(Prayer: These Petitions Are Filed Under Articles 226 And 227 Of The Constitution Of India, Praying To Direct The Respondents To Pay The Revision Of Licence Fee To The Petitioners In Accordance With The Revision Of Licence Fee Made By The Government As Per The G.O, Dated 24.1.2005 And 12.8.2008 Vide Annexures-B and C Respectively And Direct The Respondents To Consider The Representations Of The Petitioners Dated 28.6.2011 And 10.09.2012 And Further Direct The Respondents To Assign The Correct Licence Fee Based On The Representations And To Pay The Scales Of Pay In View Of The Norms Fixed At Annexure-A.)
(Prayer: These Petitions Are Filed Under Articles 226 And 227 Of The Constitution Of India, Praying To Direct The Respondents To Pay The Revision Of Licence Fee To The Petitioners In Accordance With The Revision Of Licence Fee Made By The Government As Per The Government Orders Dated 24.1.2005 And 12.8.2008 Vide Annexures-B and C Respectively And Direct The Respondents To Consider The Representations Of The Petitioners Dated 28.6.2011 And 10.9.2012 And Further Direct The Respondents To Assign The Correct Licence Fee Based On The Representations And To Pay The Scales Of Pay In View Of The Norms Fixed At Annexure-A.)
(Prayer: These Petitions Are Filed Under Article 226 Of The Constitution Of India, Praying To Call For Entire Records Of The Case From The Respondents And Direct The Respondents To Pay The Remuneration Payable To Licenced Surveyors Per Survey, Taking Into Consideration Revision Of Pay Scales Of Second Division Surveyor and 'Bandu Javan' And Direct TheRespondents To Pay Licence Fee To The Petitioners At The Rate Of '403/- and Then '600/- Per Survey In Terms Of Government Orders Dated 24.1.2005, and 12.8.2008, Copies Of Which Are Produced At Annexures -B and C Respectively And Also Direct The Respondents To Pay Difference Amount From The Respective Dates.)
(Prayer: These Petitions Are Filed Under Article 226 Of The Constitution Of India, Praying To Direct The Respondents To Pay The Remuneration Payable To Licenced Surveyors Per Survey, Taking Into Consideration Revision Of Pay Scales Of Second Division Surveyor and 'Bandu Javan' And Direct The Respondents To Pay Licence Fee To The Petitioners At The Rate Of ?403/- and Then ?600/- Per Survey In Terms Of Government Orders Dated 24.1.2005, and 12.8.2008, Copies Of Which Are Produced At Annexures -B and C Respectively And Also Direct The Respondents To Pay Difference Amount From The Respective Dates.)
1. All these petitions involve identical question of law and are, therefore, with the consent of learned advocates on both sides, taken up together.
2. The petitioners in W.P.Nos-34187-34886/2013 and 36580-36827/2013 have asked for a mandamus against the respondents to pay revised licence fee as per Government Orders dated 24.01.2005 and 12.08.2008. The petitioners have also asked for a mandamus against the respondents to consider their representations dated 28.06.2011 and 10.09.2012 and assign the correct licence fee and pay the scaies of pay as per the norms fixed in Annexure- A.
3. The petitioners in W.P.Nos.36903/2013 and 39435-39608/2013 have asked for a mandamus against the respondents to pay the remuneration payable to them, per survey, by taking into consideration revision of pay scales of Second Division Surveyors and 'Bandu Javan' and grant parity in the matter of pay and allowances on par with regular Surveyors including the benefit of regularization of services and pay licence fee at the rate of Rs. 403/- and Rs. 600/- per survey, in terms of Government Orders dated 24.01.2005 and 12.08.2008, respectively.
4. Material facts are that a policy decision was taken by the Government of Karnataka, on 21.12.1995, to appoint licensed surveyors, Karnataka Land Revenue Act, 1964 (for short, 'the Act), was amended on 30.04.1999. S.18-A was inserted in the Act by Karnataka Act No. 14 of 1999. Third proviso to S.128 and Clause (c) to S.131 of the Act were inserted by Act No. 14 of 1999. Rules 46-A to 46-K were inserted by Notification No. RD 208 BHUDASA 97(P), dated 06.07.1999, in the Karnataka Land Revenue Ruies, 1966 (for short, 'the Rules') . S.18-A mandates that for the purpose of the third proviso to S.128 and Clause (cj of S.131, Director of Survey Settlement and Land Records, may, with the prior approval of the State Government and subject to such conditions and restrictions and in such manner as may be prescribed, issue licence to any person possessing the prescribed qualification and experience i.e., appoint licensed surveyors. Sub-S.(22) of S.2 contains the definition - "prescribed" means prescribed by rules made under the Act. Sub-S.(2) of S.18-A provides that the fee payable to licensed surveyors shall be as may be prescribed i.e., as prescribed by rnies made under the Act. Rule 46-E provides tine fee payable to the licensed surveyors. As per the said provision, licensed surveyors shall be paid fee of ?300/- for preparing a sketch in accordance with Ss.129 and 131 of the Act.
