JUDGEMENT - Heard Sri Lok Pal Singh, Counsel for the petitioners and Standing Counsel for the respondents. 2. By the present writ petition, the petitioners have prayed for a writ of certiorari quashing the order dated 11-05-1993 passed by the Collector, Haridwar. 3. Briefly stated the dispute relates to khasara no. 118 over which petitioner Atma Ram had built his residential house. Proceedings under section 122-B of U.P. Z.A.& L.R. Act were Initiated against the petitioners vide case No. 12/1M/82-83 and the dispossession of the petitioners from a part of khasra No. 118 was claimed. The Tehsildar, Roorkee vide order dated 25-10-1986 dismissed the eviction proceedings and quashed the notice 49-A dated 30-06-1981 and rejected the application under section 122-B of U.P.Z.A. & L.R. Act. Thereafter, again a notice under section 49-A was served upon the petitioner and proceedings under section 122-B of U.P.Z.A. & L.R. Act, were initiated vide case No. 104 of 1991 for dispossession of the petitioner from a part of khasara plot no. 118. The Assistant Collector vide order dated 25-10-1986 quashed the notice issued to the petitioner. Against the order of the Assistant Collector, Gaon Sabha went in revision and the revisional court remanded the case back to the respondent no. 2 with the direction that the disputed land be measured and spot inspection be made. Thereafter again the Assistant Collector decided the case on 8-2-1993 in favour of the petitioner and discharged the notice. The Gaon Sabha again preferred revision No. 93 of 1993 before the Collector, Haridwar. The Collector allowed the revision vide order dated 11-5-1993 and set aside the order of Tahsildar dated 8-2-1993 and also directed that proceedings for cancellation of allotment of the land in dispute be initiated. The said order has been challenged in the present writ petition. 4. The petitioners have submitted that section 122-B provides the power of the Land Management Committee and the Collector for initiating the proceedings relating to the land which has been occupied otherwise than in accordance with the provisions of the Act. The Abadi land is excluded from the operation of the notice under section 49-A. 5. The Assistant Collector, vide order dated 8-2-1993 has recorded a finding that the petitioner is in possession of the land and has constructed a house over the land. The Abadi land is excluded from the operation of the notice under section 49-A. 5. The Assistant Collector, vide order dated 8-2-1993 has recorded a finding that the petitioner is in possession of the land and has constructed a house over the land. Thus the land is Abadi land and he accordingly withdrew the notice under section 49-A of U.P.Z.A. & L.R. Act. 6. Section 122-B of the Act, reads as under: 122-8. Powers of the Land Management Committee and the Collector(1) Where any property vested under the provisions of this Act, in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or Local Authority as the case may be, shall inform the Assistant Collector concerned in the manner prescribed. (2) Where from the information received under sub-section (1) or otherwise the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that sub-section, in contravention of the provisions of. this act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be why he should not be evicted from such land. (3) If the person to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time not exceeding (thirty days) from the date of service of such notice on such person as the Assistant Collector may allow in this behalf, or if ~he cause shown is found to be insufficient, the Assistant Collector may direct that such person may be evicted from the land and may, for that purpose, use,' or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue. 7. Section 117 of the Act provides vesting of certain lands in the Gaon Sabha. This section reads as under: 117. 7. Section 117 of the Act provides vesting of certain lands in the Gaon Sabha. This section reads as under: 117. Vesting of certain lands, etc. in Gaon Sabhas and other local authorities- (1) At any time after the publication of the notification referred to in section 4, the State Government may (by general or special order published in the manner prescribed) declare that as from a date to be specified in this behalf all or any of the following things, namely- (i) lands, whether cultivable or otherwise except lands for "the time being comprised in any holding or grove. (ii) Forests, (iii) Trees other than trees in a holding or on the boundary of a holding , or in a grove or abadi, (iv) Fisheries . (v) Hats, bazaars and melas except hats, bazaars and melas held on lands to which the provisions of clauses (a) to (c) of sub-section (1) of section 18 apply or on sites and areas referred in section 9 and (vi) Tanks, ponds, private ferries, water channels, pathways and abadi sites, Which had vested in the State under this Act shall vest in the Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate, or partly in one such local authority (including a Gaon Sabha) and partly in another; . Provided that it shall be lawful for the State Government to make the declaration aforesaid subject to such exceptions and conditions as in may be specified in such order. 8. In view of the provisions made under section 117 of the Act, the assertion of the petitioners that Abadi land is not covered under the provisions of 122-B of the Act has already been decided by the Assistant Collector. Further more the possession of the petitioners having been recorded by the Tehsildar, and it has been held that the petitioners have constructed a residential house over the land. 9. In the present case twice the matter was remanded by the revisional Court and the Assistant Collector has found that the notice was defective and, therefore, remedy for the Gaon Sabha being available under section 122(4)(d) to file a suit, the revision is not maintainable on the question of fact. 9. In the present case twice the matter was remanded by the revisional Court and the Assistant Collector has found that the notice was defective and, therefore, remedy for the Gaon Sabha being available under section 122(4)(d) to file a suit, the revision is not maintainable on the question of fact. The revisional court has to adjudicate as to whether the trial Court has exercised the jurisdiction not vested in it or has not exercised the jurisdiction vested in it. 10. In Major S.S. Khanna Vs. Brig. F.J. Dillon AIR 1964 5C 497, the Apex Court has observed as under :- "The power given by S. 115 of the Code is clearly limited to the keeping of the Subordinate Courts within the bounds of their jurisdiction. It does not comprehends the power exercisable under the writ of Prohibition or Mandamus. It is also not a full power of Certiorari inasmuch as it arises only in a case of jurisdiction -and not in a case of error. It has been ruled by the Judicial Committee and also by this Court that the section is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity. Where there is no question of jurisdiction in this manner the decision. can not be correct for it has also been ruled that a Court has jurisdiction to decide wrongly as well as rightly." 11. Relying upon the judgment of the Apex Court in M. V. Elisabeth and others vs. Harwim Investment :IT 1992 (2) 5C 65 in Ram Murti Vs. Deputy Director of Consolidation 1995 RD 249 High Court of Allahabad has held as under: "It may be noticed that the Deputy Director of Consolidation was exercising revisional power under Section 48 as distinguished from an appellate power. Section 48 of the U. P. Consolidation of Holdings Act, 1953 is no doubt couched in a language of wide amplitude but that does not mean that the Deputy Director of Consolidation may act as an appellate Court. Section 48 of the U. P. Consolidation of Holdings Act, 1953 is no doubt couched in a language of wide amplitude but that does not mean that the Deputy Director of Consolidation may act as an appellate Court. In K.A. Anthappai v. C. Ahammed JT 1992 (4) SC 65 the Supreme Court was considering the scope of revisional power of the High Court under Section 20 of Kerala Building (Leases and Rent Control) Act, 1965 whereunder the High Court can "call for and examine the records relating to any order passed or proceedings taken 'under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and may pass such order in reference thereto as it thinks fit" a provision similar to the one contained in Section 48 of the U. P. Consolidation of Holdings Act, 1953. It was held as under - : "It is no doubt true that the scope of the revisional jurisdiction conferred under Section 20 is wider than that conferred under Section 115, C. P. C. but at the same time a revision under Section 20 cannot be equated with an appeal. Moreover, the revisional power conferred under Section 20 also embraces an order passed by the appellate authority. While considering the provisions conferring revisional power couched in a language similar to that contained in Section 20 of the Act this court has laid down that the power conferred on the High Court is essentially a power of superintendence and despite wide language employed, the High Court should not interfere with the finding of fact of the subordinate court merely because it does not agree with the said findings. SCC Dattonpani Gopalvarao Deva Ratte v. Vithabrao Maruthirao Jagangawal 1975 Suppl. SCR 67, M/s Raja Laxmi Dying Works and others v. Rangaswami Chhetiar AIR 1980 SC 1253. The Supreme Court further held: "The revisional court must be reluctant to embark upon an independent reassessment of the evidence and supplant a conclusion of its own, so long as evidence on the record admitted of an supported the one reached by the Court below. Rajvir v. S. Chokesi & Co. 1989 (1) SCC 19 at Page 37." 12. In the case of Ram Avtar and others Vs. Ram Dhani and others (1997) 2 SCC 263, the Apex Court has held as under: "8. Rajvir v. S. Chokesi & Co. 1989 (1) SCC 19 at Page 37." 12. In the case of Ram Avtar and others Vs. Ram Dhani and others (1997) 2 SCC 263, the Apex Court has held as under: "8. We are surprised as to how the Deputy Director while exercising the revisional power entered into all questions of fact and came to the conclusion on pure conjecture that the appellants before this Court shall be deemed to be in possession of the lands since 1932. This Court has repeatedly pointed out that howsoever wide the power under statutory revision may be in contrast to Section 115 of the Code of Civil Procedure, still while exercising that power the authority concerned cannot act as court of appeal so as to reappreciate the evidence on record for recording findings on questions of fact. " 13. Learned counsel for the petitioner has also referred 200J RD Page 562 Kashi Nath and another Vs. Board of Revenue U.P. at Allahiibad and others, where the Allahabad High Court after referring the various judgments of the Apex Court has held that the jurisdiction of the revisional court is very limited and cannot be conferred for reappraisal of the evidence. The observations are quoted below :- "11. It is evident from the view taken by the Apex Court that the Courts always appreciate exercise of power in favour of hearing and not to ,shut out the hearing. The court below by passing the impugned order shut out the hearing and it illegally upheld the validity of the ex-parte decree, which was passed without service of notices upon the petitioners. Similarly, learned counsel for the petitioners also referred to and relied upon the decision in State of U. P. and others v. III Additional District Judge, Azamgarh and another 1989 (15) ALR 47 (Sum.)= AIR 1989 All. Page 14, wherein it was ruled as under: "8.' In the instant case I am of the view that reappraisal of the evidence made by the learned Additional District Judge, either to ascertain whether 'Sufficient cause was made out for an application under Order 9, Rule 13 of the Code or not, or whether sufficient cause was made out for condonation of delay under Section 5 of the Limitation Act or not, was beyond his jurisdiction in exercise Of powers under Section 115 of the Code. He appears to have presumed as if he was exercising jurisdiction of the appellate court. It would not be out of a. place of mention 'that in Manik Chandra Nandy v. Debdas Nandy AIR 1986 SC 446, their Lordships of Supreme Court explaining the jurisdiction of revisional Court under Sectionl15 of the Code in particular reference to an application under Order 9, Rule 13 of the Code, observed that learned Additional District Judge must have been cautious about the scope of the revisional jurisdiction and he need 'hot have mixed it with the appellate jurisdiction. In my considered opinion it is needless to repeat that exercise of appellate jurisdiction is free to decide all, questions of law and fact. In exercise of revisional jurisdiction the Court is not entitled to reappraisal of the evidence on the record and to substitute its own findings in place of the findings of the trial court. The plea of limitation is mixed question of law and fact. The findings of the trial court that sufficient cause was made out for allowing application under Order 9, Rule 13 and also that sufficient cause was made out for condonation of delay under Section 5 of the Act, could not be said to be not borne but by the evidence on the record nor the same could be said to be manifestly contrary to the evidence on the record or palpably wrong and at the same time it could not be said that in case those findings are permitted to continue they would in any way result in miscarriage of justice. 9. Matter can be viewed from other angle as well. The Court should see in a given case that the parties may be given an opportunity of being heard on merits and not that the opportunity of hearing may be shut out. In' the instant case in case ex parte decree is maintained, the petitioners would be prevented from appearing before the Court or from proving their case on merits. The Court should see in a given case that the parties may be given an opportunity of being heard on merits and not that the opportunity of hearing may be shut out. In' the instant case in case ex parte decree is maintained, the petitioners would be prevented from appearing before the Court or from proving their case on merits. The findings recorded by the trial court about the sufficient cause having been made out by the defendants under Order 9 Rule 13 of the code for restoring the suit and sufficient ground for condonation of delay under Section 5 of the Act was made out, were essentially findings of fact and the same cannot be Respondent-examined by the revisional court under Section 115 of the Code. The impugned order appears to be manifestly erroneous in respect of exercise of jurisdiction under Section 115 of the, Code. The revisional Court assumed as it was exercising appellate jurisdiction conferred under Order 43, Rule 1 or Under Section. 96 of the Code. In this view of the matter as the question of jurisdiction was not involved and the lower appellate court assumed the jurisdiction of appellate court, whereas in fact it has got only the limited jurisdiction of a revisional court, a case for interference and issuance of writ of certiorari has been made out. The only inescapable conclusion is that the findings of fact recorded by the trial court could not be set aside in exercise of revisional jurisdiction. 14. Accordingly, writ petition is allowed and the order passed by the revisional Court is set aside. However, liberty is given to the Gaon Sabha to initiate fresh proceedings in accordance with law. No order as to costs.