ORDER
1. This group of writ petitions essentially concerns a dispute between two sets of persons and relates to S. No. 18 situated at Yerehally Village, Ramanagaram Taluk. The petitioners in W.P. Nos. 26909 and 13713 of 1995 claim to be the joint owners in respect of this land. It is their case that there have been rather long standing disputes between them and certain other persons who are basically the respondents, who according to the petitioners, have tried to virtually usurp the land in question. I do not propose to refer to the nature of the disputes, but suffice it to say that there have been several litigations between the parties and things have taken a rather serious turn because the petitioners contend that the respondents had originally put forward a claim to these lands and that the Tribunal by an order dated 29-12-1975, Annexure-B to the petition, had rejected their claim and that the order in question has become final. They allege that in the year 1991 the respondents, in collusion with the officials in the office of the Tahsildar of Ramanagaram and in particular a clerk by the name of Basavaiah allegedly tampered with the records of the Tribunal, destroyed the original order and created documents in order to make it appear as though the Tribunal had passed an order in their favour. It is the case of the petitioners that the officials, in collusion with respondents 4 to 11, issued Form No. 10 in favour of the respondents on 16-8-1991 which are Annexures-C, Cl and C2 to the petition and pursuant to this, the respondents 4 to 11 came to the spot along with the surveyor on 25-9-1991 to measure the land and directed the petitioner to handover possession to respondents 4 to 11.
2. The petitioners contend that it was at this point of time that they approached the Tribunal and applied for a certified copy of the proceedings and that he was shocked to receive a certified copy of a so-called order indicating that occupancy rights had been granted in favour of respondents 4 to 11. What surprised the petitioner was that the certificate of registration had been issued on 16-8-1991 which was approximately 16 years after the original order is supposed to have been passed and furthermore, that copies of the relevant records were not forthcoming. In the bona fide belief that the order in question was a genuine one, the petitioner and his brother filed W.P. Nos. 22531 and 22532 of 1991 assailing the orders in question, but the two petitions came to be dismissed on the ground of laches. One factor is of some significance insofar as there is a passing observation made by the Court on the basis of the names that appeared in the certified copy that the petitioners were obviously parties to the proceedings and had knowledge of the same and that consequently a challenge after such a long lapse of time cannot be
entertained. This aspect of the case assumes some importance as I shall indicate later on.
3. The petitioners, thereafter requested their Advocate to ask for inspection of the records of the Tribunal at the Office of the Tahsildar and it is their case that only at this stage when inspection was taken that they found out that there was no order granting occupancy rights to the respondents 4 and 11 and that there was a wholesale tampering of the records and fabrication. They filed C.P. Nos. 159 and 160 of 1994 before the High Court, but these were also dismissed. The petitioners approached the Supreme Court by way of SLA (Civil) No. 8259/60/94 which also came to be dismissed.
