# Smt. Akeedan v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1486
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-27
- **Case number:** Writ-C No. 11568 of 2023
- **Bench:** Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-akeedan-v-state-of-u-p-ors-50552
- **Pages:** 16

## Headnote

Civil Law - U.P. Land Revenue Act, 1901 -
Sections 34, 35, 210 & 223 - U.P. Revenue
Code, 2006 - Sections 35(2) & 231 -
Mutation
Proceedings
-
Restoration
Application - Applicability of Repealed Act
- Jurisdiction of Sub Divisional Officer -
Principles of Natural Justice - Substantial
Justice Vs Technicalities.

Held:

## Text

_Characters 0–39,965 of 50,539. This is a partial read: ask again with offset=39965 for what follows._

1486 INDIAN LAW REPORTS ALLAHABAD SERIES
with Rule 76 of Rules 2021. For the
convenience the Rule 58 and Rule 76 are
quoted herein below:

"Rule 58 of the 2021 Rules:
Whoever contravenes the provisions of rule
3 shall on conviction be punishable with
imprisonment of either description for a
term which may extend up to five years or
with fine which shall not be less than of 2
lacs rupees per hectare and which may
extend to five Lacs rupees per hectare of
the area, or with both.

Rule 76 of the 2021 Rules: (1)
No Court shall take cognizance of any
offence punishable under these rules except
on a compliant in writing of the fact
constituting such offence by the District
Officer or by any officer authorized by him
in this behalf.

(2) No court inferior to that of a
Magistrate of the first class, shall try any
offence under these rules."

8. As per the Rule 58 of 2021, the
penalty is to be imposed for contravening
the provisions of Rule 3 of 2021 Rules,
which is specifically mentioned in the
impugned order and Rule 76 provides that
it is to be passed by the Magistrate of the
first class.

9. The Magistrate of the first class has
been defined under Section 3 (3)(a) Cr.P.C.
The same is quoted below:

"3. Construction of references.-

.........

(3) Unless the context otherwise
requires, any reference in any enactment
passed before the commencement of this
Code,-

(a) to a Magistrate of the first
class, shall be construed as a reference to a
Judicial Magistrate of the first class;"

10. In view of the above, the
Magistrate of first class has been
defined in the Cr.P.C. 1973. It is
undisputed that the respondent no.3 is
not court of the Magistrate of the first
class
which
alone
could
take
cognizance of the matter and hence the
order passed by him under Rule 58 of
2021 Rules is without jurisdiction and
liable to be quashed.

11. In view of the facts and
circumstances of the present case, the writ
petition is allowed and impugned orders
dated 4.7.2023 and 24.6.2023 are hereby
quashed.

12. At this stage, learned Additional
Chief Standing Counsel submits that liberty
may be given to the State to proceed
against the petitioner in accordance with
law. It goes without saying that liberty is
always available to proceed in accordance
with law.
----------
(2023) 8 ILRA 1486
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2023

BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Writ-C No. 11568 of 2023

Smt. Akeedan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Aditya, Sri Diwakar Prasad
Tiwari, Sri Ramesh Chandra Tiwari
8 All. Smt. Akeedan Vs. State of U.P. & Ors.
1487
Counsel for the Respondents:
C.S.C., Sri Jayant Prakash Singh, Sri H.N.
Singh (Sr. Adv.)

Civil Law - U.P. Land Revenue Act, 1901 -
Sections 34, 35, 210 & 223 - U.P. Revenue
Code, 2006 - Sections 35(2) & 231 -
Mutation
Proceedings
-
Restoration
Application - Applicability of Repealed Act
- Jurisdiction of Sub Divisional Officer -
Principles of Natural Justice - Substantial
Justice Vs Technicalities.

Held:
1. The restoration proceedings initiated
under the U.P. Land Revenue Act, 1901, for
a mutation case decided in 2005, are
governed by the provisions of the 1901 Act
as per Section 231 of the U.P. Revenue
Code,
2006,
which
saves
pending
proceedings
or
those
revived
through
restoration, treating them as continuations
of
the
original
proceedings.
The
term
"otherwise"
in
Section
231
includes
restoration proceedings, and the Tehsildar's
order
dated
19.12.2022,
restoring
the
mutation case, was validly passed under the
1901 Act, despite citing provisions of the
2006 Code.

2. The Sub Divisional Officer (SDO) was
competent to entertain the appeal under Section
35(2) of the U.P. Revenue Code, 2006, as
powers of the Collector under Section 210 of the
1901 Act were delegated to the SDO vide
Notification No. U.O. 877/I/(104)/75-Ra-1 dated
24.01.1976, issued under Section 223 of the
1901 Act.The writ petition challenging mutation
proceedings is maintainable under Article 226 of
the Constitution when issues of jurisdictional
competence or violation of principles of natural
justice are involved. Mutation proceedings are
summary in nature and do not determine title,
which must be adjudicated by a competent civil
court.

