# Kamlesh Kumar v. Board of Revenue Lucknow & Ors

- **Citation:** (2023) 5 ILRA 1524
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-03
- **Case number:** Writ B No. 1002222 of 1999
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-kumar-v-board-of-revenue-lucknow-ors-50134
- **Pages:** 4

## Headnote

Civil Law - U.P. Land Revenue Act, 1901 -
Section 218 - Section 218 of the Land
Revenue Act h repealed by the U.P. Act
No. 20 of 1997 w.e.f. 18.08.1997 -
Section 10 of the 1997 Amendment Act -
By the impugned order, the Board of
Revenue remanded the case for a fresh
decision
to
the
Commissioner
in
accordance with S. 218 of the Land
Revenue Act. Held: Following the law laid
down in Shri Ram Vs Board of Revenue
U.P., Lucknow & ors., 1999 (1) JCLR 1010
and Ravi Shanker Tripathi Vs Board of
Revenue,
U.P.,
Lucknow
through
its
Chairman & Ors., 2007 (1) ADJ 23, the
Court held that the transitory provision
contained in Section 10 of the 1997
Amendment
Act
saved
only
those
proceedings which were pending before
the Board of Revenue. Therefore, the
proceedings which were pending before
the
Commissioner
or
the
Additional
Commissioner
on
18.08.1997
were
5 All. Kamlesh Kumar Vs. Board of Revenue Lucknow & Ors.
1525
required
to
be
decided
under
the
provisions of Section 219 of the amended
Act. The impugned order was set aside.
Allowed. (E-5)
List of Cases cited:

## Text

1524 INDIAN LAW REPORTS ALLAHABAD SERIES
over the public utility land of the Gaon
Sabha pending.

11. Khetauni, which has been
enclosed with the instructions letter, also
indicates that the gata in question is
recorded as Rasta (public pathway) in the
revenue record and the public pathway/
Rasta may not be encroached by any person
as such encroachment would create serious
prejudice and hindrance to the public at
large. Since the next date for hearing of the
restoration/ recall applications has been
fixed for 27.05.2023, therefore, I do not
find any good ground or reason to keep this
PIL pending any longer, accordingly, this
PIL is disposed of at the admission stage
directing the competent revenue authority
to dispose of recall applications, strictly in
accordance with law, by affording an
opportunity of hearing to the parties
concerned, with expedition, if possible on
the date fixed or within further fifteen days
and
shall
ensure
that
the
illegal
encroachment over the public utility land
be removed strictly in accordance with law.

12. The Senior Registrar of this Court
shall provide certified copy of this order to
the Principal Secretary, Department of
Revenue, Civil Secretariat, U.P., Lucknow
and the Collector, Gonda within three
working days for perusal and necessary
action against the erring officials/ officers.

13. Since the aforesaid direction has
been issued for the entire State i.e. State of
U.P., therefore, the Principal Secretary,
Department of Revenue, Civil Secretariat,
U.P., Lucknow shall issue necessary
directions/ directives/ circular to ensure that
the public utility land of Gaon Sabha is free
from encroachment and such public utility
land be utilized only for the purpose it has
been recorded in the revenue record.

14. This PIL is accordingly disposed
of.
----------
(2023) 5 ILRA 1524
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.05.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ B No. 1002222 of 1999

Kamlesh Kumar ...Petitioner
Versus
Board of Revenue Lucknow & Ors.
 ...Respondents

Counsel for the Petitioner:
T.N Gupta, Durga Prasad, I.D. Shukla,
Mehdi Abbas Rizvi, S.K. Mehrotra, S.K.
Singh, T.N. Gupta

Counsel for the Respondents:
C.S.C., R.N. Gupta, Seema Devi
Civil Law - U.P. Land Revenue Act, 1901 -
Section 218 - Section 218 of the Land
Revenue Act h repealed by the U.P. Act
No. 20 of 1997 w.e.f. 18.08.1997 -
Section 10 of the 1997 Amendment Act -
By the impugned order, the Board of
Revenue remanded the case for a fresh
decision
to
the
Commissioner
in
accordance with S. 218 of the Land
Revenue Act. Held: Following the law laid
down in Shri Ram Vs Board of Revenue
U.P., Lucknow & ors., 1999 (1) JCLR 1010
and Ravi Shanker Tripathi Vs Board of
Revenue,
U.P.,
Lucknow
through
its
Chairman & Ors., 2007 (1) ADJ 23, the
Court held that the transitory provision
contained in Section 10 of the 1997
Amendment
Act
saved
only
those
proceedings which were pending before
the Board of Revenue. Therefore, the
proceedings which were pending before
the
Commissioner
or
the
Additional
Commissioner
on
18.08.1997
were
5 All. Kamlesh Kumar Vs. Board of Revenue Lucknow & Ors.
1525
required
to
be
decided
under
the
provisions of Section 219 of the amended
Act. The impugned order was set aside.
Allowed. (E-5)
List of Cases cited:
1. Shri Ram Vs Board of Revenue U.P., Lucknow
& ors., 1999 (1) JCLR 1010
2. Kali Shanker Dwivedi Vs Board of Revenue &
ors., 2000 (18) LCD 1401
3. Ravi Shanker Tripathi Vs Board of Revenue,
U.P., Lucknow through its Chairman & ors.,
2007 (1) ADJ 23
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Shri Mehdi Abbas Rizvi,
learned counsel for the petitioner, Shri A.S.
Tiwari, learned Additional Chief Standing
Counsel for the State-respondents and Ms.
Seema Devi, learned counsel for the
intervener assisted by Shri Amrendra Nath
Tripathi, who has filed his vakalatnama on
behalf of the opposite party no.5/intervener.
Said vakalatnama is taken on record.

2. By means of this petition, the
petitioner has assailed the order dated
29.06.1999 (Annexure No. 1) passed by
opposite party no. 1 by which he has
remanded the revision to the Commissioner
for fresh decision under Section 218 of the
U.P. Land Revenue Act, 1901 (hereinafter
referred to as "Land Revenue Act") as it
was prevailing prior to 18.08.1997.

3. While assailing the aforesaid
impugned order, learned counsel for the
petitioner has stated that the opposite party
no.1 has committed manifest error of law in
remanding back the case for fresh decision
to the Commissioner in accordance with
Section 218 of the Land Revenue Act as it
was applicable prior to 18.08.1997. Further,
since Section 218 of the Land Revenue Act
has been repealed by the U.P. Act No. 20 of
1997 with effect from 18.08.1997, any
proceeding under such Section cannot be
instituted now.

4. Shri Mehdi Abbas Rizvi, learned
counsel
for
the
petitioner
has
also
submitted that the opposite party no. 1 has
no legal authority to supersede the legal
provisions of the Land Revenue Act by its
quasi judicial order and to prescribe
incorrect, confusing and wrong jurisdiction.
Further, the opposite party no. 1 has
wrongly
held
that
the
order
dated
16.04.1999
passed
by
the
learned
Commissioner is without jurisdiction but in
fact the said order is quite just, proper and
legal. Therefore, the impugned order dated
29.06.1999 is completely illegal, void,
contrary to the law and natural justice. On
the first date of admission, this Court has
passed the order dated 17.08.1999, which
reads as under:-

"Admit.

Issue notice to opposite party no. 2.

Notice on behalf of the opposite
party no.1 has been accepted by the
learned Chief Standing Counsel and Shri
R.N. Gupta, Advocate has accepted notice
on behalf of the opposite party no.3."

5. Learned counsel for the petitioner
has stated that in view of decision of this
Court in re; Shri Ram versus Board of
Revenue U.P. Lucknow and Others, 1999
(1) JCLR 1010, the issue in question is no
more res integra and has held as under:-

"In
view
of
this
transitary
provision only references which were
1526 INDIAN LAW REPORTS ALLAHABAD SERIES
pending before the Board of Revenue were
saved and revisions pending before the
Commissioner or Additional Commissioner
were
not
saved,
and
as
such
the
Commissioner
or
the
Additional
Commissioner ought to have decided the
revisions
pending
before
them
on
18.08.1997 under Section 219 of the Act.
Under the circumstances the judgment
passed by the Board of Revenue on
11.01.1999 cannot be sustained.

The writ petition succeeds and is
allowed. The order dated 11.01.1999
passed by the Board of Revenue (Annexure
No.2 to the writ petition) is set aside. The
petitioner
is
directed
to
move
an
application before the Board of Revenue
about maintainability of the revision which
shall
be
decided
expeditiously,
in
accordance with law."

6. Notably, on account of two
conflicting views, one in re; Kali Shanker
Dwivedi vs. Board of Revenue & Ors.,
2000 (18) LCD 1401 and another in re;
Shri Ram (supra), the issue was referred
before the Division Bench in re; Ravi
Shanker
Tripathi
versus
Board
of
Revenue, U.P., Lucknow through its
Chairman & Ors., 2007 (1) ADJ 23. So as
to resolve the controversy in question,
paras 5, 12 and 18 in re; Ravi Shanker
Tripathi (supra) would be necessary to be
reproduced herein below:-

"5. We must also reproduce
Section 10 of the 1997 Amendment Act
which is a transitory provision:

10.
Transitory
Provisions
-
Notwithstanding anything contained in this
Act all cases referred to the Board under
Section 218 of the U.P. Land Revenue Act,
1901, or under Section 333-A of Uttar
Pradesh Zamindari Abolition and Land
Reforms
Act,
1950
as
they
stood
immediately before the commencement of
this Act and pending before the Board on
the date of such commencement shall
continue to be heard and decided by the
Board as if this Act has not been enacted.

12. In the present case the
application under Section 218 of the
unamended
Act
was
filed
prior
to
18.08.1997 but it was decide after the
amendment had come into force with effect
from 18.08.1997. On the said date, the
Additional
Commissioner,
Allahabad
Division, Allahabad, had the jurisdiction to
decide the Revision under Section 219 of
the amended Act. The transitory provision
contained in Section 10 of the Act provides
that only those proceedings which were
pending before the Board on the date of such
commencement shall continue to be heard by
the Board as if the amendment had not come
into force. This clearly demonstrates that other
proceedings that were pending were required
to be decided under the provisions of the
amended Act.

18. In the present case there is a
transitory provision contained in Section 10 of
the amendment Act which save only those
proceedings which were pending before the
Board of Revenue. Thus, the proceeding which
was
pending
before
the
Additional
Commissioner on 18.08.1997 was required to
be decided under the provisions of Section 219
of the amended Act. We are, therefore, unable
to subscribe to the view taken by the learned
Judge in Kali Shanker Dwivedi (supra) and
agree with the view taken in Sri Ram (supra)."

 (emphasis supplied)

7. In the aforesaid reference, the
Division Bench has answered the reference
in Para 34 in re; Ravi Shanker Tripathi
(supra), which reads as under:-

"34. For all the reasons stated
above, we answer the reference that the
5 All. Smt. Savitri Devi & Anr. Vs. Dy. Director of Consolidation, Varanasi & Ors.
1527
decision in the case Kali Shanker Dwivedi
(supra) does not lay down the correct law.
However, we respectfully agree with the
view taken by the learned Judge in the case
of Sri Ram (supra)."

8. Therefore, learned counsel for the
petitioner has stated that the facts and
circumstances of the present case are similar to
that of Shri Ram (supra), thus, in view of the
decision of this Court in re; Shri Ram (supra)
and Ravi Shanker Tripathi (supra), this writ
petition is liable to be allowed.

9. Shri Amrendra Nath Tripathi, learned
counsel for the intervener has stated that in the
judgment of this Court in re; Shri Ram
(supra) and in re; Ravi Shanker Tripathi
(supra), the legal position has not been made
clear on the point that if any revision has been
filed
under
Section
218
before
the
Commissioner/Additional Commissioner and
after the deletion of Section 218 whether it
would be automatically decided under the
provisions of Section 219 of the amended Act.

10. Shri Amrendra Nath Tripathi has
further submitted that since this legal position
has clearly and explicitly not been explained,
therefore, the submissions so raised by the
learned counsel for the petitioner are not
tenable in the eyes of law.

11. Shri A.S. Tiwari, learned Additional
Chief Standing Counsel has, however, tried to
defend the order dated 29.06.1999 but he
could not defend the impugned order in the
light of the decisions of this Court in re; Shri
Ram (supra) and Ravi Shanker Tripathi
(supra).

12. Having heard learned counsel for the
parties and having perused the materials
available on record as well as the decisions of
this Court in re; Shri Ram (supra) and Ravi
Shanker Tripathi (supra), I am in agreement
on the position of law that since in the present
case, there is a transitory provision contained
in Section 10 of the 1997 Amendment Act
which saved only those proceedings which
were pending before the Board of Revenue,
therefore, the proceedings which were pending
before the Commissioner or the Additional
Commissioner on 18.08.1997 were required to
be decided under the provisions of Section 219
of the amended Act.

13. Under these circumstances, the
judgment passed by the Board of Revenue
dated 29.06.1999 (Annexure No.1) cannot
be sustained. Therefore, the order dated
29.06.1999 passed by the Board of
Revenue, U.P., Lucknow are hereby set
aside.

14. Liberty is given to the parties to file
an appropriate application/petition before
the Board of Revenue, strictly in terms of
law and if such application is filed, the same
shall be decided expeditiously, preferably
within a period of six months from the date
of its filing, by affording an opportunity of
hearing to the parties concerned.

15. In view of the aforesaid terms, the
writ petition is allowed.
----------
(2023) 5 ILRA 1527
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.04.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ-B No. 340 of 2023

Smt. Savitri Devi & Anr. ...Petitioners
Versus
Dy. Director of Consolidation, Varanasi &
Ors. ...Respondents