The High Court set aside a Board of Revenue order allowing a state review petition. The Court held the Board exceeded its jurisdiction by rehearing an appealable case instead of correcting a patent error, constituting an abuse of process.
The order dated 14.08.2015 passed by the Board of Revenue was set aside as erroneous and contrary to law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP(227) No. 913 of 2015
---- Petitioners/ Non-applicants
Versus
---- Respondents/Applicants
For the Petitioners : Smt. Renu Kochar, Advocate. For Respondent / State : Shri Ajay Kumrani, P.L.
Hon'ble Shri Justice Rakesh Mohan Pandey ORDER
06.07.2023
1. The petitioners have filed this petition challenging the order dated 14.08.2015 passed by the Board of Revenue, Bilaspur, District Bilaspur (C.G.) in Revenue Revision Case No. RW/02/R/A-6/25/2012 whereby the review application preferred by respondent No.1/State of Chhattisgarh has been allowed and the order dated 30.04.2010 passed by the Board of Revenue, Bilaspur, Chhattisgarh in Revenue Revision Case No. RN/07/R/A-6/154/ 2010 has been set aside.
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2. The facts of the case are that the petitioners are the owners of the land situated at Village Gatori, Patwari Halka No. 15, Khasra No. 299, admeasuring 2.44 acres; Khasra No. 342/1 admeasuring 19.16 acres and Khasra No. 343 admeasuring 3.85 acres, in total 25.45 acres. The land in question was recorded in the name of Ramsharan S/o Bakhari, Ramkali W/o Bakhari, Bisachin W/o Lakshman, Bakhari S/o Lalji, Bhagwat Prasad S/o Jhadi and Shyambai W/o Bhagwat. After death of Bhagwat, name of Shyambai was recorded in the revenue records. The petitioner Nos. 2 and 3 are the legal heirs of Ramsharan, the petitioner Nos. 4, 5 and 6 are the legal heirs of Fekulal and petitioner No. 1 is the legal heir of Bhagwat whereas, Bisahit W/o Lakshman, was issue-less. The names of the ancestors of the petitioners were recorded in the revenue records including Mishal Bandobast . An application was moved by the petitioners under Sections 109, 110 of the CG. Land Revenue Code, 1959 before the Naib Tehsildar for recording of their names in the revenue records, however, the Naib Tehsildar on the basis of the report of the Patwari, held that the above land is recorded in the name of State Government as water body area and thus vide order dated 12.3.2010 rejected the application preferred by the petitioners.
3. The petitioners preferred revision under Section 50 sub-section (8) of the CG. Land Revenue Code before the Board of Revenue and vide order dated 30.04.2010, the revision preferred by the petitioners was allowed and the order was passed to record the names of the petitioners in the revenue records.
4. Respondent No.1 preferred review under Section 51 of the CG. Land Revenue Code before the Board of Revenue on the ground that no
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enquiry was conducted by the Revenue Authorities prior to passing of the order dated 30.04.2010; therefore, the petitioners ought to have preferred an appeal against the order of the Naib Tehsildar.
5. Learned Board of Revenue vide order dated 14.08.2015 allowed the review application preferred by the State Government on the ground that the petitioners ought to have moved an application under Section 57 and not under Section 110 of the CG. Land Revenue Code. The Section 57 deals with State ownership in all lands and the power in this regard has been conferred upon the Collector. It is further observed that the land was recorded in the name of the State Government and this fact was never challenged by the petitioners. It is further observed that the presumption regarding entries made in the land records as provided under Section 117 of the CG. Land Revenue Code would apply until the contrary is proved. The Board of Revenue further observed that the revenue records of the year 1964-65 do not contain signature of the authority, therefore, the document is suspicious. It is also observed that on 27.04.2010, a revision was preferred before the Board of Revenue and on 30.04.2010 the final order was passed which reflects malafide and thus, learned Board of Revenue allowed the review petition and recalled the order dated 30.04.2010.
6. Learned counsel for the petitioners would submit that the lands were recorded in the name of ancestors of the petitioners; application was moved under Sections 119-110 of the CG. Land Revenue Code before the Naib Tehsildar and the same was rejected on 12.03.2010. Thereafter, a revision was preferred before the Board of Revenue and the same was entertained, thereafter final order was passed in favour
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of the petitioners on 30.04.2010 whereby the order passed by the Naib Tehsildar was set aside and the revenue authorities were directed to record the names of the petitioners. She would further submit that the power of review cannot be exercised where the order passed by the authority can be challenged before the higher authority and where efficacious remedy is available; also there is no error apparent on the face of the record therefore, the order passed by the Board of Revenue dated 14.08.2015 is liable to set aside. She has placed reliance upon the judgment of the Hon’ble Supreme Court in the matters of Parsion Devi and Others vs. Sumitri Devi and Others, reported in (1997) 8 SCC 715 , Haridas Das VS. Smt. Usha Rani Banik & Ors., reported in AIR 2006 SC 1634 and Kamlesh Verma vs. Mayawati and Ors., reported in (2013) 8 SCC 320.
