# Shailendra Kumar Awasthi v. Addl. Commissioner Lucknow Mandal Lucknow & Ors

- **Citation:** (2019) 2 ILRA 1637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Misc. Single No. 27414 of 2019
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-kumar-awasthi-v-addl-commissioner-lucknow-mandal-lucknow-ors-44618
- **Pages:** 3

## Headnote

U.P. Land Revenue Code, 2006- Sections
35(2)- U.P. Land Revenue Act, 1901Section 210- Against the order passed in the
mutation proceedings u/s. 35(1)-Petitioner
filed revision u/s. 210 of the Code of 2006Dismissed on the ground of availability of
alternative
remedy-appeal
u/s.
35(2)-the
appellate order-subject matter of revision.
On the other hand, if the original order of
mutation u/s. 34 of the U.P. Land Revenue Act
1901-appeal to be filed u/s. 210 of the said
Act of 1901-thereafter revision u/s. 219.

Held :- the Court finds that the original order
was passed under section 34 of the Act of
1901, to facilitate the ends of justice the
appeal filed under section 35(2) of the Code,
2006 in this case would be treated as having
been
preferred
under
section
210
and
consequent to this judgment, as this Court is
inclined to quash the impugned order dated
16.07.2019 the revision filed with reference to
section 210 of the Code be treated as revision
under section219 of the Act of 1901 shall now
be considered and decided accordingly.
Writ Petition Disposed of (E-8)

## Text

2 All.Shailendra Kumar Awasthi Vs Addl. Commissioner Lucknow Mandal Lucknow & Ors. 1637

16. No order as to costs.
----------

(2019)10ILR A 1637

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2019

BEFORE

THE HON'BLE RAJAN ROY, J.

Misc. Single No. 27414 of 2019

Shailendra Kumar Awasthi ...Petitioner
Versus
Addl. Commissioner Lucknow Mandal
Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Sri Girish Datt Pandey.

Counsel for the Respondents:
C.S.C., Sri Rajesh Kumar Singh.

U.P. Land Revenue Code, 2006- Sections
35(2)- U.P. Land Revenue Act, 1901Section 210- Against the order passed in the
mutation proceedings u/s. 35(1)-Petitioner
filed revision u/s. 210 of the Code of 2006Dismissed on the ground of availability of
alternative
remedy-appeal
u/s.
35(2)-the
appellate order-subject matter of revision.
On the other hand, if the original order of
mutation u/s. 34 of the U.P. Land Revenue Act
1901-appeal to be filed u/s. 210 of the said
Act of 1901-thereafter revision u/s. 219.

Held :- the Court finds that the original order
was passed under section 34 of the Act of
1901, to facilitate the ends of justice the
appeal filed under section 35(2) of the Code,
2006 in this case would be treated as having
been
preferred
under
section
210
and
consequent to this judgment, as this Court is
inclined to quash the impugned order dated
16.07.2019 the revision filed with reference to
section 210 of the Code be treated as revision
under section219 of the Act of 1901 shall now
be considered and decided accordingly.
Writ Petition Disposed of (E-8)

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. The short point involved herein is
as to whether a revision would lie under
section 210 of the U.P. Land Revenue
Code 2006 (hereinafter referred as 'Code
2006') against an appellate order passed
under section 35(2) arising out of
mutation proceedings or not.

3. The Additional Commissioner has
dismissed the revision of the petitioner
filed under section 210 of the Code 2006
on the ground that against the original
order passed in the mutation proceedings
an appeal lies under section 35(2) of the
Code 2006, therefore, revision under
section 210 of the Code 2006 would not
be maintainable in view of the wording of
the said provision.

4. The contention of the learned
counsel for the petitioner is that the
revisional
court
has
misread
and
misunderstood the provision contained in
section 210. Words used therein "in which
no appeal lies" would have to be applied
in the context of the appellate order and
not the original order and as no appeal lies
against the order under section 35(2),
therefore, the remedy lies only by way of
a revision under section 210. He says that
if the interpretation given to the provision
contained in section 210 by the Revisional
Court is accepted, the revisional provision
under section 210 would be rendered
otiose.

5. Learned counsel for the opposite
party no.4 Sri Rajesh Kumar Singh on
being confronted addressed the Court on
1638 INDIAN LAW REPORTS ALLAHABAD SERIES
the merits of the order impugned in the
revision, which is not required to be seen
by this Court and ultimately submitted
that the revision itself be ordered to be
decided at the earliest.

