^NI®1e''i~i%S"*'r IN THE HI6H COURT JUbICATURE AT BILASPUR WRrT APJ*EAl. N0 ^Q OF 2009 APPE6t.ANT: (Petitioner)* ^ Suresh Supta, son of Shri Banwari Lal ©upta, aged 48 years, resident of Choubey Colony, Rdipur Vs RESP0N&ENTS: ^•fefl 1 3'J%<»LlL-<^Lff ^y?^ '"^f. \^^y^ ^if^e'. ^'N-ov"':-? •• ^ -1. Aditya Jain, son of Shri Kamal Chand Jain, aged about 28 years, resident of 5, South Avenue, Choubey Colony, Raipur. -2. Rameshwar ©Baba, Son of Late Halalkhor, 'aged dbout 40 yesrs, resideht of Village Sorona, Raipur. /3. Ramu behrin, sonof Late Halalkhor, aged aboyt 38 years, resident of Village' Sarond, Raipur. 4. The State of Chhattisgflrh, through the Collector,Raipur; WRIT APPEAL UNDER SECtION 2 fl) OF THE CHHATTIS6AR)-1 1-1^6H COURT fAPPEA L TOOIVISION BENCH)ACT. 2006 HIGH COURT OE' GHHATTISGAJRH AT BmASPN DB:- HONELESHRII.M.OODDUSIgs HONTBLESHRIN.K.AGARWAL,JJ WRIT AK»EALN0.70 OF 2009 Suresh Gupta Vs. AdityaJain SB Others Judgraent for Gonsideration. Sd/- N.K.Agrawal Judge ^07/2010 Hon'ble Shri I. M. Quddusi <1 !\ Sd'- . _, IjA^ttddu^ 3ud&e Postfbrjudgmentonl3/07/2010 !1! 1 Ul •*. £ ? yS . :. -^ x' HIGH COURTOF CHHAmSGARH At BILASPUR WmTAPPEAl, N0. 70 OF2009 APPEIAANT RESPONDENTS Suresh Gupta Versus Aditya Jain and others I®;-HOM'BLESHRII.M.C»UDDUSl& HON'BLESHRIN.K.^GARWAL.JJ PRESENT:- Shri B.P. Sharma, Advocate for the appeUant. Shn Kisfaore Bhaduri, Advoeate, fbrthe i-espondent No. 1. Shri M.P.S. Bhatia, Dy. Gdvt. Adv. fbr the State/ respondent No. 4. ORDER (|9 -7-2010) Per Aearwal, J. 1. The appeUant has iiled this writ appeal against the dismissal of hisV itPetitioh(C)No. 147/2009 toy order dated 14-1- 2009 passed by the learhed Single Judge. 2. Brief facts necessary for the decision of the case are as under:- i. The mdther ofthe appellant nainely Smt.Savitn Devi (since deceased) had purchased 0.284 hectare (70 decimal) oflandwhich isapartofKhasraNo. 232/2 situated at yillage Sarona, P.C. No. 104, Raipur vide registered. sale deed dated 14-12-1981 from one Bulla alias Ghasia Sahu and gof her name mytated over the said land. After the death of appellant's raother, appellanf's name was broiight in the record of rights in her place. u. Qn 19-5^-2001, the appellant liled an application for demarcation of the land before the Tehsildar whieh wasdoneon 28-5-2005. According to the report of '- demarcationdated 14-5-2007, anexcess areaof .^s 1,,. ^ •<v 0.170 hectare (Kh. No. 232/4) has been entered into Khasra. PanGhsala. As per the report, total area of Khasra No. 232 as recorded in the Adhikar Abhilekh was 1.43 acre. In the Khasra Panchsala, the total area of Khasra No. 232 (232/1 area 0.170 hectare, 232/2 area 0.284 hectare, 232/3 area 0.121 hectare and 232/4 area 0.170 hectare) 0.749 is hectare which is mpre by 0.170 hectare than-recorded in the record of right. The entry in the record of right will Oiily taUy with the Khasra ientry if theland 232/4 area 0.170 hectarerecorded in the name of Halalkhor is omitted. It is also mentioned in the report that Toyta company is in pOssession of entire land of Khasra N0. 232 inch.iding Khasra No. 232/2. iii. Since the exeess eritry in the said area affects tftle of the appellant, he filed an applieation under Section 116 of the G.G. Land Revenue Code, 1959 (for short, hereinafter referred to as "the Code) for correction of entries in the revenue record i.e. Khasra Panchsala. The TehsUdar vide its order dated 30-12-2006 (Annexure P-3) prima facie held that order of mutation No. 133 dated 30-6-2006 needs review, sent the matter seeking permission of review to the Sub Divisional Officer concerried. iv. After obtaihing permission of the Sub Divisional Officer,' the Tehsildar issued notiee to the respondents. The respondents No, 2 and 3 remained absent despite hotice. The respondent No. 1 appeared through counsel, but did not fUe any repfy despite the Ia.st chanGe given t6 him andon 17-5-2007, the Tehsildar closed their opportynity of filing reply. After hearing