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Patel Muniswamy Gowda and ors. Vs. Mysore Revenue Appellate Tribunal, Bangalore - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 1241 of 1966 and 1259 of 1967
Judge
Reported inAIR1969Kant270; AIR1969Mys270; (1969)1MysLJ387
ActsMysore Irrigation Act, 1932 - Sections 8, 8(1) and 52; Mysore Revenue Appellate Tribunal Act, 1957 - Sections 4(4)
AppellantPatel Muniswamy Gowda and ors.
RespondentMysore Revenue Appellate Tribunal, Bangalore
Excerpt:
- religious endowments act, 1863 [repeal by act ii /1927] section 6 of act ii of 1927 & section 8; [a.s. bopanna, j] application of the repealing act held, section 8 would clearly indicate that the repeal of religious endowments act would apply in so far as hindu religious endowments to which the act applies. but in so far as the jain religious endowments, the repeal by act (ii) of 1927 is not applicable. further, the religious endowments act 1863 has been repealed only in so far as it applies to hindu religious endowments and the repeal is specific to that extent and therefore the applicability of the act to the jain religious endowments act, 1863 is still applicable to the jains of dakshina kannada. section 10; maintainability of application under power of the district judge to..........three acres. the deputy commissioner granted that permission but in the appeal preferred to the chief engineer by the adjacent land owners, that permission accorded by the deputy commissioner was vacated. against that order made by the chief engineer, the petitioner presented a revision petition to the revenue appellate tribunal under section 52 of the mysore irrigation act.3. in writ petition no. 1259/67, the petitioners are the villagers of chinnapura in the district of kolar. the villagers constructed a bund across the stream through which the excess water of a tank known as amanikere was flowing. to the construction of this bund, the villagers of kamadenahalli in the same district raised an objection before the deputy commissioner and that objection was overruled by him. but in.....
Judgment:

Somnath Iyer, J.

1. A common question of law arises in these two writ petitions and that question is whether the Mysore Revenue Appellate Tribunal can exercise the revisional jurisdiction conferred by Section 52 of the Mysore Irrigation Act (Mysore Act I of 1932). This is how the question arises.

2. In writ Petition No. 1241/66, the petitioner owns lands which are irrigated by a reservoir known as the Vani Vilas Sagar in the district of Chitradurga. Three acres out of forty-eight acres of land owned by the petitioner were situated in a somewhat higher level which could not be reached by the channel and so, the petitioner made an application to the concerned Deputy commissioner for permission to store water flowing in that channel at a particular point on this land and to pump that water into those three acres. The Deputy Commissioner granted that permission but in the appeal preferred to the Chief Engineer by the adjacent land owners, that permission accorded by the Deputy Commissioner was vacated. Against that order made by the Chief Engineer, the petitioner presented a revision petition to the Revenue Appellate Tribunal under Section 52 of the Mysore Irrigation Act.

3. In Writ Petition No. 1259/67, the petitioners are the villagers of Chinnapura in the district of Kolar. The villagers constructed a bund across the stream through which the excess water of a tank known as Amanikere was flowing. To the construction of this bund, the villagers of Kamadenahalli in the same district raised an objection before the Deputy Commissioner and that objection was overruled by him. But in the appeal preferred to the Chief Engineer, the objection was sustained and the bund was directed to be demolished. Against this order, the villagers of Chinnapura presented a revision petition to the Revenue Appellate Tribunal under Section 52 of the Mysore Irrigation Act.

4. When these two revision petitions along with an another which is not before us came up before the Revenue Appellate Tribunal, a question was raised whether the Revenue Appellate Tribunal was the repository of the revisional jurisdiction bestowed by Section 52 of the Mysore Irrigation Act. When two members of the tribunal delivered dissenting opinions, the matter was referred to a Full Bench and the Full Bench expressed the view that that revisional jurisdiction could not be exercised in the revision petitions before them. So, the two revision petitions with which we are concerned in these two writ petitions were dismissed.

