: n.. /\|YtEN3£D CAUSE TITLE IN THE HIGH COURT OF CHHATTISGARHAT^ILASPUR W.P. No._3084 QF 2005. (^ PETITIONERS :1. Parmanand Das, S/o. late Khageshwar Das, aged about 33 years, la. Smt, Krish Priya Das, W/o. late Khageshwar Das, aged about 72 years, <? 2. Brishabh Bhoi, S/o. Dhanurjay, aged about 67 years, Bo1;h resident of Village Barihapali, Tahsil Basana, District Mahasamund, (C. G.j VERSUS RESPONDENTS : 1) State of Chhattisgarh Through : Revenue Secretary D.K.S. Building, Raipur, (C. G.) 2) The Board of Revenue, Chhattisgarh, Through : its Chairman Circuit Court Raipur, Tahsil and Distt. Raipur (C. G.) 3) The Collector, Mahasamund (C.G.) 4) Sub Divisional Officer, (Revenue), Saraipali, Talisil Saraipali, District Mahasamund (C.G.) 5) Puran Singh, S/o. Jogo Singh, aged about 60 years, resident of Barihapali, Tahsil Basna, District Mahasamund (C.G.) 6) Tokhram, S/o. Banarsee Das, resident of Barihapali, Tahsil Basna, District Mahasamund (C.G.) WRJT _PETITION UNDER. ARTI_CLE 227_ OF _THE CPNSTITUTIQN QP INDLA FOR ISSUANCE OF WRIT OR WRITS, ORDER OR ORDERS, DIRECTION OR DIRECTIONS UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE fflGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra PETITIONERS RESPONDENTS Writ Petidon No. 3084/2005 : Khageshwar Das and another Versus : State of Chhattissarh and others Appearance: Shri L.C. Das, counsel for the petitioners. Shri Vinod Tekam, Panel Lawyer for respondents No.l, 3 and 4. Shri Sunil Sharma, counsel for respondentNo.5. Shri Ratnesh Kumar Agrawal, counsel for respondent No.6. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ORAL ORDER (8.09.2010) The petitioner has challenged the order passed by the Board of Revenue on 21 June, 2005 (Annexure P-1) by which the revision preferred by respondent No.5 has been allowed and the Collector, Mahasamund has been directed to reopen the matter and review the order passed by the Additional Collector, Raipur on 12/08/1972. (2) Respondent No.5, Puran Singh moved an application before the Sub Divisional Officer, Revenue, Saraipali on 7/10/1981 under section 170-B ofthe Chhattisgarh Land Revenue Code for declarin^ the transaction as null and void and for reversal of land in his favour. The Sub Divisional Officer enquired the matter and found that the transaction is bonafide. This order was passed on 8/08/1985. The Additional Collector, Raipur allowed the appeal preferred by tribal -f'..- jf « •ii>]> Vtfcs-lSf' -2 Cl vide its order dated 29/12/1986 and remanded the matter for re- enquiry. Matter was farther taken up before the Commissioner, Raipur Division who directed that the tribal holders be impleaded in the matter and the Collector, Raipur should initiate suo motu review proceedings. (3) The Additional Collector, Raipur reopened the matter and vide its order dated 20 June, 1989 remanded Ifae matter for re-enquiry to the Sub Divisional Officer, Mahasamund. On remand, the Sub Divisional Officer, Mahasamund recorded statement of witnesses and passed an order on 18/09/1991 directing reversal of land to the original tribal holder. (4) Matter was again taken up in appeal before the Collector, Raipur who vide its order dated 17/09/1996 allowed the appeal and again remanded the matter to the Sub Divisional Officer, Mahasamund for holding a detailed enquiry. The Sub Divisional Of&cer again proceeded to hold a detailed enquiry and passed an order on 26/03/1997 holding that the respondent No.5, Puran Singh does not belong to Gond Tribal community and is infact belongs to Beldar caste and thus is not entitled to move an application under section 165 (6)/170-B of Chhattisgarh Land Revenue Code. The original application dated 7/10/1981 was thus dismissed. (5) Puran Singh preferred an appeal before Collector, Mahasamund which was dismissed by order dated 19/03/2002. It is this order of the Collector, Mahasamund and the Sub Divisional -3 Officer, Mahasamund which were under challenge before the Board ofRevenue. (6) Counsel for the petitioner has argued fhat the revision petition was not maintainable before the Board of Revenue. He would farther submit that the respondent No.5 belongs to Beldar caste and is not tribal, therefore his application under section 170-B was not maintainable. He would forther submit that the Board of Revenue could not have set aside a finding of fact recorded by Sub Divisional Ofificer in exercise of its revisional power. He has strongly urged that in any case the order granting pennission passed by Additional Collector, Raipur on 12/08/1972 could not be ordered to be reviewed after lapse ofmore than 30 years. (7) Leamed counsel for the respondents No. 1 to 5 have opposed the prayer and submitted that the order passed by Board of Revenue does not call for any interference and that the earlier orders passed by the Sub Divisional Officer and the Additional Collector have not recorded correct fmdings. Counsel for respondent No.6 has supported the case of the petitioner. He would submit that the revisional authority has no power to remand the matter. (8) In the order passed