Bandhu Ram and another vs State of U.P. and others

Ran Vijai Singh, J.—I have heard Sri S.P. Singh, learned counsel for the petitioner and learned standing counsel for the State respondents. Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 30.11.2011 passed by respondent No. 2 in Revisions No. 87/96, 88/96 and 198/2004, Gulaba v. Indra and others, by which the Revision Nos. 87/96, 88/96 and 198/2004 were allowed and the orders passed by the Court below dated 28.5.1996 and 15.11.1989 were set aside. The matter was sent back for passing an appropriate order after affording an opportunity of hearing to all concerned. The aforesaid revisions were filed by the respondents.

A preliminary objection has been raised by the learned standing counsel stating that writ petition would not be maintainable before this Court as the petitioners have remedy of revision, against the order impugned, before the Board of Revenue.

Sri S.P. Singh learned counsel for the petitioners contends that by virtue of the amendment made in the year 1997, the Commissioner as well as Board of Revenue have been put at par and if the order has been passed by the Divisional Commissioner/Additional Commissioner, a revision would not lie before the Board of Revenue. He has also submitted that assuming the revision is maintainable even then remedy of Article 226 of the Constitution of India is not barred as the order impugned suffers from the vice of principle of natural justice.

For appreciating the controversy in hand, it would be appropriate to go through the language used in Section 219 of U.P. Land Revenue Act, 1901. For appreciation, the aforesaid section is quoted below:

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.

From going through the language used in sub-section (2) of Section 219 it transpires that if an application under this section has been moved by any person before 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 meaning thereby if any person has already filed a revision u/s 219 before any of the authority referred above, no second application under this Section shall lie to the higher Court by the same party. This provision was inserted vide U.P. Act No. 20 of 1997. Prior to that there was no such provision and the revision was entertained against a revisional order passed by the court subordinate to the court whereas the second revision could be filed. By virtue of subsection (2) of Section 219 the Legislature has prohibited filing of the second revision by the same party. Here in this case, the same party has not filed the revision before the Additional Commissioner, Basti Division, Basti and it is the respondent No. 3 who has filed the revision before the Additional Commissioner, therefore, the bar contained in sub-section (2) of Section 219 would not come into play and the petitioner will still have a right to file a revision against the order impugned before the Board of Revenue.

So far as the argument of Sri Singh with regard to putting at par the power of each revisional court at same footing is concerned that is only referable to sub-section (2) of Section 219, which put an embargo on the right of a person to file second revision and that cannot be interpreted in a manner that if a person has filed revision before any court then the revision against the said order would not lie on the instance of another side. The language used in Section 219 (1) and (2) has to be read and understood in its natural meaning as the language used therein is unambiguous and clear. It is settled principle of interpretation that first of all interpretation has to be made in its natural sense and in case there is any ambiguity in the same, the efforts should be made to interpret in a manner so that it may achieve the object of Act or Section which is under interpretation. Here in this case, the object of sub-section (2) of Section 219 is that the second revision would not lie by the same party meaning thereby if a person has availed the remedy of revision u/s 219 of the Act another revision would not lie by the same party under the aforesaid section (Section 219). In view of that. I am of the considered opinion that revision would lie against an order passed u/s 219, if availed by other side, under the same section by another side.

So far as the submission of learned counsel for the petitioner with regard to the maintainability of writ petition, even if there is an alternative remedy, is concerned, this Court is not powerless to entertain the writ petition but the Apex Court in numerous cases has observed that where alternative remedy is available the court must move on very slow pace in entertaining the writ petition under Article 226 of the Constitution of India. In Rashid Ahmed Vs. The Municipal Board, Kairana, , the Apex Court held that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case namely K.S. Rashid and Son Vs. The Income Tax Investigation Commission etc., , where the Supreme Court reiterated the proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to entertain in a petition under Article 226 of the Constitution of India. This proposition was again considered by a Constitution Bench of the Apex Court In A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, , and another Constitution Bench decision in Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, .

In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, , the Apex Court although held that the High Court should have entertained the writ petition instead of throwing the person to avail the alternative remedy but in that case the order passed by the authority concerned was without jurisdiction and, therefore, the Apex Court had taken the view that if the order was without jurisdiction, the writ petition should have been entertained instead of throwing it at threshold. In this case it is not a case where the order impugned has been passed by the authority who had no jurisdiction to pass the order, what has been contended by learned counsel for the petitioner is that the said order has been passed in breach of principle of natural justice, I am of the view that it would not be the only ground for entertaining the writ petition. This Court is already overburdened, therefore, in view of the availability of the alternative remedy, I refuse to exercise the discretion under Article 226 of the Constitution of India by entertaining this writ petition.

The writ petition is dismissed. The petitioners are at liberty to file revision against the order dated 30.11.2011 passed by Additional Commissioner, Basti Division. Basti in Revision Nos. 87/96, 88/96 and 198/2004, Gulaba v. Indra and others, raising all those points which have been raised herein, in this writ petition. In case, such revision is filed that may be considered and decided in accordance with law. In the last, Sri Singh has submitted that since the revision has become time barred, therefore, direction may be given to the respondent No. 2 to entertain the revision without raising any objection to the limitation as the impugned order was passed before four months back. I am of the view that no limitation is provided under the Act for filing the revision u/s 219 of the Act and utmost the limitation may be three years in view of Article 137 of the Limitation Act, which period has yet not expired.