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Gopalakrishna Kalluraya Vs. Ramachandra Kalluraya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1450 of 1969
Judge
Reported inAIR1971Kant289; AIR1971Mys289; (1971)1MysLJ403
ActsTenancy Law; Mysore Land Reforms Act, 1961 - Sections 83 and 132
AppellantGopalakrishna Kalluraya
RespondentRamachandra Kalluraya and ors.
Appellant AdvocateU.L. Narayan Rao, Adv.
Respondent AdvocateK.I. Bhatta, Adv.
DispositionRevision dismissed
Excerpt:
.....of the statute or by necessary inference. i am clearly, therefore, of the opinion, that the bar of jurisdiction enacted under section 132 of the act would not take within its ambit an authority prescribed for the purposes of sections 82 and 83 of the act......defendant filed an application i. a. iv alleging that proceedings had been instituted before the assistant commissioner, the prescribed authority, under section 83 of the mysore land reforms act, (hereinafter referred to as the act), seeking for a declaration that the sale deed in favour of the plaintiff was null and void. the basis for relief was stated to be that the plaintiff was not an agriculturist and as such he was prohibited from purchasing the land from an agriculturist as provided under section 80 of the said act. the relief sought in i. a. iv was that the proceedings before the learned civil judge should be stayed pending a decision by the prescribed authority. the court rejected the application although it came to the conclusion that section 151 of the civil p. c. could be.....
Judgment:
ORDER

B. Venkataswami, J.

1. This petition under Section 115 of the Civil P. C. is by the second defendant in O. S. No. 79 of 1967 on the file of the Court of the Civil Judge, Mangalore. It is directed against an order refusing to stay further proceedings in the suit on the basis of a request made by him in I. A. IV. The said application was filed under Section 151 of the Civil P. C.

2. The material facts are these: The property concerned in the suit, which was one for partition and separate possession, originally belonged to three brothers. One of the brothers sold his 1/3 share in favour of the plaintiff on 23-3-1967. The other two brothers sold their shares to the first defendant in the suit on 7-1-1967. It is' the case of the second defendant (the revision petitioner) thathe was a purchaser from 'Khayam-gani' tenants of all their rights, title and interest in the whole of the property. On the basis of the pleadings in the suit one of the issues raised is as follows:--

'Whether the sale-deed dated 23-3-1967 in favour of the plaintiff is void as per the Mysore Land Reforms Act.'

3. During the pendency of the suit, the second defendant filed an application I. A. IV alleging that proceedings had been instituted before the Assistant Commissioner, the prescribed authority, under Section 83 of the Mysore Land Reforms Act, (hereinafter referred to as the Act), seeking for a declaration that the sale deed in favour of the plaintiff was null and void. The basis for relief was stated to be that the plaintiff was not an agriculturist and as such he was prohibited from purchasing the land from an agriculturist as provided under Section 80 of the said Act. The relief sought in I. A. IV was that the proceedings before the learned Civil Judge should be stayed pending a decision by the prescribed authority. The court rejected the application although it came to the conclusion that Section 151 of the Civil P. C. could be invoked notwithstanding the express provision made under Section 10 of the said Code in that behalf.

4. Shri U. L. Narayana Rao, learned counsel appearing on behalf of the petitioner, contends that having regard to the provisions of Sections 39, 80, 82, 83, 132 and 133 of the Act, the decision of the issue that has been framed in regard to the validity of the sale in favour of the plaintiff depends on an adjudication to be made by the Assist ant Commissioner in the subsequent proceedings instituted by him, referred to earlier. In any event, having regard to the provisions of Section 132 of the Act, the Civil Courts are barred from investigating a question or dispute which properly falls for adjudication within the scope of the powers of the authorities specifically named in the said Section.

According to him, the Assistant Commissioner, who has his application, under Section 83 of the Act, was fully competent to adjudicate upon the question of the validity of the sale deed relied on by the plaintiff in the suit. In this context, he invites attention to provisions of Rule 39 whereunder all the Assistant Commissioners in charge of sub-divisions have been designated as the 'prescribed authority' for the purposes of Sections 82 and 83 of the Act. In this view of the matter, it is just and necessary that the Civil Court should be prohibited from proceeding with the suit, especially when an issue regarding the validity of the sale deed in question has been expressly raised. He, therefore, submits that thestay of further proceedings would be just and proper having regard to all the facts and circumstances of the case.