4. After all these litigations in the Courts, the petitioners filed a revision petition before the Divisional Commissioner under Section 118A of the Karnataka Land Reforms Act, 1961 (for short ‘the Act’) which was numbered as LRF/RP/2/95. In sum and substance, the petitioners had invoked the jurisdiction of the Divisional Commissioner under that provision with a prayer that the records be called for, examined and that the registration certificate be revoked. The ground on which the petitioners sought the reliefs was that an examination of the records would establish that there had been tampering and fabrication and if this was the position, that the issuance of the registration certificates based on such a record, was vitiated by fraud and that consequently it was a fit case in which an investigation be held and that appropriate corrective action be taken. The Divisional Commissioner passed on order dated 9-8-1995 wherein, interestingly enough, he has taken cognizance of the serious charge that was made in this case namely one of tampering with the official records and fabrication of documents. It is also clear from the order that the Divisional Commissioner was reasonably satisfied that the petitioners have made out a case for investigation. The Divisional Commissioner however directed that the enquiry should be held by the Deputy Commissioner and that if the conclusion was that a fraud in fact had taken place, that further necessary steps according to law be instituted. It is this order that is challenged by the petitioners on the short ground that under Section 118A of the Karnataka Land Reforms Act the power vests in the Divisional Commissioner and that it is not open to him to shift that responsibility to any other officer, and furthermore, that the Divisional Commissioner is not invested with the power to delegate his functions to any other subordinate officers. A plain reading of the section will indicate that the ground on which the order has been challenged is well-founded, insofar as the Act does not permit the Divisional Commissioner who is the lawfully designated authority to either delegate his power or to direct any authority to exercise the power under Section 118A of the Act. It is even doubtful as to whether the authority would be acting correctly if he had asked a subordinate authority to investigate into the records and put up a report to him, on the basis of which he could have taken a decision. In the first instance, the charge in this case is serious, but more importantly, the power vested in the authority under Section 118A of the Act requires that the review or enquiry or investigation which is contemplated in that section is re-
quired to be done by the authority who is required to pass orders under the Act according to the provision of law and therefore cannot be done on the basis of second-hand knowledge. This is not a very elaborate or complicated enquiry because it only involves an examination of the records and the documents virtually speak for themselves and consequently, having come to the prima facie conclusion that the case requires a proper enquiry, the Divisional Commissioner ought to have scrutinised the records himself, heard the parties and passed appropriate orders.
5. The respondents who are rather the beneficiaries of the impugned orders, have challenged the Commissioner’s order on a variety of grounds. This accounts for W.P. No. 2870 of 1995 and W.P. No. 3856 of 1995. The main thrust of attack is that the type of relief that has been asked for by the petitioners is wholly and completely outside the jurisdiction of the Divisional Commissioner acting in revision under Section 118A of the Act. In other words, the learned Counsel submitted that the power of revision which is really a corrective process, cannot be expanded to the extent that the petitioners have claimed in their revision petition to include a situation whereby the Divisional Commissioner can revoke the registration certificates in question. Apart from this challenge on a point of law on the basis of which it is contended that the order entertaining the revision petition is liable to be quashed, the substantial ground of challenge is that the petitioners having lost all the way up to the Supreme Court, have restarted the litigation through the ingenious exercise of a revision petition, which in sum and substance would mean that the Divisional Commissioner is being asked to do exactly what the High Court and the Supreme Court have refused to do. To summarize, the learned Counsel who represents the opposite party stated that the petitioners are relegating the Divisional Commissioner to a higher pedestal than the High Court and the Supreme Court and are effectively asking him to virtually sit in appeal over the Court orders and take a decision other than the one which the Courts have arrived at. On first principles he submitted that the position is absolutely unambiguous, that there is a complete legal bar to the maintainability of the revision petition itself and that consequently the order in question is liable to be quashed.
6. The petitioners’ learned Counsel Mr. T.R. Subbanna stated at the commencement of his arguments that he is fully aware of the sequence of events and the history of the litigation and it was his contention that the petitioners are fully justified in availing of the remedy by way of the revision application and he stated that the Court orders would not present any bar to the maintainability. It is true that the parties to the two proceedings are the same and it is true that the subject-matter of the two proceedings is the same piece of land, but what the learned Counsel emphasised was that at no stage has the High Court or the Supreme Court examined the merits nor had either of the two Courts decided the case in the true sense. He has produced the three sets of orders and what he demonstrates is that while it is true that the petitioners have lost in all the three proceedings, that this was solely and entirely on the
ground of delay and that therefore, the Courts took the simple view that the petitioners were disqualified from being heard on merits. His submission therefore was that when the petitioners approached the Divisional Commissioner, that there was no order on merits of any competent Court in respect of the subject-matter of the revision petition that can bar his jurisdiction. He has argued elaborately before me in pointing out to the Court from the record and on facts, that there was no ambiguity with regard to this position. The learned Counsel Mr. Krishna Bhat vehemently submitted that this entire line of argument is factually erroneous. He drew my pointed attention to the fact that the High Court did observe that from the very signatures it appears that the petitioners were parties and had participated in the proceedings and that consequently, the Court saw no ground on which to entertain any challenge from them. His contention is that the dismissal of the petitions and the C.Ps. which was in turn confirmed by the Supreme Court is effectively a dismissal on merits and that the petitioners cannot dissect judicial orders and argue that the petitioners had lost in the litigation without an examination on merits. I need to mention here that the petitioners’ learned Counsel sought to clarify that it was only at the stage when the records were got examined that the petitioners were able to unravel the mystery as to how their names appeared in the certified copy and the explanation put forward was that this was on the basis of the application that had been submitted. I am deliberately not making any observations with regard to the allegations of fraud, tampering etc., because I would prefer to leave that to the independent judgment of the concerned authority.