5. Seeking quashing of Circular dated 24.01.2005, as at Annexure-B, which introduced change with regard to the submission of application for issue of pre-mutation sketch in the Office of the Commissioner for Survey Settlement and Land Records, W.P.No.17724/2005 was filed by a licensed surveyor and the petition was dismissed on 31.08.2007. By issue of Government Order on 12.08.2008 vide Annexure-C, Tatkal Phodi was introduced, fixing the rate at Rs. 500/- and enhancing the application fee from Rs. 403/- to Rs. 600/-. Another Government Order dated 26.11.2008 was issued appointing a Committee for implementation of Tatkal Phodi Scheme' and overall administration of the amount collected pursuant to the Government Order, as at Annexure-C. Government Order dated 10.06.2009 was issued for opening account in Nationalised Banks, in the names of Tahsildars, to enable them to maintain and regulate the fee coliacted under the Scheme. A Circular was issued on 17.08.2009, to conduct chronological survey of all records for which mutations had been effected and dispose of backlog phodi cases, by making it clear that no fee would be collected and the licensed surveyors would be paid from the amount already collected towards tatkal phodi etc. whereunder no fee is charged from the applicants.
6. Notification No. RD 143 BHUDASA 2012, dated 26.07.2013 was issued in exercise of the powers conferred by S.197 of the Act and the existing Rules 46-A to 46-K were deleted and the proposed Rules 46-A to 46-K were substituted.
7.The 3rd respondent having recommended on 15.03.2013 for enhancing the fee of licensed surveyors, Government order No RD 279 BHUDASA 2011, dated 21.10.2013 was issued in exercise of the power conferred under the substituted Rule 46-H(l), enhancing the licensed surveyors' fee from Rs. 300/- to Rs. 800/- and fixing the application fee at Rs. 2,500/-, upto 2 acres, for Urban areas and Rs. 1,500/-, upto 2. acres, for Rural areas.
8. The prayers in these writ petitions are, therefore, required to be examined in the light of the statutory provisions and the Government Orders, noticed supra,
9. No one can ask for mandamus without a legal right and that there must be a judicially enforceable right. A person can be said to be aggrieved only when a legal right is denied to him by someone who has a legai duty to do something or abstains from doing something.
10. Sri V. Laxminarayana, learned advocate, contended that in view of the Circular dated 24.01.2005, as at Annexure-B and the Government Order dated 12.08.2008, as at Annexure-C, the petitioners having not been paid the fee of Rs. 600/- per application, are entitled to be paid the fee and despite representations submitted, there being inaction, which amounts to denial of the legal right of the petitioners by the respondents, these writ petitions are liable to be allowed and the respondents are liable to be directed to extend the monitory benefits accordingly.
11. Learned Advocate General, assisted by Smt. Rafeeunisa, learned HCGP, on the other hand, contended that the fee payable to the licensed surveyors having been regulated in terms of the Sub-S.(2) of S.18-A of the Act read with Rule 46-E and the payment having been made accordingly, till the Rules were amended by way of substitution as per the Notification No.RD 143 BHUDASA 2012, dated 26.07.2013, the petitioners have no iega! right which can be enforced, in as mucn as, the petitioners have not suffered any legal grievance and hence, can hot maintain these petitions for issue of mandamus. He contended that a person can be said to be aggrieved only when such a person is denied a Iega1 right by someone who has a Ic-ga1 duty to do something or abstains from doing the legal duty, he contended that the executive decisions / orders cannot override the statutory provisions and it is the statutory provisions which could only prevail. He contended that v/hen there is a conflict between the statutory rules and the executive orders, the statutory rules should aione prevail and executive orders cannot be made or given effect to, in violation of what is mandated by the Rules. By taking me through the counters and additional counters filed to the writ petitions, he submitted that the writ petitions being devoid of merit are liable to dismissed.
