Gururaj Gurunath Govind Rao ...

vs The State Of Karnataka on 1 August, 1994

Karnataka High Court

Gururaj Gurunath Govind Rao ... vs The State Of Karnataka on 1 August, 1994
Equivalent citations: AIR 1995 Kant 267, ILR 1994 KAR 2341, 1994 (4) KarLJ 441
Author: R Babu
Bench: M . S.B., S Rajendra, N Bhat
ORDER Rajendra Babu, J.

1. This reference arises out of an order made by two of us (Rajendra Babu and 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 118 A 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 Srimanmaharaja Niranjan Jagadguru Mallikarjuna
Murugarajendra Mahaswamy v. Deputy Commissioner 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 in 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 Chhagan Lal v. The
Municipal Corporation, Indore -- 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 S.
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 as 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,
appeals 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, appeals ties 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 Division Commissioner has powers of revision suo motu 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

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 Gururaj Gurunath Govind Rao ... vs The State Of Karnataka on 1 August, 1994

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 wilt be no order against which a revision would
lie to the Divisional Commissioner under Section I ISA of the Act and it is only in cases falling under
Section 118(2b) such revision would lie. If the former view there would be several orders of the
Assistant Commissioner against which such a revi-sional would lie. However, under both
subsections (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 away 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 w.ould 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
pilmore's Application (1957) I All ER 796 -- 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 South Asia Industries Private Ltd. v. S.B. Sarup Singh -- 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 wellknown. While the revisional power is
discretionary, the remedy of appeal is by way of a tight 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

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 Gururaj Gurunath Govind Rao ... vs The State Of Karnataka on 1 August, 1994

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 Commissioner of
Sales Tax, U.P., Lucknow v. M/s. Suger Cotton Bowl Refilling Works. 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 S. 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 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 Section 115, C.P.C. In
such an event, it cannot be said that the decision in to the aid of the petitioner.

9. In Madhaji Lakhiram v. Mashrubhai Mahadevbhai Raban, (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 88C (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 Gujarat 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 cleavage of oipinion as to an enactment uses the word 'final' in relation to a decision of an
authority is demonstrable by reference to a decision in A.IR 1988 SC 812 -- M/s Jetha Bai & Sons V.
M/s. Sunderdas Rathenan Etc; 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

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 Gururaj Gurunath Govind Rao ... vs The State Of Karnataka on 1 August, 1994

against the revisional order made by the revision court under Section 20 thereto, a second revision
would be 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, 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 Chhaganlalv. Municipal Corporation Indore and Krishnadas Bhatija v. A. S. Venkatachala Shetty
(SLP (Civil) No. 913 of 1978 decided on 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. Vasant
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 decree 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 cast the question for consideration is whethere Section 118 A of the Act would
empower the Divisional Commissioner to revise an order made under Section 118(2b) and whether
such juridiction 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

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 Gururaj Gurunath Govind Rao ... vs The State Of Karnataka on 1 August, 1994

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 the 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. Sectiqn 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 Revenue Act declares 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 ER 473, referred to in Hira
H. Advani v. State of Maharashtra, , 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 applieable 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.

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 Gururaj Gurunath Govind Rao ... vs The State Of Karnataka on 1 August, 1994

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 S. 57 of the Karnataka Land Revenue Act, it
could he construed that expression 'final' in S. 118(2b) of the Act should be understood as only
pertaining to appeal.

15. We may also notice that in S. 118 of the Act only matters relating to appeals are dealt with and no
powers or provisions relating to revision arc referred to or considered. Therefore, finality in S.
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 S. 118(2) of the Act. If it were to be construed that
the Assistant Commissioner exercises powers even in relation to matters other than S. 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 S. 118A of the Act would cover an order made by the Assistant Commissioner
under S. 118(2b) of the Act.

16. In Srimanmaharaja Niranjana Jagad-guru Mallikarjuna Murugarajendra Maha-swamy 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 S. 136 of
the Land Revenue Act, the Deputy Commissioner has no power to revise the appellate order tinder
sub-sec. (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 S. 136(2) of the Land Revenue
Act, the order made by the original authority under S. 129 of the Act merges with the latter and
therefore the Deputy Commissioner has no power to interfere with the order made under S. 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 S. 118A of the Act against an order
made by the Assistant Commissioner in a proceeding arising under S. 118(2b) of the Act and we
answer the question referred to us accordingly.

18. Order accordingly.

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