M.T. Krishnappa S/O Thimmegowda and T. Thimmaiah S/O Thimmegowda Vs. Erashetty, Major S/O Dollashetty and ors. - Court Judgment

N. Ananda, J.

1. In this writ appeal, appellants have called in question the order passed in W.P.Nos.20866-68/2001 dated 18-1-2005.

2. This Court dealing with an intra Court appeal under writ jurisdiction, would normally refrain from examining the facts in detail. However, in the instant case, we are constrained to go into the factual details as the order impugned is preceded by series of orders passed by both quasi-judicial and judicial authorities and the lis between the parties is lingering since over a decade and half.

3. In this appeal, appellants-1 and 2 would be collectively referred to as the appellants and respondents-1 to 3 would be collectively referred to as the respondents.

4. The facts and the judicial and quasi-judicial orders which preceded the impugned order are as follows:

The land bearing Sy. No. 40 in an extent of 200 acres is gomal land of Balenahalli village, Mandya Taluk. The major extent of land was carved out by the Forest department and has been converted into a forest. The appellants were granted two plots measuring 4 acres each out of Sy. No. 40 of Balenahalli village by the Tahsildar, Mandya vide order No. GVR:41:66-67 dated 21-10-1966. These lands were initially demarcated and numbered as blocks Nos. I and II of Sy. No. 40. However, during the year 1990, after durasthi work, block No. I has been assigned Sy. No. 103 and block No. II has been assigned Sy. No. 102.

5. The respondents claiming to be in unauthorised occupation of the aforestated plots of land challenged the grants made in favour of the appellants in R.A.No. 38/91-92 before the Assistant Commissioner, however they were unsuccessful. The Assistant Commissioner gave an endorsement staling that the lands have already been granted to the appellants and durasthi work was completed long back and the respondents had approached the Assistant Commissioner nearly 24 years after the grant order. The respondents challenged this order in R.A.Nos. 9-11/92-93 before the Deputy Commissioner, Mandya.

The Deputy Commissioner, by order dated 21-2-1994 cancelled the grant in favour of the appellants and remanded the matter to the Tahsildar for fresh consideration by recording the following findings:

(i) The second appellant was an Engineering student on the date of grant and subsequently got in to public service; therefore there was suppression of fact;

(ii) The eligibility of appellant No. 1 for grant of land with reference to his occupation and income was not considered and in fact the first appellant was instrumental for grant of lands in his favour as well as in favour of the second appellant; the cumulative effect was that the grants were obtained by misrepresentation and fraud.

(iii) Sketches prepared at the time of durasthi did not tally with the sketches prepared at the time of grant and there was change of spot of the land at the time of durasthi. The plots of land under unauthorised occupation of the respondents are shown as the plots of lands granted to the appellants by assigning Sy.Nos. 102 and 103.

6. The appellants challenged the order of the Deputy Commissioner before this Court in W.P.Nos. 10574-75/1994. This Court, by order dated 2-1-1997 allowed the said writ petitions and quashed the order passed by the Deputy Commissioner and restored the grants, reserving liberty to the granting authorities to cancel the grants if it is found that grants are obtained either by fraud or misrepresentation. This Court further held that mere is no material worth of its name to show that respondents are in unauthorised occupation of the lands in question. However, this Court considering the plight of respondents who had lost their hiduvali lands for construction of a tank, gave liberty to the respondents to seek grant of land in Sy.No. 40,. if it is available.

The respondents filed C.P. No. 301/1997 for review of the order dated 2-1-1997 passed in W.P.Nos. 10574-575/1994. This Court by order dated 19-9-1997 dismissed C.P.No. 301/1997, by holding that the order passed in W.P.Nos. 10574-575 will not come in the way of respondents challenging durasthi made with reference to the granted lands, if they so desire.

7. The Committee for Regularisation of Unauthorised Cultivation by order dated 16-6-1997 rejected form No. 50 filed by the respondents which came to be challenged by the respondents in R.A.Nos. 62-64/1997 & 98 before the Assistant Commissioner, Mandya, These appeals came to be dismissed by order dated 21-10-1998.

The respondents challenged the order dated 21-10-1998 passed by the Assistant Commissioner in R.A.Nos. 82-84/1998 before the Deputy Commissioner, Mandya.

