Girdhari S/o. Late Rewaram Lodhi v. Bhondu @ Barati S/o. Rewaram Lodhi
2023-07-24
RADHAKISHAN AGRAWAL, SANJAY K.AGRAWAL
body2023
DigiLaw.ai
JUDGMENT : Sanjay K. Agrawal, J. 1. This writ appeal is directed against the impugned order dated 13/09/2022 passed by learned Single Judge in WP227 No. 588/2018 (Bhondu @ Barati & others v. Bhangin Bai & others) whereby order dated 06/06/2018 passed by the Board of Revenue has been set aside. 2. Ms. Archi Agrawal, learned counsel for the appellant, would submit that in view of the decision rendered by this Court in the matter of Dr. Ram Sharan Lal Tripathi v. State of Chhattisgarh, 2015 SCC Online Chh 1521 : AIR 2016 Chh 17, the writ petition preferred by the respondents No. 1 to 4 herein against the order passed by the Board of Revenue was actually filed under Article 226 of the Constitution of India, as such, against the impugned order passed by learned Single Judge, writ appeal under Section 2(1) of the Act of 2006 would be maintainable. 3. Mr. P.R. Patankar, learned counsel for respondents No. 1 to 4, would submit that since the writ petition preferred against the revisional order of Board of Revenue was under Article 227 of the Constitution of India, therefore, by virtue of proviso to Section 2(1) of the Act of 2006, the instant writ appeal is expressly barred. 4. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 5. Admittedly, respondents No. 1 to 4 filed writ petition under Article 227 of the Constitution of India before this Court questioning the order dated 06/06/2018 passed by the Board of Revenue which has been granted by learned Single Judge. In order to consider the plea of maintainability of the writ petition under Article 227 of the Constitution of India, it would be appropriate to notice the relevant provisions of the Chhattisgarh Land Revenue Code, 1959 (hereinafter, called as “the Code”) under which Board of Revenue is constituted. 6. Chapter II of the Code deals with Board of Revenue and Section 3 provides for constitution of Board of Revenue. It states that there shall be a Board of Revenue for the State of Chhattisgarh having a President and in addition to the President, the State Government may appoint as many members as it may deem fit.
6. Chapter II of the Code deals with Board of Revenue and Section 3 provides for constitution of Board of Revenue. It states that there shall be a Board of Revenue for the State of Chhattisgarh having a President and in addition to the President, the State Government may appoint as many members as it may deem fit. Section 4 provides for Principal Seat and other places of sittings of Board of Revenue and Section 7 provides for jurisdiction of the Board. 7. Chapter III of the Code deals with Revenue Officers, their classes and powers and Section 11 provides for a list of Revenue Officers. A careful perusal of the officers enumerated in Section 11 of the Code would show that Board of Revenue or its members are not Revenue Officers within the meaning of Section 11 of the Code. 8. At this stage, it would be appropriate to notice Section 31 of the Land Revenue Code, which confers status of Courts upon the Board of Revenue and Revenue Officers, provides as under :- “31. Conferral of status of Courts on Board and Revenue Officers – The Board or a Revenue Officer, while exercising power under this Code or any other enactment for the time being in force to enquire into or to decide any question arising for determination between the State Government and any person or between parties to any proceedings, shall be a Revenue Court.” 9. The aforesaid provision confers status of Courts on the Revenue Board and the Revenue Officers stating that that the Revenue Officer or Board, while exercising power under this Code or any other enactment for the time being in force to enquire into or to decide any question arising for determination between the State Government and any person or between parties to any proceedings, shall be a Revenue Court. 10. When a question arises as to whether an authority created by an Act is a Court as distinguished from quasi judicial Tribunal, what has to be decided is whether having regard to the provisions of the Act, it possesses all the attributes of a Court. In this connection, the decisions of the Supreme Court in Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66 , Virinder Kumar v. The State of Punjab, AIR 1956 SC 153 and G. Nageswara Rao v. A.P.S.R.T. Corpn., AIR 1959 SC 308 may be noticed profitably.
In this connection, the decisions of the Supreme Court in Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66 , Virinder Kumar v. The State of Punjab, AIR 1956 SC 153 and G. Nageswara Rao v. A.P.S.R.T. Corpn., AIR 1959 SC 308 may be noticed profitably. Considering the principle of law laid down in the aforesaid judgments and having regard to the provisions of the Code particularly Section 31 of the Code, the only irresistible conclusion that can be drawn is that the Revenue Courts possess all the attributes of a Court and they are also conferred status of Courts by virtue of Section 31 of the Code. 11. In the matter of Dangalia and others v. Deshraj and others, 1973 MPLJ 796 , the Division Bench of the Madhya Pradesh High Court has clearly held that the provisions of the Code not only constitute Revenue Officers as full-fledged Courts, which would be governed by the special provisions of the Chhattisgarh Land Revenue Code, and in the absence of such provisions, they are to be governed by the Code of Civil Procedure, if they do not come in conflict with the former. Paragraph 7 of the report states as under :- “7. … Section 31 of the M. P. Land Revenue Code. 1959, confers status of Courts on the Revenue Board and the Revenue Officers. It provides that the Board or the Revenue Officer, while exercising power under this Code or any other enactment for the time being in force to enquire into or to decide any question arising for determination between the State Government and any person or between parties to any proceedings, shall be a Revenue Court. Section 32 of the Code provides that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Revenue Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. Section 33 of the Code states that subject to the provisions of Sections 132 and 133 of the Code of Civil Procedure.
