Chattisgarh High Court
Bandhu Korwa vs State Of Chhattisgarh on 30 March, 2026
1
2026:CGHC:14840
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 2384 of 2016
Order reserved on 19/12/2025
Order delivered on 30/03/2026
Bandhu Korwa S/o Ronha, Aged About 60 Years Cast- Korwa, R/o
Balrampur, P.S. And Tahsil- Balrampur, District Balrampur- Ramanujganj,
Chhattisgarh
... Petitioner
versus
1 - State Of Chhattisgarh Through- The Secretary, Department Of Revenue
Mahanadi Bhawan, New Raipur, District Raipur, Chhattisgarh
2 - The Commissioner, Surguja Division Ambikapur, Distt. Surguja,
Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh
3 - The Collector, Balrampur, Distt. Balrampur- Ramanujganj, Chhattisgarh,
District : Balrampur, Chhattisgarh
4 - The Sub- Divisional Officer, Ramanujganj, Distt. Balrampur-
Ramanujganj, Chhattisgarh, District : Balrampur, Chhattisgarh
5 - Ramesh Kumar Choubey, S/o Late Mundrika Choubey, Aged About 58
Years R/o Main Road, Balrampur, P.S. And Tahsil Balrampur, Distt. Surguja,
Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh
VED
PRAKASH 6 - Sidhnath Choubey, S/o Late Mundrika Choubey, R/o Main Road,
DEWANGAN
Balrampur, P.S. And Tahsil Balrampur, Distt. Surguja, Chhattisgarh, District :
Digitally signed
by VED
PRAKASH Surguja (Ambikapur), Chhattisgarh
DEWANGAN
Date: 2026.04.01
19:33:13 +0530
7 - Lav Choubey, S/o Late Mundrika Choubey, Aged About 46 Years R/o
2
Main Road, Balrampur, P.S. And Tahsil Balrampur, Distt. Surguja,
Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh
8 - Kush Kumar Choubey (Died) Through His Legal Heirs As Per The
Hon'ble Court Order Dated 07-09-2021.
8 (A) Smt. Rachna Choubey Wd/o Late Kush Kumar Choubey Aged About
50 Years R/o Ward No. 12, Beside The Police Station Main Road,
Balrampur , District Balrampur Ramanujganj Chhattisgarh.
8 (B) Saurabh Choubey S/o Late Kush Kumar Choubey Aged About 20
Years R/o Ward No. 12, Beside The Police Station Main Road, Balrampur ,
District Balrampur Ramanujganj Chhattisgarh.
8 (C) Ku. Anita Choubey D/o Late Kush Kumar Choubey Aged About 22
Years R/o Ward No. 12, Beside The Police Station Main Road, Balrampur ,
District Balrampur Ramanujganj Chhattisgarh.
9 - Jitu S/o Nanhak Died Through Lrs
9.A - Satan Singh, S/o Athali Singh, Aged About 55 Years R/o Village-
Pendratikar Khadamar P. S. And Tahsil Balrampur, Distt.- Balrampur-
Ramanujganj, Chhattisgarh
9.B - Matan Singh S/o Athali Singh Aged About 57 Years R/o Village-
Pendratikar (Khadamar Police Station And Tahsil Balrampur Distt-
Balrampur-Ramanujganj, Chhattisgarh.
... Respondents
(Cause title taken from Case Information System)
For Petitioner : Mr. Ashok Kumar Shukla, Advocate and
Ms. Anusha Pathak, Advocate
For Respondents No.1 to : Mr. Arvind Dubey, Govt. Advocate
4/State
For Respondents No. 5 to 7 : Mr. Manoj Paranjpe, Senior Advocate
along with Mr. Sandeep Patel, Advocate
For Respondents No. 8(a) to : Mr. Priyanshu Ojha, Advocate
8(c)
3
Hon’ble Shri Ravindra Kumar Agrawal, Judge
C.A.V. Order
1. The present writ petition under Article 226/227 of the Constitution of
India has been filed by the petitioner against the impugned order
dated 24.08.2016, passed by the Additional Commissioner, Surguja
Division, Ambikapur in Revision Case No. 33/A-23/2015-16, whereby
the revision filed by the respondents No. 5 to 8 has been allowed and
the order passed by the Collector, Balrampur, dated 06.04.2016 in
Revenue Case No. 25/A-23/2014-15 has been set aside.
2. Brief facts of the case are that the petitioner belongs to a scheduled
tribe (Pahadi Korwa). The subject land of 3.45 acres has 9 different
Khasra numbers and was initially settled in the name of Dhindhra
Korwa, and after his death, it was settled in the name of Bifani Korwa
in the revenue records of the subject land. A report was submitted by
the concerned Halka Patwari to the Sub-Divisional Officer (Revenue),
Ramanujganj (in short ‘SDO’), where the land is recorded in the
name of Jeetu Khairwar, but it is in possession of Mundrika Choubey,
who is the non-aboriginal tribe. The SDO has passed its order on
30.12.1988, and except for the land of Khasra No. 418/1, the transfer
of other lands was held genuine and ordered to keep the record as it
is. On the land of Khasra No. 418/1, area 0.061 hectare, the house of
Mundrika Choubey was constructed, and therefore, the value of the
land, i.e. Rs. 1200/-, was ordered to be paid to Bifani Korwa and
ordered the mutation of the name of Mundrika Choubey in the
revenue records of the said land. It was also the condition that if
Mundrika Choubey failed to pay the value of the land to Bifani Korwa,
the land would be reverted to Bifani Korwa. In the year 1994-95, the
4
concerned Halka patwari again made a report to the SDO under
sections 170-A and 170-B of the M.P. Land Revenue Code that the
land of Khasra No. 427, area 0.151 hectare, which was recorded in
the name of Dhindhra Korwa, is presently recorded in the name of
Jeetu Khairwar, but it is in possession of Mundrika Choubey. The
Revenue Case No. 43/A-23/1994-95 was registered by the SDO and
since the house of Mundrika Choubey was found to be constructed
prior to 1984, the SDO vide its order dated 07.09.1994 fixed the
compensation of Rs. 7550/- invoking the powers under section 170-
B(3) and ordered to pay the amount of compensation to Bifani Korwa
within six months, failing which the land shall be reverted to Bifani
Korwa.
