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.
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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.
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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 15 Representatives 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.
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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 19 which 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 20 eye 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, 21 appeal 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 22 even 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 25 reliance 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 28 respondent 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