the applicant, the TehsUdar passed the order dafed 31-5-2007 in which it has been held that:- ihi •<''s' •u (A) As per Sanshodhan Panji from 14-3-76 to 5-1-83 filed by the appellant vid-e mutation No. 60, after death of Halalkhor, names of Baba alias Rameshar son of Halalkhor, Ram son of Halalkhor, Derhin daughter of Halalkhor, minor Ramheen son of Halalkhor through guardian Basasin widow of Halalkhor were mutated in place of Halalkhor on Che land bearing Khasra No. 236/4 area 0.170 hectare and ndt on land bearing Khasra No. 232/4 area 0.170 hectare; (B) There is no legal evidence to show how the name OfHalalkhbr was entered in the Khasra Panchsala of the year 1993-94 upoh the land bearing KhasraNQ. 232/4 area 0.170 hectetre. It appears that by mistake in place pf 236/4 area 0.170 hectare, the land 232/4 area 0.170 hectare has been recorded. (C) D'uring the pehdency of the court proceedings, the respondent No. 1, 2 and 3 executed unregistered exchange deed on Rs. 50/- stamp exchanging their land bearing Khasra No. 232/4 area 0.170 hectare from the land bearing IChasra No. 163 area 0.036 hectare and on fhe strength of aforesaid unregistered exchange deed, got mutated their names in the revenue record; (D) As per the Record of Right and Khasra Panchsala, the area ofKhasraNo. 232/4 area 0.170 hectareis reeorded in the Panchsala Khasra in excess to the land recorded in the record of right which is .t/, -•1: •^ without any legalbasis.It appears that the aforesedd entry in the Panchsala Khasra is without any title over the above land; and (E) Set aside the mutation No. 133 dated 30- 6-2006 directing cotrection of entry in the Khasra Panchsala i.e. deletion ofnames of resporidehts No. 2 and 3 against Khasra No. 232/4 area 0.170 hectare and to score out the ehtry of Khasra No. 232/4 area 0.170 hectare recorded in the name of respondent No. 2 and 3 and to restore the name of respondent No. 1 in Khasra No. 163 area 0.036 hectare of land. i V. The first appeal and the second appeal preferred by the respondent No. 1 agsdnst the order of Tehsildar before the Sub Divisional Qfficer and the Additional Collector were dismissed vide their orders dated 20- 11-2007 and 31-3-2008 confirming the iindings and the order of the Tehsildar. vi. There-against the respondent Nq. 1 preferred revision under Section 5Q of the C. G. Land Revehue Code, 1959 before the Board of Revenue. The Board of Revenue vide its order dated 11-9-2008 allowed the revision and set aside the order passed by the subordinate revenue authorities in the instant matter reviving mutation No, 133 dated 30-6-2006. vii.. Feeling aggneved by the order of BoEird of Revenue, the appellant herein preferred a writ petition under Article 226/227 of the Constitution of India before leamed<Single Judge, which was registered as W.P.(C) No. 147/2009 elaimingthe fbUowing reliefs:- J it 3: A. A writ and/or an order in the nature of writ df mandamus do issue calling the entire records from the CQurts below pertainmg to the case of the petitioner for ifs kind perusal. B. A writ and/or an order in the naturepf writ of certiorari doissue quashing the itnpugned order dated 11-9-2008 passed in Revenue Revision Petition Np. RN/ 14/R/A-6 (A)/367/2008 between Aditya Jairi -v- Suresh Gupta and others and also order dated 6-11-2008 Review Case No. RW/14/R/A-6-A/72/08 between Suresh Gupra v- Aditya Jain and others'and be farther pleased to direct the aythorities CQnGemed restorihg the entries made in the land recordS in the facts and eircunistanees ofthecase." I viii.LeamedSingleJudgevidehisorderdated 14-1-2009 dismissed the writ petition with Uberty to approach ftle jurisdictional Civil Court if sq advised. Hence this appeal. 