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2000 DIGILAW 541 (KAR)

M. SANTHAMMA v. JOINT DIRECTOR OF LAND RECORDS, MYSORE

2000-08-01

G.C.BHARUKA, MANJULA CHELLUR

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BHARUKA, J. ( 1 ) THIS appeal is directed against the order dated 28. 7. 1999 passed by the learned Single Judge in W. P. No. 33471/97 by which the order dated 4. 11. 1997 (Annexure 'c') passed by the respondent Joint director of Land Records has been quashed resulting in restoration of a pulpably a wrong order passed by the then Assistant superintendent of Land Records. ( 2 ) THE learned Single Judge has interfered with the order of thejoint Director of Land Records primarily on the ground that he had no jurisdiction to entertain the appeal under Section 49 (f) of the karnataka Land Revenue Act, 1964 (in short the 'act' ). ( 3 ) THE dispute relates to purchase of plots by the appellant andthe 2nd respondent in Sy. No. 139 of Kadur Town. The plot purchased by the appellant measures 75' x 40' under a registered sale deed dated 5. 8. 1964. Subsequently, the respondent purchased the contiguous plot measuring 200' x 75', (equivalent to 13 guntas 25 feet) under a registered sale deed dated 3. 2. 1965. ( 4 ) IT appears that pursuant to the aforesaid sale deeds, namesof appellant and contesting respondent were mutated in the respective land records. It is a matter of record that much before purchase of the plot by the 2nd respondent, a part of his plot measuring 8 guntas had been acquired by the Government under notifications dated 28. 8. 1964 and 4. 3. 1965 (Annexure R-5 to the statement of Objections) issued under the provisions of the Land acquisition Act, 1894 for formation of a road. Respondent No. 2 having learnt about the said acquisition, made an application to the assistant Commissioner claiming compensation, which was granted to him. Therefore, out of land measuring 13 guntas 25 feet purchased by the 2nd respondent, he remained in possession only to an extent of 5 guntas 25 feet. ( 5 ) DESPITE the above facts, the 2nd respondent approached thethen Assistant Superintendent of Land Records and possibly in connivance with him got the durasthi made in his favour for the entire extent of land measuring 200'x75'. This was done by the order dated 2. 10. 1976. Admittedly, this order was passed without notice to the appellant. ( 5 ) DESPITE the above facts, the 2nd respondent approached thethen Assistant Superintendent of Land Records and possibly in connivance with him got the durasthi made in his favour for the entire extent of land measuring 200'x75'. This was done by the order dated 2. 10. 1976. Admittedly, this order was passed without notice to the appellant. ( 6 ) AT a distant point of time, when the appellant learnt about themischief played by the 2nd respondent, he questioned the order of durasti before the joint Director of Land Records, who by his order dated 4. 11. 1997 (Annexure 'r-7') set aside the said order of the assistant Superintendent with a direction that the Assistant Director of Land Records should complete the Durasti work after issuing notice to all the parties interested in the disputed land and by bearing in mind their possession, boundaries mentioned in the respective sale deeds and the acquisition proceedings, referred to above. ( 7 ) CURIOUSLY, the 2nd respondent, instead of allowing the durastiwork to be carried out as above, questioned the above order of the joint Director by filing Writ Petition by annexing only the operative portion thereof as Annexure 'c'. In the Writ Petition he suppressed all the material facts as noticed above but the same were brought on record by the present appellant through statement of Objections. Nonetheless, the learned Single Judge without adverting to any of the material facts quashed the appellate order (Annexure 'c') just by relying on an earlier judgment of this Court in the case of S. HANUMANTHAPPA KORl vs THE ASSISTANT DIRECTOR OF land RECORDS wherein it has been held that no appeal lies to the Joint Director of Land Records against the order passed by the assistant Director of Land Records. ( 8 ) IN the present case, keeping in view the confusion that hassurfaced regarding the appellate forum available against various officers and authorities of the Survey, Settlement and Land Records, we directed the Director, Department of Survey, Settlement and Land records, to place on record all the relevant amendments and notifications issued under the provisions of the Act which may have bearing on the statutory powers of the officers of his department. Accordingly, the Director of Survey, Settlement and Land Records, after setting out all the relevant Government orders and the notifications, filed his affidavit clearly eliciting the legal consequences flowing therefrom. Accordingly, the Director of Survey, Settlement and Land Records, after setting out all the relevant Government orders and the notifications, filed his affidavit clearly eliciting the legal consequences flowing therefrom. ( 9 ) KEEPING in view the facts and circumstances of the case andthe relevant statutory provisions, the following propositions require our close consideration. (i) Before which authority the appeal lies against the order of the Assistant Superintendent of Land Records? (ii) Even if the order of Joint Director was without jurisdiction, whether, in the facts of the present case the learned Single Judge was justified in interfering with the same under Article 226/227 of the Constitution of India? reg: PROPOSITION NO. 1 ( 10 ) IN. the present case, admittedly, the offending order dated2. 10. 1976 was passed by the then Assistant Superintendent of Land records. Appeal to such an order has been provided under Section 49 of the Act. Clause (e), (f), (g) and (h) of Section 49 are relevant for the present purpose. These clauses as those originally stood i. e. prior to substitution by Act No. 33 of 1975, were as follows;- 49, Appeals from original orders. Save as otherwise expressly provided, an appeal shall lie from every original order passed under this Act or the rules made thereunden- (a) xxx xxx xxx to (d) xxx xxx xxx (e) if such an order is passed by any Survey Officer subordinate to the Deputy Commissioner of Land Records or by any Settlement Officer subordinate to the Deputy Commissioner for Settlement, to the Deputy commissioner of Land Records or the Deputy Commissioner for settlement, as the case may be; (f) if such an order is passed by the Deputy Commissioner of Land Records or the Deputy Commissioner for Settlement, to the Commissioner for Survey, Settlement and Land Records; (g) if such an order is passed by the Commissioner for survey, Settlement and Land Records, to the Tribunal. ( 11 ) BY Karnataka Land Revenue (Amendment) Act, 1975 theabove clauses of Section 49 were substituted by new Clause. s w. e. f, 10. 7. 1975. ( 11 ) BY Karnataka Land Revenue (Amendment) Act, 1975 theabove clauses of Section 49 were substituted by new Clause. s w. e. f, 10. 7. 1975. The new clauses read as under;- (e) if such an order is passed by a Survey officer below the rank of an Assistant Superintendent of Land Records or the assistant Superintendent for Settlement, to the Assistant superintendent of Land Records or the Assistant Superintendent for Settlement as the case may be; (f) if such an order is passed by a Survey Officer of the rank of an Assistant Superintendent of Land Records or assistant Superintendent for Settlement, to the Deputy commissioner of Land Records or the Deputy Commissioner for Settlement, as the case may be; (g) if such an order is passed by the Deputy Commissioner of Land Records or the Deputy Commissioner for Settlement, to the Director of Survey, Settlement and Land Records. (h) if such an order is passed by the Director of Survey, settlement and Land Records, to the Tribunal. ( 12 ) THE statutory provisions regarding appeal still remains asabove. But even before the above amendment made by Act 33/75, the State Government had made an order dated 24. 10. 1973 called 'karnataka Adaptations of Laws Order, 1973' (in short the 'adaptations Order') under the purported exercise of its powers under section 6 of the Mysore State (Alteration of Name) Act, 1973. As per Schedule II of this order, for purposes of Section 108, 123, 123a, 139, 141, 143 and 144 (1) of the Act, the designations of 'commissioner for Survey, Settlement and Land Records' was substituted by, 'the Director of Survey, Settlement and Land Records'. Similar substitution was provided for the designation of the Deputy commissioner of Land Records by substituting it by Joint Director of Land Records. ( 13 ) A bare reading of the Central Act of 1973 providing foralteration of the name of State from Mysore to Karnataka and the provisions made in Section 6 empowering the State Government to issue adaptative orders in consonance with the Central Act obviously had not empowered the State Government to change designation of its officers for their statutory functioning. Therefore, the exercise as set out in Schedule II of the Adaptations order of 1973 appears to be clearly misconceived. Therefore, the exercise as set out in Schedule II of the Adaptations order of 1973 appears to be clearly misconceived. Nonetheless, though the intention of the state Government was not expressed in strict legal form but it appears to be clear to the above as is evident from the subsequent notification and actual working. ( 14 ) IT is a matter of record that after the publication of thekarnataka Adaptations of Laws Order, 1973, the post of the commissioner for Survey, Settlement and Land Records stood redesignated as the Director of Survey, Settlement and Land Records. Similarly, the post of the Deputy Commissioner of Land Records stood redesignated as the Joint Director of Land Records. Since, then, no post like that of the Deputy Commissioner of Land Records exists. ( 15 ) SUBSEQUENTLY, by order dated 3. 1. 1980, the Governmentchanged the designation of certain posts as mentioned in annexure thereto. The redesignations effected were as follows: annexure to G. O. No. FD-306 FER 78. dated 3. 1. 1980