Mangal vs Board of Revenue and Others

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 29.10.2004 passed by the Board of Revenue in Revision Case No. 07/A-19(5) 03-04 and the order dated 28.07.2003 of the Collector, Bastar, in Revision Case No. 03/A-19(5)/2002-03 whereby the lease of the land granted to the petitioner in Revenue Case No. 54/A-10(5)/86-87, was cancelled. The facts, in brief, as projected by the petitioner are that the lease of suit land bearing Khasra No. 119/1 area 0.70 decimal and Khasra No 120/1 area 2.85 acres, total area 3.55 acres of land situated at village Bharni was granted to the petitioner after registration of revenue case No. 54/V-19(5)/86-97 by the Naib Tahsildar, Jagdalpur, on 30.12.1986 under the Madhya Pradesh Krishi Prayojan Ke Liye Upayog Ki Ja Rahi Dakhal Rahit Bhumi Par Bhumi Swami Adhikaron Ka Pradan Kiya Jani (Vishesh Upbandh) Adhiniyam, 1984 (for short ''the Act, 1984''). The respondent No. 3 to 6 encroached upon the said land which lead to filing of an application u/s 350 of the Code of Civil Procedure, 1908 (for short ''the Code'') for demarcation of the land before the Naib Tahsildar, Jagdalpur. After demarcation, the respondent No. 3 to 6 were directed to vacate the possession and deliver the same to the petitioner. The respondents No. 3 to 6, against the order dated 05.03.2003 made a complaint before the Collector, Bastar. The Collector, by order dated 09.06.2003 (Annexure P/3) observed that the respondent No. 3 to 6 are free to file appeal against the order of the Naib Tahsildar and further directed for delivery of the possession to the petitioner and held that no action can be taken on the basis of complaint made by the respondent No. 3 to 6. The Collector, Jagdalpur, taking a suo moto revisional jurisdiction registered a revenue case No. 3/V-19(5)/2002-03 and issued notice to the petitioner as well as to the respondents. The petitioner filed his objection stating inter alia that the lease of the suit land on Bhumi Swami rights was granted to the petitioner on 30.12.1986, therefore, on suo moto motion, revisional power cannot be exercised after such a long time and further that no copy of the application filed by the respondents was supplied to him.

According to learned counsel appearing for the petitioner, the Collector, Bastar, without affording any opportunity of hearing and without providing any opportunity to cross examination, after 17 years, has set aside the lease granted in favour of the petitioner, by order dated 28.07.2003. Shri Sharma further submits that the notice issued by the Collector was with regard to the complaint, and not for cancellation of the lease granted under the Act, 1984. Against the order passed by the Collector, the petitioner preferred a revision before the Board of Revenue, which has also been dismissed by order dated 29.10.204 holding that the Collector has passed the order under the provisions of the Revenue Book Circular, and therefore, u/s 50 of the C.P.C. is not maintainable and an appeal shall lie before the State Government.

On the other hand, Shri Nigam would submit that the petitioner at earlier point of time had suppressed material information. He was working in the forest department, his father had 6 acres of land in his name. The petitioner was never a landless person so as to entitle him to get lease of government land. The Act, 1984 was enacted with a view to grant Bhumiswami rights over land to those, whose principal means of livelihood is manual labour on land and neither him nor his family members were having any piece of land. The petitioner was not entitled to get the lease of the land in dispute under the provisions of the Act, 1984. He would further submit that in a proceedings before the Collector, he was afforded full opportunity of hearing as well as to put forward his case, the petitioner had also filed objection in the suo moto revision case before the Collector, Bastar.

Shri Subhash Yadav, learned counsel appearing for the respondent No. 3 to 6, without filing any return to the petition, would support the orders passed by the Collector, as well as the Board of Revenue.

Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

The question which arises for consideration in this petition is as to whether a revision is maintainable against the order passed by the Collector in exercise of his revisional jurisdiction u/s 50 of the Code. The facts, which are indisputable is that the Naib Tahsildar, on an application made by the petitioner for demarcation of the land wherein according to the petitioner, the respondents No. 3 to 6 had trespassed in the land allotted to the petitioner under the provisions of the Act, 1984, passed an order in favour of the petitioner directing the respondents to remove the encroachment. The Collector, on the basis of the enquiry report submitted by the Superintendent, Land Records dated 05.06.2003, took up the issue on its suo moto motion and held that the Naib Tahsildar had not examined the entire facts in respect of the possession of the petitioner. The Naib Tahsildar had further committed a mistake in observing that the petitioner was allotted the land and was in exclusive possession of the land in question, and a direction was made to the respondent No. 3 to 6 to vacate the land in favour of the petitioner. There against, the petitioner preferred a revision u/s 50 of the Code before the Board of Revenue. The Board of Revenue held that since the Collector had taken up the issue in revision suo moto, second revision was not maintainable before the Board of Revenue.

It would be beneficial to refer the relevant provisions of section 44, 50 and 56 of the Code, which reads as under:

Appeal and appellate authorities.-(1) Save where it has been otherwise provided, an appeal shall lie from every original order under this Code or the rules made thereunder-

(a) if such order is passed by any Revenue Officer subordinate to the Sub-Divisional Officer, whether or not the officer passing the order is invested with the powers of the Collector-to the Sub-Divisional Officer.

(b) if such order is passed by the Sub-Divisional Officer, whether or not invested with the powers of the Collector-to the Collector;

(c) if such order is passed by any Revenue Officer subordinate to the Settlement Officer-to the Settlement Officer;

(d) if such order is passed by any Revenue Officer in respect of whom a direction has been issued under sub-section (3) of Section 12 or subsection (2) of Section 21-to such Revenue Officer as the State Government may direct;

(e) if such order is passed by a Collector whether exercising the powers of Collector or Settlement Officer, during the currency of the term of settlement-to the Commissioner;

(f) if such order is passed by a Settlement Officer, whether exercising the power of Settlement Officer or the powers of a Collector in connection with any settlement operation unless otherwise expressly provided-to the Settlement Commissioner;

(g) if such order is passed by the Commissioner or the Settlement Commissioner-to the Board.

(2) Save as otherwise provided a second appeal shall lie against every order passed in first appeal under this Code or the rules made thereunder-

(i) by the Sub-Divisional Officer or the Collector to the Commissioner,

(ii) by the settlement Officer to the Settlement Commissioner;

(iii) by the Commissioner to the Board-

(a) if the original order has in the first appeal been varied or reversed otherwise than in a matter of cost; or

(b) on any of the following grounds and no other, namely

(i) that the order is contrary to law or usage having the force of law; or

(ii) that the order has failed to determine some material issue of law or usage having force of law; or

(iii) that there has been a substantial error or defect in the procedure as prescribed by this Code, which may have produced error or defect in the decision of the case upon merits.

(3) An order passed in review varying or reversing any order shall be appealable in like manner as the original order.

CHHATTISGARH AMENDMENTS

(i) (1) In clause (e) of sub-section (1) of Section 44 of the Code, for the word "Commissioner" the word "Board of Revenue" shall be substituted.

(2) In clause (g) of sub-section (1) of Section 44 of the Code the "Commissioner or the" shall be omitted.

(3) In clause (i) of sub-section (2) of Section 44 of the Code, for the word "Commissioner" the words "Board of Revenue" shall be substituted.

(4) Clause (iii) of sub-section (2) of Section 44 of the Code shall be omitted.

[vide C.G. Act. No. 11 of 2003 (w.e.f. 23-11-2002]

(ii) Amendment of Section 44 -for sub-section (2) of Section 44 of the Chhattisgarh Land Revenue Code, 1959 (No. 20 of 1959) hereinafter referred to as ''the Code'') the following sub-section shall be substituted, namely:-

(2) Save as otherwise provided a second appeal shall lie against every order passed in first appeal under this Code or the rules made thereunder:

(i) if such order is passed by the Sub-Divisional Officer-to the Collector;

(ii) if such order is passed by the Collector-to the Board;

(iii) if such order is passed by the settlement officer-to the Settlement Commissioner.

[vide C.G. Act No. 6 of 2005 (w.e.f. 20-5-2005)]

(iii) Amendment in Section 44.-In Section 44 of the Principal Act,-

(1) In clause (e) of sub-section (1) for the words "Board of Revenue" the words "Commissioner" shall be substituted.

(2) In clause (g) of sub-section (1) before the words "Settlement Commissioner" the words "Commissioner or the" shall be inserted.

