IN THE HON'BLE HIGH COURT OF CHHATTISGARHAT BILASPUR WRIT PETITION (227) N0. ?? 5 4 OF 2009 PETITIONER ^yj^^^r^&ty RESPONDENT / <0'-- ^% '.^w o',^ ^>y ^t^y '.ii>"w ^'w / V/ '~\ E- B! in Srat. Fateraa Begam Wd/o Late Ibrahim Hazi Shakor Occupation house Wife, Aged About 60 years, R/o Bagbahara, Ward No. 7, Lalpur Road, Tehsil & District Mahasaumnd, C.G. VERSUS 1. Idrish S/o Ibrahim Agcd about 54 Years 2. Shabbir S/o Ibrahim aged about 50 Years <' 3. Hanif S/o Ibrahim aged about 48 Years 4. Wahid S/o Ibrahim aged about 46 Years All R/o Main Road ScU-aipali, Post Saraipali, Thana Saraipali, District Mahaamund, C.G. r" _ . . - - , 5. State of Chhattisgarh, Through Collector, Mahasamund District Mahasamund (C.G.) f" 6. Board of Revenue, Chhattisgarh Bilaspur, Gircuit Court, Raipur, District Raipur (C.G.). 7. Naib Tahsildar, Bagbaliara , Tahsil Mahasatnund, District Mahasamund (C.G.) < -F^^ ^ (^ WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA -afea. .- -^ ^ y/7 / ... <%y4€/^ ^..•ssSi'a^-^y &;fv ^ fflGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra WritPetition r227> No. 5854/2009 PETITIONER RESPONDENTS Smt. Fatema Begam Versus Idrish and others Appearance: Shri Firoj Khan, counsel for the petitioner. Shri Vita-am Dixit, counsel for respondeats No.l to 4 who had earlier appeared on caveat pleads no instmctions. Shri Sanjeev Agrawal, PL for respondents No.5 and 7. WMT PETITION UNDER ARTICLE 227 OF THE CONSTmjTION OF INDIA ORAL ORDER (10.11.2010) PS:B:^^:ite? The petitioner is aggrieved by the order (Annexure P-1) passed by the Board ofRevenue on 1/10/2009. The order was passed on an application for transfer ofthe petitioner'sappeal pending before the Additional Commissioner, Raipur Division to any Additional Commissioner of Competent Jurisdiction. However, while deciding transfer petition leamed Board ofRevenue has dealt with the merits ofthe case and has disposed ofthe matter finally. (2) Leamed counsel for the petitioner would submit that there was no appeal pending before Board of Revenue, therefore it was not proper on the part ofthe said authority to have entertained the matter ^<on ments. 2- ^ (3) On perusal ofthe documents annexed with the writ petitioiL, it would appear that the petitioner had moved an application under seetion 30 ofthe C.G. Land Revenue Code, 1959 before the Board of Revenue for transfer of the appeal pending before the Additional Commissioner, Raipur to any other court. The appeal pending before the Additional Commissioner, Raipur was preferred to challenge the appellate order passed by the Sub Divisional Officer, Revenue Mahasamund on 8/10/2007. Thus, tfae second appeal was pending before the Additional Commissioner, Raipur. (4) On a reading of the impugned order, it would appear that the Board ofRevenue has mentioned in paragraph 1 ofthe order that the petitioner has moved an application under section 30 ofthe Code for transfer ofthe matter, however the Board ofRevenue appears to have proceeded with transfer petition as if it is a second appeal presented before it after recording consent ofboth the parties. (5) Section 44 (2) ofthe Code provides for filing a second appeal against an order passed by the Sub Divisional OfGcer to the court of Commissioner and against an. order passed by the Commissioner to the Board of Revenue. Thus, a second appeal against an order of Sub Divisional OfEcer does not lie before the Board of Revenue. It is settled law tfaat the parties to a litigation cannot conferjurisdiction on a court for making a decision when the provisions contained in section 44 (2) of the Code does not provide for any second appeal fbefore the board against an order of Sub Divisional OfGcer, neither the Board of Revenue was competent to hear and decide the appeal on merits nor was it proper to decide the case on merits when fhe board was hearing a transfer petition. (6) The power to transfer revenue case conferred to the board is provided under section 29 (1) ofthe Code. The said provision also does not provide that while hearing a transfer petition the Board can hear the matter itsel£if it deems fit or with the consent ofthe parties. (7) In the opinion ofthis court, the Board of Revenue should not have decided the matter on merits. The impugned order cannot be sustained in law. It deserves to be and is hereby set aside. (8) The matter is remitted back to the Board ofRevenue to decide the transfer petition afresh. (9) The writ petition succeeds and is allowed. ^ Sd//- Prashant Kumar Mishra Judge