Allahabad High Court
Anand Kumar Singh & Another vs State Of U.P. Thru. Seyc. Revenue U P ... on 20 April, 2017
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 4 Case :- MISC. SINGLE No. - 8354 of 2017 Petitioner :- Anand Kumar Singh & Another Respondent :- State Of U.P. Thru. Seyc. Revenue U P Civil Sectt. & Ors. Counsel for Petitioner :- Dharmendra Singh,Raghvendra Pratap Singh Counsel for Respondent :- C.S.C. Hon'ble Devendra Kumar Upadhyaya,J.
Heard learned counsel for the petitioners and learned Standing Counsel for the respondents.
This petition under Article 226 of the Constitution of India seeks to challenge the order passed by the Additional Commissioner (Judicial), Lucknow Division, Lucknow on 08.03.2017, whereby the appeal preferred by the petitioners under Section 210 of U.P. Land Revenue Act against the order dated 11.08.2015, passed by the Sub-Divisional Officer, Purwa, Unnao, has been rejected.
On a query being put to learned counsel for the petitioners as to whether the order under challenge in this petition is revisable either under Section 219 of U.P. Land Revenue Act or under Section 210 of U.P. Revenue Code, 2006, no satisfactory answer comes forth. Accordingly, the Court proceeds to decide the said issue.
The dispute engaging attention of this Court in this case is demarcation of khasra plot nos.206 and 205ka, situate at village-Bhawariya, Pargana-Maurawan, Tehsil-Purwa, District Unnao. In respect of said plots, the respondent no.5-Smt. Girija Devi moved an application under Section 41 of U.P. Land Revenue Act before the Sub-Divisional Officer with the prayer that the said plots be demarcated. The Sub-Divisional Officer passed the order dated 11.08.2015, allowing the application moved by Smt. Girija Devi and directed the Tehsildar concerned to demarcate the aforesaid plots.
Feeling aggrieved by the said order dated 11.08.2015, the petitioners preferred an appeal under Section 210 of U.P. Land Revenue Act, 1901 before the Additional Commissioner (Judicial), Lucknow Division, Lucknow, who dismissed the same by means of the order dated 08.03.2017. It is these two orders dated 11.08.2015 and 08.03.2017, passed by the Sub-Divisional Officer and the Additional Commissioner (Judicial), which are under challenge herein.
Section 41 of U.P. Land Revenue Act, 1901 provides the procedure for settlement of boundary disputes. Against an order passed under Section 41 of U.P. Land Revenue Act, a person aggrieved has been provided a remedy of filing an appeal under Section 210 of U.P. Land Revenue Act. Appeal against an order passed by Assistant Collector in charge of sub-division under U.P. Land Revenue Act before the Commissioner is provided under Section 207 of U.P. Revenue Code, 2006. Under the scheme of U.P. Land Revenue Act, the Board of Revenue, Commissioner and Additional Commissioner as also the Collector and the Record Officer and Settlement Officer have been vested with the power to call for the record of any case decided or proceeding held by any Revenue Court subordinate to such officers and pass orders. The said revisional jurisdiction in terms of Section 219 of U.P. Land Revenue Act has to be exercised by the revisional court only, namely, in case the revisional court finds that subordinate revenue court has exercised its jurisdiction not vested in it or it has failed to exercise its jurisdiction so vested or it has acted in the exercise of jurisdiction illegally or with material irregularity.
Thus, a person aggrieved by an order passed by the appellate court under section 210 of U.P. Land Revenue Act has got a statutory remedy of revision under Section 219 of U.P. Land Revenue Act.
So far as the matters relating to demarcation of proceedings under Section 41 of U.P. Land Revenue Act are concerned, the said applications are tried by the Sub-Divisional Officer as the Court of first instance and thereafter in terms of Section 210 of U.P. Land Revenue Act, a remedy of appeal is available to a person aggrieved before the Commissioner/Additional Commissioner.
In case a person is aggrieved by the decision of the appellate court under Section 210 of U.P. Land Revenue Act, such aggrieved person has got a statutory right to invoke the revisional jurisdiction of the Board of Revenue under Section 219 of U.P. Land Revenue Act.
It has been contended by learned counsel for the petitioners, though feebly, that after enforcement of U.P. Revenue Code, 2006, the remedy of revision under Section 219 of U.P. Land Revenue Act is not available and further that since under Section 24 (4) of U.P. Revenue Code, 2006 the order passed by the Commissioner has been attached finality, the remedy of revision under Section 210 of U.P. Revenue Code, 2006 is also not available to a person aggrieved by an order passed by the Commissioner.
