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Judgment
G.C. Bharuka, J.—This appeal is directed against the order dated 28.7.1999 passed by the learned Single Judge in Writ Petition No. 33471 of 1997 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 palpably a wrong order passed by the then Assistant Superintendent of Land Records.
The learned Single Judge has interfered with the order of the Joint Director of Land Records primarily on the ground that he had no jurisdiction to entertain the appeal u/s 49(f) of the Karnataka Land Revenue Act, 1964 (in short the ''Act'').
The dispute relates to purchase of plots by the Appellant and the 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.
It appears that pursuant to the aforesaid sale deeds, names of 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 a 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.
Despite the above facts, the 2nd Respondent approached the then 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'' x 75''. This was done by the order dated 2.10.1976. Admittedly, this order was passed without notice to the Appellant .
At a distant point of time, when the Appellant learnt about the mischief 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.
Curiously, the 2nd Respondent, instead of allowing the durasti work 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 Siddappa Hanumanthappa Kori Vs. The Assistant Director of Land Records, Jamkhandi, Bijapur District and Others, 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.
In the present case, keeping in view the confusion that has surfaced 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.
Keeping in view the facts and circumstances of the case and the 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
In the present case, admittedly, the offending order dated 2.10.1976 was passed by the then Assistant Superintendent of Land Records. Appeal to such an order has been provided u/s 49 of the Act. Clauses (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:
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 thereunder:
(a) *** *** *** *** to (d) *** *** *** *** (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.
By Karnataka Land Revenue (Amendment) Act, 1975 the above clauses of Section 49 were substituted by new Clauses 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.
The statutory provisions regarding appeal still remains as above. But even before the above amendment made by Act 33 of 1975, 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 exercised of its powers u/s 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.
A bare reading of the Central Act of 1973 providing for alteration of the name of State from Mysore to Karnataka and the provisions made in Section 6 empowering the State Government to issue adaptation 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. 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.
It is a matter of record that after the publication of the Karnataka 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.
Subsequently, by order dated 3.1.1980, the Government changed 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
Sl.No. Existing designation of the post New Designation 01. Tech. Assistant to the Director of Sr. Deputy Director Survey, Settlement, Land Records, of Land Records Bangalore (above the rank of (Tech.) Clause I Jr. Scale but below the Sr. Scale) 02. Superintendent of Land Records Deputy Director (Class-I Jr. Scale) of Land Records 03. Assistant Superintendent of Assistant Director Land Records of Land Records TECHNICAL POSTS 04. Survey Officers, CTS, Bangalore. Senior Deputy Director of Land Records, City Survey, Bangalore. 05. Prl. Survey SLT, Training Senior Deputy Institute, Mysore Director of Land Records. Sy. SLT, Training Institute, Mysore.
In the present case, the learned Single Judge by relying on the judgment of the another learned Single Judge of this Court in the case of Siddappa Hanumanthappa Kori Vs. The Assistant Director of Land Records, Jamkhandi, Bijapur District and Others, has held that against the order of the Assistant Superintendent of Land Records (Annexure ''A'') passed in 1976 an appeal lie only to the Deputy Director of Land Records and not to the Joint Director of Land Records.
In our opinion, fallacy in the impugned order as also in the reported case of Siddappa (supra) is writ large on the face of the records and statutory provisions. It is so because, Section 49(f) does not provide for any appeal to the Deputy Director of Land Records. Section 49(f) if read in strict sense of the term and without seeking the aid of any interpretative rule, then, against the order of the Assistant Superintendent of Land Records, an appeal lies to the Deputy Commissioner of Land Records, a post, which does not exist since 1973. In our considered opinion, the learned Single Judge has fallen in error by holding that against the order of the Assistant Superintendent of Land Records, appeal will lie to the Deputy Director of Land Records since the statutory provisions does not provide for it.
