Laxuman vs Laxuman

L. Narayana Swamy, J.—Land in Survey No. 130/P-4 measuring 36 guntas and in Survey No. 130/P-13 measuring 12 guntas was granted to the petitioner's father. Petitioner and the respondent claim that they are brothers. The name of the petitioner has been shown in Annexure-A and B, the Record of Rights, in the owner column. The entry of the name of the petitioner in the Record of Rights is for the reason that there was a partition between the petitioner and the respondent, and based on the partition, the name of the petitioner has been entered in the mutation register and the other revenue records. Notwithstanding the partition, the respondent No. 1 filed an appeal in No. 36 of 2001-02 on the file of Assistant Commissioner, Basava Kalyan under the provisions of Section 136(2) of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as "the Act") and therein made a prayer to set aside the entry of the petitioner's name in the relevant column of the right of records and to enter the name of the respondent. The said application came to be dismissed vide order Annexure-F dated 4th April 2002. One more appeal filed before the same authority under the said provision also came to be dismissed as per order Annexure-J dated 25th September 2007. Thereafter, the respondent again preferred one more application under the same provision and that also came to be dismissed on 29th December 2009 as per Annexure-K. The Assistant Commissioner, who dismissed the claim of the first respondent on three occasions, has turned around and allowed the appeal filed by the first respondent by order Annexure-L dated 8th August 2011, which is contrary to law. This impugned order Annexure-L dated 8th August 2011, is nothing but reviewing his own order, which is impermissible is the submission of the learned counsel for the petitioner. He submits that the reasons assigned in the impugned order is that the land in question is a granted land to the petitioner and the respondent; and the respondent has sold the property on 28th October 1982 which is contrary to Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as "PTCL Act"). The learned counsel submits that the said reason is an error and is misconceived. He further submits that Sections 4 and 5 of the PTCL Act is not applicable since the arrangement made between the petitioner and the respondent, i.e. the family partition, was entered into revenue records at an undisputed point of time on 30th December 1982, and hence the impugned order Annexure-L dated 8th August 2011 is liable to be set aside. It is further submitted that the respondent also filed a Revision Petition before the Deputy Commissioner and the said Revision Petition has been dismissed by the Deputy Commissioner and orders, Annexure-L and K dated 8th August 2011 and dated 29th December 2009 respectively, both passed by the Assistant Commissioner, have been upheld. It is submitted that this order of the Deputy Commissioner is purely a non-application of mind. The orders made in favour of the petitioner and also against the petitioner have been confirmed by upholding. On this ground also, the learned counsel submits to allow the petition.

First respondent is served and remained unrepresented.

The learned Government Advocate appearing for respondents No. 2 to 4 submits to dismiss the appeal. Emphasis is made on Sections 4 and 5 of the PTCL Act and submits that the land is a granted land and it is hit by Sections 4 and 5 of the PTCL Act, the Assistant Commissioner rightly reviewed the order which is permissible under Section 25 of the Act by which inherent power is available. Learned Government Advocate read out Sections 4 and 5 of the PTCL Act in which is stated that granted land, if the land is alienated contrary to Section 4 of the Act, the same has to be held null and void; and even if it is alienated beyond the condition period, that also has to be held null and void, since no prior permission had been taken by the petitioner.

Heard the learned counsel for the parties. In the revenue records, as per Annexure-C dated 30th January 1993 it is referred that the land in Survey No. 130/P-4 measuring 36 gunta and land in Survey No. 130/P-13 measuring 12 gunta have been partitioned between the brothers and on the basis of the partition, which is permissible under the PTCL Act, revenue entries have been made in the name of the petitioner. Only the said entry is recalled or set aside on an appeal filed by the first respondent. This order could not have been passed. Rightly the first respondent had challenged the entry in the revenue records on the basis of mutation. It was challenged twice before the Assistant Commissioner and the Assistant Commissioner, after issuance of notice by his elaborate order, dismissed the claim made by the first respondent. The statutory order, though is not a binding on the other parties who are not party to the proceedings, but is binding on the person who has passed it. Unless a statutory authority has got review power, it is not open for him to review his own order. Inherent power of the reviewing authority is to be understood that it shall be exercised strictly and purely in accordance with law only. By exercising inherent power when the Assistant Commissioner has twice passed the order against the first respondent, there was no inherent power available to him to pass an order at the third instance.

The impugned order passed by the Deputy Commissioner is also purely a non-application of mind. He has dismissed the appeal filed by the first respondent and upheld the orders dated 8th August 2011 and 29th December 2009 passed by the Assistant Commissioner in favour of the petitioner. The result of the upholding the order of the Assistant Commissioner is against the first respondent. Two orders are passed by the Assistant Commissioner and the order Annexure-N dated 23rd June 2014 by the Deputy Commissioner is also contrary to law and facts. Hence, I pass the following:

ORDER

"(i) Impugned order Annexure-N dated 23rd June 2014 passed in Case No. RP/CR/52/2011-12 by the Deputy Commissioner is set aside.

(ii) Order Annexure-L dated 8th August 2011 passed by of the Assistant Commissioner is also set aside."

Petition is accordingly allowed.