7. Mr. Krishna Bhat did also emphasize the fact that at the stage when the petitioners came forward with the C.Ps., after the dismissal of their original petitions, that they had recounted the case of fraud and that the High Court rejected the C.Ps. and he therefore contended that it is incorrect for the petitioners to argue that their cases were summarily rejected and that it was not a decision on merits.
8. We are not really concerned with the strict connotation of the plea of res judicata, but there is really a question of propriety involved here insofar as if the competent judicial forum had examined the case and given a decision on it, then the respondents would be justified in pleading a bar to any subsequent reopening of the case by a subordinate authority. It is for this reason that I have carefully looked at the three orders passed and I do not find any difficulty in upholding the petitioners’ contention that the High Court refused to exercise its power of interference on the solitary ground of delay. It is undoubtedly a discretionary power of the High Court and when the petitioners came back at the stage of the C.Ps. with an altered grievance, those petitions were also rejected on the same reasoning which had resulted in the dismissal of the earlier writ petitions. The Supreme Court had also refused to interfere with the High Court’s order and virtually confirmed it, but, in sum and substance, we emerge with the position on record that at no stage had the merits been examined nor is there any pronouncement of the Court on the basis of the merits of the case. There is a lot of case law
built up particularly under Article 226 of the Constitution as to what are the situations in which a legal bar can be successfully pleaded in relation to an earlier litigation and I can only summarize the well-crystallised position that has emerged which is to the effect that a summary dismissal will not come in the way of a subsequent consideration but it is only a decision on merits that would create such a bar. I refer to only one out of the long string of decisions wherein this view has been enunciated – Daryao and Others u State of Uttar Pradesh and Others.
9. Mr. Subbanna, learned Counsel who represents the petitioners submitted that his learned opponent was emphasizing the fact that the High Court, on the earlier occasion, had made a passing reference to the effect that the parties can work out their grievance or disputes before an appropriate Civil Court. He pointed out that under Section 132 of the Act, the jurisdiction of the Civil Courts is barred in relation to these classes of cases and the submission is fully justified. If the High Court had in passing made an observation along these lines, the parties are not obliged to follow it if it is not possible or permissible but more importantly, this does not bar the litigant from adopting any other legal avenue if that is open. Mr. Subbanna cited two decisions of the Supreme Court in support of his basic proposition, in and in M.M. Thomas v State of Kerala and Another , and he went on to submit that one does not require legal decisions in support of the well-defined proposition of law that any order or action which is based on fraud is ipso facto vitiated and is rendered a nullity. On the basis of the original record which was produced here and the copies which have been extracted, he contended that there is more than a prima facie case of fraud made out by the petitioners insofar as there are two sets of documents. There are instances where orders are attributed to the Tribunal but have not been signed by the Chairman and his submission therefore is that if the petitioners’ allegations of fraud are well-founded, that they are fully entitled to seek an enquiry if the law makes provision for it and if the petitioners are seriously prejudiced as a result of documents secured by the opposite party on the basis of fraud which seriously prejudice the rights and interests of the petitioners. It is his submission that when a party approaches an authority, that it is necessary for the party to define precisely what the relief asked for is and he went on to submit that where his clients are alleging that a fraud has taken place and are in a position to substantiate that charge, that they are within their rights to seek an order from the authority concerned to take corrective steps in relation to what has followed as a result of the fraud or what has been done on that basis and that even though it may appear rather unusual, that the prayer to revoke the certificate of registration is part and parcel of the relief that the petitioners can claim in the revision petition. Normally I would have refrained from entering into a consideration as far as this secondary aspect is concerned, but since I am of the view that the case of the petitioners for an enquiry is well-founded the
Court will also have to lay down the parameters of what the authority namely the Divisional Commissioner can do if the charges are established. This has also become necessary in the light of the legal submissions canvassed by the respondents’ Counsel Mr. Bhat.