Writ Petition Allowed.

Cases Discussed:

1. Smt. Kalawati Vs Board of Revenue (2022) 4
ADJ 578
2. Madhav Pandey Vs Board of Revenue (2002)
2 AWC 1311

3.
Smt.
Hadisul
Nisha
Vs
Additional
Commissioner (Judicial), Faizabad (2021) 6 ADJ
176

4. M/S Godrej Sara Lee Ltd. Vs Excise and
Taxation Officer (AIR Online 2023 SC 76)

5. Whirlpool Corporation Vs Registrar of Trade
Marks (1998) 8 SCC 1

6. Lakshmi Prashad Vs Commissioner (Judicial),
Varanasi (2016) 11 ADJ 18

7. S.K. Kashyap Vs St. of Raj. (AIR 1971 SC
1120)

8. Anand Kumar Singh Vs St. of U.P. (2017) 6
ADJ 728

9. Isha Beevi Vs Tax Recovery Officer (AIR 1975
SC 2135)

10 B.S. Sheshagiri Setty Vs St. of Karnataka
(2016) 2 SCC 123
11. St. of Punjab Vs Shamlal Murari (1976) 1
SCC 719

12. Jitendra Singh Vs St. of M.P. (2021) 0
Supreme (SC) 487

13. Charan Singh Vs St. of U.P. (2019) 6 ADJ 52

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

1. Heard Sri Ramesh Chandra Tiwari
and Sri Diwakar Prasad Tiwari, learned
counsels for the petitioner and Sri Anshul
Nigam, learned Standing Counsel for the
State-respondent nos. 1, 2 & 3. Sri H.N.
Singh, leaned Senior Advocate assisted by
Sri Jayant Prakash Singh, learned counsel
for the respondent nos. 4 to 8.

2. The present writ petition has been
filed seeking a writ in the nature of
certiorari to quash the impugned orders
1488 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 15.03.2023 and dated 06.02.2023,
passed by the Commissioner, Moradabad
Division, Moradabad (respondent no. 2)
and
the
Sub
Divisional
Magistrate,
Sambhal (respondent no. 3), respectively.

3. The factual matrix of the case in
brief is that admittedly the properties
bearing Khata No. 77, plot no.34/0.059
hectare, Khata No. 233 plot no. 173/0.146,
Khata No. 235 plot no. 177/0.425 and
Khata No. 236 plot no. 175A /0.032 and
plot no. 176/0.016, total 0.048 from two
plots and plot no. 175B/0.028, 176B/0.012
hectare total 0.040 from two plots situated
at Mohalla Chaudhary Sarai, District
Sambhal and Khata No. 81 plot no.
208/5/1.967 situated in Village Sher Khan
Sarai and Khata No. 43 plot no. 34/0.623
situated at Bhawani Das Sarai, District
Sambhal (hereinafter referred to as plots)
were recorded in the name of Kallu alias
Kallan, resident of Chaudhary Sarai,
Sambhal, District Sambhal.

4. The petitioner is the wife of late
Kallu alias Kallan and she is in continuous
possession over the plots in question. While
the respondent no. 4 to 7 are the nephews
(sons of the brother) of late Kallu and the
respondent no. 8 is the daughter of late
Kallu. After the death of said Kallu alias
Kallan, the respondent nos. 4 to 8
(hereinafter collectively referred to as the
respondents) instituted a case under Section
34/35 of the U.P. Land Revenue Act, 1901
for mutation in respect of the plots in
question and the same was registered as
Case No. 849, 850 and 851 in the year 2005
before
the
Tehsildar
Sambhal.
The
aforesaid applications for mutation were
filed by the respondents on the strength of a
registered Will Deed dated 17.08.1998 in
favour of the respondents. The Tehsildar
Sambhal, vide order dated 29.04.2005
allowed the aforesaid mutation cases and
accordingly, the names of the respondents
were entered in the revenue record
replacing the name of late Kallu alias
Kallan.

5. The submission of the learned
counsel for the petitioner is that the
petitioner is continuously in peaceful
possession of the properties in question
since the life time of her husband and she
had no knowledge of the aforesaid order of
mutation dated 29.04.2005 until the year
2022. She for the first time came to know
about the said mutation order dated
29.04.2005 through her counsel from a
pending proceeding instituted by the
private respondents under Section 31/32
(Zaheer Ahmad vs. State). As soon as she
became aware of the aforesaid order of
mutation
dated
29.04.2005,
she
immediately moved an application for
restoration on 30.04.2022 on the ground
that since the order dated 29.04.2005
passed by the Court of Tehsildar Sambhal,
was an ex-parte order and the same was
passed even without issuing any notices to
the legal heirs of Kallu alias Kallan, as
such, the same being an ex-parte order is
liable to be recalled. On the aforesaid
application
dated
30.04.2022
for
restoration, the Tehsildar Sambhal, issued
notices to the private respondents. In
pursuance to the said notices, the present
respondent Nos. 4 to 8 appeared before the
court of Tehsildar and filed their objection
against
the
aforesaid
restoration
application.

