Allahabad High Court
Madhav Pandey And Ors. vs Board Of Revenue And Ors. on 8 March, 2002
Equivalent citations: 2002(2)AWC1311, 2002 ALL. L. J. 1178, 2002 A I H C 2702, (2002) REVDEC 319, (2002) 2 COMCAS 1311, 2003 ALL CJ 2 1431
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri Yogesh Kumar Saxena for the petitioners and Sri Gajendra Pratap appearing for the respondent Nos. 2, 3 and 4. Pleadings of the parties are complete and both the parties have agreed that the writ petition itself be finally decided.
2. The writ petition has been filed by the petitioners praying for quashing of the order dated 21.6.2001 passed by the Board of Revenue. U. P. Lucknow. The facts of the cases as emerge from the pleadings of the parties are :
One Smt. Barmati wife of late Sri Jag Mohan was recorded in the khatauni of village Barbadeeh and village Baliyari with regard to certain agricultural land Smt. Barmati died and after the death of Smt. Barmati, an application for mutation of their names was moved by the respondent Nos. 2, 3 and 4 through their father Ramakant Pandey under Section 34 of the U. P. Land Revenue Act. Another claim was made by the petitioners claiming mutation on basis of a Will. Cases were consolidated and Case No. 45/131. Ravi Shankar v. Smt. Barmati was made the leading case. The objection was filed by the petitioners. Tahsildar, Robertsganj vide order dated 28.3.1985 rejected the application and objection of the petitioners and directed the name of respondent Nos. 2 to 4 to be recorded in the records in place of Smt. Barmati as heirs of deceased. An appeal was filed by the petitioners before the Sub-Divisional Officer against the order of the Tahsildar dated 28.3.1985. The appeal was allowed by the Sub-Divisional Officer setting aside the order of the Tahsildar and remanding the case to the Tahsildar for deciding the case again. Against the order dated 16.12.1986 passed by the Sub-Divisional Officer respondent Nos. 2 to 4 filed Revision Nos. 8 to 13 before the Additional Commissioner, Varanasi Division. Varanasi. The said revisions were dismissed by the order dated 7.2.1990 by the Additional Commissioner who sent the files to Naib Tahsildar to decide the case as per direction of the Sub-Divisional Officer. Against the order dated 7.2.1990 passed by the Additional Commissioner, Revision Nos. 227 to 231 were filed by the respondent Nos. 2 to 4 before the Board of Revenue which were ex parte decided on 19.12.1997 by the Board of Revenue but the said order was set aside on the application filed by the petitioners and thereafter the aforesaid revision has been allowed by the Board of Revenue vide its order dated 21.6.2001 which has been challenged in the present writ petition. By the order dated 21.6.2001, Revision No. 61 of 1998-99 has also been rejected. Facts regarding which also required to be noted. The respondent No. 5 Deo Narain gave an application for mutation on 19.9.1995 before the Naib Tahsildar on basis of unregistered Will claimed to have been executed by Smt. Barmati. On the aforesaid application, Naib Tahslldar passed order on 2.11.1995 mutating the name of Deo Narain in place of Smt. Barmati on the basts of aforesaid Will and by the aforesaid order, the names of respondent Nos. 2 to 4 were also expunged. The respondent Nos. 2 to 4 filed an application to recall the order which application was rejected on 27.4.1996. In the meantime, a revision was filed against the order of the Naib Tahsildar dated 2.11.1995 before the Board of Revenue on which the Board of Revenue passed an order on 25.1.1996 directing the Collector to decide the matter after calling Tahsildar. The Collector in pursuance of the aforesaid order has decided the revision and set aside the order of the Tahsildar by his order dated 3.2.1999. The order of the Collector was passed on 3.2.1999 exercising the revision jurisdiction. Against the order dated 3.2.1999 passed by the Collector. Deo Narain has filed a Revision No. 61 before the Board of Revenue. U. P., Allahabad, which has been decided by the Impugned Judgment dated 21.6.2001.
