# Dinesh Chandra @ Dinesh Chandra Tiwari & Ors v. Deputy Director of Consolidation, Sultanpur & Ors

- **Citation:** (2023) 5 ILRA 303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-03
- **Case number:** Writ B No. 229 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-chandra-dinesh-chandra-tiwari-ors-v-deputy-director-of-consolidation-50201
- **Pages:** 12

## Headnote

A. Practice and Procedure - Constitution
of India,1950 - Article 226 & 227 - Writ -
Maintainability - Order was passed by the
Revenue Court in the title matter -
Quashing sought - Whether remedy is the
petition under Article 227 or under Article
226 - Held, Judicial orders of civil court
are not amenable to writ jurisdiction
under Article 226 of the Constitution and
jurisdiction under Article 227 is distinct
from jurisdiction under Article 226 - The
Revenue Court is not the Judicial/ Civil
Court - The orders passed by the revenue
authority or consolidation authority are
not the orders being passed by judicial
authority/Civil
Courts
-
High
Court
rejected
the
preliminary
objections
regarding maintainability of the writ
petitions
under
Article
226
of
the
Constitution of India. (Para 16, 22 and 27)

B. UP Consolidation of Holding Act, 1953 -
Civil Procedure Code,1908 - Section 5(2)
- Consolidation Court - Nature - Whether
it is Civil Court or Revenue Court - Held,
the Consolidation Officers may not be
treated as Officers of the Civil Court,
however, they may more or less be
treated as Revenue Officers - The revenue
authorities/consolidation
authorities
when
discharge
their
judicial/quasi
judicial functions used to follow the
specific
mandate
and
mechanism
so
prescribed under the Statute and quite
often, those officers are not trained
judicial officers but being prescribed
authorities under the particular Statute,
they
discharge
their
functions
as
revenue/consolidation
officer.
In
that
way, they may not be treated at par with
the judicial officers of the Civil Court and
therefore, they are not judicial/Civil Court.
At the best, it may be said that they
discharge their duties and functions as
Tribunal. (Para 14 and 26)

Preliminary
objection
regarding
the
maintainability of Writ petition rejected.
(E-1)

List of Cases cited:

## Text

_Characters 0–39,550 of 41,049. This is a partial read: ask again with offset=39550 for what follows._

5 All. Dinesh Chandra @ Dinesh Chandra Tiwari & Ors. Vs. Deputy Director of Consolidation,
 Sultanpur & Ors.
303
trial court on 26.05.2022 for filing the
respective Written Statements and framing
of issues.

22. In light of the above, both the
petitions are disposed of by remanding the
matter back to the Trial Court with
directions to adjudicate the Civil Suit no.
353 of 2022 after following due procedure
as per law without being influenced by any
observation or findings of the District
Judge
vide
impugned
order
dated
19.05.2022. All the parties are free to raise
all their contentions before the trial Court.
----------
(2023) 5 ILRA 303
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.05.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ B No. 229 of 2023
connected with
Writ B No. 245 of 2023
And
Writ B No. 232 of 2023

Dinesh Chandra @ Dinesh Chandra Tiwari
& Ors. ...Petitioners
Versus
Deputy
Director
of
Consolidation,
Sultanpur & Ors. ...Respondents

Counsel for the Petitioners:
Vivek Tripathi

Counsel for the Respondents:
C.S.C., Prabhat Kumar

A. Practice and Procedure - Constitution
of India,1950 - Article 226 & 227 - Writ -
Maintainability - Order was passed by the
Revenue Court in the title matter -
Quashing sought - Whether remedy is the
petition under Article 227 or under Article
226 - Held, Judicial orders of civil court
are not amenable to writ jurisdiction
under Article 226 of the Constitution and
jurisdiction under Article 227 is distinct
from jurisdiction under Article 226 - The
Revenue Court is not the Judicial/ Civil
Court - The orders passed by the revenue
authority or consolidation authority are
not the orders being passed by judicial
authority/Civil
Courts
-
High
Court
rejected
the
preliminary
objections
regarding maintainability of the writ
petitions
under
Article
226
of
the
Constitution of India. (Para 16, 22 and 27)

B. UP Consolidation of Holding Act, 1953 -
Civil Procedure Code,1908 - Section 5(2)
- Consolidation Court - Nature - Whether
it is Civil Court or Revenue Court - Held,
the Consolidation Officers may not be
treated as Officers of the Civil Court,
however, they may more or less be
treated as Revenue Officers - The revenue
authorities/consolidation
authorities
when
discharge
their
judicial/quasi
judicial functions used to follow the
specific
mandate
and
mechanism
so
prescribed under the Statute and quite
often, those officers are not trained
judicial officers but being prescribed
authorities under the particular Statute,
they
discharge
their
functions
as
revenue/consolidation
officer.
In
that
way, they may not be treated at par with
the judicial officers of the Civil Court and
therefore, they are not judicial/Civil Court.
At the best, it may be said that they
discharge their duties and functions as
Tribunal. (Para 14 and 26)

