Vit IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR fCHHATTISGARH') WRIT PETITION (Q N0. 4-/6-$"^OF 2007 PETITIONERS APPLICANTS ,.*^'^ ^^..-•" '^e&-"" <^tf ^w RESPONDENTS : NON-APPLICANTS 2. Smt. Dukalhin Bai Wife of Late Kunjlal, aged about 57 years, Occupation Agriculturist; Kunjlal Son of Koduram Verma, (Since Degd); tesident of Village Kenwachhi, Tahsil Bemetara, District Durg (C.G.). VERSUS Shiv Kumar Son of Kejau Verma; Ramnarayan Son of Kejau Verma; ^ "Both resident of Village Kenwachhi, Tahsil Bemetara, District Durg (C.G.). The Additional Collector, Bemetara, District Durg (C.G.). >':^V^S-V.^. ^"'^. v-^'!sii!». . ^yfi xif9!sw%: , 4, The Sub Divisional Officer (Revenue), Bemetara, District Durg (C.G.). The Tahsildar, Bemetara, District Durg (C.G.), •c' WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN THE NATURE OF MANDAMUS, CERTIORARI, PROHIBITION ETC. 1 a ^^f-S:^ ^/ ^SSi^KS ";-^ HIGHOOUKr OF CHHATTIS6ARH : BtU^PUR Sinate Bench: Hon'bteShri Manindra MohanShrivastava. J. WRIT PETITION (0 N0-41680007 PETITKMMERS RESPONDENTS Smt. Ctakalhin BaiandanoUier Versus Shiv Kumar and others. WRITPETITI®iUND6RARTICI.E227 OF THE CONSTITUTION OF INDIA Present: - Shri P.P.Sahu, counsel for the p^ttoners. Shri Viprasen Agrawal, counsel far rospondente No.1 and 2. Shri Sanjeev Kumar Agrawal, Pansl Lawyer for the State/Respondents No.3 to 5. ORDER (Passed on ...!.^... July, 2010) By this petition, under Articte 227 of ttie Con^ltuUon of India caitod in quesh'on the correctness, legality and valWity of order dated W07Q007 passed by Uie Board of Revenue, Circuit Bench, Raipur; 2. Facis giving rise to the aferesaid petiUon are ttiat an appNratton for mutation of lands bearing Khasra No.1194 admeasuring 0.10 aere, Khasra No.1635 admeasuring 0.18 acre and Khasra No.1417 admeasuring 0.40 acre situated at village Kenwchi was fited before the Tahsildar Bemetara by Dukhia Bai for mutation in favour of Shiv Kumar and Ramayan being sons of her sister Sukhni Bai. TahsiUar after drawing proceedings under Sectton 109 and ItO of the C.G. Land Revenue Code passed an order on 7/12Q(X14 for striktng of narae of Dukhia and mufating names of Shw Kumar and Ramayan. A. '"'^. ^^-•^/^ -^ '^^.7^^ ^ U ''^S&'c^^w: ^. ^ •-— Xl-^- ^, ^. '%... -^y ~~:'^.:.,..^—."';-1" >c) (. ^ 3. Against the aforesakl oreter dated 7/12ff004, pefidoners preferred an appeai before Sub-Dtvistonal Officer, Bemetara who ^de his order dated 7/6/2005, set aside the order passed by Tahsildar holeUng that the order of mutation was passed wtthout complyng with the mandatoy procedures prescribed under the iaw, without due notice and proper inquiiy. Against the order passed by the Sub-Divisional Officer in appeai, a revisfon was preferred btfore Uro Coilector, Bemrtara, who wde his order dated 3W1 iOWS, set aside the order passed in appeal by the Sub-Divisional Offlcer. 4. ^grieved by the order <rf Oollector passed in revision, another revision was preferred before the Boatd of Revenue by the p^tionere, whteh was dismissed ghnng rise to instant petifion before ttiis Court. 5. ^sailing the order passed by the Board of Revenue, teamed coureel for the petiUoner submitted that the Tahsildar committed gross Hle^lity and irregutarity in mutatlng the names of Shw Kumar and Ramayan in place of Dukhla Bai as before passing such an order, Ihe provisions under Saction i09 and 110 and aiso proinsfons contained in relevant rutes relaUng to mutaSon were not supplied wth and without proper Inquiry and withoul ttiere being any opportunity to interested pereons who daimed to be possesston of tand in their own right, the order of mutation was passed. The Sub-Dhrtsional Cfficer properiy eonsidered the aforesaid objecUons of the petitioner and dtor reeordftig categoricai flndings that the order passed in mutatton sirffere from serious illegainy as also in complete violatjqn of the prescribed procedure, the order was set aside by the Sub-Divisional OfBcer. It is (urther argued that no specific denial with regard to maintainability of objecflon raised before <he Sub-Divistonal Oflicer •<,<^.... ^a •"1: and order pa^ed by the Sub-Divisiwial Offlcer was in accordance wth the provisions contained m SectiQn 44 of the Land Revenue Code and even aflier tha petitioners were not party to