ORDER
K.A. Swami, J.
1. In this petition under Articles 226 and 227 of the Constitution the petitioner has sought for the following reliefs :
“a) Issue a Writ in the nature of certiorari quashing the impugned order vide Annexure-D dated 2-8-1988 in No. RTS/AP/75/87 passed by the Assistant Commissioner Haveri Sub-Division, Haveri.
b) Issue any other Writ, order or direction as this Hon’ble Court may deem fit to grant in the circumstances of the case, including costs of this petition, in the interest of justice and equity.”
2. It is contended on behalf of the petitioner that the appeal preferred before the Assistant Commissioner, Haveri under Section 136(2) of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the ‘Act’) against the order dated 31-8-1987 passed by the Tahsildar, Haveri in Case No. RTS.CR. 121/87-88 was not maintainable because the order of the Tahsildar did not fall either under Section 128 or under Section 129 of the Act. Hence the order of the Assistant Commissioner is without jurisdiction. It is also further contended that the Tahsildar has passed the order in exercise of his administrative power, therefore, the Assistant Commissioner should have not have entertained the appeal.
3. It appears to me that these two contentions apart from the fact that they cannot at all be permitted to be raised for the first time in the Writ Petition, are devoid of merit.
4. The undisputed facts are as follows :
The petitioner has purchased an extent of 4-34 acres comprised in S.No. 106-3A + B+C + D of Naganur village which measures in total 9 acres 33 guntas. This land admittedly belongs to the joint family consisting of the 3rd respondent and his brother Holi Basappa. The purchase has been made by the petitioner under a registered sale deed dated 28-1-1970 from Holi Basappa only. Pursuant to the sale obtained by the petitioner, there was a proceeding under Chapter XI of the Act. In that proceeding, the Assistant Commissioner, Haveri Sub-Division, Haveri, in the appeal preferred by the petitioner in RTS/AP/53/73-74 passed an order on 27-2-1974 in the following terms :
“In the result, I partially allow the appeal and modify the order of the Tahsildar, Haveri appealed against and direct that the name of the appellant purchaser should be entered as joint occupant of the suit land after deleting the name of the respondent No. 2, without sub-dividing the suit land. The appellant may if he so desires have the land sub-divided by approaching the competent Court. The parties should be informed accordingly.”
5. The 3rd respondent being aggrieved by the said order, preferred a revision petition before the Deputy Commissioner in RTS.RA.SR.963 which was allowed by the Special Deputy Commissioner on 30-1-1975. Being aggrieved by the order of the Special Deputy Commissioner, the petitioner approached this Court in W.P. No. 2736/1975 to which the 3rd respondent as well as his brother Holi Basappa were also parties. This Court by the order dated 13-8-1975 set aside the order of the Special Deputy Commissioner and restored that of the Assistant Commissioner. The relevant portion of the order (Annexure-B) passed by this Court in W.P.No. 2736/1975 is as follows :
“Under a sale deed dated 28-1-1970 the undivided share of one Holi Basappa Yallappa Bavanikatti was purchased by the petitioner, the other co-sharer being Nagappa Yellappa Bavinakatti – respondent-1. By the order dated 27-2-1974, the Assistant Commissioner, Haveri Sub-Division, Haveri, directed that the name of the petitioner should be entered in the record of rights register as a joint occupant of the land in question, after deleting the name of his vendor Holi Basappa Yellappa Bavinakatti. Aggrieved by the order of the Assistant Commissioner, respondent No. 1 filed a revision petition under Section 136(3) of the Karnataka Land Revenue Act before the Special Deputy Commissioner. The Special Deputy Commissioner allowed the revision petition and set aside the order passed by the Assistant Commissioner. The ground on which the Special Deputy Commissioner allowed the revision petition was that the petitioner could not have acquired any right, title and interest in the land without a partition by metes and bounds. It may be that in order to reduce his joint possession into his exclusive possession that the petitioner has to file a suit for possession, but it cannot be said that under the sale deed in question, the petitioner had not acquired any right, title and interest. The reasons given by the Special Deputy Commissioner for allowing the revision petition is unsustainable.