5. The only reason which impelled this conclusion reached by the Tribunal was that Section 52 of the Irrigation Act constitutes the State Government. The Divisional Commissioner and the Chief Engineer as the three revising authorities who possessed concurrent revisional jurisdiction under its provisions, and that, once the Chief Engineer exercised that revisional jurisdiction, the power of the revenue appellate Tribunal to exercise that revisional jurisdiction which was transmitted to it by Government under a notification under Section 4(4) of the Mysore Revenue Appellate Tribunal Act, 1957, could not be exercised.

6. Now Section 52 of the Mysore Irrigation Act Reads:

'52. The Government or the Revenue Commissioner or Chief Engineer may call for and examine the records of the proceedings under this Act of a Deputy commissioner or a Canal Officer or any Irrigation Officer subordinate to it or him for the purpose of satisfying itself or himself as to the correctness, legality or property or any decision or order passed and the regularity to the proceedings of such officer.

When on examining the records of any case, the Government or the Revenue Commissioner or Chief Engineer considers that the order or decision of such officer should be revised, it or he may reverse or alter such order or decision or pass such other order as it or he may think fit. The Government alone shall be competent to revise under this section any decision or order which is declared by this Act to be final.'

7. The Revisional jurisdiction confided to Government under this Section was entrusted by Government under Section 4(4) of the Mysore Revenue Appellate Tribunal Act, 1957, by a notification made under its provisions to the Revenue Appellate Tribunal and so, as provided by that sub-section that revisional jurisdiction commenced to reside in the revenue Appellate Tribunal. But, Section 52 of the Irrigation Act also bestows that revisional jurisdiction on the Divisional Commissioner and the Chief Engineer, and so, Government, the Divisional Commissioner and the Chief Engineer functioned as tribunals of Co-ordinate jurisdiction exercising the same power which Section 52 creates.

8. That being so, if the tribunal was right in its supposition that the orders of the Chief Engineer against which revision petitions were presented to the revenue appellate tribunal were made in the exercise of the revisional jurisdiction created by Section 52 of the Irrigation Act, the revisional jurisdiction which could be exercised under Section 52 stood exhausted and could not again be exercised by the tribunal to which the government's revisional jurisdiction stood transmitted.

9. But, the revenue appellate tribunal was not right in thinking that the Chief Engineer exercised any revisional Jurisdiction under Section 52 of the Irrigation Act. The application presented to the Deputy Commissioner by the petitioner in Writ Petition No. 1241/66 and that presented by the petitioners in writ petition No. 1259/67 were, It is clear, presented under Section 8 of the Irrigation Act which authorises an application to the concerned authority by a person who desires the construction, extension, improvement or alteration of a water course. When the petitioner in writ petition No. 1241/66 sought permission to construct a small reservoir in which he could store the water flowing from the channel in order that he may irrigate the lands at a higher level by pumping water on to that land, what he desired was the construction, extension, improvement or the alteration of a water course within the meaning of Section 8(1) of the Irrigation Act. Similarly, when the villagers of Kamadenahalli who are the petitioners in Writ Petition No. 1259/67 asked for an order that the bund constructed across the stream in which the excess water of Amanikere was flowing should be demolished, what they desired was the alteration of the water course since the water which was accumulating on lone side of the bund was being used by the villagers of Chinnapura for the irrigation of their lands under an order made by the Revenue Commissioner in 1932. So, their application was also one which fell within Section 8(1) of the Irrigation Act.

10. Section 8(1) of that Act provides for an appeal from the order made under Section 8(1) to the Deputy Commissioner and further appeal from the decision of the Deputy Commissioner to the Chief Engineer.

11. We are not concerned in these cases with the question whether the Deputy Commissioner could make an original order under Section 8(1) by reason of the fact that he is constituted an appellate authority under its provisions.

