# Radhey Shyam and Ors v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 713
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-22
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-and-ors-v-state-of-u-p-and-ors-42568
- **Pages:** 5

## Headnote

U.P. Land Revenue Act 1901-Section
219(i)- Revision against order passed by
Thsildar under section 34-dismissed with
direction
to
file
appeal-held-order
by
revision Court-illegal-revision maintainable
but not filed-revisional court wrongly failed
to exercise its power-order quashed.

Held: Para-17
In view of the law laid down by the Apex
Court no room is left for doubt that in
case the revisional court has failed to
exercise its jurisdiction vested in it, such
order
passed,
even
in
mutation
proceedings cannot be sustained in the
eye of law and writ petition would be
maintainable against such order.

Case Law discussed:
1984 R.R. 333 (E); 1987 RD 109; 2007 (103)
RD; AIR 1977 S.C. 1718; AIR 1975 SC 1409;
AIR 1999 SC 1124; 2002 (48) ALR 319(SC);
2009 (106) RD 98

## Text

2 All] Radhey Shyam and Ors. Vs. State of U.P. and Ors.
713
aspect. Learned counsel for the respondent -
Committee of Management, therefore, could
not support the order on this ground. The
impugned order, therefore, being in violation
of Regulation 37 of Chapter-III of 1921 Act
cannot be sustained.

12. The writ petition is allowed. The
order impugned is hereby set aside. It
shall be open to the Committee of
Management to proceed to take action
against the petitioner in accordance with
the regulations aforesaid and in the light
of the judgments referred to herein above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 29171 Of 2013

Radhey Shyam and Ors. ...Petitioners
Versus
State of U.P. and Ors.
 ..Respondents

Counsel for the Petitioner:
Sri Babu Lal Ram
Sri S.K. Chaudhary

Counsel for the Respondents:
C.S.C., Sri Mahendra Pratap
Sri P.R. Maurya, Sri Anurag Yadav
Sri Sunil Kumar Maurya

U.P. Land Revenue Act 1901-Section
219(i)- Revision against order passed by
Thsildar under section 34-dismissed with
direction
to
file
appeal-held-order
by
revision Court-illegal-revision maintainable
but not filed-revisional court wrongly failed
to exercise its power-order quashed.

Held: Para-17
In view of the law laid down by the Apex
Court no room is left for doubt that in
case the revisional court has failed to
exercise its jurisdiction vested in it, such
order
passed,
even
in
mutation
proceedings cannot be sustained in the
eye of law and writ petition would be
maintainable against such order.

Case Law discussed:
1984 R.R. 333 (E); 1987 RD 109; 2007 (103)
RD; AIR 1977 S.C. 1718; AIR 1975 SC 1409;
AIR 1999 SC 1124; 2002 (48) ALR 319(SC);
2009 (106) RD 98

(Delivered by Hon'ble Ran Vijay Singh, J.)
.

1. Heard Sri Babu Lal Ram along with
S.K.Chaudhary, learned counsel for the
petitioners, learned standing counsel for the
State-respondents, Sri Mahendra Pratap
andSri P.R.Maurya along with Sri Anurag
Yadav, and Sri Sunil Kumar Maurya,learned
counsel for respondent no.4.

2. With the consent of the learned
counsel for the partiesthe writ petition is
beingdecided on its own merits without
exchange of affidavits.

3. Through this writ petitionthe
petitioners have prayed issuing a writ of
certiorari
quashing
the
order
dated
25.3.2013
passed
by
the
Tehsildar
(Judicial), Sadar, Jaunpur, respondent no.3
in Case No. 248 (Hari Cold Storage and
General Mills Private Limited vs. Radhey
Shyam and others) and the order dated
10.5.2013 passed by Additional District
Magistrate
(Finance
and
Revenue),
Jaunpur, respondent no.2.Vide order dated
25.3.2013 the application of respondent
no.4 filed under section 34 of the U.P.
Land Revenue Act, 1901 (for short the
Act) has been allowed. However, by the
subsequent order the revision filed by the
petitioner has been dismissed with the
direction to the petitioner to file an appeal
against the order impugned in the revision.
714 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

4. It is contended by the learned
counsel for the petitioners that the
revisional court has erred in relegating the
petitioners to avail remedy of appeal
against
the
order
impugned
dated
25.3.2013 passed by the Tehsildar,
respondent no.3 instead of deciding the
revision himself.On the other hand,
learned counsel for the respondent no.4
contended that the issue involved in the
revision canonly be decided by the
appellate court as the jurisdiction of the
revisional court is very limited and the
appellate court can investigate the fact
also. Therefore, no infirmity can be
attached with the impugned order and the
revisional court has rightly directed the
petitioners to file an appeal against the
order impugned.

5. I have heard the learned counsel
for the parties and perused the record.It is
not in dispute that the application of
respondent no.4 filed under section 34 of
the Act was allowed by the Tehsildar,
respondent no.3. It is also not in dispute
that in the aforesaid proceeding the
petitioner was a party and the order dated
25.3.2013 was passed after hearing both
the parties.

6. Under theAct there are two
sections, i.e. Section 210/211, which
confers right to the tenure holder to file an
appeal against various ordersunderthe Act
andsection 219which confers the remedy
of
revision.
For
appreciating
the
controversy it would be useful to go
through the section 219(1), the 'Revision'
which isreproduced herein under:

"219 Revision (1) The Board or the
Commissioner
or
the
Additional
Commissioner or the Collector or the
Record Officer, or the Settlement Officer
may call forthe record of any case decided
or proceeding held by any revenue Court
subordinate to him in which no appeal lies
or where an appeal lies but has not been
preferred, for the purpose of satisfying
himself as the legality or propriety of the
order passed or proceeding held and if
such subordinate revenue Court appears
to have-

(a) exercised a jurisdiction not vested
in it by law, or

(b) failed to exercise a jurisdiction so
vested, or

(c)
acted
in
the
exercise
of
jurisdiction illegally or with material
irregularity,
the
Board
or
the
Commissioner
or
the
Additional
Commissioner or the Collector or the
Record Officer, or the Settlement Officer,
as the case may be, pass such order in the
case as he thinks fit."

8. From the bare reading of subsection (1) of section 219 it would
transpire that the remedy of revision can
be availed against an order where order
can be appealed but the remedy of appeal
has not been availed or where against the
order impugned no appeal lies.

9. Here it isnot in dispute that the
order impugned in the revision was
appealable but in view of the language
used in sub-section (1) of section 219 of
the Act the revision could be maintained
against an order where appeal liesbut has
not been preferred and the same has been
filed directly under section 219 of the Act
before the Additional District Magistrate
(Finance and Revenue), Jaunpur.

10..The
other
side
has
taken
objection that the revision can not be filed
directly without availing the remedy of
appeal.Another argument was raised that
2 All] Radhey Shyam and Ors. Vs. State of U.P. and Ors.
715
appreciation of facts and perusal of
evidence etc.can notbe done under the
revisional jurisdiction and that comes in
the domain of the appellate court.

11.

The
Additional
District
Magistrate (F & R) after going through
the record and hearing the parties came to
the conclusion that since in the case in
hand the perusal of facts and evidence etc.
would be required, thereforethe remedy of
appeal under section 210 of the Act would
be the appropriate remedy and he
dismissed the revision with the direction
to the petitioner to file appeal.

12. The revision was fiisled under
section 219 of the Act. Sub-section 1 of
section 219 of the Act confers a remedy
of revision to a tenure holder before the
Board of Revenue or the Commissioner or
the Additional Commissioner or the
Collector or the Record Officer, or the
Settlement
Officer
and
the
court
concerned,
on
such
approach
or
otherwise, may call for the record of any
case decided or proceeding held by any
revenue courts subordinate to him in
which no appeal lies or where an appeal
lies but has not been preferred, for the
purpose of satisfying himselfthe legality
or propriety of the order passed or
proceeding held and if such subordinate
revenue court appears to have exercised a
jurisdiction not vested in it by law, or
failed to exercise a jurisdiction so vested,
or acted in the exercise of jurisdiction
illegally or with material irregularity,as
the case may be, may pass such order in
the case as he thinks fit.

13. From the bare reading ofsection
219 of the Act it transpires that while
conferring the power of revision against
an order where an appeal lies but has not
been filed the intention of the legislature
is very much clear. The revisional court
has been conferred power to exercise the
power of the appellate court as well as the
revisional court both particularly in the
circumstances where remedy of appeal is
provided but has not been availed and the
revision has been filed directly. Otherwise
also the power is not restricted as from the
entire reading of the section219 of the Act
it would be clearthat a very vide power
has been conferred upon therevisional
court over its subordinate courts and this
power canbe exercised even suo motu
without there being any approach of any
of the parties.

14. Learned counsel for the
respondents, after placingreliance uponthe
decisions of this Court in Smt. Lakhmati
and another vs. The Board of Revenue
U.P. at Allahabad and another (1984
R.R.333 (E)), Smt. Kalindri Devi vs.
Board of Revenue (1987 RD 109) and
Ram Pratap Tiwari and another vs.
Board of Revenue and others [2007
(103) RD 569] wherein it has been held
that mutation proceeding is fiscal in
nature and it does not decide the right and
title of the parties and only for the
purpose of payment of land revenue
namesare recorded on the basis of the
possession etc., submitted thatthe writ
petition would not be maintainable
against an order passed in mutation
proceeding.

15. The legal position on the facts
involved in those writ petitions cannot be
disputedon which basis of the decision
has been rendered but the facts of this
case are distinguishable for the reason that
here the revisional court by directing the
petitioner to approach the appellate court
against the order passed in mutation
716 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
proceeding has failed to exercise the
jurisdiction vested in it. The revisional
court has been conferred power under
section 219 of the Act to ensure that its
subordinate
courts
may
notfail
in
exercising the jurisdiction vested in them
by law and exercise the jurisdictionnot
vested in them orcommit any material
irregularity or illegality while exercising
such jurisdiction.While examining the
judgment of the subordinate courts if the
revisional court has been given power to
alter the orders in the eventuality of
failure ofexercise of jurisdiction, wrong
exercise
of
jurisdiction
or
committingmaterial
irregularity
or
illegalitywhile deciding the cases why not
it be applicable to the revisional courts
too.The language used under section 219
of the Act is unambiguous and clear. Subsection (1) of Section 219 of the Act
provides that a revision would lie before
the
Board
of
Revenue
or
the
Commissioner
or
the
Additional
Commissioner or the Collector or the
Record
Officer,
or
the
Settlement
Officeragainst an order passed by the
revenue courts or proceeding held by the
revenue courts where no appeal lies or
where appeal lies but has not been
preferred, since in this section very vide
power has been conferred upon the
revisional court and the revisional court
has failed to exercise its jurisdiction by
directing the petitioner to avail the
remedy of appeal, therefore, this order
cannot be sustained in the eye of law.

16. The view taken by me finds
support from the decision of theApex Court
in the State of M.P. v. Babu Lal (AIR 1977
S. C. 1718)where while examining such
issue following observation has been made:

"4. The State contended before the
High Court that a Writ of Certiorari
should be issued to quash the judgment
which was illegal and in clear violation of
law. The High Court said that the State
could file a suit for declaration that the
decree is null and void.

5. One of the principles on which
Certiorari is issued is where the Court acts
illegally and there is error on the face of
record.
If
the
Court
usurps
the
jurisdiction, the record is corrected by
Certiorari. This cases is a glaring instance
of such violation of law. The High Court
was in error in not issuing Writ of
Certiorari."

17. In view of the law laid down by
the Apex Court no room is left for doubt
that in case the revisional court has failed
to exercise its jurisdiction vested in it,
such order passed, even in mutation
proceedings cannot be sustained in the
eye of law and writ petition would be
maintainable against such order.

18. The matter may be examined
from another angle also. The insistence of
the Apex Court has always been that in
case material is available before the court
concerned the case should be decided by
the said court on merit without remanding
the matter. Although here this is not a
case of remand but impliedlythis case
would fall in the same category.Therefore
also the same principle would be
applicable and the Revisional court has
erred indirecting the petitioner to file an
appeal
under
section
210
of
the
Act.Reference may be given in P.
Venkateswarlu Vs. Motor and General
Traders,
AIR
1975
SC
1409;
Ashwinkumar K. Patel Vs. Upendra J.
Patel and others, AIR 1999 SC 1124; P.
Purushottam Reddy and another Vs.
Pratap Steels Ltd., 2002 (48) ALR 319
(SC);learned Single Judge of this Courton
2 All] Dr.Gauri Shankar Gupta and Ors.Vs. The State of U.P. and Ors.
717
the same principle in Raj Narain and others
Vs. Deputy Director of Consolidation,
2009(106) RD 98 has held that if the entire
material was available before the Deputy
Director
of
Consolidation,
instead
of
remanding the matter, he should himself
have considered the matter on merit and
decided the same. The order of remand was
held to be unsustainable.

19. Althoughit is settled that
mutation proceeding is fiscal in nature
and the orders passedtherein do not decide
the right and title of the parties, therefore,
the orders passed therein being summary
in nature, writ petition would not be
maintainable but here in this case since
there is jurisdictional error, therefore, the
writ petition would lie against such orders
where the revisional court has failed to
exercise the jurisdiction vested in it.It
may also be noticed that although the
orders deciding the mutation case do not
decide the right and title of the parties.
The judgments rendered therein arenot
binding upon the courts deciding the title
of the matter but it may be kept in mind
thatthe person whosename is recorded in
the revenue record can transfer the land
through registered sale deed, gift deed
etc.In case the sale deed is executed only
because of recording of name without
there being any valid title,the remedy, for
the aggrieved person, would be to file a
suitbut for cancellation of sale deed, not
for declaration of right which would
consume a very long time and in the
meantime even the nature of the land may
be changed. Further the possession
wouldbe enjoyed by the persons in whose
favour an order of mutation has been
passedor the transferee without there
being any validtitle and the person having
validtitlewill becomea looser for the years
together and in some cases if the land has
gone in the hands of mafia or musclemen,
the rightful owner may not be able to get the
fruit of litigation during his life time.These
contingencies and situations of the cases,
although,maynot have legal weight butthe
factual matrix and the reality of the same
cannot bebrushed aside while entertaining
writ petitions against the orders passed in
mutation cases.

20. So far as this case is concerned,
as I have held that the revisional court has
failed to exercise the jurisdiction vested in
it, therefore, the impugned order dated
10.5.2013cannot be sustained in the eye
of law.The writ petition succeeds and is
allowed. The order dated 10.5.2013
passed
by
the
Additional
District
Magistrate
(Finance
and
Revenue),
Jaunpur in Revision No. 31 of 2012-13
(Radhey Shyam and others vs. Hari Cold
Storage Pvt. Ltd., Jaunpur) is hereby
quashed.The revisional court is directedto
decide the revision after hearing both the
sides expeditiously in accordance with
law
without
granting
any
unnecessaryadjournment to the learned
counsel for the parties.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2013

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE ANJANI KUMAR MISHRA, J.

Civil Misc. Writ Petition No. 32023 Of 2013

Dr. Gauri Shankar Gupta & Ors...Petitioners
Versus
The State of U.P. and Ors.... Respondents

Counsel for the Petitioner:
Sri Vijay Prakash
Counsel for the Respondents:
C.S.C., A.S.G.I., Sri J.K. Tiwari