JUDGMENT :

1. This petition has been instituted to quash the order passed by Sub-Divisional Officer dated 29.12.1997 and order dated 5.5.1998 passed by Additional Commissioner.

2. In brief, facts of the case are that respondent no. 5 and 6 filed a suit under Section 229 -B of U.P. Z.A. & L.R. Act, which was dismissed in default on 4.8.1993. It was again dismissed in default on 7.11.1994. (Annexure No. 1 & 2 to the writ petition). Thereafter, respondent nos. 5 & 6 moved the restoration application which was rejected by Sub-Divisional Officer vide order dated 25.6.1996 (Annexure No. 3 to the writ petition). Later on they filed a review petition for recalling the order dated 25.6.1996 which was allowed by order dated 29.12.1997 (Annexure No. 4 to the writ petition) without serving notice to the petitioner.

3. Against the aforesaid order, the petitioner filed a revision before respondent no.1. Generally revisions are being admitted by the Commissioner and hence only on stay application case was heard on 20.1.1998. Neither it was heard on the point of maintainability nor on the merit. Records of the courts below were also not summoned and records were not available before respondent no.1 when the order rejecting the revision was passed. In fact 22.1.1998 was fixed for orders on stay application but to the utter surprise, the revision was denied as not maintainable on 31.1.1998 (Annexure No. 5 to the writ petition). As the aforesaid order was ex-parte, the petitioner filed restoration against the order dated 31.1.1998 which was rejected on 5.5.1998 (Annexure No. 6 to the writ petition).

4. Further proceedings are going on in the court and hence it is desirable in the interest of justice to stay the operation of the order dated 31.1.1998, passed by respondent no. 1.

5. Heard learned counsel for the parties and perused the record.

6. Learned counsel for the petitioner has relied on the judicial precedent Gunai Vs. Gaon Sabha and Others 1990 RD (J) Page 30, wherein it has been held that " whenever a revision under Section 333 of the U.P. Z.A. & L.R. Act, is moved before the Commissioner, Collector or Board of Revenue, before taking any decision on its maintainability, record of the lower court must be summoned.

Section 333 is as under:

Power of Board to Call for Cases- the Board may call for the record of any suit or proceeding by any subordinate court in which no appeal lies or where an appeal lies but has not been preferred and if such subordinate court appears-

(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, the Board may pass such order in the case as it thinks fit."

7. In para 5 of the judgment, the learned Single Judge has held that " it appears from the perusal of Section 333 that the word 'may' is (if desired) is used for the Collector to exercise his judicial power and to call for files of the lower court. This question has to be considered as to whether word 'may' in Section 333 is mandatory or directory in nature. If the word 'may' is used in relation to an officer or for Court for respect then it is imperative rather than mandatory. In this regard the interpretation given in the case of Assistant Commissioner Vs. Prayag Das Agarwal, AIR 1981 SC 1263, is important.

8. In para 7 of the judgment, the learned Single Judge has held that intention of the legislature is clear from the interpretation of the above word 'may' that when a revision is presented before the Collector or Board of Revenue, he must call for record/files of the lower court or subordinate court before deciding it as to whether it should be admitted or not.

9. The Commissioner has rejected the revision without considering the provisions of Section 333 as mandatory and without calling for the records of the subordinate courts. Therefore, the prayer has been made to allow the petition and direct the Commissione