12. However, that may be, what is clear is that the Deputy Commissioner did make an order in both the cases under Section 8(1) as if he had the competence to make an original order under that subsection. From the two orders made by the Deputy Commissioner in two different matters in that way to which we have referred, there were appeals to the Chief Engineer and it is abundantly clear that those appeals were presented under the second paragraph of sub-section (1) of Section 8 of the Mysore Irrigation Act which reads;

'8(1) Any person desiring the construction, extension, improvement or alteration of a water course may apply in writing to the Irrigation Officer, and the said officer may, after giving such notice and causing such enquiries as may be prescribed by rules framed by the Government for the purpose, either permit the applicant to construct, extend, improve or alter the said water course or, if the applicant so desires, have it constructed, extended, improved or altered through Government agency on such terms and conditions as regards payment of costs, mode of execution and time of completion, facilities to be afforded by the applicant to safeguard other interests or to benefit other lands whose owners may apply for the same and other matters as may be relevant in each case, or may reject the application.

From the order of the Irrigation Officer, an appeal shall lie within thirty days from the date of the service of the said order, to the Deputy Commissioner and from his decision, a second appeal shall lie within ninety days from the date of service of such appellate order to the Chief Engineer whose decision thereon shall be final.'

13. Here again, we are not concerned with the question whether those appeals preferred to the Chief Engineer were maintainable or whether it is possible for the respondents in those appeals to contend that since the Deputy Commissioner did not make an appellate order but made only, an original order, the appeals to the Chief Engineer did not lie, and that matter is not one which we need decide at this stage for reasons to be presently stated.

14. However that may be, the Chief Engineer entertained the two appeals and exercised his appellate power under the second paragraph of Section 8 (1), and Section 8(1) declares that the decision of the Chief Engineer made in that way shall be final.

15. The discussion made by us so far transports us to two conclusions. The first is that since the Chief Engineer did not exercise any revisional jurisdiction under S. 52 of the Irrigation Act but only exercised appellate jurisdiction under the second paragraph of Section 8(1), the supposition made by the tribunal that by reason of the exercise of the concurrent revisional jurisdiction bestowed on the Chief Engineer by Section 52 of the Act. the exercise of that revisional jurisdiction was no longer possible by the revenue appellate tribunal, was groundless. If the power exercised by the Chief Engineer was the appellate power created by Section 8, and there can be no doubt that it was the appellate power that he exercised, the ratiocination of the tribunal becomes groundless.

16. The question therefore is whether the decision of the Chief Engineer in the two matters with which we are concerned is subject to the revisional jurisdiction of any authority under the Irrigation Act and whether that authority is the revenue appellate tribunal. We have no doubt that the answer to these two questions should be in the affirmative. Although the first paragraph to Section 52 authorises the exercise of revisional jurisdiction by Government with respect to an order made by the Deputy Commissioner or a canal officer or an irrigation officer, the order made by the Chief Engineer in appeal under Section 8(1) becomes subject to the revisional jurisdiction of Government under the second paragraph to Section 52 which says that although Government, the Divisional Commissioner or the Chief Engineer have the power to examine the record of any case and revise the order or decision therein, Government alone shall be competent to revise the decision or order which is declared by the Irrigation Act to be final.

17. Now, the order of the Chief Engineer made in the exercise of his appellate jurisdiction created by Section 8(1) is declared by the Act to be final, and so, that order made by him is subject to the revisional jurisdiction of Government under the second paragraph of Section 52. Indeed, that order can be revised only by Government and by no one else. Since that exclusive revisional jurisdiction now stands transmitted to the revenue Appellate Tribunal by a notification made under Section 4(4) of the Mysore Revenue Appellate Tribunal Act, 1957, the tribunal was in error in declining to exercise it.

18. So, we allow these two writ petitions and set aside the orders made by the revenue appellate tribunal in the two matters before us. We direct the revenue appellate tribunal to entertain the two revision petitions presented to it and to dispose of them on their merits and according to law.

19. No costs.

20. Petitions allowed.


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