3. Shri B.P. Sharma, leamed counsel appearing for the writ appellant would submit that:- i. The Board of 'Revenue is not a Gourt within the meaning of Article 227 of the Constitution of India in essence leamed Single Judge decided the appellant's petitiori exerGising its jurisdietion under Article 226 of the Cohsfitution of India, thereaginst the writ appealismauTtainEtble ii. The writ petition has been filed by the petitioner iinder Article 226/227 ofthe Constitution of India claiming grant of Writ of certiorari and writ of mandamus against the respondents and, therefore, the petition in substance has been filed under Article 226 of the Cpnstitution oflndiaand the appeal there- ^ againstis maintainable; •SiSBB ^' ^ 6 \ iii. The order passed by the Board of Revenue is patently illegal on the face of record, Leamed Single Judge has erred in holding that the order of Bbard of Revenue is not peryerse pr Ulegal. 4.0n the other hand, Shri Kishore Bhaduri, leamed counsel appearing for the respondent No. I would submit that the writ appeal deserves to be disinissed on the following grounds:- i. Leamed Single Judge had passed the order in exercise of its jurisdiction under Article 227 of the Constitution of India, there-against a writ appeal is not niaintainable. ii. The case involves disputed question of facts which ean only be settled by the jurisdictional eivil|Court and not by the High Gourt in exercise of its extra ordinary siunniary writ jurisdiction. iu. The exchange deedwas registered deed. TheBpard of Revenue has no pbwer to declare it iUegal or void. The question of title is reqiured to be decided by the Civil Cotirt and, therefore, the order passed by the Board of Revenue cannot be said to be patently UlegEil or perverse. ' 5. We have heard leamed counsel for the parties. 6. Shri Sharma, leamed counsel for the appellant would submit that the Board of Revenue is not a Court, therefore, its orders are hot amenable to supervisory jurisdiction of this Court under Article 227 of the Constitution of India. For this, he placed reliance on the judgment of Hon'ble Suprerae Court in case of Nahar Industrial Enterprises8. In order to appreciate the above contention raised by Shri Sharma, it would be appropriate to .reproduce Article 227 of the eonstitution of India/ Section 5 of e.P.e. an^HSeet3|on^^Ii|S^^^^^;^^^ Revenue CQde^l^S^flBl'uisKiteallUEiisg-^ •^ "Article 227 ofConstitution [(1) Eyeiy High Court shall have superintendenGe over aU courts and- tribunals throughout the territories in relation to which it-ex&rcises jurisdiction.] ] (2) Without prejudiGe to the generality of the fdregoing provision, the High Coyrt raay— (a) call for retums from such •cburts; (bj^makeandissye general rules arid prescnbe fonns for regulating the pracfice and proceedings of such coiuts;and ' ~" (c) ^ prescribe fbrms m which books, entneg and^ accour^ by _ / the ofBcers of any such courts. (3) The HigK Gourt niay alsp setfle tables of fees to be allowed to the sheriff and aU clerks and officers of such _ eourts and t6 attomeys, advocates arid pleaders praetisuig therein: Provided that any rules made, forms prescribed or tables seftled linder claiise (2) prclause (3) shalTnofbe incpnsistent with the provisipii of any law fbr the tune^beuig in fbrce, ^nd shall require the previous approvalqfthe Crovemor. (4) Nothmg m this ar-ticle shaU be deemed to confer on a High Court powers of Superintendence over any court or tritounal coiistituted by br urider ariy law relating fo the ArmedForces." Section 5 Of the Code of Civil Procedure. 1908 " AppUcation of the Code to Revenue Courts.—(1]Where any Revenye Goiirts are govemed 'by the provisions of this Code in those matters ofproGedT-tre upon whieh any special enacfment applieable to them is silent, the State Govemnient !.