3. On 21.09.2001, Bifani Korwa has made a complaint to Collector,
Surguja and then Collector, Surguja registered the suo motu
Revenue Case No. 156/A-19/2001-02 and 157/A-19/2001-02 and
issued show cause notice to Mundrika Choubey on 17.05.2002.
Against the issuance of a show cause notice, Mundrika Choubey
approached the Chhattisgarh Board of Revenue, Bilaspur (in short
‘Board of Revenue’) by filing revision Nos. 165/A-19/2004-05 and
166/A-19/2004-05.After hearing the parties, the Board of Revenue,
vide its order dated 11.01.2007, quashed the show cause notice
issued by the Collector and the orders passed by the SDO dated
30.12.1988 and 07.09.1994 were affirmed. Against the order dated
11.01.2007, passed by the Board of Revenue, Bifani Korwa filed
WPC Nos. 2184 of 2007 and 2185 of 2007, which were withdrawn by
Bifani Korwa on 30.01.2009. Against the same order dated
11.01.2007, passed by the Board of Revenue, Bifani Korwa again
5
filed two writ petitions bearing WP(227) Nos. 2311 of 2011 and 2312
of 2011 before this Court, which was again withdrawn by Bifani
Korwa on the ground that the order passed by the SDO is an
appealable order and the suo motu revision was not maintainable in
the light of provisions of section 50(1)(i)(a) of the Chhattisgarh Land
Revenue Code, 1959 (in short ‘Land Revenue Code’) and liberty was
granted to the petitioner.
4. After the withdrawal of the WP(227) No. 2311 of 2011, Bifani Korwa
had filed an appeal before the Collector, Balrampur-Ramanujganj
against the order dated 30.12.1988 and 07.09.1994, which were
registered as Appeal No. 4/A-23/2011-12 and 5/A-23/2011-12 and
another appeal was filed before the Collector, Surguja against the
order dated 30.12.1988, passed by the SDO, which was registered
as Appeal Case No. 2/A-23/2011-12 and after formation of new
district Balrampur-Ramanujganj the appeal was transferred to
Collector, Balrampur-Ramanujganj, which was tagged with the
Appeal No. 4/A-23/2011-12. In the meantime, Bifani Korwa again
made a fresh application under section 170-B of the Land Revenue
Code before the SDO, against Mundrika Choubey for reversion of the
land of Khasra No. 418, area 0.74 acre, which was registered as
Revenue Case No. 26/A-23/2010-11. After hearing the parties, the
said application of Bifani Korwa was dismissed by the SDO vide
order dated 23.08.2012 on the ground that the earlier order dated
30.12.1988 and 07.09.1994 passed by the SDO has been affirmed
by the Board of Revenue vide its order dated 11.01.2007, and the
same attains its finality and the provisions of section 170-B of the
Land Revenue Code is not attracted. Against the order dated
6
23.08.2012, Bifani Korwa filed an appeal before the Collector,
Balrampur-Ramanujganj, which was registered as Revenue Appeal
Case No. 6/A-23/2012-13.
5. The Collector, Balrampur-Ramanujganj, after hearing the parties,
allowed the appeal filed by Bifani Korwa and ordered the reversion of
the land in her favour vide its order dated 06.04.2016. By order dated
06.04.2016, the Collector, Balrampur-Ramanujganj, had set aside the
order dated 23.08.2012, passed by the SDO and also ordered for
mutation of her name on the land of Khasra No. 418/1, area 0.061
hectare.
6. The said order dated 06.04.2016 was further challenged by the legal
heirs of Mundrika Choubey before the Additional Commissioner,
Surguja Division, Ambikapur in Revision Case No. 33/A-23/2015-16,
in which the impugned order dated 24.08.2016 (Annexure P/1) has
been passed and the order dated 06.04.2016 is set aside and the
order dated 11.01.2007, passed by Board of Revenue is affirmed.
The said order dated 24.08.2016 is under challenge in the present
writ petition.
7. Learned counsel appearing for the petitioner would submit that the
matter pertains to section 170-B of the Chhattisgarh Land Revenue
Code, 1959. The subject land was acquired by the aboriginal tribe
Dhindhra Korwa, who was the father of Bifani Bai and after his death,
she inherited his property. Mundrika Choubey occupied the land of
Dhindhra Korwa, and a construction was raised over the land of
khasra No. 418/1, area 0.061 hectare and khasra No. 427, area 0.37
acre. The Halka patwari submitted a report to the SDO, which was
7
decided on 30.12.1988 by the SDO, and compensation was awarded
in lieu of the value of the land as the construction was already raised
there over the Khasra No. 418/1. Bifani Bai was not in knowledge of
the order passed by the SDO, dated 30.12.1988. Subsequently, she
filed an appeal on 20.01.2012 before the Collector, Balrampur. Along
with the appeal, she also filed an application under Section 5 of the
Limitation Act. The Collector, Balrampur, called the original record of
the SDO and, after hearing the parties, passed the order on
06.04.2016 and ordered the reversion of the land to the legal
representatives of Bifani Bai, and the order dated 30.12.1988,
passed by the SDO, was set aside.