(3) For sub-section (2) of section 44 of the Principal Act, following shall be substituted namely,-

(2) Save as otherwise provided a second appeal shall lie against every order passed in first appeal under this Code or the rules made thereunder:-

(i) by the Sub Divisional Officer or the Collector to the Commissioner;

(ii) by the Settlement Officer to the Settlement Commissioner;

(iii) by the Commissioner to the Board-

(a) if the original order has in the first appeal been varied or reversed otherwise than in a matter of cost; or

(b) on any of the following grounds and no other namely-

(i) if the original order has in the first appeal been varied or reversed otherwise than in a matter of cost; or

(ii) that the order has failed to determine some material issue of law or usage having force of law; or

(iii) that there has been a substantial error or defect in the procedure as prescribed by this Code, which may have produced error or defect in the decision of the case upon merits.

[Vide C.G. Act No. 17 of 2008 w.e.f. 23-8-2008]"

Revision.-The Board or the Commissioner or the Settlement Commissioner or the Collector or the Settlement Officer may at any time on its/his motion or on the application made by any party for the purpose of satisfying itself/himself as to legality or propriety of any order passed by or as to the regularity of the proceedings of any Revenue Officer subordinate to it/him call for, and examine the record of any case pending before, or disposed of by such officer, and may pass such order in reference thereto as it/he thinks fit:

Provided that-

(i) no application for revision shall be entertained-

(a) against an order appealable under this Code;

(b) against an order of the Settlement Commissioner u/s 210;

(c) against an order passed in revision by the Commissioner or the Settlement Commissioner in respect of cases u/s 170-B, nor shall any such order be revised by the Board on its own motion;

(ii) no such application shall be entertained unless presented within sixty days to the Commissioner or the Settlement Commissioner or the Collector or the Settlement Officer, as the case may be, or within ninety days to the Board of Revenue from the date of the order and in computing the period aforesaid, time requisite for obtaining a copy of the said order shall be excluded;

(iii) no order shall be varied or reversed in revision unless notice has been served on the parties interested and opportunity given to them of being heard.

(2) Notwithstanding anything contained in subsection (1)-

(i) where proceedings in respect of any case have been commenced by the Board under sub-section (1) no action shall be taken by the Commissioner or the Settlement Commissioner or the Collector or the Settlement Officer in respect thereof.

(ii) where proceedings in respect of any case have been commenced by the Commissioner or the Settlement Commissioner under sub-section (1) no action shall be taken by the Collector or the Settlement Officer in respect thereof;

(iii) where proceedings in respect of any such case have been commenced by the Commissioner, Settlement Commissioner, Collector or Settlement Officer under sub-section (1), the Board may either refrain from taking any action under this section in respect of such case until the final disposal of such proceedings by the Commissioner or the Settlement Commissioner or the Collector or the Settlement Officer as the case may be, or may withdraw such proceedings and pass such order as it may deem fit;

(iv) where proceedings in respect of any such case have been commenced by the Collector or the Settlement Officer under sub-section (1), the Commissioner or the Settlement Commissioner may either refrain from taking any action under this section in respect of such case until the final disposal of such proceedings by the Collector or the Settlement Officer, as the case may be, or may withdraw such proceedings and pass such order as it may deem fit.

Explanation-For the purpose of this section all Revenue Officers shall be deemed to be subordinate to the Board.

CHHATTISGARH AMENDMENTS

(i) (1) In sub-section (1) of Section 50 of the Code the words "or the Commissioner" appearing before the words "or the Settlement Commissioner" shall be omitted.

(2) In sub-clause (c) of clause (i) of the proviso to sub-section (1) of Section 50 of the Code, the words "Commissioner or" appearing before the words "the Settlement Commissioner" shall be omitted.

(3) In clause (ii) of the proviso to sub-section (1) of Section 50 of the Code, the words "Commissioner or" appearing before the words "the Settlement Commissioner" shall be omitted.

(4) In clause (i) of the sub-section (2) of Section 50 of the Code, the words "Commissioner or" appearing before the words "the Settlement Commissioner" shall be omitted.

(5) In clause (ii) of the sub-section (2) of Section 50 of the Code, the words "the Commissioner or" appearing before the words "the Settlement Commissioner" shall be omitted.

