# Secretary, Board of High School & Intermediate Education v. Ram Jatan

- **Citation:** (2006) 1 ILRA 431
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-09
- **Case number:** Civil Misc. Writ Petition No. 1328 of 2006
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/secretary-board-of-high-school-intermediate-education-v-ram-jatan-40752
- **Pages:** 3

## Headnote

432 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

Code of Civil Procedure Ord. 23 Rule-I
readwith U.P. Consolidation of Holding
Act 1953-Section 48-Power of Revisional
Court-incompetent Revision filed instead
of appeal-application to withdraw the
incompetent revision seeking liberty to
file appeal -whether the provisions of
Order
23
C.P.C.
are
applicable
in
consolidation proceeding? Held-'No' but
for
substantial
justice-Rule
1
discretionary power can be exercised to
secure the end of justice.

Held: Para 8 & 9

Though Order 23 Rule 1 of the C.P.C. is
not applicable to the U.P. Consolidation
of
Holdings
Act,
but
Consolidation
authorities can exercise discretion to
secure end of justice in the case and as
revision was not competent, the Deputy
Director
of
Consolidation
rightly
permitted to withdraw the same. An
Authority
having
no
jurisdiction
to
entertain the revision has no jurisdiction
to decide the revision on merit. The
order was rightly passed by the Deputy
Director of Consolidation permitting to
withdraw the revision.

Thus, it is clear that if an authority has
power to entertain any revision, it has
also power to permit withdrawal of the
revision.

## Text

1 All] Secretary, Board of High School & Intermediate Education V. Ram Jatan
431
institution wherefrom the last education
has been received.

This correction may be made by
Secretary only when the candidate within
two years from the date of issuance of
concerned certificate by the Board, has
submitted
an
application
for
the
rectification
of
mistake
to
the
Principal/Centre
Manager
concerned
attracting his notice regarding clerical
mistake and one of its copy has also been
sent to the Secretary through registered
post]."

7. The said amended provision
clearly prescribe that the correction of
certificate of the Board is permissible
only within two years from the date of
issuance of such certificate if there is
mistake or omission occurred due to
carelessness in the record of the Board or
in the record of the institution.

8. The learned counsel for the
petitioner respondents submits that the
aforesaid amendment came in 1983 and
therefore, will not apply to his case since
the petitioner respondents passed High
School examination in 1967. We do not
agree with the aforesaid submission for
the reason that the petitioner respondents
sought correction of date of birth in the
records of the appellant respondent in the
year 1995, i.e. after 12 years from the date
the Regulation 7 Chapter III was already
amended. Thus even if the period of two
years if not counted from 1967 yet, the
respondent at the best could have applied
within two years from 1983 i.e. upto
1985.

9. Therefore, in the entirety of the
circumstances, in our view the appellant
is
correct
in
submitting
that
the
application of the petitioner respondents
could not be entertained in view of the
provisions contained in Regulation 7
Chapter III of the Regulation. We also
notice that the Hon'ble Single Judge has
not at all considered the aforesaid
regulation in the judgment under appeal
and has decided merely on the ground that
since the petitioner respondent is seeking
change of date of birth in the High School
certificate, it would be against his interest
and only on that basis writ petition has
been decided directing the appellant
(Board) to make necessary correction in
the certificate of the petitioner respondent.
In our view, the Hon'ble Single Judge has
erred in law in issuing such mandamus to
the appellant and therefore, the judgment
under appeal is liable to be set aside.

10. In the result, the special appeal
succeeds and is allowed. The judgment
under appeal is set aside. Accordingly the
writ petition is also dismissed. No order
as to costs.
Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 1328 of 2006

Shankar Dayal Tewari and another

 ...Petitioners
Versus
Deputy
Director
of
Consolidation,
Gorakhpur and others ...Respondents

Counsel for the Petitioners:
Sri A.P. Tewari
Sri S.S. Tripathi

Counsel for the Respondents:
S.C.
432 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

Code of Civil Procedure Ord. 23 Rule-I
readwith U.P. Consolidation of Holding
Act 1953-Section 48-Power of Revisional
Court-incompetent Revision filed instead
of appeal-application to withdraw the
incompetent revision seeking liberty to
file appeal -whether the provisions of
Order
23
C.P.C.
are
applicable
in
consolidation proceeding? Held-'No' but
for
substantial
justice-Rule
1
discretionary power can be exercised to
secure the end of justice.

Held: Para 8 & 9

Though Order 23 Rule 1 of the C.P.C. is
not applicable to the U.P. Consolidation
of
Holdings
Act,
but
Consolidation
authorities can exercise discretion to
secure end of justice in the case and as
revision was not competent, the Deputy
Director
of
Consolidation
rightly
permitted to withdraw the same. An
Authority
having
no
jurisdiction
to
entertain the revision has no jurisdiction
to decide the revision on merit. The
order was rightly passed by the Deputy
Director of Consolidation permitting to
withdraw the revision.

Thus, it is clear that if an authority has
power to entertain any revision, it has
also power to permit withdrawal of the
revision.

(Delivered by Hon'ble S.N. Srivastava, J.)

1. This writ petition is directed
against the order dated 21.12.2005, passed
by the Deputy Director of Consolidation,
Gorakhpur allowing the application to
withdraw revision to avail alternative
remedy of appeal.

2. The facts of the case are that
against
an
order
passed
by
the
Consolidation Officer, Opposite Party
no.2 preferred a revision. Subsequently he
was advised to file an appeal. Opp. Party
no.2 then filed an appeal before the
Appellate authority and also moved an
application before the Deputy Director of
Consolidation to permit to withdraw the
revision to persue his remedy in Appeal
which was allowed by the Deputy
Director of Consolidation. This order is
impugned in the present writ petition.

3. Heard learned counsel for the
petitioners and learned Standing Counsel.

4.

Learned
counsel
for
the
petitioners urged that there was no
provision under the U.P. Consolidation of
Holdings
Act
under
which
Deputy
Director of Consolidation could grant
such permission to withdraw revision in
order to persue alternative remedy of
appeal, hence the order passed by the
Deputy Director of Consolidation was
without jurisdiction and is liable to be
quashed. In support of his arguments,
learned counsel for the petitioners urged
that by virtue of Section 41 of the U.P.
Consolidation of Holdings Act, the
provisions of Chapters IX and X of the
U.P. Land Revenue Act are applicable,
even though the provisions Chapters of
the U.P. Land Revenue Act do not
mention any such power to the Deputy
Director of Consolidation to allow an
application
to
grant
permission
to
withdraw revision. Learned counsel for
the petitioners further urged that as C.P.C.
is not applicable to the proceedings under
U.P. Consolidation of Holdings Act,
provisions of Order 23 Rule 1 of the
C.P.C. applicable to the Civil Courts to
grant permission to withdraw the suit is
not
available
to
the
Consolidation
authorities. He prayed for quashing the
order passed by the Deputy Director of
Consolidation and remanding the matter
1 All] Shankar Dayal Tiwari and another V. D.D.C., Gorakhpur and anoter
433
to the Deputy Director of Consolidation to
decide the revision on merits.
5. Considered arguments of learned
counsel for the petitioners and perused the
record as well as relevant provisions on
the point.

6. In the present case, this is not
disputed
that
only
appeal
was
maintainable, but an incompetent revision
was preferred. As soon as the mistake was
detected, an appeal was preferred and an
application was moved to the Deputy
Director
of
Consolidation
to
grant
permission to withdraw the revision
which was allowed by the impugned
order.

7.

Rule
111
of
the
U.P.
Consolidation of Holdings Rules, 1954
provides for presenting the application for
revision which reads as under:-

"An application under Section 48 of
the Act shall be presented by applicant or
his
duly
authorised
agent
to
the
Joint/Deputy/Assistant
Director
of
Consolidation, nominated by the Director
of Consolidation, Uttar Pradesh for the
District
or
Settlement
Officer
(Consolidation) unit concerned or failing
posting
of
any
such
Joint/Deputy/Assistant
Director
of
Consolidation in the district, to the
District Deputy Director (Consolidation
within 30 days of the order against which
the application is directed. It shall be
accompanied by copy of the judgment or
order in respect of which the application
is preferred. Copies of judgment or order,
if any, of other subordinate authorities in
respect of dispute shall be filed alongwith
the application."

8. Though Order 23 Rule 1 of the
C.P.C. is not applicable to the U.P.
Consolidation of Holdings Act, but
Consolidation authorities can exercise
discretion to secure end of justice in the
case and as revision was not competent,
the Deputy Director of Consolidation
rightly permitted to withdraw the same.
An Authority having no jurisdiction to
entertain the revision has no jurisdiction
to decide the revision on merit. The order
was rightly passed by the Deputy Director
of Consolidation permitting to withdraw
the revision.

9. Thus, it is clear that if an
authority has power to entertain any
revision, it has also power to permit
withdrawal of the revision.

10. The Deputy Director of
Consolidation has permitted to withdraw
the revision in the facts of the case. There
is no error of law apparent on the face of
record.

For the reasons, as above, writ
petition has no force and is dismissed.
Petition dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2006

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 12249
of 2003

Sanjay Kumar Verma...Applicant (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant: