H.

Hiriyannaiah vs Divisional Commissioner on 28 August, 1990

Karnataka High Court

H. Hiriyannaiah vs Divisional Commissioner on 28 August, 1990
Equivalent citations: ILR 1990 KAR 3947
Author: Hanumanthappa
Bench: Hanumanthappa
ORDER Hanumanthappa, J.

1. The question of law involved in these Writ Petitions since common, they are heard together.

2. The attack to the orders passed by the Divisional Commissioner under Section 56(3) of the
Karnataka Land Revenue Act, 1964 is, such orders are illegal and without jurisdiction. Before
arriving at a conclusion whether the orders passed under Section 56(3) of the Act by the Divisional
Commissioner or the show cause notices issued by him under Section 56(3) of the Act which are also
challenged in some of the Writ Petitions, are in accordance with law, it is proper to state a few facts.

3. As per the petitioners, they are the owners of certain agricultural lands situated within the
Bangalore City or its surroundings. In view of the fast growing of the City and as it was difficult for
them to cultivate the land as they were of small bits, they thought of converting the said lands from
agriculture to non-agriculture, so that after conversion they can build their houses and start living
therein. As law abiding citizens they gave applications together with documents to the Deputy
Commissioner, Bangalore, to accord sanction for conversion of lands in question from agriculture to
non-agriculture. The Deputy Commissioner who is the Competent Authority, after taking into
consideration the request of the petitioners and the materials made available including the existing
Comprehensive Development Plan, etc., accorded sanction under Section 95(4) of the Karnataka
Land Revenue " Act 1964 to convert the lands in question from agriculture to non-agriculture,
imposing certain conditions including payment of conversion charges as prescribed under the Rule
107(1) of the Karnataka Land Revenue (Amendment) Rules, 1984. Pursuant to the same, some of the
petitioners paid necessary conversion charges and others were making preparation for payment of
necessary charges. At that stage, the Divisional Commissioner issued show cause notices to some of
the petitioners calling them to show cause why the order of conversion granted by the Deputy
Commissioner should not be cancelled for the reasons mentioned in his show cause notices. The
grounds mentioned in one of the show cause notices, which are similar in all the show cause notices,
are extracted below:

(Annexure-B in W.P. 6426 of 1990) "Recd. 23-10-1989 Office of the Divisional Commissioner,
Bangalore Division, Vishweswaraiah Tower, Dr. Ambedkar Veedhi, Bangalore.

No. ALN(B)CR 186/89-90 Dated: 27-9-1989 SHOW CAUSE NOTICE In your application dated
20-4-1989 conversion of 10 guntas extent of agricultural land in Survey No. 40/1 of Kadirenahalli
village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore District was sought under Section 95(3)
of the Karnataka Land Revenue Act, 1974 before the Special Deputy Commissioner (Revenue),
Bangalore District, Bangalore and in the Official Memorandum No. B.DIS.ALN.SR(S) 58/89-90
dated 1-6-1989 conversion of the said extent of agricultural land for non-agricultural residential
purpose has been sanctioned by the Special Deputy Commissioner (Revenue), Bangalore District,

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 H. Hiriyannaiah vs Divisional Commissioner on 28 August, 1990

Bangalore.

During routine inspection of subordinate offices, the file pertaining to the said sanction order has
been examined. It is observed that sanction of conversion of agricultural land to non-agricultural
residential purpose accorded in the Official Memorandum No. B.DIS. ALN.SR(S) 58/89-90 dated
1-6-1989 is contrary to law and facts because:

1) The conversion of Agricultural land to non-agricultural purposes is subject to provisions of any

law relating to the Town and Country Planning or the erection of buildings under Sub-section (4) of
Section 95 of the Karnataka Land Revenue Act, 1964. The Karnataka Town and Country Planning
Act is in force. Under the provisions of this Act, the Government in the Notification No. HUD 3 TTP
83 dated 12-10-1984 had approved the comprehensive Development Plan of Bangalore Metropolitan
area and the same was published in the Official Gazette dated 13-10-1984.

2) The Comprehensive Development Plan so notified by the Government contemplates zoning ,

regulations and specification of land use in various parts of the Planning area. Lands falling within
the Comprehensive Development Plan area are specified for residential, commercial, public, semi
public, traffic and transportation, parks and play grounds and other types of land use.

3) This has been done by Government in exercise of powers under the Karnataka Town and Country
Planning Act in the interests of the general public. Any change in land use can only be ordered by
the Competent Authority under the Town and Country Planning Act.

4) The Bangalore Development Authority is the Planning Authority for Bangalore Metropolitan
area. The Comprehensive Development Plan notified by Government was prepared and has to be
implemented by the Bangalore Development Authority. This Authority in the letter No.
BDA.TPM.DDTP(W)CON.186/89-90 dated 19-5-1989 had furnished its opinion on your application
for conversion of agricultural land to non-agricultural purposes. The Bangalore Development
Authority had clearly mentioned that the residential purposes for which the agricultural land was
sought to be converted is not permissible as per comprehensive Development Plan.

5) The Bangalore Development Authority had also informed that the said land is also notified for
acquisition by it for formation of BSK III Stage, 9th Block. This was clearly for a public purpose and
in the interest of general public.

6) But, in the Official Memorandum No. B.DIS.ALN. SR(S) 58/89-90 dated 1-6-1989 the Special
Deputy Commissioner (Revenue) Bangalore District, Bangalore converted the agricultural land for
non-agricultural residential purposes which is clearly against the interest of the General Public and
likely to cause public nuisance. The said sanction order clearly contravenes Sub-section (3) of
Section 95 of the Karnataka Land Revenue Act, 1964.

This show cause notice is issued in exercise of the powers under Sub-section (3) of Section 56 of the
Karnataka Land Revenue Act, 1964 vested in this Authority.

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 H. Hiriyannaiah vs Divisional Commissioner on 28 August, 1990

You are requested to appear before this Court on 4-12-1989 at 3.00 P.M. to show cause as to why the
Official Memorandum No. 8.DIS.ALN.SR(S)53/39-90 dated 1-6-1989 of the Special Deputy
Commissioner (Revenue), Bangalore District, Bangalore should not be set aside.

Further action in pursuance of the Official Memorandum mentioned above is stayed till the disposal
of this Revision proceedings.

Sd/- Divisional Commissioner, Bangalore Division,.."

The said notice came to be replied by some petitioners denying the charges levelled against them by
the Divisional Commissioner, also objecting his authority to issue notice under Section 56(3) of the
Act. In some cases the Divisional Commissioner passed orders under Section 56(3) of the Act and
some matters were at the stage of considering the objections filed by the petitioners. The reasons
given by the Divisional Commissioner to pass final orders under Section 56(3) of the Act to cancel
the conversion orders issued by the Deputy Commissioner, have been given in one of the orders. The
relevant portion of the order under challenge in one of the Writ Petitions is extracted hereunder:

"The irregularities for sanction of conversion have already been set out in para-2 above. The
Bangalore Development Authority in its letter dated 19-5-1989 had recommended for rejection of
the request for conversion as the proposed lands were notified for acquisition for B.D.A, Layout.
Inspite of that recommendation, the Special Deputy Commissioner had granted conversion. The
Bangalore Development Authority is a body specially set up by the Government to plan development
of the City and formation of any private layout will go counter to the 'Development Scheme of the
Bangalore Development Authority.

The contentions of the Respondent are not 'tenable as the Divisional Commissioner has ample
powers under Section 56(3) of the Act. Therefore I hold that the sanction of conversion by the
Special Deputy Commissioner, Bangalore District is not in public interest and hence, I quash the
order with the following directions:

1. If the respondent has already paid the conversion fine it shall be refunded forthwith.

2. If the Respondent has put up any structure, they shall be demolished.

3. If the revenue records have been altered the original entries shall be restored."

4. Challenging the orders and the show cause notices passed by the Divisional Commissioner, these
petitioners have filed these Writ Petitions. According to them, either the orders or the show cause
notices issued by the Divisional Commissioner are to be held as illegal being one without any
reasoning. The ground on which the Divisional Commissioner had to arrive at the conclusion is that
the orders of conversion made by the Deputy Commissioner is incorrect.