6. On the basis of the material
available on record, the Tehsildar Sambhal
vide order dated 19.12.2022, allowed the
said restoration application preferred by the
petitioner and recalled the earlier mutation
order
dated
29.04.2005
and
fixed
8 All. Smt. Akeedan Vs. State of U.P. & Ors.
1489
27.12.2022 for the evidence in the case and
also directed for the endorsement of the
said order in the revenue record.

7. Against the aforesaid order dated
19.12.2022,
the
present
respondents
preferred an Appeal under Section 35(2) of
the U.P. Revenue Code, 2006 before the
Sub
Divisional
Officer,
Sambhal
(respondent no. 3) which was registered as
Appeal No. 15996/2022 (Zaheer Ahmad
versus Akeedan), mainly on the ground that
the respondents are the successors of the
late Kallu alias Kallan on the basis of a
registered Will, which has never been
challenged by the petitioner and further that
the aforesaid restoration application is
highly belated as the same has been filed
after a lapse of about 17 years and that the
question of delay has not been taken into
consideration by the Tehsildar while
allowing the restoration application.

8. In exercise of the powers under
Section 35(2) of the U.P. Revenue Code,
2006, the Sub Divisional Officer vide order
dated 06.02.2023 allowed the said Appeal
No. 15996/2022 and set aside the order
dated 19.12.2022 passed by the Tehsildar,
by means of which the aforesaid restoration
application
was
allowed
and
further
directed to maintain the entries in the
revenue records that were made in
pursuance of the earlier order dated
29.04.2005,
passed
by
the
learned
Tehsildar Sambhal.

9. Aggrieved by the said order dated
06.02.2023 passed by the Appellate Court
in Appeal No. 15996/2022, the petitioner
preferred a revision under Section 210 of
the U.P. Revenue Code, 2006 before the
learned
Commissioner,
Moradabad
Division primarily on the ground that the
appeal filed by the respondents was not
maintainable under Section 35(2) of the
U.P. Revenue Code, 2006, and moreover
the Sub Divisional Officer was not
competent to decide the said appeal in the
light of the provisions of Section 231 of
U.P. Revenue Code, 2006, as the said
appeal could have only be entertained by
the Collector under Section 210 of the U.P.
Land Revenue Act, 1901. Learned counsel
for the petitioner further contended that the
learned Appellate Court has failed to
appreciate that the question of delay is
merely a technical aspect while the
petitioner, being the widow is the lawful
heir and successor of late Kallu alias Kallan
and has a bona fide claim over the plots in
question, as such the technicalities ought
not to have come in the way of substantial
justice. The petitioner also disputed the
genuineness of the Will dated 17.08.1998
on the basis of which the entire proceeding
of mutation was initiated.

10. The learned Commissioner,
Moradabad Division (respondent no. 2) by
means of the impugned order dated
15.03.2023 upheld the Appellate Court's
order dated 06.02.2023 passed by the Sub
Divisional Officer and dismissed the said
revision at the admission stage itself.
Aggrieved by the aforesaid orders dated
06.02.2023 as well as dated 15.03.2023, the
petitioner has preferred the instant writ
petition.

11.

Learned
Senior
Advocate
appearing on behalf of the respondents, at
the very outset, raised an objection
regarding the maintainability of the writ
petition and submitted that the writ petition
under Article 226 of the Constitution of
India in the proceedings relating to the
mutation is not entertainable. He relied
upon the judgment and order passed by this
Court, in the case of Smt. Kalawati versus
1490 INDIAN LAW REPORTS ALLAHABAD SERIES
Board of Revenue and others 2022 (4)
ADJ 578. He contended that the writ
petition
under
Article
226
of
the
Constitution of India may be entertained
against the order passed in the mutation
proceedings only where the order or the
proceedings are wholly without jurisdiction
or the order suffers from some patent
jurisdictional error and further where there
has been a violation of principal of natural
justice.

12. Sri Anshul Nigam, learned
Standing Counsel, appearing for the Staterespondents has also raised preliminary
objection regarding the maintainability of
the writ petition on the ground that since
the proceedings, in the instant case, have
arisen from the application being filed
under Section 34 of the U.P. Revenue
Code, 2006 for the mutation in the revenue
records and the said proceedings being
summary in nature, the instant writ petition
is not maintainable.