10. Mr. Bhat cited before me the following decisions.-
1. Babu A. v Bhasker Shetty;
2. Lakshminarayana Hariyachar v Divisional Commissioner ;
3. Mallappa Murigeppa and Others v State of Karnataka and
Others;
4. C. Muniyappa v Assistant Commissioner, Kolar Sub-Division, Kolar ;
5. AIR 1968 SC 2621 (sic).
in support of his proposition that the Tribunal is an independent authority and that the consequential action such as the grant of Registration Certificate, mutation entries etc., are ministerial acts which mechanically follow the passing of an order and he submitted that once an order in an adjudication has become final, that the power of revision is not to be loosely construed and more importantly, that the revisional authority namely the Divisional Commissioner would be acting beyond his jurisdiction if he seeks to set aside a Registration Certificate which has been issued on the basis of an order passed by Tribunal which is the legally designated body to adjudicate on enquiries under the Act. While the learned Counsel is right up a point, there is a slight fallacy in his argument insofar as a distinction will have to be drawn between the normal general run of the mill set of cases wherein an aggrieved party raises some procedural or factual dispute or even a legal dispute and ask for interference or revision and a case of the present type where the entire complexion of the application is different. One needs to further illustrate the distinction by pointing out that where the allegation is one of tampering with the official record and even worse, a fabrication of orders, what emerges is that if the charge is substantiated, that we are left with a position whereby there is no legally valid order of the Tribunal on record. If there is no such order on record, a certificate of registration issued on the basis of fabricated documents would also be rendered a nullity and it is equally important that as the Divisional Commissioner has held, the persons responsible for the fraud be identified and action according to law be taken against them, including a prosecution. It is in this background that one would, have to view the complexion of the present proceedings which is entirely distinct and different from the general set of revision petitions and if that is done, it will be seen that the Divisional Commissioner was fully justified in holding that the case warrants an enquiry though he was wrong in having directed another
authority to go through that exercise. Also, I need to observe here, that while Mr. Bhat may be reasonably justified in submitting that where a Tribunal has finally adjudicated the proceedings under the Land Reforms Act, that the issuance of the registration certificate is almost a routine matter; that it would be an over-simplification of the legal position. Under the scheme of the Act, the power under Section 55 of the Act is not a mechanical exercise, but it was equally necessary for the authority concerned to scrutinise the records carefully and to then proceed to issue the certificate of registration and the present case is a classic instance of how the mechanical exercise could lead to disastrous results. Though it is not open to the Tahsildar to go behind the Tribunal’s order or to question, it cannot be said that the authority must close its eyes and mechanically issue certificates without a scrutiny of the record because if that procedure were to be followed, then there would be no difficulty for a mischievous litigant to act in collusion with the staff of the Department to fabricate an order, insert it in records and get away with the registration certificate. I need to mention in passing that it has been the sad experience of the Courts that the working of the Tribunal and the offices and officers attached thereto have left much to be desired which is only an understatement when it has come to crucial issues of integrity and legal competence and under these circumstances, it is necessary for a scrutiny process at each and every stage. To my mind, had this exercise been carefully gone into, there is every possibility that the registration certificate in the present case may not have been issued. I refrain from making any further observations because this Court has only done a prima facie scrutiny of the record for purposes of deciding as to whether jurisdiction should be exercised in this case or not.
