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2013 DIGILAW 2280 (ALL)

ARVIND KUMAR YADAV v. STATE OF U. P.

2013-09-12

A.P.SAHI

body2013
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri R.N. Yadav, learned counsel for the petitioner, Sri S.N. Tripathi and Sri B.L. Verma for the respondent Nos. 5 and 6 and learned Standing Counsel for the Respondent Nos. 1 to 4. 2. This writ petition has been filed primarily questioning the jurisdiction of the Respondent No. 2 - Additional District Magistrate to entertain the revision filed by the respondent Nos. 5 and 6 in relation to an order passed under Section 33/39 of the U.P. Land Revenue Act, 1901. The issue, being purely legal, has been raised by Sri R.N. Yadav contending that the Additional Collector does not have the jurisdiction to entertain the revision against an order passed by the Assistant Collector under Section 33/39 of the U.P. Land Revenue Act, 1901, and that a revision can be filed only before the Commissioner as the order is not appealable. He submits that the Additional District Magistrate/Collector, therefore, overreached his authority in proceeding to entertain the said revision and pass orders. 3. Sri S.N. Tripathi and Sri B.L. Verma for the contesting respondents have both vehemently urged that in view of the provisions of Section 15 read with Section 18 of the 1901 Act, the Collector being a higher authority than the Assistant Collector, who is subordinate to him, would be entitled to entertain the revision in terms of Section 219 of the 1901 Act. He, therefore, contends that the Assistant Collector, being subordinate to the Collector, entitles the Collector to entertain the revision and the same can be disposed of in accordance with law. 4. Learned Standing Counsel, Sri Rajesh Kumar, submits that the legal position has to be determined keeping in view the provisions of Section 33/39, Section 210 (6), Section 227 (5-A) read with Section 219 of the 1901 Act. His submission is that the Collector will not have the power to entertain a revision arising out of an order under Section 33/39 of the 1901 Act nor any appeal would lie against the same. 5. Sri R.N. Yadav has also tried to persuade the Court on behalf of the petitioner by relying on a judgment of the Board of Revenue in Vishwanath v. Sugia, 1969 RD 456. 6. On hearing the learned Counsel, it appears that the respondent Nos. 7 to 9 are the vendors of respondent Nos. 5. Sri R.N. Yadav has also tried to persuade the Court on behalf of the petitioner by relying on a judgment of the Board of Revenue in Vishwanath v. Sugia, 1969 RD 456. 6. On hearing the learned Counsel, it appears that the respondent Nos. 7 to 9 are the vendors of respondent Nos. 5 and 6 and, therefore, the main contesting parties are the respondent Nos. 5 and 6. Learned Counsel for the respondent Nos. 1 to 6 including the learned Standing Counsel contend that the matter can be disposed of finally as the issue raised is one which is purely legal and, therefore, it does not require dispatch of notices to the respondent Nos. 7 to 9. In view of the aforesaid submissions raised, the matter is being disposed of finally at this stage itself after hearing the learned counsel for the contesting parties on the aforesaid submissions. 7. Section 33/39 of the 1901 Act provides for correction of entries. The power exercisable therein is conferred on the Collector of the district. The said powers have been delegated to the Assistant Collector under sub-section (4) and sub-section (5-a) of Section 227 of the Act. 8. The words used are that an Assistant Collector Incharge of the sub division of a district shall have the following powers. The words used in the opening sentence of Section 227, therefore, confer a coordinate power being delegated on the Sub-Divisional Officer by the Statute itself in place of the Collector. Thus, the Assistant Collector, while passing such an order, cannot be said to be exercising subordinate powers to the Collector as contemplated under Section 15 of the Act and as urged by Sri Tripathi and Sri B.L. Verma for the respondent Nos. 5 and 6. The power, therefore, being coordinate, a revision against the same under Section 219 of the 1901 Act would lie to the Commissioner and not to the Collector. 9. So far as the question of appeal is concerned, there is a clear statutory bar contained in sub-section (6) of Section 210 which does not permit the filing of any appeal before any authority against an order under Section 33/39 of the U.P. Land Revenue Act. Consequently, the argument advanced by Sri Tripathi and Sri B.L. Verma cannot be countenanced in view of the conclusion drawn herein above. 10. Consequently, the argument advanced by Sri Tripathi and Sri B.L. Verma cannot be countenanced in view of the conclusion drawn herein above. 10. The question further that requires to be considered is to the maintainability of a revision. Under Section 219, the right to file a revision even if such an order is appealable or where no appeal lies, has been provided for. The provision is absolutely clear and a revision in the instant case would also lie about which there cannot be any dispute. 11. The question is only of the forum as indicated above. The Collector will not have the authority to entertain a revision against the order of the Assistant Collector under Section 33/39 of the 1901 Act as the Assistant Collector exercises a delegated power on behalf of the Collector explained herein above under Section 227 of the Act. 12. Consequently, the writ petition deserves to be and is hereby allowed. The impugned order passed by the Additional Collector dated 19.8.2013 is hereby set aside. The revision is held to be not maintainable before the Collector. 13. The entire proceedings being without jurisdiction before the Collector, it shall be open to the respondents to avail of the remedy before the appropriate forum.