5. The arguments of all the Advocates for the petitioners are on the same line, namely, under Section
66(3) of the Act the Divisional Commissioner will not get any jurisdiction to interfere with the

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 H. Hiriyannaiah vs Divisional Commissioner on 28 August, 1990

orders passed by the Deputy Commissioner under Section 95(4) of the Act. In support of such a
contention, one of the Advocates for the petitioners (in W.P. No. 6426 of 1990) Smt. Maina, took me
to relevant provisions of Section 49 of the Act. According to her, as against the order 'passed under
Section' 95(4) of the Act, under Section 49 of the Karnataka Land Revenue Act, 1964 an appeal lies
to the Karnataka Appellate Tribunal. Sections 95(4) and 49 read as under:

"95(4): Conditions may be imposed on diversion in order to secure the health, safety and
convenience, and in the case of land which is to be used as building sites, in order to secure in
addition that the dimensions, arrangement and accessibility of the sites are adequate for the health
and convenience of occupiers or are suitable to the locality and do not contravene the provisions of
any law relating to Town and Country Planning or the erection of buildings."

"49: Appeals from Original Orders - Save as otherwise expressly provided, an appeal shall lie from
every original order passed under this Act or the Rules made thereunder and from every order made
in exercise of the powers conferred by Section 54 of the Code of Civil Procedure 1908 (Central Act 5
of 1908)

(a) to (b) I.....

(c) if such an order is passed by the Deputy Commissioner, to the Tribunal;

6. No doubt, under Section 56(1) of the Act, an officer will have powers to interfere in any of the
enquiry initiated or proceedings pending before their subordinates. Section 56(1) reads as follows:

"56: Power of revision - (1) The Tribunal, any Revenue Officer not inferior in rank to an Assistant
Commissioner, and any Survey Officer not inferior in rank to a Superintendent of Land Records or
an Assistant Settlement Officer in their respective departments, may call for and examine the record
of any inquiry or the proceedings of any subordinate officer under this Act or under Section 54 of the
Code of Civil Procedure, 1908 (Central Act 5 of 1908) for the purpose of satisfying itself or himself,
as the case may be, as to the legality or propriety of the proceedings of such officer.

Explanation: For the purpose of this subsection -

(i) Special Deputy Commissioner shall be deemed to be not subordinate to the Deputy
Commissioner; and

(ii) all revenue officers shall be deemed to be subordinate to the Tribunal."

As far as Section 56(1) is concerned, according to Smt. Maina and her friends Sri P. Krishnappa and
others appearing for the petitioners, they have no complaint. But their main complaint is against the
orders passed under Section 56(3). They contend that Section 56(3) will be available to a party to
request an officer superior to the one who passes an order with an application to revise such an
order, and Section 56(3) will not give suo motu powers to any one of the authorities unlike under
Section 56(1) of the Act. According to Section 56(3) of the Act, the power will be available only when

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 H. Hiriyannaiah vs Divisional Commissioner on 28 August, 1990

an appeal has not been preferred. In the instant case, according to them, as against the orders
passed under Section 95(4) of the Act, the State if aggrieved in any way, like any other private
person, it should prefer an appeal before the Karnataka Appellate Tribunal under Section 49 of the
Act, If the Divisional Commissioner had unnecessarily taken trouble to exercise suo motu powers
under Section 56(3) of the Act, in no way the said Section gives powers to him to pass such an order.
In support of their contention, they relied upon the observations made by the Supreme Court in the
case of A.K. ROY AND ANR. v. STATE OF PUNJAB AND ORS., , and submitted that when the
power has been given to an authority, such authority shall exercise such power as contemplated
therein and not otherwise. The relevant portion of the observations of the Supreme Court reads as
follows:

"If the requirements of a statute which prescribe the manner in which something is to be done are
expressed in negative language, that is to say, if the statute enacts that it shall be done in such a
manner and in no other manner, it has been laid down that those requirements are in all cases
absolute, and that neglect to attend to them will invalidate the whole proceedings.

