DEVNARAYAN JANGDE Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The petitioner has filed this writ petition challenging the order dtd. 8/9/2023 passed by the Board of Revenue in Revenue Revision Case No. RN/12/R/A-6/220/2022 (Devnarayan Jangde Vs. Yusuf and Ors.) whereby learned Board of Revenue has dismissed the Revenue Revision affirming the order passed by the Commissioner, Raipur Division in appeal filed under Sec. 44 (2) of the Chhattisgarh Land Revenue Code, 1959 (hereinafter after referred to as 'Land Revenue Code') .

(2.) Facts relevant for disposal of this writ petition are that one appeal is preferred by respondent No.7 challenging the order of mutation dtd. 24/4/2007 under the provision of Sec. 44 (1) of the Land Revenue Code along with an application for condonation of delay in filing appeal under Sec. 5 of the Limitation Act. The First Appellate Authority i.e. Sub Divisional Officer/respondent No.4 dismissed the application under Sec. 5 of the Limitation Act for condoning the delay as also the appeal consequent thereof vide order dtd. 19/8/2020. Order passed by the Sub-Divisional Officer (R) dismissing the first appeal on the ground of limitation was challenged by respondent No.7 in second appeal under Sec. 44 (2) of the Land Revenue Code. Second appellate authority while hearing the parties allowed the appeal recording reasons therein that initially the order of mutation was challenged by one Hameeda in the year 2018 in which the appellant therein was also party. However, the said appeal was withdrawn in pressure and only thereafter the appellant therein filed appeal before the SDO (R) and while observing so, further held that the first appellate authority erred in dismissing the application under Sec. 5 of the Limitation Act for condoning the delay in filing the appeal and allowed the appeal. After setting aside the order passed by first appellate authority, directed the SDO (R) to decide the first appeal on merit. The order of the Commissioner in second appeal was put to challenge by petitioner, before the Board of Revenue in Revenue Revision on the ground mentioned therein. Board of Revenue dismissed the revision considering the facts of the case.

(3.) After dismissal of revision, petitioner has filed this writ petition primarily on the ground that the appellate authority is not having jurisdiction to remand back the case to the subordinate Court in view of the proviso to sub -Sec. (3) of Sec. 49 of the Land Revenue Code. Referring to sub-Sec. (3) of Sec. 49 of the Land Revenue Code, it is argued that if the appellate authority comes to the conclusion that order passed by the subordinate Court is erroneous or some material evidence has not been recorded, then the higher Court after obtaining evidence is to decide the case on merits and therefore the second appellate authority i.e. Commissioner erred in directing first appellate Court to decide the appeal on merits. The Commissioner exceeded its jurisdiction beyond its powers and functions. The Board of Revenue and the Commissioner have made the entire system as mockery acting as per their own will when the provision specifically bars for remand of case to lower Court.