7. On the other hand, learned counsel for the State would submit that within four days the revision preferred by the petitioners was allowed by the Board of Revenue in a hasty manner. The petitioners did not challenge the order of mutation whereby the lands in question were recorded as government land, instead the petitioners directly approached the Board of Revenue whereas, there was remedy to prefer an appeal under Section 44 of the CG. Land Revenue Code. He would also contend that the application moved under Sections 109-110 of the Land Revenue Code before the Naib Tehsildar was not maintainable at all. He would also submit that the orders which are without jurisdiction are considered as nullity and the entire exercise of jurisdiction by the Board of Revenue while entertaining the revision preferred by the petitioners amounts to abuse of the judicial process, therefore, learned Board of Revenue rightly allowed the review petition
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preferred by the State Government.
8. I have heard learned counsel for the parties and perused the documents.
9. In the present case, the Board of Revenue has exercised the powers of review while passing the order dated 14.08.2015 whereby the earlier order dated 30.04.2010 has been recalled. From the pleadings, it emerges that the lands in question were recorded in the names of ancestors of the petitioners in the revenue records and without any notice; the property was recorded in the name of State Government as water body area. The petitioners without knowing this fact moved an application for mutation under Sections 109-110 of the CG. Land Revenue Code before the Naib Tehsildar and the same was rejected vide order dated 12.03.2010. In the mutation proceeding, the Naib Tehsildar called a report from Patwari and in the report, the fact was disclosed that the lands which were recorded in the names of ancestors of the petitioners, had been recorded as government land under water. Thereafter, the petitioners preferred a revision before the Board of Revenue and the same was allowed.
10. The Board of Revenue exercised the powers of review provided under Section 51 of the CG. Land Revenue Code. Section 51(2) of the CG. Land Revenue Code says that no order shall be reviewed except on the grounds provided for in the Code of Civil Procedure, 1908. Order XLVII Rule 1 of the CPC deals with review and the same is reproduced herein below:
(a) by a decree or order from which an appeal is allowed, but
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from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.”
11. The power of review can be exercised on an application of a party and if an aggrieved person brings new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason.
12. The Hon’ble Supreme Court in the matter of Parsion Devi (supra), in paragraph 9 held as under:-
“ 9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise."
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13. It is well-settled principle of law that under the garb of review, the matter cannot be reheard and corrected in an appeal. If an error is not self evident and has to be detected by process of reasoning then it cannot be rectified while exercising power of review.
14. In the matter of Haridas Das (supra), the Hon’ble Supreme Court held that in order to appreciate the scope of review, Section 114 of the CPC does not postulate rehearing of the dispute between the parties. It is also held that if the aggrieved party has adequate and efficacious remedy, the Court should exercise the power to review its order with greatest circumspection. Paragraph 13 of this judgment is as under:
“ 13. In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. This Court in M/s. Thungabhadra Industries Ltd. (in all the Appeals) v. The Government of Andhra Pradesh represented
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by the Deputy Commissioner of Commercial Taxes, Anantapur, [AIR 1964 1372] held as follows:
"There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which states one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."
15. In the matter of Kamlesh Verma (supra), the Hon’ble Supreme Court
20.2 as under:
“20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1 When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him ;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki, reported in AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, reported in AIR 1954 SC 526 to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd., reported in (2013) 8 SCC 337
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
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(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time
of arguing the main matter had been negatived .”
16. Considering the facts and circumstances of the present case and in light of the judgment passed by the Hon’ble Supreme Court in above discussed matters, it appears that the Board of Revenue has exercised the powers of appeal while hearing the review application. The Board of Revenue has upset each and every findings which were recorded in the order dated 30.04.2010. Respondent No.1 had an opportunity to challenge the order passed by the Board of Revenue dated 30.04.2010 before this Court by filing Writ Petition but instead review petition was filed and same was entertained by the Board of Revenue. The facts which have been taken into account by the Board of Revenue were available at the time of hearing of revision petition and no new and important evidence was brought into the notice of the Board of Revenue. The Board of Revenue has also discussed the law and judgments passed by the various Courts. Thus, applying the law laid down by the Hon’ble Supreme Court in the above referred authoritative pronouncements, I have no hesitation to hold that the order passed by
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the Board of Revenue in exercise of the powers under Section 51 of the CG. Land Revenue Code is erroneous and contrary to law therefore, the order passed by the Board of Revenue dated 14.08.2015 is hereby set aside.
17. The State Government/respondent No.1 would be at liberty to challenge the order before appropriate forum, if so advised.
18. Accordingly, the writ petition is allowed. No cost(s).
Sd/-
(Rakesh Mohan Pandey) Judge
Nimmi
3 issues framed by the court
Whether the Board of Revenue could exercise its power of review to re-hear the matter already decided in a revision petition.
Whether the errors alleged by the State were patent errors apparent on the face of the record or errors requiring reasoning.
Whether the review order violated the principle that a review is not an appeal in disguise.
Colour shows how this judgement treated each authority
Parsion Devi and Others vs. Sumitri Devi and OthersExplained¶45
(1997) 8 SCC 715 · Who else cites this
Haridas Das VS. Smt. Usha Rani Banik & Ors.Explained¶48
AIR 2006 SC 1634 · Who else cites this
Kamlesh Verma vs. Mayawati and Ors.Explained¶67
(2013) 8 SCC 320 · Who else cites this
2 provisions across 2 enactments
Renuka Mishra
Vyasnarayan Tiwari
Shivnarayan Tiwari
Ramkumar
Ashawni Kumar
State Of Chhattisgarh
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
