# Smt. Reeta Devi v. The Board of Revenue & Ors

- **Citation:** (2023) 10 ILRA 846
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-B No. 695 of 2023
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-reeta-devi-v-the-board-of-revenue-ors-49540
- **Pages:** 18

## Headnote

Civil Law -U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Sections
229-B & 333 - U.P. Revenue Code,
2006 - Sections 144, 207, 210 & 231 -
U.P. Revenue Code Rules, 2016 - Rule
183(1)
-
Repeal
and
Savings
-
Applicability
of
Repealed
Act
to
Pending Proceedings - The petitioners,
Smt. Reeta Devi and another, challenged
the order dated 23.06.2023 passed by the
Board
of
Revenue,
U.P.,
dismissing
revisions (Case No. REV/1709/2020 and
REV/271/2020) as not maintainable under
Section 210 of the U.P. Revenue Code,
2006, and, in Writ-B No. 695 of 2023, also
challenged the order dated 22.09.2020
passed
by
the
Sub-Divisional
Officer
allowing
withdrawal
of
a
restoration
application. The revisions arose from a suit
under Section 229-B of the U.P. Zamindari
Abolition and Land Reforms Act, 1950,
instituted before the Code of 2006 came
into force on 11.02.2016.

Held: (1) The writ petitions were allowed,
and the impugned order dated 23.06.2023
was set aside. (2) Section 231 of the U.P.
Revenue Code, 2006 mandates that cases
pending
before
its
commencement,
including appeals, revisions, or reviews, be
decided under the law applicable prior to
the Code (i.e., the Act of 1950). (3) The
Board
of
Revenue
erred
in
applying
provisions of the Code of 2006 and Rules of
2016 to dismiss the revisions, as the suit
(Case No. 01 of 2014) was instituted under
Section 229-B of the Act of 1950, and
subsequent
proceedings,
including
the
revisions, should have been governed by
the Act of 1950 and its Rules of 1952. (4)
The remedy of revision under Section 333
of the Act of 1950 was available, as
supported by Anand Kumar Singh Vs St. of
U.P. (MANU/UP/1648/2017), Santu Vs St. of
U.P. (MANU/UP/3660/2019), Ram Sewak
Madan Mohan Vs Commissioner (2015 SCC
OnLine All 9552), M/s Martin and Harris Pvt.
Ltd. Vs Rajendra Mehta (2022) 8 SCC 527,
and ECGC Ltd. Vs Mokul Shriram EPC JV
(2022) 6 SCC 704. (5) The matter was
remanded to the Board of Revenue for fresh
consideration under the Act of 1950, to be
decided expeditiously.

Case Law Cited:

## Text

_Characters 0–39,916 of 60,661. This is a partial read: ask again with offset=39916 for what follows._

846 INDIAN LAW REPORTS ALLAHABAD SERIES
48 (3) of U.P. Consolidation of
Holdings
Act,Village-Rampur
Pargana-Kolasala, District-Varanasi is
hereby quashed.

97.

The
writ
petitions
are
allowed.

98.

In
the
facts
and
circumstances of the case, parties
shall bear their own cost.
----------
(2023) 10 ILRA 846
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.10.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-B No. 695 of 2023
with
Writ-B No. 951 of 2023

Smt. Reeta Devi ...Petitioner
Versus
The Board of Revenue & Ors.
 ...Respondents

Counsel for the Petitioner:
Amitesh Pratap Singh, Laxmi Narayan Gupta

Counsel for the Respondents:
C.S.C.

Civil Law -U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Sections
229-B & 333 - U.P. Revenue Code,
2006 - Sections 144, 207, 210 & 231 -
U.P. Revenue Code Rules, 2016 - Rule
183(1)
-
Repeal
and
Savings
-
Applicability
of
Repealed
Act
to
Pending Proceedings - The petitioners,
Smt. Reeta Devi and another, challenged
the order dated 23.06.2023 passed by the
Board
of
Revenue,
U.P.,
dismissing
revisions (Case No. REV/1709/2020 and
REV/271/2020) as not maintainable under
Section 210 of the U.P. Revenue Code,
2006, and, in Writ-B No. 695 of 2023, also
challenged the order dated 22.09.2020
passed
by
the
Sub-Divisional
Officer
allowing
withdrawal
of
a
restoration
application. The revisions arose from a suit
under Section 229-B of the U.P. Zamindari
Abolition and Land Reforms Act, 1950,
instituted before the Code of 2006 came
into force on 11.02.2016.