3. The order passed by him is therefore set aside and that of the Assistant Commissioner restored. No costs.”
6. Thereafter the petitioner has not filed any suit even to this day seeking exclusive possession of the land in question. Thus from the aforesaid order passed by this Court and also that of the Assistant Commissioner, it is clear that the name of the petitioner along with that of the 3rd respondent has to be entered in the relevant column of the record of rights without sub-dividing the land in question keeping it open to have the land sub-divided by filing a suit for partition in the appropriate civil Court. As already pointed out, he has not approached the civil Court upto this day.
7. However, he approached the Tahsildar recently as stated in para 3 of the Writ Petition. By the order dated 31-8-1987 (Annexure-C) bearing No. RTS.CR.121/87-88, the Tahsildar directed the Village Accountant of Nagnur to write the name of the petitioner in the record of rights pertaining to the land in question mentioning the area purchased by him and also the crops raised and other particulars.
8. The 3rd respondent being aggrieved by the aforesaid order, preferred an appeal before the Assistant Commissioner, Haveri, under Section 136(2) of the Act but by the impugned order dated 2-8-1988 Annexure-D, the Assistant Commissioner set aside the order of the Tahsildar holding that the order of the Tahsildar is contrary to the earlier order passed by him on 27-2-1974 in RTS/AP/53/73-74 and the decision of this Court in Writ Petition No. 2736/1975 dated 13-8-1975 filed by the petitioner himself.
9. A reading of the order of the Tahsildar leaves no doubt that the said order is contrary to the order of the Assistant Commissioner dated 27-2-1974 which was restored by this Court in W.P.No. 2736/75. This is sufficient to dispose of this Writ Petition because when the order of the Tahsildar is opposed to the order of this Court, the fact that the order of the Assistant Commissioner is with jurisdiction or without jurisdiction makes no difference as long as it sets aside the order of the Tahsildar and the setting aside of that order accords with the conclusion of this Court in its order dated 13-8-1975 passed in W.P.No. 2736 of 75 reproduced in the earlier paragraph.
10. In addition to this, the petitioner took a chance to have the appeal dismissed on merits before the Assistant Commissioner. He did not raise any objection regarding the maintainability of the appeal. On the contrary he argued the appeal on merits and took a chance of getting an order in his favour. Thus the petitioner sat on the fence and waited for the decision in his favour. Such conduct of the petitioner cannot at all be appreciated and this conduct of the petitioner disentitles him to raise an objection as to maintainability of the appeal or lack of jurisdiction of the Assistant Commissioner. This is founded on the principles that the jurisdiction under Article 226 or 227 is a special and extra-ordinary jurisdiction and the exercise of this jurisdiction is not a matter of regular, normal routine of ordinary occurrence; that the Tribunal or the authority whose lack of jurisdiction is raised as a ground should have an opportunity to decide that it has jurisdiction and such a decision will greatly aid and assist this Court in deciding the question of jurisdiction. In GANDHINAGAR MOTOR TRANSPORT SOCIETY v. STATE OF BOMBAY, similar question arose. Chagla C.J., speaking for the Division Bench held thus:
“4. Now, as we shall presently point out, the English Courts have taken the view that in our opinion rightly that before a question of jurisdiction is raised on a petition, objection to jurisdiction must be taken before the Tribunal whose order is being challenged. It is not as if by the petitioner not challenging the jurisdiction of the Tribunal that he confers jurisdiction upon that Tribunal if that Tribunal has no jurisdiction. But what the English Courts have said is that the High Court has been asked to exercise a special jurisdiction not an ordinary jurisdiction, and the High Court is entitled to know what the Tribunal has to say on the question of jurisdiction which the petitioner wants to agitate before the Court. There is another principle underlying this view and that is that the Tribunal which is brought before the Court should itself be given an opportunity to decide that it has no jurisdiction before the High Court is called upon to give its decision.
It must be borne in mind that in exercising its jurisdiction under Article 226 and 227 the High Court is not exercising an ordinary jurisdiction. It is always open to a petitioner to assert his rights in a suit properly filed, but when he chooses to assert his rights by calling upon the High Court to exercise its special jurisdiction, the High Court must itself lay down certain principles for the exercise of that jurisdiction and must not make the exercise of that jurisdiction a matter of ordinary occurrence. A suit may well be filed within the period of limitation; the Judge trying the suit does not non-suit the plaintiff because he came to Court towards the end of the period of limitation; but this Court tells the petitioner “you must come to this Court expeditiously.”
