JUDGMENT A. S. NAIDU, J. : The petitioner has assailed the order dated 24th October, 1997, Annexure-5, passed by the Commissioner, Consolidation, Orissa in Consolidation Revision Case No. 2508 of 1981. 2. The case has a chequered career as would be evident form the facts stated hereinbelow : Admittedly after the Mouza in question in which the disputed lands are situated came within the consolidation operation, Objection Case No. 550 of 1981 was filed by aforesaid Banamali Das before the Consolidation Officer, Cuttack Sadar under Section 9(3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as ‘the Act’). The said Objection Case was disposed of on 23.3.1981. The Consolidation Officer directed that the disputed lands should be recorded in the name of said Banamali Das. Being aggrieved by the said order, opposite party Nos. 4 to 12 filed an appeal before the Deputy Director of Consolidation which was registered as Appeal No. 133 of 1981. The Deputy Director dismissed the appeal on the ground of delay. Being aggrieved by the order of the Deputy Director the aforesaid opposite parties filed Revision Case No. 2508 of 1981 before the Commissioner of Consolidation. The lands being non-consolable in consonance with a Full Bench decision of this Court, the Revision filed before the Commission¬er under Section 36 of the Act was found to be not maintainable which was therefore dismissed on 28.4.1988. 3. Subsequently an amendment being made to the Act, inas¬much as non-consolable lands being brought within the fold of consolidation, a Misc. Case was filed by the present petitioner which was numbered as 30 of 1991 with a prayer to restore the Revision Case No. 2508 of 1981 to file and dispose of the same on merit. The Commissioner allowed the said Misc. Case, restored the Revision Case to file and after hearing the same disposed of the same afresh on merit by order dated 29.9.1993 holding that as the Deputy Director had not entertained the appeal on the ground of limitation, he should hear the appeal on merit and dispose of the same. Accordingly the Commissioner allowed the Revision Case and remanded the matter to the Deputy Director for fresh hearing and disposal as per law within a period of ninety days. 4. Accordingly the Commissioner allowed the Revision Case and remanded the matter to the Deputy Director for fresh hearing and disposal as per law within a period of ninety days. 4. After remand, the appellate authority took up hearing of the appeal afresh but it found that the original records were not returned to it form the revision authority. On enquiry it was found that the original records had been lost. In absence of the original records the Deputy Director expressed his inability to dispose of the appeal and referred the matter once again the Commissioner urging to reconsider the order passed by it in the Revision Case and direct the lower authority, i.e. the Assistant Consolidation Officer, Arada, to reopen the case under Section 9(1) of the Act as all the relevant records were available with the said authority. Thereafter the Commissioner directed the parties to file the documents available with them for reconstitu¬tion of the records. 5. Mr. Swain, learned counsel for the contesting opposite parties, forcefully submitted that in spite of issuance of notice and direction of the Commissioner the petitioner deliberately did not supply the original documents though the same were very much available with them. Mr. Tripathy, learned counsel for the peti¬tioner, repudiated the aforesaid submission of Mr. Swain and contended that all the required documents were not available with the petitioner and whatever documents were available with the petitioner the same were produced before the authority concerned. According to Mr. Tripathy, after disposing of the Revision Case, the Commissioner became functus officio. He could not have taken up hearing of the Revision Case once again. Alternatively, after reconstitution of the records, the Commissioner ought to have directed the appellate authority to re-hear the appeal afresh. The Commissioner has acted illegally and with material irregular¬ity in not remitting the matter back to the Deputy Director and re-hearing and disposal by him, and such action was not just, proper or in consonance with law. Mr. Swain, on the other hand, submitted that in spite of valid notice as the petitioner failed to produce all the relevant documents, the Commissioner had no other way, but to dispose of the Revision on the materials avail¬able on record. 6. I have heard learned counsel for the parties at length and have perused the materials available on record. Mr. Swain, on the other hand, submitted that in spite of valid notice as the petitioner failed to produce all the relevant documents, the Commissioner had no other way, but to dispose of the Revision on the materials avail¬able on record. 6. I have heard learned counsel for the parties at length and have perused the materials available on record. The appeal filed under Section 12 of the Act was not heard by the Deputy Director. The Deputy Director had dismissed the appeal on the ground of limitation and when the matter was remanded to the Deputy Director, he expressed his inability to dispose of the appeal afresh on the ground that the records were not available. Without taking the pains to reconstitute the records, the Deputy Director shirked his responsibility and urged before the Commis¬sioner to reconsider the order passed by the latter. Be that as it may, the Commissioner while exercising power under Section 36 and not under Section 37 of the Act, had to examine the propriety or otherwise of the order passed by the Deputy Director under Section 12 of the Act. In the present case the appeal was not heard by the appellate authority. Therefore in absence of an appellate order a revision under Section 36 was not maintainable. Even otherwise, I find some force in the contention of Mr. Tripa¬thy. 7. The Commissioner had allowed the Revision Case and remanded the matter to the Deputy Director. After doing that, the Commissioner became functus officio and could not have taken up the matter for hearing once again. The facts and circumstances discussed above clearly reveal that the matter was not properly adjudicated by the appellate authority and therefore the order passed by the Commissioner is not sustainable. Law is well settled that an appeal under Section 12 of the Act involves both questions of fact and law. The Deputy Director being the final Court of facts it was incumbent upon him to arrive at its conclu¬sion on facts. In absence of any decision by the appellate au¬thority it was not open to the Commissioner to adjudicate the matter himself as if he was exercising appellate jurisdiction. 8. The Deputy Director being the final Court of facts it was incumbent upon him to arrive at its conclu¬sion on facts. In absence of any decision by the appellate au¬thority it was not open to the Commissioner to adjudicate the matter himself as if he was exercising appellate jurisdiction. 8. In that view of the matter, this Court has no alternative but to quash the order of the Commissioner, vide Annexure-5, and remit the case to the Deputy Director, Consolidation, Range-III, Cuttack for fresh hearing and disposal on merit, and I accordingly so direct. As the matter is pending since long, to shorten the span of the litigation I further direct both sides to appear before the Deputy Director on 9th May, 2005 and the learned counsel for the parties take note of it. On the said date the Deputy Director shall take up hearing of the case or post the matter to some other date according to his diary and dispose of the same as expeditiously as possible, preferably within three months. The Deputy Director, if necessary, shall call upon the parties to produce the original documents or call for any other document form the A.C.O. and may permit the parties to adduce additional evidence, if any. Petition disposed of.