negligence shown by the Court or its officers in discharge of their duties and it is one of the first and highest duties of all the Courts is to take care that the act of the Court does no injury to any of the suitors. " ( 6 ) AS regards the scope of inherent powers of the Court they vested in Civil Court as has been declared under S. 151 of C. P. C. , and as regards Revenue Courts, the recognition that has been made and declared under S. 25 of the Karnataka Land Revenue Act and same are exercisable to secure the ends of justice and to prevent the abuse of the Court. Section 151 of the C. P. C. , reads as under :-"151. Section 151 of the C. P. C. , reads as under :-"151. Saving of inherent powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. " ( 7 ) AS regards scope of inherent powers in the matter of Revenue, S. 25 of the Karnataka Land Revenue Act, reads as under :-"25. Savings of inherent powers of a Revenue Court.- Nothing in this Act, shall be deemed to limit or otherwise affect the inherent power of the Revenue Court 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. "that law as regards power to review an order under inherent powers of the Court has been laid very clearly in two leading cases of their Lordships of the Supreme Court in Shivdeo Singh v. State of Punjab, reported in AIR 1963 SC 1909 , and another in the case of Aribam Tuleshwar Sharma v. Ariban Pishak Sharma, reported in AIR 1979 SC 1047 . ( 8 ) THE material observations of their Lordships of the Supreme Court in Aribam Tuleshwar's case, AIR 1979 SC 1047 , read as under :-"it is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 , there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the subordinate Court. " ( 9 ) SCOPE of power of review has been indicated and clarified by their Lordships in the above quoted paragraph. Therefore, it is to be taken that review is not an appeal in disguise of the power of review and no doubt it may be said to be the part of inherent power of Court but power of review is limited in its scope as has been laid down by he Supreme Court. It is not that every error has to be corrected or can be corrected by exercising the power of review. It is only where there is an error apparent on the face of record, the provisions of O. 47, R. 1 of C. P. C. , may provide a guidance as to limited scope within which power of review may be exercised. But it is also taken note of that if the power of review is to be exercised, before reviewing his order in favour of the party, the party who is likely to be affected by order in review is entitled to have an opportunity of hearing the same in the light of S. 25 of the Karnataka Land Revenue Act. ( 10 ) I am of the opinion that in case of grave error or as cases where there is an error apparent on record or like in the interest of justice, within the limited sphere as mentioned in the above decision of the Supreme Court, it can be said that Revenue Court or officers who are covered with the frame work of S. 24 of the Karnataka Land Revenue Act viz. , review officer not below the rank of Tahsildar have get power to review. My attention has been drawn to a case reported in R. C. Puttaih v. Deputy Commissioner reported in (1982) 2 Kan LJ 9, learned counsel for the petitioner in support of his contention that there is no power to review. , review officer not below the rank of Tahsildar have get power to review. My attention has been drawn to a case reported in R. C. Puttaih v. Deputy Commissioner reported in (1982) 2 Kan LJ 9, learned counsel for the petitioner in support of his contention that there is no power to review. I have gone through the decision and I find that in the case the attention of learned single Judge has not been invited to the provisions of Ss. 24 and 25 of the Karnataka Land Revenue Act. Whereunder, it has been provided that nothing in this Act shall be deemed to be limited or otherwise effect the inherent power of the Revenue Court to make such orders as may be necessary in the ends of the justice or to prevent abuse of the Court. The sections as I mentioned earlier is on the same line as S. 151, C. P. C. , S. 151 of C. P. C. , deals with the inherent powers, it has been held by the Supreme Court that there are powers inherent in the Court of law to recall its order or suffers from palpable error apparent or order is such that it results in abuse of process of the Court or it results in the failure of justice. As such the decision in (1989) 2 Kant LJ 9,r. C. Puttaiah v. Deputy Commissioner, falls within the exceptions under the doctrine of per incuriam and sub-salice and therefore, may not be taken as binding precedent. A decision which has been rendered without considering certain material provisions or sections that may be said to be judgment coming within the clutches of the doctrine of per incuriam drawn as laid down by the Supreme Court. ( 11 ) THUS in my opinion the Tahsildar has got inherent powers under S. 25 of the Act which include power to review. ( 12 ) NOW the question is whether the impugned order which has been passed by exercising the power of review has been exercised within the four corners of the limit prescribed by the Supreme Court with reference to review under inherent jurisdiction. ( 12 ) NOW the question is whether the impugned order which has been passed by exercising the power of review has been exercised within the four corners of the limit prescribed by the Supreme Court with reference to review under inherent jurisdiction. Learned counsel for the respondent initially tried to take the plea which later on he gave up as there was no basis for the same in the writ petition that order which has been reviewed by the Tahsildar had been passed without notice to him. This plea was tried to be taken up in argument but later on given up as there has been no basis in the counter affidavit, that no other error of law apparent on the face of the record or palpable error in the order of the Tahsildar which has been passed earlier was shown to have entitled