IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD WRIT APPEAL No.916 OF 2019(KLR-LG) Between:
Sri.B.L.Janardhana S/o Sri.Lingappa Aged about 65 years Rept. by his GPA Holder Smt. B.J.Kamala W/o Sri.B.L.Janardhana Aged about 57 years R/at Heggala Village, Nirmalagiri Virajpet Taluk-571218. ... Appellant (By Sri Jagadeesh D.C., Advocate) And:
1. The Deputy Commissioner Kodagu District Madikere-571201.
2. The Assistant Commissioner Revenue Sub-Division Madikerei Kodagu District-571201.
3. The Tahsildar Virajpet Taluk Kodagu District-571218.
4. The Tahsildar & Member Secretary Akrama Sakrama Samithi Virjpet Taluk Kodagu District-571218. ... Respondents (By Sri. P.B.Achappa, AGA) This writ appeal is filed under Section 4 of the Karnataka High Court Act, 1961, praying to allow this writ appeal and set aside the order of the learned Single Judge of this Hon’ble Court dated 15.02.2019 passed in WP.No.44702/2017 (KLR- LG) and consequently allow the WP.No.44702/2017 (KLR-LG) filed by the appellant as prayed for therein.
This appeal, coming on for orders, this day, Chief Justice delivered the following:
JUDGMENT Heard learned counsel appearing for the appellant and the learned Additional Government Advocate for the respondents. Taken up for final disposal by the consent of the parties.
2. The challenge is to the order dated 15th February 2019 passed by the learned Single Judge in W.P.No.44702/2017 filed by the appellant. What was challenged by the appellant by filing a writ petition, through his general power of attorney holder (who is his wife), is the order dated 22nd January 2016 passed by the second respondent. What the learned Single Judge noted in the impugned order is that simultaneously with filing of writ petition for challenging the said order, he filed an appeal before the Deputy Commissioner against the same order. Considering this conduct of the appellant, the learned Single Judge proceeded to dismiss the writ petition by imposing cost of Rs.5,000/-. The learned Single Judge has also observed that the impugned order of the Assistant Commissioner is just and proper.
3. The learned counsel appearing for the appellant submitted that the appellant desires to prosecute the proceedings before the Deputy Commissioner. He submitted that the order of costs passed by the learned Single Judge is uncalled for. The learned Additional Government Advocate supported the impugned order.
4. We have considered the submissions. The learned Single Judge has rightly deprecated the conduct of the appellant of filing of two proceedings against the same order of the second respondent before two different fora. Though paragraph 6 of the impugned order records that the Deputy Commissioner, before whom the proceedings filed by the appellants were pending, shall pass appropriate order, in paragraph 5, the learned Single Judge, without recording any reasons, has observed that the impugned order of the Assistant Commissioner is just and proper on all counts.
5. The tenor of the entire impugned order is that the writ petition was rejected on the ground that two separate proceedings were filed by the appellant for challenging the same impugned order. In our view, while directing the Deputy Commissioner to decide the proceedings, there was no need to comment upon the legality and validity of the order passed by the second respondent, which was a subject matter of challenge before the Deputy Commissioner. As stated earlier, no reasons were recorded for coming to the conclusion that the order of the Assistant Commissioner is just and proper. Therefore, that part of the impugned order will have to be clarified.
6. Considering the fact that the appellant had filed two proceedings for challenging the same order, it is not possible to interfere with the discretionary order passed by the learned Single Judge of imposing costs of Rs.5,000/-.
7. What is filed by the appellant before the Deputy Commissioner is an appeal under sub-section (2) of Section of 136 the Karnataka Land Revenue Act, 1964. We make it clear that assuming that a wrong provision is quoted in the appeal, that is no ground to throw out the proceedings filed by the appellant. The Deputy Commissioner has to examine whether the proceedings are unsustainable as an appeal or a revision.
8. Accordingly, we dispose of the appeal by passing the following order:
(i) We make it clear that no adjudication is made on merits of the proceedings of appeal filed by the appellant before the Deputy Commissioner in Appeal No.120/2016-17. To that extent, paragraph 5 of the impugned order stands modified and the finding that the impugned order of the Assistant Commissioner is just and proper, is hereby set aside;
(ii) Subject to above modification, the impugned order is confirmed.
(iii) Writ appeal is partly allowed in the above terms with no order as to costs.
Sd/-
CHIEF JUSTICE Sd/- JUDGE Cm/-