the proceedings before ttie Tahsildar, the appeal at Iheir instance before the Sub-Dh/isional Officer was maintainabto under the taw. It is Turther submitted that taking into conslderation ttiat the case was remanded to the Tahsiidar for hokling proper inquiry and decidins the case on merits, there was no occasion for the revlsional authority namely the CoBeetor, ought not to have informed with the order of the Sub-Divisionai OfHcer passed in the ^»peal. it is also submitted thatthe revision preferred before the Collector itselfwould not maintainable, as the onler passed by the SuM3ivisional Officer was ai appealable one and therefore no revision would tie before the Cotiwtor and therefore the order passed by ttie Coltector was not in accordance wifli law. it has been contended by leamed counsel for the petitioner that the Board of Revenue wrongly held that peUtioners' appeal before the Sub-DMsional OKees was not maintainable without there being proper permission to file a»appeal as the petifioner was not a party to mutaUon proceedings betore ttie Tahsildar. 6. On the other hand, submission of leamed counset for respondents is that in view ofttie provisions contained in C.G. Land Revenue Code, 1959, the order of Tahsildar passed in mutation was in accordance with taw. There was no illegalify or irreyilarity in drawing midafon pr<x»edlngs. The provistons of Secfion 1M and 110 of the Land Revenue Code and Mutatton rules were duty compiied with. It is further submitted that the order passed by the Sub-Dhnsfonal OfBcer wtthout perusal, in as much as the petitioners were not party to proceedings before Tahsildar and therefore their instance betore Sut»-D'wistonai Officer are incompetent. It is IseUy contsnded that the €^>lledoras well as the :«?'?fe. ;i -.B" '<^"'.<--' Board of Revenue have taken a view that in view of the provisions contained in Land Revenue Code, an appeal was not maintainable whteh Is based en the decision of High Court as well as the Board of Revenue and thwefore the \riew taken by the Collector in reviston as also by the Board of (^venue does not suffer from any jurisdictional error or peiversify so as to calt tor interfeFenee by this Court in exercise of powers under Ariicto 227 of the ConsUution of India. 7. The AddiUonal Collector whiie entertaining Fevlston flled by the respondente heid w'de its order dated 30/11/05 (Annexure P-7) that as the petiUoners were not party before the Tahsildar in mutation proceedings, th^ could not have inwked the femedy of appea! without permission ofttie appeliate Court reiying to the orders / judgments of the Board of Revenue roported in 1993 Revenue Nimaya Note No.2^ and 1986 Revenue Nima^ Note N®.294. The Board of Revenue has aiso confirmed the aforesakl view of the Coilectw. 8. Therefore, the quesUon which arises for consideratton brfore this Court is whether an appeal ffled by the petiUoners before the Sub-Dwisional Officer was maintainable in view oTtheslatutoryscheme ofappeal and giafted under Section 44 of the C.G. Land Revenue Code, 1959. A reading of provision contained in Section 44 of the Act of 1959 would show that it does not specifeally provicte ^ to who can fife the appeal. Alf that has been provided under the section is that an appeal shall lie froni every original oider under ths Court or rutos made thereunder specff^ng categoiy of the orders underolauses a, b, c, d, e, f and g. In the case oTAbdul Karim Khanand others v. MunicJpalCommittee, Raipur 1866 MPU, 58 itwas held - °13.......The normal judicia! concept of a person aggrieved by any order necessarily postulates that the said 'S^iSsS^S:;^^^^:^^^^^!^^^^^^^^^^-^^^^^ f'^...\: sSW;- ". •'•^^^:'^ss:^-^ ';<^^K^°- "^^ -•' y-y persor»must be a party to the proceedings In which the ontor was passed and by which he feels aggrieved." In the case of Phool Singh v. Coltector, Vidisha and othws,1986 MPLJ, 632 relying upon the aforesakl judgment of the Supfeme Couit, tt was held tw the High Court that as the petitioners therein were netther parties to ttie proceedings but were atso not persons affected, therefore, they couM not ayaii remedy of appeal. 