Gururaj Gurunath Govind Rao v. State Of Karnataka

Rajendra Babu, J.:—

This Reference arises out of an Order made by two of us (Rajendra Babu & Bhat JJ.,) under Section 7 of the Karnataka High Court Act on the question - “Whether orders made under Section 118(2b) by the Assistant Commissioner in appeals against the orders of Tahsildar are subject to Revision by Divisional Commissioner under Section 118A of the Act or not?”.

2. The Petition out of which this reference arises is directed against an order made by the Divisional Commissioner in exercise of the powers under Section 118A of the Karnataka Land Reforms Act (‘the Act’, for brevity). The said revision petition was filed before the Divisional Commissioner against an order made by the Assistant Commissioner in an appeal confirming an order made by the Tahsildar granting resumption to the petitioner under Section 15 of the Act. It is urged on behalf of the petitioner that an order under Section 118(2b) of the Act is ‘final’ as provided in the Section itself. Relying upon a Decision of this Court in ILR 1986 KAR 10591, it is urged that Section 118(2b) of the Act having used the expression ‘final’ in respect of an order made by the Assistant Commissioner is an appeal and in the absence of express words in that Section or in Section 118A of the Act which affects that finality, it is submitted that the Divisional Commissioner has no power or jurisdiction to interfere with such an order.

3. On behalf of the respondents, it is submitted that in view of the Decision in (1977) 2 SCC 409 : AIR 1977 SC 15552 - merely because a provision is made rendering a decision final, will not take away the remedy by way of revision and that will only be effective in taking away a remedy by way of appeal and unless the finality clause is associated with the expression ‘shall not be questioned in a Court of Law except as otherwise provided in the Act’, the remedy of revision under Section 118A cannot be taken as excluded. It is therefore submitted that the order made by the Assistant Commissioner in an appeal against an order of the Tahsildar is subject to revision under Section 118A of the Act and as such, the Divisional Commissioner did have the jurisdiction to make a decision.

4. Section 118 of the Act provides for appeals against certain orders. Under Section 118(2) of the Act, appeal lies to Revenue Appellate Tribunal against every order passed by the Deputy Commissioner or an Officer authorised under sub-section (1) of Section 77, the Assistant Commissioner or the prescribed authority under Section 83 of the Act and such a decision shall be final. Under Section 118(2b) of the Act, appeal lies to the Assistant Commissioner from every order made by the Tahsildar and the order of the Assistant Commissioner on such appeal shall be final. Under Section 118A of the Act, the Divisional Commissioner has powers of revision suo moto or on the application of any person against any order passed by the Assistant Commissioner against which no appeal lies, or the record of any order passed or proceeding recorded by the Tahsildar for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order with respect thereto as he thinks fit, after giving an opportunity to the affected person.

5. It is urged that an appeal would lie to the Appellate Tribunal under Section 118(2) of the Act in two classes of cases viz., (i) the orders made under Section 77(1) of the Act either by the Deputy Commissioner or any authorised officer and (ii) orders made under Section 83 of the Act either by the Assistant Commissioner or any prescribed authority. It is also urged that under the said provision, every order passed by the Deputy Commissioner or the Assistant Commissioner or Authorised Officer under Section 77(1) or 83 of the Act would be subject to appeal under Section 83(2) of the Act. If the latter view is accepted, there will be no order against which a revision would lie to the Divisional Commissioner under Section 118A of the Act and it is only in cases falling under Section 118(2b) such revision would lie. If the former view is correct there would be several orders of the Assistant Commissioner against which such a revision would lie. However, under both sub-section (2) and (2b) of Section 118 of the Act, orders made by the Appellate Authorities are rendered final. It is also submitted that in the scheme of the Act there are provisions only providing one appeal or one revision in order to avoid multiplicity of litigation and to effectuate speedy implementation of the Land Reforms. Hence, the scope of powers under Section 118(2), 118(2b) and 118A of the Act should be interpreted in such a way as to be harmonious with this intention.

6. in answering the Question Referred to us, it may be quite appropriate to examine the scope of Section 118(2) of the Act for the question that is posed to us is whether from the order made by the Assistant Commissioner in an appeal against the order of the Tahsildar, a revision would lie under Section 118A of the Act to the Divisional Commissioner. The language of Section 118A would admit of examination of the record or any order passed by the Assistant Commissioner against which no appeal lies. As against the order made under Section 118(2b) of the Act, no appeal lies for that is rendered final. The expression ‘final’ has been the subject matter of several Decisions and in Re Gilmore's Application3, the expression ‘final’ has been examined and it is stated that the word ‘final’ means - ‘without appeal’ and it does not mean ‘without recourse to other remedies’. A remedy which will arise in cases of exercise of power in excess of jurisdiction or for error of law on the face of the record, would certainly lie and unless there be express words, the jurisdiction of an authority is not taken away. Lord Justice Parker in his opinion stated that there are many instances where a statute provides that a decision shall be “final”. Sometimes, as here, the statute provides that subject to a specific right of appeal the decision shall be final. In such a case it may be said that the expression ‘shall be final’ is merely a pointer to the fact that there is no further appeal, and the remedy by way of Certiorari is not by way of appeal. A revision is not by way of an appeal. In AIR 1965 SC 14424 it was explained that the expression ‘final’ prima facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it. But, it does not mean a remedy other than an appeal would not lie.

7. The distinction between a revision and appeal is well-known. While the revisional power is discretionary, the remedy of appeal is by way of a right given to a party and scope of an appeal is as much as that of the original authority unless limited by the provisions of the statute itself and in revision only legality, propriety or regularity of such proceeding can be gone into and not other aspects.

8. However, the learned Counsel for the petitioner sought to rely upon a Decision in (1989) 1 SCC 643 : AIR 1989 SC 9225. In that case, decision of the Commissioner under the U.P Sales Tax Act has been rendered final subject only to an appeal before three member Bench of the Tribunal. Therefore, it was held that further revision to the High Court was not maintainable. The Supreme Court examined the language of Section 11 of the U.P Sales Tax Act and stated that a revision is not entertainable - from the decision of the Commissioner which has been subjected to an appeal before the Tribunal in view of the language used. In the absence of a specific provision that such revision will be maintainable, such revision will not lie for section 35(5) of the said Act stated that the decision of the Commissioner of Sales Tax under the section shall, subject to an appeal to the Tribunal, be final. In view of the language of that Section, in their Opinion, further revision to the High court against the decision of the Tribunal was not contemplated. In the particular scheme of the enactment, it was stated that an appeal lies to a Bench of three members of the Tribunal and no further revision from such an order would lie and it was also noticed that the Tribunal had come in the place of the High Court in hearing the appeal. In such a situation, to contemplate that the language of Section envisages that the order of the Commissioner to be final subject to an appeal to the Tribunal and that a further revision lies to the High Court, is unwarranted. The circumstance of substitution of the High Court by the Tribunal to hear appeal against the order of the Commissioner weighed with the Supreme Court very heavily. But, in the present case that is not the situation at all. The Divisional Commissioner, Deputy Commissioner, Assistant Commissioner and the Tahsildar constitute an heirarchy of officers with the Divisional Commissioner having supervisory control over them akin to High Court under Section 115 C.P.C In such an event, it cannot be said that the Decision in (1989) 1 SCC 643 : AIR 1989 SC 922 comes to the aid of the petitioner.

9. In Madhaji Lakhiram v. Mashrubhai Mahadevbhai Rabari . AIR 1962 Gujarat 235 FB., question of finality of orders made under the Bombay Tenancy and Agricultural Lands Act was considered. The finality of the decision rendered under Section 88-C(5) of that Act subjected to a revision under Section 76 was considered. In that Decision it was held that the expression ‘final’ is not used by the Legislature in any limited or technical sense of not subject to appeal, but it is used in the wider sense of not being subject to revision. In that Decision, it was noticed that the said Act did not contain any definition of the expression ‘final’. It is also noticed thereto the position in law that there is ample authority for the view that mere use of words ‘shall be final’ in an enactment does not have the effect of shutting out a revisional jurisdiction. The ordinary meaning of words ‘shall be final’ is merely that there shall be no appeal against such order. But, comparing the powers of the Gurjarat Revenue Tribunal under Section 76 of the Act relating to revisional power and that of the High Court under Section 115 C.P.C it is held that in certain aspects there are differences and therefore, on the scheme of the provisions of the Act it must be held that the expression ‘final’ means final including revision.

10. The sharp cleavage of opinion as to when an enactment uses the word ‘final’ in relation to a decision of an authority is demonstrable by reference to a Decision in (1988) 1 SCC 722 : AIR 1988 SC 8127. In that case, the Supreme Court was concerned with the interpretation of the provisions of Kerala Buildings (Lease and Rent) Control Act as to whether against the revisional order made by the revision Court under Section 20 thereto, a second revision would lie to the High Court. On an examination of the scheme of the provisions thereto, it was noticed that Section 18(5) of the said Act declares that an order of the Rent Control Court shall be final subject to the decision of the appellate authority and the order of the appellate authority shall be final and shall not be liable to be called in question in any Court of Law, except as provided thereto. When the Legislature has declared that even an order of the Rent Control Court and the decision of the appellate authority shall be final at their respective stages unless the order is modified by the Appellate Authority or the Revisional authority as the case may be, there is no necessity for the Legislature to declare once over again that an order passed in revision by the District Judge or the High court as the case may be will also have the seal of finality. It is also noticed that the Legislature has not merely conferred finality to the decision of an appellate authority, but has further laid down that the decision shall not be liable to be called in question in any Court of Law except as provided under Section 20. These additional words clearly spell out the prohibition or exclusion of a second revision under Section 115 C.P.C to the High Court. While referring to a Decision of the Supreme court in Shyamaraju Hegde v. Venkatesha . ILR 1987 KAR 3244 in relation to a question whether by reason of Section 48(6) of the Karnataka Rent Control Act, a further revision against a revisional order passed by the District Judge under Section 50(2) of the KRC Act would lie or not under Section 115 C.P.C it was held by a Full Bench of this Court in the light of the Decisions in Chhaganlal v. Municipal Corporation, Indore and Krishnadas Bhatija v. A.S Venkatachala Shetty . SLP Civil No. 913 of 1978 DD 13.2.1978 that the jurisdiction of the High Court under Section 115 C.P.C to revise an order of the District Judge passed under Section 50(2) stood unaffected. However, in, a subsequent Decision rendered by a Full Bench in M.M Yaragatti v. Vasant10, that view was upset and the Supreme Court considered the correctness of that view and the view expressed in Shyamaraju Hegde's case. It was noticed therein that having regard to the Legislative history that the right of appeal has been completely taken away and the entire proceedings are sought to be limited to a two tier system viz., the Rent Control Court and the Revisional Court, whereas under the Kerala Act there is a three tier system viz., the Rent Control Court, the Appellate Court and the Revisional Court. A further revision to the High Court would not lie under the Kerala Act, while under the Karnataka Act it would lie and though the language of the Karnataka Act is to the effect that the order made there shall be final and shall not be liable to be called in question before any authority or in a proceeding in any suit or other proceedings. The Supreme Court reckoned the same at a lesser degree than the terms under the Kerala Act because the word ‘finality’ in the two enactments under the relevant provisions present distinctly different perspectives. Therefore, one cannot say with any definiteness or lay-down any general principle as to whether the expression ‘final’ in regard to an order made by an authority would not leave open the door to revision. Hence, we are of the view that the matter should be examined not merely on the language of a particular provision, but also bearing in mind the entire scheme of the Act and, if necessary, the legislative history thereto.

11. In the present case the question for consideration is whether Section 118A of the Act would empower the Divisional Commissioner to revise an order made under Section 118(2b) and whether such jurisdiction is excluded merely because it is stated that from every order passed by the Tahsildar, an appeal shall lie to the Assistant Commissioner and the order of the Assistant Commissioner on such appeal shall be final. As noticed earlier, in the scheme of the Act, from every order made by the Deputy Commissioner or officers authorised under Section 77 or 83 of the Act and by the Assistant Commissioner, an appeal would lie to the Appellate Tribunal, while it is only in case of the orders made by the Tahsildar an appeal lies to the Assistant Commissioner and that order made by the Assistant Commissioner in such a case is rendered final. Considering the scheme of the Act that in no case other than one envisaged under Section 118(2b), a revision would lie to the Divisional Commissioner in respect of an order made by the Assistant Commissioner, we must hold that the order made by the Assistant Commissioner is subject to revision by the Divisional Commissioner.

12. The next argument is based upon the provisions of Section 57 of the Karnataka Land Revenue Act. Section 2(B) of the Act states that the words and expressions used in this Act but not defined shall have the meaning assigned to them in the Karnataka Land Revenue Act, 1964 and the Transfer of Property Act, 1882 as the case may be Section 57 of the Revenue Act provides that whenever in this Act it is declared that an order of a revenue officer shall be final, such expression shall be deemed to mean that no appeal lies from such-order. The argument is that inasmuch as the expression ‘final’ has not been defined in the Act, the definition of the same expression under Section 57 of the Karnataka Land Revenue Act would govern the construction of the words in Section 118(2b) of the Act. Under Section 2(B) of the Act, what is applied is the definition under the Karnataka Land Revenue Act and not a fiction created thereto. The language of Section 57 shows that the provision is not conceived as definition of the expression ‘final’. The definitions in the Revenue Act are to be found in Section 2 thereof. That Section does not contain any definition of the word ‘final’. Section 57 of the Land Revenue Act is not intended to deal with the word ‘final’ alone but also it deals with the legal effect of a declaration in the Court about the finality of the decision or order. What it says is that if the Revenue Act decrares that a decision or order shall be final thereto, such an expression shall be deemed to have the meaning assigned to it in the Section. In other words, the Section creates a fiction that the decision or order is final shall mean that the decision or order shall not be subject to an appeal. Proceeding on this basis, it was contended that Section 57 of the Land Revenue Act could not be applied to the present case. This argument receives support from Madhaji's case decided by Gujarat High Court.

13. It could be seen as held in St. Aubyn v. Attorney General . 1951 2 All E.R 473. referred to in Hira H. Advani v. State of Maharastra . 1969 2 SCC 662 the expression ‘deemed’ which is normally used to create a statutory fiction may also be used to put beyond doubt a meaning which may otherwise be uncertain or give an expression a comprehensive description that it includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible. In our view, Section 57 provides for the meaning of expression ‘final’. We have referred to certain Decisions which take the view that final means as without recourse to appeal but does not exclude revision and that is the meaning attributed to the expression ‘final’ in Section 57 of the Land Revenue Act. However, in Madhaji's case, the Full Bench held that there will be a repugnancy between the definition and the context if Section 212 of the Bombay Land Revenue Code were to be made applicable to the Tenancy Act in the sense in which it is contended that a revision would lie and hence the conclusion was reached on the language of the relevant enactment.

14. It was also submitted that Section 57 of the Land Revenue Act, if at all to be applied, must be applied in its entirety. The said Section provides that the Tribunal alone is competent to modify, annul or reverse such order. But, the Section consists of two parts; one part refers to the meaning to be attributed to the expression ‘final’, while the other part refers to the powers of the Tribunal. In understanding the meaning of the expression ‘final’, the other part of the provision need not be looked at. Hence, we are of the view that on the basis of Section 57 of the Karnataka Land Revenue Act, it could be construed that expression ‘final’ in Section 118(2b) of the Act should be understood as only pertaining to appeal.

15. We may also notice that in Section 118 of the Act only matters relating to appeals are dealt with and no powers or provisions relating to revision are referred to or considered. Therefore, finality in Section 118(2b) would only make it clear that no further appeal would lie for in the event it had not been rendered final, an appeal could have been preferred against an order made by the Assistant Commissioner also to the Tribunal as provided in Section 118(2) of the Act. If it were to be construed that the Assistant Commissioner exercises powers even in relation to matters other than Section 83 of the Act, an appeal would lie to the Tribunal. In the circumstances, on the scheme of the provisions of the Act, we must hold that Section 118A of the Act would cover an order made by the Assistant Commissioner under Section 118(2b) of the Act.

16. In Srimanmaharaja Niranjana Jagadguru Mallikarjuna Murugarajendra Mahaswamy v. Deputy Commissioner*, a Division Bench of this Court had occasion to consider the scope of provisions of the Karnataka Land Revenue Act. It was held therein that in exercise of his powers under Section 136 of the Land Revenue Act, the Deputy Commissioner has no power to revise the appellate order under sub-section (2) thereof. Section 136(2) uses the expression ‘final’ as regards the order of the appellate authority made under that provision and there are no express words in any other provision enabling a revision and when the appellate authority makes an order under Section 136(2) of the Land Revenue Act, the order made by the original authority under Section 129 of the Act merges with the latter and therefore the Deputy Commissioner has no power to interfere with the order made under Section 129 of the said Act when it has been a subject matter in appeal. That Decision stood on the scheme and scope of the provisions of the Land Revenue Act. It was pointed out therein that the expression rendering an appellate authority as final would be rendered otiose, if it were a subject matter for revision. But, we cannot subscribe to that rationale, with respect, because where an order of authority is rendered final whether the same is subject to further revision should be understood in the light of the Decisions of the Supreme Court referred to earlier wherein it is explained that the meaning to be attributed to expression ‘final’ will depend upon the scheme of the provisions of the Act and cannot be read in isolation. Merely because an expression ‘final’ is used, it cannot be said that a revision would not lie against such an order.

17. In that view of the matter, we hold that a revision lies under Section 118-A of the Act against an order made by the Assistant Commissioner in a proceeding arising under Section 118(2b) of the Act and we answer the question referred to us accordingly.