Preliminary
objection
regarding
the
maintainability of Writ petition rejected.
(E-1)

List of Cases cited:

1. Shalini Shyam Shetty & anr. Vs Rajendra
Shankar Patil; (2010) 8 SCC329

2.
Suraj
Singh
Vs
Deputy
Director
of
Consolidation, Jhansi & ors.; 2016 (34) LCD
1860
304 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Radhey Shyam & anr. Vs Chhabi Nath & ors.;
(2015) 5 SCC 423

4. Kiran Devi Vs The Bihar St. Sunni Wakf Board
& ors.; (2021) AIR (SC)1775

5. Consolidation No. 9855 of 2018; Paras Nath
Vs Deputy Director of Consolidation, Ambedkar
Nagar & ors. decided on 05.07.2018

6. Matters Under Article 227 No. 3626 of 2018;
M/S Shiv Baba Industry Lalpur, Shahjahanpur Vs
St. of U.P. & ors. decided on 28.05.2018

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. In the present matter, the question
of
maintainability
has
been
raised,
therefore, the Members of the Bar have
been permitted to address the Court.
Pursuant thereto, Shri M.E. Khan has
argued on behalf of the petitioners assisted
by other counsels of the writ petitioners,
Shri Shailendra Kumar Singh, Chief
Standing Counsel-II assisted by Shri Rohit
Nandan Shukla, Shri R.C. Tiwari, learned
Additional Chief Standing Counsel, Shri
Upendra
Singh,
Shri Yogesh
Kumar
Awasthi, learned Standing Counsel have
argued the case on behalf of the State and
Shri Prabhat Kumar has argued the case on
behalf of the private opposite parties in
Writ B No. 229 of 2023 and Shri Mohan
Singh, learned counsel for the Gaon Sabha.

2. Since the similar question is to be
decided i.e. maintainability of the writ
petition in the writ petitions bearing Writ-B
No.245 of 2023 & Writ-B No.232 of 2023,
therefore, these writ petitions are connected
and the aforesaid question is decided by a
common judgment.

3. Sri Prabhat Kumar, learned counsel
for the private opposite parties has raised
objection regarding maintainability of the
writ petition under Article 226 of the
Constitution of India against the orders
being passed by the ''Revenue Courts'
placing reliance upon the judgment Apex
Court in re; Shalini Shyam Shetty and
another vs. Rajendra Shankar Patil,
(2010) 8 SCC 329 and judgment of this
Court in re; Suraj Singh (since deceased
and substituted by legal heirs) vs. Deputy
Director of Consolidation, Jhansi and
others, 2016 (34) LCD 1860.

4. The sole premise of the objection
regarding maintainability of the writ
petition is that, to decide the title dispute,
be it civil matter or revenue matter,
appropriate remedy would not be to file
petition
under
Article
226
of
the
Constitution of India, rather a petition
should be filed under Article 227 of the
Constitution of India, therefore, as per Sri
Prabhat Kumar, this petition may be
dismissed.

5. In response to the aforesaid
objection,
learned
counsel
for
the
petitioners has stated that it is true that
the issue in question is relating to the title
dispute, but the orders being passed by
the consolidation authorities, which are
not the revenue authorities, therefore, the
objection so raised by learned counsel for
the private opposite parties, placing
reliance upon the aforesaid judgments in
re: Shalini Shyam Shetty (supra) and
Suraj Singh (supra), would not be
applicable in the present case.

6. On the next date, learned counsel
for the petitioners has addressed on the
point of maintainability of the writ petition
placing reliance upon the judgment of Apex
Court rendered in re: Radhey Shyam and
another vs. Chhabi Nath and others,
(2015) 5 SCC 423 wherein the judgment of
5 All. Dinesh Chandra @ Dinesh Chandra Tiwari & Ors. Vs. Deputy Director of Consolidation,
 Sultanpur & Ors.
305
Apex Court rendered in re: Shalini Shyam
Shetty (supra) has been considered.

7. Learned counsel for the petitioners
has also placed reliance upon the judgment
of the Apex Court rendered in re; Suraj
Singh (supra), which is based on the
judgment of the Apex Court rendered in re:
Radhey Shyam (supra) as well as the Full
Bench judgment of Apex Court rendered in
re: Kiran Devi vs. The Bihar State Sunni
Wakf Board and others, (2021) AIR (SC)
1775, by submitting that if the order is
passed by the Revenue Authority, a writ
under Article 226 of the Constitution of
India may lie.

8. Referring various paragraphs of the
judgment rendered in re: Radhay Shyam
(supra), specific reliance has been placed
towards para-25 wherein the Apex Court
has clearly observed that the orders of the
civil court stand on different footing from
the orders of authorities or tribunals or
courts other than judicial/ civil courts and
learned counsel for the petitioners has
submitted that if order of any judicial
officer/ civil court is assailed, the petition
should have been filed under Article 227 of
the Constitution but in other cases the writ
petition
under
Article
226
of
the
Constitution of India may lie. However,
learned Chief Standing Counsel and
learned counsel for private opposite parties
referred para 18 of the judgment of the
Apex Court in re; Radhay Shyam (supra).

9. Learned counsel for the petitioners
has also referred Section 3 of C.P.C. which
provides the subordination of courts and as
per Section 3 of C.P.C., the District Court is
subordinate to the High Court, and every
Civil Court of a grade inferior to that of a
District Court and every Court of Small
Causes is subordinate to the High Court
and District Court. He has also referred
Section 5 of C.P.C., which provides
application of the Code to Revenue Courts.
Sub-Section 2 of Section 5 C.P.C. provides
that the "Revenue Court" in sub-section (1)
means a Court having jurisdiction under
any local law to entertain suits or other
proceedings relating to the rent, revenue or
profits of land used for agricultural
purposes, but does not include a Civil
Court having original jurisdiction under
this Code to tray such suits or proceedings
as being suits or proceedings of a civil
nature.

10. In view of the above, learned
counsel for the petitioners has stated that
the Revenue Court is different from the
District/ Civil Court and the bar carved out
in Radhey Shyam (supra) is only meant
for District/ Civil Court not for Revenue
Court, therefore, no other inference of
dictum of the Apex Court in re; Radhey
Shyam (supra) may be drawn since the
findings and observations of the Apex
Court are very clear.

11. So as to understand the difference
between the Civil Court and Revenue
Court, Sections 3 and 5 of Code of Civil
Procedure, 1908 (hereinafter referred to as
"CPC") would have to be considered,
which read as under:-

"3. Subordination of Courts-
For the purposes of this Code, the District
Court is subordinate to the High Court, and
every Civil Court of a grade inferior to that
of a District Court and every Court of
Small Causes is subordinate to the High
Court and District Court.

5. Application of the Code of
Revenue Courts- (1) Where any Revenue
Courts are governed by the provisions of
this Code in those matters of procedure
306 INDIAN LAW REPORTS ALLAHABAD SERIES
upon
which
any
special
enactment
applicable to them is silent, the State
Government may, by notification in the
Official Gazette, declare that any portions
of those provisions which are not expressly
made applicable by this Code shall not
apply to those Courts, or shall only apply
to them with such modifications as the State
Government may prescribe.

(2) "Revenue Court" in subsection
(1)
means
a
Court
having
jurisdiction under any local law to
entertain
suits
or
other
proceedings
relating to the rent, revenue or profits of
land used for agricultural purposes, but
does not include a Civil Court having
original jurisdiction under this Code to try
such suits or proceedings as being suits or
proceedings of a civil nature.

12. Notably, Section 5 (2) CPC
provides that proceedings relating to the
rent, revenue or profits of land used for
agricultural purposes are conducted by the
Revenue Courts not by the Civil Court
having original jurisdiction under the CPC
to try such suits or proceedings as being
suits or proceedings of a civil nature.
Therefore, it is clear from the CPC itself
that Civil Courts are different from the
Revenue Courts.

13. U.P. Consolidation of Holding Act,
1953 (hereinafter referred to as "the Act")
is a complete Code, which provides redress
of all the grievances of a Chak Holder in
respect of improper allotment either it may
be in respect of wrong valuation, wrong
placement or other objection of similar
nature.
"Consolidation''
means
rearrangement of holdings in a unit amongst
several tenure-holders in such a way as to
make their respective holdings more
compact vide Section 3 (2) of the Act.
"Consolidation Scheme'' means the scheme
of consolidation in a unit as provided in
Section (3-B) of Section 3 of the Act.
Section 4 of the Act provides declaration
and notification regarding consolidation.
Consolidation
operation
starts
after
declaration and notification being issued
under Section 4 of the Act.

14.
Therefore,
considering
the
aforesaid aspect, the Consolidation Officers
may not be treated as Officers of the Civil
Court, however, they may more or less be
treated as Revenue Officers.

15. The Apex Court in re; Radhey
Shyam (supra) has decided the issue as to
what orders can be assailed under Article
226 of the Constitution of India and what
orders can be assailed under Article 227 of
the Constitution of India. The relevant
observations of the judgment in re; Radhey
Shyam (supra) have been given in paras-
18 and 25 to 29, which read as under:-

"18. While the above judgments
dealt with the question whether judicial
order could violate a fundamental right, it
was clearly laid down that challenge to
judicial orders could lie by way of appeal
or revision or under Article 227 and not by
way of a writ under Articles 226 and 32.

25. It is true that this Court has
laid down that technicalities associated
with the prerogative writs in England have
no role to play under our constitutional
scheme. There is no parallel system of
King's Court in India and of all the other
courts having limited jurisdiction subject to
the supervision of the King's Court. Courts
are set up under the Constitution or the
laws. All the courts in the jurisdiction of a
High Court are subordinate to it and
subject to its control and supervision under
Article
227.
Writ
jurisdiction
is
constitutionally conferred on all the High
5 All. Dinesh Chandra @ Dinesh Chandra Tiwari & Ors. Vs. Deputy Director of Consolidation,
 Sultanpur & Ors.
307
Courts.
Broad
principles
of
writ
jurisdiction followed in England are
applicable to India and a writ of certiorari
lies against patently erroneous or without
jurisdiction
orders
of
tribunals
or
authorities or courts other than judicial
courts. There are no precedents in India for
the High Courts to issue writs to the
subordinate courts. Control of working of
the subordinate courts in dealing with their
judicial orders is exercised by way of
appellate or revisional powers or power of
superintendence under Article 227. Orders
of the civil court stand on different footing
from the orders of authorities or tribunals
or courts other than judicial/civil courts.
While appellat e or revisional jurisdiction
is regulated by the statutes, power of
superintendence under Article 227 is
constitutional. The expression "inferior
court" is not referable to the judicial
courts, as rightly observed in the referring
order [Radhey Shyam v. Chhabi Nath,
(2009) 5 SCC 616] in paras 26 and 27
quoted above.

26. The Bench in Surya Dev Rai
[Surya Dev Rai v. Ram Chander Rai,
(2003) 6 SCC 675] also observed in para
25 of its judgment that distinction between
Articles 226 and 227 stood almost
obliterated. In para 24 of the said judgment
distinction in the two articles has been
noted. In view thereof, observation that
scope of Articles 226 and 227 was
obliterated was not correct as rightly
observed [Radhey Shyam v. Chhabi Nath,
(2009) 5 SCC 616] by the referring Bench
in para 32 quoted above. We make it clear
that though despite the curtailment of
revisional jurisdiction under Section 115
CPC by Act 46 of 1999, jurisdiction of the
High Court under Article 227 remains
unaffected, it has been wrongly assumed in
certain quarters that the said jurisdiction
has been expanded. Scope of Article 227
has been explained in several decisions
including Waryam Singh v. Amarnath [AIR
1954 SC 215 : 1954 SCR 565] , Ouseph
Mathai v. M. Abdul Khadir [(2002) 1 SCC
319], Shalini Shyam Shetty v. Rajendra
Shankar Patil [(2010) 8 SCC 329 : (2010)
3 SCC (Civ) 338] and Sameer Suresh
Gupta v. Rahul Kumar Agarwal [(2013) 9
SCC 374 : (2013) 4 SCC (Civ) 345]. In
Shalini Shyam Shetty [(2010) 8 SCC 329 :
(2010) 3 SCC (Civ) 338] this Court
observed: (SCC p. 352, paras 64-67).

"64.
However,
this
Court
unfortunately discerns that of late there is a
growing trend amongst several High
Courts to entertain writ petition in cases of
pure property disputes. Disputes relating to
partition suits, matters relating to execution
of a decree, in cases of dispute between
landlord and tenant and also in a case of
money decree and in various other cases
where disputed questions of property are
involved, writ courts are entertaining such
disputes. In some cases the High Courts, in
a routine manner, entertain petitions under
Article 227 over such disputes and such
petitions are treated as writ petitions.

65. We would like to make it clear
that in view of the law referred to above in
cases of property rights and in disputes
between private individuals writ court
should not interfere unless there is any
infraction of statute or it can be shown that
a private individual is acting in collusion
with a statutory authority.

66. We may also observe that in
some High Courts there is a tendency of
entertaining petitions under Article 227 of
the Constitution by terming them as writ
petitions. This is sought to be justified on
an erroneous appreciation of the ratio in
Surya Dev [Surya Dev Rai v. Ram Chander
Rai, (2003) 6 SCC 675] and in view of the
recent amendment to Section 115 of the
Civil
Procedure
Code
by
the
Civil
308 INDIAN LAW REPORTS ALLAHABAD SERIES
Procedure Code (Amendment) Act, 1999. It
is urged that as a result of the amendment,
scope of Section 115 CPC has been
curtailed. In our view, even if the scope of
Section 115 CPC is curtailed that has not
resulted in expanding the High Court's
power of superintendence. It is too well
known to be reiterated that in exercising its
jurisdiction, High Court must follow the
regime of law.

67. As a result of frequent
interference by the Hon'ble High Court
either under Article 226 or 227 of the
Constitution with pending civil and at times
criminal cases, the disposal of cases by the
civil and criminal courts gets further
impeded and thus causing serious problems
in the administration of justice. This Court
hopes and trusts that in exercising its
power either under Article 226 or 227, the
Hon'ble High Court will follow the timehonoured
principles
discussed
above.
Those principles have been formulated by
this Court for ends of justice and the High
Courts as the highest courts of justice
within their jurisdiction will adhere to them
strictly."
(emphasis supplied)

27. Thus, we are of the view that
judicial orders of civil courts are not
amenable to a writ of certiorari under
Article 226. We are also in agreement with
the view [Radhey Shyam v. Chhabi Nath,
(2009) 5 SCC 616] of the referring Bench
that a writ of mandamus does not lie
against a private person not discharging
any public duty. Scope of Article 227 is
different from Article 226.