Held: (1) The writ petitions were allowed,
and the impugned order dated 23.06.2023
was set aside. (2) Section 231 of the U.P.
Revenue Code, 2006 mandates that cases
pending
before
its
commencement,
including appeals, revisions, or reviews, be
decided under the law applicable prior to
the Code (i.e., the Act of 1950). (3) The
Board
of
Revenue
erred
in
applying
provisions of the Code of 2006 and Rules of
2016 to dismiss the revisions, as the suit
(Case No. 01 of 2014) was instituted under
Section 229-B of the Act of 1950, and
subsequent
proceedings,
including
the
revisions, should have been governed by
the Act of 1950 and its Rules of 1952. (4)
The remedy of revision under Section 333
of the Act of 1950 was available, as
supported by Anand Kumar Singh Vs St. of
U.P. (MANU/UP/1648/2017), Santu Vs St. of
U.P. (MANU/UP/3660/2019), Ram Sewak
Madan Mohan Vs Commissioner (2015 SCC
OnLine All 9552), M/s Martin and Harris Pvt.
Ltd. Vs Rajendra Mehta (2022) 8 SCC 527,
and ECGC Ltd. Vs Mokul Shriram EPC JV
(2022) 6 SCC 704. (5) The matter was
remanded to the Board of Revenue for fresh
consideration under the Act of 1950, to be
decided expeditiously.

Case Law Cited:

1. Anand Kumar Singh Vs St. of U.P.,
MANU/UP/1648/2017;

2.
Santu
Vs
St.
of
U.P.,
MANU/UP/3660/2019;

3.
Ram
Sewak
Madan
Mohan
Vs
Commissioner, 2015 SCC OnLine All 9552;

4. M/s Martin and Harris Pvt. Ltd. Vs
Rajendra
Mehta,
(2022)
8
SCC
527;
10 All. Smt. Reeta Devi Vs. The Board of Revenue & Ors.
847
5. ECGC Ltd. Vs Mokul Shriram EPC JV, (2022) 6
SCC 704;

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

1. Heard learned counsel for the
petitioners
and
Shri
Hemant
Kumar
Pandey, learned State Counsel.

2. In WRIT - B No. - 695 of 2023, the
petitioner namely Smt. Reeta Devi has
assailed the order dated 23.06.2023 passed
by opposite party No. 1/Board of Revenue,
U.P., Lucknow, in Revision registered as
Case No.REV/1709/2020/Ghazipur linked
Case
No.REV/271/2020,
Computerized
Case No.20201429001709, (Smt. Reeta
Devi vs. Harikesh), which was preferred
under Section 333 of U.P. Zamindari
Abolition and Land Reforms Act, 1950 (in
short "Act of 1950"), however, the same
was registered under Section 210 of U.P.
Revenue Code, 2006 (in short "Code of
2006').

3. In Writ-B No. 695 of 2023, the
petitioner namely Smt. Reeta Devi has also
assailed the order dated 22.09.2020 passed
by the opposite party No. 2/Sub-Divisional
Officer, Tehsil-
Kashimabad,
District-
Gazipur
in
Case
No.
04418/2019,
Computerized
Case
No.
T201914291104418
[Basmati
(dead)
substituted Surendra, Raju, Chaturbhuj vs.
Harikesh], under Section 144 of the Code
of 2006, whereby, the opposite party No. 2
allowed the application dated 06.02.2019
for
withdrawal
of
application
for
restoration dated 30.06.2015, which itself
was allowed on 12.07.2018.

4. In Writ -B No.951 of 2023, the
petitioner has assailed the order dated
23.06.2023 passed by opposite party No.
1/Board of Revenue, U.P., Lucknow in
Case No.REV/1709/2020/Ghazipur linked
Case
No.REV/271/2020,
Computerized
Case No.20201429001709, (Smt. Reeta
Devi vs. Harikesh).

5. From the aforesaid as also specific
averments made in para 3 of both the
petitions, indicated above, the impugned
order dated 23.06.2023 in Writ - B No. 695
of 2023 relates to Revision No.1709 of
2020,
Computerized
Case
No.20201429001709, (Smt. Reeta Devi vs.
Harikesh) and in Writ - B No.951 of 2023,
the impugned order dated 23.06.2023
relates to Revision No. 271 of 2020,
Computerized Case No.R2020142900271.

6. It is apparent from the impugned
order(s) that revision(s), detailed above,
were dismissed being not maintainable
under Section 210 of the Code of 2006.

7. The revisional authority namely
Board of Revenue, Lucknow, U.P. while
dismissing
each
revision
considered
Section 144, which provides the remedy to
tenure holder to institute a case/suit seeking
declaration of his rights; Section 207,
which provides remedy of appeal and
Section 210, under which a revision can be
filed and also the Third Schedule of Code
of 2006 and the Rule 183(1) of U.P.
Revenue Code Rules, 2016 (in short "Rules
of 2016") and thereafter observed that in
view of remedy of appeal available, the
revision is not maintainable.