8. He would also submit that, though no specific order was passed in
respect to the application for condonation of delay in filing the appeal
before the Collector Balrampur, the Collector decided the appeal on
merits and thus, the delay in filing the appeal is deemed to have
been condoned. The Collector, Balrampur, after considering all the
facts of the case and earlier proceedings, allowed the appeal and set
aside the order dated 30.12.1988 passed by the SDO. Likewise, the
Collector had called the original record of the case, which means that
the default of non-filing of a certified copy of the order dated
30.12.1988 is waived, and the appeal was proceeded with for
hearing on merits. The original record of the case consists of the
original copy of the order dated 30.12.1988; therefore, there was no
defect in the appeal filed by Bifani Bai, and even if there was any
procedural defect, the Collector, Balrampur, waived the defect and
passed the order on merits.
8
9. It is further submitted that the Additional Commissioner, Surguja, by
observing in its order dated 24.08.2016 that despite the time granted
to the Bifani Bai by the Collector Balrampur to rectify the defect and
to file the certified copy of the order dated 30.12.1988, she had not
rectified the defect and there is no order for waiver of the defect and
the appeal filed by Bifani Bai was not maintainable. It is also
observed in the order impugned that the application filed by Bifani
Bai for condonation of delay has also not been decided, and the
appeal was considered on the merits of the case, which is against
the procedure prescribed under the law. He would also submit that
the Additional Commissioner allowed the revision filed by the
respondents No. 5 to 8 on the ground that the order dated
11.01.2007, passed by the Board of Revenue, is still intact, which
has not been considered by the Collector. They should have
considered that Bifani Bai had challenged the order dated 11.01.2007
before this Court in WP(227) No. 2311 of 2011, which was disposed
of on 27.07.2011 with the liberty to avail the alternative remedy of
appeal against the order dated 30.12.1988, passed by the SDO. The
Additional Commissioner has passed the order on technical and
procedural lapses, whereas the substantial issue was rightly
considered by the Collector, Balrampur. The subject land was owned
by Dhindhra and both the two persons, Sengtha and Bhulwa were his
brothers. Under what right they sold the property to Jeetu Khairwar
has not been explained by the respondents No. 5 to 8. Looking to the
earlier litigation and complexity of the litigation between the parties,
the Collector, Balrampur, proceeded to hear the matter and decided
the appeal filed by Bifani Bai.
9
10. He would also submit that the concerned Halka patwari had made
another report to the SDO with respect to the land of khasra No. 427,
area 0.151 hectare situated at Village Balrampur, that it was recorded
in the settlement record in the name of Dhindhra Korwa and his legal
heir is Bifani Bai, the said land is recorded in the name of Jeetu
Khairwar and is in possession of Mundrika Choubey. Another
proceeding under section 170-B of the Madhya Pradesh Land
Revenue Code, 1959 (as the then was) was initiated and after
providing opportunity of hearing to the parties passed its order on
07.09.1994, by which the compensation of Rs. 7550/- has been
awarded in favour of Bifani Bai by holding that Jeetu Khairwar has
constructed a house thereon prior to 1984 and under the provisions
of 170-B(3) of the Code of 1959 the value of the land is being
awarded to Bifani Bai. On 21.09.2001, Bifani Bai made a complaint to
the Collector Surguja with respect to the subject transaction, and the
Collector Surguja called the record of the SDO, and after coming to
the conclusion that there were serious irregularities in the order dated
07.09.1994, passed by the SDO, he draw suo motu revision bearing
Revision Case No. 156/A-23/2001-02 and issued a show cause
notice to Mundrika Choubey. The show cause notice was challenged
by him before the Board of Revenue, which was decided after
hearing the parties on 11.01.2007 and quashed the show cause
notice dated 17.05.2002 issued to Mundrika Choubey and
maintained the order dated 30.12.1988 and 07.09.1994 passed by
the SDO. Ultimately the challenge to the order dated 11.01.2007 was
passed by the Board of Revenue in WP(227) No. 2311 of 2011,
which was disposed of with the liberty to avail the appellate remedy
10
against the impugned orders. Thereafter, the petitioner filed an
appeal before the Collector. He would further submit that in the suo
motu proceeding drawn by the Collector, an inquiry report was called
by him and in the inquiry report, the irregularities and illegalities were
found during the inquiry.
11. Lastly, he would submit that the very foundation of the proceeding
under Section 170-B of the Chhattisgarh Land Revenue Code is
protective in nature and beneficial law for the welfare of the tribals of
the society and governed under Article 46 of the Constitution of India,
which guarantees the protection to the members of scheduled tribe
and very object of the provision of section 170-B of the Chhattisgarh
Land Revenue Code is to protect them from any defraudation. Under
the said provision of law, there is a statutory presumption in favour of
persons belongs to a scheduled tribe, and the burden is upon the
person who is found in possession of the land of a scheduled tribe. In
the present case, there is no rightful or legal transfer in favour of the
respondents No. 5 to 8 by the actual land owners and Dhindhra
Korwa, Bifani Bai and the petitioner have been defrauded by the
respondents No. 5 to 8, and the Collector Balrampur has rightly
passed its order on 06.04.2016, by which the order dated 30.12.1988
was set aside. The Additional Commissioner allowed the revision
filed by the respondents No. 5 to 8 on technical grounds, which is not
sustainable, and the same is liable to be set aside.