Section 33 of the Code states that subject to the provisions of Sections 132 and 133 of the Code of Civil Procedure. 1908, and to rules made under Section 41, every Revenue Officer acting as a Revenue Court shall have power to take evidence, to summon any person whose attendance he considers necessary either to be examined as a party or to give evidence as a witness or to produce any document for the purposes of any inquiry or case arising under this Code or any other enactment for the time being in force. Section 43 of the Code further provides that unless otherwise expressly provided in this Code, the procedure laid down in the Code of Civil Procedure. 1908 shall, so far as may be, be followed in all proceedings under this Code. Further on, we may note Section 55 of the Code which provides that for avoidance of doubt it is 'hereby declared that save as otherwise expressly provided in this Code, the provisions of this Chapter shall apply to:-- (a) all orders passed by any Revenue Officer before the date of coming into force of this Code and against which no appeal or revision proceedings are pending before such date; and, (b) all proceedings before Revenue Officers, notwithstanding that they were instituted or commenced or arose out of proceedings instituted or commenced before the corning into force of this Code.” 12. The Supreme Court in the matter of S.K. Sarkar Member, Board of Revenue, U.P., Lucknow v. Vinay Chandra Mishra, AIR 1981 SC 723 , while dealing with the issue as to whether the Revenue Board is a Court subordinate to the High Court within the meaning of Section 10 of the Contempt of Courts Act, 1971 has clearly held that the Court of Revenue Board is a Court subordinate to the High Court within the contemplation of Section 10 of the Act. Paragraph 15 of the report provides as under :- “15. … The provision in Section 10 is but a replica of Section 3 of the 1952 Act. The phrase “courts subordinate to it” used in Section 10 is wide enough to include all courts which are judicially subordinate to the High Court, even though administrative control over them under Article 235 of the Constitution does not vest in the High Court.
The phrase “courts subordinate to it” used in Section 10 is wide enough to include all courts which are judicially subordinate to the High Court, even though administrative control over them under Article 235 of the Constitution does not vest in the High Court. Under Article 227 of the Constitution the High Court has the power of superintendence over all courts and tribunal throughout the territories in relation to which it exercises jurisdiction. The Court of Revenue Board, therefore, in the instant case, is a court “subordinate to the High Court” within the contemplation of Section 10 of the Act.” 13. Not only this, Section 32 of the Code also confers inherent power upon the Revenue Courts which is akin and analogous to the provision contained under Section 151 of the Code of Civil Procedure, which provides as under :- “32. Inherent power of Revenue Courts. - Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Revenue Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court.” 14. As such, by virtue of Section 32 of the Code, inherent powers are vested in the Revenue Courts to pass necessary orders as may be necessary for the ends of justice or to prevent the abuse of process of the Court which is also vested with the Civil Courts by virtue of Section 151 of the Code of Civil Procedure. Therefore, we have no iota of doubt that Revenue Court includes Board of Revenue and its members which are Courts for all the practical purposes. 15. In the matter of Surya Devi v. Ram Chander Rai, (2003) 6 SCC 675 , their Lordships of the Supreme Court have clearly held that the orders and proceedings of a judicial court subordinate to High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India by observing in paragraph 19 as under :- “19. Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.” 16. The correctness of the principles of law laid down in Surya Devi Rai (supra) was questioned in the matter of Radhey Shyam & Anr.
Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.” 16. The correctness of the principles of law laid down in Surya Devi Rai (supra) was questioned in the matter of Radhey Shyam & Anr. v. Chhabi Nath & Ors., (2015) 5 SCC 423 and the matter was referred to larger Bench (three judges) of the Supreme Court for consideration that whether an order of the civil court was amenable to writ jurisdiction under Article 226 of the Constitution ? Their Lordships of the Supreme Court considered the issue and categorically held that judicial orders do not infringe the fundamental rights or legal rights and therefore cannot be challenged under Article 226 of the Constitution of India and observed in paragraphs 18, 21 and 27 finally, answered the issue in paragraph 29 as under :- “18. While the above judgments dealt with the question whether judicial order could violate a fundamental right, it was clearly laid down that challenge to judicial orders could lie by way of appeal or revision or under Article 227 and not by way of a writ under Article 226 and 32. * * * 21. Thus, it has been clearly laid down by this Court that an order of the civil court could be challenged under Article 227 and not under Article 226. * * * 27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view 25 of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226. * * * 29. Accordingly, we answer the question referred as follows: 29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution. 29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226. 29.3. Contrary view in Surya Dev Rai is overruled.” 17.
