# Nirhi v. State of U.P. & Ors

- **Citation:** (2021) 4 ILRA 227
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-19
- **Case number:** Writ - B No. 1848 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirhi-v-state-of-u-p-ors-46990
- **Pages:** 3

## Headnote

A. Civil Law - Maintainability - U.P. Land
Revenue Act, 1901 - Sections 34, 210,
217, 219 - U.P. Land Revenue Code, 2006-
Sections 207, 231 - The sole footing on
which the learned revising Court by the
impugned
order
dated
09.10.2019
reversed
the
order
of
the
learned
appellate Court was that the appellate
proceedings ought to have taken out and
heard under the provisions of U.P. Land
Revenue Act, 1901, in view of the
provisions u/s 231 of the U.P. Land Revenue
Code, 2006. The learned appellate Court
erred in law by permitting the proceedings to
continue under the U.P. Land Revenue Code,
2006 though the same was not applicable to
the aforesaid proceedings. (Para 7)

There is no infirmity in the order passed by
the learned appellate Court. However, the
petitioner cannot be denied his right to
substantive justice in view of the provisions of
the U.P. Land Revenue Code, 2006. The
learned
appellate
Court
is
directed
to
recommence the appellate proceedings u/s
217 of the U.P. Land Revenue Act, 1901 and
decide them in terms of the aforesaid Act. In
case the proceedings are not maintainable
before the earlier appellate Court, the same
shall be transferred to the competent Court
which has the jurisdiction to hear the appeal
u/s 210 of the U.P. Land Revenue Act, 1901.
(Para 8)

Writ petition disposed off. (E-3)

## Text

4 All. Nirhi Vs. State of U.P. & Ors.
227

24. In such view of the matter, I do
not find any good ground to interfere in the
order impugned herein.

25. However, parties are liberty to
lead the evidence as permitted by this Court
vide order dated 13.8.2018 passed in WritA No. 534 of 2018.

26. Present petition is devoid of merit
and is, accordingly, dismissed with the
observations as made above.

27. No order as to costs.
----------
(2021)04ILR A227
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ - B No. 1848 of 2020

Nirhi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mohammad Mustafa, Sri Byas Kumar
Prasad

Counsel for the Respondents:
C.S.C., Sri Anirudh Kumar Upadhyay

A. Civil Law - Maintainability - U.P. Land
Revenue Act, 1901 - Sections 34, 210,
217, 219 - U.P. Land Revenue Code, 2006-
Sections 207, 231 - The sole footing on
which the learned revising Court by the
impugned
order
dated
09.10.2019
reversed
the
order
of
the
learned
appellate Court was that the appellate
proceedings ought to have taken out and
heard under the provisions of U.P. Land
Revenue Act, 1901, in view of the
provisions u/s 231 of the U.P. Land Revenue
Code, 2006. The learned appellate Court
erred in law by permitting the proceedings to
continue under the U.P. Land Revenue Code,
2006 though the same was not applicable to
the aforesaid proceedings. (Para 7)

There is no infirmity in the order passed by
the learned appellate Court. However, the
petitioner cannot be denied his right to
substantive justice in view of the provisions of
the U.P. Land Revenue Code, 2006. The
learned
appellate
Court
is
directed
to
recommence the appellate proceedings u/s
217 of the U.P. Land Revenue Act, 1901 and
decide them in terms of the aforesaid Act. In
case the proceedings are not maintainable
before the earlier appellate Court, the same
shall be transferred to the competent Court
which has the jurisdiction to hear the appeal
u/s 210 of the U.P. Land Revenue Act, 1901.
(Para 8)

Writ petition disposed off. (E-3)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Sri Byas Kumar Prasad,
learned
counsel
holding
brief
of
Mohammad Mustafa Khan, learned counsel
for the petitioner and Sri Anirudh Kumar
Upadhyay,
learned
counsel
for
the
respondents.

2. Sri Byas Kumar Prasad, learned
counsel for the petitioner contends that the
Board of Revenue adopted a hyper
technical view of the matter by failing to
remit the matter to the competent court to
proceed with the hearing of the appeal in
accordance with the provisions of U.P.
Land Revenue Act, 1901. The petitioner
has instituted the appeal before the
competent
court
under
the
relevant
provisions. A miscarriage of justice has
happened since the appeal of the petitioner
228 INDIAN LAW REPORTS ALLAHABAD SERIES
has not been heard on merits by any
competent court.

3. Sri Anirudh Kumar Upadhyay,
learned counsel for the respondents in his
usual fairness does not dispute the
aforesaid fact. He however defends the
order of Board of Revenue and contends
that the appellate authority misdirected
itself in law by continuing the proceedings
under the U.P. Land Revenue Code, 2006.
The same provisions were not applicable to
the aforesaid proceedings.

4. Heard learned counsel for the
parties.

5. Proceedings were instituted by the
petitioner under Section 34 of the U.P.
Land Revenue Act, 1901 which came to be
registered as Case no. 648 of 2008 (Nirhi
Vs Gujrati) before the court of Tehsildar,
Shohratgarh, District Sidhharth Nagar. The
learned trial court found against the
petitioner and dismissed the application
under Section 34 of the U.P. Land Revenue
Act, 1901; by order dated 02.09.2014.