12. In support of his submission, he would rely upon the judgment
passed by Hon’ble Supreme Court in the case of “Shesh Nath Singh
and Another v. Baidyabati Sheoraphuli Co-operative Bank
Limited and Another” 2021 (7) SCC 313, “Bhaiji v. Sub-Divisional
11
Officer, Thandla and others“, 2003 (1) SCC 692, and judgment
passed by coordinate Bench of this High Court in “Dhamtaria v.
State of Chhattisgarh and Others” 2013 (4) CGLJ 424 and
“Ramkunwar v. Banshilal and Others” 2013 (3) CGLJ 389.
13. Opposing the submissions made by learned counsel for the
petitioner, learned Senior Advocate appearing for the respondents
No. 5 to 7 submits that, the argument of the petitioner is on three
folds, i.e. (i) the provisions of Order 22 of the Civil Procedure Code
would not be apply in the proceeding under Section 170-B of the
Land Revenue Code, (ii) the application under Section 5 of the
Limitation Act filed by Bifani Bai is not decided and the appeal itself
has been decided on merits, therefore it is a deemed condonation of
delay, and (iii) the appellant before the Collector was afforded an
opportunity to file appeal and therefore, the delay in filing of appeal
itself come to an end as per Section 14 of the Limitation Act. There is
no need to go into the merits of the case, but the procedural lapses
itself is sufficient to uphold the order passed by the Commissioner.
The proceeding before the SDO was contested when the SDO had
passed the order on 30-12-1988, with respect to the land of Kh. No.
418/1. In the subsequent proceedings with respect to Kh. No. 427,
decided on 07-09-1994, she also participated, and her statement was
recorded. No proceedings were challenged in a higher forum, and
the amount of compensation was also received by her. From 1994 to
2002, there were no proceedings. Bifani Bai had knowledge of the
proceedings as she again participated in the proceedings under
Section 170-B of the Code of 1959, before the SDO in the year 1994,
with respect to her land Khasra No. 427. Instead of filing the appeal
12
and challenging the orders passed by SDO on 30.12.1988 and
07.09.1994, she made a complaint to the Collector on 21.09.2001,
and then the Collector registered a suo motu revision and called the
inquiry report. A show-cause notice was issued to Mundrika
Choubey, who challenged the proceeding before the Collector,
Balrampur, initiated as a suo motu revision, by filing a revision before
the Chhattisgarh Board of Revenue, Bilaspur. When a statutory
remedy of appeal was available to the aggrieved party, the provisions
of suo motu revision cannot be initiated by the Collector, which has
rightly been turned down by the Board of Revenue vide its order
dated 11.01.2007. Bifani Bai earlier challenged the order dated
11.01.2007 by filing a WPC No. 2185 of 2007, which was withdrawn
by her from the coordinate Bench of this Court on 30.01.2009. There
was no liberty granted to her when she withdrew the WPC No. 2185
of 2007. After about two years of withdrawal of said writ petition, she
again filed another writ petition, i.e. WP(227) No. 2311 of 2011,
before this Court. In this writ petition, a submission was made from
her side that the order passed by the SDO, Ramanujganj, was
appealable and suo motu revision and revision on the instance of the
party was not maintainable in the light of provisions of Section 50(1)
(i)(a) of the Chhattisgarh Land Revenue Code, 1959 and has
withdrawn the said writ petition with that liberty. Granting liberty is a
different thing, and withdrawal of proceedings in view of the
availability of a statutory forum is a different thing. Thereafter, the
appeal was filed by Bifani Bai on 08-10-2011, along with an
application for condonation of delay, that too without any certified
copy of the order dated 30-12-1988. In the application filed under
Section 5 of the Limitation Act, there is no explanation from 1988 till
13
date of the proceeding or 1994 till filing of the appeal. The application
filed by Bifani Bai under Section 5 of the Limitation Act ought to have
been decided by the Collector before proceeding with the hearing of
the case on merits, because it is not the delay of a few days, but it
was the delay of 23 years from the date of passing of the order dated
30.12.1988 by the SDO. There was no question of bona fide
proceeding. Unless the delay is condoned, it would not have been a
duly constituted appeal. He would refer to Section 43 of the Land
Revenue Code. Section 47 of the Land Revenue Code starts from
“No appeal shall lie”, meaning thereby the limitation is a relevant
consideration for filing the appeal.
14. It is also submitted that, although vide order dated 27.07.2011, a
liberty was granted to Bifani Bai to avail the appellate remedy against
the order passed by the SDO, but that is restricted only for the filing
of the appeal and not for the condonation of delay. The application
for condonation of delay was required to be decided on its own
merits and satisfaction of the Court on explanation for condoning the
delay. There was a substantial delay of 23 years from 1988 and 17
years from 1994. The protection of Section 14 of the Limitation Act
would be applicable only with regard to the bona fide proceeding,
that too to the extent of the length of the proceeding from the date of
its filing and from the date of its conclusion. There is no explanation
in the application for condonation of the delay in filing the appeal
from 1988 or 1994 till 2001-02.