6. Having heard the learned counsel
for the parties and having perused the
relevant provisions of law, the Court finds
that a revision under section 210 would
lie against a proceeding in which no
appeal lies, meaning thereby, if, as in this
case arising out of original proceedings
which were under section 35 of the Code
2006 for mutation where an appeal was
preferred under section 35(2) against the
original order passed under section 35(1)
and the same was dismissed, then, against
such appellate order, if no appeal lies,
then a revision would be maintainable.
Now it is not in dispute that under the
Code 2006 no appeal is prescribed against
an order passed under section 35(2),
therefore, a revision under section 210 of
the Code 2006 would be maintainable

7. The Additional Commissioner has
clearly misread and misunderstood the
provisions contained in section 210 by
reading the words "in which no appeal lies"
in the context of the original order passed
under section 35(1) in mutation proceedings
and as an appeal lies against such an order
under section 35(2), therefore, he has
proceeded to hold that a revision would not
lie under section 210 of the Code 2006
which is not a correct understanding of the
legal position. The words "in which no
appeal lies" would have to be read and
applied in the context of the appellate order
passed under section 35(2) which would be
the subject matter of the revision, and not
the original order even if the same is also
under challenge, when the revision has been
preferred after availing the remedy of
appeal under section 35(2), as is the case
herein.

8. The legal position with regard to
section 210 having been clarified above,
the Court finds that the original order of
mutation was passed under section 34 of
the U.P. Land Revenue Act 1901 and not
under section 35 of the Code 2006,
therefore, the appeal which may have been
filed under section 35(2) of the Code 2006
should have actually been filed under
section 210 of the U.P. Land Revenue Act
1901 and thereafter the revision would lie
under section 219 of the said Act 1901,
therefore, to facilitate the ends of justice
the appeal filed under section 35(2) of the
Code 2006 in this case would be treated as
having been preferred under section 210 of
the Act 1901 and consequent to this
judgment, as this Court is inclined to quash
the impugned order dated 16.7.2019, it is
provided that the revision which may have
been filed with reference to section 210 of
the Code 2006 shall be treated as a revision
under section 219 of the Act 1901 and shall
now be considered and decided accordingly.
This does not change the legal position with
regard to the maintainability of the
petitioner's revision as even under section
219 of the Act 1901 it would be
maintainable in view of the provision
contained therein. With these observations
the impugned order, Annexure-1 to the writ
petition, is quashed. The revision of the
petitioner shall be restored to its original
number and shall be considered and decided
in accordance with law at the earliest say
within six months from the date a certified
copy of this order is submitted.

9.

With
the
above
observations/directions the writ petition is
disposed off.
----------
2 All. Arun Kumar Shukla Vs State of U.P. & Ors.
1639
(2019)10ILR A 1639

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.08.2019

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 18200 of 2019

Arun Kumar Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashwani Kumar.

Counsel for the Respondents:
C.S.C., Sri Amit Singh, Sri Shampurna
Nand Shukla, Vishal Tahlani.

A.
Service
Law
-
challenging
the
recommendation
of
Departmental
Promotion Committee for promotion on
the post of Chief Engineer - where the
criteria for promotion is merit, bench mark
for the promotion has to be fixed - no
benchmark was fixed - contrary to the law
as also the Government Order dated
20.11.2017 - recommendation non est in
the eyes of law. (Para 15)

Writ Petition allowed (E-10)
Cases referred:-
1. Naveen Kapoor Vs St of U.P. & ors (2019) 4
AWC 3236
2. Om Prakash Pathak & anr Vs St of U.P. &
ors (2019) (4) AWC 3236
3. Santosh Kumar Agnihotri Vs St of U.P. & ors
(2018) 6 AWC 6125 (LB)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Kapil Dev, learned
Senior Advocate assisted by Sri Ashwani
Kumar, learned counsel for the petitioner,
Sri Ran Vijay Singh, learned Addl. Chief
Standing
Counsel
for
the
Staterespondents and Sri Shampurna Nand
Shukla, learned counsel for opposite party
no.3, Sri Amit Singh and Sri Vishal
Tahlani, learned counsel for the private
opposite party i.e. opposite party no.4.

2. By means of this petition, the
petitioner has assailed the recommendation of
the Departmental Promotion Committee (for
short "DPC") given in its meeting held on
11.6.2019 for promotion on the post of Chief
Engineer making request that the record of the
DPC may be summoned. The petitioner has
also assailed the order dated 2.8.2019 passed by
opposite party no.1 and the consequential order
dated 3.8.2019 passed by opposite party no.3,
which are contained in Annexures No.7 & 8 to
the writ petition, whereby the private
respondent has been promoted on the post of
Chief Engineer.

3. Submission of learned counsel for
the petitioner is that the aforesaid DPC
dated
11.6.2019
has
given
recommendation for promotion on the
post of Chief Engineer without fixing any
bench mark.

4. This Court vide order dated
23.7.2019 directed for production of the
record. The order dated 23.7.2019 is as
follows:-

"Heard learned counsel for the
petitioner.

As per submission of learned
counsel for the petitioner, the promotion
has been made without fixing any bench
mark, which is not permissible in the eyes
of law.