Equally so a defendant may not raise the question of jurisdiction in the Court of first instance, he may not raise the question of jurisdiction in the Appellate Court, he may postpone raising the question of jurisdiction up to the stage of Privy Council or the Supreme Court, yet if the Court has no jurisdiction the highest Court in the land will allow the point to be raised and decide it in favour of the defendant. But the principle is different when the petitioner comes to this Court for a Writ. The Court must tell the petitioner: “It was open to you to raise that point before the Tribunal whose order you are challenging. You have sat on the fence, you have taken a chance of the Tribunal deciding in your favour, and it is not open to you now to come to us and ask for a Writ.”
5. Now this principle was very clearly and very emphatically laid down in – REX v. WILLIAMS: PHILLIPS, Ex Parte (1914) 1 KB 608(A). There a person was disqualified from acting as a Justice of the Peace if he was concerned in the business of a baker. A baker who was alleged to have committed an offence under the Bread Act was put up before a Bench of two Justices of the Peace and one Justice of the Peace was alleged to be disqualified from action as a Justice of the Peace because he was concerned in the business of a baker and the accused baker wanted to raise the question of the incapacity of one of the Justices of the Peace before the High Court by a petition and the High Court refused to give him relief holding that as he had not taken the point before the Bench of the justices of the Peace he had disentitled himself from obtaining any relief, Channell. J. points out (p.614) :
“……A party may by his conduct preclude himself from claiming the Writ ‘ex debito justitiae’, no matter whether the proceedings which he seeks to quash are void or voidable: If they are void it is true that no conduct of his will validate them ; but such considerations do not affect the principles on which the Court acts in granting or refusing the Writ of certiorari. This special remedy will not be granted ‘ex Debito Justitiae’ to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them.”
Therefore, this is a clear answer to the argument advanced by Mr. Gamadia that the fact that the petitioners did not challenge the jurisdiction of the Government did not by consent or waiver confer jurisdiction upon the Government. As we have already pointed out, the question is not that if the Government’s decision was without jurisdiction it became a competent decision merely because the petitioners did not object to the jurisdiction. But the question is whether the petitioners not having challenged the jurisdiction of the Government, this Court will give them relief by exercising its very special and discretionary jurisdiction. Rowlatt J in a very short Judgment emphasises the fact that the rule that the Courts in England have adopted is a very salutary rule. This is what he says (p.615):
“……It is a very salutary rule that a party aggrieved must either shew that he has taken his objection at the hearing below or state on his affidavit that he had no knowledge of the facts which would enable him to do so.”
We see no reason why in this particular case we should not give effect to this salutary rule.”
11. In addition to this, the contention that the order does not fall under Section 128 of the Act is not correct. The Tahsildar has passed the order at the instance of the petitioner directing the Village Accountant, Naganur, to make an entry in accordance with the terms of the sale deed obtained by the petitioner. Such a direction falls under Section 128 of the Act because under the sale deed, the petitioner claims to have acquired right, title and interest in the land in question. That it is so is also held by this Court in the earlier order passed in W.P. No. 2736 of 75. Therefore, the appeal was maintainable.
12. The contention of the petitioner is that the order of the Tahsildar is the one passed in exercise of the supervisory jurisdiction. However, the learned Counsel was not in a position to substantiate this contention as to how and under which provision of the Act the Tahsildar has passed the order in exercise of his supervisory powers.
13. Even assuming that the Tahsildar has passed the order impugned in exercise of his so-called supervisory powers on the administrative side, the Assistant Commissioner is entitled to correct every such order passed by the Tahsildar on the administrative side. Under Section 11 of the Act, the Tahsildar is subordinate to the Assistant Commissioner in charge of the Taluk. Therefore, the order passed by the Tahsildar on the administrative side, even if the contention of the petitioner is accepted as correct for the sake of argument but not conceding, the Assistant Commissioner being an immediate superior officer to the Tahsildar under whom he works, is entitled to correct the same.
14. However, as already pointed out by me, the order of the Tahsildar dated 31-8-1987 (Annexure-C) being opposed to the order of the Assistant Commissioner which has been confirmed by this Court in W.P.No. 2736/ 1975 by the order dated 13-8-1975, the same is liable to be quashed. Hence I do not see any justification to entertain this Writ Petition. No ground to issue Rule. The petition is rejected.