Where a power is given to do a certain thing in a certain way, the thing must be done in that way or
not at all. Other modes of performance are necessarily forbidden. The intention of the Legislature in
enacting Section 20(1) was to confer a power on the authorities specified therein which power had to
be exercised in the manner provided and not otherwise."

They submit that if the action of the Divisional Commissioner is compared with the principles laid
down by the Supreme Court in the decision cited supra, the only conclusion could be that the
Divisional Commissioner passed orders without applying his mind to the provisions of Section 56(3)
of the Act. Thus the learned Counsel for the petitioners have prayed that either the final orders
passed under Section 56(3) or the Show Cause Notices issued under the same provision by the
Divisional Commissioner, be quashed.

7. As against the said contentions, Sri Kantharaj, learned Government Pleader for the State,
submitted that both under Section 56(1) and also under Section 56(3) of the Act, the superior officer
of the Revenue Department will have powers to interfere with the orders passed either suo motu or
on the application filed by the aggrieved persons, and thus revise the orders of the Subordinate
Officer. According to him, the Divisional Commissioner is justified in exercising the powers under
Section 56(3) of the Act as he being the superior to the Deputy Commissioner. In addition to this, he
submitted, the Divisional Commissioner before passing order adhered strictly to the provisions of
Section 56(3) of the Act in affording an opportunity to the parties concerned. In support of his
contention, he relied upon an earlier decision of this Court rendered in the case of YELLAPPA
BHIMAPPA DIDDJ v. STATE OF MYSORE AND ORS., 1974(1) KLJ 379. He made an attempt to
draw sustenance to his contention referring to a passage in the said Judgment, which reads as
follows:

"Section 56 of the Land Revenue Act enjoins the exercise of power of revision by the authorities on
their own whether it is referable to suo motu exercise or otherwise and also at the instance of the
party aggrieved by any order made under the Act. It is not necessary that in all cases there should be

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 H. Hiriyannaiah vs Divisional Commissioner on 28 August, 1990

an application as provided by Sub-section (3) of Section 56 for the exercise of the power of revision."

Regarding the observations made interpreting the scope of Section 56(3) of the Act, Sri Kantharaj
submitted that the same supports the action of the Divisional Commissioner.

8. After hearing both sides, t am of the view that the orders passed by the Divisional Commissioner
or the show cause notice issued by him, are without jurisdiction, for the following reasons:

(1) Section 56(3) of the Act can be made use of not by the authorities but by the aggrieved persons
who will have lost an opportunity of filing an appeal.

(2) The Legislature made a provision under Section 56(3) of the Act not only to those who are
parties before the authorities below to file an application before the superior officer for seeking
revision of such orders, but also to such of those who are not parties to the original orders. However
aggrieved by such orders, and, such persons may approach the superiors to revise the orders of their
subordinates.

9. It cannot be said that the Divisional Commissioner was right in exercising his powers under
Section 56(3) of the Act. A similar view, in fact, has been taken by this Court in the decision which
Sri Kantharaj for the State has relied upon. This Court while interpreting Section 56(3) of the Act,
observed as follows:

"6. It is next contended by Sri Sridharan that the power under Section 56 would not be available in
respect of an order which is expressly made appealable under Section 49 of the Land Revenue Act,
having regard to the provisions of Sub-section (3) of Section 56. As observed by me earlier,
Sub-section (3) is in a way independent of Sub-sections (1) and (2) thereof, and is concerned with
the conferment of power to apply for revision on a party who might be aggrieved by any order made
by any of the authorities under the Act. The condition referred to by the learned Counsel occurs in
Sub-section (3). That being so, it is a condition which would apply only to a case of revision sought
for and on behalf of a party, and has no reference to the power exercisable by the authorities under
Sub-section (1) of their own accord. Hence this contention has also no force. No other contention is
urged."

10. Reliance placed by Sri Kantharaj in respect of the provisions of Section 56(3) of the Act to
support his contention that the Divisional Commissioner was justified in exercising his powers,
according to me, has no application, because it is made clear in Section 56(3) of the Act that the
authority may exercise power under that Section in respect of any order against which no appeal has
been preferred. The power given to such an officer to exercise powers under Section 56(3) of the Act
to revise the orders is for a period of three years from the date of the order sought to be revised. If
this contention is to be accepted as true, then it has to be taken into consideration, whether against
the order there is an appeal provision. No such provision is there as to why an aggrived person,
whether it is a private person or the State, shall not prefer an appeal. Powers conferred thereunder
definitely not to by-pass the alternative remedy of preferring an appeal. In the instant case, it is not
disputed that against an order under Section 95(4) an appeal lies to the Karnataka Appellate

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 H. Hiriyannaiah vs Divisional Commissioner on 28 August, 1990

Tribunal. In any way, I think the State, if aggrived by such an order of conversion, should have
preferred an appeal before the Karnataka Appellate Tribunal well in time. Having not done so, it is
incorrect for the State now to contend that under the provisions of Section 56(3) of the Act, the
Divisional Commissioner having got the jurisdiction, exercised the power and the order passed
persuant to the same, are justified.

11. Regarding Section 56(1) of the Act, authorities will get jurisdiction not to revise the final orders
but to call for and examine suo motu the records only in respect of inquiry or proceedings. The
dictionary meaning) of the word 'inquiry' is 'make search (into matter)', 'seek information', etc.
Regarding the word 'proceeding' the dictionary meaning is 'action, piece of conduct (steps taken in),
legal action', etc.

12. Since the order of conversion made under Section 95(4) of the Act, is neither an inquiry nor a
proceeding but a final order, none of the Revenue, Officers under Section 56(1) of the Act could have
interfered to revise the order. Whereas, an order under Section 56(3) of the Act, in my view, be
made only at the instance of the aggrieved person and not suo motu. Hence, the reliance placed by
Sri Kantharaj on 1974(1) KLJ 379 has no application.

13. Sri Kantharaj, learned High Court Government Pleader submitted that under Proviso to Section
56(3) of the Act, a Revenue Officer has got powers to revise which reads as follows:

"Provided that any Revenue Officer or Survey Officer referred to in Sub-section (1) may exercise
power under this Section in respect of any order against which no appeal has been preferred under
this Chapter, at any time within three years from the date of the order sought to be revised."

In my view, this proviso does not confer a power on a Revenue Officer to revise the order of his
subordinates 'suo motu'. Main Section 56(3) denies a party aggrieved to prefer any revision, when
an appeal has been preferred, or in case an application for revision a party intends to file, he shall do
the same within four months Tom the date of order. Whereas, proviso to the above Section gives
power to a Revenue Officer to revise an order of the subordinate at any time within three years
provided no appeal against such an order preferred. The proviso is nothing but a clarification of
Section 56(3), and it is intended as an aid to an aggrieved person to seek remedy and it cannot be
held as conferring 'suo motu' revisional powers on a Revenue Officer including Divisional
Commissioner.

14. Accordingly, either the orders passed by the Divisional Commissioner or the show cause notices
issued by him, are to be held as illegal and without jurisdiction. Hence, these Writ Petitions are
allowed, quashing either the final orders or the show cause notices issued by the Divisional
Commissioner, which are under challenge in these Writ Petitions. However, liberty is reserved to the
authorities concerned to initiate proceedings if they BO desire challenging the conversion orders
passed by the Deputy Commissioner, before the appropriate authority. In such an event, both the
petitioners and the State will have a right to adduce necessary materials in support of their
contentions.

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