13. Per Contra, the contention of the
learned counsel for the petitioner is that the
order dated 29.04.2005 passed by the
Tehsildar Sambhal is an ex-parte order as the
same was passed at the back of the petitioner
depriving her the opportunity of hearing. He
further submits that since in the present writ
petition the maintainability of proceedings of
the above mentioned appeal before the Sub
Divisional Officer (respondent no.3), as well
as the order dated 15.03.2023 passed in the
revision by the Commissioner are under
challenge on the ground of jurisdictional
competence and as such the objections
regarding the maintainability of the writ
petition as raised by the respondent counsels
are not sustainable.

14. In the case of Madhav Pandey
and others versus Board of Revenue and
others; reported in 2002 (2) AWC 1311;
this Court has held that the mutation
proceeding is summary in nature and a writ
petition against the summary proceeding is
not entertainable under Article 226 of the
Constitution of India. In para 26 of the said
judgment, it has been very categorically
held as under:

"...there is no need to consider
the question as to whether the revisional
court has committed any error in exercise
of jurisdiction. Assuming for argument sake
that there is some error in exercise of
jurisdiction by the Board of Revenue, the
said error will not make the order without
jurisdiction. As held above, the writ
petition arising out of the summary
proceedings, can be entertained only when
there is lack of jurisdiction. It being not a
case of lack of jurisdiction, no interference
is called for in the impugned order on the
basis of the above submission of the
counsel for the petitioners."

15. In the case of Smt. Hadisul Nisha
versus
Additional
Commissioner
(Judicial), Faizabad and Ors.; reported in
2021 (6) ADJ 176; this Court has carved
out certain exceptions per which the writ
petition would be maintainable even
against
orders
passed
in
summary
proceedings despite the said order having
been affirmed/ set aside by the Appellate
Court and Board of Revenue. For the sake
of conveyance, para 19 wherein the said
proposition has been laid down, is indicated
below:

"19. The Courts in the aforecited
decisions have laid down a few parametres
for entertaining writs arising out of
mutation proceedings. The exceptions that
have been carved out being very few, for
example:-
8 All. Smt. Akeedan Vs. State of U.P. & Ors.
1491

i)
If
the
order
is
without
jurisdiction;

ii) If the rights and title of the
parties have already been decided by the
competent court, and that has been varied
by the mutation courts;

iii) If the mutation has been
directed not on the basis of possession or
simply on the basis of some title deed, but
after entering into a debate of entitlement
to succeed the property, touching into the
merits of the rival claims;

iv) If rights have been created
which are against statutory provisions of
any Statute, and the entry itself confers a
title on the petitioner by virtue of the
provisions of the U.P. Zamindari Abolition
and Land Reforms Act;

v) Where the orders impugned in
the writ petition have been passed on the
basis of fraud or misrepresentation of facts,
or by fabricating the documents by anyone
of the litigants.

vi) Where the courts have not
considered the matter on merits for
example the courts have passed orders on
restoration applications etc (Vijay Shankar
v Addl Commissioner; 2015 (33) LCD
1073)"

16. A similar view has been taken by
this Court in the case of Smt. Kalawati
versus Board of Revenue and others;
reported in 2022: AHC: 48201.

17. The question of maintainability of
the writ petition has been dealt with by the
Hon'ble Apex Court in the case of M/S
Godrej Sara Lee Ltd. versus Excise and
Taxation
Officer-cum
Assessing
Authority; AIR Online 2023 SC 76 by
relying upon in the case of Whirlpool
Corporation Private Ltd. Versus State of
U.P. and others 1990 (8) SCC 1, held that:

"6. At the end of the last century,
this Court in paragraph 15 of the its decision
reported in (1998) 8 SCC 1 (Whirpool
Corporation v. registrar of Trade Marks,
Mumbai) carved out the exceptions on the
existence whereof a Writ Court could be
justified in entertaining a writ petition despite
the party approaching it not having availed
the alternative remedy provided by the
Statute. The same read as under:

(i) where the writ petition seeks
enforcement of any of the fundamental
rights;

(ii) where there is violation of
principles of natural justice;

(iii) where the order or the
proceedings
are
wholly
without
jurisdiction; or

(iv) where the vires of an act is
challenged."

18. After taking into consideration the
submissions made by the learned counsel
for the parties on the maintainability of the
writ petition, this Court is of the view that
since in the instant case the question of
violation of principles of natural justice and
the
jurisdictional
competence
of
the
authority passing the impugned orders are
involved as such in the light of the law laid
down by the Hon'ble Supreme Court as
well as by this Court as mentioned above
the objections raised by the learned counsel
for
the
respondents
regarding
the
maintainability of the writ petition are not
sustainable and is accordingly turned down.
1492 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Now, on the merits of the case,
the learned counsel for the petitioner
submits that while dismissing the revision,
the Commissioner did not consider the
legal questions that were raised before him
and has entered into the question of
genuineness of the Will which was beyond
the competence of Revenue Court.

