IRANGOUDA v. STATE OF KARNATAKA — 1995 DIGILAW 328 (KAR)

H. N. TILHARI, J. ( 1 ) IN this civil petition, petitioner has prayed for recalling the order dated 18-7-1986 passed in Writ Petition No. 32247/82 as well as for recalling the records of the said writ petition, which was renumbered before the Appellate Authority in pursuance of order dated 18-7-1986 to be R. A. No. 145/86. ( 2 ) THE learned counsel for the petitioner, Sri Manjunath, made submission on the line of the petition and according to the petitioner had filed the above mentioned writ petition No. 32247/82 in this Court whereby the petitioner had challenged the order passed by the Land Tribunal under Section 67 of the Karnataka Land Reforms Act declaring that the holding of the petitioner was in excess of the ceiling limit by 13 acres 20 guntas. By an order dated 18-7-1986 passed by Hon'ble Mr. Justice P. P. Bopanna, the above mentioned writ petition No. 32247/82 had been transferred for hearing and decision by the Appellate Authority and parties were directed to appear before the Appellate Authority on the date mentioned in that order. The learned counsel for the petitioner contended that the position of law is that the order passed under Section 67 of Karnataka Land Reforms Act by the Land Tribunal declaring the ceiling area and the surplus area to be final under that Section and no appeal did lie to any authority. He further submitted that this has been the view that had been taken by this Court earlier as well on reading of Section 67 itself in the case, of C. J. Shekharappa v. State of Karnataka, reported in ILR l985 Kar 2775. The learned counsel submitted that as no appeal was maintainable, a writ petition had been preferred and the writ petition could not be transferred to Appellate Authority in view of the fact that Section 67 declares that Order under Section 67 in the matter of ceiling and declaration of surplus land etc. , would be final. The learned counsel submitted that as no appeal was maintainable, a writ petition had been preferred and the writ petition could not be transferred to Appellate Authority in view of the fact that Section 67 declares that Order under Section 67 in the matter of ceiling and declaration of surplus land etc. , would be final. The learned Counsel for the petitioner, in addition to referring to case of C. J. Shekharappa, referred to above, also made a reference to a Division Bench decision of this Court in the case of Babasaheb alias Ranganagouda v. State of Karnataka, reported in ILR 1988 Kar 3081 and submitted that in this case the Division Bench has laid down that order of the tribunal under Section 67 (1) was final and no appeal lies. However, the aggrieved party if any, of that order has a recourse under Article 226 of the Constitution of India. He submitted, as such this Court could not transfer the writ petition for being heard by the Appellate Authority as legislation has not provided any appeal from that order. He submitted that right of appeal can be conferred or taken away by a legislative enactment enacted by legislation and not by order of the Court, when law does not so provide for an appeal. Sri Manjunath, submitted as such the order of the learned single Judge transfer- ring the writ petition to Appellate Authority suffered from error apparent on the face of record and as such the order of transfer of writ petition requires to be recalled by this Court in exercise of its inherent powers. The learned Government Pleader, Sri S. S. Guttal, attempted to submit that under Section 118a of the Karnataka Land Reforms Act, it has been provided that appeal lies from every order of the Tribunal. He further submitted that Section 19 of the Amending Act conferred power of the High Court to transfer the writ petition, whether filed earlier or after the commencement of the amending Act, namely Karnataka Land Reforms (Amendment) Act of 1986. The learned Government Pleader submitted that as such the order of transfer of writ petition to the Appellate Authority cannot be said to be without jurisdiction or suffering from error apparent on the face of the record. The learned Government Pleader submitted that as such the order of transfer of writ petition to the Appellate Authority cannot be said to be without jurisdiction or suffering from error apparent on the face of the record. But he fairly conceded one thing that Section 67 of the Act no doubt declares the order passed by the Tribunal if ceiling matters is to be final and has been so interpreted by this Court and on earlier occasions in the High Court case referred to by the counsel for the petitioner. His only contention is that when power to transfer