9. inthecaseofStateofPunjabandottiers v. AmsrSingh andanotter, AIR 1974, Supreme Court 994, it was held - "Firstly there is a catena of authortUes whieh, following the doctrine of Lindley, L.J-, in re Securities Insurancs CQ., (1894) 2 Ch 410 have iaid ctown <he rule thal a person who fe not a party to a decree or order may with the leave of Uie Court, prefer an appeal from «ichdwree or oKter if he fe either bound by the oreler or is aggria/ed by it or is prejudicially affected by tt. As a rule, teawe to appeal wilt not be refused to a person who might have baen made ex nominee a party-see Province of Bombay v. W.t.Automobile Association.AIR 1949 Bora 141; HeeraSingh v. Veerka.AIR 1S58 Raj 181 and Shivaraya v. SicUamma, AIR 1963 Mys 127; ExecutiveOtficer v. RaghavanPillai, AIR 1961 Ker 114. In re B, an Infant (1958) 1 QB 12; Gswinda Menon v. Madhairan Nair, AIR 1964 Ker 235. From the afor^aid well settled iegal posltions, it is daar that one who is not a party to proceedings in the Lower Court can prefer an appeat before the higher Court if he is eittier bound by the order or is aggrleved by it or Is prs- judiciallyaffected by it. 10. Now the question which may arise for cofKideration is wheUisr the petiUoners can be said to be persons aggrieved. Facts of the case as revealed from the records and various proceedings show that ttie petffioner appears to be in possession of land which is subject matter of mutation oo the ^ength af the Registered Wiilatieged to be executed <n favour of peUtioner No.1 in respect of a Q .t:/'u. ^^, .y , ! part <rf land in dispute. Therrfore, II is elear ttiat the peUBoneEs are th^e who can be said to be aggrieved by Ihe order passed by the TahsUdar In mirtation proceedings. The general meaning of expression 'pwson aggrieved' eame for consideraUon in the case of Adl Pherozshah Gandhi v. H.M. Seavai, Advocate General of Maharashtra, AiR 1971 Supreme Gmirt, 385 wherein toe Supreme Court has held - "12........ From these eases it is apparont Bwt any peison who feels disappointed with the result of tt»ecase is not a 'person aggrieved'. He must be disappointsd of a bfm^Bt »Aichhe would have recehred if the order had gone the other way. The order must cause him a legal grieyamse i^ wrongfully depriving him of something. tt is no doubt a legal grievance and not a grievance about material mattere but his (egal grievance must be a tendency to injure him." From the above discussion and the decfeions eS the Suprem®Court.it is to be held that though the pefiUoners are aggrieved, as they were not party to proceedings before the Tahsiidar, they have preferredappeal withthepenui^ion of the appellate authority. In the present case, petffioneis preferred appeal vrittiout obtaining any permisston of the appellate authority. The CoBectar as weil as the Board of Revenue held in their order that as no permission was obtrined, the appeal filed atthe instance ofthe petitionefs before the Sub-Dwisiona) Offleer was inconipetent and on such finding, theorder of the SuMIh/isional Offlcer has been set aside. 11. Leamed counsel Jor ttie peSUoner has relied upon ttie judgment in the ease of Lakshmi Narain Mandal and odiers v. State of Bihar and others, 2003 (7) SCC, 207, Bhagmal v. M.P. Cooperative Marieeting & Consumer Federation Ltd. and others, 2003 (11) SCC 727 and BmiyaBai v. Sikandar Khan,1993 M.P.L.J., 738 contended <hat e principtes teid down with rega»dto approach to be adopted, whiie coi»idering the applieation for cendonation <rf ::..t.^^^Jy!'®^UEli;^fe^ . ^••"'y.. deiay are appiicabie in the preseri: case. T1ie submission of leamed ceunsel is misconcewed in law. Submfssion of leamed counset for the petiUoner that flling of appeal without permission was merely a technicai flaw and on that ground ttie Coilector and Board of Revenue ought not to have heid the order of SDO ijtegal, cannot be accepted as no appeal can be maintained wiihout permission of the appeiiate authority and such requirement cannot be ignored. Grant of permission to file appeal is not an empty formality. 12. I am, therefore, of the eonsidwed opinion that the Colteetor as weit as the Board of Revenue did not commit any jurisdictionat errer or paverstty and therefore there is no ground made out to intBrfere with the orders impugned in this pettUon in exereise of powere underArttele 226 and227 ofthe ConsUtuBon <rf india. The petWion is therefore dismissed. ^..^s—» Disefrii