11. I need to mention at this stage that apart from the two contesting parties, I have heard the learned Government Advocate on merits and very rightly the learned Government Advocate has supported the order passed by the Divisional Commissioner because it is his submission that on the basis of the record as exists in the present case, the Divisional Commissioner was fully justified in directing a further enquiry because a perusal of the original record, leads to the conclusion that something is seriously wrong. On the question of the Divisional Commissioner having directed the Deputy Commissioner to hold the enquiry, the learned Government Advocate submitted that the Deputy Commissioner is an officer of sufficient rank and responsibility and that the only reason for doing this was because the Divisional Commissioner felt that a thorough enquiry was essential and that therefore, it was on par to a situation where an authority entrusts the investigation process to an Enquiry Officer. There are situations in which such delegation may be permissible. In the present case the error committed by the Divisional Commissioner was limited to the extent that he did not ask for an investigation and a report to come back to him, but, he has directed the Deputy Commissioner to take further steps under Section 118A of the Act, overlooking the fact that such power does not vest in the Deputy Commissioner.
12. In my considered view, the limited challenge presented by the petitioners in W.P. Nos. 26909 of 1995 and 13743 of 1995 is well-founded and is liable to succeed. Conversely, the challenge to the jurisdiction of the Divisional Commissioner as presented in W.P. Nos. 2870 of 1995 and 3856 of 1995 is devoid of any merit and must necessarily fail. In my considered view, it is unnecessary to quash the impugned order and all that is required is that the authority concerned be directed to hold the enquiry himself and to record findings and pass appropriate orders on the basis thereon. It goes without saying that in a case of the present type, the authority shall ensure that the records of the case which shall be transmitted to the Office of the Divisional Commissioner by the High Court in a sealed package through a special messenger, and shall be kept in safe custody by the authority in order to avoid any possibility of either tampering or the records getting misplaced which is something very familiar in Government Offices. Also, it is directed that the parties shall maintain status quo in respect of the disputed lands until the Divisional Commissioner redecides the case. If any interim orders are necessary, liberty to the parties to approach the Divisional Commissioner for this purpose. The writ petitions W.P. Nos. 26909 of 1995 and 13743 of 1995 succeed to this extend. W.P. Nos. 2870 of 1995 and 3856 of 1995 fail and stand dismissed. There shall be no order as to costs.
13. One of the features that stands out in this case is representative of the disturbing trend that has emerged in recent times whereby the serious offence of tampering with case papers and Court records has been resorted to. That parties, with the collusion of the officials and staff have the courage to indulge in such acts is only because of the fact that they are very confident of getting away because Courts have been very slow in ordering either investigations or prosecutions. Such acts, which are the high point of corruption are sufficient to totally sabotage the rule of law. This is a case in which the record produced before me indicates prima facie that the orders have been fabricated and inserted in the Court proceedings and the original orders have been removed. Even if it requires an investigation through the highest agencies of the police department, the Divisional Commissioner shall ensure that this is done and every single person responsible for this state of affairs will have to be tracked down and an example made of them so that the message goes out loud and clear that crime does not pay and the consequences will be very grave. The inaction on the part of the institutions in dealing rigorously with situations of this type has emboldened the culprits and if the public confidence in these institutions is to remain, such atrocities will have to be stamped out. It is equally necessary because, as indicated earlier, the confidence has hitherto grown that such tactics which are regarded in certain circles as “clever” or “smart”, would not only benefit the wrong doers but all those who act in collusion with them who instead of being punished merrily continue to prosper. It is this vice that needs to be stamped out.