[***] may, by notification in the Official Gazette, declare that any .portions of those provisions which are not expressly made applicable by this Code sUaU not apply to ttiose Courts, or shEdl only apply t6 them with such modificationS as the State Goveminent 2[* * *] mayprescribe. (2) "Revenue Court" insub-section (1) means a Court having junsdietion under any local law td entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having originaljurisdictioriunderthis Cpde to try such suits or proceedings as being suits or proceedings of a ciyilnature. Section 31 of the C.G. Land Revenue Code, 1959 ''Conferral of status of Courts on Board and Revetiue Officers:- The Board of a Revenue Officer, whUe exercising power zuider this Code pr any other enactalentibr the time being in force to enquire ihto or to decide EU-iy question arising for determination between the State Government L^! 1 . t and any person or between parties to any proceedings^shall be a Revenue Cotirt." ^ 7. As per Article 227 of the Constitution pf India, Every High Court shall have superintendence over "all courts" and tribunals throughout the territories in relation to which it exercises jurisdiction. As per Sectidn 5(2) of the C.P.C., ''Revenue Court" ineans a Court haying jiirisdiction under any local law to entertain suits or other proeeedings relating to the rent, revenue or profits Of lahd used for agricultural purposes, but does nbt include a CivU Court having original jurisdictiqn under the Code of Civil F'rQeedure to try such suits or proceedings as being siiits or proceedings of a civil natyre. Under Section 31 of the G.G. I^and Revenue Code, status of revenue court has been confen-ed to the Board of Revenue. ? 8. In case of Naliar Industrial Enterorises Lunlted -v- Hong Kdiig andSlianehai BanKIne CorBoration1 the Hon'ble Apex CDurt while consideruig the transfer jurisdictioh under Sectiori 22 to 25 of the C.P.C. for transfer of a case from the civil coiirt to debt recovery tribunal has held DRTs are neither civil courts nor courtssubordinate to the high Coiirt. The High Court ordinarily can be approaehed m exercise of its wnt jurisdietion under Article 226 or its jurisdiction under Article 227 of the Constitution of India. The High Court exercises Suehjurisdiction hot only over the courts but also over the Tribunals. (para 92). It was further held that the tenns ''tribuhal", "eourt" and the ''GiVil court" have been used m the C.P.C. differently. AU '"cburts'' are 'tribuhals" biit all tribunals" are not "Gourts". Similariy all "civil eourts are "courts'' but all ''courts" are not "civil courts". It is not much in dispute that the broad distihction between a ''court" and a ''tribuhal" is whereas the decision of the "court" is iirial the deGisibn of the-"tnbunal" may npt be. The "tribunal", however which is authorized to take evidence 6f witnesses would ordtnarily toe held to be a "court" within the; meaning of ' 2009(8)SCC^46 •^ • It- ^ ••'\.^ -^-^J ..: \ Section 3 of the Evidence Act, 1872. It includes not only Judges and Magistrates byt also persons, except arbitrators, legally authorized tb take evidence. M is an inchisive definition. There may be other forums which would also come within the piirview of the said definition. The same however woxild not m.ean that only because a tribunal has "all the trappings of a court", it would be a court. (Para 67 and 68). It ' was further held that Civil Procedure Codejtself lays down that the Revenue Courts would not be eourts subordiiiate to the High Court. The word ''civil eourt" vis-a-vis a court must be construed having regard to the text and context of the statute. (para 69, 71 and 73). 9. Hon'ble Apex Court in the above judgiient nowhere laid down the lawthat the order passed by the Board of Revenue or like other m^orities are not amenable to supqrvisory jurisdiction of the High Gourf under Article 227 of the Constitution. FO. Ift case ofL. Chaadra Kuniar -v- Unioa Qfladla and others2 Suprenie Court has held that the power yested in the high Gourts to exercise judicial supenntendenee over the decisions of all coiuts and tribunals within their respective jurisdiction is also part of its basic struGture of the Gonstitution. This is because a situation where the High Coiirts are divested of aU other judicial. functions apart frpm that of constitutional mterpretation, is equaUy to be avoided. (Para79). 