6. Aggrieved the petitioner took the
order of the learned trial court in appeal
before
the
court
of
Sub-Divisional
Magistrate, Shohratgarh, District Siddharth
Nagar. The appeal was preferred under
Section 210 of the U.P. Land Revenue Act,
1901. However, the appeal was registered
by the court under Section 207 of the U.P.
Land Revenue Code, 2006 as Case no.
T2016176351052266 (Nirhi Vs Muniram).
The appeal of the petitioner was allowed by
order dated 21.01.2017 and the order
passed by the learned trial court was set
aside.

7. The respondent no. 7 carried the
order of the lower court in revision before
the Board of Revenue under Section 219 of
the U.P. Land Revenue Act, 1901. The
revision was registered as Case no.
REV/186/2017,
Computer
no.
R2017176300186 (Muniram Vs Nirhi). The
revising court allowed the revision and set
aside the order passed by the learned
appellate court. The sole footing on which
the learned revising court by the impugned
order dated 09.10.2019 reversed the order
of the learned appellate court was that the
appellate proceedings ought to have taken
out and heard under the provisions of U.P.
Land Revenue Act, 1901, in view of the
provisions under Section 231 of the U.P.
Land Revenue Code, 2006. The learned
appellate court erred in law by permitting
the proceedings to continue under the U.P.
Land Revenue Code, 2006 though the same
was not applicable to the aforesaid
proceedings.

8. There is no infirmity in the order
passed by the learned appellate court.
However, the petitioner cannot be denied
his right to substantive justice in view of
the provisions of the U.P. Land Revenue
Code, 2006. The learned appellate court is
directed to recommence the appellate
proceedings under Section 217 of the U.P.
Land Revenue Act, 1901 and decide them
in terms of the aforesaid Act. In case the
proceedings are not maintainable before the
earlier appellate court, the same shall be
transferred to the competent court which
has the jurisdiction to hear the appeal under
Section 210 of the U.P. Land Revenue Act,
1901. The appellate court shall make all
endeavor to decide the said appeal within a
period of six months from the date of
receipt of a certified copy of this order and
implement the above directions.

9. The writ petition is disposed of.
----------
4 All. Nagar Panchayat Jhunsi Prayagraj & Anr. Vs. State of U.P. & Ors.
229
(2021)04ILR A229
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ - C No. 8226 of 2020
and
Writ - C No. 3522 of 2020

Nagar Panchayat Jhunsi Prayagraj & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan, Sri R.K. Mishra, Sri
Udayan Nandan

Counsel for the Respondents:
C.S.C., Sri Suresh C. Dwivedi, Sri Vibhu Rai

A. Constitution of India,1950 - Art.243Q -
Constitution of Municipal Corporation/
Nagar
Nigam
-
Merger
of
Nagar
Panchayat into Nagar Nigam - on the
recommendation of the Commissioner -
no proposal of the Board of Nagar Nigam
Prayagraj - Validity - Held - As per G.O. dt
3.4.2018, Para 4, 5 - proposal to merge
Nagar Panchayat into Nagar Nigam must
emerge from the resolution of the Board
or the report of the Commissioner -
Commissioner being the delegate of the
State Government is empowered to make
his recommendation for merger based on
inputs
supplied
by
amongst
others
Mayor, Municipal Commissioner, Addl.
Municipal Commissioner of the Nagar
Nigam on relevant indicators - absence
of resolution of the Board, which is in the
alternative, would be of no consequence -
Governor is the competent authority
under Article 243-Q to take a final call
(Para 17)
B. Constitution of India, Art.243Q -
U.P. Municipal Corporation Act (2 of
1959)
-
Constitution
of
Municipal
Corporation/ Nagar Nigam - Merger of
Nagar Panchayat into Nagar Nigam -
without inviting objections prior to
inclusion of a Nagar Panchayat into
Nagar Nigam - Legality - Held - there is
no provision either in the Constitution &
in particular in Article 243Q or in the Act
of 1959 to put either the inhabitants or
the representatives of the merging local
bodies
to
notice
or
provide
any
opportunity to the merging local body
prior to merger - Absence of prior
opportunity
does
not
lead
to
any
absurdity, so as to enable Court to read
down the provision of prior opportunity
(Para 19)

C. Interpretation of statute - Casus
omissus & 'reading down' - Courts are
prohibited from filling the gaps in a
statute where the omission appears to be
deliberate & the omission does not lead to
any anomaly or absurdity as it would
amount
to
legislation,
which
is
not
intended (Para 20)

Held - Absence of opportunity to the residents /
representatives of the merging body prior to
merger of an area into municipal corporation
was a deliberate omission in the Act of 1959 -
since it was case of deliberate omission on the
part of legislature to provide a prior opportunity
before merger of a local body into municipal
corporation - Court refrained to import the
principles of "reading down" as that would be in
conflict with the legislative intent. (Para 20)

D. Constitution of India, Art.243Q -
Governor is empowered to declare the
character of an area as transitional area,
smaller urban area or larger urban area,
on the basis of population, density,
revenue
generated
from
the
area,
population employed in non-agricultural
operations, economic importance - there
is no embargo to include any area to
either
in
transitional
area
(Nagar
Panchayat)
or
smaller
urban
area