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1991 DIGILAW 196 (ALL)

Jhingai v. Deputy Director Of Consolidation, Jaunpur

1991-02-01

B.L.YADAV

body1991
JUDGMENT B.L. Yadav 1. By the present petition under Article 226 of the Constitution of India the petitioner has prayed for a writ of Mandamus directing the respondent no. 1 to decide the representation of petitioner dated 23-11-1990 (Annexure-2 to the petition). 2. Learned counsel for the petitioner urged that even though his objection has been allowed by order dated 9-7-89, but nevertheless he made another representation (Annexure-2) and the same may be allowed. Having heard learned counsel for the petitioner I am of the view that under the provisions of U. P. Consolidation of Holdings Act, 1953 (for short the Act), either an objection can be filed under Section 9 or 9-A or an appeal or revision or an application to initiate proceedings for reference can be made under Section 11, Section 21 or Section 48 of the Act. There is no provision for making representation. There can be made an application to correct clerical error under Section 42-A of the Act. The application or representation (Annexure-2) cannot be deemed to be maintainable. An application can be filed only if it is allowed by a particular provision of the Act or provided under Rules. 3. The matter can be viewed from another angle. There is a maxim 'ACTUS LEGITIMI NON RECEPIUNT MODLIM'. This means that when doing of anything in a particular manner is sanctioned by law, then the things cannot be done in a different way. 4. In State of U. P. v. Singhare Singh, AIR 1964 SC 358 , it was held as follows : "The rule adopted in (1876) 1 Ch. 426 is well recognized and is founded on sound principles. Its result is that if statute has conferred a power to do an act and has laid down method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so the statutory provision might as well not have been enacted." In Taylor v. Taylor, (1876) 1 Ch. The principle behind the rule is that if this were not so the statutory provision might as well not have been enacted." In Taylor v. Taylor, (1876) 1 Ch. 426, Jessel M. R. observed at page 431 as follows :- "When a statutory power is conferred for the first time upon a court and the mode of exercising it is pointed, it means that no other mode is to be adopted." In the present case as the mode has been provided under the Act as to how objection has to be filed, how appeal or revision has to be filed or how the application for correction of clerical error has to be filed, but there is no provision for filing a representation, hence only irresistible conclusion is that Legislature did not want to lay down a procedure for any representation nor the same can be entertained nor any relief can be granted. 5. There is another aspect of the matter. The representation (Annexure-2) is in the form of a letter addressed to the Deputy Director of Consolidation. No section or rule has been quoted under which it has been filed. Relief claimed vide Annexure-2 is that the Director may direct the Lekhpal to allot an area of .04 of plot no. 730 in front of petitioner's house. Such representation or relief claimed is not warranted by any provision of the Act nor such representation can be allowed. 6. The next prayer of the petitioner is that a writ of Mandamus may be issued to respondent no. 1 to decide the petitioner's representation. About the validity of representation discussion has already been made that it was not maintainable under any provision of law nor it was in such a form so that any relief can be granted. Further writ of Mandamus is not to be issued as a matter of course. It is issued only when the person or authority against whom it is sought to be issued performs some public duty. In the present case no statutory duty was proved to have been cast on the Deputy Director of Consolidation as neither there was any provision for making representation nor the said representation can be said to be an application or objection. Consequently it cannot be said that the Deputy Director of Consolidation was under some statutory obligation to perform any duty statutorily imposed upon him. Consequently it cannot be said that the Deputy Director of Consolidation was under some statutory obligation to perform any duty statutorily imposed upon him. The petitioner also cannot be said to have any legal right nor it can be said that any legal right has been infringed. Consequently no ground for issuance of a writ of Mandamus has been made out. There is another defect in the writ petition. Proper parties were also not impleaded in the writ petition. A writ can be issued only when all the persons affected by the judgment sought to be quashed or affected by the direction sought to be issued are made parties. Ram Swaroop and others were to be affected by the success of the writ petition and they were parties in the revision No. 405 Jhingai v. Ram Swaroop, but Ram Swaroop and others are conspicuous by their absence in the writ petition. In the absence of proper and necessary parties, the writ petition is also liable to be dismissed. 7. Applying the Baconian and Aristotelian methods of reasoning, and in view of the premises aforesaid, I do not find any merit in the petition and accordingly the same is dismissed.