11. The Supreme Court in case of S.K. Sarkar Member, Board of_Reveaue U.P., Lucknow —v-Vinav Chandra Mishra3 while deaUng with Section 10 of Gontempt bf Courts Act has held that under Article227 ofthe Constitution, the High Court has the power of supenntendence over all courts and tribunals throyghout the territory in relation to which it exerciseS jurisdiction. The court of Revenue Board, fherefore, 2 (1997) 3 SCC 261 3AIRl981Se.723 ^ .1 10 is a court subordinate to the High Coiirt; within the GontemplationflfS. 10 ofthe Act. 12. In view of above, as the High Court exercises its supervisory jurisdiction zmder Article 227 of the Gonstitution of India over all fhe eourts and tribunals throughout the territory in relation to which it exercises, which includes revenue court, therefore, the first Gontention raised by Shri Sharma is sans substance and in pur considered opinion the orders pf Board of Revenue are amenable to supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 13. The second question to be answered is whether in the facts and circumstances Qf the ease, the writ appeal fUed is maihtainable. Section 2(1) of the C.G. High Court (Appeal to t Division Bench)Act,2006,readsthus:- 5 "2. Appeal to the Dndsion Bench of the High Court from a judgment or order of one judge of the High Court made in exercise 6f original jurisdiction:- (1) An appeal shall lie from a judgment or order passed by pne Judge of the High Gourt in exercise of original jurisdiction T.mder Article 226 of the Cohstitution of India, to a Division Bench comprising of twoJudge of thesame High Court. Provided that no such appeal shall lie against an interloeutoiy order or against an order passed in exercise of supervisory jurisdiction urider Article 227 of the Constitution 6f India." 14. . A bare pen.isal of sub-seGtion (1) of Section 2 of the Act quoted above leaves no room for doubt that it allows a party aggrieved by a deGision of Single Bench of the High Court to appeal to Divisiori Bench of the High Court, if the Single Judge has rendered a judgment or passed an order in exercise of origihal jurisdicfion under Article 226 of the Constitution of India. Proviso to sub-section (1) of Section 2 fcv 11 expressly declares that no such appeat shall lie against an order passed in .exercise of supervisory jurisdietion under Article 227 of the Constitution of India. 15. It is therefore, clear that if the order is passed by a Single Jydge of the High Cottrt in exercise of original jurisdiction under Article 226 of the Constitution of India, an intra Gourt appeal would lie. On the other hand, if a Single Judge exercises power of superintendence, intracourt appeal would not becompetent. ' ' 16. The Supreme Court in case of Umaji Keshao Meshram and others -v- Radhikabai and another4in para 100, 101 and 103 has held as under:- "M 'The powers conferred by Articles 226 and 227 are separate and distinct and operate in dlfferent fields. The fact that the same result CEUI at times be achieved by two diHerent processes doesL not riiean that these two processes are the same. Their source and pngin are difierent and the inodels upon whieh they are pattemed are alsp different. The pqwer to issue writs under Artiele 226 is hot the same a& the power of superintendence under Article 227. The power ofsuperintendence conferred upon every High Court by Artiele 227 is a supervisory jurisdiction and is in addition to that conferred upon the High Courts by Article 226.1na proCeeding under Artiele 226 the person, authority or State against whoni the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or judgment of a sybordinate court or tribunal for th6 purpose of aScertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. By Article 226 the pbwer of issuing prerogative writs possessed by the Chartered High Courts prior to the commencement of the Gonstitution has been made wider and more extensive and conferred