the writ petition to the Appellate Authority had been given and when the High Court transferred the writ petition and Section declared that it has to be deemed to be an appeal before the Appellate Authority, it has to be taken that it would be an appeal before the Appellate Authority. ( 3 ) I have applied my mind to the contentions made by the learned counsel for the parties. Material portion of Section 67 may be quoted here. (1) ( a) Save as provided in Section 66a, on receipt of the declaration under Section 66 the Tahsildar shall- (i) verify the particulars contained therein as regards the survey number and the extent of the land; (ii) determine to which class, A, B, C, or D, the land belongs; and (iii) place the declaration and the connected records before the Tribunal. (aa ). . . . . . . . . . . . . . (b) Thereupon and after such enquiry as may be prescribed, the Tribunal shall determine the extent of the holding and the area by which such extent exceeds the ceiling area. (c) Where the total extent of the holding so determined by the Tribunal is equal to or less than the ceiling area, the person concerned shall be entitled to retain his entire holding, but where the total extent is more than the ceiling area, such person shall be liable to surrender such extent of land as will, after such surrender, bring the total extent of land retained by him to the extent of the ceiling area. (d) TIie order of the Tribunal shall be final and shall be communicated to the person concerned and also the Tahsildar. (Underlining is mine)The other parts of the Section is not relevant for our purpose. (d) TIie order of the Tribunal shall be final and shall be communicated to the person concerned and also the Tahsildar. (Underlining is mine)The other parts of the Section is not relevant for our purpose. Clause (d) declares that the order of the Tribunal to be final. The expression 'final' is indicative of the fact that no appeal shall lie from the order that has been declared to be final. This provision was interpreted by this Court in the case of C. J. Shekharappa v. State of Karnataka, ILR 1985 Kar 2775. Hon'ble Mr. Justice Kudoor, J. , as he then was after considering the material provision has been pleased to lay down as under:"there is no appeal or revision provided against an order passed by the Land Tribunal in respect of the determination of holding of a person or a family and the declaration of the surplus land to be surrendered by him or by it. Equally, there is no provision for appeal or revision against the order of Land Tribunal in respect of surrender of surplus land. The only provision made under the Act is for review of an order passed by the Tribunal under sub- section (1) of Section 67, under Section 122a of the Act for the reasons stipulated there-in. " ( 4 ) IT appears that this earlier decision was not brought to the notice of Hon'ble Mr. Justice Bopanna, when Hon'ble Justice Bopanna, was please to pass the order of transfer. It will be profitable to mention here that the view that has been taken by the learned single Judge in C. J. Shekharappa's case had got the support from the view expressed by the Division Bench of this Court in the case of Babasaheb alias Ranganagouda v. State of Karnataka, reported in ILR 1988 Kar 3081. No doubt a Division Bench decision of this Court in the case of Jainuddin Nizamuddin Munshi v. Land Tribunal, reported in ILR (1986) 2 Kar 2055 was placed before Hon'ble Mr. Justice Boppana and that has been referred in the order of transfer. No doubt a Division Bench decision of this Court in the case of Jainuddin Nizamuddin Munshi v. Land Tribunal, reported in ILR (1986) 2 Kar 2055 was placed before Hon'ble Mr. Justice Boppana and that has been referred in the order of transfer. The Bench in that case was concerned with the question whether the writ petition challenging the orders made by the Land Tribunals under Section 48a of Karnataka Land Reforms Act could be transferred to the appellate authority and no doubt the Hon'ble Judges constituting the Bench in the case of Jainuddin Munshi held that Section 19 of the Karnataka Land Reforms Amending Act 1986 empowered the High Court to transfer the Writ petitions pending before it to the Appellate Authority, if it deems proper and fit. The Bench observed that on writ being transferred it should be deemed to be an appeal and parties may amend the pleadings. In that decision referred in earlier case, no question did arise whether writ petitions in which the order under challenge has been the order passed by the Land Tribunal under Section 67, could those writ petitions be transferred to the appellate authority when the Act itself does