WPMS/2190/2022
2022 Latest Caselaw 2923 UK

                Office Notes,
             reports, orders or
SL.           proceedings or
      Date                                      COURT'S OR JUDGES'S ORDERS
No             directions and
             Registrar's order
              with Signatures
                                  WPMS No. 2190 of 2022
                                  Hon'ble Manoj Kumar Tiwari, J.

Mr. Deepak Bhatt, learned counsel for the petitioner.

Petitioner purchased agricultural land situate in Village Ladfoda Malla, Patti Sarna, Tehsil Dhari, District Nainital by a registered sale deed dated 24.08.2016. He filed an application under Section 34 of U.P. Land Revenue Act, 1901 for mutating his name in the revenue record. The said application, however, was rejected on technical ground by Tehsildar, Dhari vide order dated 15.01.2019. Petitioner filed revision under Section 219 of U.P. Land Revenue Act before Board of Revenue. His revision has been summarily dismissed as not maintainable by Member (Judicial), Board of Revenue vide order dated 18.12.2021, without notice to the other side. Thus, feeling aggrieved, petitioner has approached this Court.

Learned counsel for the petitioner submits that Board of Revenue erred in dismissing petitioner's revision merely on the ground that remedy of appeal is also available to petitioner. According to him, revision lies even in cases where appeal lies but has not been preferred by the aggrieved party. Section 219 of U.P. Land Revenue Act deals with Revision and reads as 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 for the 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 to 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. (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, or the Collector or to the Record Officer or to the Settlement Officer, no further application by the same person shall be entertained by any other of them."

This Court finds substance in the submission made by learned counsel for the petitioner. Section 219 does not forbid filing of revision in cases where remedy of appeal is available, and all it provides is that party filing revision should not have preferred appeal against the order, which is put to challenge before the revisional Court. Learned counsel for the petitioner has placed reliance upon a judgment of Allahabad High Court in the case of Radhey Shyam & others vs. State of U.P. & others, reported in 2013 (120) RD 423. Para 13 & 15 of the said judgment are extracted below:-

"13. From the bare reading of section 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 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 section 219 of the Act it would be clear that a very vide power has been conferred upon the Revisional Court over its subordinate Courts and this power can be exercised even suo motu without there being any approach of any of the parties.

14. .....

15. The legal position on the facts involved in those writ petitions cannot be disputed on which basis of the decision has been rendered but the facts of this case are distinguishable fro the reason that here the Revisional Court by directing the petitioner to approach the Appellate Court against the order passed in mutation 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 not fail in exercising the jurisdiction vests in them by law and exercise the jurisdiction not vested in them or commit any material irregularity or illegality while exercising such jurisdiction. While examining the judgment of the subordinate Courts if the Revisional orders in the eventuality of failure of exercise of jurisdiction, wrong exercise of jurisdiction or committing material irregularity or illegality while 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, Sub-section (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 Officer against an order passed by the Revenue Courts or proceeding held by the Revenue Courts or proceeding held by the Revenue Court 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 eyes of law."

Learned counsel for petitioner has relied upon another judgment rendered by Allahabad High Court in the case of Lakshmi Prasad vs. Commissioner (Judicial), Varanasi Region, Varanasi & others, reported in 2016 (133) RD 798. Para 15 to 17, on which reliance is placed, are reproduced below:-

"15. A mutation order under section 34 of the U.P. Land Revenue Act is amenable to an appeal under Section 210 of the said Act. Section 219 which provides for a revision states that a revision lies against orders which are not appealable or against orders which are appealable but no appeal has actually been filed.

16. These revisional jurisdiction can be invoked in place of appellate jurisdiction and therefore, in cases where a revision is filed instead of an appeal, in view of the provisions contained in the second part of section 219, the same is akin to an appeal and must be held to be continuation of the proceedings.

17. For the reasons given above, this revision has rightly been held to be maintainable and I do not find any illegality in the said order. The writ petition is therefore, liable to be dismissed."

Perusal of the impugned order passed by Member (Judicial) reveals that learned Board of Revenue has considered provision contained in Section 210/211 of U.P. Land Revenue Act, however, provision contained in Section 219 of the said Act appears to have been overlooked. From plain reading of Section 219 of the Act, it is apparent that revision can be filed in a case where no appeal lies and also in a case where appeal lies, but has not been preferred.

In such view of the matter, impugned order dated 18.12.2021 passed by Board of Revenue is set aside, petitioner's revision is restored to the file and learned Board of Revenue is requested to decide petitioner's revision petition on merits, after notice to the respondents.

With the aforesaid direction, writ petition stands disposed of.

(Manoj Kumar Tiwari, J.) 13.09.2022 Aswal