8. Brief facts, which are relevant for
disposal of both the petitions, are as under:-

(i) A case registered as Case No.01 of
2014
(Smt.
Basmati
vs.
Harikesh),
instituted under Section 229-B of the Act of
1950, was decided on 01.05.2015.
848 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Thereafter, an application for
restoration dated 30.06.2015 was preferred
by Smt. Basmati Devi. This application was
allowed vide order dated 12.07.2018 and
the above indicated Case No. 01 of 2014,
instituted under Section 229-B of the Act of
1950, was restored to its original number.

(iii) During the pendency of the
aforesaid case, Smt. Basmati Devi, on
whose application the case was restored to
its original number, expired on 06.02.2019.

(iv) After the death of Basmati Devi,
the
sons
of
Basmati
preferred
an
application
dated
06.02.2019
for
withdrawal
of
application
dated
30.06.2015, which itself was allowed
vide order dated 12.07.2018 and the
case was restored to its original number.

(v)
The
application
dated
06.02.2019
seeking
permission
to
withdraw
the
application
dated
30.06.2015 was thereafter allowed, as
appears
from
the
order
dated
22.09.2020 impugned in Writ-B No.
695 of 2023.

(vi)
From
the
order
dated
22.09.2020, it is apparent that during
the pendency of the case, an application
for impleadment was rejected vide
order dated 07.08.2019 and the same
was assailed by way of revision
registered as Case No.REV/271/2020,
Computerized
Case
No.R2020142900271, (Usha Singh vs.
Surendra) before the Board of Revenue
and at the time of passing of order dated
22.09.2020, the same was pending
consideration.

(vii) From the impugned order dated
22.09.2020 passed on application dated
06.02.2019, it further reveals that the final
order dated 01.05.2015 and the decree
dated 30.05.2015 were restored despite the
fact that the final order dated 01.05.2015
itself was set aside/recalled vide order
dated 12.07.2018.

(viii) It transpires from the record that
challenging the order dated 22.09.2020, the
petitioner preferred the revision before the
opposite party No.1-Board of Revenue,
U.P.,
Lucknow
registered
as
Case
No.REV/1709/2020.

(ix) Both the aforesaid revisions were
preferred under Section 333 of the Act of
1950, which is evident from the memo of
revision(s) on record.

(x) From the aforesaid brief facts, it is
apparent that case in issue i.e. Case No. 1
of 2014 (Smt. Basmati vs. Harikesh) for
declaration of rights was instituted under
the Act of 1950 and it is to be noted that
during the pendency of application for
restoration of the case dated 30.06.2015,
the Act of 1950 was repealed by the U.P.
Revenue Code, 2006, which came into
force on 11.02.2016.

9. In the aforesaid background of the
case, the question/issue to be answered by
this Court relates to applicability of
provisions of Code of 2006 and Rules of
2016 in the case in issue instituted and
pending prior to coming into force of the
Code of 2006.

10. On the aforesaid, it would be
appropriate to refer Section 231 of the
Code of 2006.

11. Section 231 of the code of 2006
being relevant on the issue is extracted
hereinunder:-

"Section 231:-(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
10 All. Smt. Reeta Devi Vs. The Board of Revenue & Ors.
849
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.

231- fopkjk/khu dk;Zokfg;ksa ij lafgrk dk ykxw
gksuk&1⁄411⁄2 bl lafgrk esa tSlk vU;Fkk :Ik ls micfU/kr
gS] mlds flok;] bl lafgrk ds izkjEHk gksus ds iwoZ
jkT; ljdkj ;k fdlh jktLo U;k;ky; ds le{k
fopkjk/khu leLr ekeyksa dk] pkgs os vihy] iqujh{k.k]
iqufoZyksdu ;k vU; :Ik esa gkas] dk fofu'p; leqfpr
fof/k ds micU/kksa ds vuqlkj fd;k tk;sxk] tks mu ij
ykxw gksrs ;fn ;g lafgrk ikfjr u gq;h gksrhA

1⁄421⁄2 bl lafgrk ds izkjEHk gksus ds Bhd iwoZ
flfoy U;k;ky; esa fopkjk/khu lHkh ekeyksa dk] ftl
ij bl lafgrk ds v/khu vuU; :Ik ls fdlh jktLo
U;k;ky; }kjk fopkj.k fd;k tkrk] ,sls izkjEHk ds
fnukad ds iwoZ izo`Rr fof/k ds vuqlkj ,sls flfoy
U;k;ky; }kjk fuLrkj.k fd;k tk;sxkA"

12. A perusal of the above quoted
provisions i.e. Section 231 indicates that all
cases pending before the State Government
or any revenue Court immediately before
the commencement of the Code of 2006,
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 the Code of 2006 not been passed.

13. It would be apt to indicate that
this
Court
in
the
judgment
dated
20.04.2017 passed in the case of Anand
Kumar Singh and Ors. vs. State of U.P.
and
Ors.;
reported
in
MANU/UP/1648/2017, after considering
the provision of U.P. Land Revenue Act,
1901 (in short "Act of 1901") and also the
provision of Code of 2006 particularly
Section 230 and Section 231 and also
Section 6 of General Clause Act, observed
that despite the repeal of Act of 1901 the
remedy of revision in the Act of 1901
would be available. Relevant paras of the
same are as under:-

"12.However, what needs to be noticed
at this juncture is the repeal clause in U.P.
Revenue Code, 2006, which is embodied in
section 230 thereof. Simultaneously, in
respect of applicability of U.P. Revenue
Code, 2006 in pending proceedings, the
provisions of section 231 of the Code, 2006
also needs to be referred to.

13.By section 230 of U.P. Revenue
Code, 2006, certain legislations which have
been mentioned in the First Schedule
appended thereto have been repealed. Subsection (2) of section 230 provides that
notwithstanding anything contained in subsection (1), the repeal of such enactments
shall not affectinter aliathe previous
operation of any such enactment or
anything duly done or suffered thereunder.
Section 230 of U.P. Revenue Code, 2006 is
quoted hereinbe-low:-

"230.Repeal-(1)
The
enactments
specified in the First Schedule are hereby
repealed.
(2) Notwithstanding anything contained in
sub-section
(1), the repeal of such
enactments shall not af-fect-

(a) the continuance in force of any
such enactment in the State of Uttaranchal;

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

(c) any other enactment in which such
enactment has been applied, incorporated
or referred to; or

(d) the validity, invalidity, effect or
consequences of anything already done or
suffered, or any right, title or obligation or
liability already acquired, accrued or
850 INDIAN LAW REPORTS ALLAHABAD SERIES
incurred (including, in particular, the
vesting in the State of all estates and the
cessation of all rights, title and interest of
all the intermediaries therein) or any
remedy or proceeding in respect thereof, or
any release or discharge of or from any
debt, penalty, obligation, liability, claim or
demand, or any indemnity already granted
or the proof of any past act or thing; or

(e) any principle or rule of law or
established jurisdiction, form or course of
pleading, practice or procedure or existing
usage,
custom,
privilege,
restriction,
exemption, office or appointment;

Provided that anything done or any
action taken (including any rules, manuals,
assessments, appointments and transfers
made, notifications, summonses, notices,
warrants, proclamation issued, powers
conferred, leases granted, boundary marks
fixed, records of rights and other records
prepared or maintained, rights acquired or
liabilities
incurred)
under
any
such
enactment shall, insofar as they are not
inconsistent with the provisions of this
Code, be deemed to have been done or
taken under the corresponding provisions
of this Code, and shall continue to be in
force accordingly, unless and until they are
superseded by anything done or action
taken under this Code."

14. Sub-section (2) (d) of section 230
provides that on repeal of the enactments
specified in the First Schedule appended to
U.P. Revenue Code, 2006, such repeal shall
not affect the validity, invalidity or
consequences of anything already done or
suffered or any right, title or obligation or
liability, claim or demand done under the
previous enactments.

15.Section 231 specifically provides
that except as otherwise provided expressly
in the Code 2006 itself, all cases pending
before the State Government or any
Revenue Court before the commencement
of Code, 2006, whether in appeal, revision,
review or otherwise, shall be decided in
terms of the provisions of the appropriate
law which would have been applicable to
them in case the Code, 2006 had not been
passed. Thus, the proceedings pending
before
the
Revenue
Courts
on
the
commencement of U.P. Revenue Code,
2006 have been expressly saved.

16.U.P. Revenue Code, 2006 came into
operation with effect from 11.2.2016 and on
the said date, the appeal preferred by the
petitioners
before
the
Additional
Commissioner
(Judicial),
Lucknow
Division, Lucknow was pend ing and thus,
the said proceedings were saved and
mandated to be decided as per the
provision of section 231 of U.P. Revenue
Code, 2006 in accordance with the
provision of U.P. Land Revenue Act, as if
the Code 2006 was not in existence.

17.The
question
which
falls
for
determination in this case is as to whether
the provision of U.P. Land Revenue Act
including section 219 would be deemed to
be saved on the basis of operation of
Sections 230 and 231 of U.P. Revenue
Code, 2006 in respect of the proceedings
which
though
initiated
before
commencement of Code, 2006 but have
been concluded after U.P. Revenue Code,
2006 become operational.

18.Section 210 of U.P. Revenue Code,
2006, which vests revisional jurisdiction
upon the Board of Revenue and the
Commissioner of the Divisions would not
be available in case of dispute relating to
demarcation or boundary dispute for the
reason that subsection (4) of section 24 of
U.P. Revenue Code, 2006 attaches finality
to the order passed by the Commissioner in
relation to the said proceedings. Section
210 of U.P. Revenue Code, 2006 can still
be invoked for challenging the orders
passed by any subordinate Court against
10 All. Smt. Reeta Devi Vs. The Board of Revenue & Ors.
851
which no appeal lies. However, the said
provision will not be available to person
aggrieved by an order passed by the
Commissioner or Additional Commissioner
in proceedings of appeal arising out of an
order passed by the Sub-Divisional Officer
under section 24 of U.P. Revenue Code,
2006 for settling the boundary dispute or
demarcation.