As of fact no provision in the Act recognises the post like Deputy Director of Land Records or the Assistant Director of Land Records. Powers under the Act can only be exercised by persons holding the post of Assistant Superintendent or Deputy Commissioner of Land Records, which no more exist. Therefore, change of designation has created anomalies touching upon the very workability of the Act. But a Court of law cannot leave the things in such a mess provided keeping in view the settled principles of interpretation, an effective solution can be found thereby making the statutory provisions workable in consonance with its objectives.
The above principle has been stated in the case of Shannon Realities Limited v. St. Michel (Ville De) (1924) AC 185 (AC), pp 192, 193 by Lord Shaw in the following words.
Where words of a statute are clear, they must, of course, be followed but in their Lordships'' opinion, where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute supports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system.
(emphasis supplied)
Bearing the above principles of interpretation in mind and the factum of change of designation in the Act, designation of the survey officers mentioned in various sections of the Act including Section 49, now we turn to Section 18 of the Karnataka General Clauses Act, 1899 which reads thus.-
Section 18. Successors.-(i) In any Mysore Act or Karnataka Act made after the commencement of this Act, it shall be sufficient for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession to express its relation to the functionaries or corporations.
(2) *** *** *** *** *** 21. Provisions similar to as contained u/s 18 of the State Act is to be found in Section 18 of the Central General Clauses Act, 1897. According to this provision, if any Act express its relation to certain functionaries then similar relation of law is to be employed to successors of such functionaries like in the present case. If the Act confers certain powers on certain person working on a designated post then successors of such post even with change of designation can exercise the said statutory powers. The above aspect of law has been clearly considered and expounded by the Supreme Court in the case of Mohd. Maqbool Damnoo Vs. State of Jammu and Kashmir, .
In Md. Maqbool''s case (supra), it was held that the name of head of the State Jammu and Kashmir was changed from Sadar-i-Riyasat to Governor but necessary changes were not made in Section 147 of the Constitution of Jammu and Kashmir. The question arose whether the Governor can exercise the functions of Sadar-i-Riyasat. The Supreme Court by relying on Section 18 of the General Clauses Act, has held that,-
By virtue of this Act, if the Governor is the successor to the Sadar-i-Riyasat, he would be entitled to exercise all the powers of the Sadar-i-Riyasat.
From the above discussions, it is clear that since the post of Deputy Commissioner of Land Records has been redesignated as Joint Director of Land Records, it is the latter, who is now empowered to exercise all the powers and functions attached to the post of Deputy Commissioner of Land Records, which no more exists. Therefore, the learned Single Judge has erred in taking the view that the appellate power of the Deputy Commissioner of Land Records was to be exercised by the Deputy Director of Land Records which is nothing but the redesignation of the post of Superintendent of Land Records and not by the Joint Director of Land Records.
Reg: Proposition No. 2
As we have found above, order of the Assistant Superintendent of Land Records as he then was, was palpably wrong and unjust both on merits as well as on account of violation of principle of natural justice. Therefore, even if, for the sake of arguments, it is accepted that no appeal was maintainable to the Joint Director of Land Records still under writ jurisdiction, this Court should not have interfered with the order of the Joint Director of Land Records because that would amount to reviving of an invalid order. This view of ours is squarely substantiated by the dictum of the Supreme Court in the case of M.C. Mehta Vs. Union of India (UOI) and Others, and in the case of Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and Others, .
In Maharaja Chintamani''s case (supra), it has been held that.-
we hold that the order of the learned Member of Board of Revenue directing action to be taken for refund of the excess compensation was valid and proper though he had no jurisdiction to pass the order. In the event it is set aside it would amount to reviving an invalid order of payment of excess compensation to the Appellant .
Accordingly, it is held that.-
(i) the appeal provided under Clauses (f) of Section 49 of the Act would lie only to the Joint Director of Land Records, and;
(ii) if any appeal/s is/are wrongly lying on the file of the Deputy Director of Land Records the same should be transferred to the file of Joint Director of Land Records.
In the result, the order of the learned Single Judge is set aside and that of the Joint Director of Land Records is restored. The appeal is allowed with costs of Rs. 2,500/- to be paid by the 2nd Respondent within a month from the date of communication of this judgment through crossed bank draft to the Appellant.