# Udayvir & Ors v. Board of Revenue, U.P. at Prayagraj & Ors

- **Citation:** (2022) 8 ILRA 1066
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-06
- **Case number:** Writ B No. 247 of 2022
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udayvir-ors-v-board-of-revenue-u-p-at-prayagraj-ors-48712
- **Pages:** 10

## Headnote

Civil Law - Uttar Pradesh Zamindari
Abolition and Reforms Act, 1950 - Issue -
whether after dismissal of the appeal u/s
331 (3) of of the Act, 1950, whether one
should file a second appeal u/s 331(4) of
Act, 1950 or a revision before the Board of
Revenue u/s 333 of the Act, 1950 ? - Held
- where an appeal has been preferred u/s
331 (3) of the Act, 1950, the forum of
filing of a revision u/s 333 of the Act,
1950 would not be available - statue, in its
wisdom has specifically mandated u/s 331
(4) of the Act, 1950 for filing of second
8 All. Udayvir & Ors. Vs. Board of Revenue, U.P. at Prayagraj & Ors.
1067
appeal by use of the word "shall" - S. 333
is
to
be
availed
only
in
those
circumstances where against an order or
judgment rendered by the subordinate
Court either no appeal lies or where an
appeal lies but it has not been preferred -
once an appeal has been preferred u/s
331 (3) then in such a case the revisional
power could not be invoked by the Board
either at the instance of a party or by the
Board itself suo moto - intention of
legislature cannot be to make two forums
available to a litigant at his own choice
merely because s. 333 of the Act, 1950
has only used the word "Appeal" and not
second appeal (Para 21, 23, 24)

Petitioner filed suit u/s 229-B, which was
dismissed - petitioners filed a first appeal under
the provisions of Section 331 (3) of the Act,
1950 - Appeal also dismissed - petitioners filed
a Revision u/s 333 of the Act, 1950 - Held -
Petitioners wrongly filed revision & the Board
patently erred in entertaining the same -
Petitioners were permitted to file a second
appeal (Para 27, 28)

Dismissed. (E-5)

List of Cases cited:-

## Text

1066 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 33/39 of the Land Revenue
Act, it may be a case that appear to decide
the said application specifically in view of
the fact that the said land was non ZA land
and its conversion to ZA land may not be
permissible under the jurisdiction held by
the petitioner, but this fact in itself cannot
be the sole basis for initiation of
disciplinary
proceedings
against
the
petitioner.

21. Hon'ble Apex Court in the case of
Zunjarrao Bhikaji Nagarkar Vs. Union
of India and Others, (1999) 7 SCC 409,
in para 29 has observed as under :

"29. In State of Punjab v. ExConstable Ram Singh this Court referred to
the definition of "misconduct" as given in
Black's Law Dictionary and Aiyar's Law
Lexicon and said as under :

"6. Thus it could be seen that the
work 'misconduct' though not capable of
precise definition, on reflection receives its
connotation
from
the
context,
the
delinquency in its performance and its
effect on the discipline and the nature of the
duty. It may involve moral turpitude, it must
be improper or wrong behaviour; unlawful
behavious, wilful in character; forbidden
act, a transgression of established and
definite rule of action or code of conduct
but
not
mere
error
of
judgment,
carelessness or negligence in performance
of the duty; the act complained of bears
forbidden quality or character. Its ambit
has to be construed with reference to the
subject-matter and the context wherein the
terms occurs, regard being had to the scope
of the stature and the public purpose it
seeks to serve.""

22. Considering various judgments of
the Apex Court as stated above, present
case is squarely covered by the aforesaid
judgment of Apex Court and hence inquiry
proceedings could not have been initiated
against the petitioner considering the fact
that he passed the said order in exercise of
his quasi judicial functions.

23. In the light of above observations,
the order of punishment sated 02.12.2021 is
clearly illegal and arbitrary and is hereby
quashed.

24. Writ petition stands allowed.
----------
(2022) 8 ILRA 1066
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.07.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ B No. 247 of 2022

Udayvir & Ors. ...Petitioners
Versus
Board of Revenue, U.P. at Prayagraj & Ors.
 ...Respondents

Counsel for the Petitioners:
Dharm Raj Mishra, Ratnesh Singh

Counsel for the Respondents:
C.S.C., Ashok Kumar Singh, Pankaj Gupta,
Rahul Kumar Singh, Vijai Bahadur Verma

Civil Law - Uttar Pradesh Zamindari
Abolition and Reforms Act, 1950 - Issue -
whether after dismissal of the appeal u/s
331 (3) of of the Act, 1950, whether one
should file a second appeal u/s 331(4) of
Act, 1950 or a revision before the Board of
Revenue u/s 333 of the Act, 1950 ? - Held
- where an appeal has been preferred u/s
331 (3) of the Act, 1950, the forum of
filing of a revision u/s 333 of the Act,
1950 would not be available - statue, in its
wisdom has specifically mandated u/s 331
(4) of the Act, 1950 for filing of second
8 All. Udayvir & Ors. Vs. Board of Revenue, U.P. at Prayagraj & Ors.
1067
appeal by use of the word "shall" - S. 333
is
to
be
availed
only
in
those
circumstances where against an order or
judgment rendered by the subordinate
Court either no appeal lies or where an
appeal lies but it has not been preferred -
once an appeal has been preferred u/s
331 (3) then in such a case the revisional
power could not be invoked by the Board
either at the instance of a party or by the
Board itself suo moto - intention of
legislature cannot be to make two forums
available to a litigant at his own choice
merely because s. 333 of the Act, 1950
has only used the word "Appeal" and not
second appeal (Para 21, 23, 24)

Petitioner filed suit u/s 229-B, which was
dismissed - petitioners filed a first appeal under
the provisions of Section 331 (3) of the Act,
1950 - Appeal also dismissed - petitioners filed
a Revision u/s 333 of the Act, 1950 - Held -
Petitioners wrongly filed revision & the Board
patently erred in entertaining the same -
Petitioners were permitted to file a second
appeal (Para 27, 28)

Dismissed. (E-5)

List of Cases cited:-

1. Lachman Das Vs Santosh Singh 1996 All Civil
Journal 324

2. Mirza Kishwar Beg Vs Board of Revenue ors.
RD (1975) 373

3. Prema Devi Vs Mathura Dutt Pandey
AIROnline 2019 Utr 564

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Mohd. Arif Khan, learned
Senior Advocate assisted by Sri Dharm
Raj Mishra, learned counsel appearing for
the
petitioner,
Sri
Abhinav
Narain
Trivedi, learned Chief Standing counsel
assisted by Sri Hemant Kumar Pandey,
learned counsel appearing for the Staterespondents, Sri Vijay Bahadur Verma,
learned
counsel
appearing
for
the
respondents no. 4 to 12 and Sri Pankaj
Gupta, learned counsel appearing for the
respondent no. 14.

2. Instant petition has been filed
praying for the following main reliefs:-

(i) Issue a writ, order or
direction in the nature of certiorari
quashing the judgment and order dated
21.04.2022, contained in Annexure No. 1,
passed by the Opposite Party No. 1,
judgment
and
order
dated
05.07.2018/31.08.2020,
contained
in
Annexure No. 2, passed by the Opposite
Party no. 2 and judgment and order dated
25.05.1988, contained in Annexure No. 3,
passed by the Opposite Party No. 3 with
all consequential benefits.

(ii) Issue a writ, order or
direction in the nature of mandamus
commanding the Opposite Parties to
restrain the private respondents from
creating any third party right or changing
the nature of land in dispute without
reference to the judgments and orders,
contained in Annexure Nos. 1 to 3
impugned in the petition, with all
consequential benefits and allow the
relief claimed in the suit in favour of the
petitioner.

3. The case set forth by the petitioner
is that a suit under Section 229-B of the
Uttar Pradesh Zamindari Abolition and
Reforms Act, 1950 (hereinafter referred to
as "Act, 1950") was filed by the father of
the petitioners no. 1 & 2 and father-in-law
of the petitioner no. 3. The said suit was
dismissed vide order dated 25.05.1988.
Being aggrieved, the petitioners filed a first
appeal under the provisions of Section 331
(3) of the Act, 1950 which was dismissed
vide order dated 05.07.2018 as corrected on
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
31.08.2020. Still being aggrieved, the
petitioners filed a Revision No. 119 of 2021
under Section 333 of the Act, 1950 which
has been dismissed vide impugned order
dated 21.04.2022, a copy of which is
annexure 1 to the writ petition and hence
the writ petition.

4. A preliminary objection was raised
by Sri Hemant Kumar Pandey, learned
Standing counsel as well as Sri Vijay
Bahadur Verma, learned counsel appearing
for the respondents no. 4 to 12 that taking
into consideration the specific provision of
Section 331 (4) of the Act, 1950, the
petitioners ought to have filed a second
appeal and the revision itself was not
maintainable under Section 333 of the Act,
1950. The same was opposed by the
learned Senior Advocate by contending that
there is no specific bar under Section 333
of the Act, 1950 per which the revision
would not be maintainable.

5. Considering the same, this Court
vide order dated 05.07.2022 had passed an
order framing a question which for the sake
of convenience is reproduced below:-

"Supplementary
affidavit
filed
today be kept on record.

Heard Mohd. Arif Khan, learned
Senior Advocate assisted by Mohd. Aslam
and Sri Dharam Raj Mishra, learned
counsel appearing for the petitioners, Sri
Hemant Kumar Pandey, learned counsel
appearing for the State, Sri Pankaj Gupta,
learned counsel appearing for the Gaon
Sabha and Sri Vijay Bahadur Verma,
Advocate who files his Vakalatnama on
behalf of respondents no. 5 to 12.

The question which needs to be
gone into at the first instance is as to
whether after dismissal of the appeal by the
Commissioner
vide
order
dated
05.07.2018/31.08.2020 which was filed by
the petitioners under the provisions of
Section 331 (3) of the Uttar Pradesh
Zamindari Abolition and Land Reforms
Act, 1950 (hereinafter referred to as "Act,
1950"), the petitioner correctly filed a
revision before the Board of Revenue under
the provisions of Section 333 of the Act,
1950 or he should have filed a second
appeal under the provisions of Act, 1950.

All the learned counsels would
come prepared with this question tomorrow
i.e 06.07.2022.

Put up this case tomorrow i.e
06.07.2022 for further hearing at 0215
P.M.

Till tomorrow, status quo as of
today shall be maintained by all the parties
pertaining to land in dispute."

6. All the learned counsels have been
heard on the question as to whether the
revision filed by the petitioners was
correctly filed under the provisions of
Section 333 of the Act, 1950 or whether the
petitioners ought to have filed a second
appeal under the provisions of Section 331
(4) of the Act, 1950.

7. Learned Senior Advocate while
supporting the filing of the revision petition
by the petitioners under Section 333 of the
Act, 1950 argues that (a) it is the choice of
the petitioners regarding the forum i.e to
file a second appeal under the provisions of
Section 331 (4) of the Act, 1950 or to file a
revision under Section 333 of the Act,
1950. He contends that as both the forums
are
available
to
the
petitioners,
consequently they chose to avail the
remedy of revision under Section 333 of
the Act, 1950 and as such, there is no
infirmity in having chosen to file a revision
& (b) bare reading of Section 333 of the
Act, 1950 would indicate that there is no
8 All. Udayvir & Ors. Vs. Board of Revenue, U.P. at Prayagraj & Ors.
1069
bar in filing of a revision even after the
appeal has been decided inasmuch as and
once the legislature in its wisdom has not
used a word "Second Appeal" under
Section 333 of the Act, 1950, as such the
said provision cannot be read in a
restrictive manner so as to restrain or
restrict filing of the revision under the
provisions of Section 333 of the Act, 1950
after having filed an appeal under Section
331 (3) of the Act, 1950.

8. In support of his arguments,
learned
Senior Advocate
has
placed
reliance on a judgment of the Apex Court
in the case of Lachman Das Vs. Santosh
Singh reported in 1996 All Civil Journal
324. No other ground has been urged by the
learned Senior Advocate.

9. On the other hand, Sri Vijay
Bahadur Verma, learned counsel appearing
for the respondents no. 4 to 12 has placed
reliance on a judgment of this Court in the
case of Mirza Kishwar Beg Vs. Board of
Revenue and Ors reported in RD (1975)
373 to contend that this Court has
categorically held that once an appeal has
been filed then the revisional jurisdiction
cannot be invoked either at the instance of
a party or by the Board itself suo moto.

10. Elaborating the same, Sri Verma
argues that Section 333 of the Act, 1950
itself stipulates that the power of revision
can be invoked either where no appeal lies
or where an appeal lies but has not been
preferred meaning thereby that the power
of revision under Section 333 of the Act,
1950 could only be invoked by the
petitioners in case they had not filed an
appeal under the provisions of Section 331
(3) of the Act, 1950 and once the
petitioners had filed an appeal, they could
not subsequent thereto be permitted to
invoke the power of revision of the Board
under Section 333 of the Act, 1950.

11. Sri Hemant Kumar Pandey,
learned Standing counsel has adopted the
arguments of Sri Vijay Bahadur Verma,
Advocate and further argues that once the
petitioners having themselves chosen to
invoke Section 331 (3) of the Act, 1950
while challenging the order passed under
Section
229-B
of
the
Act,
1950,
consequently in case of being aggrieved by
the order passed in the first appeal dated
05.07.2018/31.08.2020, the only remedy
available to them was to have filed the
second appeal under the provisions of
Section 331 (4) of the Act, 1950. He argues
that keeping in view the provisions of
Section 333 of the Act, 1950 and the
petitioners having themselves filed a first
appeal as such, the power of revision was
not available to them and they could only
have filed a second appeal.

12. Heard learned counsel appearing
for the contesting parties and perused the
records on the question which has been
framed by this Court vide order dated
05.07.2022.

13. From a perusal of the records it is
apparent that against the dismissal of the
suit filed under Section 229-B of the Act,
1950, an appeal was filed under Section
331 (3) of the Act, 1950 which was
dismissed vide order dated 05.07.2018 as
corrected on 31.08.2020. The petitioners
thereafter filed a revision under Section
333 of the Act, 1950 before the Board of
Revenue which has been dismissed vide
impugned order dated 21.04.2022 against
which the instant petition has been filed.

14. The question is as to whether the
petitioners had a remedy of filing of a
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
revision under Section 333 of the Act, 1950
more particularly when their first appeal
had already been dismissed and it was the
petitioners who were aggrieved against the
order of the dismissal of the first appeal.

15. For this purpose, the Court would
have to consider the provisions of Section
331 read with Schedule II & Section 333 of
the Act, 1950 which for the sake of
convenience are reproduced below:-

"331. Cognizance of suits, etc.
under this Act. - (1) Except as provided by
or under this Act no court other than a
court mentioned in Column 4 of Schedule II
shall, notwithstanding anything contained
in the Civil Procedure Code, 1908 (V of
1908), take cognizance of any suit,
application, or proceedings mentioned in
Column 3 thereof [,] [or of a suit,
application or proceedings based on a
cause of action in respect of which any
relief could be obtained by means of any
such suit or application :]

[Provided
that
where
a
declaration has been made under Section
143 in respect or any holding or part
thereof, the provisions of Schedule II
insofar as they relate to suits, applications
or proceedings under Chapter VIII shall
not apply to such holding or part thereof.]

[Explanation. - If the cause of
action is one in respect of which relief may
be granted by the revenue court, it is
immaterial that the relief asked for from the
civil court may not be identical to that
which the revenue court would have
granted.]

[(1-A) Notwithstanding anything
in sub-section (i), an objection, that a court
mentioned in Column 4 of Schedule II, or,
as the case may be, a civil court, which had
no jurisdiction with respect to the suit,
application
or,
proceeding,
exercised
jurisdiction with respect thereto shall not
be entertained by any appellate or
revisional court unless the objection was
taken in the court of first instance at the
earliest possible opportunity and in all
cases where issues are settled, at or before
such settlement, and unless there has been
a consequent failure of justice.]

(2)
Except
as
hereinafter
provided no appeal shall lie from an order
or [decree] passed under any of the
proceedings mentioned in Column 3 of the
Schedule aforesaid:

[(3) An appeal shall lie from any
decree or from an order passed under
Section 47 or an order of the nature
mentioned in Section 104 of the Code of
Civil Procedure, 1908 (V of 1908) or in
Order 43, Rule 1 of the First Schedule to
that Code passed by a court mentioned in
Column No. 4 of Schedule II to this Act in
proceedings mentioned in Column 3 thereof
to the court or authority mentioned in
Column No. 5 thereof.

(4) A second appeal shall lie on
any of the grounds specified in Section 100
of the Code of Civil Procedure, 1908 (V of
1908) from the final order or decree,
passed in an appeal under sub- section (3),
to the authority, if any, mentioned against it
in Column 6 of the Schedule aforesaid.]

333. Power to call for cases (1)
The Board or the Commissioner or the
Additional Commissioner may call for the
record of any suit or proceeding [other
than proceeding under sub-section (4-A) of
Section 198] decided by any 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 to the legality or propriety of any
order passed in such suit or proceeding and
if such subordinate court appears to have;

(a) exercised a jurisdiction not
vested in it by law; or
8 All. Udayvir & Ors. Vs. Board of Revenue, U.P. at Prayagraj & Ors.
1071

(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, as the
case may be, may pass such order in the
case as he thinks fit.

(2) If an application under this
section has been moved by any person
either to the Board or to the Commissioner
or to the Additional Commissioner, no
further application by the same person
shall be entertained by any other of them.]

16. A perusal of Section 331 of the
Act, 1950 would indicate that except as
provided under the Act, 1950 no Court
other than a Court mentioned in Column 4
of Schedule II shall take cognizance of any
suit, application or proceedings mentioned
in Column 3 thereof or of a suit, application
or proceedings based on a cause of action
in respect of which any relief could be
obtained by means of any suit or
application.

17. Sub Section (3) of Section 331 of
the Act, 1950 provides that an appeal shall
lie from any decree or from an order passed
under Section 47 or an order of the nature
mentioned in Section 104 of the Code of
Civil Procedure or in Order 43, Rule 1 of
the First Schedule to that Code passed by a
Court mentioned in Column 4 of Schedule
II to the Act in proceedings mentioned in
Column 3 thereof.

18. Sub Section (4) of Section 331 of
the Act, 331 provides that a second appeal
shall lie on any of the grounds mentioned
in Section 100 of the Code of Civil
Procedure, 1908 from the final order or
decree passed in an appeal under Sub
Section (3) to the authority, if any,
mentioned against it in Column 6 of the
Schedule.

19. Schedule II, so far as it pertains to
Section 331 of the Act, 1950 specifically
provides at Serial No. 34 that under Section
229, 229-B and 229-C i.e suit for
declaration of rights, the Court of original
jurisdiction would be Assistant Collector Ist
Class while a first appeal would lie to the
Commissioner and a second appeal shall lie
to the Board of Revenue. Thus, when
Section 331 (4) is read along with Schedule
II it is apparent that a second appeal against
an order passed in first appeal shall lie to
the Board of Revenue.

20. Section 333 of the Act, 1950, so
far as it is relevant for the facts of the
instant case, provides that the Board may
call for the record of any suit or
proceedings
decided
by
any
Court
subordinate to him in which no appeal lies
or where an appeal lies but has not been
preferred. Thus, it is apparent that a
revision under Section 333 of the Act, 1950
would be available only in those cases
either in which no appeal lies or though an
appeal lies but had not been preferred.

21. In the instant case, it is admitted
that an appeal against the order passed
under Section 229-B of the Act, 1950 was
filed by the petitioners under Section 331
(3) of the Act, 1950 and thereafter they
have filed a revision under Section 333 of
the Act, 1950. However, keeping in view
the specific provisions of Section 331 (4) of
the Act, 1950 which uses the word "shall",
it was mandatory for the petitioners, if
aggrieved against the order passed under
Section 331 (3) of the Act, 1950, to have
filed a second appeal. It is settled
proposition of law that an appeal is creation
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
of statue. Once the statue, in its wisdom has
specifically mandated under Section 331
(4) of the Act, 1950 for filing of second
appeal by use of the word "shall", as such,
in case the petitioners were aggrieved
against the order passed under Section 331
(3) of the Act, 1950 they could only have
filed a second appeal and no revision under
Section 333 of the Act, 1950 was
maintainable. This would also be clear
from the words used in Section 333 of the
Act, 1950 wherein it has been provided that
the Board may call for the records of any
suit or proceedings decided by any Court
subordinate in which either no appeal lies
or where an appeal lies but has not been
preferred. Thus, the revision under Section
333 of the Act, 1950 can only be filed
either where the petitioners had no remedy
of filing an appeal (which is not the case)
or where they had not filed the appeal
which is also not the case inasmuch as the
petitioner admittedly filed an appeal under
Section 331 (3) of the Act, 1950. Thus, the
revision under Section 333 of the Act, 1950
was clearly not maintainable and was
wrongly preferred by the petitioners.

22. The arguments of learned Senior
Advocate that as Section 333 of the Act, 1950
does not quantify or define "Appeal" as first
appeal or and second appeal, as such he
would be empowered to file a revision under
Section 333 of the Act, 1950 as per litigants
choice of choosing the forum, is clearly
misconceived inasmuch as there cannot be
two forums open to a litigant at his choice to
either file a second appeal or a revision for in
case the said argument of the learned Senior
Advocate is accepted then Section 333 of the
Act, 1950 would be treated as an alternative
forum to Section 331 (4) of the Act, 1950,
which would be absolutely a wrong
interpretion of law. The reason is that the
statutory scope and purpose of Section 333 is
to be availed only in those situations or legal
circumstances where against an order or
judgment rendered by the subordinate Court
either no appeal lies or where an appeal lies
but it has not been preferred. However, those
cases in which the statute provides the forum
of second appeal, the power of revision can
never be treated to be synonymous to power
of appeal as it would defeat the very purpose
of creation of the different forum.

23. The matter can also be looked from
another perspective inasmuch as obviously
the intention of legislature cannot be to make
two forums available to a litigant and that too,
at his own choice and thus merely because
Section 333 of the Act, 1950 has only used
the word "Appeal" and not second appeal, the
same has to be reasonably interpreted to
mean that where an appeal has been preferred
under Section 331 (3) of the Act, 1950, the
forum of filing of a revision under Section
333 of the Act, 1950 would not be available.

24. In this regard, the Court may refer
to a judgment of this Court in the case of
Mirza Kishwar Beg (supra) wherein this
aspect of the matter has been considered
and it was categorically held that once an
appeal has been preferred then in such a
case the revisional power could not be
invoked by the Board either at the instance
of a party or by the Board itself suo moto.

25. This aspect of the matter has also
been considered by Uttrakhand High Court
in the case of Prema Devi Vs. Mathura
Dutt Pandey reported in AIROnline 2019
Utr 564 wherein the Court has held as
under:-

6. The learned counsel for the
petitioners submits that being aggrieved
against the Appellate Court's order passed
in an statutory appeal, no revision will lie
8 All. Udayvir & Ors. Vs. Board of Revenue, U.P. at Prayagraj & Ors.
1073
under the Act, because once a special
statute provides a Forum of Second Appeal
under Section 331(4) to be read under II
Schedule of U.P.Z.A. & L.R. Act, 1950, in
that eventuality, the person, who is
aggrieved by the First Appellate Court's
order, is bound to invoke the Forum, which
has been statutorily created of preferring a
Second Appeal under sub Section (4) of
Section 333 of U.P.Z.A. & L.R. Act, 1950,
which has to be decided in the light of the
provisions contained under Section 100 of
the Code of Civil Procedure, which has
been made applicable over the second
appellate proceedings under the Act, by
reference. Even otherwise, this Court is of
the view that once the statutory appeal has
been decided, any judgement rendered by
the appellate Court would not be revisable
as appellate judgements are not revisable.

7. While on the other hand, the
argument which has been extended by the
learned
counsel
for
the
plaintiffs/respondents is that the provisions
contained under Section 333 of the U.P.Z.A.
& L.R. Act, though it apparently seems to
be a revisional power given under the Act,
which has been vested with the Board or
the Commissioner, as the case may be,
hence, it would be amounting to exercise
the same powers as contemplated under
Section 331(4) of the Act could be treated
as to be para materia provision and a
forum to challenge the First Appellate
Court's order. This Court is not in
agreement with the argument as extended
by
the
learned
counsel
for
the
plaintiffs/respondents the reason being that
if his argument as extended is accepted
then the provisions contained under Section
333 as to be treated as an alternative
Forum to Section 331(4), it would be
absolutely a wrong interpretation of law for
the reason being that the statutory scope
and purpose of Section 333, is to be availed
in those situations or legal circumstances
where any order or a judgement rendered
by any subordinate Court could be subject
to revision at the behest of the party
aggrieved or even the revisional Court can
suo moto take its call and initiate the
proceedings of a revision. But in these
cases where the Statute is providing a
forum of second appeal, the powers of
revision can never be treated to synonyms
to powers of appeal, as it would defeat the
very purpose of creation of the different
forum.

8. But, if we compare the powers
conferred to the second appellate Court
under Section 331(4) of the Act, it does not
provide that the Second Appellate Court
can ever suo moto exercise the powers and
take cognizance of an order passed under
Section 331(1) of the Act until and unless
the aggrieved party files a second appeal,
like that provided in Revisional Power
under Section 333.

9. Secondly, if the scope of
revisional power, which is vested under
Section 333 of the Act, would be confined
in its application within the scope as
provided therein the 3 clauses of the
provisions under Section 333 of the Act,
which is para materia to the provisions
contained under Section 115 of the Code of
Civil
Procedure.
It
happens
to
be
absolutely distinct to the appellate power
where the provision of Section 100 of the
Code of Civil Procedure has been made
applicable by reference, under Section
331(4)

10. If the argument as extended
by the counsel for the plaintiffs/respondents
is accepted, it will run contrary to the
intention of the legislation itself the reason
being that if Section 333 is to be read as a
substitute
or
a
synonymous
to
the
provisions contained under Section 331(4)
of the Act, it would rather limit the
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction
of
interference
by
the
Revisional Court as against the First
Appellate Court's order within the scope of
its interference provided under Section 3
clauses contained therein under Section
333, whereas on the other hand, the
provisions contained under Section 331(4)
is wide enough to enable the parties to
place there case both on facts and law and
thus the argument, which has been
extended by the learned counsel for the
plaintiffs/respondents is not accepted.

11. There is another logic as to
why the argument of the learned counsel
for the revisionist to treat the proceedings
under Section 333 as to be the proceedings
of the same parlance as that provided
under Section 331(4) is not acceptable from
the viewpoint that if this logic is accepted,
then there was no need for the legislature to
provide for a specific Forum for redressal
of the grievance by a party, who is
aggrieved by a First Appellate Court's
judgement by preferring a second appeal
that too within the ambit of Section 100 of
the C.P.C. Hence, there was no necessity
for the legislature to contemplate different
provisions under the Act itself for redressal
of the grievance as against the First
Appellate Court's order because if the
argument as extended is accepted then it
will have an adverse effect as it would be
leaving the forum to be chosen by the
choice of the party, which is aggrieved by
first appellate Court's order, selection of a
forum cannot be made available by choice
of a litigant to invoke a forum which suits
to his convenience which is not the
intention of the legislature.

26. As regards the judgment cited by
learned Senior Advocate in the case of
Lachman Das (supra) the same pertains to
the distinction between appeal and revision.
There cannot be any quarrel to the settled
proposition of law inasmuch the scope of
appeal and revision are clearly different. As
such, the said judgment would have no
applicability in the facts of the instant case.

27. Keeping in view the aforesaid
discussion as well as the judgment of this
Court in the case of Mirza Kishwar Beg
(supra) and the judgment of Uttrakhand
High Court in the case of Prema Devi
(supra) the Court holds that the revision
which was filed by the petitioners was
wrongly filed and the Board patently erred
in entertaining the same.

28. Considering the aforesaid, the writ
petition is partly allowed. The impugned
order dated 21.04.2022 passed by the
Board of Revenue, a copy of which is
annexure 1 to the writ petition is set aside.
It is provided that it would be open for the
petitioners to file a second appeal within a
period of two weeks from today.

29. Sri Vijay Bahadur Verma, learned
counsel appearing for the respondents no. 4
to 12 fairly submits that in case the appeal
is filed within the aforesaid time then he
would not be raising the plea of limitation
before the Board of Revenue. It is thus
provided that in case the second appeal is
filed within the aforesaid time period then
the Board of Revenue shall proceed to
decide the same on merits.

30. It would be open for the
petitioners to file an application for stay
which will be considered by the Board of
Revenue expeditiously.

31. The Court records the valuable
assistance given by Sri Abhinav Narain
Trivedi, learned Chief Standing counsel
and Ms. Vaishnavi Bansal, Law Clerk
Trainee of this Court.
8 All. M/S Sri Sai Nath Associates Vs. Babasaheb Bhimrao Ambedkar University & Ors.
1075
----------
(2022) 8 ILRA 1075
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.08.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE RAJNISH KUMAR, J.

Appeal U/S 37 of Arbitration And Conciliation Act
1996 No. - 4 of 2022

M/S Sri Sai Nath Associates ...Appellant
Versus
Babasaheb Bhimrao Ambedkar University
& Ors. ...Respondents

Counsel for the Appellant:
Nilaya Gupta

Counsel for the Respondents:
Dr. V.K. Singh, Dr. V.K. Singh

Civil Law - Arbitration Act, 1996Section 9-Application u/s 9 for interim
protection rejected-contract for providing
manpower services by the Appellant firmcontract extended from time to timecontract
terminated
by
Respondent
University
and
security
deposited
was
forfeited-giving reason that work of the
Appellant firm was not satisfactory-adinterim injunction sought to the extent it
holds Appellant firm guilty of unsatisfactory
performance
till
disposal
of
arbitral
proceedings-Grant
or
refusal
of
interlocutory
injunction
rest
in
judicial
discretion-Learned Court below has not
determined whether a prima-facie case is
made out-which is not dependent upon any
consequential
or
resultant
eventAppropriate
determination/
consideration
of three cardinal principles of Stay is not
reflected.

Appeal allowed. (E-9)
List of Cases cited:
1. Hindustan Petroleum Corporation Ltd. Vs
Sriman Narayan & anr., reported in (2002) 5
Supreme Court Cases, 760

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Rajnish Kumar, J.)

1. Heard Sri Nilaya Gupta, learned
counsel representing the appellant and Sri
Rajesh Tiwari, learned counsel appearing
on behalf of the respondent-University.

2. By instituting these proceedings of
appeal under Section 37 of the Arbitration
and Conciliation Act, 1996 (herein after
referred to as ''1996 Act'), the appellant has
laid a challenge to an order dated
11.03.20022, passed by the Commercial
Court, Lucknow in Arbitration Case No. 03
of 2022, whereby the application made by
the appellant under Section 9 of the 1996
Act
praying
grant
of
interim
protection/order has been rejected.

3. A contract was entered into
between the appellant-firm and respondentUniversity on 16.11.2017 for providing
manpower services by the appellant-firm to
the respondent-University. As per Clause 4
of the said agreement period of contract
was initially for one year which was
extendable upto 3 years on year to year
basis at the discretion of the respondentUniversity and basis of such extension, as
spelt out in the contract, was requirement
and performance of the manpower and the
Agency.

4. The contract entered into on
16.11.2017 was extended from time to
time, however, by means of an order dated
07.01.2022, passed by the Registrar of the
respondent-University,
the
contract