# Career Convent Edu. And charitable Trust Thru. Manager & Anr v. State of U.P. & Ors

- **Citation:** (2025) 4 ILRA 573
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-29
- **Case number:** Writ C No. 1953 of 2021
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/career-convent-edu-and-charitable-trust-thru-manager-anr-v-state-of-u-p-ors-53175
- **Pages:** 13

## Headnote

A. Civil Law - U.P. Revenue Code,
2006 - Sections 67, 210(1), 216,
219 & 230(2) - U.P. Revenue Code
Rules, 2016 - Rule 67 - U.P. Land
Revenue Act, 1901 - Sections 15,
221 & 224 - U.P. Zamindari
Abolition and Land Reforms Act,
1950-
Section
122-B
-
U.P.
General
Clauses
Act,
1904
-
Section 24 - Issue : Whether
notification
dated
29.12.2020
empowering
the
Tehsildar
to
exercise the powers vested in the
Assistant
Collector,
with
retrospective effect from the date
of
promulgation
of
the
U.P.
Revenue
Code,
2006,
i.e.,
11.02.2016 is sustainable ? Held :
Law is settled that unless and
until there is a provision in the
statute
itself
permitting
retrospective effect to Rules and
Notifications
made
thereunder,
the
same
cannot
be
done
-
Notification
dated
29-12-2020
held ultra vires and unsustainable,
as: (i) Code, 2006 contains no
provision permitting issuance of
such
notification
with
retrospective effect (ii) Section
219 merely allows delegation of
State Government's own powers,
whereas powers under S. 67 are
not
State
Government's,
(iii)
notification
dated
29.12.2020
cannot be sustained as it does not
deal with procedural aspect but
one which vests jurisdiction on
the Tehsildar - Notifications dated
06-06-1953, 25-07-1960 and 0701-1964 issued under repealed
Acts
of
1901
and
1950
empowering
Tehsildars
as
Assistant Collectors and to act
under S. 122-B (corresponding to
S. 67 of Code, 2006) are not
inconsistent with the provisions of
the Code and hence saved under
S. 230(2) of Code, 2006 and also
deemed continued by S. 24 of the
General Clauses Act, 1904 - No
necessity
to
issue
fresh
notification in 2020 - Notification
dated
29-12-2020
quashed
as
legally unsustainable and otiose -
Liberty given to State Government
to issue clarificatory notification if
it
so
chooses
-
Until
then,
Tehsildars to continue to exercise
powers
under
earlier
saved
notifications. (Para 12, 13, 20, 33,
36, 40, 41)
B. Civil Law - U.P. Revenue Code,
2006- Sections 67 & 216 - U.P.
Revenue Code Rules, 2016, R. 67
-
Encroachment
upon
Gram
Panchayat
Property
-
Final
eviction order passed without
service of notice upon it, in terms
of the provisions of S. 216 and
without hearing it - Appellate
authority also without considering
the pleas raised rejected the
574 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal - Held : Appellate court
erred in dismissing petitioners'
appeal
without
ensuring
compliance with R. 67 of Rules,
2016 read with S. 67 and S. 216 of
the Code, 2006 (Para 43)
C. Civil Law - U.P. Revenue Code,
2006 - Sections 67 (1) & 67(5) -
Revision u/s 210 (1) - A revision
under Section 210(1) of the U.P.
Revenue Code, 2006 can be filed
only if no appeal lies against the
order under challenge. Since an
appeal
lies
against
an
order
passed under Section 67(3) of the
Code
under
Section
67(5),
a
revision against an order passed
in
such
an
appeal
is
not
maintainable. (Para 7)
Allowed. (E-5)

## Text

_Characters 0–39,879 of 41,766. This is a partial read: ask again with offset=39879 for what follows._

4 All. Career Convent Edu. And Charitable Trust Thru. Manager & Anr. Vs. State of U.P. & Ors. 573
of the earlier caste certificate issued to him
on 23.07.2015.
----------
(2025) 4 ILRA 573
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.04.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ C No. 1953 of 2021

Career Convent Edu. And charitable Trust
Thru. Manager & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Lalta Prasad Mishra, Amit Jaiswal-Ojus
Law, Gaurav Mehrotra, Sharad Pathak

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey

A. Civil Law - U.P. Revenue Code,
2006 - Sections 67, 210(1), 216,
219 & 230(2) - U.P. Revenue Code
Rules, 2016 - Rule 67 - U.P. Land
Revenue Act, 1901 - Sections 15,
221 & 224 - U.P. Zamindari
Abolition and Land Reforms Act,
1950-
Section
122-B
-
U.P.
General
Clauses
Act,
1904
-
Section 24 - Issue : Whether
notification
dated
29.12.2020
empowering
the
Tehsildar
to
exercise the powers vested in the
Assistant
Collector,
with
retrospective effect from the date
of
promulgation
of
the
U.P.
Revenue
Code,
2006,
i.e.,
11.02.2016 is sustainable ? Held :
Law is settled that unless and
until there is a provision in the
statute
itself
permitting
retrospective effect to Rules and
Notifications
made
thereunder,
the
same
cannot
be
done
-
Notification
dated
29-12-2020
held ultra vires and unsustainable,
as: (i) Code, 2006 contains no
provision permitting issuance of
such
notification
with
retrospective effect (ii) Section
219 merely allows delegation of
State Government's own powers,
whereas powers under S. 67 are
not
State
Government's,
(iii)
notification
dated
29.12.2020
cannot be sustained as it does not
deal with procedural aspect but
one which vests jurisdiction on
the Tehsildar - Notifications dated
06-06-1953, 25-07-1960 and 0701-1964 issued under repealed
Acts
of
1901
and
1950
empowering
Tehsildars
as
Assistant Collectors and to act
under S. 122-B (corresponding to
S. 67 of Code, 2006) are not
inconsistent with the provisions of
the Code and hence saved under
S. 230(2) of Code, 2006 and also
deemed continued by S. 24 of the
General Clauses Act, 1904 - No
necessity
to
issue
fresh
notification in 2020 - Notification
dated
29-12-2020
quashed
as
legally unsustainable and otiose -
Liberty given to State Government
to issue clarificatory notification if
it
so
chooses
-
Until
then,
Tehsildars to continue to exercise
powers
under
earlier
saved
notifications. (Para 12, 13, 20, 33,
36, 40, 41)
B. Civil Law - U.P. Revenue Code,
2006- Sections 67 & 216 - U.P.
Revenue Code Rules, 2016, R. 67
-
Encroachment
upon
Gram
Panchayat
Property
-
Final
eviction order passed without
service of notice upon it, in terms
of the provisions of S. 216 and
without hearing it - Appellate
authority also without considering
the pleas raised rejected the
574 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal - Held : Appellate court
erred in dismissing petitioners'
appeal
without
ensuring
compliance with R. 67 of Rules,
2016 read with S. 67 and S. 216 of
the Code, 2006 (Para 43)
C. Civil Law - U.P. Revenue Code,
2006 - Sections 67 (1) & 67(5) -
Revision u/s 210 (1) - A revision
under Section 210(1) of the U.P.
Revenue Code, 2006 can be filed
only if no appeal lies against the
order under challenge. Since an
appeal
lies
against
an
order
passed under Section 67(3) of the
Code
under
Section
67(5),
a
revision against an order passed
in
such
an
appeal
is
not
maintainable. (Para 7)
Allowed. (E-5)

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Om Prakash Shukla, J.)

(1)
Supplementary
counter
affidavit filed today by Shri Manish
Mishra, learned Additional Chief Standing
Counsel for the State, is taken on record.

(2) We have heard learned Counsel
for the petitioners Mr. Gaurav Mehrotra,
learned Advocate assisted by Mr. Amit
Jaiswal, Ms. Maria Fatima, Ms. Manjari,
and Mr. Aditya Singh, and Shri Manish
Mishra, learned Additional Chief Standing
Counsel for the State.

(3) The petitioner is an educational
institution. Its campus is spread over an
area of nearly 15 lakhs square feet of which
a small part i.e. 5080 square feet is alleged
to be an encroachment. Alleging such
encroachment, proceedings were drawn
under Section 67 of U.P. Revenue Code,
2006 (hereinafter referred to as "Code,
2006") against it. According to the
petitioner, without service of notice upon it
and without hearing it, final order was
passed therein on 29.02.2020. Being
aggrieved, an appeal was preferred by the
petitioner under Section 67 (5) of U.P.
Revenue Code, 2006, but, the appellate
authority without considering the pleas
raised rejected the same on 05.10.2020
which led to the filing of a revision before
the Board of Revenue under Section 210 of
the U.P. Revenue Code, 2006. The revision
was initially allowed on 27.10.2020 on the
ground that the Tehsildar did not have
authority to exercise the power which in
fact was vested in the Assistant Collector
(under Section 67 of the Code, 2006.).
However, thereafter, a notification dated
29.12.2020 was issued by the State
Government empowering the Tehsildar to
exercise such powers, that too, with
retrospective effect i.e. from the date of
promulgation of the Code, 2006 i.e. on
11.02.2016. Based on the same, a review
application was filed before the Board of
Revenue by the State authorities which was
allowed. Being aggrieved against the
aforesaid, this petition has been filed inter
alia challenging the notification dated
29.12.2020, the order dated 29.02.202
passed under Section 67 (1) of Code, 2006,
the appellate order dated 05.10.2020 passed
under Section 67 (5) of the Code, 2006 and
the order passed in the review proceedings
arising out of the Revision, on 08.01.2021,
by the Board of Revenue.

(4) It has also been brought to our
notice that in the interregnum, as according
to the petitioner, the area in dispute was
purchased by it and is part of the property
purchased
by
the
trust
deed
dated
01.10.1995 but in order to avoid any further
litigation or dispute the petitioner, as it was
ready to purchase the said property or
4 All. Career Convent Edu. And Charitable Trust Thru. Manager & Anr. Vs. State of U.P. & Ors. 575
exchange it in terms of Section 101 of the
Code, 2006 and the relevant Government
Orders on the subject, therefore, it
accordingly applied and the said exchange
proceedings are pending consideration
before the Commissioner as the State
Government has delegated its powers under
the proviso to sub section 2 of Section 101
of the Code, 2006, a fact which is admitted
to
the
State
Counsel.
In
these
circumstances, it was also argued by the
counsel for the petitioner that apart from
the fact that the orders impugned including
the notification are not sustainable on facts
and in law, even if this Court arrives at a
different conclusion or for that matter, in
the alternative, as, exchange proceedings
are pending, the same be also ordered to be
decided at the earliest, as, ultimately, if the
exchange takes place, the merits of the
dispute may become irrelevant.

(5) After arguing the matter at
some length, a consensus was arrived at
between the parties which is also based on
the averments made in the supplementary
counter affidavit of the State filed today,
that the procedure prescribed in Rule 67 of
the U.P. Revenue Code Rules, 2016
(hereinafter referred to as "Rules, 2016")
read with Section 67 of the Code, 2006 has
not been followed and notices were not
served upon the petitioners in terms of the
provision of the Code, 2006 especially
Section 216 of the Code, 2006. We also
find it to be so. This aspect of the matter
was not seen appropriately by the Appellate
Court, which dismissed the appeal of the
petitioners
vide
judgement
dated
05.10.2020. So far as the revision filed by
the petitioner which was initially allowed
on 27.10.2020, the same was reviewed by a
subsequent judgment dated 08.01.2021 on
the ground that subsequent to the initial
judgment in the revision, a notification had
been issued by the State Government with
retrospective
effect
from
29.12.2020,
empowering the Tehsildar to exercise
powers of the Assistant Collector under
Section 67 of the Code, 2006; secondly, the
revision was not maintainable in the first
place in view of Section 210(1) of the
Code, 2006 as an appeal had already been
preferred by the revisionist, therefore, as
the aforesaid grounds constituted an error
apparent on the face of the record for
allowing the review, the review application
was
allowed
and
the
revision
was
dismissed.

(6) We have perused Section
210(1) of the Code, 2006 and find that a
revision can be filed under it, only if,
against the order under challenge, an appeal
does not lie under the Code, 2006, whereas,
against the order passed under Section 62
of the Code, 2006 an appeal lies under
Section 67(5) of the Code, 2006, the
revision filed by the petitioner was, thus,
not maintainable. To this extent, the order
passed in review can not be said to be
erroneous.

(7)
The
question
which
is,
however, required to be considered is as to
whether the notification dated 29.12.2020
empowering the Tehsildar to exercise the
powers of Assistant Collector (First Class)
under Section 67 of the Code, 2006 that too
with retrospective effect from 11.02.2016,
is sustainable, was it at all required ?.

(8) In this context, we may refer to
our order dated 08.04.2025 which reads as
under:-

 "1. Heard Sri Gaurav Mehrotra,
Advocate, assisted by Sri Amit Jaiswal,
Advocate and Aditya Singh, Advocate for
the petitioner and Addl. C.S.C. for the State
576 INDIAN LAW REPORTS ALLAHABAD SERIES
as also Sri Dilip Kumar Pandey, learned
counsel for the Gaon Sabha.

 2. After hearing the parties, one
of the issues which arises for consideration
is as to whether the Tehsildar had
jurisdiction to initiate proceedings and
pass a final order under Section 67 of the
U.P.
Land
Revenue
Code,
2006
(hereinafter referred to as 'the Code') or
not?

 3. Although the counsel for the
petitioner places reliance upon an order of
this Court putting a similar query,
whereupon the State Government issued a
Notification
dated
29.12.2020
under
Section 14(2) and Section 2(1)(9) of the
Code authorizing the Tehsildar and
Tehsildar (Judicial) to discharge the acts
of Assistant Collector as prescribed
under Section 67 of the said Code with
effect from 11.2.2016, i.e. retrospective
effect.

 4. Apart from the issue as to
whether this could have been done with
retrospective effect, another issue which
crops in this context is as to whether the
Notification authorizing the Tehsildar,
for similar action under a similar
provision, i.e. Section 122-B of the U.P.
Zamindari Abolition & Land Reforms
Act, 1950 (hereinafter referred to as 'the
Act 1950'), existed earlier and whether it
continued to operate for the purposes of
Section 67 of the U.P. Land Revenue
Code, 2006 or not, as under the proviso
to sub-Section (2) of Section 230, such
Notifications, in sofar as they are not
inconsistent with the provisions of the
U.P. Land Revenue Code, 2006 be
deemed to have been done or taken under
the corresponding provisions of the said
Code, and shall continue to be in force
accordingly, unless and until they are
superseded by anything done or action
taken under the said Code.

 5. There is another process
contained in Section 24 of the U.P.
General Clauses Act 1904, which is also
relevant in this regard

 6. We would, therefore, like to
have the Notifications, if any, under the
Act 1950 or the Act 1901 for exercise of
power by the Tehsildar under Section
122-B, as Sri Pandey, learned counsel for
the Gaon Sabha says that there were
Notifications
under
the
earlier
authorizing the Tehsildar to perform the
said duty.

 7. Once the Notifications are on
record, then the burden would be upon
the petitioner's counsel to demonstrate as
to whether they are inconsistent with the
Code 2006, if so, how? At least as of now
the provisions of Section 122-B of the Act
1950 and Section 67 of the Code 2006
appear to be para materia.

 8.
Another
aspect
to
be
considered
is
as
asserted
by
Sri
Mehrotra, that the land in question
ceases to be land of any Gaon Sabha in
view of the Notification dated 5.12.2019
under Section 3 of the U.P. Municipal
Corporation's
Act
1959
(hereinafter
referred as 'the Act 1959'), as the said land
was included within the Municipal limits of
Municipal Corporation, Lucknow, and
thereafter
though
the
villages
may
continue, but the land in question would
not be that of the Gaon Sabha, but would
be of the Municipal corporation, Lucknow.
However, in this context when we peruse
section 67, we find that such lands, if they
belong to local authority, then also the said
4 All. Career Convent Edu. And Charitable Trust Thru. Manager & Anr. Vs. State of U.P. & Ors. 577
provision would apply and the term 'local
authority', though it has not been defined
in U.P. Revenue Code 2006, has been
defined in Section 4(25) of the U.P.
General
Clauses
Act
1904,
which
includes a Nagar Maha Palika, therefore,
the land, even if belongs to Municipal
Corporation, Lucknow, would attract
Section 67 of the Code 2006, however,
here again there is a twist. Even if
Section 67 is applicable, assuming it to
be so, the procedure for taking any action
thereunder is prescribed in Rule 67, and
it is the case of Sri Mehrotra that the said
procedure has not been followed. In fact,
no notice, whatsoever, as is envisaged
therein, and under Section 67 of the Code
2006 was ever issued and served to the
petitioner.

 9. On being confronted Sri
Tiwari, at least as of now could not
demonstrate that any such notice issued,
was served, upon the petitioner, prior to
passing an under Section 67.

 10. Other issues pertaining to
the validity of the Notification dated
29.12.2020, i.e. retrospectivity given,
validity of the order passed by the Board
of Revenue on the review application as
also the validity of the orders passed
under Section 67, U.P. Land Revenue
Code, 2006 and the appellate order(s) on
merits, shall also be considered, if
required.

 11.
List/put
up
this
case
tomorrow, i.e. on 9.4.2025 for further
hearing.

 12. We expect some responsible
officer, not below the rank of Joint
Secretary in the Revenue Department of
the Government and the officer, not
below the rank of Addl. Commissioner in
the Board of Revenue to assist us
tomorrow,
on
the
points
referred
hereinabove."

(9) It appears that some query
was put by this Court at Allahabad in
Writ-C No.2111 of 2020 vide order dated
10.06.2020, which reads as under:-

 "As per Section 233(3) of the
U.P. Revenue Code, 2006 (hereinafter
referred to as the 'Code'), only such
orders of the State Government or of the
Board of Revenue passed before the
enactment of the Code were to continue
which were not inconsistent with the
provisions of the Code.

 In the instant case, learned
Standing Counsel to justify orders being
passed by the Tehsildar has taken
recourse to certain Government Orders
dated 25.7.1960 and 7.1.1964 and has
submitted that a Tehsildar could exercise
powers of the Assistant Collector under
section 67 of the Code by virtue of the
Government Orders.

 Learned
counsel
for
the
petitioner, however, submitted that if the
provisions of section 233(3) were perused,
then these Government Orders would
become inconsistent with the provisions of
the Code and, therefore, would be deemed
to have been done away with.

 Learned Standing Counsel may,
therefore, produce such fresh orders of
delegation, if they are there, under sections
14 and 219 of the Code by the next date of
listing otherwise it shall be established that
the Tehsildar had no authority to pass
orders under section 67 of the Code.
578 INDIAN LAW REPORTS ALLAHABAD SERIES
 Since, the jurisdiction of the
Tehsildar itself has been questioned and
the Tehsildar had sent the impugned notice,
the proceedings initiated by the impugned
notice shall remain stayed till the next date
of listing.

 List this petition along with the
connected petitions on 6.7.2020 as a first
case before the appropriate Court."

(10) After passing of the above
quoted order, the impugned notification
dated 29.12.2020 was issued.

(11) In our order dated 08.04.2025,
we had raised two points in this regard;
firstly, as to whether such a notification
could have been given retrospective effect
under Section 219 of the Code, 2006 and
the other was as to the necessity of issuing
the impugned notification empowering the
Tehsildar as aforesaid, if, there were earlier
notifications under the erstwhile U.P. Land
Revenue Act, 1901 (hereinafter referred to
as "Act, 1901") or U.P. Zamindari
Abolition and Land Reforms Act, 1950
(hereinafter referred to as 'Act, 1950')
already empowering him under Section
122-B of the Act, 1950 and if the said
notifications continued to operate for the
purposes of Section 67 of the Code, 2006, a
provision corresponding to Section 122-B.

(12) Now, so far as the first issue is
concerned, the law is settled that unless and
until there is a provision in the statute itself
permitting retrospective effect to Rules and
Notifications made thereunder, as is
impugned herein, the same cannot be done.
We may in this context refer to the
judgments of Hon'ble Supreme Court in the
case of Union of India and Ors. vs. G.S.
Chatha Rice Mills and Anr. reported in
2020
SCC
OnLine
SC
770,
Vice
Chancellor, M.D. University Rohtak vs.
Jahan Singh reported in (2007) 5 SCC 77,
State of Rajasthan and Others vs. Basant
Agrotech (India) Limited reported in
(2013) 15 SCC 1 and Union of India and
Others vs. Dr. S. Krishna Murthy and
Others reported in (1989) 4 SCC 689.

(13) No such provision has been
placed before us nor could we find any in
the Code, 2006 which permitted issuance of
such notification with retrospective effect.
Thus, the notification dated 29.12.2020 to
the extent it has been given retrospective
effect cannot be sustained in law especialy
as the notification does not deal with
procedural aspect but one which vests
jurisdiction on the Tehsildar.

(14) On the other issue regarding
requirement/necessity of such a notification
dated 29.12.2020, in view of queries made
by us on 08.04.2025, certain notifications
issued under the erstwhile Act, 1950 and
Act, 1901 have been brought on record,
which are dated 06.06.1953, 25.07.1960
and
07.01.1964,
alongwith
the
supplementary counter affidavit filed today.

(15) As per the notification dated
06.06.1953 exercising the powers under
Section 15 read with Section 221 and 224
of the Act, 1901 all Tehsildars were
appointed as ex-officio Assistant Collectors
of the First Class. By the second
notification dated 25.07.1960 in exercise of
the powers conferred by Section 15 read
with Section 221 and 224 of the Act, 1901
as amended in its application to the areas to
which U.P Land Reforms (Amendment)
Act, 1958 (hereinafter referred to as 'Act,
1958') extends, the Governor was pleased
to confer on Tehsildars of the said areas all
the powers of the Assistant Collectors of
the First Class. By the third notification
4 All. Career Convent Edu. And Charitable Trust Thru. Manager & Anr. Vs. State of U.P. & Ors. 579
dated 07.01.1964 in relation to areas to
which the Act, 1950 applied and with
reference to Section 15 read with Section
221 and 224 of the Act, 1901, the Governor
was pleased to appoint all the Tehsildars as
Assistant Collectors of First Class. By
another notification of the same date i.e.
07.01.1964 all such Assistant Collectors of
the First Class were empowered to exercise
the powers under Section 122-B of the Act,
1950 etc., which were to be performed by
the Collectors referred therein.

(16) As is evident from a reading
of the aforesaid notifications, the same
have been issued under Section 15 read
with Section 221 and 224 of the Act, 1901.
The said Act, 1901 dealt with jurisdiction
of revenue officers in the United Provinces,
which subsequently became State of Uttar
Pradesh. Section 15 of the Act, 1901
empowered the State Government to
appoint to each district as many other
persons as it thinks fit to be Assistant
Collector of the first or second class.
Therefore, by virtue of the aforesaid
notifications referable to this provision, the
Tehsildars were appointed as ex-officio
Assistant Collectors by the notification
dated 06.06.1953 and by the subsequent
notification dated 25.07.1960, they were
given all the powers of the Assistant
Collectors of the first Class. By the third
notification dated 07.01.1964, all the
Tehsildars in relation to the areas to which
the Act, 1950 applied were appointed as
Assistant Collectors of First Class and by
another notification dated 071.01.1964, all
such Assistant Collectors of the First Class
were empowered to exercise powers under
Section 122-B of the Act, 1950.

(17) As per Section 122-B of the
Act, 1950, according to which, the
Assistant Collector could take action in
matters where any property vested under
the said Act in a Gaon Sabha or local
authority is damaged or misappropriated
and such Gaon Sabha and local authority is
entitled to take or retain possession of any
such land. Section 67 of the Code, 2006
with which we are concerned in this case is
a corresponding/similar provision.

(18) We may also point out that
Section 221 of the Act, 1901 empowered
the State Government to confer powers
under the said Act, 1901 and empower
persons by name, or classes of officials
generally by their official titles and to vary
or cancel any such order. Section 224 of the
Act,
1901
empowered
the
State
Government to confer on any Tehsildar or
any of the powers of an Assistant Collector
of the first or second class etc.

(19) Now, the aforesaid Act, 1901
and the Act, 1950 were repealed by Section
230 (1) of the Code, 2006 read with the
First Schedule appended to it. Sub-section
2 of Section 230 contains a saving
clause.The repealing and saving clause is
contained in Section 230 of the Code, 2006,
which reads as under:-

 "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 there under; or
580 INDIAN LAW REPORTS ALLAHABAD SERIES
 (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 title State of all estates and the
cessation of all rights, title and interest of
all 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, proclamations 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, in so far 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."

(20) The proviso to sub-section 2
of Section 230 of the Code, 2006 is
relevant, according to which, 'anything
done or any action taken including any
rules, manuals, assessments, appointments
and transfers made, notifications, powers
conferred under any such enactment shall,
in so far 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.

(21) Now, the words 'under any
such enactment' occurring in the proviso
are a reference to the enactments which
were being repealed by sub-section 1 of
Section 230 of the Code, 2006. The Act,
1950 and the Act, 1901 were such
enactments, as already referred. The
notifications referred hereinabove were
issued under the said enactment conferring
the power of Assistant Collector on the
Tehsildar specificially with regard to
Section 122-B of the Act, 1950.

(22) The question is as to whether
the aforesaid notifications by which power
was conferred upon the Tehsildar, as
already noticed, for taking action under
Section 122-B of the Act, 1950, to which
Section 67 of the Code, 2006 corresponds,
are inconsistent with the provisions of the
Code, 2006, if not, then the proviso to sub-
section 2 of Section 230 of the Code, 2006
comes into play. If they are inconsistent,
then, of course, the result would be
otherwise, and they would not apply to
proceedings under Section 67 of the Code,
2006.

(23) When we peruse the Code,
2006, we find Section 13 (1) of the Code,
2006, to be pari materia with the
provisions of Section 15 (1) of the Act,
4 All. Career Convent Edu. And Charitable Trust Thru. Manager & Anr. Vs. State of U.P. & Ors. 581
1901 as it provides that the State
Government may appoint in each district as
many persons as it thinks fit to be Assistant
Collectors of the First or Second Class. It is
under such a provision contained in sub
section 1 of Section 15 of the Act, 1901
that the aforesaid notifications were issued,
of course, read with Section 221 and 224 of
the Act, 1901.

(24) In this context, we may
mention that not every Assistant Collector
of the First or Second class is made incharge of one or more sub divisions of a
district as is referred in sub-section 2 of
Section 13 of the Code, 2006. Where such
an officer i.e. an Assistant Collector of the
First Class is made in-charge of one or
more sub divisions of a district, he is to be
called the Assistant Collector of First Class
in-charge of a sub division or a Sub
Divisional Officer.

(25) As per Section 14(2) of the
Code, 2006, subject to the provisions of the
Code, the Tehsildar and Tehsildar (judicial)
shall exercise such powers and discharge
such duties as the State Government or the
Board or in absence of any direction from
the State Government or the Board, the
Collector my direct.

(26) Section 17 of the Code, 2006
provides that it shall be lawful for the State
Government or the authority competent to
appoint, as the case may be, to appoint one
and the same person being otherwise
competent according to law, for any two or
more of the offices provided for in the said
Chapter or to confer upon an officer of one
denomination all or any of the powers or
duties of any other officer or officers within
certain local limits or otherwise, as it may
deem expedient.
(27) We may also refer to Section
19 (2) of the Act, 1901, according to which,
the Revenue Officers appointed under the
Code, 2006 shall, subject to the control of
the State Government, exercise such other
powers and discharge such other duties, as
the State Government may, by general or
special order, direct.

(28) As per Section 225-D, an
Assistant Collector of the First Class not incharge of a sub-division of a district shall
exercise all or any of the powers conferred
on an Assistant Collector of the First Class
in-charge of a sub-division in such cases or
classes of cases as the Collector may from
time to time refer to him for disposal.

(29) Thus, the provisions of the
Code, 2006 referred hereinabove are almost
similar to the provisions contained in the
Act, 1901 which have been referred, under
which the notifications have been issued
meaning thereby similar notifications such
as the one which were issued under the Act,
1901 could be issued by the State
Government under the aforesaid provisions
also.

(30) Similarly, Section 67 of the
Code, 2006, which is the provision under
which action has been taken against the
petitioners, is also pari materia to Section
122-B of the Act, 1950.

(31) We have already mentioned
that under this section 122-B, it is the
Assistant collector who was empowered to
take action by the said provision itself.
Now the designation Assistant Collector
was specifically mentioned in Section 15 as
distinct from the designation/ post of
Tehsildar which was mentioned in Section
17 of the Act, 1901 but looking into the
necessity to empower Tehsildars and confer
582 INDIAN LAW REPORTS ALLAHABAD SERIES
upon them the powers of Assistant
Collectors referred in Section 15, the above
mentioned notifications were issued under
the Act, 1901 by virtue of which the
Tehsildar exercised the powers of Assistant
Collector under Section 122-B of the Act,
1950 and other provisions.

(32)
We
do
not
find
any
inconsistency in the notifications referred
above which were issued under the Act,
1901 viz-a-vis the provisions of the Code,
2006 or any notification issued thereunder
including the impugned notification dated
29.12.2020.

(33) This Court while passing the
interim order dated 10.06.2020 in Writ-C
No. 2111 of 2020 which in fact triggered
issuance of the impugned notification has
not noticed the provisions contained in
Section 230 of the Code, 2006 nor has it
mentioned the basis for its observation
that
there
would
be
inconsistency
between
the
notifications
dated
25.07.1960 and 07.01.1964 viz-a-viz the
Code, 2006. No reasons have been given.
No final orders have been passed in the
said proceedings. There is nothing on
record to show that the said notifications
were/are in any manner inconsistent with
the provisions of the Code, 2006. Neither
the Counsel for the petitioners nor the
Counsel for the State could point out any
such inconsistency. Therefore, as a
logical
corollary,
notifications
dated
06.06.1953, 25.07.1960, 07.01.1964 shall
be deemed to have been done or issued
under the corresponding provisions of the
Code, 2006 which are Sections 13 (1), 14,
17 and 19 of the Code, 2006 and they
continue to be in force accordingly under
the proviso to sub-section 2 of Section
230 of the Code, 2006, , especially as the
notification dated 29.12.2020 does not
superceed the earlier notifications under
the Act, 1901.

(34) We may in this very context
point out that prior to implementation of
the Code, 2006, it is the Sub Divisional
Officer which was empowered to act
under Section 67 of the Code, 2006.
However, by the UP Act No.4 of 2016,
the word Sub Divisional Officer were
substituted
by
the
words
Assistant
Collector. This is relevant when it is read
conjointly with section 13(1), 17 and 19
of the Code, 2006.

(35) We may in this very context
refer to Section 24 of the U.P. General
Clauses Act, 1904 (hereinafter referred to
as "Act, 1904"), which reads as under:-

 "Section 24. Continuation of
appointments, notifications, orders, etc.,
issued under enactments repealed and reenacted. -

 Where
any
enactment
is
repealed and re-enacted by an [Uttar
Pradesh]
Act,
with
or
without
modification, then, unless it is otherwise
expressly provided, any appointment, [or
statutory instrument or form], made or
issued under the repealed enactment,
shall, so far as it is not inconsistent with
the provisions re-enacted, continue in
force, and be deemed to have been made
or
issued
under
the
provisions
so
reenacted, unless and until it is superseded
by
any
appointment,
[or
statutory
instrument or form] made or issued under
the provisions so re-enacted."

(36) As per the above-quoted
provision where any enactment is repealed
and re-enacted by an [Uttar Pradesh] Act,
with or without modification, then, unless it
4 All. Career Convent Edu. And Charitable Trust Thru. Manager & Anr. Vs. State of U.P. & Ors. 583
is otherwise expressly provided, any
appointment, [or statutory instrument or
form] made or issued under the repealed
enactment, shall, so far as it is not
inconsistent with the provisions re-enacted,
continue in force, and be deemed to have
been made or issued under the provisions
so reenacted, unless and until it is
superseded
by
any
appointment,
[or
statutory instrument or form] made or
issued under the provisions so re-enacted.
The term statutory instrument has been
defined in Section 4 (42B) of the Act, 1904
to mean any notification, order or scheme,
rule or bye-law issued under any enactment
and having the force of law. It is beyond
cavil that the notifications issued under the
Act, 1901 and the Act, 1950 as referred
hereinabove are statutory instruments as
referred in Section 24 of the Act, 1904,
therefore, by virtue of the said provision of
the Act, 1904 also, which is on similar lines
as the repeal
and
saving provision
contained in Section 230 of the Code, 2006,
the aforesaid notifications are not only
saved but continue to apply to the Code,
2006
and,
in
this
context,
to
the
proceedings under Section 67 of the Code,
2006 as such there was no necessity to
issue the notification dated 29.12.2020,
which in any case does not add anything to
the earlier notifications nor susbstract from
it. It appears to have been issued merely
because of the tentative observations in the
order dated 10.06.2020 referred earlier
instead of informing the Court about the
correct factual and legal provision.

(37)
In
view
of
the
above
discussion, the irresistible conclusion is
that the impugned notification dated
29.12.2020 appears to have been issued
under some misconception of facts and law
and possibly without proper scrutiny as to
the applicability of the notifications issued
under the Act, 1901 and Act, 1950 to the
proceedings under the Code, 2006 in the
light of Section 230 contained therein, apart
from the fact that it could not have been
implemented with retrospective effect.

(38) Another anomaly which we
find in the impugned notification dated
29.12.2020 is that it appears to have been
issued in exercise of powers under Section
219 of the Code, 2006 whereas the said
provision empowers the State Government
to delegate the powers vested in it under
the Code, 2006 to the Board or any other
officer or authority subordinate to it. The
power which is exercised under Section 67
of the Code, 2006 is not one which is
exercised
by
the
State
Government,
therefore, for this reason also the alleged
delegation by the impugned notification is
not sustainable.

(39) In any case, we have already
held, for the reasons discussed hereinabove,
that the notification apart from being bad in
law, is also otiose.

(40) In view of these anomalies
and illegalities, we quash the notification
dated 29.12.2020, however, with liberty to
the
State
Government
to
issue
a
clarificatory notification referable to the
provisions discussed hereinabove or such
other provisions as may be attracted, that,
the Tehsildar shall continue to exercise the
powers vested in him by the notifications
dated 06.06.1953, 25.07.1960, 07.01.1964
under Section 15 read with 221 and 224 of
the Act, 1901 for the purposes of Section
67 of the Code, 2006 as he has been doing,
if it so chooses.

(41)
In
the
meantime,
the
Tehsildars referred above shall continue to
exercise the powers of Assistant Collector
584 INDIAN LAW REPORTS ALLAHABAD SERIES
for purposes of proceedings under Section
67
of
the
Code,
2006
under
the
notifications referred above read in terms
of the proviso to Section 230(2) of the
Code, 2006.

(42) Consequently, the order of the
Board of Revenue insofar as it relies the
notification dated 29.12.2020 cannot be
sustained. It is, however, sustained on the
ground of non-maintainability of the
revision itself under Section 210 of the
Code, 2006 as already mentioned.

(43) Now, so far as the merits of
the challenge to the orders passed under
Section 67 of the Code, 2006 and the
appellate order is concerned, in view of the
admitted position in the supplementary
counter affidavit filed today on behalf of
the State that the procedure prescribed in
Rule 67 of the Rules, 2016 read with
Section 67 of the Code, 2006 was not
followed, as, this aspect has not been
apreciated by the Appellate Court, even
though the revision of the petitioner was
not maintainable, apparently so, we, quash
the order dated 29.02.2020 passed under
Section 67 of the Code, 2006 as also the
appellate order dated 05.10.2020 and
remand the proceedings back to the
Tehsildar for a consideration afresh as per
law. The petitioner shall now put in
appearance before the Tehsildar without
waiting for a notice, within the next one
month.

(44)
As
already
noticed,
proceedings for exchange of land alleged
to have been encroached by the petitioner
with another land under Section 101 of
the Code, 2006 are said to be pending
before the Divisional Commissioner,
Lucknow. It is informed that earlier the
Additional District Magistrate, Lucknow
had made a favourable recommendation
for exchange/purchase as offered by the
petitioner based on N.O.C. granted by the
Municipal Corporation, Lucknow on
08.02.2024, however, subsequently it
appears that the Municipal Corporation,
Lucknow has informed the Additional
District Magistrate, Lucknow that the
matter had not been taken to the House of
the
Municipal
Corporation
as
was
requirements which is proposed to be
done now, therefore, the matter is still
pending. If the House grants permission
or N.O.C., as the case may be, the same
shall be forwarded to the Divisional
Commissioner, Lucknow for a decision
under Section 101 of the Code, 2006.
Even though, the Municipal Corporation,
Lucknow is not an opposite party herein
but as we are not adjudicating any of its
rights
in
these
proceedings,
it
is
ordered/directed
that
till
exchange
proceedings under Section 101 of the
Code, 2006 read with Government Orders
and notifications as may be applicable,
are pending, further proceedings under
Section 67 of the Code, 2006 shall not be
held, however, as soon as a final decision
is taken in the exchange proceeding, if it
is against the petitioner, then, the
Tehsildar shall proceed to consider and
dispose of the said proceedings as per
law, as already observed. If the exchange
is allowed, then, this fact shall be brought
to the notice of the Tehsildar. The House
of the Municipal Corporation, Lucknow
is directed to take an early decision in the
matter
say
withing
three
months
especially in view of the statement of the
petitioners' Counsel that it has applied for
being upgraded as a University and a letter
of intent in this regard has been issued by
the State Government. Shri Manish Mishra,
Additional Chief Standing Counsel shall
4 All. Smt. Susheela Devi @ Susheela Vs. State of U.P. & Ors.
585
communicate our order to the
Municipal Commissioner, Lucknow for
compliance.

(45) We appreciate the assistance
provided by learned Standing Counsel for
the State as also the officers of the State
Government,
namely-Shri
Raj
Kumar
Dwivedi, O.S.D., Board of Revenue and
Shri
Ghanshyam
Chaturvedi,
Under
Secretary, Government of U.P. who are
present. but we wish that this effort would
have been made prior to issuance of the
impugned notification dated 29.12.2020 so
as to avoid the situation which has arisen in
this case.

(46) The writ petition is allowed
but only in the aforesaid terms, in part.