not provide for an appeal from that order of Tribunals under Section 67 and declares that order of Tribunal shall be final. The Division Bench in Jainuddin case did not touch that question at all. In that it interpreted Section 19 of the Amending Act. Section 118a sub-section (1a) as per the language used therein also while providing right of appeal from the decision or order of the Tribunal creates an exception by use of expression save as otherwise provided in this Act, from every decision or order passed by the Tribunal under this Act, after the commencement of the Karnataka Land Reforms (Amendment) Act, 1986, an appeal shall lie to the Appellate Authority; It is one of the trit principles of interpretation of statute that no expression used in the Section has to be taken as superficial. It has got its own importance. It has got its own importance. When the Legislature made use of the expression save as otherwise expressly provided in this Act, the intention of the Legislature appears to be that in case where the law declares an order to be final and final in the sense that order is not appealable and then amending Section will not be considered to be conferring any right of appeal against those orders. The right of appeal is creation of statutory law. If the statutory law provides for appeal from certain orders, no doubt appeal is maintainable. But where no appeal is provided no decision from the judgment of a Court can confer a right of appeal which the statute did not confer itself. When I so observe, I find support from the view expressed by their Lordships of the Supreme Court in the case of A. R. Antulay v. R. S. Nayak, reported in AIR 1988 SC 1531 . At page 1547 paragraph 41 it is observed as under:"41. . . . . . This Court, to be plain, did not have jurisdiction to transfer the case to itself. That will be evident from an analysis of the different provisions of the Code as well as the 1952 Act. The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no Court, whether superior or inferior or both combined can enlarge the jurisdiction of a Court or divest a person of his rights of revision and appeal". Their Lordships also made reference to the case of M. L. Sethi v. R. P. Kapur, ( AIR 1972 SC 2379 ) in this connection. Parliament alone can do it by law and no Court, whether superior or inferior or both combined can enlarge the jurisdiction of a Court or divest a person of his rights of revision and appeal". Their Lordships also made reference to the case of M. L. Sethi v. R. P. Kapur, ( AIR 1972 SC 2379 ) in this connection. This being the position of law, it appears to me that when Section 67 of the Act particularly sub-section (1) made the order of Tribunal in ceiling matters to be final and not appealable, that the Act did nor confer any right of appeal against the order of Tribunal in those matters and sub-section (1a) of Section 118 of the Act as introduced by the amending Act of 1986 also expressly provide that "save as otherwise provided in this Act" created an exception when providing for right of appeal, which clearly meant that when provisions of law Section 67 create a bar in the matter of filing appeal and made the order final and non appealable. Section 118 could not be considered to be conferring a right of appeal from orders passed in land ceiling proceedings under Section 67. This can only be the harmonious interpretation of the two Sections 118a and Section 67 of the Land Reforms Act. When I so opine I find support from the observation of the Division Bench of this Court in the case of Babasaheb alias Ranganagouda v. State of Karnataka, in which case the Division Bench of this Court consisting of Hon'ble P. C. Jain, C. J. , and Shivashankar Bhat, J. , laid it down as under:"the opening words of sub-section (1a) of Section 118 carves out an exception to its ensuing provisions. In case there is any saving from the operation of its subsequent words, then those subsequent words in sub-section (1a) of Section 118 cannot be attracted. In other words, if an appeal is excluded by virtue of any other provision of the Act, then the provision as to appeal under this Section is not attracted. . . . . . "the opening words of Section 118 (1a) are part of the statute and will have to be given due meaning and cannot be ignored. There is a presumption against attributing superfluity to the words used by the legislature. . . . . . . . . . . "the opening words of Section 118 (1a) are part of the statute and will have to be given due meaning and cannot be ignored. There is a presumption against attributing superfluity to the words used by the legislature. . . . . . Therefore, Section 67 (1) (a) categorically