So far as the dispute relating to boundaries is concerned, Section 24 of U.P. Revenue Code, 2006 prescribes complete Code in itself for redressal of grievance of any tenure holder relating to demarcation by boundaries of his tenures. Section 24 of U.P. Revenue Code, 2006 empowers the Sub-Divisional Officer either suo-moto or an application to be made on that behalf by a person interested to decide the dispute regarding boundaries on the basis of existence of survey maps or on the basis of maps prepared during consolidation operations. Sub-section (4) of Section 24 of U.P. Revenue Code, 2006 provides that any person aggrieved by the order of the Sub-Divisional Officer will have right to appeal before the Commissioner and further that the order of Commissioner shall be final. Sub-sections (1) and (4) of Section 24 of U.P. Revenue Code is extracted below:-
"24. Disputes regarding boundaries-(1) The Sub-Divisional Officer may, on his own motion or on an application made in this behalf by a person interested, decide, by summary inquiry, any dispute regarding boundaries on the basis of existing [survey maps or, where they have been revised in accordance with the provisions of the Uttar Pradesh Consolidation of Holdings Act, 1953, on the basis of such maps, but if this is not possible, the boundaries shall be fixed on the basis of actual possession.
2.......
3.......
(4) Any person aggrieved by the order of the Sub-Divisional Officer may prefer an appeal before the Commissioner within thirty days of the date of such order. The order of the Commissioner shall be final."
Section 210 of U.P. Revenue Code, 2006, vests the revisional power and jurisdiction in the Board of Revenue as also in the Commissioner. Provision of Section 210 of U.P. Revenue Code, 2006 appears to be in pari materia with the provision of Section 219 of U.P. Land Revenue Act so far as the scope of exercise of revisional jurisdiction is concerned. However, since finality has been attached to the order passed by the Commissioner in a dispute regarding boundaries in terms of the provisions contained in Section 24 (4) of U.P. Revenue Code, 2006, the Board of Revenue may not have the revisional jurisdiction to exercise in such matter under U.P. Revenue Code, 2006.
However, what needs to be noticed at this juncture is the repeal clause in U.P. Revenue Code, 2006, which is embodied in Section 230 thereof.
Simultaneously, in respect of applicability of U.P. Revenue Code, 2006 in pending proceedings, the provisions of Section 231 of the Code, 2006 also needs to be referred to.
By Section 230 of U.P. Revenue Code, 2006, certain legislations which have been mentioned in the First Schedule appended thereto have been repealed. Sub-section (2) of Section 230 provides that notwithstanding anything contained in sub-section (1), the repeal of such enactments shall not affect inter alia the previous operation of any such enactment or anything duly done or suffered thereunder. Section 230 of U.P. Revenue Code, 2006 is quoted hereinbelow:-
"230. Repeal.- (1) The enactments specified in the First Schedule are hereby repealed.
(2) Notwithstanding anything contained in sub-section (1), the repeal of such enactments shall not affect-
(a) the continuance in force of any such enactment in the State of Uttaranchal;
(b) the previous operation of any such enactment or anything duly done or suffered thereunder; or
(c) any other enactment in which such enactment has been applied, incorporated or referred to; or
(d) the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title or obligation or liability already acquired, accrued or incurred (including, in particular, the vesting in the State of all estates and the cessation of all rights, title and interest of all the intermediaries therein) or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted or the proof of any past act or thing; or
(e) any principle or rule of law or established jurisdiction, form or course of pleading, practice or procedure or existing usage, custom, privilege, restriction, exemption, office or appointment;
Provided that anything done or any action taken (including any rules, manuals, assessments, appointments and transfers made, notifications, summonses, notices, warrants, proclamation issued, powers conferred, leases granted, boundary marks fixed, records of rights and other records prepared or maintained, rights acquired or liabilities incurred) under any such enactment shall, insofar as they are not inconsistent with the provisions of this Code, be deemed to have been done or taken under the corresponding provisions of this Code, and shall continue to be in force accordingly, unless and until they are superseded by anything done or action taken under this Code."
Sub-section (2) (d) of Section 230 provides that on repeal of the enactments specified in the First Schedule appended to U.P. Revenue Code, 2006, such repeal shall not affect the validity, invalidity or consequences of anything already done or suffered or any right, title or obligation or liability, claim or demand done under the previous enactments.
Section 231 specifically provides that except as otherwise provided expressly in the Code 2006 itself, all cases pending before the State Government or any Revenue Court before the commencement of Code, 2006, whether in appeal, revision, review or otherwise, shall be decided in terms of the provisions of the appropriate law which would have been applicable to them in case the Code, 2006 had not been passed. Thus, the proceedings pending before the revenue courts on the commencement of U.P. Revenue Code, 2006 have been expressly saved.
U.P. Revenue Code, 2006 came into operation with effect from 11.02.2016 and on the said date, the appeal preferred by the petitioners before the Additional Commissioner (Judicial), Lucknow Division, Lucknow was pending and thus, the said proceedings were saved and mandated to be decided as per the provision of Section 231 of U.P. Revenue Code, 2006 in accordance with the provision of U.P. Land Revenue Act, as if the Code 2006 was not in existence.