3. The counsel for the respondents raised preliminary objection regarding entertalnabillty of this writ petition. Counsel for the respondents submitted that the order of the Board of Revenue has been passed in the proceedings arising under Section 34 of the U. P. Land Revenue Act which are summary proceedings, hence the writ petition arising out the summary proceedings cannot be entertained. The writ petition filed by the petitioner is liable to be dismissed on the ground that it arises out of the summary proceedings which are subject to adjudication by the competent court and the petitioners having right to get their rights declared by the competent court, this Court need not entertain the writ petition and the same is liable to be rejected on that ground alone.
4. The counsel for the petitioners Sri Yogesh Kumar Saxena refuting the submissions of the counsel for the respondents has submitted that the writ petition can be entertained by this Court under Article 226 of the Constitution because the judgment of the Board of Revenue dated 21.6.2001 is a judgment rendered without jurisdiction. Sri Saxena submitted that the Board of Revenue could not have exercised jurisdiction under Section 219 of the U. P. Land Revenue Act since the exercise of jurisdiction by the Board of Revenue was barred by Section 219 Sub-section 12) of the U. P Land Revenue Act. Apart from replying the aforesaid preliminary objection, Sri Saxena has made following submissions in support of the writ petition :
(1) After the order of the Additional Commissioner dated 7.2.1990 the Naib Tahslldar has passed an order on 22.2.1990 expunging the names of respondent Nos. 2 to 4. The order dated 22.2.1990 was passed by Naib Tahsildar in compliance of the remand order dated 16.12.1986 of the Sub-Divisional Officer and the order dated 7.2.1990 of the Additional Commissioner. The order dated 22.2.1990 was not challenged before any forum hence the same became final and the Board of Revenue committed error in passing an order the effect of which is to nullify the order dated 22.2.1990.
(2) The revision fixed by Deo Narain against the order dated 3-2.1999 was not maintainable before the Board of Revenue. The order dated 21.6.2001 is an order passed without jurisdiction since the Board of Revenue had no Jurisdiction to entertain the said revision.
(3) That under Section 219 of U. P. Land Revenue Act if once power of revision is exercised then no power of revision can be exercised on second time. On this ground the order passed by the Board of Revenue is without Jurisdiction.
(4) The Board of Revenue which is a revisional court, cannot interfere with the finding of fact while exercising revisional jurisdiction. The revisional court since has wrongly exercised the revisional jurisdiction the order is liable to be set aside.
5. After having heard counsel for the parties and perusing the record, following questions arise for determination in the present case :
(a) Whether the order of Board of Revenue dated 21.6.2001 is without Jurisdiction and is liable to be Interfered with by this Court under Article 226 of the Constitution of India despite proceedings being summary proceedings under Section 34 of the U. P, Land Revenue Act.
(b) What is intent and scope of Section 219 Sub-section (2) substituted by the U. P. Land Laws (Amendment) Act, 1997 (U. P. Act No. 20 of 1997) amending U. P. Land Revenue Act. 1901.
6. Both the questions which arise in this case are co-related, hence they are considered together :
Counsel for the petitioner in support of his submission that the writ petition arising out of the mutation proceedings under Section 34 of U. P. Land Revenue Act can be entertained placed reliance on recent judgment of this Court in Lal Bachan v. Board of Revenue, U. P., Lucknow and Ors., 2002 (93) RD 6. This Court while considering the scope of interference under Article 226 of Constitution of India with regard to mutation proceedings has held in paragraph 16 of the aforesaid Judgment :
"16. The cases in which the writ petition can also be entertained arising out of the mutation proceedings may be cases in which an authority not having jurisdiction has passed an order or Interfered with an order passed in the proceedings. The writ petition challenging an order passed without jurisdiction can be entertained by the Court despite availability of an alternative remedy. However. In that case also the Court will interfere only when it appears that substantial Injustice has been suffered by a party. In view of the above discussion, it is held that the writ petition arising out of the mutation proceedings under Section 34, U. P. Land Revenue Act cannot be entertained by this Court subject to only exception as laid down by the Division Bench in Jaipal Minor v. Board of Revenue, U. P., Allahabad and Ors., 1956 All LJ 807. The writ petition may also be entertained where authority passing the order had no Jurisdiction."
