ORDER

This petition has been filed under Article 227 of the Constitution of India challenging the order Annexure P-1 dated 09.2.2017 by the Board of Revenue, Gwalior in Revision No. 2761-I-2016. By the said order, the order of allotment dated 15.5.2002 in favour of the petitioners has been set aside, so also the appellate order dated 25.7.2016 whereby the said allotment was affirmed.

2. The learned counsel for the petitioner submits that the State Government had framed a scheme dated 23.10.1999 (Annexure P-2) for allotment of Governent land to landless persons. Allotments were made in favour of the petitioners by the Tehsildar vide order dated 15.5.2002 in terms of the said scheme. However, the present respondents, who are allegedly encroachers in Government lands, filed appeal against the allotment in the year 2010 i.e. with a delay of 9 years. The said appeal was dismissed by the SDO vide order annexure P-7 dated 25.7.2016 on the ground of delay as well as locus of the present respondents.

3. It is further submitted that thereafter the present respondents filed a revision before the Board of Revenue that has been allowed by the Board vide the impugned order annexure P-1, on irrelevant considerations.

4. It is also contended that the power of allotment of Government land is provided only under the Revenue Book Circulars, and the said instructions are having a separate procedure and remedies of Appeals and Revisions. Thus, the appellate and revisional remedies under the MP Land Revenue Code shall not apply. It is stated that under the Revenue Book Circulars (“RBC” for short), no revision lies to the Board. Thus, the order of the Board of Revenue is without jurisdiction.

5. The order is sought to be assailed on merits also.

6. Per contra, it is stated by the learned counsel for the respondents that though under the RBC, revision does not lie before the Board of Revenue, but still, as Revision lies to the Board of Revenue under MP Land Revenue Code, hence, the aggrieved person can avail the remedy before the Board as well. It is stated that a remedy that has been provided by the MPLRC cannot be taken away by RBC, which is merely an executive instruction, though issued in the name of Governor.

7. On merits also, averments have been made to defend the order passed by the Board of Revenue.

8. Heard learned counsel for the rival parties.

9. The Board of Revenue has upset the allotment in favour of the petitioners on the ground that the present respondents/their ancestors were in actual possession of the said Government land since a number of years even prior to allotment to the present petitioners, hence, without hearing them, the State could not have allotted the land to any other person. On the contrary, it is the case of the petitioners on merits that even if the present respondents were in actual possession, then they were mere encroachers and trespassers and had no right of audience and the land being admittedly Government land, the State had the discretion to allot the land to the petitioners under the social welfare scheme framed by the State in terms of Section 4 (3) of RBC.

10. Before adverting to the merits, first the issue of jurisdiction of the Board of Revenue is taken up, because if the order of the Board is found to be sans jurisdiction, the merits would not be required to be adjudicated.

11. It is not disputed that as per Clause 30 of Section 4 (3) of the RBC there is a separate process of appeal and revision under the RBC and there is no provision to prefer Revision to the Board of Revenue, and the same lies either to the Collector, Commissioner or to the State Government, depending upon the authority that passed the order under appeal. As per RBC, appeal lies to SDO or the Collector or the Commissioner, depending upon the authority that passed the order under Revision. It is undisputed that if the process of appeal and revision under MPLRC would apply, then the Revision could ha