# Mirza Rashid Beg & Ors v. Board of Revenue, U.P. & Ors

- **Citation:** (2023) 8 ILRA 390
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-03
- **Case number:** Writ B No. 613 of 2023
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mirza-rashid-beg-ors-v-board-of-revenue-u-p-ors-50660
- **Pages:** 19

## Headnote

Civil Law-U.P. Zamindari Abolition and
Land Reforms Act, 1950-Section 331 - The
Code of Civil Procedure-1908-Section 100
- Order 41 & 42- According to law settled as
also mode and manner prescribed for deciding
the appeal from appellate decree under Order
42 CPC, as applicable in St. of U.P., which says
that Rules of Order 41 and 41-A shall apply, so
far as may be, to appeals from appellate decree
and accordingly the second appeal, if not
dismissed in limine in terms of under Rule 11 of
Order
41,
should
be
decided
after
formulating/framing substantial question of law
and thereafter fixing a day for hearing on the
same, as would appear from a conjoint reading
of Section 100, Rule 11 and 12 of Order 41 and
Rule 2 of Order 42 CPC- Board of Revenue failed
to follow the mandatory procedure prescribed
for deciding a second appeal-Impugned Order
quashed.

Petition allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,970 of 65,987. This is a partial read: ask again with offset=39970 for what follows._

390 INDIAN LAW REPORTS ALLAHABAD SERIES
the delinquent officer an opportunity to
represent before it records its finding. The
report of the inquiry officer containing its
findings will have to be conveyed and the
delinquent officer will have an opportunity
to persuade the disciplinary authority to
accept the favourable conclusion of the
inquiry officer. The principles of natural
justice require the authority which has to
take a final decision and can impose a
penalty, to given an opportunity to the
charged officer to file a representation
before the disciplinary authority records its
finding on the charges framed against the
officer.

38. Considering in totalities of facts
and circumstances of the case, both the writ
petition are allowed. Order of "Removal
from service which shall not be a
disqualification for future employment", as
contained in Letter No.H.O.: PER(DAD):
22991 (Annexure-1) passed by A.G.M.
(Personnel), Head Officer , New Delhi
dated September 21,2002 as well as order
of the Appellate Authority (Opposite Party
No.3) as contained in letter no.H.O.:
PER(DAD) 620 dated February 3/4, 2003
(Annexure no.2) [both the orders have been
challenged in Writ-A No.2000700 of 2003]
and order of "Removal from service which
shall not be a disqualification for future
employment"
as
contained
in
Letter
No.H.O.: PER (DAD): 2292 (Annexure-1)
passed by the A.G.M. (Personnel), Head
Office, New Delhi, dated September 21,
2002 as well as order of the Appellate
Authority (Opposite Party no.3) contained
in letter no. H.O.: PER(DAD) 620 dated
February 3/4, 2003 (Annexure-2) [both the
orders have been challenged in Writ-A
No.2000699 of 2003] are hereby quashed.
However, the respondent no.4 is directed to
continue to treat the petitioner in service
with all consequential benefits.
----------
(2023) 8 ILRA 390
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.08.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ B No. 613 of 2023

Mirza Rashid Beg & Ors. ...Petitioners
Versus
Board of Revenue, U.P. & Ors.
 ...Respondents

Counsel for the Petitioners:
Pradeep Kumar Tiwari

Counsel for the Respondents:
C.S.C., Mohan Singh, Pankaj Kumar Pandey

Civil Law-U.P. Zamindari Abolition and
Land Reforms Act, 1950-Section 331 - The
Code of Civil Procedure-1908-Section 100
- Order 41 & 42- According to law settled as
also mode and manner prescribed for deciding
the appeal from appellate decree under Order
42 CPC, as applicable in St. of U.P., which says
that Rules of Order 41 and 41-A shall apply, so
far as may be, to appeals from appellate decree
and accordingly the second appeal, if not
dismissed in limine in terms of under Rule 11 of
Order
41,
should
be
decided
after
formulating/framing substantial question of law
and thereafter fixing a day for hearing on the
same, as would appear from a conjoint reading
of Section 100, Rule 11 and 12 of Order 41 and
Rule 2 of Order 42 CPC- Board of Revenue failed
to follow the mandatory procedure prescribed
for deciding a second appeal-Impugned Order
quashed.

Petition allowed. (E-15)

List of Cases cited:

1. St. of Uttarakhand (previously St. of Uttar
Pradesh) v. Mohan Singh & ors., (2012) 13 SCC
281
8 All. Mirza Rashid Beg & Ors. Vs. Board of Revenue, U.P. & Ors.
391
2. Surat Sigh (dead) Vs Siri Bhagwan & ors.
[2018 (141) RD 300]

3. Arulmighu Nellukadai Mariamman Tirukkoil Vs
Tamilarasi (Dead) AIR 2019 SC 3027

4. Chandrabhan (Deceased) through LRs. & ors.
Vs Saraswati & ors. AIR 2022 SC 4601

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Pradeep Kumar Tiwari,
learned counsel for the petitioners, Sri
Hemant Kumar Pandey, learned State
counsel appearing for the respondent Nos.
1 to 3 & 13, Sri Mohan Singh, Advocate,
who has received notice on behalf of
respondent No. 12/Gaon Sabha concerned
and Sri Pankaj Kumar Pandey, Advocate,
appearing for the respondent No. 4, who
has also filed his Valakatnama on behalf of
respondent Nos. 5 to 11 in the Court today,
which is taken on record.

2. By means of this petition, the
petitioners have assailed the order dated
15.05.2023 passed by the respondent No.
1/Board of Revenue, U.P., at Lucknow in
Second Appeal registered as Case No.
SA/205/2022/Ayodhya, Computerized Case
No. R2022042300205 (Mirza Khalid Beg
and others vs. Mirza Shahid Beg) filed by
the private respondents Nos. 4 to 11 under
Section 331 of U.P. Zamindari Abolition
and Land Reforms Act, 1950 (in short "Act
of 1950").

3. By order dated 15.05.2023, the
second appeal has been allowed at the
admission stage and the matter has been
remanded back to the trial Court concerned
for deciding the case afresh on merits after
framing the relevant issues.

4. The brief facts of the case, which
are required for disposal of this petition, are
to the effect that a suit for declaration of
rights over certain plots/gatas was instituted
by Khursida Begum registered as Case No.
68/192/22/44/61 (Khurshida Begum and
others vs. Mirza Zulfikar Beg and others),
which was dismissed vide order dated
05.09.2007 based on the plea related to
Section 49 of U.P. Consolidation of
Holdings Act, 1953 (in short "Act of
1953"), which creates bar in relation to suit
filed subsequent to notification published
under Section 52 of the Act of 1953.

5. The order dated 05.09.2007 was
assailed by the original plaintiffs namely
Khurshida Begum and Sayeeda Begum,
who expired during pendency of appeal and
in their place, the legal heirs were
substituted, who are the private respondent
Nos. 4 to 11 in this petition. This first
appeal
was
registered
as
Case
No.
1248/2007-2008, Computerized Case No.
C2007040000615 (Khurshida Begum vs.
Mirza Zulfikar Beg) under Section 331(3)
of the Act of 1950. The First Appellate
Court affirmed the order dated 05.09.2007
vide its order dated 18.12.2021.

6. Challenging the orders dated
05.09.2007 and 18.12.2021, the Second
Appeal
registered
as
Case
No.
SA/205/2022/Ayodhya, Computerized Case
No. R2022042300205 (Mirza Khalid Beg
and others vs. Mirza Shahid Beg) was
preferred by the private respondents No. 4
to 11, which has been allowed vide
impugned order dated 15.05.2023 and
matter has been remanded back by the
second Appellate Court/respondent No. 1
with a direction to the trial Court to decide
the case on merits after framing the issues.

7. The order impugned dated
15.05.2023 has been challenged on several
grounds. The main ground is to the effect
392 INDIAN LAW REPORTS ALLAHABAD SERIES
that the Second Appellate Court has not
proceeded in the matter as required under
the law.

8. Elaborating this aspect of the case,
learned counsel for the petitioners stated
that a second appeal under Section 331 of
the Act of 1950 has to be decided strictly in
terms of mode and manner prescribed
under Section 100 CPC read with Order 41
and Order 42 CPC. According to these
provisions, a second appeal under Section
331 of the Act of 1950 can be allowed after
formulating/framing substantial question
law(s) and thereafter fixing a day for
hearing on the same.

9. In the instant case, without
formulating/framing substantial question of
law(s), the second appeal was heard on
17.04.2023 and judgment was reserved on
the same day and thereafter, the judgment
was pronounced. As such, the second
Appellate Court failed to exercise the
jurisdiction vested in it in accordance with
the mode and manner prescribed. In these
circumstances, interference of this Court is
required in the matter.

10. He further stated that there is
concurrent finding of fact against the
private respondents on the issue related to
Section 49 of the Act of 1953 and the
manner in which the appeal has been
decided would prejudice the rights of the
petitioners.

11. In support of his submissions,
learned counsel for the petitioners has
placed reliance on the judgment passed by
this Court in the case of Matashiromani vs.
State of U.P. and another reported in
AIROnline 2022 ALL 543 as also the
judgments passed by the Hon'ble Apex
Court in the cases of Surat Sigh (dead) vs.
Siri Bhagwan and others reported in [2018
(141) RD 300], Arulmighu Nellukadai
Mariamman Tirukkoil vs. Tamilarasi
(Dead) reported in AIR 2019 SC 3027 and
Chandrabhan (Deceased) through LRs.
and others vs. Saraswati and others
reported in AIR 2022 SC 4601.

12. Opposing the present petition,
learned counsel for the private opposite
parties stated that a perusal of impugned
order dated 15.05.2023 reflects that the
second appeal was heard on 17.04.2023 on
the issue involved i.e. the issue related to
Section 49 of the Act of 1953 and after
considering the law settled on the same, the
second appeal has been allowed and being
so, the order dated 15.05.2023 is not liable
to be interfered with by this Court.

13. Considered the submissions made
by the learned counsel for the parties and
perused the record.

14. In order to consider the issue
involved in the present petition which is to
the effect that as to 'whether the second
appeal under Section 331 of the Act of
1950
can
be
allowed
without
formulating/framing
the
substantial
question of law and without fixing a date
of hearing on the same', it would be
appropriate to refer the judgment dated
12.09.2012 passed by the Hon'ble Apex
Court in the case of State of State of
Uttarakhand (previously State of Uttar
Pradesh) v. Mohan Singh and others,
reported in (2012) 13 SCC 281, wherein,
the Hon'ble Apex Court observed as
under:-

'

"11. In order to examine the
contentions raised by the counsel on either
side, it is necessary to first examine the
scope of Sections 331(3) and 331(4) of the
8 All. Mirza Rashid Beg & Ors. Vs. Board of Revenue, U.P. & Ors.
393
U.P. Act and those provisions are extracted
below for our easy reference:

"331. Cognizance of suits, etc.
under this Act.-(1)-(2)***

(3) An appeal shall lie from any
decree or from an order passed under
Section 47 or an order of the nature
mentioned in Section 104 of the Code of
Civil Procedure, 1908 (5 of 1908) or in
Order 43 Rule 1 of the First Schedule to
that Code passed by a court mentioned in
Column 4 of Schedule II to this Act in
proceedings mentioned in Column 3
thereof to the court or authority mentioned
in Column 5 thereof.

(4) A second appeal shall lie on
any of the grounds specified in Section 100
of the Code of Civil Procedure, 1908 (5 of
1908) from the final order or decree, passed
in an appeal under sub-section (3), to the
authority, if any, mentioned against it in
Column 6 of the Scheduled aforesaid."
12. Sub-section (4) of Section 331 of the
U.P. Act also refers to Column 6 of
Schedule II. Hence, the relevant portion of
the Schedule is also extracted hereunder:

"schedule ii
(section 331)
Sl.
No.

Section Descripti
on of
proceedi
ngs
Court of
original
jurisdiction
Court of

First
Appeal
Secon
d
Appeal
(1)

(2)
(3)
(4)
(5)
(6)

*
*
*

34.

229,
229-B,
229-C
Suit for
declarati
on
of
rights
Assistant
Collector
1st Class

Comm
issione
r
Board
"

13. Sub-section (4) of Section
331 of the U.P. Act states that a second
appeal shall lie on "any of the grounds"
specified in Section 100 CPC, 1908.
Section 100 CPC, as it stood prior to 1-21977, reads as follows:

"100. (1) Save where otherwise
expressly provided in the body of this Code
or by any other law for the time being in
force, an appeal shall lie to the High Court
from every decree passed in appeal by any
court subordinate to a High Court on any of
the following grounds, namely-(a) the
decision being contrary to law or to some
usage having the force of law;

(b) the decision having failed to
determine some material issue of law or
usage having the force of law;

(c) a substantial error or defect in
the procedure provided by this Code or by
any other law for the time being in force,
which may possibly have produced error or
defect in the decision of the case upon the
merits.

(2) An appeal may lie under this
section from an appellate decree passed ex
parte."

14. After
Section
100
was
substituted by Act 104 of 1976 with effect
from 1-2-1977, it reads as follows:

"100. Second appeal.-(1) Save
as otherwise expressly provided in the body
of this Code or by any other law for the
time being in force, an appeal shall lie to
the High Court from every decree passed in
appeal by any court subordinate to the High
Court, if the High Court is satisfied that the
case involves a substantial question of law.

(2) An appeal may lie under this
section from an appellate decree passed ex
parte.

(3) In an appeal under this
section, the memorandum of appeal shall
precisely state the substantial question of
law involved in the appeal.
394 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) Where the High Court is
satisfied that a substantial question of law
is involved in any case, it shall formulate
that question.

(5) The appeal shall be heard on
the question so formulated and the
respondent shall, at the hearing of the
appeal, be allowed to argue that the case
does not involve such question:

Provided that nothing in this subsection shall be deemed to take away or
abridge the power of the court to hear, for
reasons to be recorded, the appeal on any
other substantial question of law, not
formulated by it, if it is satisfied that the
case involves such question."

15. The U.P. Act received the
assent of the President on 24-1-1951. It was
published
in
the
U.P.
Gazette
(Extraordinary) dated 26-1-1951. Subsection (4) of Section 331 has incorporated
the unamended Section 100 CPC.

16. The question that calls for
consideration is: whether sub-section (4) of
Section 331 carries with it the amended
Section 100 CPC as well, consequently,
making it obligatory for the Board of
Revenue to frame substantial questions of
law? The question, therefore, calls for
consideration is: whether reference to
Section 100 in sub-section (4) of Section
331 is by way of referential legislation or
legislation by incorporation?

17. A subsequent legislation often
makes a reference to earlier legislation so
as to make the provisions of the earlier
legislation applicable to matters covered by
later legislation. Such a legislation may
either be (i) a referential legislation which
merely contains a reference to or the
citation of the provisions of the earlier
statute; or (ii) a legislation by incorporation
whereunder the provisions of the earlier
legislation to which reference is made are
incorporated into the later legislation by
reference.

18. The question how the above
two principles operate came up for
consideration in U.P. Avas Evam Vikas
Parishad v. Jainul Islam [(1998) 2 SCC
467] before a three-Judge Bench of this
Court and it was held as follows: (SCC pp.
480-81, para 17)

"17. A subsequent legislation
often makes a reference to the earlier
legislation so as to make the provisions of
the earlier legislation applicable to matters
covered by the later legislation. Such a
legislation may either be (i) a referential
legislation
which
merely
contains
a
reference to or the citation of the provisions
of the earlier statute; or (ii) a legislation by
incorporation whereunder the provisions of
the earlier legislation to which reference is
made are incorporated into the later
legislation by reference. If it is a referential
legislation the provisions of the earlier
legislation to which reference is made in
the
subsequent
legislation
would
be
applicable as it stands on the date of
application of such earlier legislation to
matters referred to in the subsequent
legislation. In other words, any amendment
made in the earlier legislation after the date
of enactment of the subsequent legislation
would also be applicable. But if it is a
legislation by incorporation the rule of
construction is that repeal of the earlier
statute which is incorporated does not
affect operation of the subsequent statute in
which it has been incorporated. So also any
amendment in the statute which has been so
incorporated that is made after the date of
incorporation of such statute does not affect
the subsequent statute in which it is
incorporated and the provisions of the
statute which have been incorporated
would remain the same as they were at the
8 All. Mirza Rashid Beg & Ors. Vs. Board of Revenue, U.P. & Ors.
395
time of incorporation and the subsequent
amendments are not to be read in the
subsequent legislation. In the words of
Lord Esher, M.R., the legal effect of such
incorporation by reference 'is to write those
sections into the new Act just as if they had
been actually written in it with the pen or
printed in it, and, the moment you have
those clauses in the later Act, you have no
occasion to refer to the former Act at all'.
(See Wood's Estate, In re [(1886) 31 Ch D
607 (CA)] , Ch D at 615.) As to whether a
particular legislation falls in the category of
referential legislation or legislation by
incorporation depends upon the language
used in the statute in which reference is
made to the earlier legislation and other
relevant circumstances. The legal position
has been thus summed up by this Court in
State of M.P. v. M.V. Narasimhan [(1975) 2
SCC 377 : 1975 SCC (Cri) 589] : (SCC p.
385, para 15 : SCR p. 14)

'15. ... Where a subsequent Act
incorporates provisions of a previous Act
then the borrowed provisions become an
integral and independent part of the
subsequent Act and are totally unaffected
by any repeal or amendment in the previous
Act. This principle, however, will not apply
in the following cases:

(a) where the subsequent Act and
the previous Act are supplemental to each
other;

(b) where the two Acts are in pari
materia;

(c) where the amendment in the
previous Act, if not imported into the
subsequent Act also, would render the
subsequent Act wholly unworkable and
ineffectual; and

(d) where the amendment of the
previous Act, either expressly or by
necessary intendment, applies the said
provisions to the subsequent Act.'"

19. The law is, therefore, clear
that a distinction has to be drawn between a
mere reference or citation of one statute
into another and incorporation. In the case
of
mere
reference
of
citation,
a
modification, repeal or re-enactment of the
statute that is referred will also have effect
for the statute in which it is referred; but in
the
latter
case
any
change
in
the
incorporated statute by way of amendment
or repeal has no repercussion on the
incorporating statute.

20. We need not further elaborate
this point, since almost identical question
came up for consideration before a threeJudge Bench of this Court in Mahindra and
Mahindra Ltd. v. Union of India [(1979) 2
SCC 529] wherein this Court dealt with the
scope of Section 55 of the Monopolies and
Restrictive Trade Practices Act, 1969 read
with Section 100 CPC, which reads as
follows:

"55.
Appeals.-Any
person
aggrieved by any decision on any question
referred to in clause (a), clause (b) or clause
(c) of Section 2-A, or any order made by
the Central Government under Chapter III
or Chapter IV, or, as the case may be, or the
Commission under Section 12-A or Section
13 or Section 36-D or Section 37, may,
within sixty days from the date of the order,
prefer an appeal to the Supreme Court on
one or more of the grounds specified in
Section 100 of the Code of Civil Procedure,
1908 (5 of 1908)."

21.
his
Court
in
the
abovementioned case examined the scope
of Section 55 read with Section 100 CPC,
both amended and unamended. Section 55
provides
inter
alia
that
any
person
aggrieved by an order made by the
Commissioner under Section 13 may prefer
an appeal to this Court on "one or more of
the grounds" specified in Section 100 CPC,
1908. When Section 55 was enacted,
396 INDIAN LAW REPORTS ALLAHABAD SERIES
namely, 27-12-1969, being the day of
coming into force of the Act, Section 100
CPC specified three grounds on which a
second appeal could be brought to the High
Court on one of those grounds was that the
decision appealed against was contrary to
law. Therefore, if the reference in Section
55 was to the grounds set out in the then
existing Section 100, there can be no doubt
that an appeal would lie to this Court under
Section 55 on a question of law. The above
aspects have been elaborately dealt with in
Mahindra and Mahindra Ltd. [(1979) 2
SCC 529] The relevant portion of the
judgment is as follows: (SCC pp. 547-48,
para 8)

"8. ... It was sufficient under
Section 100 as it stood then that there
should be a question of law in order to
attract the jurisdiction of the High Court in
second appeal and, therefore, if the
reference in Section 55 were to the grounds
set out in the then existing Section 100,
there can be no doubt that an appeal would
lie to this Court under Section 55 on a
question of law. But subsequent to the
enactment of Section 55, Section 100 of the
Code of Civil Procedure was substituted by
a new section by Section 37 of the Code of
Civil Procedure (Amendment) Act, 1976
with effect from 1-2-1977 and the new
Section 100 provided that a second appeal
shall lie to the High Court only if the High
Court is satisfied that the case involves a
substantial question of law. The three
grounds on which a second appeal could lie
under the former Section 100 were
abrogated and in their place only one
ground was substituted which was a highly
stringent ground, namely, that there should
be a substantial question of law. This was
the new Section 100 which was in force on
the date when the present appeal was
preferred by the appellant and the argument
of
the
respondents
was
that
the
maintainability
of
the
appeal
was,
therefore, required to be judged by
reference to the ground specified in the new
Section 100 and the appeal could be
entertained only if there was a substantial
question of law. The respondents leaned
heavily on Section 8(1) of the General
Clauses Act, 1897 which provides:

'8. Construction of references to
repealed enactments.-(1) Where this Act,
or any Central Act or Regulation made after
the commencement of this Act, repeals and
re-enacts, with or without modification, any
provision of a former enactment, then
references in any other enactment or in any
instrument to the provision so repealed
shall, unless a different intention appears,
be construed as references to the provision
so re-enacted.'

and
contended
that
the
substitution of the new Section 100
amounted to repeal and re-enactment of the
former Section 100 and, therefore, on an
application of the rule of interpretation
enacted in Section 8(1), the reference in
Section 55 to Section 100 must be
construed as reference to the new Section
100 and the appeal could be maintained
only on ground specified in the new
Section 100, that is, on a substantial
question of law. We do not think this
contention is well founded. It ignores the
distinction between a mere reference to or
citation of one statute in another and an
incorporation which in effect means bodily
lifting a provision of one enactment and
making it a part of another. Where there is
mere reference to or citation of one
enactment in another without incorporation,
Section 8(1) applies and the repeal and reenactment of the provision referred to or
cited has the effect set out in that section
and the reference to the provision repealed
is required to be construed as reference to
the provision as re-enacted. Such was the
8 All. Mirza Rashid Beg & Ors. Vs. Board of Revenue, U.P. & Ors.
397
case in Collector of Customs v. Nathella
Sampathu Chetty [AIR 1962 SC 316 :
(1962) 1 Cri LJ 364 : (1962) 3 SCR 786]
and New Central Jute Mills Co. Ltd. v. CCE
[(1970) 2 SCC 820] . But where a provision
of one statute is incorporated in another, the
repeal or amendment of the former does not
affect the latter. The effect of incorporation
is as if the provision incorporated were
written out in the incorporating statute and
were
a
part
of
it.
Legislation
by
incorporation is a common legislative
device employed by the legislature, where
the legislature for convenience of drafting
incorporates provisions from an existing
statute by reference to that statute instead
of setting out for itself at length the
provisions which it desires to adopt. Once
the incorporation is made, the provision
incorporated becomes an integral part of
the statute in which it is transposed and
thereafter there is no need to refer to the
statute from which the incorporation is
made and any subsequent amendment made
in it has no effect on the incorporating
statute. Lord Esher, M.R., while dealing
with legislation by incorporation in Wood's
Estate, In re [(1886) 31 Ch D 607 (CA)]
pointed out at p. 615:

'... If a subsequent Act brings
into itself by reference some of the clauses
of a former Act, the legal effect of that, as
has often been held, is to write those
sections into the new Act just as if they had
been actually written in it with the pen, or
printed in it, and, the moment you have
those clauses in the later Act, you have no
occasion to refer to the former Act at all.'

Lord Justice Brett, also observed
to the same effect in Clarke v. Bradlaugh
[(1881) 8 QBD 63 : (1881-85) All ER Rep
1002 (CA)] : (QBD p. 69)

'... there is a rule of construction
that, where a statute is incorporated by
reference into a second statute, the repeal
of the first statute by a third [statute] does
not affect the second.'"

22. The Judicial Committee of the
Privy Council in Secy. of State for India in
Council v. Hindustan Coop. Insurance
Society Ltd. [(1930-31) 58 IA 259] also
applied the same rule. The Judicial
Committee pointed out that the provisions
of the Land Acquisition Act, 1894 having
been
incorporated
in
the
Calcutta
Improvement Trust Act, 1911 had become
an integral part of it, the subsequent
amendment of the Land Acquisition Act,
1894 by the addition of sub-section (2) in
Section 26 had no effect on the Calcutta
Land Improvement Trust Act, 1911 and
could not be read into it. Sir George
Lowndes delivering the opinion of the
Judicial Committee observed: (IA p. 267)

"... In this country it is accepted
that where a statute is incorporated by
reference into a second statute, the repeal
of the first statute does not affect the
second: see the cases collected in Craies on
Statute Law, 3rd Edn., pp. 349 and 350. ...
The independent existence of the two Acts
is therefore recognised; despite the death of
the parent Act, its offspring survives in the
incorporating Act. ...

It seems to be no less logical to
hold that where certain provisions from an
existing Act have been incorporated into a
subsequent Act, no addition to the former
Act,
which
is
not
expressly
made
applicable to the subsequent Act, can be
deemed to be incorporated in it, at all
events if it is possible for the subsequent
Act to function effectually without the
addition."

23. This Court in Ram Sarup v.
Munshi [AIR 1963 SC 553 : (1963) 3 SCR
858] held that since the definition of
"agricultural land" in the Punjab Alienation
of Land Act, 1900 was bodily incorporated
in the Punjab Pre-emption Act, 1913, the
398 INDIAN LAW REPORTS ALLAHABAD SERIES
repeal of the former Act had no effect on
the continued operation of the later.
Rajagopala Ayyangar, J., speaking for the
Court observed at pp. 868-69 of the Report:
(AIR p. 558, para 11)

"11. ... Where the provisions of
an Act are incorporated by reference in a
later Act the repeal of the earlier Act has, in
general, no effect upon the construction or
effect of the Act in which its provisions
have been incorporated. ...

***

In the circumstances, therefore,
the repeal of the Punjab Alienation of Land
Act of 1900 has no effect on the continued
operation of the Pre-emption Act and the
expression 'agricultural land' in the later
Act has to be read as if the definition in the
Alienation of Land Act had been bodily
transposed into it."

24. In Bolani Ores Ltd. v. State of
Orissa [(1974) 2 SCC 777] , this Court
proceeded on the same principle. There the
question
arose
in
regard
to
the
interpretation of Section 2(c) of the Bihar
and Orissa Motor Vehicles Taxation Act,
1930 (hereinafter referred to as "the
Taxation Act"). This section when enacted
adopted the definition of "motor vehicle"
contained in Section 2(18) of the Motor
Vehicles Act, 1939. Subsequently, Section
2(18) was amended by Act 100 of 1956 but
no corresponding amendment was made in
the definition contained in Section 2(c) of
the Taxation Act. The argument advanced
before the Court was that the definition in
Section 2(c) of the Taxation Act was not a
definition by incorporation but only a
definition by reference and the meaning of
"motor vehicle" in Section 2(c) must,
therefore, be taken to be the same as
defined from time to time in Section 2(18)
of the Motor Vehicles Act, 1939. This
argument was negatived by the Court and it
was held that this was a case of
incorporation and not reference and the
definition in Section 2(18) of the Motor
Vehicles Act, 1939 as then existing was
incorporated in Section 2(c) of the Taxation
Act and neither repeal of the Motor
Vehicles Act, 1939 nor any amendment in it
would affect the definition of "motor
vehicle" in Section 2(c) of the Taxation
Act. It is, therefore, clear that if there is
mere reference to a provision of one statute
in another without incorporation, then,
unless a different intention clearly appears,
Section 8(1) would apply and the reference
would be construed as a reference to the
provision as may be in force from time to
time in the former statute. But if a
provision of one statute is incorporated in
another, any subsequent amendment in the
former statute or even its total repeal would
not effect the provision as incorporated in
the latter statute. The question is as to
which category the present case belongs.

25. In Mahindra and Mahindra
Ltd. [(1979) 2 SCC 529] after referring to
the abovementioned judgment, this Court
held as follows: (SCC pp. 550-51, para 9)

"9. We have no doubt that Section
55 is an instance of legislation by
incorporation
and
not
legislation
by
reference. Section 55 provides for an
appeal to this Court on 'one or more of the
grounds specified in Section 100'. It is
obvious that the legislature did not want to
confer an unlimited right of appeal, but
wanted to restrict it and turning to Section
100, it found that the grounds there set out
were appropriate for restricting the right of
appeal and hence it incorporated them in
Section 55. The right of appeal was clearly
intended to be limited to the grounds set
out in the then existing Section 100. Those
were the grounds which were before the
legislature and to which the legislature
could have applied its mind and it is
reasonable to assume that it was with
8 All. Mirza Rashid Beg & Ors. Vs. Board of Revenue, U.P. & Ors.
399
reference to those specific and known
grounds that the legislature intended to
restrict the right of appeal. The legislature
could never have intended to limit the right
of appeal to any ground or grounds which
might from time to time find place in
Section 100 without knowing what those
grounds were. The grounds specified in
Section 100 might be changed from time to
time having regard to the legislative policy
relating to second appeals and it is difficult
to see any valid reason why the legislature
should have thought it necessary that these
changes should also be reflected in Section
55 which deals with the right of appeal in a
totally different context. We fail to
appreciate what relevance the legislative
policy in regard to second appeals has to
the right of appeal under Section 55 so that
Section 55 should be inseparably linked or
yoked to Section 100 and whatever changes
take place in Section 100 must be
automatically read into Section 55. It must
be remembered that the Act is a selfcontained code dealing with monopolies
and restrictive trade practices and it is not
possible to believe that the legislature could
have made the right of appeal under such a
code dependent on the vicissitudes through
which a section in another statute might
pass from time to time. The scope and
ambit of the appeal could not have been
intended to fluctuate or vary with every
change in the grounds set out in Section
100. Apart from the absence of any rational
justification
for
doing
so,
such
an
indissoluble linking of Section 55 with
Section 100 could conceivably lead to a
rather absurd and startling result. Take for
example a situation where Section 100
might be repealed altogether by the
legislature-a situation which cannot be
regarded as wholly unthinkable. If the
construction contended for on behalf of the
respondents were accepted, Section 55
would in such a case be reduced to futility
and the right of appeal would be wholly
gone, because then there would be no
grounds on which an appeal could lie.
Could such a consequence ever have been
contemplated by the legislature? The
legislature clearly intended that there
should be a right of appeal, though on
limited grounds, and it would be absurd to
place on the language of Section 55 an
interpretation which might, in a given
situation, result in denial of the right of
appeal altogether and thus defeat the plain
object and purpose of the section. We must,
therefore,
hold
that
on
a
proper
interpretation the grounds specified in the
then
existing
Section
100
were
incorporated in Section 55 and the
substitution of the new Section 100 did not
affect
or
restrict
the
grounds
as
incorporated and since the present appeal
admittedly raises questions of law, it is
clearly maintainable under Section 55. We
may point out that even if the right of
appeal under Section 55 were restricted to
the ground specified in the new Section
100, the present appeal would still be
maintainable, since it involves a substantial
question
of
law
relating
to
the
interpretation of Section 13(2)."

26. We are of the view that the
principle laid down in Mahindra and
Mahindra Ltd. [(1979) 2 SCC 529] and the
judgments referred to earlier clearly apply
when we interpret sub-section (4) of
Section 331 of the U.P. Act. Sub-section
(4), as we have already indicated, has used
the expression "on any of the grounds"
specified
in
Section
100
CPC.
Consequently, the then existing Section 100
(i.e. Section 100, as it existed in 1908
unamended) was incorporated in subsection (4) of Section 331 and substitution
of the new Section 100 does not affect or
restrict the grounds as incorporated. The
400 INDIAN LAW REPORTS ALLAHABAD SERIES
right of appeal to the Board of Revenue
under sub-section (4) of Section 331 clearly
intended to be limited to the grounds set
out in the then existing Section 100, since
those were the grounds which were before
the legislature and to which the legislature
could have applied its mind and it is
reasonable to assume that it was with
reference to those specific and known
grounds that the legislature intended to
limit the right of appeal.

27. The appeal before the Board
of Revenue would, therefore, lie on a
question of law. This legal aspect was not
considered properly either by the Board of
Revenue or by the High Court. Further, we
also notice that the Board of Revenue has
not examined the provisions of the land
record and Lekhpal diary number, date and
P.A. 10. The Additional Commissioner had
specifically noticed that P.A. 10 which had
been filed pertaining to year 1976 did not
bear any signature and the same was found
to be doubtful, as to whether the original
"Kashtkar" (tillers) of the land in dispute
belonged to Tharu tribe, was also not
properly examined. Further, the Board of
Revenue also should have examined
whether the land belonged to Tharu tribe
and the plaintiff could claim the benefit of
Section 210 of the U.P. Act. All these
aspects are very vital for a proper and just
adjudication of the dispute, which has not
been done.

28. In such circumstances, we are
inclined to allow the appeals and set aside
the order passed by the High Court as well
as that of the Board of Revenue and the
matter is remanded to the Board of
Revenue
for
fresh
consideration,
in
accordance with law. However, we are not
expressing any opinion on the merits of the
case, since we are remitting the matter to
the Board of Revenue. The Board of
Revenue will pass the final orders within a
period of three months from the date of
receipt of this order."

15. From the aforesaid, it is apparent
that the second appeal before the Board of
Revenue would lie on a substantial
question
of
law.
Requirement
of
formulating/framing of substantial question
of law(s) has been held to be mandatory for
deciding the appeal, as would appear from
the judgment passed in the case of Surat
Singh (supra), followed in the judgment
passed
in
the
case
of
Arulmighu
Nellukadai Mariamman Tirukkoil (supra),
wherein, the Hon'ble Apex Court has
observed as under:-

"19. In our considered opinion,
the manner and the procedure adopted by
the High Court while allowing the second
appeal are against the procedure laid down
in Section 100. Section 100 of the Code
reads as under:

"100. Second appeal.-(1) Save
as otherwise expressly provided in the body
of this Code or by any other law for the
time being in force, an appeal shall lie to
the High Court from every decree passed in
appeal by any court subordinate to the High
Court, if the High Court is satisfied that the
case involves a substantial question of law.

(2) An appeal may lie under this
section from an appellate decree passed ex
parte.

(3) In an appeal under this
section, the memorandum of appeal shall
precisely state the substantial question of
law involved in the appeal.

(4) Where the High Court is
satisfied that a substantial question of law
is involved in any case, it shall formulate
that question.

(5) The appeal shall be heard on
the question so formulated and the
respondent shall, at the hearing of the
8 All. Mirza Rashid Beg & Ors. Vs. Board of Revenue, U.P. & Ors.
401
appeal, be allowed to argue that the case
does not involve such question:

Provided that nothing in this subsection shall be deemed to take away or
abridge the power of the court to hear, for
reasons to be recorded, the appeal on any
other substantial question of law, not
formulated by it, if it is satisfied that the
case involves such question."

20. Sub-section (1) of Section
100 says that the second appeal would be
entertained by the High Court only if the
High Court is "satisfied" that the case
involves a "substantial question of law".
Sub-section (3) makes it obligatory upon
the appellant to precisely state in memo of
appeal the "substantial question of law"
involved in the appeal. Sub-section (4)
provides that where the High Court is
satisfied that any substantial question of
law is involved in the case, it shall
formulate that question. In other words,
once the High Court is satisfied after
hearing the appellant or his counsel, as the
case may be, that the appeal involves a
substantial question of law, it has to
formulate that question and then direct
issuance of notice to the respondent of the
memo of appeal along with the question of
law framed by the High Court.

21. Sub-section (5) provides that
the appeal shall be heard only on the
question formulated by the High Court
under sub-section (4). In other words, the
jurisdiction of the High Court to decide the
second appeal is confined only to the
question framed by the High Court under
sub-section (4). The respondent, however,
at the time of hearing of the appeal is given
a right under sub-section (5) to raise an
objection that the question framed by the
High Court under sub-section (4) does not
involve in the appeal. The reason for giving
this right to the respondent for raising such
objection at the time of hearing is because
the High Court frames the question at the
admission stage which is prior to issuance
of the notice of appeal to the respondent.