7. Counsel for the petitioners has placed reliance on the following judgments :
(i) State of Madhya Pradesh v. Babu Lal and Ors., AIR 1977 SC 1718.
(ii) Budhia Swain and Ors. v. Gopinath and Ors., (1999) 4 SCC 396.
(iii) The Collector (District Magistrate), Allahabad and another v. Raja Ram Jaiswal, 1985 All LJ 887.
(iv) S. P. Chengalvamya Naidu v. Jagannath and Ors., AIR 1994 SC 853.
(v) Par rip a t i Chandrasekharan and Sons v. Allapati Jalaiah, AIR 1995 SC 1781.
(vi) Whirpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1.
(vii) U. P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors., (1999) 1 SCC 741.
(viii) Sridhar Tripathi v. Board of Revenue. U. P. and others, 1996 (87) R.D. 100.
(ix) K. Venkatachalam v. A. Swamiekan and Anr. AIR 1999 SC 1723.
(x) Mewa Singh and Ors. v. Shtromani Gurdwara Prabandhak Committee, AIR 1999 SC 688.
8. Various decisions cited by the counsel for the petitioners are to the effect that If a Court usurps the jurisdiction or there is lack of Jurisdiction, the order is nullity and High Court must Issue a writ setting aside the said order. In State of Madhya Pradesh v. Babu Lal and Ors., AIR 1977 SC 1718, the following is laid down in paragraph 5:
"5. One of the principles on which certiorart is issued is where the Court acts Illegally and there is error on the face of record. If the Court usurps the jurisdiction the record is corrected by certtorari. This case is a glaring instance of such violation of law. The High Court was in error in not issuing writ of certtorari."
9. In the case of Budhia Swain and others (supra) it was held by the Apex Court in paragraph 9 :
"9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of Jurisdiction. The former strikes at the very root of the exercise and want on Jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation."
From the above statement of law by the Apex Court, it is clear that there is distinction between the lack of Jurisdiction and mere error in exercise of Jurisdiction. If the Court or Tribunal deciding a case suffers from lack of Jurisdiction, the proceeding or order is nullity.
10. In Ittyavira Mathai v. Varkey Varkey and Anr., AIR 1964 SC 907. It was held in paragraph 8 by the Apex Court :
"8. But it is well-settled that a Court having Jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong ; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the Jurisdiction over the subject-matter and it had the jurisdiction over the party and therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have Jurisdiction to decide right or to decide wrong and even though they decide wrong, the decree rendered by them cannot be treated as nullities."
11. Thus, the submission of the counsel for the petitioners is well founded that if order passed by the Board of Revenue is an order passed in excess of Jurisdiction or the order passed without Jurisdiction then this Court ought to exercise jurisdiction under Article 226 of Constitution of India to Issue a writ of certiorari by setting aside the illegal order. The question, however, needs to be considered is as to whether the order of the Board of Revenue is without Jurisdiction and is nullity. The submission of the counsel for the petitioners is that Board of Revenue has exercised the revisional jurisdiction in allowing the revision on 21.6.1997 filed by respondent Nos. 2 to 4 which was second exercise of Jurisdiction by Board of Revenue barred under Section 219 Sub-section (2) of the U. P. Land Revenue Act.
12. For appreciating the submission, a look over the provision of Section 219 is necessary. The power of revision in the said Act prior to amendment by U. P. Act' 20 of 1997 was only vested with the Board of Revenue. Section 218 as existed prior to aforesaid amendment also gave the jurisdiction to Commissioner, Additional Commissioner, Collector, Record Officer or the Settlement Officer to call for the record and examine the record of any case decided or proceedings held by any officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order. The aforesaid power can also be spelt as power of revision given to authorities other than the Board of Revenue but the said provision further provided that if the said authorities are of opinion that the proceeding taken or order passed by such subordinate officer should be varied, cancelled or reversed, then a reference was required to be made along with his opinion to the Board of Revenue. Sections 218 and 219 as it existed before the amendment by U. P. Act No. 20 of 1997 are quoted below :
"Section 218. Reference to the Board.--The Commissioner, the Additional Commissioner, the Collector, the Record Officer or the Settlement Officer may call for and examine the record of any case decided or proceedings held by any officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order passed and as to the regularity of proceedings, and, if he is of opinion that the proceeding taken or order passed by such subordinate officer should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for the orders o the Board and the Board shall thereupon pass such orders as it thinks fit.
Section 219. Revision before the Board.--The Board may call for the record of any case decided by any subordinate court, and i: the subordinate court appears :
(a) to have exercised a Jurisdiction not vested in it in law ; or
(b) to have failed to exercise a jurisdiction so vested ; or
(c) to have acted in the exercise of jurisdiction Illegality or with material Irregularity.
the Board may pass such order as it thinks fit."
13. Sections 218 and 219 were amended by U. P. Act No. 20 of 1997 with effect from 18.8.1997. By the aforesaid amendment Act Section 218 of the Principal Act has been omitted. Section 219 was substituted by new provision. Section 219 as amended is quoted as below :
"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 proceedings 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. 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, 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."
14. Section 219 Sub-section (2) created a bar for moving an application under that section by any person who has earlier moved an application either to the Board or to the Commissioner or to the Additional Commissioner or to the Collector or to the Record Officer or to the Settlement Officer. At this juncture Section 10 of the amendment Act also requires to be noticed which contained the heading "Translatory provisions". Section 10 of the U. P. Amendment Act No. 20 of 1997 is quoted below :
"Section 10. Translatory Provisions. -- Notwithstanding anything contained in this Act all cases referred to the Board under Section 218 of the U. P. Land Revenue Act. 1901 or under Section 333A of U. P. Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before the commencement of this Act and pending before the Board on the date of such commencement shall continue to be heard and decided by the Board as If this Act has not been enacted."
15. From the facts of the case as noticed above, it is clear that the respondent Nos. 2 to 4 have also filed revisions before the Additional Commissioner being Revision Nos. 8 to 13 of 1986 which were dismissed on 7.2.1990. The respondent Nos. 2 to 4 against the said order dated 7.2.1990 has filed revisions before the Board of Revenue being Revision Nos. 227 to 231. On the basis of aforesaid facts, the counsel for the petitioners contended that since once power of revision has been invoked by the respondent Nos. 2 to 4, they were precluded in filing the revision again before the Board of Revenue and the order of the Board of Revenue dated 21.6.2001 having been passed in second revision in barred by Section 219. Sub-section (2) ; hence is without jurisdiction.
16. For appreciating the aforesaid submission, a close look of Section 219, Sub-section (2) is required. Section 219, Sub-section (2) begins with words "if an application under this section has been moved by any person."
Thus, for applicability of subsection (2) of Section 219, first condition contemplated is that application must be an application moved under this section, the word "this section" refers to Section 219. Prior to Insertion of Sub-section (2) of Section 219 the revisional power under Section 219 was exercised only by Board of Revenue. Thus, if revision has been moved under Section 219 prior to Amendment Act No. 20 of 1997 and it is decided by Board, then there is no occasion for exercise of jurisdiction by Board of Revenue again. The power of revision under Section 219 can be exercised by the Commissioner, or the Additional Commissioner, or the Collector, or the Record Officer or the Settlement Officer only after the amendment by U. P. Act No. 20 of 1997. Thus, the question of applicability of subsection (2) of Section 219 will arise only when the revision application is filed under Section 219. Thus, for all practical purposes, bar of entertaining further application under Sub-section (2) of Section 219 will arise only when the application has been moved under Section 219. As noted above, when first application is moved before the Board of Revenue under Section 219, the occasion of entertaining further application for revision will not arise. Hence from the scheme of Section 219 as amended by U. P. Act No. 20 of 1997. It is clear that the bar will arise only when application for revision under Section 219 has been moved after 18th August, 1997. As in the present case, the order of Commissioner was passed on 7.2.1990 rejecting the revisions while passing the order dated 7.2.1990. The Commissioner has exercised his jurisdiction under Section 218 since the revision filed by respondent Nos. 2 to 4 before the Commissioner was under Section 218. Thus, the revisions which were filed by the respondent Nos. 2 to 4 before the Commissioner under Section 218 cannot attract the provision of Section 219, Sub-section (2). Hence, the revisions filed by respondent Nos. 2 to 4 against the order dated 7.2.1990 before the Board of Revenue cannot be held to be barred by Sub-section (2) of Section 219. Had application for revisions been filed before the Additional Commissioner after 18.8.1997 and the order was passed by the Additional Commissioner, then application for revisions would have been barred under Section 219 (2) but in view of the fact that earlier application for revision filed by the respondent Nos. 2 to 4 was under Section 218 which was decided prior to amendment Act No. 20 of 1997, the bar of Section 219 (2) will not apply and the Board of Revenue had ample jurisdiction under Section 219 to revise the order of the Additional Commissioner passed on 7.2.1990. Thus, the submission of the counsel for the petitioners that the order passed by the Board of Revenue dated 21.6.2001 was without jurisdiction cannot be accepted.
17. The Revision No. 61 of 1998-99 filed by Deo Narain respondent No. 5 was also decided by the same order dated 21.6.2001. Hence it has also to be looked into as to whether the Board of Revenue had jurisdiction to decide the Revision No. 61 of 1998-99. The Revision No. 61 of 1998-99 was filed against the order of Collector dated 3rd February, 1999. The order of Collector was passed after amendment made by U. P. Act No. 20 of 1997. However, from the facts of the case, it is clear that the revision which was decided by the Collector was revision filed by the respondent Nos. 2 to 4 and was not revision filed by respondent No. 5 Deo Narain. The Naib Tahsildar passed order dated 2.11.1995 in favour of Deo Narain mutating his name on the basis of unregistered Will by which the name of Ravi Shanker and others was expunged. Against the order dated 2.11.1995, revision was filed by Ravi Shanker and others which after direction of the Board of Revenue dated 25.1.1996 was decided by the Collector on 3.2.1999. Against the order dated 3.2.1999 which was passed on the revision filed by Ravi Shanker, the bar of Section 219 (2) of the U. P. Land Revenue Act will not apply since the application by same person is barred under Section 219 (2) of the said Act. The provision of Section 219 (2) requires that if any person has moved an application under Section 219 (2) of the Act before the Board of Revenue or Additional Commissioner, or District Collector or Record Officer, or Settlement Officer, no further application by the same person shall be entertained. Here, the person on whose revision order dated 3.2.1999 was passed by the Collector was not the person, who filed the Revision No. 61 of 1998-99. If power of revision has been exercised under Section 219 at the instance of party 'A', the second revision will be barred for party 'A' under Section 219 of the said Act but it will not create bar for party 'B' to invoke revisional jurisdiction. Thus, even the revision of Deo Narain was not barred by Section 219 subsection (2) of the said Act ; hence the order of Board of Revenue with regard to Deo Narain also was not without jurisdiction. It is. however, to be noted that the Board of Revenue vide order dated 21.6.2001 has dismissed the revision of Deo Narain.
18. From the above discussions it is clear that the order of Board of Revenue cannot be held to be without jurisdiction.
19. Other decisions cited by the counsel for the petitioners are also required to be considered. The Collector (District Magistrate), Allahabad and another v. Raja Ram Jaiswal, 1985 All LJ 887, was a case pertaining to Land Acquisition Act. The aforesaid judgment laid down that where power is conferred to achieve a purpose the power must be exercised reasonably and in good faith to effectuate the purpose. In that case the Apex Court held that the acquisition of land was done for extraneous or Irrelevant purpose hence notification was illegal. The aforesaid Judgment does not help the petitioner in any manner. The next case cited by the counsel for the petitioners is S. P. Chengalvaraya Naidu v. Jagannath and others, AIR 1994 SC 853. In that case the Apex Court held that withholding of vital document relevant to litigation is fraud on Court. The aforesaid proposition is not attracted in facts of the present case. Parripati Chandrasekharan and sons v. Alapati Jalaiah. AIR 1995 SC 1781, was a case pertaining to Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act. That case is not relevant on the facts of the present case. The next judgment cited by the counsel for the petitioners is Whirpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1. In the aforesaid judgment the Apex Court has laid down that alternative remedy is no bar to entertain the writ petition. In the aforesaid Judgment in paragraph 15 the Supreme Court has laid down the exception to the principal. Whenever there is an alternative remedy the writ petition will not be entertained. Paragraph 15 of the aforesaid Judgment is quoted below :
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirpool, we would rely on some old decision of the evolutionary era of the constitutional law as they still hold the field."
20. From the aforesaid judgment, it is clear that the present case does not fall in any of the exception as laid down by the aforesaid case. It has already been held that the order of the Board of Revenue was not without jurisdiction. Furthermore, the present writ petition arises out of the summary proceedings under Section 34 of the U. P. Land Revenue Act and the writ petition is not entertained on the principle that in summary proceedings title of the parties are not decided and the summary proceedings are always subject to adjudication of title by the competent court. The next case cited by the counsel for the petitioner is U. P. State Cooperative Land Development Bank Ltd. v. Chandra Brian Dubey and Ors.. (1999) 1 SCC 741. In that case. It has clearly been laid down that when the language of Article 226 is clear, shackles cannot be put on the High Courts to limit their jurisdiction. However, the aforesaid judgment itself has noted certain guidelines and self imposed limitations which have been laid down for exercise of writ jurisdiction. It was held in the aforesaid Judgment in paragraph 27 :
"But then the power conferred upon the High Courts under Article 226 of Constitution is so vast, this Court has laid down certain guidelines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to bypass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial "bull in a china shop" in the exercise of its jurisdiction under Article 226."
21. The decision in the case of K. Venkatachalam v. A. Swamiekan and another (supra) by the Apex Court laid down that when a disqualified person gets elected and sits and votes in the House, the declaration by High Court under Article 226 that he was not entitled to sit in State Legislative Assembly was proper. The aforesaid case has also no application in the facts of the present case.
22. The next Judgment cited by the counsel for the petitioners is the judgment of this Court in the case of Sridhar Tripathi (supra), the proceedings out of which the aforesaid case arose was proceedings under Section 33/39 of the U. P. Land Revenue Act. In the aforesaid case, the High Court held that that was not a pure and simple case of mutating the name of opposite party No. 3 on basis of the sale-deed but the respondent No. 3 claimed to have mutated his name on basis of mutation order in 1968 made by the consolidation authorities in proceedings under Section 12 of the U. P. Consolidation of Holdings Act. Due to the aforesaid reasons, the Court did not dismiss the writ petition on the ground of alternative remedy. In the aforesaid case, looking to the exceptional feature of the case, the Court entertained the writ petition. However, no proposition was laid down in that case that in mutation proceedings, the High Court should entertain the writ petition.
23. The last case cited by the counsel for the petitioners is Mewa Singh and Ors. v. Shiromani Gurdwara Prabandhak Committee, AIR 1999 SC 688. In which the Supreme Court held that Shiromani Gurdwara Prabandhak Committee being a statutory body and acting in violation of provisions of Act and statute is amenable to writ jurisdiction. It is well established principle that every statutory body is amenable to the writ jurisdiction. That principle has no bearing in the facts of the present case.
24. Now other submission of the counsel for the petitioners remained to be considered apart from the above question. The first submission of the counsel for the petitioners was that the order dated 22.2.1990 passed by the Tahsildar became final since it was not challenged before any forum. The copy of the order dated 22.2.1990 has been filed as Annexure-4 to the writ petition. It appears that the aforesaid order was passed after the order of the Additional Commissioner dated 7.2.1990. By the order dated 7.2.1990, the Additional Commissioner has maintained the remand order of the Sub-Divisional Officer dated 16.12.1986 by which the mutation order dated 28.3.1985 mutating the names of respondent Nos. 2 to 4 in place of Smt. Barmati deceased was set aside. By the order dated 22.2.1990, the Tahsildar only directed that since the mutation order dated 28.3.1985 has been set aside, the position prior to that should be maintained and the name of deceased lady may remain on the record and the names of respondent Nos. 2 to 4 be expunged. However, by order dated 22.2.1990, the Tahsildar has not carried out the demand as directed by the appellate court's order dated 16.12.1986. The order dated 22.2.1990 was more or less in the nature of interlocutory order taking care of the entry on the record till the matter is decided consequent to the remand. The last line of the aforesaid order clearly directs that the file be put up after original file is received back. From perusal of the order, it is clear that the Tahsildar has not decided the case as directed by the appellate court. There is no finality of the order dated 22.2.1990 since it was only interlocutory order for correcting the amaldaramad in the records. When the order dated 16.12.1996 as well as 7.2.1990 of the Additional Commissioner has been set aside by the Board of Revenue vide order dated 21.6.2001, the order dated 22.2.1990 will automatically come to an end. The submission of the counsel for the petitioners that the order has become final is misconceived. The Board of Revenue vide order dated 21.6.2001 has confirmed the order dated 28.3.1985 passed by the Tahsildar, hence the amaldaramad done by the order dated 22.2.1990 has to be corrected and has no binding force.
25. The second and third submissions of the counsel for the petitioners that the revision filed by Deo Narain against the order dated 3.2.1999 of the Collector is not maintainable under Section 219 of the U. P. Land Revenue Act and if revisional power is exercised once, second revision is not maintainable, has already been considered while discussing the main Issue in the case and it has already been held that the revision filed by Deo Narain was not barred by Section 219 (2) of the said Act. In view of the above, the second and third submissions of the counsel for the petitioners have also no substance.
26. The last submission of the counsel for the petitioners is that the revenue court cannot interfere with the finding of fact and the revisional court i.e., the Board of Revenue has wrongly exercised the Jurisdiction, hence this Court may set aside the order of the Board of Revenue. As noticed above, there is difference between the lack of jurisdiction and erroneous exercise of jurisdiction in a case. The present proceedings arise out of the mutation proceedings which is summary proceeding and the writ petitions against the summary proceedings are not entertained under Article 226 of Constitution of India. There is no need to consider the question as to whether the revisional court has committed any error in exercise of jurisdiction. Assuming for argument sake that there is some error in exercise of jurisdiction by the Board of Revenue, the said error will not make the order without jurisdiction. As held above, the writ petition arising out of the summary proceedings, can be entertained only when there is lack of Jurisdiction. It being not a case of lack of jurisdiction, no interference is called for in the impugned order on basis of above submission of the counsel for the petitioners.
27. In view of the above discussions, there is no good ground to exercise jurisdiction under Article 226 of Constitution of India in the facts of the present case. It is, however, observed that the orders passed in summary proceedings under Section 34 of the U. P. Land Revenue Act are always subject to final adjudication by the competent court. The order and finding rendered in summary proceedings do not bind the competent court when adjudication of title of the parties is made. It is always open to the aggrieved party to seek adjudication of rights by competent court and in that adjudication, the order passed in summary proceedings does not come in way.
28. Subject to those observations, the writ petition is dismissed.