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Judgment
Huluvadi G. Ramesh, J.—Petitioner has sough for quashing the order dated 30.8.1995 annexure G by the 2nd Respondent and also for a mandamus directing the 2nd Respondent lo hold a fresh inquiry and pass appropriate orders.
According to the Petitioner, during 1912 one Syed Ahmed had purchased the property in Sy. No. 2 of Bilekahalli from one Venkataswamy and his two brothers under a registered sale deed and there is a gift of property in favour of his son Syed Moosa during August 1935. Once again, Syed Moosa executed a registered gift deed in favour of Syed Abdul Khader during November 1962 and katha also stood transferred in the name of Syed Abdul Khader and an endorsement in this regard was also obtained, Thereafter, there was once again a registered deed in favour of this Petitioner by his father Syed Abdul Khader. According to him, the document produced at annexure A, the record of rights depicts Sy. No. 2 of Bilekahalli situate near Civil Station is got entered in the name of this Petitioner and also it was in his name even during 1976-77 and 1977-78 and katha was also obtained. Annexure B is the endorsement issued on 14.8.1979 by the Enquiry Officer to the effect, file number given to property in Sy. No. 2, Door No. 2A having Chalta No. 4A of PT Sheet 895, on such application given to the Inquiry Officer of the City Survey by the Petitioner, since it was wrongly noted in the register, the particulars are correctly entered in the Inquiry Register and in token thereof, he issued the endorsement and also opined that Certificate in Form 9 as per Rule 83(2) of the Karnataka Land Revenue Rules, 1966 will be issued after collecting the necessary fees. Annexure C is the sketch produced by the Petitioner indicating the situation of the property in Chalta No. 4A, Corporation No. 2A i.e., map indicating Thimmaiah Road, Millers Tank and the situation of the property and also recognizing four houses in the property in question. Annexure D is the application given by the Petitioner to the Assistant Director of Land Survey to issue Form 9. There is also an endorsement issued at annexure E by the Assistant Director of Land Survey to the effect that as per the endorsement given by the Petitioner records available in respect of IT Sheet 895 of Area No. 77, Chalta No. 4A, if there is an entry in the Petitioner''s name however, there was no separate entry being made in respect of Chalta No. 4A in the office records by oversight as such, he cannot issue an endorsement in Form 9 for correcting the entry in the PT Sheet and the Certificate will be issued soon after the order has been obtained from the Joint Director. This order is dated 7.11.1990. Annexure F is the report submitted by the Assistant Director in respect of Ward No. 77, PT Sheet 895 noting Chalta No. 4 measuring to the extent: of 24228.4 sq.mtrs/ft. opining that this property is railway property as ascertained on the spot, orally and locally mentioning that notice could not be served. Annexure F is the subject matter of this petition, wherein the Assistant Director has reported that as per the oral inquiry and the spot inquiry, without notice to the parties concerned, order is passed indicating the property in Chalta No. 4 to the extent of 24228.4 sq mts/ft as the property of the Railways. The same was challenged by the Petitioner by moving the Joint Director. The Joint Director having treated this as a petition filed u/s 56 of the Karnataka Land Revenue Act, has confirmed annexure F-Report submitted by the Assistant Director as the property belongs to the Railways against which, Petitioner preferred an appeal before the Director of Survey, Settlement & Land Records. The impugned order at annexure Rl has been passed on 18th November, 1996 by the Director opining that the appeal is dismissed as not maintainable. Thereafter, once again, another revision has been filed before the Joint Director and the Joint Director has passed an order as not maintainable on the ground that already revision has been preferred by the Petitioner which came to be dismissed and that fact has not been brought to the notice and treating the petition as appeal, impugned order dated 13.3.2009-annexure H is passed. Petitioner, being aggrieved by the order at annexure H, is before this Court on various grounds.
learned Counsel for the Petitioner has relied upon the decision of the Apex Court in Puttahonnamma (Smt) Vs. C. Gangadhara Murthy and Others, wherein this Court has dealt with the maintainability of the revision and held that omission to file second appeal does not bar the remedy of revision against he order passed in first apnea!, to contend that since the Director of Survey, Settlement and Land Records did not entertain the first appeal by adjudicating on merits and had directed the Petitioner to approach proper forum, there is no bar for filing a revision, as such, Petitioner has filed revision since the first revisional order did not consider the report submitted at annexure F which is an exparte report by the Assistant Director without following due procedure and that formed the basis for dismissal of the appeal filed by the Petitioner before the Joint Director. Accordingly, it is contended, annexure G is the first order passed by the Joint Director. It neither indicated whether it is an appeal revision and there is an order to treat it as first appeal preferred under Rule 59(2) of the Rules which provides for appeal. The order of the Director of Survey, Settlement & Land Records at annexure R1, according to the Petitioner''s counsel, is not an order on merits and it is only dismissed as not maintainable as such, Petitioner resorted to file revision u/s 56 of the Act although belatedly. and that is maintainable and once again, the revision order passed by the Joint Director is without taking into consideration the various aspects and without reference being made to earlier orders of the Joint Director and the Director of Survey, Settlement & Land Record; and are non-speaking orders Accordingly, he has sought for quashing annexure H and to pass appropriate orders in accordance with law.
learned Counsel has also relied upon the decision in the case of Basanti Prasad Vs. The Chairman, Bihar School Examination Board and Others, us regards delay in approaching the court. In the said case, the Supreme Court has observed, where the delay is satisfactorily explained, the High Court can consider the writ petition on merits. Accordingly, learned Counsel contended that the writ petition is maintainable.