19.Section 231 of U.P. Revenue Code,
2006 speaks about the applicability of the
Code to the pending proceedings. Section
230 (2) (b) of U.P. Revenue Code provides
that repeal of certain enactments as
mentioned in the First Schedule will not
affect the previous operation of any such
enactment or anything duly done or
suffered thereunder. Sub-section (2) (d) of
section 230 also saves validity, invalidity or
consequences of anything already done or
suffered or any right title or obligation
under the previous enactments.

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.

22.The repeal of any legislative
enactment means that it must be considered
as if such repealed Act never existed. The
purpose of repeal is to obliterate the Act
from the statute book except for certain
purpose as provided in section of the
General Clauses Act. Section of the
General Clauses Act provides the effect of
repeal, according to which, unless different
attention appears, such repeal does not
affect the previous operation of any
enactment so repealed or anything duly
done or suffered thereunder. It also does
not
affect
any
investigation,
legal
proceeding or remedy in respect of any
such right, privilege, obligation, liability
etc. It further provides that any such legal
proceeding or remedy may be instituted,
continued or enforced as if the repealing
Act had not been passed.

23.Repeal clause embodied in sections
230 and 231 of U.P. Revenue Code, 2006,
thus, appears to be perfectly in tune with
the provisions contained in section of the
General Clauses Act.

24.Accordingly, to take view that after
U.P. Revenue Code, 2006 came into force,
the remedy under section 219 of U.P. Land
Revenue Act in respect of the proceedings
drawn under U.P.- Land Revenue Act prior
to enforcement of Code, 2006 will not be
available,
will
amount
to
curtailing
statutory right of revision to person
aggrieved. The statutory remedies are
provided
in
various
enactments
for
protection of right of the parties concerned
to contest and get the matter settled
through the prescribed procedure.

25.Keeping in view the provisions
contained in sections 230 and 231 of U.P.
Revenue Code, 2006 as also taking into
account the provisions contained in section
of the General Clauses Act, find it
appropriate to held that remedy of revision
as provided under section 219 of U.P. Land
Revenue Act will be available to person
aggrieved against the order passed by the
852 INDIAN LAW REPORTS ALLAHABAD SERIES
subordinate Courts under U.P. Land
Revenue Act 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.

26.In the instant case, proceedings of
appeal by the petitioners were instituted
prior to enforcement of U.P. Revenue Code,
2006 and have culminated in the order
passed on 8.3.2017 by the Additional
Commissioner
(Judicial),
Lucknow
Division, Lucknow sifter U.P. Revenue
Code, 2006 came into force.

27.Thus, for the reasons given above,
remedy of revision under section 219 of
U.P. Land Revenue Act, will be available to
the petitioners in the instant case as well
The petitioners, thus, will have right to
invoke the provisions of section 219 of U.P.
Land Revenue Act for assailing the order
dated 8.3.2017 passed by the Additional
Commissioner
(Judicial),
Lucknow
Division,
Lucknow,
which
is
under
challenge in this petition."

14. Further, in the judgment dated
20.08.2019 passed in the case of Santu vs.
State of U.P. and Ors.; reported in
MANU/UP/3660/2019,
this
Court
considered the fact that the case was
instituted under Section 229-B of U.P. Z.A.
& L.R. Act, 1950 (in short "Act of 1950")
and also the above quoted provision of
Code of 2006 and thereafter observed that
despite the repeal of Act of 1950, the
remedies provided under the Act of 1950
would be available to the aggrieved party.
The relevant paras of the same are as
under:-

"8.The question for consideration in
this writ petition is whether, the petition, is
maintainable or whether it is barred by
existence of a statutory alternative remedy.
It is not in issue that the provisions of the
Civil Procedure Code are applicable to the
proceedings under Section 229B of the U.P.
Zamindari Abolition and Land Reforms
Act.

9.The petitioner preferred an appeal
before
the
Additional
Commissioner
(Judicial) Bareilly Division, Bareilly, which
was dismissed for default. This order
necessarily was one under Order 41 Rule
19 C.P.C. The same Rule 19 provides that a
restoration application for recall of the
order dismissing the appeal. This belated
application has been rejected by the
impugned order.

10.The order rejecting the recall
application on the ground of delay in my
considered
opinion,
is
necessarily
appealable under Order 43 Rule 1(t). The
impugned order therefore, is necessarily
appealable before the Board of Revenue.

11.With regard to the above, petitioner
in the writ petition has stated that an
appeal was filed before the Board of
Revenue but the registry refused to accept
the same.