5. Shri K. I. Bhatta, learned counsel appearing on behalf of the respondents, contends that Section 132 of the Act although specifically enumerates several authorities constituted under the Act, makes no reference to a 'prescribed authority', either for the purposes of Ss. 82 and 83 or any other provision of the Act. He proceeds to argue that bar of jurisdiction of Civil Courts should not be lightly inferred unless by express words the statute points clearly to the fact that the jurisdiction was so barred. I am in agreement with the submission of Sri Bhatta.

6. Section 80 of the Act, among other matters, imposes a restriction regarding transfer of agricultural land to non-agriculturists. It also provides for sanction being accorded by the Assistant Commissioner in the event of sale to a non-agriculturist. Section 82 imposes an obligation on all village officers and such other officers as are enumerated therein to make a report to the 'prescribed authority' in regard to every transaction in respect of any agricultural land in contravention of any of the provisions of the Act, which comes to their notice. Section 83 provides for an inquiry by such 'prescribed authority' and also empowers that authority to declare such transactions as null and void. As to who is the prescribed authority. Rule 39 of the Rules framed under the Act says that all Assistant Commissioners incharge of a revenue sub-division shall be the prescribed authority for the purposes of Section 82 of the Act.

7. Section 132 of the Act reads:

'Section 132. Bar of jurisdiction.-

(1) No Civil Court shall have jurisdiction to settle, decide, or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tribunal, the Deputy Commissioner, the Assistant Commissioner, the Appellate Authority, the Mysore Revenue Appellate Tribunal or the State Government in exercise of their powers of control.

(2) No order of the Tribunal, the Deputy Commissioner, the Assistant Commissioner, the Appellate Authority, the Mysore Revenue Appellate Tribunal, or the State Government made under this Act shall be questioned in any civil or Criminal Court.'

It is clear from this Section that the authorities enumerated therein are those which are created under the present Act or the Mysore Land Revenue Act. There is no reference however to any prescribed authority. The bar of jurisdiction enacted therein is clearly referable tothe orders or decisions made by the above enumerated authorities only. It is no doubt true that an Assistant Commissioner incharge of a Sub-Division is a prescribed authority under Rule 39 of the Rules. This is not to say that all Assistant Commissioners, whether they are incharge of a Sub-Division or not, are empowered to act for the purpose of Sections 82 and 83 of the Act.

It also seems to me that the Authority competent to frame a rule prescribing for an authority for the purpose of Sections 82 and 83 of the Act, can also prescribe or designate any one other than a revenue officer for the purposes of Sections 82 and 83 of the Act. Such being the position, it is clear that the choice of such authority is not necessarily confined to the revenue authorities only, viz., Assistant Commissioner, Deputy Commissioner or such other officer. Further even if an Assistant Commissioner is the proscribed authority for the above purposes, he will be functioning in a dual capacity, one as the Assistant Commissioner and the other as the prescribed authority. These two authorities are legally distinct and separate, although their functions are to be performed by one and the same individual in practice. To put it differently, the performance of functions under Sections 82 and 83 of the Act, by such a person is not in his capacity as Assistant Commissioner but only as the prescribed authority. The later authority is not referred to in Section 132 of the Act. To my mind, it is clear from the provisions of Section 132 of the Act, that the Assistant Commissioner named therein is an officer who is appointed to function only as such under any law or statute.

It is fairly well settled that exclusion of jurisdiction of Civil Courts should not be lightly inferred, unless it is clearly warranted by express words of the statute or by necessary inference. If such exclusion has to be inferred, in the absence of express words to that effect, one of the tests to be applied is whether the special statute which has created a right or liability for the first time has provided for adequate machinery for the enforcement of them. If an adequate provision in this behalf has been made under such special statute, the persons affected thereby are relegated to such remedies only, in the absence of any specific provision to the contrary. It is perhaps open to such persons to have recourse to Civil Courts even in such an event when the authorities constituted under the Act have exceeded their jurisdiction in the exercise thereof.

8. As already discussed, the express words of Section 132 of the Act do not take within their ambit any orderof the Prescribed Authority in the context of Section 83 of the Act.

9. In the submissions made before me emphasis was laid only on the express language of the provisions of the statute relating to exclusion of jurisdiction by the Civil Courts. I am clearly, therefore, of the opinion, that the bar of jurisdiction enacted under Section 132 of the Act would not take within its ambit an authority prescribed for the purposes of Sections 82 and 83 of the Act. That being the position, the learned Civil Judge was right in his conclusion that this was not a fit case for staving further proceedings in the aforesaid case pending before him during the pendency of the proceedings under Section 83 of the Act before the Assistant Commissioner, who is the prescribed authority.

10. For the above reasons, this revision petition fails and is dismissed.

11. In the circumstances of the Case. I make no order as to costs.


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