* * * 29. Accordingly, we answer the question referred as follows: 29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution. 29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226. 29.3. Contrary view in Surya Dev Rai is overruled.” 17. The proposition of law laid down by their Lordships of the Supreme Court in Radhey Shyam (supra) would clearly show that judicial orders of the civil court are amenable to writ jurisdiction under Article 226 of the Constitution of India and judicial orders of the civil court can be challenged under Article 227 of the Constitution of India. 18. The Full Bench of the M.P. High Court in the matter of Shailendra Kumar v. Divisional Forest Officer and another, AIR 2018 MP 120 , where the question was, “whether an intra-Court appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 would be maintainable against an order passed by learned Single Judge assailing an Award passed by the Labour Court ?”, held that the orders passed by the Judicial Courts, subordinate to a High Court even in criminal matters when challenged in proceeding before the High Courts are only under Article 227 of the Constitution of India, and observed in paragraph 18 of the report as under :- “18. We may clarify that the orders passed by the Judicial Courts, subordinate to a High Court even in criminal matters when challenged in proceedings before the High Courts are only under Article 227 of the Constitution of India. Thus no intra Court appeal would be maintainable against an order passed by the learned Single Judge in proceedings arising out of an order passed by Judicial Courts, may be civil or criminal proceedings.” 19. Similarly, the Supreme Court in the matter of Asian Resurfacing of Road Agency Private Limited and another v. Central Bureau of Investigation, (2018) 16 SCC 299 has held that an order framing a charge can only be challenged either under revisional power of High Court or under Section 482 of the CrPC or under Article 227 of the Constitution and observed in paragraphs 27 & 28 as under :- “27.
Thus, even though in dealing with different situations, seemingly conflicting observations may have been made while holding that the order framing charge was interlocutory order and was not liable to be interfered with under Section 397(2) or even under Section 482 CrPC, the principle laid down in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 still holds the field. Order framing charge may not held to be purely an interlocutory order and can in a given situation be interfered with under Section 397(2) CrPC or 482 CrPC or Article 227 of the Constitution which is a constitutional provision but the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation. 20. The Supreme Court in the matter of Himalayan Coop. Group Housing Society v. Balwan Singh and others, (2015) 7 SCC 373 , has held that in a writ petition filed against the order passed by the Registrar and the revisional authority under the provisions of the Delhi Cooperative Societies Rules, 1972, writ petition under supervisory jurisdiction (Article 227 of the Constitution of India) would lie and observed in paragraphs 16 and 17 as under :- “16. The scope and extent of power of the writ court in a petition filed under Articles 226 and 227 of the Constitution came up for consideration before a three-Judge Bench of this Court in the recent case of Radhey Shyam (supra). This Court observed that the writ of certiorari under Article 226 through directed against the orders of an inferior court would be distinct and separate from the challenge to an order of an inferior court under Article 227 of the Constitution. The supervisory jurisdiction comes into play in the latter case and it is only when the scope and ambit of the remedy sought for does not fall in the purview of the scope of supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could be invoked. 17. In the present case, what was challenged by the members of the Society was an order passed by the Registrar and the Revisional Authority under the provisions of the Act and the Rules framed thereunder.
17. In the present case, what was challenged by the members of the Society was an order passed by the Registrar and the Revisional Authority under the provisions of the Act and the Rules framed thereunder. Even if the said petition(s) were styled as a petition under Article 226, the content and the prayers thereunder being ones requiring exercise of supervisory jurisdiction only, could be treated as petitions filed under Article 227 of the Constitution only.” 21. Returning to the facts of the present case in light of the aforesaid legal position, it is quite vivid that the Board of Revenue allowed the revision petition preferred by the appellant herein in exercise of its revisional jurisdiction under Section 50 of the Code against which the respondent No. 1 filed a writ petition before this Court under Article 227 of the Constitution of India. As discussed herein-above, it is quite vivid that the Board of Revenue has been conferred with the status of Court by virtue of Section 31 of the Code and furthermore, the Board of Revenue has also been conferred with the inherent jurisdiction under Section 32 of the Code which is akin to Section 151 of the Civil Procedure Code which is a power conferred upon the Civil Court. In that view of the matter, against the order of Board of Revenue in exercise of its revisional jurisdiction only and only a writ petition under Article 227 of the Constitution of India would be maintainable and the decision relied upon by learned counsel appearing on behalf of the appellant in the matter of Dr. Ram Sharan Lal Tripathi (supra) in which learned Single Judge has held that Board of Revenue is not a Civil Court, it is a revenue authority established under the Code, cannot be held to be laying down good and correct law in view of the discussion made herein and in view of Sections 31 and 32 of the Code which confer status of a Court upon the Board of Revenue. In that view of the matter, the writ petition preferred by the respondents No. 1 to 4 against the revisional order of Board of Revenue was under Article 227 of the Constitution of India, therefore, by virtue of proviso to Section 2(1) of the Act of 2006, writ appeal is expressly barred. 22.
In that view of the matter, the writ petition preferred by the respondents No. 1 to 4 against the revisional order of Board of Revenue was under Article 227 of the Constitution of India, therefore, by virtue of proviso to Section 2(1) of the Act of 2006, writ appeal is expressly barred. 22. Accordingly, this writ appeal stands dismissed as not maintainable leaving the parties to bear their own cost(s).