12.The averment made is a bald
averment not supported by any material on
record to show that an appeal was actually
preferred before the Board of Revenue was
not accepted by the registry. In any case,
the averment is that it was refused orally.
The bald allegation, in my considered
opinion, cannot be accepted.

13.The additional averment made in
the same Para graph of the writ petition is
that the appeal preferred by the petitioner
was maintainable under Section 207 Subsection 2(c) of the Revenue Code, 2006.

14.However, this contention cannot be
accepted because Section 209(b) creates a
bar against appeals being preferred in
certain circumstances. It clearly prohibits
an appeal against an order granting or
rejecting an application for condonation of
delay under Section 5 of the Limitation Act,
10 All. Smt. Reeta Devi Vs. The Board of Revenue & Ors.
853
1963. The appeal allegedly sought to be
preferred by the petitioner was therefore,
entirely barred by Section 209(b).

15.However, this Court is constrained
to hold that the provisions of U.P. Revenue
Code, 2006 are not attracted to the case at
hand, in view of Section 231 of the Code
itself, which reads as follows-

"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 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) ................"

16.The suit filed by the petitioner was
one under Section 229B of the U.P.
Zamindari Abolition and Land Reforms
Act.
Therefore,
even
the
subsequent
proceedings arising therefrom would be
governed by the provision of the U.P.
Zamindari Abolition and Land Reforms Act
despite its repeal and enforcement of the
U.P. Revenue Code, 2006.

17.Sub-section 3 of Section 331 of
the U.P. Zamindari Abolition and Land
Reforms Act provides for an appeal
from amongst others, also against an
order of the nature, mentioned in Order
43
Rule
1
C.P.C.
Therefore,
the
petitioner has a statutory alternative
remedy of an appeal against the order
impugned and for this reason alone, the
instant writ petition is not liable to be
entertained.

18.Even if for the sake of argument,
it is accepted that an appeal will not lie
against
the
order
impugned,
the
petitioner definitely has the remedy of a
revision before the Board of Revenue under
Section 339 of the U.P. Zamindari Abolition
and Land Reforms Act."

15. The effect of repeal was also
considered by the Full Bench of this Court
in the case of Ram Sewak Madan Mohan
vs. Commissioner, Commercial Taxes,
U.P. Lucknow reported in 2015 SCC
OnLine All 9552. First para of the
judgment being relevant on reproduction
reads as under:-

"On 25 February, 2015, a learned
single Judge has referred the following
questions of law for adjudication by the
Full Bench:

"1. Whether in view of the judgments
of the Supreme Court inHari Shankerv.Rao
Girdhari Lal Chowdhury1andShiv Shakti
Cooperative
Housing
Societyv.Swaraj
Developers2declaring the power of revision
as not a substantive right but merely an
enabling provision, the provision for a
revision under Section 10B of the U.P.
Trade Tax Act, 1948 would on the
repeal of that Act not be saved under
Section 81(2) of the U.P. Value Added
Tax Act, 2008; and

2. Whether the view expressed by
the Division Benches of this Court
inDharma
Rice
Millv.State
of
U.P.3andKumar Rice Millsv.State of
U.P.4taking a contrary view lay down
the correct law, having been expressed
upon
non-consideration
of
the
judgments of the Supreme Court in the
case ofHari Shankerv.Rao Girdhari Lal
Chowdhury(supra) andShiv Shakti Cooperative
Housing
Societyv.Swaraj
Developers(supra)."

16. To answer the questions referred,
the Full Bench of this Court in the case
of Ram Sewak Madan Mohan (supra)
considered the following provisions:-
854 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) Section 10-B of Uttar Pradesh
Trade Tax Act, 1948 (in short "Act of
1948").

(ii) Sections 56 and 81 of Uttar
Pradesh Value Added Tax, 2008 (in short
"Act of 2008").

(iii) Section 6 of U.P. General Clauses
Act, 1904 (in short "Act of 1904").

17. The aforesaid is evident from para
6 to 12 of the judgment passed passed in
the case of Ram Sewak Madan Mohan
(supra), which on reproduction read as
under:-

"6. Section 10-B of the U.P. Trade Tax
Act provides for a revision by the
Commissioner. Section 10B was in the
following terms:

"Section
10-B.
Revision
by
Commissioner.

(1) The Commissioner or such other
Officer not below the rank of Deputy
Commissioner as may be authorised in this
behalf by the State Government by
notification may call for and examine the
record relating to any order (other than an
order mentioned in section 10-A) passed by
any officer subordinate to him, for the
purpose of satisfying himself as to the
legality or propriety of such order and may
pass such order with respect thereof as he
thinks fit.

(2) No order under sub-section (1)
affecting the interest of a party adversely
shall be passed unless he has been given a
reasonable opportunity of being heard.

(3) No order under sub-section (1),
shall be passed-

(a) to revise an order, which is or has
been the subject-matter of an appeal under
section 9, or an order passed by the
Appellate Author ity under that section:

Explanation-
Where
the
appeal
against any order is withdrawn or is
dismissed for nonpayment of fee payable
under section 32 or for non-compliance of
sub-section (1) of section 9, the order shall
not be deemed to have been the subjectmatter of an appeal under section 9;

(b) before the expiration of sixty days
from the date of the order in question;

(c) after the expiration of four years
from the date of the order in question or
after the expiration of two years from the
date of commencement of section 19 of the
U.P. Sales Tax (Amendment and Validation)
Act, 1978, whichever is later."

7. The U.P. VAT Act repealed the U.P.
Trade Tax Act with effect from 1 January,
2008. Section 81 contains a repeal and
saving provision in the following terms:

"Section 81. Repeal and saving.-

(1) The Uttar Pradesh Trade Tax Act,
1948 (U.P. Act No. XV of 1948) (hereinafter
in this section referred to as the repealed
enactment) is hereby repealed.

(2) Notwithstanding such repeal,-

(a) any notification, rule, regulation,
order or notice issued, or any appointment
or declaration made, or confiscation made,
or any penalty or fine imposed, any
forfeiture, cancellation or any other thing
done or any action taken under the
repealed
enactment,
and
in
force
immediately before such commencement
shall, so far as it is not inconsistent with
the provisions of this Act, be deemed to
have been issued, made granted, done or
taken under the corresponding provisions
of this Act.

(b) any right, privilege, obligation or
liability acquired, accrued or incurred
under the repealed Act, shall not be
affected and manufacturing units enjoying
benefit of exemption from payment of tax
under Section 4-A of the repealed Act or the
units enjoying facility of moratorium for
payment of tax under Section 8(2-A) of the
said Act shall be entitled to claim
10 All. Smt. Reeta Devi Vs. The Board of Revenue & Ors.
855
moratorium
for
payment
of
tax
in
accordance with provisions of Section 42.

(3) Any officer, authorised by the
Commissioner
under
the
repealed
enactment, to exercise powers under
Section 10-B and sub-section (6) of Section
13-A thereof, shall be deemed to have been
authorised by the Commissioner to exercise
such powers under Section 56 and subsection (7) of Section 48 respectively.

(4) Any order made or direction issued
by the State Government or by the
Commissioner under the repealed Act, for
carrying out purposes thereof, to the extent
the same are not inconsistent with the
provisions of this Act, shall be deemed to
have been issued under the provisions of
this Act.

(5) Any security or additional security,
furnished under the provisions of the
repealed Act, shall be deemed valid for the
purposes under this Act only upon
furnishing an undertaking from the surety
to this effect in the prescribed form and
manner within thirty days from the date of
the commencement of the Act:

PROVIDED
that,
in
appropriate
cases, the assessing authority may extend
the time for furnishing undertaking from
sureties.

(6) The mention of particular matters
in this section shall not be held to prejudice
or affect general application of Section 6 of
the Uttar Pradesh General Clauses Act,
1904, with re gard to the effect of repeals."

8. Section 56 of the U.P. VAT Act
provides for the remedy of a revision to the
Commis sioner and is in the following
terms:

"Section
56.
Revision
by
the
Commissioner.-

(1) The Commissioner or such other
officer not below the rank of Joint
Commissioner, as may be authorised in this
behalf by the Commissioner may call for
and examine the record relating to any
order, passed by any officer subordinate to
him, for the purpose of satisfying himself as
to the legality or propriety of such order
and may pass such order with respect
thereto as he thinks fit.

(2) No order under sub-section (1)
affecting the interest of a party adversely
shall be passed unless he has been given a
reasonable opportunity of being heard.

(3) No order under sub-section (1),
shall be passed-

(a) to revise an order, which is or has
been the subject-matter of an appeal under
section 55, or an order passed by the
appellate authority under that section.

(b) before the expiration of sixty days
from the date of the order in question;

(c) after expiration of four years from
the date of the order in question.

EXPLANATION- Where the appeal
against any order is withdrawn or is
dismissed for non-payment of fee payable
under section 72 or for non-compliance of
sub-section (3) of section 55, the order
shall not be deemed to have been the
subject-matter of an appeal under section
55;

(4) No dealer or any other person,
aggrieved by an order against which
appeal lies under sec tion 55, shall be
entitled to present an application for review
of such order under this section."