28. We may also deal with the
submission
made
on
behalf
of
the
respondent that the view in Surya Dev Rai
[Surya Dev Rai v. Ram Chander Rai,
(2003) 6 SCC 675] stands approved by
larger Benches in Shail [Shail v. Manoj
Kumar, (2004) 4 SCC 785 : 2004 SCC (Cri)
1401], Mahendra Saree Emporium (2)
[Mahendra Saree Emporium (2) v. G.V.
Srinivasa Murthy, (2005) 1 SCC 481] and
Salem Advocate Bar Assn. (2) [Salem
Advocate Bar Assn. (2) v. Union of India,
(2005) 6 SCC 344] and on that ground
correctness of the said view cannot be gone
into by this Bench. In Shail [Shail v. Manoj
Kumar, (2004) 4 SCC 785 : 2004 SCC (Cri)
1401], though reference has been made to
Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] , the same
is only for the purpose of scope of power
under Article 227 as is clear from para 3 of
the said judgment. There is no discussion
on the issue of maintainability of a petition
under Article 226. In Mahendra Saree
Emporium (2) [Mahendra Saree Emporium
(2) v. G.V. Srinivasa Murthy, (2005) 1 SCC
481] , reference to Surya Dev Rai [Surya
Dev Rai v.Ram Chander Rai, (2003) 6 SCC
675] is made in para 9 of the judgment only
for the proposition that no subordinate
legislation
can
whittle
down
the
jurisdiction conferred by the Constitution.
Similarly, in Salem Advocate Bar Assn. (2)
[Salem Advocate Bar Assn. (2) v. Union of
India, (2005) 6 SCC 344] in para 40,
reference to Surya Dev Rai [Surya Dev Rai
v. Ram Chander Rai, (2003) 6 SCC 675] is
for the same purpose. We are, thus, unable
to accept the submission of the learned
counsel for the respondent.

29. Accordingly, we answer the
question referred as follows:

29.1. Judicial orders of the civil
court are not amenable to writ jurisdiction
under Article 226 of the Constitution.

29.2. Jurisdiction under Article
227 is distinct from jurisdiction under
Article 226.

29.3. Contrary view in Surya Dev
Rai v. Ram Chander Rai, (2003) 6 SCC
675, is overruled."

(emphasis supplied)
5 All. Dinesh Chandra @ Dinesh Chandra Tiwari & Ors. Vs. Deputy Director of Consolidation,
 Sultanpur & Ors.
309

16. The Apex Court in re; Radhey
Shyam (supra) in para-25 has categorically
held that writ jurisdiction under Article 226
is conferred on all the High Courts whereby
the writ of certiorari can be issued against
patently erroneous or without jurisdiction
orders of Tribunal or authorities or courts
''other
than
judicial
courts'.
For
challenging the judicial orders, writ under
Article 227 may lie as the High Court got
power of superintendence under Article 227
of the Constitution of India. The Apex
Court further provides that orders of the
Civil Court stand on different footing from
the orders of authorities or Tribunals or
courts other than judicial/Civil Courts.
While answering the question referred
before the Apex Court in re; Radhey
Shyam (supra), the Apex Court has clearly
held in para-29.1 and 29.2 that judicial
orders of civil court are not amenable to
writ jurisdiction under Article 226 of the
Constitution and jurisdiction under Article
227 is distinct from jurisdiction under
Article 226.

17. Sri Prabhat Kumar has drawn
attention of this Court towards the decision
of this Court in re; Suraj Singh (supra)
wherein the Hon'ble Single Judge of this
Court has, however, observed that against
the judicial order of Civil Court, writ under
Article 226 would not lie but the reasons
assigned in that judgment would equally
apply to the Revenue Courts also.

18.
Sri
Prabhat
Kumar,
learned
counsel for the private opposite parties has
referred the decision of this Court dated
05.07.2018 in re; Paras Nath Vs. Deputy
Director of Consolidation, Ambedkar
Nagar & Ors., Consolidation No.9855 of
2018, whereby the writ petition of a similar
nature has been entertained under Article
227 of the Constitution of India. Notably,
the judgment of the Apex Court in re;
Radhey Shyam (supra) and the judgment
of
Suraj
Singh
(supra)
have
been
considered and it has been held that the
judgment in re; Suraj Singh (supra) would
be applicable treating as if that writ petition
has been filed under Article 227 of the
Constitution of India. Sri Prabhat Kumar
has also cited the judgment of this Court
dated 28.05.2018 in re; M/S Shiv Baba
Industry Lalpur, Shahjahanpur Vs. State
of U.P. and 3 Ors, Matters Under Article
227 No.3626 of 2018, referring para-27
thereof to submit that instead of Article 226
of the Constitution of India, the writ
petition challenging the orders of Revenue
Court/ Consolidation Authorities should
have been filed under Article 227 of the
Constitution of India. Para-27 in re; M/S
Shiv
Baba
Industry
Lalpur,
Shahjahanpur (supra) reads as under:-

"27. Thus after the consistent
expression of unanimous opinion by their
Lordships of the Supreme Court in Shalini
Shyam Shetty (supra) and the decision of
Three Judge Bench of their Lordships in
Radhey Shyam (supra), there remains no
cavil
notwithstanding
any
kind
of
interpretation that might have been earlier
placed on the amended Rules of Chapter
XXII of the High Court Rules that a petition
under Article 227 of the Constitution can
never be styled as a writ petition and
styling it as a writ petition is certainly a
defect that goes to the root of the matter
rendering such a petition ill-framed beyond
maintainability. A petition under Article
227 of the Constitution in order to be in
tune with the jurisdiction it invokes may be
styled as a Civil Misc. Applications or
Criminal Misc. Applications or may be
labelled by any appropriate nomenclature
which eschews the use of the word writ. In
addition, the relief clause should not ask
310 INDIAN LAW REPORTS ALLAHABAD SERIES
for issue of any of the writs or orders in the
nature of writs as are enumerated in Article
226 of the Constitution, that includes
mandamus, certiorari, prohibition or quowarranto. The relief in a matter under
Article 227 of the Constitution may not only
seek setting aside of the order under
challenge, but reversal of the same and
further orders on the applications made to
the subordinate court or tribunal in the
same manner as a court of appeal or
revision, subject of course to limitations on
the exercise of the power under Article 227,
could have passed including injunctions
and directions of an appropriate kind to
private parties or in the context of criminal
proceedings like one involving reversal of
an interlocutory order, refusing discharge
by the Trial Court and the Sessions Judge
in revision concurrently."

19. Notably, the aforesaid writ petition
was filed under Article 227 of the
Constitution of India and it was entertained
under that Article only.

20. The Full Bench of the Apex Court
in re; Kiran Devi (supra) has considered
the dictum of the Apex Court in re; Radhey
Shyam (supra). Paragraph nos.19 to 23 in
re; Kiran Devi (supra) read as under:-

"19. A three Judge Bench in a
judgment reported as Radhey Shyam v.
Chhabi Nath & Ors., (2015) 5 SCC 423
held that the observations in para 25 of the
judgment in Surya Dev Rai v. Ram Chander
Rai & Ors., (2003) 6 SCC 675, to be not
good law. In Surya Dev Rai, it was held
that the order of Civil Court could be
challenged in a petition under Article 226
and that the distinction between Articles
226 and 227 of the Constitution of India
stood almost obliterated. This Court in
Radhey Shyam held:

"27. ... we are of the view that
judicial orders of civil courts are not
amenable to a writ of certiorari under
Article 226. We are also in agreement with
the view [Radhey Shyam v. Chhabi Nath,
(2009) 5 SCC 616] of the referring Bench
that a writ of mandamus does not lie
against a private person not discharging
any public duty. Scope of Article 227 is
different from Article 226.

xxxxxxxxx

29. Accordingly, we answer the
question referred as follows:

29.1. Judicial orders of the civil
court are not amenable to writ jurisdiction
under Article 226 of the Constitution.

29.2. Jurisdiction under Article
227 is distinct from jurisdiction under
Article 226.

29.3. Contrary view in Surya Dev
Rai [Surya Dev Rai v. Ram Chander Rai,
(2003) 6 SCC 675] is overruled."

20. Therefore, when a petition is
filed against an order of the Wakf Tribunal
before the High Court, the High Court
exercises the jurisdiction under Article 227
of the Constitution of India. Therefore, it is
wholly immaterial that the petition was
titled as a writ petition. It may be noticed
that in certain High Courts, petition under
Article 227 is titled as writ petition, in
certain other High Courts as revision
petition and in certain others as a
miscellaneous petition. However, keeping in
view the nature of the order passed, more
particularly in the light of proviso to subsection (9) of Section 83 of the Act, the High
Court exercised jurisdiction only under the
Act. The jurisdiction of the High Court is
restricted to only examine the correctness,
legality or propriety of the findings recorded
by the Wakf Tribunal. The High Court in
exercise of the jurisdiction conferred under
proviso to sub-section (9) of Section 83 of the
Act does not act as the appellate court.
5 All. Dinesh Chandra @ Dinesh Chandra Tiwari & Ors. Vs. Deputy Director of Consolidation,
 Sultanpur & Ors.
311

21. We find merit in the argument
raised by Mr. Sanyal that the nomenclature
of the title of the petition filed before the
High Court is immaterial. In Municipal
Corporation of the City of Ahmedabad v.
Ben Hiraben Manilal, (1983) 2 SCC 422,
this Court held that wrong reference to the
power under which an action was taken by
the Government would not per se vitiate the
action, if the same could be justified under
some other power whereby the Government
could lawfully do that act. The Court held
as under:

"5. ....It is well settled that the
exercise of a power, if there is indeed a
power, will be referable to a jurisdiction,
when the validity of the exercise of that
power is in issue, which confers validity
upon it and not to a jurisdiction under
which it would be nugatory, though the
section was not referred, and a different or
a wrong section of different provisions was
mentioned. See in this connection the
observations in Pitamber Vajirshet v.
Dhondu Navlapa [ILR (1888) 12 Bom 486,
489]. See in this connection also the
observations of this Court in the case of L.
Hazari Mal Kuthiala v. ITO, Special Circle,
Ambala Cantt. [AIR 1961 SC 200:(1961) 1
SCR 892:(1961) 41 ITR 12, 16 : (1961) 1
SCJ 617] This point has again been
reiterated by this Court in the case of
Hukumchand Mills Ltd. v. State of M.P.
[AIR
1964 SC
1329:(1964)
6
SCR
857:(1964) 52 ITR 583: (1964) 1 SCJ 561]
where it was observed that it was well
settled that a wrong reference to the power
under which action was taken by the
Government would not per se vitiate that
action if it could be justified under some
other power under which Government
could lawfully do that act. See also the
observations of the Supreme Court in the
case of Nani Gopal Biswas v. Municipality
of Howrah [AIR 1958 SC 141: 1958 SCR
774: 1958 SCJ 297 : 1958 Cri LJ 271]."

22. Later, in Pepsi Foods Ltd.,
this Court held that nomenclature under
which the petition is filed is not quite
relevant and it does not debar the Court
from exercising its jurisdiction which
otherwise it possesses. If the Court finds
that the appellants could not invoke its
jurisdiction under Article 226, the Court
can certainly treat the petition as one under
Article 227 or Section 482 of the Code.
This Court held as under:

"26. Nomenclature under which
petition is filed is not quite relevant and
that does not debar the court from
exercising its jurisdiction which otherwise
it possesses unless
there
is
special
procedure prescribed which procedure is
mandatory. If in a case like the present one
the court finds that the appellants could not
invoke its jurisdiction under Article 226,
the court can certainly treat the petition as
one under Article 227 or Section 482 of the
Code. It may not however, be lost sight of
that provisions exist in the Code of revision
and appeal but some time for immediate
relief Section 482 of the Code or Article
227 may have to be resorted to for
correcting some grave errors that might be
committed by the subordinate courts. The
present petition though filed in the High
Court as one under Articles 226 and 227
could well be treated under Article 227 of
the Constitution."

23. Therefore, the petition styled
as one under Article 226 would not bar the
High Court to exercise jurisdiction under
the Act and/or under Article 227 of the
Constitution. The jurisdiction of the High
Court to examine the correctness, legality
and propriety of determination of any
dispute by the Tribunal is reserved with the
High Court. The nomenclature of the
proceedings as a petition under Article 226
312 INDIAN LAW REPORTS ALLAHABAD SERIES
or a petition under Article 227 is wholly
inconsequential and immaterial."

21. Sri Shailendra Kumar Singh,
learned Chief Standing Counsel-II has also
adopted the objection so raised by Sri
Prabhat Kumar and has submitted that if
the orders of Consolidation Authorities or
Revenue Authorities have been assailed,
the writ petition under Article 226 would
not be maintainable. He has also cited those
judgments, which have been cited by the
learned counsel for the petitioners and Sri
Prabhat Kumar.

22. As has been considered above vide
paras-25 to 29 in re; Radhey Shyam
(supra), the Apex Court has clarified the
position. Particularly, in para-25 in re;
Radhey Shyam (supra), the Apex Court
has observed that writ of certiorari may lie
against patently erroneous and without
jurisdiction order of Tribunal or authorities
or courts other than judicial/Civil Courts.
Further, the Revenue Court is not the
Judicial/ Civil Court. In the judgment of
Radhey Shyam (supra), judgment of
Shalini Shyam Shetty (supra) has been
considered by the Apex Court in para-26
and after considering the judgment of
Shalini Shyam Shetty (supra), the Apex
Court in re; Radhey Shyam (supra) has
carved out the distinction between the
orders being passed by the Civil Court and
other than Civil Court by holding that the
judicial orders of the Civil Court are not
amenable to writ jurisdiction under Article
226 of the Constitution of India.

23. The judgments so cited by the
respective parties, there is no dispute that
reliance upon the dictum of the Apex Court
in re; Radhey Shyam (supra) has been
placed. Learned counsel for the parties are
in agreement that the Apex Court in re;
Radhey Shyam (supra) has clearly and
explicitly has observed as to what would
happen in respect of the orders being
passed by the Judicial/ Civil Courts and the
orders
being
passed
by
other
than
Judicial/Civil Courts. No writ petition shall
lie against the orders of Judicial/Civil
Courts under Article 226 and there is
apparent distinction between Articles 226
& 227 of the Constitution of India. Since
the Apex Court has not held that even if
any order is passed by a judicial or quasi
judicial authority while exercising its
statutory powers and even if that authority
is other than judicial/ Civil Court, no writ
shall lie under Article 226 of the
Constitution of India, therefore, no other
inference may be drawn from the ratio of
the judgment of the Apex Court in re;
Radhey Shyam (supra), which has not
specifically been held. If the specific and
clear direction has been issued by the Apex
Court in re; Radhey Shyam (supra), any
other inference should not be drawn. If the
Apex Court was of the view that the orders
of
all
judicial
authorities,
be
it
Judicial/Civil
Court
or
Revenue/Consolidation
Court/Authority,
are not amenable under Article 226 of the
Constitution of India, specific direction to
that effect would have been given but no
specific direction to that effect has been
given by the Apex Court in para-29 of the
judgment in re; Radhey Shyam (supra).
The Full Bench of the Apex Court in re;
Kiran Devi (supra) has observed that the
Apex Court has considered all relevant
judgments in re; Radhey Shyam (supra)
including the judgment in re; Shalini
Shyam Shetty (supra) and held that the
petition styled as ''Under Article 226' would
not bar the High Court to exercise
jurisdiction under Article 227 of the
Constitution
of
India.
Basically,
the
jurisdiction of the High Court is to examine
5 All. Dinesh Chandra @ Dinesh Chandra Tiwari & Ors. Vs. Deputy Director of Consolidation,
 Sultanpur & Ors.
313
the correctness, legality and propriety of
the orders being passed by the subordinate
authority/court, the nomenclature of the
proceedings as a petition under Article 226
or a petition under Article 227 is wholly
inconsequential and immaterial. The Full
Bench of the Apex Court in re; Kiran Devi
(supra) has not restricted entertaining such
type of petitions under Article 226 of the
Constitution of India, rather has observed
that in the given facts and circumstances,
the nomenclature of the proceedings would
be wholly immaterial.

24. The Apex Court in para 25 in re;
Radhey Shyam (supra) has considered its
own observation of para 18. Further, the
observation of para 18 may be read in the
light of observation given in paras 25 & 29
in re; Radhey Shyam (supra).

25. In view of the above, when there is
a settled law of the Apex Court in re;
Radhey Shyam (supra) and Kiran Devi
(supra) and there is clarity in the directions
of the Apex Court in the aforesaid cases,
therefore, being a High Court, I have no
other option except to follow those
directions of the Apex Court in its letter
and spirit. Further, the judgments and
orders of the Coordinate Bench are not
binding if the directions thereof are not in
conformity with the directions being issued
by the Apex Court.

26. There is apparent difference between
the court of law and the Tribunals. The court
of law is vested with general jurisdiction over
all the matters, whereas the Tribunals deal
with the matters vested with limited
jurisdiction to decide a particular issue/issues
as per specific statutory prescription to that
effect. Courts exercise only the judicial
functions whereas the Tribunals undertake
various
other
administrative
functions.
Officers of the court, more particularly
judicial courts, are trained and expert persons
in the law, however, it is not mandatory in
every case that the members of the Tribunal
need to be trained and expert in law. In view
of
the
above,
the
revenue
authorities/consolidation authorities when
discharge
their
judicial/
quasi
judicial
functions used to follow the specific mandate
and mechanism so prescribed under the
Statute and quite often, those officers are not
trained judicial officers but being prescribed
authorities under the particular Statute, they
discharge
their
functions
as
revenue/consolidation officer. In that way,
they may not be treated at par with the
judicial officers of the Civil Court and
therefore, they are not judicial/Civil Court. At
the best, it may be said that they discharge
their duties and functions as Tribunal.

27. Accordingly, considering the
arguments of learned counsel for the
parties and the judgments so placed,
which have been considered herein
above, I am of the considered opinion
that the orders being passed by the
revenue
authority
or
consolidation
authority are not the orders being passed
by
judicial
authority/Civil
Courts,
therefore, the preliminary objections so
raised by the learned counsel for the
opposite parties regarding maintainability
of the writ petitions under Article 226 of
the Constitution of India is hereby
rejected. These writ petitions under
Article 226 of the Constitution of India
challenging
the
orders
of
the
consolidation/revenue authorities are held
to be maintainable.

28. Let counter affidavit be filed
within a period of four weeks. Rejoinder
affidavit, if any, may be filed within a
period of two weeks.
314 INDIAN LAW REPORTS ALLAHABAD SERIES

29. List the aforesaid petitions in the
week commencing 3rd July, 2023.

30. Interim orders granted earlier shall
continue till the next date of listing in all
the writ petitions.

31. Since all the writ petitions were
connected for the reason that preliminary
objection regarding maintainability was
raised
and
the
aforesaid
preliminary
objection has been rejected, therefore, all
the writ petitions would be heard and
decided on their own merits.

32. Accordingly, Writ-B No.245 of
2023 & Writ-B No.232 of 2023 are delinked from Writ-B No.229 of 2023 and list
them separately.
----------
(2023) 5 ILRA 314
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 534 of 2022

Havaldar Singh & Ors. ...Petitioners
Versus
District Deputy Director of Consolidation,
Azamgarh & Ors. ...Respondents

Counsel for the Petitioners:
Sri Narayan Dutt Shukla, Sri Rituvendra
Singh Nagvanshi, Sri Shiv Chand Yadav, Sri
Shyam Lal, Sri R.C. Singh (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Rameshwar Prasad Shukla

A.