The proviso to sub-Section (3) of Section 49 of the Land Revenue Code does not apply if the first appellate authority has not decided the case on merits.

ORDER :

1. The petitioner has filed this writ petition challenging the order dated 08.09.2023 passed by the Board of Revenue in Revenue Revision Case No. RN/12/R/A-6/220/2022 (Devnarayan Jangde Vs. Yusuf & Ors.) whereby learned Board of Revenue has dismissed the Revenue Revision affirming the order passed by the Commissioner, Raipur Division in appeal filed under Section 44 (2) of the Chhattisgarh Land Revenue Code, 1959 (hereinafter after referred to as “Land Revenue Code”).

2. Facts relevant for disposal of this writ petition are that one appeal is preferred by respondent No.7 challenging the order of mutation dated 24.04.2007 under the provision of Section 44 (1) of the Land Revenue Code along with an application for condonation of delay in filing appeal under Section 5 of the Limitation Act. The First Appellate Authority i.e. Sub Divisional Officer/respondent No.4 dismissed the application under Section 5 of the Limitation Act for condoning the delay as also the appeal consequent thereof vide order dated 19.08.2020. Order passed by the Sub-Divisional Officer (R) dismissing the first appeal on the ground of limitation was challenged by respondent No.7 in second appeal under Section 44 (2) of the Land Revenue Code. Second appellate authority while hearing the parties allowed the appeal recording reasons therein that initially the order of mutation was challenged by one Hameeda in the year 2018 in which the appellant therein was also party. However, the said appeal was withdrawn in pressure and only thereafter the appellant therein filed appeal before the SDO (R) and while observing so, further held that the first appellate authority erred in dismissing the application under Section 5 of the Limitation Act for condoning the delay in filing the appeal and allowed the appeal. After setting aside the order passed by first appellate authority, directed the SDO (R) to decide the first appeal on merit. The order of the Commissioner in second appeal was put to challenge by petitioner, before the Board of Revenue in Revenue Revision on the ground mentioned therein. Board of Revenue dismissed the revision considering the facts of the case.

3. After dismissal of revision, petitioner has filed this writ petition primarily on the ground that the appellate authority is not having jurisdiction to remand back the case to the subordinate Court in view of the proviso to sub -Section (3) of Section 49 of the Land Revenue Code. Referring to sub-Section (3) of Section 49 of the Land Revenue Code, it is argued that if the appellate authority comes to the conclusion that order passed by the subordinate Court is erroneous or some material evidence has not been recorded, then the higher Court after obtaining evidence is to decide the case on merits and therefore the second appellate authority i.e. Commissioner erred in directing first appellate Court to decide the appeal on merits. The Commissioner exceeded its jurisdiction beyond its powers and functions. The Board of Revenue and the Commissioner have made the entire system as mockery acting as per their own will when the provision specifically bars for remand of case to lower Court.

4. I have heard learned counsel for the petitioner, perused the documents annexed along with writ petition and also glanced the provision under Section 49 of the Land Revenue Code.

5. Before proceeding further, I find it appropriate to extract the provision under Section 49 of the Land Revenue Code as under:-

“49. Power of appellate authority. - (1) The appellate authority may either admit the appeal or, after calling for the record and giving the appellant an opportunity to be heard, may summarily reject it :

Provided that the appellate authority shall not be bound to call for the record where the appeal is time-barred or does not lie.

(2) If the appeal is admitted date shall be fixed for hearing and notice shall be served on the respondent.

[(3) After hearing the parties, the Appellate Authority may confirm, vary or reverse t