&f;2 S: C-E ^? 16^ 'C^-/ IN THE HieH COCRT Gf CKHATTIS6ASH ATBlLASPUR W.P.fCS N0. ^ <^ r3/' /2Q07 'S <<€v PETITIONER ^-^ ''Jagdish Prasad Aerawal, S/o. Late APPLICANT ^^>° „ ,. . „ //v9y^f Sukhdev Prasad Agrawal, Aged abut 59 years, Ward No.21, Bagbahra Road, Mahasamund, Tahsil & Distrirt Mahasamund (CG) VSRSUS ,'l] State of Chhattisgarh, Through: Collector, Mahasami.md, District Mahasamund (CG) RBSPONDENTS NON-APPLICANTS t- 2^ Ramayan Mandali, Mahasami.md, .QU1 " through: its President- Vyas Narayan ',SiY'''3^.l.S"^ ^Sharma, Aged about. 65 years, R/o. S\l>NSV Mahasamuj-id, Tah.sU & District Mahasamund (CG) .•c' ft- —« G-y ¥- 3] Board of Revenue, Chhattisgarh BUaspur, Cu-Ruit Court, Raipur. Through: its Member, Circuit Court, Raipur, District Raipzir (CG) ^^> 4] Sub-Divisional Officer (Revenue) Mahasamund, Distt Mahasamund (CG) WRIT PETITION UNI®RARTICLE 227 OF THE CONSTZTUTION GF INDIA HIGH COURT OF CHHAmSGARH AT BILASPUR W.P. (C) No.3037 of 2007 PETITIONER APPLICANT RESPONDENTS NON-APPLICNATS Jagdish Prasad Agrawal. Versus State of Chhattisgarh and others. ORDER For Pronouncement of Order -2-2. .07.2011 Sd/- N.K. Agarawal Judge y. p. ,.^ "^sf' •^lnsiset"' ^ HIGH COURT OF CHHATTISGARH AT BILASPUR WritPetjtion (C) No.3037 of 2007 PETITIONERS/ APPLICANT Jagdish Prasad Agrawal. Versus RESPONDENTS/ NON-APPLICANTS State of Chhattisgarh and others. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Mr. N.K. Agarwal. J.) Present : Mr. Manoj Paranjpe, counsel for the petitioner. Mr. Arvind Dubey, P.L. for the State/respondent No.l. Mr. P.K.C. Tiwari, Senior Counsel with Shri Shashibhushan for respondent No.2 ORDER (2.-2-.07.2011) The petitioner, by way of instant petition filed under Article 227 of the Constitution of India, is challenging the order dated ;. 16.03.2007 passed by the Board ofRevenue, Bilaspur, whereby the appeal filed by the petitioner against the order dated 18.03.2002 passed by the Collector has been allowed and the order passed by the Collector as well as Sub-Divisional Officer has been set aside and the matter has been remanded to the Courts below to inidate proceedings under Section 107 or 242, 131 of the Chhattisgarh Land Revenue Code (henceforth 'the Code>) and the Revenue Officers have been directed to dispose of the case on merits. "~K- ^ o' •»'- 2. Brief facts of the case, in a nutshell, are that respondent No.2 filed an application under Section 113 of the Code before the Sub-Divisional Officer, Mahasaniund seeking correction in the entries in respect of Kh.No.2051 and 2050. According to respondent No.2, the land in question was being used for performing 'Ramleela and Dushehara fair and the general public is using the road situated on Kh.No.2051. However, the petitioner has raised a wall on the aforesaid land and is creating hindrance in its use by public atlarge. 3. The petitioner has raised preliminary objection (Annexure P/3) inter alia on the ground that the relief claimed by respondent No.2 for correction of boundaries in the map can only be granted under Section 107 (5) ofthe Code and notunder Section 113 ofthe Code, and therefore, the application filed by respondent No.2 deserves to be dismissed. The Sub-Divisional Officer vide its order dated 30.03.1998 has tumed down the preliminary objection. Aggrieved therewith, fhe pedtioner preferred a revision before the Collector, Mahasamund. The Collector, Mahasamund has passed an order on 18.01.1999 and directed S.D.0. to hold an enquiry. The Collector also directed S.D.0. that if the parties are ready to give their consent, then only an order under Section 113 of the Code can be passed. 4. After receiving record from the Collector, the S.D.O. passed final order on 15.10.1999 whereby the application of respondent No.2 was allowed. 7/ ¥- 5. Being aggrieved by the order passed by the S.D.0., the petitioner preferred an appeal before the Collector, Mahasamund, which was registered as Revenue Appeal No.75/A-5/2000-01. The Collector vide its order dated 18.03.2002 has dismissed appeal upholding the order of S.D.O. The second appeal preferred before the Board of Revenue by the petitioner was allowed. However, the matter was remanded with a direction to the authorities to initiate proceedings under Section 107 or 242, 131 of the Code. Hence, this petition. 6. Shri Manoj Paranjpe, leamed counsel appearing for the petitioner would submit: the learned Board of Revenue has exceeded its jurisdiction conferred under Section 49 of the Code in remanding the matter to the authorities to initiate proceedings under Section 107 or 242, 131 of the Code inasmuch as under proviso to Section 49 of the Code bars order of remand. 7. On the other hand, Shri P.K.C. Tiwari, learned Senior Counsel appearing for the respondent No.2 would submit: the petitioner has in fact preferred a revision in the Court of Collector and in revision there is no bar in remanding the matter. He would further submit: looking to the application (Annexure P/2) filed by respondent No.2 before the S.D.0. it is clear that although in the heading "Section 113" has been mentioned but in fact the application has been filed under Section 107 and 242 of the Code and it is not correct that application was filed only under Section 113 of the Code, and therefore, order impugned does not call for any interference. t/" ;''l,- '^ 8. I have heard learned counsel for the parties. 9. Indisputably, all the Courts below have concurrently held that Section 113 ofthe Code cannot be invoked without consent of both the parties. A bare perusal of the order of Collector dated 18.03.2002 (Annexure P/5) would reveal that in fact the petitioner preferred an appeal under Section 44 (1) of the Code and the Collector has also passed an order treating the above case as appeal. Merely because in sonie line in the order the word 'revision' has been mentioned, it cannot be said that the Collector has decided the revision. F\irther, the proceedings under Secdon 107 of the Code can only be initiated before the Collector and not before the S.D.O. and under Section 242 of the Code proceedings can be initiated before the S.D.0. 10. In view ofabove, in the considered opinion ofthis Court, the direction of remand of the matter by the Board of Revenue is contrary to provisions contained under Section 49 of the Code and is not sustainable in law. 11. For the reasons mentioned hereinabove, the petition is allowed. Part of order impugned passed by the Board of Revenue whereby the matter has been reraanded by the Board of Revenue is set aside. However, respondent No.2 is at liberty to pursue his remedy under the relevant provisions before the appropriate authorities in accordance with law and if such application is filed by respondent No.2, in such situation, it is directed that fhe fSP. ~^' 'SS. concerned authorities shall decide the same in accordance with law, as expeditiously as possible. 12. No order as to costs. Sd/- N.K. Agarawal Judge .^:- ¥- /£-- _A—,>..- ^£