12. The petitioners' case rests on the Government Order No.RD 142 BHUDASA 2008, dated 12.08.2008, as at Annexure-C.
13. Rule 46-E, inserted by Notification No.RD 208 BHUDASA 97(P), dated 06.07.1999, with effect from 06.07.1999, being relevant, reads as follows
"46-E. Fee. payable to the Licensed Surveyors.- The licensed Surveyors shall be paid a fee of Rs.300/- for preparing the sketch in accordance with Sections 129 and 131."
14. The said Rule was deleted and was substituted as per Notification NO.RD 143 BHUDASA 2012, dated 26.07.2013. The suostituted Rule being relevant, reads as follows:
"46-E. Fee payable to the Licensed Surveyors : The licensed surveyors shall be paid a fee as notified by the Government from time to time for preparing the sketch in accordance with Sections 129 and 131(c)."
15. Application Nos.5811-6110/2011 filed by some of the petitioners, before the Karnataka Administrative Tribunal, seeking absorption as Surveyors - Grade II or Land Surveyors, were decided on 11.12.2012 and it was held, that it is not permissible to direct the Government to regularise the applicants in the cadre of Land Surveyors. W.P. Nos.51923-52149/2012 and 52150-52207/2012 filed, questioning the said order of the Tribunal were disposed of on 17.01.2013. W.P.Nos.103 23-228/2013 filed against the said order of the Tribunal, were also disposed of in terms of the order dated 17.01.2013 passed in W.P. Nos.51923-52149/2012 and connected cases. In the circumstances, the prayer of the petitioners in W.P. Nos.36903/2013 and 39435-39608/2013,for regularisation of service is hit by the principles analogous to res-judicata.
16. Annexure-A is a calculation sheet prepared at the time of taking a policy decision to appoint licensed surveyors, Annexure-B is a Circular dated 24.01.2005 in the matter of the scheme relating to the licensed surveyors. Annexure-C is a Government order dated 12.08.2008 on the subject relating to Tatkal Phodi Scheme and maintenance of the survey and revenue records, clearance of cases in the revenue survey and settlement department. Clause (6) of Annexure-C was deleted by way of rectification on 23.08.2008.
17. The petitioners, being not civil servants nor part-time employees in a Government Department, cannot claim parity, on the principle of equal pay for equal work, of pay or emoluments with regular employees of the Government. The right to claim any particular sum against the State must arise either under a contract or under a statute. In the circumstances, the claim for revision of licence fee by caking into consideration the revision of pay- scales of II Division Surveyors and 'Bandu Jawan' and to grant parity on par with the regular Surveyors being not arising under a contract or under a statute, is liable to be negated.
18. Petitioners have no right to claim emoluments equal to that of their counterparts working in the Survey Department of the Government of Karnataka, since, the surveyors working in the Department are paid out of the Government funds and the petitioners - licensed surveyors are paid out of the fee collected from the applicants seeking survey of their lands.
19. No direction can be issued based on the Circular dated 24.01.2005, as at Annexure-B and the Government Order, dated 12.08.2008, as at Annexure-C. Any executive instruction or the Government Order cannot prevail over the statutory Rule. Mandamus can be issued only when there exists a legal right in the petitioners and a corresponding *egal obligation in the respondents. Annexures - B and C having not created any legal obligation on the respondents towards the petitioners, the petitioners' claim for revision of the licence fee based on Annexures-B and C, till the Rule 46-E was amended by way of substitution, on 26.07.2013, has no legal basis.
20. In the absence of legislative rules, it was competent to the State Government to take a decision in the exercise of its executive power under Article 162 of the Constitution. Therefore, an executive order could make provision only for a matter which was not covered by the Rules and such executive order could not override any provision of the Rules. Since unamended Rule 46-E, extracted in para 13 (supra), was operating till the said Rule was deleted and substituted as per the provision noticed in para 14 (supra), the petitioners' claim for revision of licence fee has no legal oasis.
21. State Government was vested with the power, only on 26.07.2013, to pay to the licensed surveyors the fee as notified by the Government from time to time i.e., for preparing the sketch in accordance with S.129 and S.131(c) of the Act. Since, the petitioners' claim has no statutory backing, I do not find justification to issue any direction or writ in the nature of mandamus.
Consequently, the writ petitions, for the reliefs prayed being devoid of merit are dismissed with no order as to costs.