declares the order of Tribunal as final. That clear declaration will have to be given effect to by the Courts and such finality cannot be taken away by the Courts to an implied intendment of an appeal to appellate authority created by the statutory authority. This being the position of law and this had been the position of law as per the interpretation being given to Section 67 (1) (d) by the learned single Judge in 1985, it appears that the earlier decision of this Court in the case of C. J. Sekharappa reported in ILR 1985 Kar 2775 had been brought to the notice of Hon'ble Mr. Justice Bopanna otherwise, I am quite sure, the writ would not have been transferred. The settled position of law that the order impugned in the present writ petition had not been appealable and it cannot be made appealable by an order of transfer under Section 19. It is only those writs in which the order impugned, was appealable and alternative remedy was available to the petitioner but he filed writ petition in this Court, Section 19 provided recourse to this Court that is, instead of dismissing those writ petitions, Court could if it thinks fit, transfer those writ petitions for being disposed of by the appellate authority and it declares that those writ petitions would be deemed to be appeals. But Section 19 read with amended Section 118 (1a) which was amended by Section 8 of the Amending Act itself cannot be construed and cannot be deemed to provide that when in those cases where order is not appealable, the act of transferring of writ petition would confer a right of appeal to these petitioners. Because as mentioned earlier and as laid down in A. R. Anthulay's case, AIR 1988 SC 1531 right of appeal can be created only by legislative enactment by Legislature and not by the orders of the Courts. Because as mentioned earlier and as laid down in A. R. Anthulay's case, AIR 1988 SC 1531 right of appeal can be created only by legislative enactment by Legislature and not by the orders of the Courts. Therefore, the order of transfer, in the present case, of the writ petition appears to suffer from error which is apparent in itself and which has crept in because the attention of the Court was not invited to Sections 67 and 16 this aspect of the matter and to the law laid down earlier by this Court. In such a situation, the Appellate Authority cannot entertain the appeal and it had to dismiss that appeal. The question before this Court is whether or not this Court should call for the records, Because when appeal was not maintainable it would only entail the dismissal of writ petition taking a view that the appeal is not maintainable and because appellate authority itself cannot transfer the writ petition to this Hon'ble Court and parties will have to suffer by dual expenditure of filing the fresh writ petition resulting in wastage of money and valuable time and delay in disposing of the matter. It is high principle of law that no party should be made to suffer because of the mistake of fault of either Court or its officers and it is also laid down as a principle of law as early as in 1969 in the case of Alexander Rajar (1969-71 Law Report 3 PC 465) that duty of the Court to take care that no act of the Court in course of proceedings does injury of its suit and that no act of the Court should prejudice the mind and the Court should exercise its inherent powers to save the person from likely injury. When this Court could not confer the jurisdiction of the appellate authority, it appears to me proper to exercise the powers inherent in the Court and to recall the record of the writ petition, which had been sent to the appellate authority and has been numbered as Appeal No. 145/86 pending before the appellate authority. When I so opine, I find support from the view expressed in A. R. Anthulay's case AIR 1988 SC 1531 referred to above. ( 5 ) HAVING thus considered, the application for recalling the order dated 18-7-1986 is allowed. The order dated 18-7-1986 is re-called. When I so opine, I find support from the view expressed in A. R. Anthulay's case AIR 1988 SC 1531 referred to above. ( 5 ) HAVING thus considered, the application for recalling the order dated 18-7-1986 is allowed. The order dated 18-7-1986 is re-called. Let direction be issued to the Tribunal to send back the record of writ petition No. 32247/82, which has been numbered as R. A. 145/86 before the appellate authority within a period of 3 weeks from the date of receipt of the direction by it. Accordingly, this civil petition is finally disposed of. Sri S. S. Guttal, learned Government Pleader is permitted to file his memo of appearance. Order accordingly. --- *** --- .