15. He would further submit that during the proceedings of the appeal
pending before the Collector, Bifani Bai has died in the month of
April, 2015, and Mundrika Choubey died on 13.07.2014. Neither the
14
legal representatives of Bifani Bai nor Mundrika Choubey were
substituted on record within the prescribed time, and then the
proceeding against the dead person was abated. Further, Jeetu
Khairwar has also died on 30.11.1999, and Bifani Bai is prosecuting
her appeal against Jeetu Khairwar, who has already died without
impleading his legal representatives in the appeal. The respondents
made an application for dismissal of the proceeding on the ground of
abatement of the appeal. Written arguments have also been
submitted before the Collector. Further, without substituting the legal
representatives of the deceased party in the proceeding, the court
should not proceed in the matter and has to decide whether the
appeal is abated or not. It is settled law that an order passed against
a dead person or in favour of a dead person is nullity.
16. He would further submit that the provisions of the Code of Civil
Procedure, 1908, is applicable to the revenue proceeding as
provided under Section 43 of the Chhattisgarh Land Revenue Code,
1959, and thus, the provisions of Order 22 of the CPC are also
applicable and the proceeding before the Collector, Balrampur, was
abated as the legal Representatives of the deceased parties have
not been substituted.
17. In support of his submissions, he would rely upon the judgment of
Hon’ble Supreme Court in the matter of “Suresh Chandra
(Deceased) through LRs and others v. Paras Ram and others“
2025 Live Law SC 728, “Jaladi Suguna (Deceased) through LRs v.
Satya Sai Central Trust and others” 2008 (8) SCC 521, “H. Guru
Swami and others v. A. Krishnaiah, since deceased by LRs” 2025
SCC Online SC 54, “Pathapati Subba Reddy (Dead) by Legal
15Representatives and others v. Special Deputy Collector (LA)”
2024 (12) SCC 336, “Sarja Bai and others v. Parsuti Bai and
Others” 1984 Revenue Nirnay 333 (Madhya Pradesh High Court),
order dated 03.01.2017, passed by the coordinate Bench of this
Court in WP(227) No. 5873 of 2008 (Ganesh Ram v. Raitu and
others).
18. Learned counsel appearing for the respondents No. 8(a) and 8(b)
would submit that the Collector, Balrampur, was transferred from
there vide order dated 31.03.2016 and thereafter, he passed the
order in favour of Bifani Bai on 06.04.2016. After his transfer to
31.03.2016, he was not competent to pass the order, yet he did so.
He would draw the attention of this Court to the transfer order dated
31.03.2016 (Annexure R-5/1). The Commissioner has also
considered the payment of compensation, which was deposited by
the respondents and obtained by Bifani Bai, and once she accepted
the compensation, she cannot again challenge the said order. He
would also rely upon the judgment of Jaladi Suguna (supra) and
submits that in the absence of substitution of the deceased party, the
proceeding before the Collector, Balrampur, was abated and no
orders on merit could have been passed on it. The order passed by
the Commissioner is well merited and is not liable to be interfered
with. He would also rely upon the judgment passed by the
Coordinate Bench of this Court in “Ganesh Ram” (supra).
19. I have heard learned counsel for the parties and perused the record
of the case, as well as gone through the record of the revenue
authorities called by this Court.
16
20. Having heard learned counsel for the parties and upon perusal of the
entire record, it is apparent that the present matter has a long and
chequered history of litigation arising out of proceedings under
Section 170-B of the Chhattisgarh Land Revenue Code, 1959. The
land in question originally belonged to a member of the Scheduled
Tribe, namely Dhindhra Korwa, and thereafter to Bifani Bai.
Proceedings were initiated as early as in the year 1988 and
subsequently in 1994 before the Sub-Divisional Officer, wherein,
instead of restoration of land, compensation was awarded on the
ground that constructions existed prior to the cut-off date.
21. Upon consideration of the rival submissions and the material
available on record, this Court finds that certain foundational issues,
which go to the root of the maintainability of the appeal filed by Bifani
Bai before the Collector, Balrampur, were not adjudicated by the
Collector before proceeding to decide the matter on merits. The
question of limitation, particularly in the context of a delay of more
than 20 years, required a reasoned order. Similarly, the defect
regarding non-filing of certified copies of the impugned orders and
their effect on the maintainability of the appeal also required
consideration. Further, the issue of abatement assumes significance
in the present case, as it is not in dispute that some of the parties
had expired during the pendency of the proceedings of appeal filed
by Bifani Bai before the Collector, and no steps were taken within the
prescribed time to bring their legal representatives on record. In view
of the settled legal position, as reiterated in the judgments cited by
the respondents, the consequence of such non-substitution and the
17
effect thereof on the proceedings ought to have been examined in
accordance with the law.
22. Upon perusal of the record, it is evident that the present lis has a
long and chequered history arising out of proceedings initiated under
Section 170-B of the Chhattisgarh Land Revenue Code, 1959. The
land in dispute originally belonged to a member of the Scheduled
Tribe, namely Dhindhra Korwa, and upon his death, it devolved upon
Bifani Bai. Proceedings were initially undertaken by the Sub-
Divisional Officer in 1988 and 1994, wherein, instead of restoring the
land, compensation was awarded on the premise that construction
over part of the land existed before the cut-off date. The subsequent
attempt by the Collector to exercise suo motu revisional jurisdiction in
the year 2001 was set aside by the Board of Revenue vide order
dated 11.01.2007, affirming the orders of the Sub-Divisional Officer.
The said order was subjected to challenge before this Court in earlier
rounds of litigation; however, the writ petitions were withdrawn, with
liberty to avail the statutory remedy of appeal. Pursuant thereto,
Bifani Bai preferred appeals before the Collector after a substantial
lapse of time, along with an application under Section 5 of the
Limitation Act, 1963. The Collector, Balrampur-Ramanujganj, by
order dated 06.04.2016, allowed the appeal and directed reversion of
the land in favour of Bifani Bai, thereby setting aside the earlier
orders passed by the Sub-Divisional Officer. However, in the revision
preferred by the respondents, the Additional Commissioner, Surguja
Division, Ambikapur, by the impugned order dated 24.08.2016, set
aside the order of the Collector, primarily on the ground that the
appeal suffered from serious procedural infirmities, including non-
18
consideration of limitation, non-filing of certified copies of the
impugned orders, and other defects.