The counsel representing the Railways submitted, as against the order passed at annexure G appeal has been preferred and, the appeal also came to be dismissed. Once again, after a lapse of twelve years Petitioner has approached the Joint Director by filing a revision which cannot be entertained and the documents produced by the Petitioner are all concocted and annexure R2 Village Map of Bilekahalli depicts that the property in question is situate on the other side of Queens Road and, altogether a different property has been identified by the Petitioner LO knock off the property by producing such concocted endorsements. It is also submitted, the writ petition cannot be entertained and also there is no challenge to the order passed earlier by the joint Director and the Director of Survey, Settlement & Land Records before the appropriate authority. Only alter lapse of twelve years, Petitioners are making hectic efforts to knock off the property which belongs to the Railways.
Heard the Government Pleader. According to the Government Pleader, the orders passed by the authorities at annexure H, G and R1 are in order and do not call for interference.
As regards the second order at annexure H by the Joint Director refusing to entertain the revision on the ground that the second revision is not maintainable, it is the submission of the Petitioner''s counsel that the appeal by the Petitioner u/s 69(2) before the Joint Director is in the form of first appeal against which, he preferred an appeal before the Director of Survey, Settlement & Land Records which is in the form of second appeal which is also dismissed on the point of maintainability but, not on merits. At the time of disposal of the appeal before the Director, it is observed that Petitioner ought to have approached the proper forum i.e., before the Karnataka Appellate Tribunal and not the Director of Survey, Settlement & Land Records and liberty was given to the Petitioner to appeal before the appropriate forum.
Annexure F is a order in the form of a Report by the Assistant Director against which an appeal lies u/s 49 of the Act. Annexure H is the order passed by the Joint Director when the Petitioner has approached hint by filing an appeal. The only ground on which it has been rejected without entertaining is, in the earlier round of litigation, Petitioner''s case has not been considered.
It is pertinent to note, the report at annexure F submitted by the Assistant Director is based on the spot inspection as per oral and local inquiry and he ascertained that the property is Railway property but what is to be noted is, the Assistant Director had not issued notice either to the Railways or to the Petitioner. Such an order has been challenged before the Joint Director treating it as a revision when in fact, it is an. appeal according to the Petitioner, and that came to be dismissed without application of mind. The second appeal filed against the said order before the Director of Survey, Settlement & Land Records also came to be dismissed opining that the Petitioner ought to have preferred an appeal before the Karnataka Appellate Tribunal.
In Puttahonnama''s case cited supra, the Apex Court, in similar situation, referring to the Land Revenue Act, has opined in para 8 that the Applicant who seeks revision of the appellate order u/s 49, and not preferred a second appeal as provided u/s 50 of the Act, if the aggrieved party has not availed the remedy under second appeal as per Section 50 he is not precluded from again availing the remedy of revision u/s 56 of the Act. If the aggrieved party has availed the remedy of second appeal, he cannot file a revision.
In the case on hand since the Director of Survey. Settlement & Land Records has dismissed the second appeal on die point of maintainability, the Petitioner has not exercised his right to file the second appeal before the proper forum, However, as per the ratio laid down by the Apex Court, he is entitled for the remedy of revision u/s 56 of the Act i.e., the party who has not availed the remedy of second appeal is not prohibited to file revision u/s 56 of the Act.
The revisions authority failed to exercise the power of revision on technical ground and has passed an order at annexure H. There are some documents produced by the Petitioner. However, the order at annexure F-Report of the Assistant Director of Land Survey, is passed ex parte i.e., without serving a notice on the Petitioner as well as on the Railways. The Report is based on oral inquiry. In the circumstances, annexure F could have been considered in Revision on the application filed u/s 56 by the Petitioner, which lead to passing the order at annexure H. As such, the order at annexure H by the revision authority is passed in a mechanical manner, without application of mind.
In view of the above, the order at annexure H is quashed. It is for the Joint Director of Survey to consider the. revision fried by the Petitioner u/s 56 of the Act and to identify the property as to whether the property belongs to the Railways or to the Petitioner since there is a dispute and serious objection has been raised by the Railways that the property belongs to them and not to the Petitioner and, the property claimed by the Petitioner as per the village map produced at annexure R2. lies to the right side of Queens Road and is not the one identified by the Petitioner. After hearing the parties, appropriate orders be passed by the Joint Director of Survey, in accordance with law.
Petition is disposed of accordingly. Parties are directed to appear before the Joint Director of Land Records on 25th April, 2011. All contentions are left open to be urged by the respective parties.