# Shiv Bachan Yadav & Ors. 192 INDIAN LAW REPORTS ALLAHABAD SERIES v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 191
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-27
- **Case number:** Writ B No. 2741 of 2023
- **Bench:** Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-bachan-yadav-ors-192-indian-law-reports-allahabad-series-v-state-of-u-p-ors-50908
- **Pages:** 12

## Headnote

A. Revenue Law - Appeal Under U.P.
Revenue Code, 2006 - Maintainability -
Petitioners challenged the Board of Revenue's
order dated 06.07.2023 and the Commissioner's
order dated 26.10.2021, admitting an appeal
(No. 177 of 2020) without a certified copy of the
decree - Held, Section 207 of the U.P. Revenue
Code, 2006, read with Rule 182 of the U.P.
Revenue Code Rules, 2016, allows an appeal to
be filed with a certified copy of either the order
or decree, unless dispensed with by the court -
The appeal, accompanied by the certified copy
of
the
order
dated
14.10.2020,
was
maintainable despite the delayed filing of the
decree on 15.03.2022, as Rule 182 provides
flexibility, unlike the mandatory requirement
under Order XLI Rule 1, CPC, per Amarjeet Vs
St. of U.P.. (Paras 13, 18, 24, 25, 34, 36, 38)

B.
Statutory
Interpretation
-
Applicability of Code of Civil Procedure,
1908 - Petitioners argued that the appeal was
defective for not including the decree, as
required under Order XLI Rule 1, CPC,
applicable via Section 214 of the U.P. Revenue
Code, 2006 - Held, Section 214 and Rule 188 of
the U.P. Revenue Code Rules, 2016, with a nonobstante clause, exclude CPC provisions when
express provisions exist in the Revenue Code -
Section 207 and Rule 182 provide a selfcontained procedure for appeals, overriding CPC
requirements, as supported by Maru Ram Vs
U.O.I. and ICICI Bank Ltd. Vs SIDCO Leathers
Ltd.. (Paras 15, 19, 20, 21, 23, 27, 28, 29, 34,
35)

C. Non-Obstante Clause - Legislative
Intent - Petitioners contended that CPC
provisions, particularly Order XLI Rule 1, apply
to appeals under the Revenue Code due to
Section 214 - Held, the non-obstante clause in
Rule 188 prioritizes the Revenue Code's
provisions
over
the
CPC
when
express
provisions exist - The clear language of Section
207 and Rule 182 indicates legislative intent to
allow appeals with either an order or decree,
interpreted in their natural sense, per A.R.
Antulay Vs R.S. Nayak and Sussex Peerage
Claim. (Paras 27, 28, 30, 31, 32, 34, 36)

D.
Judicial
Review
-
Validity
of
Appellate Proceedings - Petitioners argued
that the appeal's prayer to set aside the "Order
Decree dated 14.10.2020" was defective, as the
decree was dated 19.10.2020 - Held, the Board
of Revenue correctly upheld the appeal's
maintainability, as the certified copy of the order
was filed, and the decree was later submitted
with
an
explanation
for
delay
-
The
Commissioner's order admitting the appeal was
procedural and did not warrant interference
under Article 226, as per M/s Goderej Sara Lee
Ltd. Vs Excise and Taxation Officer. (Paras 11,
12, 13, 16, 38)

E. Revenue Law - Procedural Flexibility in
Appeals - Petitioners claimed the appeal was
inherently defective for not initially including the
decree - Held, Rule 182's provision allowing the
court to dispense with the certified copy of the
decree provides procedural flexibility - The
contesting respondents' subsequent filing of the
decree
on
15.03.2022,
with
an
affidavit
explaining the delay, cured the defect, and the
appeal was rightly entertained, consistent with
Jagat Dhish Bhargava Vs Jawahar Bhargava.
(Paras 12, 13, 16, 24, 36)

Writ
Petition
Dismissed-
Appeal
Maintainable.

List of Cases cited:

## Text

1 All. Shiv Bachan Yadav & Ors. Vs. State of U.P. & Ors.
191
themselves that there is a legal basis and
justifiction for taking and persuing action
against the accused under the Act of 1986. At
the stage of approval of the gang-chart, the
approving Authority has to be satisfied that a
case for action under the Act of 1986 is made
out and that satisfaction should be reflected
from the gang chart and other records. But in
this
case,
the
competent
authorities,
unhesitatingly just paid lip service to the
legislative mandate and unfortunately had
undertaken the whole exercise of preparation
and approval of the gang chart as a ritualistic
formality without due application of mind.

27. From perusal of records, it is also
apparent that Mr. Neeraj Jain purchased the
disputed land regarding which the base case
was registered and resultantly Gangster Act
was imposed on the applicants. Neeraj Jain
contested the civil case at the very stages i.e.
Board of Revenue, High Court and even upto
Supreme Court, from which, it is apparent
that he has taken resort to lawful means by
way of litigation in the civil and revenue
courts. By no stretch of imagination, it can be
inferred and said that by indulging in civil
litigation, it can be said that applicants have
indulged in anti-social activities. Moreover, it
is also noteworthy that applicants are not
party to the civil litigation. Neeraj Jain who
has faught and still fighting civil case has not
been made accused which shows that District
Magistrate
has
arbitrarily
selected
the
applicants while imposing Gangster Act
against them. No reasons whatsoever have
been given with respect of Neeraj Jain who
has not been prosecuted if the intention was
there to damage and destroy the Government
Property. Thus, civil dispute relating to land
has been given colour and flavour of
criminality and is unnecessarily given shape
of act of gangsterism and anti social activities
on the part of police and administrative
authorities. Report submitted by the Tehsildar
called by the Investigating Officer also does
not show that applicants are having too much
property except their parental houses. Apart
from this case, applicants do not have any
criminal
history.
The
initiation
and
continuation
of
the
entire
criminal
proceedings is persecution and harassment of
the accused, amounting to be sheer abuse of
process of law as well as abuse of process of
court, that is in order to otherwise ensure the
ends of justice is liable to be quashed.

28. In such view of the matter, the
entire proceedings of Special Case No.113 of
2018 (State Vs. Ranjan Mittal and another)
arising out of case crime/FIR No.125 of
2018, under Sections 2/3 of U.P. Gangster
and Anti-Social Activities (Prevention) Act,
1986, Police Station-Kotwali Nagar, DistrictMuzaffar Nagar, which is pending in the
court of Special Judge, Gangster Act/5th
Additional District and Sessions Judge,
Muzaffar Nagar along with impugned
charge-sheet dated 03.09.20218 as well as
cognizance order dated 26.09.0218 is, hereby,
quashed against the applicants namely Rajeev
Agarwal and Ranjan Mittal.

29. The Applications are, accordingly,
allowed.

30. A copy of this order be sent back
to the lower court forthwith.
----------
(2024) 1 ILRA 191
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.10.2023

BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Writ B No. 2741 of 2023

Shiv Bachan Yadav & Ors. ...Petitioners
192 INDIAN LAW REPORTS ALLAHABAD SERIES
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Anil Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Pradeep Singh, Sri Virendra
Kumar Jaiswal, Manish Dev Singh

A. Revenue Law - Appeal Under U.P.
Revenue Code, 2006 - Maintainability -
Petitioners challenged the Board of Revenue's
order dated 06.07.2023 and the Commissioner's
order dated 26.10.2021, admitting an appeal
(No. 177 of 2020) without a certified copy of the
decree - Held, Section 207 of the U.P. Revenue
Code, 2006, read with Rule 182 of the U.P.
Revenue Code Rules, 2016, allows an appeal to
be filed with a certified copy of either the order
or decree, unless dispensed with by the court -
The appeal, accompanied by the certified copy
of
the
order
dated
14.10.2020,
was
maintainable despite the delayed filing of the
decree on 15.03.2022, as Rule 182 provides
flexibility, unlike the mandatory requirement
under Order XLI Rule 1, CPC, per Amarjeet Vs
St. of U.P.. (Paras 13, 18, 24, 25, 34, 36, 38)

B.
Statutory
Interpretation
-
Applicability of Code of Civil Procedure,
1908 - Petitioners argued that the appeal was
defective for not including the decree, as
required under Order XLI Rule 1, CPC,
applicable via Section 214 of the U.P. Revenue
Code, 2006 - Held, Section 214 and Rule 188 of
the U.P. Revenue Code Rules, 2016, with a nonobstante clause, exclude CPC provisions when
express provisions exist in the Revenue Code -
Section 207 and Rule 182 provide a selfcontained procedure for appeals, overriding CPC
requirements, as supported by Maru Ram Vs
U.O.I. and ICICI Bank Ltd. Vs SIDCO Leathers
Ltd.. (Paras 15, 19, 20, 21, 23, 27, 28, 29, 34,
35)

C. Non-Obstante Clause - Legislative
Intent - Petitioners contended that CPC
provisions, particularly Order XLI Rule 1, apply
to appeals under the Revenue Code due to
Section 214 - Held, the non-obstante clause in
Rule 188 prioritizes the Revenue Code's
provisions
over
the
CPC
when
express
provisions exist - The clear language of Section
207 and Rule 182 indicates legislative intent to
allow appeals with either an order or decree,
interpreted in their natural sense, per A.R.
Antulay Vs R.S. Nayak and Sussex Peerage
Claim. (Paras 27, 28, 30, 31, 32, 34, 36)

D.
Judicial
Review
-
Validity
of
Appellate Proceedings - Petitioners argued
that the appeal's prayer to set aside the "Order
Decree dated 14.10.2020" was defective, as the
decree was dated 19.10.2020 - Held, the Board
of Revenue correctly upheld the appeal's
maintainability, as the certified copy of the order
was filed, and the decree was later submitted
with
an
explanation
for
delay
-
The
Commissioner's order admitting the appeal was
procedural and did not warrant interference
under Article 226, as per M/s Goderej Sara Lee
Ltd. Vs Excise and Taxation Officer. (Paras 11,
12, 13, 16, 38)

E. Revenue Law - Procedural Flexibility in
Appeals - Petitioners claimed the appeal was
inherently defective for not initially including the
decree - Held, Rule 182's provision allowing the
court to dispense with the certified copy of the
decree provides procedural flexibility - The
contesting respondents' subsequent filing of the
decree
on
15.03.2022,
with
an
affidavit
explaining the delay, cured the defect, and the
appeal was rightly entertained, consistent with
Jagat Dhish Bhargava Vs Jawahar Bhargava.
(Paras 12, 13, 16, 24, 36)

Writ
Petition
Dismissed-
Appeal
Maintainable.