20. He further submits that the legal
issue as raised in revision before the
learned Commissioner was, that the appeal
filed before the Sub Divisional Officer,
under Section 35(2) of the U.P. Revenue
Code, 2006, was not at all maintainable in
view of the provision of Section 231 of the
U.P. Revenue Code, 2006. The Sub
Divisional Officer entertained the aforesaid
Appeal No. 15996/2022 filed by the
respondents dehors of jurisdiction.

21. Per contra, learned Senior
Advocate appearing for the respondents
submitted that the learned Sub Divisional
Officer has rightly entertained Hehe He
kjnthe said appeal filed by the respondents
as the same was against the order dated
19.12.2022
passed
by
the
Tehsildar
concerned who passed the order under
Section 34/35 of the U.P. Revenue Code,
2006, and the appeal against which lies
before the Sub Divisional Officer under
Section 35(2) of the U.P. Revenue Code,
2006. Learned Sr. Advocate has drawn the
attention of this Court to the restoration
application dated 30.04.2022 filed by the
petitioner as contained in annexure no.3 to
the writ petition, to show that the same was
filed under Section 34 of the Land Revenue
Act, 1901 and the order dated 19.12.2022
passed by the Tehsildar concerned as
contained in annexure no.4 to the writ
petition, was passed in exercise of power
under Section 34/35 of the U.P. Revenue
Code, 2006. The contention of the learned
counsel for the respondents is that at the
time when the restoration application was
filed before the Tehsildar, no proceedings
were pending and as such the provisions of
Section 231 of the U.P. Revenue Code,
2006 will not be applicable as the same is
applicable only in respect of the pending
proceedings. He further submits that in the
instant case, the mutation case was decided
way back on 29.04.2005 and that order
attained
finality
as
the
same
was
incorporated in the revenue record. He
further
submits
that
the
restoration
application filed by the petitioner was not
at all maintainable as the same was filed
under the provisions of the old Act i.e. U.P.
Land Revenue Act, 1901, which was
repealed after the enforcement of the U.P.
Revenue Code, 2006, that came into force
on 11.02.2016, and the respondents rightly
filed the appeal before the Sub Divisional
Officer on 23.12.2022 under the provision
of the U.P. Revenue Code, 2006 and as
such there is no illegality or infirmity in the
order dated 06.02.2023 passed by the Sub
Divisional Officer (respondent no.3).

22. Sri Anshul Nigam, learned
Standing Counsel for the State has justified
the orders passed by the learned Sub
Divisional Officer (respondent no.3) and
the learned Commissioner (respondent
no.2), as the same have been passed
perfectly in accordance with law.

23. In view of the aforesaid factual
matrix and in the light of the provision of
Section 231 of the U.P. Revenue Code,
2006, a question arises whether proceeding
of restoration initiated on the application
dated 30.04.2022 filed by the petitioner,
were to be carried out under the provisions
of the Land Revenue Act, 1901 or under
the provision of U.P. Revenue Code, 2006
which came into force w.e.f. 11.02.2016?
8 All. Smt. Akeedan Vs. State of U.P. & Ors.
1493

24. The provision of Section 231 of
the U.P. Revenue Code, 2006 that deals
with the applicability of the said Code of
2006 to the pending proceedings. For ready
reference, Section 231 of the U.P. Revenue
Code, 2006 is reproduced below:

"Applicability of the Code to
pending
proceedings.-
(1)
Save
as
otherwise expressly provided in this Code,
all
cases
pending
before
the
State
Government
or
any
Revenue
Court
immediately before the commencement of
this Code, whether in appeal, revision,
review or otherwise, shall be decided in
accordance with the provisions of the
appropriate law, which would have been
applicable to them had this Code not been
passed.

(2) All cases pending in any civil
court
immediately
before
the
commencement of this Code which would
under this Code be exclusively triable by a
revenue court, shall be disposed of by such
civil court according to the law in force
prior to the date of such commencement."

25. This Court invited the assistance
of Sri Pankaj Kumar Gupta, Advocate, a
prominent lawyer of this Court, to address
on the above mentioned legal issue.

26. Sri Gupta submitted that the
intention of the legislature is very much
clear from the language of Section 231 of
the U.P. Revenue Code, 2006 that all cases
pending before the State Government or
any Revenue Court immediately before the
commencement of the U.P. Revenue Code,
2006; whether any appeal, revision, review
or
otherwise,
shall
be
decided
in
accordance with the provisions of the
appropriate law, which would have been
applicable had the U.P. Revenue Code,
2006 not been passed. He emphasized
the word 'otherwise' used in the Section
231 of U.P. Revenue Code, 2006 and
submits that in the instant case, after the
restoration of the mutation case (Case
No. 849/850/851 of 2005), by the
Tehsildar vide order dated 19.12.2022,
the said proceedings stood revived and
restored to the position as that of
29.04.2005. He submitted that the word
'otherwise' as used in the Section 231 of
U.P. Revenue Code, 2006 fully covers
the proceedings of restoration, recall,
second appeal etc. He placed before this
Court
the
Circular
No.
6101/12L(1)/2017 dated 03.11.2020. Para 5 of
the said circular is quoted below:

"........उ० प्र० राजस्व संहिता, 2006
यथासंशोहित 2016 की िारा 231 (1) में प्राहविाहित व्यवस्था
के क्रम में अिीिस्थ राजस्व न्यायालयों में योहजत िोिे वाले सभी
राजस्व वादों का पंजीकरण हकया जाय एवं अपील व पुिरीक्षण
आहद के पंजीकरण व अन्य अग्रेत्तर काययवािी मूल वाद के सुसंगत
अहिहियमों (यथा-उ०प्र० भू-राजस्व अहिहियम-1901, उ० प्र०
जमीं० हव० अहि०-1950 एवं उ० प्र० राजस्व संहिता 2006
यथासंशोहित 2016 आहद) की संगत िाराओं में िी की जायँ एवं
समस्त आदेश बार कोड़ युक्त आदेश-पत्रक पर िी पाररत हकये
जायें।"

27. Sri Gupta further submitted that
para 5 of the above mentioned circular is
nothing but a clarification of the Section
231 of the U.P. Revenue Code, 2006.

28. This Court in the case of
Lakshmi Prashad versus Commissioner
(Judicial) Varanasi Region and Ors.;
reported in 2016 (11) ADJ 18 has held
that appeal and revision is continuation of
the proceedings and therefore, any appeal
or revision against an order passed under
the repealed Act will be considered as
proceedings in continuation of the repealed
Act itself.
1494 INDIAN LAW REPORTS ALLAHABAD SERIES

For ready reference para No. 8 to
11 of Lakshmi Parashad case (supra) are
reproduced below:

".......8. The question therefore,
which arises for consideration is as to the
provision whereunder, an order passed in
proceedings under Section 34 of the U.P.
Land Revenue Act can be challenged once
the Revenue Code, 2006 has been enforced.

9. The contention of learned
counsel for the petitioner is that afterthe
repeal of the U.P. Land Revenue Act, by
enforcement of the U.P. Revenue Code,
2006, any appeal or revision, necessarily
lies in accordance with the provision
contained in the Revenue Code, 2006, and
not in accordance with the provisions of the
repealed Act.

10. From deciding this issue,
Section 231 of the U.P. Revenue Code,
2006 is relevant and the same is extracted
below:

"Section 231: Applicability of the
Code to pending proceedings.-(1) Save as
otherwise
expressly
provided
in
this

Code, all cases pending before the
State Government or any revenue court
immediately before the commencement of
thisCode, whether in appeal, revision,
review or otherwise, shall be decided in
accordance with the provisions of the
appropriate law, which would have been
applicable to them had this Code not been
passed.

(2) All cases pending in any civil
court
immediately
before
the
commencement of this Code which would
under this Code be exclusively triable by a
revenue court, shall be disposed of by such
civil court according to the law in force
prior to the date of such commencement."

11. Sub-section 1 of Section 231
quoted above, is in my considered opinion
absolutely categorical. Therefore, an order
on an application under Section 34 of the
U.P. Land Revenue Act, is
appealable
and revisable in accordance with the
provisions of the U.P. Land Revenue Act,
itself and, therefore, the provision of
Section 210 as also Section 219 of the U.P.
Revenue Act are attracted and can be
invoked even after the enforcement of the
U.P. Revenue Code, 2006."

29. Section 231 of U.P. Revenue
Code, 2006 is very categorical. It begins
with the word "save as otherwise expressly
provided in this Code" that defines the
extent of applicability of the U.P. Revenue
Code, 2006 to the pending proceedings. It
is evident from the language of Section 231
of the U.P. Revenue Code, 2006 that the
remedies available under the entire Code of
2006 in respect of proceedings that were
instituted before the Revenue Courts under
the old enactment which was repealed by
U.P. Revenue Code, 2006 have been saved.

30. Further, the word "pending
proceeding" used in section 231 of the U.P.
Revenue Code, 2006 means all the cases
pending before the State Government or
any revenue court immediately before the
commencement of this Code and reflects
the clear legislative intention to cover all
the matters that have not been concluded.

31. The Supreme Court of India in the
case of S.K. Kashyap and Ors. Versus
State of Rajasthan; reported in AIR
1971 SC 1120, has defined the word
"pending".
The
relevant
extract
of
8 All. Smt. Akeedan Vs. State of U.P. & Ors.
1495
paragraph 25 of the said judgment is
reproduced as under:

"........(25)-
.....................The
word 'pending' will ordinarily mean that
the matter is not concluded and the court
which has cognizance of it can make an
order on the matter in issue. The test is
whether any proceedings can be taken jn
the cause before the court or tribunal
where it is said to be pending. The answer
is that until the case is concluded it is
pending.................."

32. In the present case, once the
Tehsildar vide order dated 19.12.2022
restored and proceeding of the mutation
case, the said proceedings stood revived
and assumed the position as that was of
29.04.2005.

33. The aforementioned Circular No.
6101/12-L(1)/2017 dated 03.11.2020 issued
by the Government of U.P. also clarifies
the legal position that all the subsequent
proceedings including the Appeal or
Review etc. to be carried out in accordance
with the provisions of the Acts in which
they were instituted.

34. Section 231 of the U.P. Revenue
Code, 2006 provides that the nature of
pending cases to which this provision
applies are appeal, revision, review or
otherwise.

35. Section 6 of the U.P. General
Clauses Act, 1904 also supports the said
view. For ready reference of the provision
of Section 6 of the U.P. General Clauses
Act, 1904 is reproduced herein-below:

"Effect of repeal- Where any
(Uttar Pradesh) Act repeals any enactment
hitherto made or hereafter to be made,
then, unless a different intention appears,
the repeal shall not-

(a) revive anything not in force or
existing at the time at which the repeal
takes effect; or

(b) affect the previous operation
of any enactment so repealed or anything
duly done or suffered thereunder; or

(c) affect any right, privilege,
obligation or liability acquired, accrued or
incurred under any enactment so repealed;
or

(d) affect any penalty, forefeiture
or punishment incurred in respect of any
offence committed against any enactment
so repealed; or

(e) affect any remedy or any
investigation
or
legal
proceeding
commenced before the repealing Act shall
have come into operation in respect of any
such right, privilege, obligation, liability,
penalty, forefeiture or punishment as
aforesaid."

36. The Sub-clause (e) of Section 6
very clearly provides that the repeal of an
Act
shall
not
affect
any
remedy,
investigation
or
legal
proceeding
commenced before the repealing Act. Any
such remedy may be enforced and any such
investigation or legal proceeding may be
constituted and concluded and any such
penalty, forefeiture or punishment imposed
will be considered as if the Repealing Act
had not been passed. Simply put, if any
legal remedy arises out of a proceeding
under the Act of 1901, then, such legal
proceeding will be governed by the Act of
1901 as if the Repealing code of 2006 had
not been passed.
1496 INDIAN LAW REPORTS ALLAHABAD SERIES

37. This Court in the case of Anand
Kumar Singh & Ors. v. State of U.P. &
Ors. 2017 (6) ADJ 728 has held as under:

"20. Thus, if Section 231 of U.P.
Revenue Code, 2006 saves the pending
proceedings
under
the
previous
enactments, in my considered opinion, the
remedies
available
under
the
whole
enactment in respect of proceedings
instituted before the subordinate revenue
courts under previous enactments will also
be saved.

21. The language employed under
sections 230 and 231 of U.P. Revenue
Code, 2006 suggests that it is not only the
proceedings pending under the previous
enactments on the date the Code came into
operation that have been saved but other
provisions of the previous enactments have
also been saved including the provision
containing judicial remedies, such as
remedies available under sections 210 and
219 of U.P. Land Revenue Act and the
remedies available under sections 331 and
333 of U.P.Z.A. and L.R. Act."

38. As such, in the light of the
provisions contained in Section 231 of U.P.
Revenue Code, 2006 and also taking into
account the provisions contained in Section
6 of the General Clauses Act, it is clear that
the remedy as provided under Section 210
of U.P. Land Revenue Act will be available
to person aggrieved against the order
passed by the subordinate courts under U.P.
Land Revenue Act, 1901 in the proceedings
instituted before enforcement of U.P.
Revenue Code, 2006, even if they are
concluded after enforcement of U.P.
Revenue Code, 2006.

39. In view of the above, the position
that emerges is that the restoration proceeding
is covered within the word 'otherwise' as
used in Section 231 of the U.P. Revenue
Code, 2006. As such, the restoration
application moved by the petitioner under the
provisions of the old Act i.e. U.P. Land
Revenue Act, 1901 was perfectly in
accordance with law and the Tehsildar
concerned has rightly entertained the same
and passed the order dated 19.12.2022.

40. Learned counsel for the petitioner
has raised another issue that the order dated
06.02.2023 passed by the Sub Divisional
Officer under Section 35(2) of the U.P.
Revenue Code, 2006 is without jurisdiction
as he was not competent to entertain and
decide the appeal under the provisions of
Section 35(2) of the U.P. Revenue Code,
2006, whereas Section 210 of the U.P. Land
Revenue Act, 1901, empowers the Collector
to entertain the appeal.

41. The relevant portion of Section
210 of the U.P. Land Revenue Act, 1901 is
quoted below:

"Courts to which appeals lie. -
[(1) Appeal shall lie under this Act as
follows :]

(a) to the Record Officer from
orders passed by any Assistant Record
Officer;

[(b) (i) to the Commissioner from
orders passed by a Collector or an
Assistant Collector first class or Assistant
Collector in charge of sub-division.