(6) In clause (iii) of the sub-section (2) of Section 50 of the Code, the words "Commissioner" appearing before the words "Settlement Commissioner," and the words "the Commissioner or" appearing before the words "the Settlement Commissioner" shall be omitted.

(7) In clause (iv) of the sub-section (2) of Section 50 of the Code, the words "Commissioner" appearing before the words "Commissioner or" appearing before the words "the Settlement Commissioner" shall be omitted.

[Vide C.G. Act No. 11 of 2003 (w.e.f. 23-11-2002)]

Amendment in Section 50.-(1) In sub-section (1) of Section 50 of the Principal Act, after the words "The Board", the words, "or the Commissioner" shall be inserted.

(2) In sub-section (c) of clause (i) of the proviso to sub-section (1) of Section 50 of the Principal Act, before the words "the settlement Commissioner", the words "Commissioner or" shall be inserted.

(3) In clause (ii) of the proviso to sub-section (1) of Section 50 of the Principal Act, before the words "the Settlement Commissioner", the words "Commissioner or" shall be inserted.

(4) In clause (i) of sub-section (2) of Section 50 of the Principal Act, before the words "the Settlement Commissioner", the words "Commissioner or" shall be inserted.

(5) In clause (ii) of sub-section (2) of Section 50 of the Principal Act, before the words "the Settlement Commissioner", the words "Commissioner or" shall be inserted.

(6) In clause (iii) of sub-section (2) of Section 50 of the Principal Act, before the words "the Settlement Commissioner", wherever they occur, the words "the Commissioner" shall be inserted.

(7) In clause (iv) of sub-section (2) of Section 50 of the Principal Act, before the words "the Settlement Commissioner" the words "The Commissioner or" shall be inserted.

[vide C.G. Act No. 17 of 2008 w.e.f. 23-8-2008]

Construction of order.-In this Chapter, unless the context otherwise requires, expression "order" means the formal expression of the decision given by the Board or a Revenue Officer in respect of any matter in exercise of its/his powers under this Code or any other enactment for the time being in force as the case may be.]

It appears that the order was passed by the Collector in exercise of its revisional power u/s 50 of the Code. Provisions of section 50 of the Code does not contemplate second revision against the order passed by the Collector, a revenue officer. The term ''Revenue Officer'' has been defined u/s 11 of the Code, wherein the Commissioners, including Additional Commissioners, Settlement Commissioners, including Additional Settlement Commissioners, Collectors, including Additional Collectors, Settlement Officers, Sub Divisional Officers, Assistant Collectors, Joint Collectors, including Deputy Collectors, Deputy Settlement Officers, Assistant Settlement Officers, Tahsildars, including Additional Tahsildars, Superintendent of Land Records, Naib Tahsildars, Assistant Superintendent of Land Records, are Revenue Officers. Section 44 of the Code provides for an appeal from the order passed by the Collector under sub section (1)(e) of Section 44 of the Code. The State of Chhattisgarh has substituted the word ''Commissioner'' by the word ''Board of Revenue". Thus, an appeal to the Board of Revenue against an order passed by the Collector, is maintainable.

In such a case, where the revisional authority has set aside the order granting lease in favour of the petitioner under the Act, 1984, the Act, the appellate forum is a must. The Act, 1984 provides for grant of Bhumiswami rights to the agricultural labours u/s 3 of the Act, 1984 and to the landless persons u/s 7 of the Act, 1894. The rules framed therein under Rule 2(a) defines authorized officer means Tahsildar/Naib Tahsildar who has been confirmed the powers of Tahsildar u/s 24 of the Code. In that event, the order passed by the Collector comes within the ambit of order u/s 56 of the Code. Thus, an appeal to the Board of Revenue was maintainable. In view of the aforestated, the Board of Revenue ought not to have dismissed the revision on the ground of non-maintainability, but it was for the Board of Revenue to convert the revision into appeal and decide the case after examining all the facts and after affording opportunity of hearing to the parties concerned.

For the reasons stated hereinabove, the writ petition is allowed. The Board of Revenue is directed to convert the revision application filed by the petitioner to appeal u/s 44 of the Code and adjudicate the case afresh in accordance with law, after affording full opportunity of hearing to the petitioner as well as to the other parties concerned, within a period of six months from this day. No order as to costs.