23. The issue of limitation goes to the very root of the jurisdiction of the
appellate authority, and therefore, an application for condonation of
delay filed under Section 5 of the Limitation Act is required to be
decided before the appeal can be taken up for consideration on
merits. In a case where the delay is substantial and spans over
several years, as in the present matter, the appellate authority was
under an obligation to record a reasoned finding as to whether
sufficient cause has been shown for condoning such delay. Unless
the delay is expressly condoned by a speaking order, the appeal
cannot be treated as a validly instituted proceeding in the eyes of the
law. Proceeding to decide the appeal on merits without first
determining the question of limitation amounts to a material
procedural irregularity and renders the adjudication unsustainable.
Thus, the proper course for the Collector was to first consider and
decide the application for condonation of delay on its own merits, and
only upon allowing the same, to proceed further with the hearing of
the appeal on merits. In the case of “H. Guruswamy and Others”
(supra), the Hon’ble Supreme Court has held that:-
“16. The length of the delay is definitely a relevant
matter which the court must take into
consideration while considering whether the delay
should be condoned or not. From the tenor of the
approach of the respondents herein, it appears
that they want to fix their own period of limitation
for the purpose of instituting the proceedings for
19which law has prescribed a period of limitation.
Once it is held that a party has lost his right to
have the matter considered on merits because of
his own inaction for a long, it cannot be presumed
to be non-deliberate delay and in such
circumstances of the case, he cannot be heard to
plead that the substantial justice deserves to be
preferred as against the technical considerations.
While considering the plea for condonation of
delay, the court must not start with the merits of
the main matter. The court owes a duty to first
ascertain the bona fides of the explanation
offered by the party seeking condonation. It is
only if the sufficient cause assigned by the litigant
and the opposition of the other side is equally
balanced that the court may bring into aid the
merits of the matter for the purpose of condoning
the delay.”
24. In the case of “Prabhu and Another v. Deputy Director of
Consolidation, Gazipur and Others” 2012 SCC OnLine All. 4029,
the Allahabad High Court has held that:-
“8. Here in this case, admittedly, the revision was
barred by time and it was accompanied with an
application for condonation of delay, therefore,
unless the delay was condoned, the revisions
could not have been decided on merit as in the
20eye of law, unless the delay is condoned, there
could be no revision.
9. The view taken by me finds support from the
decision of the Apex Court in Noharlal Verma v.
District Co-operative Central Bank Ltd. Jagdalpur,
(2008) 14 SCC 445 : (AIR 2009 SC 664), where
the Apex Court has held as under:–
“32. Now, limitation goes to the root of the
matter. If a suit, appeal or application is
barred by limitation a Court or an
adjudicating authority has no jurisdiction,
power or authority to entertain such suit,
appeal or application and to decide it on
merits.
33. Sub-section (1) of Section 3 of the
Limitation Act, 1963 reads as under:
“3. Bar of Limitation.– (1) Subject to
the provisions contained in Sections
4 to 24 (inclusive) every suit
instituted, appeal preferred, and
application made after the prescribed
period shall be dismissed although
limitation has not been set up as a
defence.” Bare reading of the
aforesaid provision leaves no room
for doubt that if a suit is instituted,
21appeal is preferred or application is
made after the prescribed period, it
has to be dismissed even though no
such plea has been raised or
defence has been set up. In other
words, even in the absence of such
plea by the defendant, respondent or
opponent, the Court or authority must
dismiss such suit, appeal or
application, if it is satisfied that the
suit, appeal or application is barred
by limitation.”
10. In V.M. Salgaocar and Bros. v. Board of
Trustees of Port of Mormugao, (2005) 4
SCC 613 : (AIR 2005 SC 4138), following
observation has been made by the Apex
Court.
20. “The mandate of Section 3 of the
Limitation Act is that it is the duty of
the Court to dismiss any suit
instituted after the prescribed period
of limitation irrespective of the fact
mat limitation has not been set up as
a defence. If a suit is ex facie barred
by the law of limitation, a Court has
no choice but to dismiss the same
22even if the defendant intentionally
has not raised the plea of limitation.”
11. In the case of Sneh Gupta v. Devi Sarup,
(2009) 6 SCC 194, in paragraph 70, the Apex
Court has held that in absence of any application
for condonation of delay, the Court has no
jurisdiction in terms of S. 3, Limitation Act, 1963
to entertain the application filed for setting aside
of decree after expiry of period of limitation.
12. In (2001) 9 SCC 717 : (2001 AIR SCW 2351),
Ragho Singh v. Mohan Singh, the Apex Court has
held as under:–
(6) “We have heard learned counsel for the
parties. Since it is not disputed that the
appeal filed before the Additional Collector
was beyond time by 10 days and an
application under Section 5 of the
Limitation Act was not filed for condonation
of delay, mere was no jurisdiction in the
Additional Collector to allow that appeal.
The appeal was liable to be dismissed on
the ground of limitation. The Board of
Revenue before which the question of
limitation was agitated was of the view that
though an application for condonation of
delay was not filed, the delay shall be
deemed to have been condoned. This is
23
patently erroneous. In this situation, the
High Court was right in setting aside the
judgment of the Additional Collector as also
of the Board of Revenue. We find no
infirmity in the impugned judgment. The
appeal is dismissed. No costs.”
