Uttarakhand High Court
WPMS/2249/2020 on 16 September, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 16th DAY OF SEPTEMBER, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (M/S) No. 2249 of 2020
BETWEEN:
Smt. Kusum Lata .....Petitioner
(By Mr. Ramji Shrivastava and Mr. Sagar Kothari, Advocates)
AND:
Somnath and others ...Respondents
(Mr. S.K. Jain, Senior Advocate assisted by Mr. Siddharth Jain,
Advocate for respondent nos. 1 and 2, Mr. Ashish Joshi, Advocate for
respondent no.4 and Mr. N.S. Pundir, Deputy Advocate General with
Mr. Yogesh Chandra Tiwari, Standing Counsel for the State)
JUDGMENT
Petitioner has filed a declaratory suit
under Section 229-B of the U.P. Zamindari Abolition
& Land Reforms Act, 1950, which is pending before
Assistant Collector, Ist Class, Dehradun. In the said
suit, petitioner filed an application, praying for
D.N.A. Test of the parties for establishing that she is
the sole daughter/legal heir of Chote Lal S/o Janki
Prasad, thus a co-sharer in the land in question.
2. Learned Assistant Collector, Ist Class,
Dehradun allowed petitioner's application vide order
dated 20.12.2019. Respondent nos.1 and 2
challenged the said order by filing a revision under
Section 333 of U.P.Z.A. & L.R. Act, which was
allowed by learned Commissioner, Garhwal Division
vide judgment dated 27.07.2020. Petitioner
challenged the said judgment by filing a writ petition
and petitioner's writ petition was disposed of vide
judgment dated 28.09.2020 and the matter was
remanded back to Revisional Court i.e.
Commissioner, Garhwal Division. Upon remand of
the said matter, the Revisional Court again allowed
the revision filed by respondent nos. 1 and 2 vide
judgment dated 10.11.2020, which is under
challenge in this petition.
3. Learned Senior Counsel appearing for
respondent nos. 1 and 2 has raised a preliminary
objection that, in view of the statutory remedy
under Section 333 of U.P.Z.A. & L.R. Act available to
the petitioner, this petition under Article 227 of the
Constitution of India is not maintainable. Section
333 of U.P.Z.A. & L.R. Act is reproduced below for
ready reference:-
"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 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
(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.]"
4. Perusal of the aforesaid provision reveals
that power of revision under Section 333 of the Act
can be exercised suo-moto or on an application by
an aggrieved party. Such power can be exercised
by the Board or the Commissioner/Additional
Commissioner in respect of any suit or proceeding
decided by any Court subordinate to him, in which
appeal lies but has not been preferred. From the
latter half of Section 333 (1), it is also apparent that
revision can be filed against any order passed in
such suit or proceeding, however sub-section 2 of
Section 331 stipulates that second revision by the
same party shall not be maintainable.
5. This Court finds substance in the
submission made on behalf of respondent nos. 1 & 2
that, in view of statutory remedy available to the
petitioner, this Court may not entertain this petition
under Article 227 of the Constitution of India.
6. Learned counsel appearing for the
petitioner however submits that, since in the earlier
round, this Court had entertained writ petition
against the order passed by Commissioner, Garhwal
Division, therefore, this writ petition may also be
heard and decided by this Court. Learned Senior
Counsel for respondent nos.1 and 2 then submits
that in the earlier round, this Court had not
examined the question regarding maintainability of
petition under Article 227 of the Constitution of
India, in view of statutory remedy of filing revision
under Section 333 of U.P.Z.A. & L.R. Act.
7. Since remedy of filing revision is available
to the petitioner, therefore, this Court declines to
entertain this writ petition.
8. If there is statutory remedy available to
the petitioner, then the petitioner has to avail the
same before approaching this Court in its
supervisory jurisdiction.
9. Accordingly, the writ petition is dismissed
on the ground of alternative remedy, with liberty to
the petitioner to approach the Board of Revenue by
filing Revision under Section 333 of U.P.Z.A. & L.R.
Act. If petitioner files Revision Petition within three
weeks from today, the same shall be heard and
decided on merits, after hearing the parties.
(MANOJ KUMAR TIWARI, J.)
Shubham
