ANNAPURNA W/O VIJAYANAD v. DEPUTY COMMISSIONER RAICHUR AT RAICHUR
2017-01-06
A.N.VENUGOPALA GOWDA
body2017
DigiLaw.ai
ORDER : This petition is directed against an order passed by Deputy Commissioner, Raichur District allowing a revision petition filed by respondents 4 and 5, thereby, setting aside an order passed by Assistant Commissioner, Lingasugur. 2. Material facts not in dispute are; that land measuring 32 acres and 20 guntas bearing Sy. No. 79 situated at Village Timmapur, Taluk Sindhanur, Dist. Raichur was standing in the name of Smt. Shankaralingamma, Wife of Mallareddy i.e., the mother of petitioner and respondent Nos.4 and 5. Mutation of the said property was effected on 08.02.1993. Sri Mahesh Reddy, another son of Smt. Shankaralingamma, died on 19.06.1996, unmarried. Mutation in respect of the said property having been effected in the names of respondents 4 and 5 i.e., the brothers of petitioner, an appeal was filed before Assistant Commissioner, Lingasugur and registered as RRT/APPEAL/251/2011-12. After hearing, the case was rejected by an order dated 08.10.2012 holding that parties should get the dispute adjudicated in Civil Court. The petitioner having filed a petition, under S.25 of Karnataka Land Revenue Act, 1964 (for short, ‘the Act’), was registered by the Asst. Commissioner, Lingasugur as RRT/APPEAL/251/2012-13. By making a reference to an alleged Will of Smt. Shankaralingamma, an order dated 26.06.2013, as at Annexure-A was passed, whereby, mutation effected on 02.01.1983 and 09.11.2000 was rescinded and ordered to be made in favour of the petitioner. Assailing the said order, respondents 4 and 5 filed a Revision Petition No.31/2013-2014, under S.136 of the Act, before the Deputy Commissioner, Raichur Dist. Revision petition having been allowed by an order dated 17.06.2013, as at Annexure-C, this writ petition was filed. 3. Sri Chaitanya Kumar C.M., learned advocate contended that the 1st respondent has acted arbitrarily and illegally in allowing the petition and setting aside the order passed in exercise of review power by the 2nd respondent. He submitted that review petition having been allowed on consent by the 2nd respondent, revision petition filed before 1st respondent being not maintainable, impugned order is liable to be interfered with. 4. Perused the record and considered the submissions. Point for consideration is, whether the Assistant Commissioner has acted in accordance with law in the matter of exercise of power of review U/s. 25 of the Act and justified in allowing the petition? 5. RRT/APPEAL/251/2011-12 was filed and remedy sought with reference to an alleged Will of Smt. Shankaralingamma.
4. Perused the record and considered the submissions. Point for consideration is, whether the Assistant Commissioner has acted in accordance with law in the matter of exercise of power of review U/s. 25 of the Act and justified in allowing the petition? 5. RRT/APPEAL/251/2011-12 was filed and remedy sought with reference to an alleged Will of Smt. Shankaralingamma. Appeal was rejected on 08.10.2012, holding that the parties should get the dispute adjudicated in Civil Court. Said order was passed by keeping in view the ratio of law laid down in the case of C.N. NAGENDRA SINGH Vs. SPECIAL DEPUTY COMMISSIONER, BANGALORE DISTRICT, (2000) Kar L.J. 391, wherein, the Full Bench, with reference to the scope, power and jurisdiction of the Revenue Officer under the provisions of S.127 and S.129 and the competence of the Revenue Officer to hold enquiry and decide the question of genuineness of Will in a proceeding under S.129 of the Act held ‘that mutation cannot be effected on the basis of a Will as suggested and argued’. 6. In STATE OF KARNATAKA Vs. KARNATAKA APPELLATE TRIBUNAL, AIR 1996 KAR 143 , it was has held that, where the order is palpably wrong and it suffers from the error apparent on the face of the record and if such order is allowed to remain in operation, it may result in abuse of process of the Court or it may result in miscarriage of justice, Revenue Court under S.25 of the Act has power to review or recall its order. 7. In the present case, Deputy Commissioner has pointed out the Assistant Commissioner’s failure to discover any error apparent on the face of the record or any miscarriage of justice having occasioned in the matter. It has been pointed out that in the guise of seeking review, there is abuse of process by the petitioner in filing the petition under S.25 of the Act, registered as RRT/APPEAL/251/2012-13. 8. It is settled position of law that there are definite limits to the exercise of power of review.
It has been pointed out that in the guise of seeking review, there is abuse of process by the petitioner in filing the petition under S.25 of the Act, registered as RRT/APPEAL/251/2012-13. 8. It is settled position of law that there are definite limits to the exercise of power of review. Power of review may be exercised on the discovery of new and important matter or evidence which, after exercise of due diligence was not within the knowledge of the person seeking 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. However, it has been made clear in catena of decisions by Apex Court, that the review power cannot be exercised on the ground that the decision was erroneous on merits, as such thing could be in the province of a Court of appeal. 9. A review cannot be equated with the original hearing of the case and is by no means an appeal in disguise, whereby, an erroneous decision is re-heard and corrected and lies only when there is a material error manifest on the face of the order, undermining its soundness or resulting in miscarriage of justice. Re-appreciation of the record of the case is impermissible in review jurisdiction, as the same is within the domain of the original or appellate authority and cannot be undertaken in exercise of review power as mere possibility of two views on the subject cannot be a ground for review. Reiteration of an argument which was not accepted in the first instance is not enough to re-open a concluded case as review jurisdiction cannot be equated with the original or appellate jurisdiction of the forum concerned. 10. From a bare perusal of the order passed by the Assistant Commissioner vide Annexure-A, which was impugned in the revision petition filed before Deputy Commissioner, it is clear that the provision under S.25 of the Act was completely ignored. Assistant Commissioner having regard to the factual dispute between the parties and relief having been sought based on an unprobated Will alleged to be of Smt. Shankaralingamma passed the order of rejection on 08.10.2012 in RRT/APPEAL/251/2011-12.
Assistant Commissioner having regard to the factual dispute between the parties and relief having been sought based on an unprobated Will alleged to be of Smt. Shankaralingamma passed the order of rejection on 08.10.2012 in RRT/APPEAL/251/2011-12. On reconsideration of the same facts, order at Annexure-A having been passed ignoring the limits of the review power exercisable under S.25 of the Act, there being abuse of process of law by the petitioner, Deputy Commissioner has rightly allowed the revision petition vide order at Annexure-C. Even on merits, the order at Annexure-A cannot stand judicial scrutiny as it has been passed in ignorance of the ratio of law laid down by the Full Bench in C.N. NAGENDRA SINGH’s case. For the foregoing reasons, the petition is devoid of merit and hence, rejected. However, it is made clear that the order at Annexure-C would not stand in the way of the petitioner seeking remedy before the jurisdictional Civil Court with reference to the alleged Will of Smt. Shankaralingamma.