The Deputy Commissioner heard learned Counsel for the parties and by order dated 24-5-1999 decided to inspect the spot. The Deputy Commissioner, in the presence of both parties, inspected the spot on 11-6-1999. The Deputy Commissioner, by order dated 8-10-1999 allowed the appeals and remanded the matter to the Tahsildar and also recalled the durasthi work, by recording the following findings:

(i) Respondents are in unauthorised occupation of the lands earlier demarcated as blocks I and II of Sy.No. 40 which are assigned Sy.Nos. 103 & 104 after durasthi.

(ii) The Surveyor even without completing durasthi work, has assigned Sy.Nos. 103 & 104 to the lands which are in unauthorised occupation of respondents only to deceive the respondents who are poor and illiterates and to disable them from seeking regularisation of lands in their unauthorised occupation;

(ii) Sketches prepared at the time of grant of lands and the sketches prepared at the time of durasthi do not tally.

The appellants being aggrieved by the order dated 8-10-1999 of the Deputy Commissioner, filed Revision Petitions Nos. 3-5/2000 before the Karnataka Appellate Tribunal, which by its order dated 16-2-2001 dismissed the revision petitions by confirming the order passed by the Deputy Commissioner, interalia recording the following findings:

(i) The appellants were granted 4 acres of land each on 21-10-1966;

(ii) Grant certificates were issued on 24-5-1974 according to which, block No. I of Sy.No. 40 as per revenue sketch dated 20-5-1966 had been granted to first appellant and block No. II of Sy.No. 40 of the same sketch had been granted to second appellant.

(iii) Phody work had not been completed till July 1991 as the appellants are not the villagers of Balenahalli and they could not be notified for want of definite address.

(iv) There has been change of spot during durasthi work. The plots of land which are in unauthorised occupation of the respondents are shown as the plots of land granted to the appellants;

(v) ADLR in his letter dated 31-3-1992 has clarified the situation by stating that plots of land which are phoded against the grant certificates are entirely different plots. Plots shown in revenue sketch and the plots which are assigned Sy.Nos. 103 & 104 are entirely different and are located more than half a furlong from each other. The change of spot is obvious from the revenue sketch as per which grant certificates are issued and the sketch according to which phody work has been done. The plots of land phoded in favour of the appellants are not plots of land granted to them.

8. The learned Single Judge, agreeing with these concurrent findings of facts recorded by the Deputy Commissioner and the Karnataka Appellate Tribunal, has held that this Court in exercise of its extraordinary and supervisory jurisdiction under Article 226 & 227 of the Constitution of India, need not interfere with the same, as the concurrent findings of facts are recorded on reappreciation of the facts and material evidence available in the original grant records.

The learned Single Judge has further held mat if this matter is remanded to examine the correctness of durasthi work, no harm would be caused to the appellants. Even otherwise, in order to resolve the controversy between the parties, authorities concerned are required to find out whether durasthi work has been made with reference to the grant order made in favour of the appellants and the revenue sketch available in the grant records.

9. Before adverting to the submissions made by learned Counsel for the appellants, we deem it necessary to examine the legal position regarding exercise of extraordinary and supervisory jurisdiction of mis Court under Articles 226 and 227 of the Constitution of India.

10. The Apex Court, in the case of Surya Dev Rai v. Ram Chander Rai and Ors. 2003 AIR SCW 3872 considering the nature of distinction between the original jurisdiction under Article 226 and the supervisory jurisdiction under Article 227 of the constitution, has laid down the following principles of law:

Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (1) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

Upon a review of decided cases and a survey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.

11. In view of the aforesaid law laid down by the Apex Court, to ensure the correctness or otherwise of concurrent findings of facts recorded by Karnataka Appellate Tribunal and Deputy Commissioner, we have verified the original grant records submitted to us by the learned Government Advocate and we have re-examined the orders passed by the Deputy Commissioner and the Karnataka Appellate Tribunal which have been concurred by the learned Single Judge.

12. It is seen from the original grant records that plots of land phoded against grants in favour of the appellants are totally different from the lands demarcated before grant of the order. Plots of land shown in revenue sketch prepared before grant are different from the plots of land demarcated during phody work. The plots of land which are assigned Sy.Nos.103 & 104 after phody work are different from the plots of land shown as block Nos. I and II of Sy.No. 40 in the revenue sketch and also in the grant certificates issued to the appellants.

13. Since as the matter is under remand, we refrain from further going into these factual details.

14. The learned Counsel appearing for the appellants has made the following submissions:

(1) The legality of the grant of lands made in favour of the appellants has become final and conclusive in view of the order passed by this Court in W.P.Nos. 10574-75/1994. Therefore, revenue authorities including the Karnataka Appellate Tribunal should not have reopened the matter once again to consider legality of the grant.

(2) The Deputy Commissioner is not the appellate authority to decide the legality of the orders passed by the Survey Officer or the other Officers enumerated under Sub Sections (e), (f) & (g) of Section 49 of the Karnataka Land Revenue Act, 1964.

(3) This Court in W.P.Nos. 10574-75/1994 has held that respondents are not in unauthorised occupation of the lands in question and therefore the Deputy Commissioner should not have remanded the matter for consideration of form No. 50 filed by the respondents for regularisation of lands in then unauthorised occupation.

(4) The learned Single Judge has not bestowed his attention to all these matters which have attained finality by virtue of the order passed by this Court in W.P.Nos. 10574-75/1994.

15. The learned Counsel appearing for the respondents -1 to 3 and the learned Government Advocate appearing for respondents-5 to 7 have made submissions justifying the impugned order. They have submitted that the Deputy Commissioner, exercising the inherent powers under Section 25 of the Karnataka Land Revenue Act, 1964 has verified the records and conducted spot inspection to meet the ends of justice. Therefore, the said action cannot be termed as illegal or without jurisdiction.

16. The submission of the learned Counsel for the appellants that the matter has been concluded by the order passed by this Court in W.p.nOS. 10574-75/1994, cannot be accepted, as, perusal of the said order indicates that grants have been restored; however, liberty has been reserved to the granting authorities for cancellation of the grants by invoking Rule 25 of the Karnataka Land Grant Rules, 1969 if it is found that grants have been obtained either by misrepresentation or fraud. This Court, in its order passed in C.P.No. 301/1997 has held that respondents herein are not precluded from questioning the phody work. Therefore, controversy between the parties regarding phody work and identification of the plots of land granted to the appellants and plots of land stated to be in unauthorised occupation of the respondents still remain in the realm of controversy.

17. The Deputy Commissioner while deciding the appeals, made a spot inspection to ensure mat the very lands granted to the appellants are phoded and assigned Sy.Nos. 103 & 104. Therefore, this act of the Deputy Commissioner cannot be termed as illegal or without jurisdiction.

18. The submission of learned Counsel for the appellants that under Section 49 of the Karnataka Land Revenue Act, 1964, the Deputy Commissioner is not an appellate authority to examine legality of the phody work cannot be accepted, as the Deputy Commissioner, on verification of the records, has found that plots of land phoded against the grant are not the lands which are shown in the revenue sketch and me grant certificates. It is the duty of the revenue authorities to see that the grants made under the Karnataka Land Revenue Act, 1964 or under the Land Grant Rules, 1969 are effectuated by the concerned authorities i.e., by proper identification of the lands before and after grant without giving room for any controversy. It is also necessary to preserve the remaining extent of the Government land in tact and to see that the parties do not encroach upon the remaining extent of Government land under the guise of grant certificates. Therefore, it cannot be held that phody work undertaken to identify and demarcate the lands granted and the orders passed thereon would fall within the definition of the orders enumerated in Sub-section (e), (f) & (g) of Section 49 of the Kamataka Land Revenue Act, 1964.

19. The learned Single Judge has considered all these aspects. In fact, the learned Single Judge has held mat the order of remand will not cause prejudice to the appellants and it is necessary to find out whether the very plots of land granted to the appellants as shown in the revenue sketch and the grant certificates are phoded as Sy.Nos. 103 & 104. Therefore, it is not possible to hold that the learned Single Judge has not considered all the aspects of the case on hand.

20. As already stated, mere issuance of grant certificates without proper identification and demarcation of the lands by undertaking proper phodying work will not effectuate the grant.

21. For the reasons stated herein before, we hold that the order dated 18-1-2005 passed in W.P.Nos. 20866-68/2001 does not call for interference by this Court. Accordingly, the following order:

The appeal is dismissed.