(ii) to the Collector from orders
passed by an Assistant Collector second
class or Tahsildar.]

(c) [* * *]

(2) [* * *]
8 All. Smt. Akeedan Vs. State of U.P. & Ors.
1497

(3) [* * *]

(4) [* * *]

(5) [* * *]

[(6) No appeal shall lie against
an order passed under Sections 28, 33, [* *
*], 39 or 40.]"

42. Sri Anshul Nigam, learned
Standing Counsel appearing for the State
has vehemently opposed this contention of
the petitioner and submits that as per
Section 223 of the U.P. Land Revenue Act,
1901, the State Government is empowered
to delegate the powers and duties of the
Collector to the Assistant Collector/Sub
Divisional Officer of the concerned area.
For that purpose, the State Government
issued a notification being Notification No.
U.O. 877/I/(104)/75-Ra-1 dated 24.01.1976
by which the State Government has
empowered
the
Sub
Divisonal
Officers/Assistant Collectors to perform the
duties and power of the Collector in
concerned Tehsil/area.

43. Section 223 of the U.P. Land
Revenue Act, 1901 reads as under:

"Investment of Assistant Collector
with powers of Collector. - The [State
Government] may confer on any Assistant
Collector of the first class all or any of the
powers of a Collector, and all powers so
conferred shall be exercised subject to the
control of the Collector of the district."

44. The learned Standing Counsel has
placed
the
Notification
No.
U.O.
877/I/(104)/75-Ra-1
dated
24.01.1976
issued by the State Government. The
relevant portion of the said Notification is
quoted below:

"Under Section 223 of U.P. Land
Revenue Act, 1901 (U.P. Act No. III of
1901),
the
State
Government
has
empowered all the Assistant Collectors of
First class incharge of sub-division to
discharge the functions of collector under
section 210 of the Act in areas in respect of
which notifications have been issued."

45. In view of the aforesaid position,
the contention of the learned counsel for
the petitioner that the Sub Divisional
Officer was not competent to pass the order
dated 06.02.2023, is not sustainable.

46 . In the case of Charan Singh v.
State of U.P. & Ors. 2019 (6) ADJ 52, a
similar yet different question has been
referred by a co-ordinate bench of this
Court to a larger bench. The question
framed by this Court is as follows:

"Whether when Section 231 of
the Code specially states that only such
proceedings which were pending before the
commencement of the Code would be
decided in accordance with provisions of
the law passed in those proceedings be
governed by the previous enactment i.e. the
U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950 or by the provisions of
the U.P. Revenue Code, 2006."

47. However, as the controversy in
the present case does not relate to either
appeal or revision and is restricted to the
issue
of
whether
the
restoration
proceedings would be considered as a
pending or a fresh proceeding. As such, the
question involved in the present case is
different from the question involved in the
case of Charan Singh (supra).

48. The next question that has been
raised by the learned counsel for the
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner is that the learned Appellate
Court has decided the appeal without
framing the issues as is provided under
Para 20 of the U.P. Revenue Court Manual,
which reads as under:

"Framing of issues- (1) Issues
arise when a material proposition of fact or
law is affirmed by one party and denied by
the other.

(2) Material propositions are
those propositions of law or fact which a
plaintiff must allege in order to show a
right to sue or a defendant, must allege in
order to constitute his defence.

(3) Each material proposition
affirmed by one party and denied by the
other shall form the subject of a distinct
issue.

(4) Issues are of two kinds (a)
issues of fact, and (b) issues of law.

(5) At the first hearing of suit the
court shall after reading the plaint and the
written statements, if any, after such
examination of the parties as may appear
necessary, ascertain upon what material
propositions of fact or of law the parties
are at variance, and shall thereupon
proceed to frame and record the issues on
which the right decision of the case appear
to depend.

(6) Nothing in this rule requires
the court to frame and record issues where
the defendant at the first hearing of the suit
makes no defence."

49. Sri Pankaj Kumar Gupta,
Advocate has drew the attention of this
Court to Section 225-A of the U.P.
Revenue Code, 2006 that deals with the
determination of questions in summary
proceedings which provides that all the
questions arising for determination in any
summary proceeding under this Code shall
be decided upon affidavit in the prescribed
manner.

50. For ready reference, Section 225A of U.P. Revenue Code, 2006 is
reproduced as under:

"225-A
Determination
of
questions in summary proceeding.-

Notwithstanding
anything
contained in other provisions of this Code,
all the questions arising for determination
in any summary proceeding under this
Code shall be decided upon affidavits, in
the manner prescribed:

Provided that if Revenue Court or
Revenue Officer is satisfied that the cross
examination of any witness, who has filed
affidavit, is necessary, it or he may direct
to produce the witness for such cross
examination."

51.