List of Cases cited:

1. Amarjeet Vs St. of U.P., 2021 (151) RD 345

2. Banarsi Vs Ram Phal, (2003) 9 SCC 606

3. Harishankar Vs Jay Deyee, (2000) 39 ALR
120 (All)

4. M/s Goderej Sara Lee Ltd. Vs Excise and
Taxation Officer, AIR 2023 SC 781

5. Jagat Dhish Bhargava Vs Jawahar Bhargava,
AIR 1961 SC 832
1 All. Shiv Bachan Yadav & Ors. Vs. State of U.P. & Ors.
193
6. Maru Ram Vs U.O.I., (1981) 1 SCC 107

7. ICICI Bank Ltd. Vs SIDCO Leathers Ltd.,
(2006) 10 SCC 452

8. Iridium India Telecom Ltd. Vs Motorola Inc.,
(2005) 2 SCC 145

9. A.R. Antulay Vs R.S. Nayak, (1988) 2 SCC 602

10. Emperor Vs Baldeo, AIR 1940 All 263

11. Sussex Peerage Claim, (1844) 11 Cl & Fin
85; 8 ER 1034 (HL)

(Delivered by Hon'ble Syed Qamar Husain
Rizvi, J.)

1. Heard Sri Anil Kumar Mishra,
learned Counsel for the petitioners, Sri
Manish Dev Singh along with Sri V.K.
Jaiswal,
learned
counsels
for
the
respondent nos. 4 to 22, Sri Awadhesh
Kumar Patel, learned Standing Counsel for
the State-respondents no. 1 to 3 and Sri
Pradeep SingSh, learned Counsel for
respondent no. 23-Gaon Sabha.

2. The respondents no. 25 to 31 are the
proforma respondents. As they are the
plaintiffs in the Suit in question along with
the petitioners as such, notice is not
necessarily required to be issued to them as
their
claims
are
conjoined
with
the
petitioners.

3. With the consent of the learned
counsel for the parties, this Court proceeds
to decide the present Writ Petition at the
admission stage itself.

4. By means of the present writ
petition, the petitioner has prayed for the
following relief:

"(i) issue a writ in the nature of
certiorari quashing the impugned order
dated 06.07.2023 (Annexure No.7) passed
by the respondent no. 2 and order dated
26.10.2021 (Annexure No. 6) passed by
respondent no. 3 together with quash the
entire proceeding of Appeal No. 177 of
2020,
Computerize
No.
C202016000000177 (Ram Lakhan Yadav
and others versus Ramjatan Yadav and
others),
pending
in
the
Court
of
Commissioner,
Vindhyachal
Division,
Mirzapur/respondent no. 3.

(ii) issue any other writ, order or
direction which this Hon'ble Court may
deem fit and proper in the circumstances of
the case."

5. The relevant facts leading to the
instant Writ Petition, as narrated by the
parties are that the petitioners filed a Suit
under Section 229-B/176 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 before the Sub Divisional
Officer/ Assistant Collector Ist Class,
Robertganj,
Sonebhadra
against
the
contesting respondents. The said Suit
(Ramjatan Yadav and others versus State of
U.P. and others) was registered as Case No.
RST/07803/2019 (Computerised Case No.
T- 201916660107803) and was decided
vide judgment and order dated 14.10.2020.

6. Aggrieved by the aforesaid
judgment and order dated 14.10.2020, the
contesting respondents preferred an Appeal
on 21.10.2020, under Section 207 of the
U.P. Revenue Code, 2006 before the
Commissioner,
Vindhyachal
Division,
Mirzapur (respondent no.3) which was
registered as Appeal No. 177 of 2020,
Computerised
No.
C202016000000177
(Ram Lakhan Yadav and others versus
Ramjatan Yadav and others).

7. The learned Court of Commissioner,
Mirzapur (respondent no.3) vide order
194 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 26.10.2021 accepted the aforesaid
Appeal, issued notices to the opposite
parties and summoned the records from the
learned Trial Court.

8. Pending the aforesaid Appeal, the
contesting respondents also filed a Revision
assailing the aforesaid judgment and order
dated 14.10.2020 passed by the Sub
Divisional Officer/ Assistant Collector Ist
Class, Robertganj, Sonebhadra. The said
Revision under Section 333 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 filed before the Board of
Revenue at Prayagraj (respondent no.2)
was registered as Revision No. 1651 of
2020.

9. The aforesaid Revision was
dismissed vide order dated 11.08.2021
passed by the learned Board of Revenue at
Prayagraj (respondent no.2), on the ground
that since the revisionist / petitioners have
already availed the remedy of Appeal
before the learned Court of Commissioner
and as such has exhausted the option of
filing the Revision before the learned
Board of Revenue. In view of the same the
said Revision is not maintainable.

10. The Petitioner then filed a
Revision under Section 210 of the U.P.
Revenue Code, 2006 before the learned
Board of Revenue (respondent no. 2)
assailing
the
aforesaid
order
dated
26.10.2021
passed
by
Court
of
Commissioner, Mirzapur (respondent no.3),
which
was
registered
as
Case
No.
REV/2674/2021/Sonebhadra.

11. By means of the aforesaid
Revision, the petitioners challenged the
Order dated 26.10.2021 whereby the
Commissioner,
Vindhyachal
Division,
Mirzapur (respondent no. 3) accepted the
Appeal No. 177 of 2020 for admission,
under Section 207 of the U.P. Revenue
Code, 2006, filed by the contesting
respondents wherein the "order decree
dated 14.10.2020" is under challenged. The
bone of contention as raised by the
petitioners in the said Revision is that the
memorandum
of
Appeal
does
not
accompany the certified copy of the decree,
as such, the said Appeal is liable to be
dismissed being inherently defective.

12. The contesting respondents on
15.03.2022 filed a copy of the decree dated
19.10.2020 prepared in pursuance of the
judgement and order dated 14.10.2020
along with an application duly supported
by an affidavit, inter alia, explaining the
reasons for not filing the said decree earlier
and praying for the condonation of delay in
filing the aforementioned decree before the
learned Court of Commissioner, Mirzapur
(respondent no. 3) in Appeal No. 177 of
2020.

13. The above-mentioned Revision
having
Case
No.
REV/2674/2021/Sonebhadra was dismissed
by
the
learned
Board
of
Revenue
(respondent no. 2) vide order dated
06.07.2023. While dismissing the said
revision, the learned Board of Revenue
recorded a categorical finding that Rule
182 of the U.P. Revenue Code Rules, 2016
clearly provides that an appeal or revision
preferred against any order or decree
passed under any provisions of the Code, is
maintainable provided a certified copy of
such order or decree is accompanied with
the memorandum of appeal or revision,
unless such copy is dispensed with by the
court or officer concerned and therefore,
First Appeal under Section 207 of the U.P.
Revenue
Code,
2006
is
very
well
maintainable against a final order or decree
1 All. Shiv Bachan Yadav & Ors. Vs. State of U.P. & Ors.
195
passed in any suit, application or the
proceedings mentioned therein. Since the
certified
copy
of
the
order
dated
14.10.2020 passed by the Sub Divisional
Officer has been filed along with the
memorandum of appeal although the
certified
copy
of
the
decree
dated
19.10.2020 has not been annexed in the
appeal,
even
then
the
Appeal
is
maintainable.

14. Being aggrieved by the aforesaid
order dated 06.07.2023 passed by the
learned Board of Revenue (respondent
no.2) in Revision having Case No.
REV/2674/2021/Sonebhadra
and
order
dated
26.10.2021
passed
by
the
Commissioner, Mirzapur (respondent no. 3)
in Appeal No. 177 of 2020, the petitioners
preferred the instant writ petition.

15. The contentions as raised by Sri
Anil Kumar Mishra, learned Counsel for
the petitioners are as under:

15.1.
He
submits
that
the
statutory
provisions
of
appeal
under
Section 207 of the U.P. Revenue Code,
2006 read with Rule 182 of the U.P.
Revenue Code Rules, 2016 provides a bar
to entertain an appeal, in absence of the
decree and even Section 331(3) of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 provides that an appeal shall lie
against a decree. Since in the present case,
certified
copy
of
the
decree
dated
19.10.2020 has not been filed along with
the memorandum of appeal, the Appeal No.
177 of 2020 is liable to be dismissed as not
maintainable.

15.2. It has been contended by the
learned counsel for the petitioner that
Section 207 of the U.P. Revenue Code,
2006 is a substantive provision and its
corresponding Rule 183 of the U.P.
Revenue Code Rules, 2016 does not
specify the necessary documents that
should accompany the memorandum of
appeal. Therefore, the said Section is to be
read in the light of Section 214 of the U.P.
Revenue
Code,
2006
whereby
the
provisions of Code of Civil Procedure,
1908 shall apply in respect of the appeal as
provided under Section 207 of the U.P.
Revenue Code, 2006. Since, the Order XLI
Rule 1 of Code of Civil Procedure, 1908
deals with the procedure of filing an appeal
wherein it is mandatory for the appellant to
file a certified copy of the decree along
with the memorandum of appeal, this
mandate is indispensable unless leave for
the same is granted by the appellate court
as per the proviso to Sub-Rule 2 of Rule 1
in Order XLI Rule 1 of the Code of Civil
Procedure, 1908. His contention is that as
the procedure for filing an appeal under
Section 207 of the U.P. Revenue Code,
2006 is governed by the Code of Civil
Procedure, 1908, it was thus, mandatory for
the appellant/contesting respondents to file
a certified copy of the decree along with
the memorandum of appeal.

15.3. Further, he submitted that
Section 214 of the U.P. Revenue Code,
2006 read with and Rule 109 of the U.P.
Revenue Code Rules, 2016 provide that,
unless otherwise expressly provided by or
under the U.P. Revenue Code, 2006, the
provisions of the Code of Civil Procedure,
1908 shall apply to every suit and plaint for
division for holdings, then, an appeal
arising out of a suit and plaint of division of
several holdings under Section 207 of the
U.P. Revenue Code, 2006 will also be
governed by the Code of Civil Procedure,
1908 and specifically by Section 96 of
Code of Civil Procedure, 1908 read with
Order XLI Rule 1.

15.4. He further argued that an
Appeal lies only against a decree and not
196 INDIAN LAW REPORTS ALLAHABAD SERIES
against a judgment as provided under Section
96 of the Code of Civil Procedure, 1908. In
support of his submission, he relied upon the
judgment passed by the Hon'ble Supreme
Court in the case of Banarsi versus Ram
Phal reported in (2003) 9 SCC 606 and
Harishankar versus Jay Deyee reported in
(2000) 39 ALR 120 (Alld.).

15.5.
It
has
been
further
submitted by the learned counsel for the
petitioners that in view of the provisions of
Order XLI Rule 1 of the Code of Civil
Procedure,
1908
as
amended
vide
Allahabad High Court Amendments; the
Court may, for sufficient reasons, accept a
memorandum of appeal without a copy of
decree appealed from, if the counsel for the
appellant certifies that a copy of the same
will be filed subsequently within the time
granted by the Court. However, it is an
admitted fact that no decree was prepared
prior
to
19.10.2020,
while
the
appellant/contesting respondents in the
appeal have prayed for the quashing of the
order dated 14.10.2020 and nowhere
mentioned in the entire memorandum of
appeal, the explanation for not challenging
the decree dated 19.10.2020 or have
explained the reason for non-filing of the
same along with the appeal.

15.6. Further, he argued that
throughout the proceeding upto the Board
of
Revenue,
the
appellant/contesting
respondents did not disclose the fact that
they have filed the decree before the Court
of
learned
Commissioner,
Mirzapur
(respondent no. 3) and for the first time by
means of the supplementary affidavit dated
08.08.2023,
the
appellants/contesting
respondents have brought this fact on
record before this Court that they have filed
the said decree dated 19.10.2020 before the
Appellate Court on 15.03.2022; that too
after a lapse of about 16 months.

15.7. Further, the prayer made in
the Appeal bearing Appeal No. 177 of 2020
is for setting aside the "Order Decree dated
14.10.2020" and since the Decree was
prepared on 19.10.2020, as such no decree
existed on 14.10.2020. As the basis of the
entire proceeding rests upon the prayer for
setting aside the "Order Decree", the
defective prayer as mentioned in the
Memorandum of Appeal in Appeal bearing
Appeal No. 177 of 2020 renders the entire
proceeding of the said Appeal illegal.

15.8.
In
support
of
his
contentions, the learned Counsel has placed
before this Court, a judgment passed by a
co-ordinate bench of this Court in the case
of Amarjeet versus State of U.P. reported
in 2021 (151) RD 345 and has prayed that
the present writ petition be decided in the
light of the said judgment.

16. Per contra, Sri Manish Dev Singh,
learned Counsel for the respondent nos. 4
to 22; opposing the instant writ petition
made the following submissions:

16.1. His first submission is that
the impugned order dated 26.10.2021
passed by the Commissioner, Mirzapur
(respondent no. 3) is an innocuous order by
means of which the aforesaid Appeal has
simply been entertained by issuing notices
to the opposite parties. The petitioners have
every opportunity to agitate the grounds
that have been raised in the present writ
petition; before the learned Commissioner,
Mirzapur (respondent no. 3) and on this
score, the present writ petition is not
entertainable in the light of the judgment
passed by the Hon'ble Supreme Court in
the case of M/s Goderej Sara Lee Ltd.
versus Excise and Taxation Officer, cum
Accessing authority and others, reported in
AIR 2023 SC 781.
1 All. Shiv Bachan Yadav & Ors. Vs. State of U.P. & Ors.
197

16.2. Further, he has refuted the
petitioner's argument regarding the nonfiling of the Decree dated 19.10.2020 along
with the Memorandum of Appeal. He
submits that the Decree dated 19.10.2020
as contained in Annexure 2 to the writ
petition is not a decree, as the same is not
in consonance with the draft of legislature
as provided under Order XX Rule 6 and
Rule 7 of the Code of Civil Procedure,
1908 and as such, the very basis of the
argument advanced by the learned counsel
for the petitioner is devoid of substance.

16.3.
Moreover,
the
learned
counsel has contended that the even if it is
assumed for the sake of argument that the
appeal was defective as it did not contain
the Decree, in that event, it was incumbent
upon the office of the appellate court to
point out the said defect, if any, and as such
negligence on part of the office concerned
does not prejudice the right of the parties
concerned/contesting
respondents.
In
support of his contention, he has relied
upon the judgment of the Hon'ble Supreme
Court in the case of Jagat Dhish Bhargava
versus Jawahar Bhargava reported in
AIR 1961 SC 832.

16.4. The learned Counsel for the
contesting respondents also urged that from
a bare perusal of Order XLI Rule 1 read
with
the
Allahabad
High
Court
Amendments and the amendment by the
Act No. 46 of 1999, came in effect from
01.07.2002,
that
provides
that
the
Memorandum
of
Appeal
must
not
necessarily be accompanied by a copy of
the decree rather the Memorandum of
Appeal must be accompanied by a copy of
the judgment and this alone is the
mandatory requirement under Order XLI
Rule 1 of the Code of Civil Procedure,
1908. It is not in dispute that in the instant
case, a copy of the impugned judgment
appealed against has been annexed with the
Memorandum of Appeal, it must, therefore,
necessarily be held that the appeal is
competent and has rightly been entertained.

17. I have heard the rival submissions
advanced on behalf of the parties and
perused the material available on record.

18. It is not disputed that the appeal in
question has been filed under section 207
of the U.P. Revenue Code, 2006. Therefore,
before entering into the question involved
in the instant writ petition, it is necessary to
appreciate the provisions of Section 207 of
the U.P. Revenue Code, 2006, for ready
reference,
the
same
is
extracted
hereinbelow,

"207. First appeal.- (1) Any
party aggrieved by a final order or decree
passed
in
any
suit,
application
or
proceeding specified in Column 2 of the
Third Schedule, may prefer a first appeal to
the Court or officer specified against it in
Column 4, where such order or decree was
passed by a Court or officer specified
against it in Column 3 thereof.

(2) A first appeal shall also lie
against an order of the nature specified -

(a) in Section 47 of the Code of
Civil Procedure, 1908; or

(b) in Section 104 of the said
Code; or

(c) in Order XLIII Rule 1 of the
First Schedule to the said Code.

(3) The period of limitation for
filing a first appeal under this section shall
be thirty days from the date of the order or
decree appealed against."

19. Although, from the perusal of the
aforesaid Section 207 (1) of the U.P.
Revenue Code, 2006, it is apparent that an
Appeal can be filed by any party aggrieved
by a final order or decree passed in any
198 INDIAN LAW REPORTS ALLAHABAD SERIES
suit, application or proceeding specified
therein. But, in order to deal with the
question posed by the learned counsel for
the petitioner that Section 207 is a
substantive provision and its corresponding
Rule 183 of the U.P. Revenue Code Rules,
2016 does not specify the documents
necessary to accompany the memorandum
of appeal, therefore, the provisions of
Order XLI Rule 1 of the Code of Civil
Procedure, 1908 shall apply to the appeal
under section 207 of the U.P. Revenue
Code, 2006, in the light of Section 214 of
the
U.P.
Revenue
Code,
2006,
the
following discussion has become necessary.

20. In order to determine this
question, it would be apt to go through
Section 214 of the U.P. Revenue Code,
2006 that deals with the applicability of the
Code of Civil Procedure, 1908 and the
Limitation Act,
1963.
For
a
ready
reference,
the
same
is
reproduced
hereinbelow,

"214. Applicability of the Code
of Civil Procedure, 1908 and Limitation
Act, 1963. -Unless otherwise expressly
provided by or under this Code, the
provisions of the Code of Civil Procedure,
1908 and the Limitation Act, 1963 shall
apply
to
every
suit,
application
or
proceedings under this Code."

The
corresponding
rule
to
the
aforesaid Section 214 relevant for the
present case is Rule 188 of the Uttar
Pradesh Revenue Code Rules, 2016.

For a ready reference, Sub-Rule (1) of
the same is extracted below,

"188. Provisions of the Code to
apply (Section 214). - (1) Where in
relation to any suit, application or
proceedings under the code, any express
provision has been made in the said code
or these rules or Regulations made
thereunder, the provisions of the Code,
these rules or regulations will apply,
notwithstanding anything contained in the
Code of Civil Procedure, 1908, or the
Limitation Act, 1963.

21. From a conjoint reading of the
aforesaid Section 214 of the U.P. Revenue
Code, 2006 and Rule 188 of the Uttar
Pradesh Revenue Code Rules, 2016, it is
apparent that the provisions of Code of
Civil Procedure, 1908 shall apply to any
suit, application or proceeding under the
U.P. Revenue Code, 2006 when no
'express' provision is provided in the U.P.
Revenue Code, 2006 in that regard.

22. The term 'express' has an explicit
connotation to it. The Constitutional Bench
of the Hon'ble Supreme Court in the case
of Maru Ram and others versus Union of
India and others, reported in (1981) 1
SCC 107 while discussing the phraseology
of the terms 'specific' and 'express'
referred to the Full Court judgment of this
Court in the case of Emperor versus
Baldeo reported in AIR 1940 All 263
wherein it was observed in paragraph 36
that,

"36. ...For a provision of a
statute to be an 'express' provision
affecting another statute or part of it, it
would have, I think, to refer in so many
words to the other statute or to the relevant
portion of it and also to the effect intended
to be produced on it. Failing this, it could
hardly be said to be 'express' ...."

23. The antithesis of the aforesaid
proposition is that for a specific purpose, a
Statute 'A' will not be applicable to another
Statute 'B' for that specific purpose when
1 All. Shiv Bachan Yadav & Ors. Vs. State of U.P. & Ors.
199
the provision for that specific purpose is
already present in the Statue 'B'. Therefore,
had there been no express provision for the
procedure of filing an appeal under the U.P.
Revenue Code, 2006, then, of course, the
provisions of the Code of Civil Procedure,
1908 would have been applied to appeals
filed under the U.P. Revenue Code, 2006 in
the light of Section 214 of the U.P.
Revenue Code, 2006.

24. It would not be out of place to
discuss the provisions of Rule 182 of the
Uttar Pradesh Revenue Code Rules, 2016.
For ready reference, the same is extracted
hereinbelow,

"182. Certified copy of the order
or decree to be enclosed. - Where an
appeal or revision against any order or
decree is preferred under any provision of
the Code, a certified copy of such order or
decree shall accompany the memorandum
of appeal or revision, unless such copy is
dispensed with by the Court or officer
concerned."

25. The aforementioned Rule 182
elucidates that the necessary documents
which should accompany the memorandum
of appeal preferred under the U.P. Revenue
Code, 2006, are a 'certified copy of such
order or decree'. From the bare reading of
the language of the Section 207 of the U.P.
Revenue Code, 2006 read with Rule 183 of
the Uttar Pradesh Revenue Code Rules,
2016, it is abundantly clear that the U.P.
Revenue Code, 2006 itself contains the
express provision in respect of the
modalities of filing an appeal and as such,
the provisions of section 214 of the U.P.
Revenue Code, 2006 is not attracted herein.

26. It is a well settled rule of
interpretation that in a situation when there
is a conflict between the provisions of
statues on the same issue, the provisions of
special statute shall prevail over the general
statute. A co-ordinate bench of this Court
has dealt with the said subject matter in
detail, in the case of Amarjeet (Supra),
wherein it has been held that the U.P.
Revenue Code, 2006 being a special law,
covering all land tenures and dealing with
land
revenue
and
matters
connected
therewith and incidental thereto while the
Code of Civil Procedure, 1908 is a general
law relating to procedures in cases which
are of civil nature. For a ready reference,
paragraph 50 of the said judgment in
reproduced hereinbelow,

"50. ...If we consider the Long
Title of UP Revenue Code 2006 which says
that it is an act to consolidate and amend
the law relating to land tenures and land
revenue in the State of U.P., and to provide
for matters connected therewith and
incidental thereto, it is evident that the Act
is a special law covering all land tenures
and dealing with land revenue and matters
connected
therewith
and
incidental
thereto."

27. Now coming to Rule 188 of the
U.P. Revenue Code Rules, 2016 that
contains a non-obstante clause that "Where
in relation to any suit, application or
proceedings under the code, any express
provision has been made in the said code
or these rules or Regulations made
thereunder, the provisions of the Code,
these rules or regulations will apply,
notwithstanding anything contained in the
Code of Civil Procedure, 1908, or the
Limitation Act, 1963".

28. It is to be noted that a nonobstante clause in a particular Section of
the statute adjoins two parts of the same
200 INDIAN LAW REPORTS ALLAHABAD SERIES
section to confer prevalence of one part
upon the other connected part of that
section, thereby granting an overriding
effect to one part of the section over other
part within the same section or any other
legislation which has been referenced in the
non-obstante clause. Essentially, it signifies
that despite the stipulations of the Act
mentioned in the non-obstante clause, the
provisions mentioned before the nonobstante clause will retain its full legal
effect, and the provisions listed in the nonobstante clause will not impede the
operation of the enactment or the provision
in which the non-obstante clause is
situated. Once a non-obstante clause has
been appended to a particular part of the
section it overrides the effect of the part of
the section to which it is appended
irrespective that the section or the statute to
which it refers enacted something to the
contrary. (Emphasis Supplied)

29. The Hon'ble Supreme Court in
the case of ICICI Bank Ltd. versus
SIDCO Leathers Ltd and others reported
in (2006) 10 SCC 452, while discussing the
effect of a non-obstante clause appended to
a section of a statute, observed that the nonobstante nature of a provision, although,
may be of wide amplitude, the interpretive
process thereof must be kept confined to
the legislative policy and must be given
effect to, to the extent that the Parliament
intended and not beyond the same.

30. Further, with the regards to the
legislative
intention
to
prevent
the
application of the Code of Civil Procedure,
1908 in respect of certain proceedings, the
Hon'ble Supreme Court in the case of
Iridium India Telecom Ltd.
versus
Motorola Inc. reported in (2005) 2 SCC
145 observed that the non-obstante clause
in a section is indicative of legislature's
intention to prevent the application of the
Code of Civil Procedure, 1908 in respect of
civil proceedings on the original side of the
High Courts, which are to be governed by
the Rules made by the High Court. These
rules which the High Court makes will
prevail over the rules contained in the Code
of Civil Procedure, 1908.

31. Therefore, it can be logically
concluded that a non-obstante clause is a
clear indicator of the intention of the
legislature with regards to the impact of the
non-obstante clause to the particular section
of the statute in which it is placed.

32. While interpreting a statute or a
provision of the statute, the intention of the
legislature must be borne in mind. If the
words of the statute are clear and
unambiguous, then such words should be
interpreted in their natural and ordinary
sense. This, in itself, best declares the
intention of the legislature. In this regard,
the passage from the judgment passed in
the case of Sussex Peerage Claim [(1844)
11 Ce & Fin 85, 143: 8 ER 1034 (HL)], as
quoted by the Constitutional Bench of the
Hon'ble Supreme Court in the case of A.R.
Antulay versus R.S. Nayak and another,
reported in (1988) 2 SCC 602 at
Paragraph 70, still holds the commonly
accepted view concerning the relationship
between the literal and mischief rules of
interpretation of statutes. The said passage
from the judgment passed in the case of
Sussex Peerage Claim (Supra), is also
quoted hereinbelow,

"The
only
rule
for
the
construction of Acts of Parliament is that
they should be construed according to the
intent of the Parliament which passed the
Act. If the words of the statute are in
themselves precise and unambiguous, then
1 All. Shiv Bachan Yadav & Ors. Vs. State of U.P. & Ors.
201
no more can be necessary than to expound
those words in that natural and ordinary
sense. The words themselves alone do, in
such case, best declare the intention of the
lawgiver. But if any doubt arises from the
terms employed by the legislature, it has
always been held a safe means of
collecting the intention, to call in aid the
ground and cause of making the statute,
and to have recourse to the preamble,
which, according to Chief Justice Dyer,
Stowell v. Lord Zouch [(1569) 1 Plowd
353, 369 : 75 ER 536] , is 'a key to open
the minds of the makers of the Act, and the
mischiefs which they intend to redress'."

33. Further, in the case of A.R.
Antulay (Supra), it was also categorically
held that the creation of rights requires
legislative authority. Courts cannot create
a right which has not been given by the
legislature. In a similar way, Courts cannot
take away a right granted by the
legislature unless such a right is in
contravention to any law for the time
being or such a right is ultra vires to the
basic structure of the Constitution of
India.

34. In the present case, Section 207
of the U.P. Revenue Code, 2006 read with
Rule 182 of the U.P. Revenue Code Rules,
2016 coupled with Section 214 of the U.P.
Revenue Code, 2006 read with Rule 188
of the U.P. Revenue Code Rules, 2016
makes it abundantly clear that there exists
an
express
provision
governing
the
substantive as well as the procedural
aspects regarding an appeal in and under
the U.P. Revenue Code, 2006 and in the
presence of this express provision of
appeal, the substantive and procedural law
regarding the appeal will be governed by
the said provisions mentioned in and under
the
U.P.
Revenue
Code,
2006,
notwithstanding any procedure regarding
the appeal enumerated in the Code of Civil
Procedure, 1908.

35. Now, having ruled out the
applicability
of
the
Code
of
Civil
Procedure, 1908 in respect of the appeals
under the U.P. Revenue Code, 2006, it has
come to light that the procedure for filing
an appeal under the U.P. Revenue Code,
2006 is self-contained, independent and
explicit.

36. Further, Rule 182 of the U.P.
Revenue Code Rules, 2016 clearly provides
that for filing an appeal or revision against
any order or decree, a certified copy of
such order or decree shall accompany the
memorandum of appeal or revision, unless
such copy is dispensed with by the Court or
officer concerned. The legislative intend in
this regard is abundantly clear from the
unambiguous
words
used
in
the
aforementioned Section 207 and Rule 182
(Supra) and as such the words mentioned
therein will be interpreted in their natural
and ordinary sense.

37. In so far as the contention raised
by the learned Counsel for the contesting
respondents regarding the correctness of
the Decree dated 19.10.2020 is concerned,
in the present set of facts and circumstances
as mentioned above, this Court does not
find it necessary to delve into the said
issue. However, it is open for the parties, if
they so desire, to raise the said issue before
the Appellate Court itself.

38. In view of all that is discussed
hereinabove, this Court does not find any
illegality in the impugned order dated
06.07.2023 passed by the learned Board of
Revenue (respondent no. 1) and the order
dated
26.10.2021
passed
by
the
202 INDIAN LAW REPORTS ALLAHABAD SERIES
Commissioner, Mirzapur (respondent no. 3)
and as such does not find any cogent reason
that warrants interference by this Court in
exercise of its powers under Article 226 of
the Constitution of India.

39. Accordingly, the writ petition is
dismissed.
----------
(2024) 1 ILRA 202
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SURENDRA SINGH-I, J.

Writ C No. 5726 of 2020

Devendra Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Mohd. Farooq

Counsel for the Respondents:
C.S.C.

A. Constitution of India,1950-Article 226Wild Life (Protection) Act, 1972-Sections
9,
44,
49-B,
50,
51-petitioner
filed
application for release of the vehicle
which was rejected by the Magistrate as
well as by the revisional court on the
ground that the prima facie vehicle was
used in the commission of the offence
made under the Act of 1972, therefore
under the provisions of section 39(1)(d),
the vehicle is the property of the State
Government and is not liable to be
released during the pendency of the trialHence,
learned
court
below
rightly
rejected the application.(Para 25 to 33)

The writ petition is dismissed. (E-6)

List of cases cited:
1. St. of M.P. & ors. Vs Madhukar Rao (2008) 14
SCC 624

2. St. of U.P & anr. Vs Lalloo Singh (2007) 7
SCC 334

(Delivered by Hon'ble Surendra Singh-I,
J.)

Heard Mohd. Farooq, learned counsel
for the petitioner and learned Standing
Counsel representing the State.

2. The prosecution case against the
petitioner, Devendra Kumar, and his son,
Prashant Vishnoi in brief is that on
receiving the information regarding illegal
storage of large quantity of hide, trophies
made of skulls and horn of prohibited forest
animals including their meat kept in 47
packets on 29.04.2017 at 01:30 p.m., a joint
team of officers of Directorate of Revenue
Intelligence and Forest Department, Meerut
Division, Meerut, raided the residence of
the petitioner, Devendra Kumar, and his
son, Prashant Vishnoi situated at 36/4, Civil
Lines, Meerut. From the room situated at
second floor of the house, hide of leopard,
hide and skull of black deer, horns of
sambar and deer in large quantity and a
knife with handle made of tusk, was
recovered. On the ground floor, meat of
prohibited wild animals kept in 47 packets
in freeze container (deep freezer) was also
recovered. Details of articles recovered is
as follows :-

(i) one hide of leopard

(ii) one hide of deer/antelope

(iii) one skull of large antelope

(iv) 3 horns of young large
antelope

(v) 9 deer skull with two horns

(vi) One deer skull with neck and
horn

(vii) 7 teeth of wild animals