Yashoda Nandan, J. - (1.) A Bench consisting of Satish Chandra and N. D. Ojha, JJ., has referred to this Full Bench the fol lowing question for its answer: "What is the impact of Section 5 (2) (a) of the U. P. Consolidation of Holdings Act; 1953 on writ petitions or special appeals aris ing out of them in which judgment or orders passed in suits or proceedings relating to declaration of rights in land covered by a notification under Section 4 of the Consoli dation of Holdings Act are impugned?" There was a divergence of opinion between the two learned Judges on the above ques tion. While Satish Chandra, J., took the view that the suit or proceeding giving rise to a writ petition is pending in this court and abates by virtue of Section 5 (2) (a) of the U. P. Consolidation of Holdings Act hereinafter referred to as the Act - on a notification under Section 4 thereof being Issued, N. D. Ojha, J., was of a contrary opinion.
(2.) BEFORE embarking on a consideration of the impact of Section 5 (2) (a) of the Act, it is necessary to appreciate the true nature and character of proceedings under Article 226 of the Constitution and special appeals against orders passed in such pro ceedings. An order passed by the High Court under Article 226 of the Constitution, as held by the Supreme Court in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, AIR 1963 SC 946 and Ramesh v. Gendalal Motilal, AIR 1966 SC 1445 is one in exer cise of its extra-ordinary original civil juris diction. When a writ petition is filed chal lenging a decision in a suit or proceeding declaring or adjudicating rights or interest in any land, this Court calls for the record of the suit or proceeding and if it is found to be without jurisdiction or if there is an error of law apparent on the face of the record, the judgment or order is quashed. This Court after quashing the order cannot sub stitute its own order or decree for the order or decree impugned but must send back to the court or authority concerned for decid ing the case in accordance with law declar ed by it The executable order with regard to the rights of the parties in dispute in such a case is not the order of this Court passed in the writ petition but the decision ultimately given by the court or authority of which the order was in challenge. If, on the other hand, the petition for a writ is dis missed, again, it is the order of the court or authority concerned which was impugned that decides the rights of the parties in dis pute. It was held by the Supreme Court in AIR 1966 SC 1445 (supra) that "A petition to the High Court invoking this jurisdiction is a proceeding quite inde pendent of the original controversy. The controversy in the High Court, in proceed ings arising under Article 226 ordinarily is whether a decision of or a proceeding be fore, a court or tribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on ac count of errors of law apparent on the face of the record." It is thus clear that a decision in a writ petition is not a decision about the merits of the rights of the parties in issue in the proceedings giving rise to it has further to be noted that a proceeding under Arti cle 226 of the Constitution is not a conti nuation of the suit or proceeding giving rise to it and there exists a clear distinction be tween an appeal or revision and a writ peti tion directed against orders passed therein. It was held by the Supreme Court in Ahmedabad Manufacturing and Calico Print ing Co. Ltd. v. Ramtahel Ramanand, (AIR 1972 SC 1598) that: "Under Article 226 of the Constitu tion it may in this connection be pointed out that the High Court does not hear an appeal or a revision; that court is moved to interfere after bringing before itself the re cord of a case decided by or pending be fore a court, a tribunal or an authority, within its jurisdiction. A decision in the ex ercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order, in an original proceeding. An appeal or a revision on the other hand is generally considered to be a continuation of the origi nal suit or proceeding..............." If a writ petition is not a continuation of the original suit or proceeding unlike an ap peal or revision the inference is not only reasonable but inevitable that orders passed in the original suit OF proceeding or in an appeal or revision arising there from do not merge in the orders passed in such petition. Since a special appeal, directed against an order passed in a writ petition is merely a rehearing of the petition itself, it has all the abovementioned charac teristics of a petition under Article 226 of the Constitution. The above described features of writ petitions must be borne in mind while considering the question refer red to us.
(3.) I shall now proceed to considers the scope of Section 5 (2) (a) of the Act dis embarrassed by the case- law dealing with the question referred to us.;