# Samaydin v. State of U.P. and another

- **Citation:** (2001) 1 ILRA 354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-08-23
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/samaydin-v-state-of-u-p-and-another-39736
- **Pages:** 6

## Text

1All] Samaydin V. State of U.P. and another
354
2. The order of the learned Judicial
Magistrate granting maintenance of Rs.
500/- to the respondent from the date of
the application has been modified by the
learned IX Additional Sessions Judge,
Bulandshahr, only to extent of reducing
the amount from Rs. 500/- to Rs. 400/-.

3. On examination of both the
judgements, I do not find any serious
infirmity in them nor any such infirmity
was pointed out on behalf of the
applicant.
It
is
only
urged
that
maintenance amount should be fixed from
the date of the order as the law normally
requires. If the court intends to grant
maintenance from the date of application
court must record its reasons for doing so.
The contention has some force. Subsection (2) of Section 125, Cr.P.C. spells
as under :

"(2)
Such
allowance
shall
be
payable from the date of the order, or, if
so ordered from the date of the
application for maintenance."

4. From an examination of the
language of sub-section (2) of Section 125
it
clearly
follows
that
in
normal
circumstances the maintenance must be
granted from the date of the order. In only
extra-ordinary circumstances it may also
be ordered to be paid from the date of the
application for maintenance. It is thus
clear that there must be a discussion of
such circumstances which warrant the
court to allow it from the date of
application.
No
other
inference
is
permissible from the language of subsection(2).
One
such
extraordinary
circumstances may be dilatory tactics
adhered to by the husband in the disposal
of the proceeding. The other one may be
untold cruelty practised against his wife.
No extensive ground can be formulated
justify. The learned Magistrate has not
given
any
reason
for
allowing
maintenance
from
the
date
of
the
application. No where in judgement
before delivering the operative portion he
had shown any such inclination. As a
matter of fact the court has taken the
husband by surprise by making such
direction for the first time in the operative
portion of the judgement. I am under the
circumstances, inclined to accept this
contention and modify the order and make
it payable from the date of order. The
maintenance allowance shall be payable
from the date of the order.

Accordingly this application is partly
allowed.

Partly Allowed.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2001
355
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By the Court

1. This writ petition has been filed
by the petitioner for quashing the order
dated 23-08-2000 passed by respondent
no. 1, which has been filed as Annexure12 to the present writ petition and further
prayer has been made to issue a direction
that alleged claim of respondent nos. 5
and 6 in respect of property in question
based on mortgage deed dated 02-021974 is not maintainable being barred by
Section 49 of the U.P. Consolidation of
Holdings Act. The other prayer has been
made for issue of ad interim Mandamus
staying the operation of the impugned
order of the respondent no. 1 dated 23-082000 including dispossession of the
petitioner from the property in question.

2. Sri N.B. Tewari, learned counsel
for
the
respondent
has
raised
a
preliminary objection that the presence
writ petition is not maintainable as it has
arisen out of the proceedings under
Section 34 of the Land Revenue Act. His
submission is that this Court has taken a
view in a case reported in 1999 RD 633
(Smt. Rani Devi Vs. Board of Revenue)
that the writ petition against order passed
in the proceedings arising out of mutation
case in not maintainable. He has further
submitted that mutation proceedings is
summary in nature and it does not decide
the right of the parties, therefore, that
judgement and order passed in the
mutation will not bound the parties nor
the regular court is bound by the said
order and can take it own decision,
therefore, the writ petition under Article
226 of the Constitution of India in not
maintainable. For that purpose he has
placed
reliance
on
an
number
of
decisions.

3. The first decision cited by him for
this purpose is reported in 1981 RD 18
(Lekhraj and another vs. Board of
Revenue) delivered in writ petition No.
4785 of 1979 dated 04-08-1980 where
this court has upheld the preliminary
objection raised on behalf of the Opposite
Party and dismissed the writ petition on
the ground of the existence of an equally
1All] Kunj Behari V. Board of Revenue, U.P., Lucknow and others
356
efficacious alternative remedy by
way of filing a regular suit to establish
title. The second decision relied upon by
Sri Tewari is a decision reported in 1993
RD 206 (State of U.P. through the
Collector, Agra vs. Board of Revenue at
Lucknow and others) delivered in Writ
Petition NO. 30386 of 1991 where this
Court has held that under Section 34 of
the Act the right of parties are not decided
rather mutation proceedings are fiscal in
nature and remedy before competent court
is by filing a regular suit or initiating
some other proceedings. Third decision
relied upon by Shri Tewari is reported in
1999 RD 416 (Narain Singh and
another Vs. Additional Commissioner,
Meerut and another) given in the Writ
Petition No. 10128 of 1999, where this
court has held that Section 34 proceedings
is summary in nature and right and title of
the parties are not decided and orders
passed are not binding upon the courts in
regular suits or proceedings, therefore the
writ petition is not maintainable. Fourth
decision relied upon by Shri Tewari is
reported in AIR 1957, Alld. 205 (Jaipal
Vs. Board of Revenue), where the
Division Bench of this Court has held that
Section 3 of the Land Revenue Act
expressly reserve the right of the party to
establish his right and title in a regular
suit, therefore the writ petition against the
proceedings under Section 34 of the Land
Revenue Act is not maintainable. Sri
Tewari has also placed reliance on a case
reported in 1993 RD 206 wherein this
Court has held that reference proceedings
in mutation cases are only to facilitate
payment of Revenue rights of the parties
are not decided. It is fiscal in nature and
the writ petition is not maintainable.