upon every High Court. The nature of the exercise of the power under Article 226, however, remains the same as m the case of the power of issuing prerpgative writs ppssessed by the Chartered High'Cpurts. A proeeeding under Article 226 is an original proceeding and when it concems civil rights, it is an original civil proceeding. A 4 1986 (SUPPL)SCC 401 12 proceeding under Article 227 is not an original proceeding. It was further held in para 107 ofUniaji's4 case that:- 107. Petitions are at times ffled both under Articles 226 and 227 pf the Gonstitytion. The case of Hari yishnu Kamath v. Syed A1vn.ad ishague (Afl? .?955 SC233/before this Court was of such a type. Rule 18 provides that where such petitiQns^are filed against orders of the Tribiuials or authorities specified in Rule 18 of Chapter XVII of the Appellate Sid-e Rules or against decrees or orders of cburts specified in that^ule, they shall be heard and .finaUy disposed of by a Single Judge. The question is whether an appeal wpuld Ue from thexiecision ofthe Single J'udge ih such a case. In oyr opinion, where the facts justify a party in filing an application either under ATdcle 226 pr 227 pf the Constitution, and the party ehooses to Gle his application under both these aryGlgs, in fairness andjustice to such par^ in order not to depnve him ofthe Valuable right of appeal the court ought to treat the applieation as being made uiider Article 226, and. if in deciding the ^inatter, in^ the final order ftie ^eourti ^ives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 6f the Letters Patent where the substantial part of the j order sought to be appealed against is under ArtiGle 226. Such was the view taken by the Allahabad High Court in Aicfel? iSiTigh v. Karan Singh(AIR1957All 414) arid by fhe Punjab High Court in J?a/ IHshan Jain V. T'utei £)ass(AS? 1959 Punj 291) and Barham Dutt v. Peoples' Coqperative Transport Society Ltd., New Delfu (AIR 1961 Punj 24)and'we are in agreernent with it. 17. The Suprenie Court in Sun/a Dey J?ai" v. i?am Chander i?ai5 after referring to the decisions in Custodian v. X/iara Saheb Abdul Shukoor (1961 (3) SCR 855), Nagendra Nath Bora v. Commr. of Hills Division (AIR 1958 SC 398, T.C. Basappa v. T. Nagappa (AIR 1954 SC 440) and Rupa Ashok Hurra v. Ashok Hwra (AIR 2002 SC 1771), held at paras 17, 19 ahd 25 as fbUows: '17. From the aforesaid enunciation of law it is • qmte vivid and luminescent that the pleadings in the writ petition, nature ofthe order passed by the leamed Single Judge, character and the coritour of the order, directions issued, nomenclature given, the jurisdictional prospective (sic perspective) in the constitufional context are to be perceived. It cannot be said in a hypertechnical manner fhat an order passed iri a writ petition, tf there is assail to the 2003(6) SGC 675. I 1 i •^ ^: 1<&J< 13 order emer@iig from the inferior tribunal pr subordihate eourts has to be treated all the time for all purposes to be iinder Article 227 of the Constitutipn of India. Phraseolpgy used in exercise of original jurisdiction- under Article 226 of the Constitution in Seetion 2 ofttie Act cannot be given a restncted and cohstriGted meaning because an order passed in a writ petition can tantamount to an orderynderArticle 226 or 227 ofthe Constitution of India and it wpuld depend upon the real nature of the order passed by the leamed. Single Judge. To elaborate; whether fhe learned Single Judge has exercised hisjurisdictipn under Article 226 or under Article 227 or both would depend upon variou-s aspects and inany a faeet as has been emphasised in the aforequoted deGisions of the Apex Court. The pleadings, as has been indicated hereinabove, also asszune munense Significance. As has been held in Surya Dev .Rctfl^ a wnt of certiorari can be issued under Article 226 of the Cpnstitution against an order of a tribunal pr an order passed by the suboi-dinate coutt. In qiuntessenti put in a strai^aeket fornrUla