S.R.Misra - (1.) BY means of this writ petition, petitioner seeks a writ of certiorari quashing the order dated 22-9-1978 passed by Board of Revenue, respondent no. 1 in a revision filed under section 219 of the U. P., Land Revenue Act. Before coming to the merits of this case it may be pointed oui that normally this court is very, very reluctant in interfering in the cases arising put of the proceedings under U. P. Land Revenue Act as has been held by a Division Bench of this of this court Jaipal v. Board of Revenue, 1956, ALJ 809 where this court has rightly held in that case that where the rights of the parties have not been determined finally and only an appli- cation for mutation has been allowed one way or the other, the remedy of the aggrieved party is to go in a regular suit and no interference under Article 226 of the constitution of India is called for. However, in the present case the rights of the parties have not been decided in the demarcation proceedings but the appeal of the petitioner has been rejected on the ground of non payment of the cost within the prescribed period of limitation. In view of this, the writ petition is considered on merits.
(2.) BRIEF facts giving rise to this writ petition are that respondent nos. 2 to 4 moved an application before the sub divisional officer for demarcation of their plot nos, 465, 291, and 293. Said application according to the petitioner was allowed and confirmed without any notice or information to the petitioner. The petitioner filed a restoration application on 2-7-1972 on the ground that the case was decided behind the back of the petitioner with out service of any notice. Trial court rejected the said application on 10-10-1972. Thereafter petitioner preferred an an appeal. The said appeal of the petitioner was allowed on payment of Rs. 30/- as cost within 60 days from the date of the order failing which the appeal shall stand dismissed. Admittedly the cost was not paid within the stipulated period and an application was filed before the Commissioner for extending the period. The said period was extended by the appellate court. Against the said order extending the period for depositing the cost passed by the Add. Commissioner, respondent nos. 2 to 4 filed a revision before the Board of Revenue and the Board of Revenue vide its order dated 22-9-1978 allowed the revision, setting aside the order of the Additional Commissioner and also rejected the petitioner's application for extension of time for depositing the cost levied against her, with the result the appeal against the order of Sub Divisional Officer dated 10-10-1972 is to dismiss as per the earlier order of the Add. Commissioner as a result of which if the cost was not d posited within 60 days, the appeal was to be dismissed. Aggrieved by the said order of Board of Revenue, petitioner has come to this Court under Article 226 of the Constitution of India. It has been urged on behalf of the petitioner that since the appellate court having exercised its jurisdiction in permitting the petitioner to deposit the cost after the expiry of the period fixed in. the appeal, by allowing the application of the petitioner it was not a fit case for interference under revisional jurisdiction of the Board of Revenue where the Board of Revenue is not bound to interfere in such technical matters and therefore the order of the Board of Revenue is erroneous on the face of it. It has also urged that in pursuance of the order of Additional Commissioner dated 9-5-1973 there was a direction for depositing the cost in the court below i. e. trial court and on this imposition of cost the exparte order of the trial court was set aside. Petitioner's grievance before the Ad. Commissioner was that the file of the case was not sent with the result that inspite of repeated request and approach at the Instance of the petitioner, trial court did not accept cost. In view of peculiar facts and circumstances of the case the appellate court by its order dated 20-7-1993 directed that file to be sent to the trial court within a week and permitted the petitioner to deposit the cost on the first date of hearing. Against this order dated 20-7-1993 a revision was filed. In the counter affidavit it has been stated in paragraph nos. 5( 6 and 7 that the order of the Ad Commissioner for depositing the cost within 60 days was final order and thereafter the Additional Commissioner was not entitled to extend that period and he has no jurisdiction to review the order earlier passed.
(3.) HAVING considered the arguments of the counsel for the petitioner and perused the counter affidavit, I am of the view that though the 'matter arises out of land revenue proceeding? and normally this court is very very reluctant to interfere against such order where the rights of the parties have not been determined. However, in the present case an exparte order for demarcation has been allowed. If this application would have been heard and decided on merits, I would have not interfere against such order and have directed the aggrieved party to file a regular suit, but, since the proceedings admittedly were ex parte, and, on appeal, at the instance of the petitioner, the said appeal was allowed on payment of Rs. 30 as cost and for non-payment of that cost when sufficient explanation was offered by the petitioner before the Additional Commissioner who was satisfied that since the record was not sent to the trial court he also considered that the record be sent within a week and the cost be paid on the first date of hearing. This order was not such an order which should be treated to be an order determining the rights of the parties, and, any interference against said order was not called for in revisional jurisdiction by the Board of Revenue, and, as such, the Board of Revenue has committed clear illegality in exercise of its jurisdiction in interference against such an order in its revisional jurisdiction. The revisional jurisdiction is vested with the powers for specific purposes. Section 219 of the U. P. Land Revenue Act, 1901 (Revisional powers of the Board of Revenue) provides as under : (a) to have exercised a jurisdiction not vested in it in law ; or (b) to have failed to exercise a jurisdiction so vested; or (c) to' have acted in the exercise of jurisdiction illegally or with material irregularity.;