4. Sri N.B. Tewari has placed
reliance on a Division Bench decision of
this Court delivered in Writ Petition No.
1746 of 1984 (Ram Bharsoe Lal Vs.
State of U.P. & Others) dated 23-051990 where the Division Bench of this
Court held that the proceedings under
Section 34 of the Land Revenue Act do
not decided the title of the parties and the
proceedings are just fiscal in nature and
high Court need not interfere under
Article 226 of the Constitution of India.

5. Sri P.K.Besaria, learned Standing
Counsel has also supported Sri Tewari
and has submitted that order under
Sections34, 39 and 40 of the Land
Revenue Act are passed merely on the
basis of possession and as such it does not
affect the rights of any party, therefore,
the writ petition is not maintainable. He
has placed reliance on a case reported in
1996(87) R.D. Chandra Pal Singh Vs.
Board of Revenue delivered in Civil
Misc. Petition No. 6842 of 1996.

6. Sri B.B. Paul learned counsel
appearing for the petitioner in reply has
submitted that if there had been litigation
between the parties in Civil Court and
consolidation court and final orders have
been passed in those proceedings then the
revenue court has no jurisdiction to over
look those orders in the proceedings under
Section 34 or in any other summary
proceedings and they must decide the
proceedings on the basis of earlier
judgements of the competent court and if
they do not do so, the order passed by the
mutation court are without jurisdiction
and the writ petition is maintainable. His
submission is that even if in ordinary
circumstances, the writ petition is not
maintainable
but
in
the
special
circumstances, the writ petition under
Article-26 of the Constitution of India is
maintainable against the orders passed in
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
357
the proceedings under Section 34 of the
Land Revenue Act. For that purpose he
has placed reliance on a judgement
delivered by this court on 05-04-1983 in
Civil Misc. Writ Petition No. 1983 of
1993 (Vijay Prakash Vs. Board of
Revenue). The relevant portion of the
said judgement is quoted below :-

"Having heard learned counsel for
the petitioner and gone through the
impugned order, it appears that it is a fit
case in which notices be issued and the
matter be heard finally 1956 ALJ
807(Supra) does not say that in no
circumstances a writ petition in the matter
of correction of mutation of the names is
maintainable.

The observations are only to the
limited extent and in appropriate case,
where proper remedy is available, a
regular suit can be filed and in such
circumstances, this Court should refrain
itself from excising its extra ordinary
jurisdiction under Article 226 of the
Constitution. But, when there is a class of
cases, where expunging the name of a
person without a notice to him may cause
irreparable injury this Court may always
exercise the power under Article 226 of
the Constitution."

7. Sri Paul further submitted that the
order
without
jurisdiction
can
be
challenged under writ jurisdiction. He has
further
submitted
that
under
U.P.
Consolidation of Holdings Act when the
right has been decided earlier then no one
can start fresh proceedings in respect of
the same property and fresh proceedings
are barred under Section 49 of the U.P.
Consolidation of Holdings Act. In this
connection he has placed reliance on a
decision reported in 1972 ALJ 769
(Rakesh Kumar Minor Vs. Board of
Revenue).

8. He has also placed reliance on a
decision reported in 1974 RD 241 (Ram
Sanehi Lal Vs. Board of Revenue). In
this case reliance was placed on Rakesh
Kumar case (Supra) and AIR 1975 Alld.
125 (Rudra Pratap and another vs.
Board of Revenue) and submitted that
the High Court should interfere where
they restricted to question of possession
and also decide the question of title. He
has further placed reliance AIR 1962 SC
1044
(Calcutta
Gas
Company
(Proprietary) Ltd. Vs. State of West
Bengal and others). His submissions are
that as the petitioner is aggrieved by the
order passed in Section 34 proceedings
and his legal right has been prejudiced, he
can file writ petition under Article 226 of
the Constitution of India .

9. He has further placed reliance on a
decision reported in JT.1998 (7) 243
(Whirlpool Corporation vs. Registrar
of Trade Marks, Mumbai and others)
wherein it has been held that power to
issue prerogative writs under Article 226
of Constitution is plenary in nature and is
not limited by any other provision of the
Constitution. This power can be exercised
by High Court not only for issuing writs
in the nature of Quo warranto and
Certiorari for the enforcement of any of
the Fundamental Rights contained in Part
III of the Constitution but also for "any
other
purpose".
Sri Paul has also
submitted that in view of the provisions
laid down in the Revenue Court Manual
in the proceedings under Section 34, only
question of possession should be decided
in summary manner and title should not
be decided, therefore, if the title has been
decided, the writ petition is maintainable.
1All] Kunj Behari V. Board of Revenue, U.P., Lucknow and others
358
In this connection, he has also cited a case
reported in 1990 RD 193 Smt. Dulari
Devi vs. Janardan Singh and others)
which deals with the provisions of Section
49 of the U.P. Consolidation of Holdings
Act. He has also placed reliance on an
unreported case delivered in Civil Misc.
Writ Petition No. 3 of 1970 (Yadram vs.
Board of Revenue) on 23-07-1971 where
it was held that for the purpose if an
objection is filed even under Section 12 of
U.P. Consolidation of Holdings Act
regarding title, it has to be determined.
His submissions are that the title had
already been determined in an earlier
consolation proceedings, therefore, any
proceeding under Section 34 of the Land
Revenue Act, no adverse finding should
have been given contrary to the findings
given in consolidation proceedings. He
has also placed reliance on another
unreported case decided on 16-04-1969 in
Writ Petition No. 1459 of 1968 (Mangal
Singh vs. Board of Revenue) on the
point that Section 12 and 49 of the U.P.
Consolidation of Holdings Act. He has
further placed reliance on a decision
reported in 1969 RD 344 (Raghu Nath
vs. Ram Khelawan) to the effect that if
the court has no jurisdiction to entertain
the matter then decision given by him is
not same as decision by the court
competent to decide the question of Law
and further that the proceedings taken
finally in the court without jurisdiction
can be challenged under Article 256 of
the Constitution of India. Sri Paul further
placed reliance on a decision reported in
1962 RD 172 (Kushar vs. Ahmad
Khan) that if the entries have been made
in the Revenue record as a result of
consolidation
proceedings,
then
the
jurisdiction of civil as well as revenue
courts to question their correctness is
barred. He has submitted that after the
consolidation judgement, the proceedings
under Section 34 of the Land Revenue
Act should not have been entertained. The
word entertain, according to him, has
been interpreted by the Supreme Court in
1970 Supreme Court 1093 (Lala Ram
vs. Hari Ram) wherein it has been held
that entertain means file or received by
the court. His submission is that the
proceedings
should
not
have
been
entertained. He has further placed reliance
on AIR 1986 SC 500 Malkhan Singh vs.
SOHAN Singh and others) on the point
of bar of Section 49 of the U.P.
Consolidation of Holdings Act. His
submission is that it is true that the High
Court has no jurisdiction under Article
226 of the Constitution of India but while
deciding the appeal, the Government has
not given opportunity to make the
representation to the parties, then it will
amount non compliance of the rules of
natural justice and the High Court may
ask for rehearing by the Government. For
that purpose he has placed reliance on
1981 (I) SCC 405 (P.Kasilingam vs.
P.S.G. College of Technology) and JT.
1998(4) Supreme Court 362 (State of
Haryana and others vs. Ram Atri and
others) which deal with the practice and
procedure under Article 136 of the
Constitution of India .

10. Sri N.B. Tewari, learned counsel
for the respondent in reply to the
arguments of Sri B.B. Paul, learned
counsel for the petitioner submitted that
the writ petition is not maintainable. This
Court will not see what was decision of
the consolidation authorities and what
was the decision of the revenue court
under Section 3 of the Land Revenue Act.
His submission is that this point can be
seen only when the writ petition is
entertained and decided on merits. On the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
359
bar
of
Section
49
of
the
U.P.
Consolidation of Holdings Act he has
submitted that if after lapse of five years
of the order passed by the consolidation
authorities, a cause of action arose to any
party he an choose forum through which
he is to get relief. If the relief is not under
Section 34 of the Act, then Section 49
will not come into play and much
proceedings
even
under
the
U.P.
Consolidation of Holdings Act are subject
to the final decision by the regular suit.
For that purpose he has placed reliance on
1970 RD 465 (Bala Din vs. Smt. Baura).
He
has
further
submitted that the
proceedings under Section 34 does not
confer any right or title to the parties,
therefore the writ is not maintainable. For
that purpose he has cited decisions
reported in 1980 RD 148 (Majid and
others vs. Munafit and others) and 1969
RD 312 (Dabbali alias Soney Lal Vs.
Ram Sewak etc.) Regarding bar under
Section 49 of the Act, he has placed
reliance on the decisions 1993 RD 414
(Om Prakash and others vs. Jai
Prakash) and 1991 RD 364 (Rajeshwar
and another vs. The Board of Revenue).
His submission is that the court may not
see the merits of the case when the writ
petition in not maintainable.
11. After hearing the learned
counsel for the parties at length and
seeing various decisions. I am of the view
that in a number of decisions, this court
has held that the proceedings under
Section 34 of the Act is fiscal in nature
and does not decide the title or right of the
parties, therefore, no writ lies. I also
affirm the view taken in the decision
reported in 1999 RD 633, therefore, I am
of the view that the present writ petition
in not maintainable, as such, it is
dismissed.
Petition Dismissed.
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