13. In view of foregoing discussions, the
controversy can be summarized as under:–
(i) When the statute provides limitation for
approaching the Court and a person
approaches the Court after the expiry of the
period of limitation, then he has to
approach the Court along with an
application under Section 5 of the
Limitation Act praying extension of period of
limitation or to condone the delay in
approaching the Court.
(ii) Once the application under Section 5 of
the Limitation Act is filed and unless the
delay is condoned, no order can be passed
on merit.
(iii) The delay cannot be condoned without
having the version of otherside and for that,
otherside is required to be noticed and
heard.
24
14. Here in this case, admittedly, the revision was
filed along with an application for condonation of
delay and without condoning the delay, the
revision has been decided, therefore the Deputy
Director of Consolidation has erred in deciding
the revision on merit without condoning the delay
and the impugned order dated 4.10.2012 passed
by him cannot be sustained, hence, it is hereby
quashed. The writ petition succeeds and is
allowed.”
25. In the case of “Jais Lal v. Deputy Director of Consolidation,
Jaunpur and Another” 2013 SCC OnLine All. 9437, it has been
observed that :-
“It is contended by Sri Tripathi that against an
order dated 2.2.2011, passed in appeal no.
260/2010 (Ram Sagar v. Jais Lal), a revision was
filed on 9.7.2013. Obviously, the revision was
barred by time and thereafter, revisionist-opposite
party has filed an application for condonation of
delay in filing the revision. The petitioner has filed
objection to the said delay condonation
application. In the submissions of learned counsel
for the petitioner, the court is proceeding to
decide the matter on merit without condoning the
delay. In his submissions, unless the delay is
condoned, the matter cannot be decided on merit.
In support of his submissions, he has placed
25reliance upon the judgment of this Court in
Prabhu v. Deputy Director of Consolidation (2013
(118) RD 48).
On the other hand, learned Standing Counsel
submits that the Court can decide the application
filed under section 5 of the Limitation Act as well
as the revision simultaneously. However, he has
not disputed the applicability of section 5 of the
Limitation Act in a proceeding which is barred by
limitation. Section 5 of the Limitation Act confers
the power upon the court to extend the period of
limitation, provided there is sufficient explanation
for extending the period or condoning the delay in
filing the appeal, revision or suit.
Learned Standing Counsel may be right in his
submissions that both the things can be done
simultaneously, but one thing is settled that
unless the delay is condoned, the
appeal/revision/suit will not be competent and the
same cannot be decided on merit. Therefore,
even if the Deputy Director of Consolidation is
proceeding to decide both the things
simultaneously, he is directed to decide the
question of limitation first either by condoning the
delay or by refusing to condone the delay. In the
event of condonation of delay, he may decide the
matter on merit, but not prior to one month from
26
the date the order passed on the application filed
under section 5 of the Limitation Act for the
reason that an order condoning or refusing to
condone the delay would confer a right upon an
aggrieved party to challenge the same before
higher court.”
26. In light of the principles laid down in the aforesaid decisions, the
question of limitation must be addressed at the threshold, as it
directly impacts the maintainability and competence of the appellate
proceedings. The appellate authority cannot assume jurisdiction to
examine the matter on merits unless the delay in filing the appeal is
first condoned by passing a reasoned and speaking order upon due
consideration of the explanation furnished by the appellant.
Particularly in cases involving inordinate delay, the authority is duty-
bound to scrutinize whether sufficient cause has been demonstrated
within the meaning of Section 5 of the Limitation Act. Entertaining
and deciding the appeal on merits without adjudicating the
application for condonation of delay amounts to bypassing a
mandatory legal requirement and vitiates the entire proceedings.
Therefore, it is incumbent upon the appellate authority to first decide
the application for condonation of delay, and only upon its allowance,
proceed to adjudicate the appeal on merits in accordance with law.
27. The issue of abatement of the appeal filed by Bifani Bai, before the
Collector, also goes to the root of the matter. It is not in dispute that
some of the parties expired during the pendency of the proceedings
and that no substitution was carried out within the prescribed time. In
view of the principles laid down in Jaladi Suguna (supra) and other
27
judgments, the consequence of non-substitution and its effect on the
proceedings ought to have been examined before proceeding further.
An adjudication on merits without resolving such fundamental issues
cannot be sustained in law. In the case of Jaladi Suguna (supra),
the Hon’ble Supreme Court has held that:-
“16. The provisions of Rules 4 and 5 of Order 22
are mandatory. When a respondent in an appeal
dies, the court cannot simply say that it will hear
all rival claimants to the estate of the deceased
respondent and proceed to dispose of the appeal.
Nor can it implead all persons claiming to be legal
representatives, as parties to the appeal without
deciding who will represent the estate of the
deceased, and proceed to hear the appeal on
merits. The court cannot also postpone the
decision as to who is the legal representative of
the deceased respondent, for being decided
along with the appeal on merits. The Code clearly
provides that where a question arises as to
whether any person is or is not the legal
representative of a deceased respondent, such
question shall be determined by the court. The
Code also provides that where one of the
respondents dies and the right to sue does not
survive against the surviving respondents, the
court shall, on an application made in that behalf,
cause the legal representatives of the deceased
28respondent to be made parties, and then proceed
with the case. Though Rule 5 does not
specifically provide that determination of legal
representative should precede the hearing of the
appeal on merits, Rule 4 read with Rule 11 makes
it clear that the appeal can be heard only after the
legal representatives are brought on record.”