it to review the order. That being the position even the power to review is generally recognised, Tahsildar may be said to have cause or ground to exercise its jurisdiction to review its earlier order. ( 13 ) LEARNED counsel for the respondent when he tried to assert that no notice is issued submitted that in it, it has been stated an ex parte order was passed on 23-6-1994, so he submitted that order was passed on 23-6-1995 without notice. By use of ex parte it cannot be taken to indicate that the order dated 23-6-1994, had been passed without notice to him. An ex parte order can be passed by the Court against the person to whom notice is issued and served, but he does not appear, this Court may pass ex parte and if ex parte order has been passed as he says, it may lead that notice had been issued to him and thereafter the respondent did not put his appearance as such ex parte. I do not find any point in this aspect but on the basis of ex parte order it cannot be urged that order dated 23-6-1994 was passed without giving any notice and opportunity of hearing to the respondent. I do not find any point in this aspect but on the basis of ex parte order it cannot be urged that order dated 23-6-1994 was passed without giving any notice and opportunity of hearing to the respondent. So I find that the order impugned dated 14-7-1994 appears to have been passed in excess of jurisdiction as nothing which may be said to have been covered within the scope of review, has been shown or exhibited every error cannot be a ground for review because review jurisdiction is not akin to the appellate jurisdiction. ( 14 ) THE petitioner's grievance further has been that order dated 14-7-1994 had been passed without any notice to the petitioner and without any opportunity of hearing given to the petitioner. The averments to the effect is very specifically made in paragraph 11 of the writ petition and that allegations has not been denied by the respondent, nor it has been stated that any opportunity was given to the petitioner before order dated 14-7-1994 had been passed. It is trite principles of law as laid down by the lordships of the Supreme Court in the case of S. T. Naseem Bano v. State of U. P. , reported in AIR 1993 SC 2592 , allegation made on affidavit if it is not denied or controverted they are to be assumed and presumed to be correct. The relevant observations of their Lordships read as under :-"the aforesaid reply would show that on behalf of respondents Nos. 1 to 4, it was not disputed that 40% posts which have to be filled up by promotion had not been filled up and the denial of promotion to the appellant was justified on the sole ground that she was not qualified to be promoted to L. T. grade. This shows that in the pleadings before the High Court, there was no context on the question that the post of L. T. grade which was sanctioned on August 29,1977 was required to be filled up by promotion for the reason that 40% posts had not been so filled. This shows that in the pleadings before the High Court, there was no context on the question that the post of L. T. grade which was sanctioned on August 29,1977 was required to be filled up by promotion for the reason that 40% posts had not been so filled. Even though there was no context on this question the High Court has gone into it and has held that the appellant has failed to establish her case that at the time of the appointment of respondent No. 6 by direct recruitment 40% of the total number of posts in the college were not filled up by promotion as prescribed by Regulation 5 (2) (a) of the Regulations. Since no dispute was raised on behalf of respondents Nos. 1 to 4 in their reply to the averments made by the appellant in the writ petition that 49% of the total number of posts had not been filled by promotion inasmuch as the said averments had not been controverted the High Court should have proceeded on the basis that the said averments had been admitted by respondents. "keeping this principles in view, as has been laid down by the Lordships of the Supreme Court, I am constrained to hold that as allegations made in paragraph 11 of the writ petition to the effect that the 2nd respondent without issuing notice to the petitioner and without giving any opportunity of being heard in the matter has passed the impugned order which amounts to violation of the principles of natural justice and so liable to be quashed. The allegations made in para 11 of the writ petition goes to show that the impugned order passed without giving any notice to the petitioner and without giving any opportunity of hearing to the petitioner, therefore the impugned order dated 14-7-1994 suffers from jurisdictional error as well. It is trait principles of law that the order which has been passed in violation of the principles of natural justice is null and void. In this view of the matter, I am of the opinion that petition cannot be thrown on the ground of alternative remedy. The writ petition has to be allowed and the order impugned passed by the Tahsildar dated 14-7-1994 is to be quashed with further direction to the Tahsildar to take fresh decision after issuing notice to the parties. In this view of the matter, I am of the opinion that petition cannot be thrown on the ground of alternative remedy. The writ petition has to be allowed and the order impugned passed by the Tahsildar dated 14-7-1994 is to be quashed with further direction to the Tahsildar to take fresh decision after issuing notice to the parties. ( 15 ) I therefore, hereby allow this petition and issue a writ of certiorari and quash the order of Tahsildar dated 14-7-1994, copy of which is Annexure-F to the writ petition and I further issue direction to the Tahsildar that if the parties move the Tahsildar for orders on their application for review etc. , he should the consider the matter keeping the above principles of law as well above observation, after hearing both the parties. ( 16 ) THE interim is automatically vacated. Petition allowed. --- *** --- .