The question which falls for determination in this case is as to whether the provision of U.P. Land Revenue Act including Section 219 would be deemed to be saved on the basis of operation of Sections 230 and 231 of U.P. Revenue Code, 2006 in respect of the proceedings which though initiated before commencement of Code, 2006 but have been concluded after U.P. Revenue Code, 2006 become operational.
Section 210 of U.P. Revenue Code, 2006, which vests revisional jurisdiction upon the Board of Revenue and the Commissioner of the Divisions would not be available in case of dispute relating to demarcation or boundary dispute for the reason that sub-section (4) of Section 24 of U.P. Revenue Code, 2006 attaches finality to the order passed by the Commissioner in relation to the said proceedings. Section 210 of U.P. Revenue Code, 2006 can still be invoked for challenging the orders passed by any subordinate court against which no appeal lies. However, the said provision will not be available to a person aggrieved by an order passed by the Commissioner or Additional Commissioner in proceedings of appeal arising out of an order passed by the Sub-Divisional Officer under Section 24 of U.P. Revenue Code, 2006 for settling the boundary dispute or demarcation.
Section 231 of U.P. Revenue Code, 2006 speaks about the applicability of the Code to the pending proceedings. Section 230 (2) (b) of U.P. Revenue Code provides that repeal of certain enactments as mentioned in the First Schedule will not affect the previous operation of any such enactment or anything duly done or suffered thereunder. Sub-section (2) (d) of Section 230 also saves validity, invalidity or consequences of anything already done or suffered or any right title or obligation under the previous enactments.
Thus, if Section 231 of U.P. Revenue Code, 2006 saves the pending proceedings under the previous enactments, in my considered opinion, the remedies available under the whole enactment in respect of proceedings instituted before the subordinate revenue courts under previous enactments will also be saved.
The language employed under Sections 230 and 231 of U.P. Revenue Code, 2006 suggests that it is not only the proceedings pending under the previous enactments on the date the Code came into operation that have been saved but other provisions of the previous enactments have also been saved including the provision containing judicial remedies, such as remedies available under Sections 210 and 219 of U.P. Land Revenue Act and the remedies available under Sections 331 and 333 of U.P. Z.A and L.R.Act.
The repeal of any legislative enactment means that it must be considered as if such repealed Act never existed. The purpose of repeal is to obliterate the Act from the statute book except for certain purpose as provided in Section 6 of the General Clauses Act. Section 6 of the General Clauses Act provides the effect of repeal, according to which, unless a different attention appears, such repeal does not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder. It also does not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability etc. It further provides that any such legal proceeding or remedy may be instituted, continued or enforced as if the repealing Act had not been passed.
Repeal clause embodied in Sections 230 and 231 of U.P. Revenue Code, 2006, thus, appears to be perfectly in tune with the provisions contained in Section 6 of the General Clauses Act.
Accordingly, to take a view that after U.P. Revenue Code, 2006 came into force, the remedy under Section 219 of U.P. Land Revenue Act in respect of the proceedings drawn under U.P. Land Revenue Act prior to enforcement of Code, 2006 will not be available, will amount to curtailing a statutory right of revision to a person aggrieved. The statutory remedies are provided in various enactments for protection of right of the parties concerned to contest and get the matter settled through the prescribed procedure.
Keeping in view the provisions contained in Sections 230 and 231 of U.P. Revenue Code, 2006 as also taking into account the provisions contained in Section 6 of the General Clauses Act, I find it appropriate to held that remedy of revision as provided under Section 219 of U.P. Land Revenue Act will be available to a person aggrieved against the order passed by the subordinate courts under U.P. Land Revenue Act in the proceedings instituted before enforcement of U.P. Revenue Code, 2006, even if they are concluded after enforcement of U.P. Revenue Code, 2006.
In the instant case, proceedings of appeal by the petitioners were instituted prior to enforcement of U.P. Revenue Code, 2006 and have culminated in the order passed on 08.03.2017 by the Additional Commissioner (Judicial), Lucknow Division, Lucknow after U.P. Revenue Code, 2006 came into force.
Thus, for the reasons given above, remedy of revision under Section 219 of U.P. Land Revenue Act, will be available to the petitioners in the instant case as well. The petitioners, thus, will have a right to invoke the provisions of Section 219 of U.P. Land Revenue Act for assailing the order dated 08.03.2017 passed by the Additional Commissioner (Judicial), Lucknow Division, Lucknow, which is under challenge in this petition.
Resultantly, I am not inclined to entertain this petition which is hereby dismissed with liberty to the petitioners to approach the concerned revisional court invoking the provisions of Section 219 of U.P. Land Revenue Act.
However, there will be no order as to costs.
Order Date :- 20.4.2017 Renu/-