ORDER
1. The order dated 2-6-1997 is recalled.
2. The matter was heard afresh at the instance of the parties.
3. The petitioner herein questioned by way of an Appeal No. 28 of 1995, before the Joint Director of Land Records, Belgaum, the orders dated 10-11-1992 and 8-8-1994 and sought cancellation of the mutation entry 2693 pertaining to Survey No. 166 of Mannikeri Village, Bilagi Taluk, Bijapur District.
4. The grievance was that the Assistant Director of the Land Records, Jamkhandi had amalgamated Survey Nos. 166/1 and 166/2 and further sub-divided it as 166/1+2a and 166/1+2b. Various grounds were raised by the petitioner herein against the order of the Assistant Director of Land Records. The first appeal under Section 49(f) of the Karnataka Land Revenue Act, 1964 (hereinafter called the Act of 1964) was filed before the Joint Director of Land Records, Belgaum. The Joint Director of Land Records, Belgaum as per Annexure-B allowed the appeal and the subdivision measurement i.e., P.T. Sheet, Form Nos. 4, 11 and H.F. XII prepared as per ADLR.PHS.BCC.SR. 608 of 1992-93 was cancelled.
5. The respondents 4 and 5 herein challenged the order of the Joint Director of Land Records in Appeal No. 300 of 1995 before the Karnataka Appellate Tribunal, Bangalore. The Karnataka Appellate Tribunal, which heard the appeal, came to the conclusion that the Joint Director of Land records, who heard the appeal APL.SR. 28/94-95, did not have jurisdiction to entertain the appeal as an appeal against an order of the Assistant Director of Land Records lay to the Deputy Director of Land Records under Section 49 of the Act of 1964. Consequently, the Karnataka Appellate Tribunal allowed the appeal, set aside the order of the Joint Director of Land Records and dismissed the appeal APL.SR.28 of 1994-95.
6. In this writ petition, the principal contention raised for the petitioner is that as per the Government Order dated 24th October, 1973 captioned ‘Karnataka Adaptations of Laws Order, 1973’, there has been a substitution of the expression ‘Deputy Commissioner of Land Records’ by the expression ‘Joint Director of Land Records’ and so the appeal to the Joint Director of Land Records was competent.
7. The Mysore State (Alteration of Name) Act, 1973 (Central Act No. 31 of 1973) enables the change of name of the State of Mysore to State of Karnataka whereever the expression occurs
in enactments. Section 6 of the said Act empowers the State to make, by order, such adoptions and modifications of any law relating to matters enumerated in Lists 2 and 3 of the VII Schedule of the Constitution, whether by way of repeal or amendment, as may be necessary or expedient. In the exercise of this power, the substitution extracted below has been incorporated. The order relied upon by the Counsel for the petitioner reads as follows:
SCHEDULE II
(Acts
made in the State of Mysore after 1st November, 1956)
Sl. No.
Short
title, number and year of the Act
Adaptations made
1
2
3
35.
Mysore Land Revenue Act 1964 (Mysore Act 12 of 1964)
Sections 18, 108, 120, 122-A,
139, 141, 143 and 144:
(i) for “Commissioner
for Survey, Settlement and Land Records” substitute “Director of Survey Settlement and Land Records”.
(ii) for
“Deputy Commissioner of Land Records” substitute “Joint Director of Land Records”. Section 40. – In subsection (4)
“The Mysore Revenue
Appellate Tribunal”
where it relates to the Tribunal shall remain unmodified.
Section
43.- “Mysore Board
of Revenue or to the Mysore
Revenue Appellate Tribunal
shall remain unmodified
and after “Mysore
Revenue Appellate
Tribunal” insert “or to the Karnataka
Revenue Appellate Tribunal”.
This substitution is for a very specific purpose, namely under Sections 18, 108, 120, 122-A, 139, 141, 143 and 144(1). It is obvious, therefore, that wherever the expression “Director of Survey Settlement and Land Records” occur in the aforesaid sections of the Act of 1964, there is a substitution by the expression “Joint Director of Land Records”. The learned Counsel for the petitioner sought to contend that by virtue of the operation of the above said order, the expression “Deputy Commissioner of Land Records” occurring in Section 49 of the Act, should be read as “Joint Director of Land Records” and the appeal by the petitioner to the Joint Director of Lands, Belgaum, be held to be competent and therefore the observations of the Karnataka Appellate Tribunal held untenable. The contention on behalf of the petitioner, in my opinion, cannot be sustained for the substitution of the words “Deputy Commissioner of Land Records” is limited only to the sections of the Act of 1964 referred to in the notification.
8. Section 49 of the Karnataka Land Revenue Act specifies the heirarchy of officers to whom first appeals are to be filed against the original orders. Any change of forum of appeal in Section 49 of the Act of 1964, could be made only by resorting to the amending power vested in the State and the same cannot be exercised by any indirect means, such as resorting to a limited enabling power of under Section 6 of the Mysore State (Alteration of Name) Act of 1973. The Revenue Appellate Tribunal found that against the order of the Assistant Director of Land Records, a first appeal could be filed only to the Deputy Director of Land Records, being the immediate appellate authority specified in Section 49 of the Act of 1964. The substitution in the notification dated 24th October, 1973 cannot vest jurisdiction in the Joint Director of Land Records to entertain and dispose off the appeal against the order of the Assistant Superintendent of Land Records contrary to the specific provision under Section 49 of the Act of 1964. A first
appeal against the order of the Assistant Director of Land Records lies to the Deputy Director of Land Records under Section 49(f) of the Act of 1964. The appeal to the Joint Director of Land Records consequently was incompetent and without jurisdiction. To that extent, the decision of the Karnataka Appellate Tribunal would have to be sustained.
9. What the Karnataka Appellate Tribunal did thereafter is clearly unsustainable. When the Karnataka Appellate Tribunal found that the appeal APL. SR. 24 of 1994-95 on the file of the Joint Director of Land Records was incompetent, it ought to have directed the Joint Director of Land Records to return the appeal for presentation before the competent authority. The Karnataka Appellate Tribunal could not have dismissed the appeal APL.SR.24/94-95. The appellant in the said appeal was entitled to an opportunity for a decision on the merits of the case and the same was denied to him by the Karnataka Appellate Tribunal dismissing the appeal before the Joint Director of Land Records. In the circumstances, the order made by the Karnataka Appellate Tribunal would have to be set aside as being without jurisdiction. Where an appeal is filed before an authority not competent to entertain the appeal, all that that authority could do is, to return the appeal for presentation to proper forum and not dismiss it. In the circumstances, the appellant, who is the writ petitioner herein, is entitled to re-present the appeal before the Deputy Director of Land Records to have his grievance redressed. In view of the circumstances of the case noted above, the Joint Director of Land Records shall have to return the appeal for presentation before the competent authority. On taking return of the memorandum of appeal, writ petitioner herein is entitled to re-present the appeal before the Deputy Director of Land Records to have his grievance redressed by condoning the delay, if any, in the presentation of the appeal, and thereafter dispose the appeal on merits.
10. In the circumstances, the writ petition is allowed quashing the order of the Karnataka Appellate Tribunal, Annexure-C dated 8-7-1996 and the Joint Director of Land Records, Belgaum shall return the appeal APL.SR.28/94-95, to the appellant-petitioner Sri Siddappa Hanumanthappa Kori or his Counsel to enable him to present the same before the Deputy Director of Land Records for disposal in accordance with law and the observations made herein.