by Sub Divisional Officer, Saraipali on 26/03/1997 reference has been made to the statements of Gajadhar Dholo, the Kotwar ofthe Village. The said Kotwar has stated that the forefathers of Puran Singh were Beldar, however they have now started refemng them as Gond. Witness Samar Singh has also stated ^SK^V ^'•ttia. s ^ iB 'vss'i.stss^' -4- ,^ that ancestors of Puran Singh were Beldar and that he himself belongs to Gond Tribal community and they have no relation of meals and marriage meaning thereby that they have no relation of marriage in between the members of Beldar and Gond community. Other witaess namely Narayan and Anand Singh, both belonging to Gond community, have also stated that Puran Singh belongs to Beldar caste. The Sub Divisional OfGcer, Revenue after referring to the documents and statement of witnesses recorded the finding that Puran Singh belongs to Beldar caste and is not a tribal. The Sub Divisional Officer also referred to the entries made in the Misal Bandobast and in the sale deed wherein the caste ofrespondentNo.5, Puran Singh or his ancestors is mentioned as Beldar. This finding of fact has been afGrmed by the Collector, Mahasamund. The Collector also referred to the entries made in the Misal Bandobast and registered lease deed as also stetement of witnesses including the statements made by the witnesses who belong to Gond community to hold that the order passed by the Sub Divisional Officer does not suffer from any infinnity. (9) The Board ofRevenue, without setting aside the finding of fact recorded by the Sub Divisional Officer and the Collector has held by the impugned order that when the issue aboutthe caste ofrespondent No.5, Puran Singh was not raised in the earlier rouad oflitigation, the same cannot be reopened and fhe petitioners i.e. the purchasers /'• .->/' -s' cannot be allowed to plead that Puran Singh does not belong to tribal commumty. (10) In the opinion of this court, the findings recorded and the reasoning assigned by the Board of Revenue is contrary to law and the same caimot be sustained. The Sub Divisional Officer, Revenue, Saraipali passed the order dated 26/03/1997 in pursuance to the order ofremand passed by the Additional Collector, Raipur on 17/09/1996. This order ofAdditional Collector, Raipur was never challenged by any of the parties either before Commissioner or before Board of Revenue. Thus, this order of Additional Collector, Raipur remandin^ the matter for re-enquiry to the Sub Divisional Officer has become final and binding between the parties. Thus, the Board of Revenue was not correct m saying that the matter could not have been reopened by the Sub Divisional OfGcer. A subordinate revenue authority is bound by the orders passed by appellate authority. (11) The Sub Divisional OfGcer, Revenue has referred to and discussed the oml as well as documentary evidence available on record to record a finding of fact that the respondent No.5 belongs to Beldar caste. Reference has also been made to the entries made in tlie Misal Bandobast of the year 1929-30 and registered lease deed in which the ancestors of the respondent No.5 have been referred as Beldar. The Board of Revenue has not expressly set aside the findin^ of fact recorded by Sub Divisional OfGcer and affirmed by the Collector, Mahasamund, It is settled law that in exercise ofrevisional 6 ^.^^4^ ?<^1 fa.'Wi ;v^ -A jurisdiction the Board of Revenue is not entitled to set aside a finding of fact unless the said finding is so perverse that no person of ordinary prudence would record such a finding on the basis of evidence on record. The Board ofRevenue has not mentioned that fhe finding is perverse. Thus, the Board of Revenue could not have set aside the finding reeorded by the Sub Divisional OfGcer and the Collector, Mahasamund. The Board of Revenue has committed another illegality by reopening the issue regarding grant of permission by Additional Collector, Raipur on 12/08/1972. This permission to reopen the matter has been granted after about 33 years fi-om the date of grant of permission. In the matter of State of Gujarat Vs. Patel Raghav Natha and ofhers, AIR 1969 SC 1297 Hon'ble Supreme Court has held that power to reopen the matter and exercise suo motu revisional proceedings should be exercised within reasonable time. Even otherwise, it was no bodies case at any point of time right from October, 1981 when the application was moved by Puran Singh for the first time that the permission itself was not in accordance with law. At least it does not reflect from the copies of the orders placed on record of this writ petition. In view of law laid down by the Supreme Court in the matter of State of Gujarat Vs. Patel Raghav Natha and others (supra) the order passed by the Board of Revenue directing the review of the Additional Collector, Raipur Order dated 12/08/1972 is also found to be illegal. (12) In the resull, the writ petition sueceeds arid is allowed. The order passed by the Board ofRevenue is set aside. (13) No order as to cost. Sd/- Prashant Kumar Mishra Judge