28. The applicability of the provisions of the Civil Procedure Code, 1908,
is also raised by the parties. The coordinate bench of this Court in
the case of “Ganesh Ram” (supra) held that:-
“7. Section 43 of the Code provides that unless
otherwise expressly provided in this Code, the
procedure laid down in the Code of Civil
Procedure, 1908 shall, so far as may be, be
followed in all proceedings under this Code. Thus,
the provisions contained in Order 22 of the Code
of Civil Procedure are applicable in the revenue
proceedings also.”
29. Further, in the case of “K. R. Bhagat and Another v. Parmeshwar
Dayal Pathak (since dead) th. L.Rs and Others”, F.A. No. 85 of
2004, decided by coordinate bench of this Court on 04-09-2018, held
in para 16 and 19 that:-
“16. Section 43 of the C.G. Land Revenue
Code allows that the Code of Civil Procedure
to apply when no express provision made in
this Code, which reads as under :
29
Section 43 of the C.G. Land Revenue Code,
1959.
“43. Code of Civil Procedure to apply when no
express provision made in this Code. – Unless
otherwise expressly provided in this Code, the
procedure laid down in the Code of Civil
Procedure, 1908 (V of 1908) shall, so far as
may be, be followed in all proceedings under
this Code.”
19. Section 43 of the Land Revenue Code lays
down that if anything is not expressly provided
in this Code, the procedure laid down in Code
of Civil Procedure, 1908 shall be followed.
…………”
30. In the case of Suresh Chandra (deceased) thr. L.Rs. and Others
(supra), the Hon’ble Supreme Court has considered that :-
“12. Before we set out to address the aforesaid
issue, an overview of the provisions governing
abatement of an appeal under the CPC would be
apposite. Order XXII Rule 1 of the CPC lays
down the general principle that if the right to sue
survives, the suit shall not abate on death of
either the plaintiff or the defendant. Order XXII
Rule 11 makes it clear that all previous rules i.e.,
rules 1 to 10 of Order XXII would apply to appeals
and for that purpose reference to the word
30‘plaintiff’ would include an appellant; ‘defendant’
would include a respondent; and suit would
include an appeal. As a logical corollary thereof,
the right to sue includes the ‘right to appeal’. Rule
2 of Order XXII deals with a situation where one
of the plaintiffs or defendants to a suit dies and
the right to sue survives to the surviving
plaintiff(s) or defendant(s). In a situation governed
by Rule 2, the suit does not abate; only a note is
to be put that the right to sue survives to the
surviving plaintiff(s) or defendant(s). Order XXII
Rule 3 deals with a situation where one of two or
more plaintiffs dies and the right to sue survives,
though not to the surviving plaintiff(s) alone, or
where the sole plaintiff dies and the right to sue
survives. In such a case, if within time limited by
law no application is made for substituting the
legal representatives of the deceased plaintiff or
plaintiffs, the suit would abate so far as the
deceased plaintiff is concerned. Rule 4 of Order
XXII is a provision corresponding to Rule 3 to
deal with a situation where one of several
defendants or the sole defendant dies and the
right to sue survives, though not against the
surviving defendant alone.”
31. It is not in dispute that during the pendency of the appeal before the
Collector, the parties, including Bifani Bai and Mundrika Choubey,
31
had expired, and no steps were taken within the prescribed period to
bring their legal representatives on record. The application for
dismissing the appeal on the ground of abatement was also filed by
the respondents, but the same has also not been considered. Thus,
the order passed against a dead person is a nullity. Further, failure to
substitute legal representatives results in the abatement of
proceedings.
32. Equally significant is the defect relating to the non-filing of certified
copies of the impugned orders. Though the original record was
summoned, it can be said that the defect was cured. Although
procedural compliance, unless expressly waived, cannot be
presumed, particularly when it affects the maintainability of the
appeal, in the present case, since the original records were
summoned, it can be said to be waived.
33. In view of the foregoing discussion and considering that the
foundational issues relating to limitation and abatement have not
been adjudicated by the appellate authority, i.e. the Collector,
Balrampur, this Court is of the opinion that the matter deserves to be
remitted rather than being concluded on technical grounds at this
stage. Dismissal of the petition would result in foreclosing the
petitioner’s right without a proper determination of the maintainability
of the appeal in accordance with the law. Accordingly, the impugned
order is set aside, and the matter is remanded to the Collector,
Balrampur-Ramanujganj, with a direction to first consider and decide
the application for condonation of delay as well as the issue of
abatement of the appeal by passing reasoned and speaking orders in
32
accordance with law, and after affording due opportunity of hearing to
all concerned parties.
34. Accordingly, the order passed by the Additional Commissioner,
Surguja, Ambikapur, dated 24-08-2016 (Annexure P-1), and the order
dated 06-04-2016 passed by the Collector, Balrampur-Ramanujganj
(Annexure P-11) are hereby set aside. The matter is remitted back to
the Collector, Balrampur-Ramanujganj, to decide the appeal afresh,
in view of the above observation made in this order.
35. With the aforesaid directions and to the extent indicated hereinabove,
the present writ petition stands allowed. It is clarified that this Court
has not expressed any opinion on the merits of the case, and all
issues are left open to be adjudicated by the appellate authority in
accordance with law. The parties are directed to appear before the
Collector, Balrampur-Ramanujganj, on 23-04-2026, and to cooperate
for expeditious disposal of the matter.
36. No order as to costs.
37. Registry is directed to immediately transmit the record of the
Revenue Courts along with a copy of this order, which was called by
this Court.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved