Nasruddin vs Additional Commissioner, Faizabad Division and Others

Kamal Kishore, J.—This writ petition has been preferred for quashing the orders dated 10.12.1998 and 16.10.1999, passed by the then S.D.M., Musafirkhana and Additional Commissioner, Faizabad Division, Faizabad, which are Annexures-3 and 4 respectively.

I have heard arguments and have gone through the record.

It has been argued by the learned counsel for the opposite-parties that the alternative remedies have already been availed of by the parties before the learned S.D.M. etc. in appeal, hence the present petition under Article 226 of the Constitution of India is not maintainable. On the other hand, it has been argued by the learned counsel for the petitioner, as alleged, that the alternative remedy in mutation orders is not barred by Article 226 of the Constitution of India. In support of his contention, the learned counsel for the petitioner has placed reliance on the ruling in Puran Singh Vs. Board of Revenue and Others, . This ruling is, however, not applicable to the facts of the case. In that ruling, the exception to the Bar of the alternative remedy is mentioned :

"Exception has been categorized in cases where (i) the order is without jurisdiction, (ii) the rights and title already decided by competent court had been varied by mutation courts, and (iii) mutation directed not on basis of possession or simply on the basis of some title deed but after entering into debate of entitlement to succeed the property, touching into the merits of rival claim."

In the instant case, none of the aforesaid exceptions is present due to which I find that since the parties are already availing alternative remedy, the present writ petition under Article 226 of the Constitution of India is not maintainable.

In the instant case, order passed by the then Tehsildar, Musafirkhana was challenged in appeal before the S.D.M., Musafirkhana, district Sultanpur in which maintainability of the appeal was challenged and the learned S.D.M., Musafirkhana, has held that the appeal is maintainable. Feeling aggrieved, the present petitioner went in the revision before the then learned Additional Commissioner, Faizabad Division, Faizabad. The learned Additional Commissioner has held in the aforesaid revision vide his impugned judgment dated 16.10.1999 that the revision filed by the present petitioner is not maintainable. The Additional Commissioner has, therefore, remanded the case to the S.D.M., Musafirkhana, with the direction to decide the matter afresh. The matter is thus pending in appeal before the learned S.D.M., Musafirkhana, hence the parties are availing alternative remedy in the said appeal. The law is well-settled that orders passed by the revenue authorities in proceedings u/s 34 of the Land Revenue Act wear the badge of an order stemming from summary proceedings and by this reckoning, the petition impugning orders passed in proceedings u/s 34 of the Land Revenue Act is not maintainable in writ petition under Article 226 of the Constitution of India, as has been held by this Court in the ruling in Ishu Vs. State of U.P. and Others, .

The writ petition is, therefore, devoid of merits and is hereby dismissed.