9. Sub-section (1) of Section 56 of the
U.P. VAT Act is pari materia with subsection (1) of Section 10-B of the erstwhile
Trade Tax Act save and except for the
modification that the authorisation for an
officer not below the rank of Joint
Commissioner to exercise the power of
revision is now to be issued by the
Commissioner (as distinct from an aut
horisation of me State Government which
was required by the erstwhile Act).
856 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Section 81 is the repeal and saving
provision. Sub-section (1) repeals the U.P.
Trade Tax Act. Sub-section (2) ensures that
certain consequences which would have
ensued purely as a result of the repeal do
not ensue. In other words, it saves certain
situations from the consequences of a
repeal. Clauses (a) and (b) of sub-section
(2) of Section 81 provide for distinct
situations or eventualities. The savings
clause operates with respect to them,
notwithstanding the repeal of the U.P.
Trade Tax Act under sub-section (1) of
Section 81 of the UP VAT Act. Clause (a)
saves (i) notifications, rules, regulations,
orders
or
notices
issued;
(ii)
any
appointment or declaration made; (iii) a
confiscation made; and (iv) any penalty or
fine imposed under the Trade Tax Act.
Clause (a) also stipulates that any
forfeiture, cancellation or any other thing
done or action taken under the repealed
enactment which is in force immediately
before the commencement of the U.P. VAT
Act shall, insofar as it is not inconsistent
with the provisions of the latter Act, be
deemed to have been issued, made,
granted, done or taken under the provisions
of the new Act. Clause (b) of sub-section
(2) of Section 81 stipulates that a right,
privilege, obligation or liability acquired,
accrued or incurred under the repealed Act
shall not be affected. The emphasis is on
the expressions acquired, accrued or
incurred. Sub-section (3) inter aha provides
that an officer who has been authorized by
the Commissioner under the repealed
enactment to exercise powers under Section
10-B shall be deemed to have been
authorized by me Commissioner to exercise
such powers under Section 56.

11. Sub-section (6) of Section 81
provides that the general application of
Section 6 of the UP General Clauses Act,
1904 with regard to the effect of repeals
shall not be affected by the mentioning of
particular matters in the section. Section 6
of the U.P. General Clauses Act, 1904
provides as follows:

"6. 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, forfeiture 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,
forfeiture
or
punishment
as
aforesaid;

and any such remedy may be enforced
and any such investigation or legal,
proceedings
may
be
continued
and
concluded, and any such penalty, forfeiture
or punishment imposed as if the repealing
Act had not been passed."

12. Section 6 of the U.P. General
Clause Act, 1904 provides for the general
principles
to
be
applied
where
an
enactment has been repealed unless a
different
intention
appears
from
the
repealing statute. Clause (c) provides that
the repeal shall not affect any right,
privilege, obligation or liability acquired,
10 All. Smt. Reeta Devi Vs. The Board of Revenue & Ors.
857
accrued or incurred under any enactment
so
repealed.
This
provision
broadly
corresponds to Section 81(2)(b) of the U.P.
VAT Act. Clause (e) stipulates that the
repeal shall not affect any remedy or any
investigation
or
legal
proceeding
commenced before the repealing Act came
into operation in respect of any such right,
privilege, obligation or liability and a
penalty, forfeiture or punishment. The
reference to "such" right, privilege,
obligation or liability is in the context of
those expressions in clause (c). Similarly
"such" penalty, forfeiture or punishment is
that which is adverted to in clause (d). Any
such remedy
may
be
enforced
and
investigation or legal proceeding may be
continued and concluded and a penalty,
forfeiture or punishment may be imposed as
if the repealing Act has not been passed.
Clause (e) refers to a remedy, investigation
or legal proceeding. A remedy in respect of
a right, privilege, obligation or liability
acquired, accrued or incurred may be
enforced even after the repeal of the
U.P. Trade Tax Act. If an investigation
or legal proceeding has commenced
before the repealing Act came into
operation, the investigation or legal
proceeding may be continued and
concluded. Justice G.P. Singh in his
seminal treatise on the Interpretation of
Statutes observes that:

"The effect of clauses (c) to (e) of
Section 6, General Clauses Act is,
speaking
briefly,
to
prevent
the
obliteration of a statute in spite of its
repeal to keep intact rights acquired or
accrued and liabilities incurred during
its operation and permit continuance or
institution of any legal proceedings or
recourse to any remedy which may have
been available before the repeal for
enforcement
of
such
rights
and
liabilities."13th edition 2012 p 710"

18. The Full Bench of this Court in
the judgment passed in the case of Ram
Sewak Madan Mohan (supra) after
considering the above quoted provisions
and various pronouncements on the issue,
concluded as under:-

"35. That leads us to the construction
of the provisions of Section 6 of the Uttar
Pradesh General Clauses Act, 1904.
Section 6(c), inter aha, provides that the
repeal of an enactment by State legislation
shall not, unless a different intention
appears,
affect
any
right,
privilege,
obligation or liability which is acquired,
accrued or incurred under any enactment
so repealed. Under Section 6(e), the repeal
is not to affect, inter alia, any remedy in
respect of any such right, privilege,
obligation or liability as aforesaid and any
such remedy may be enforced as if the
repealing Act has not been passed. Now,
undoubtedly, Section 6(e) refers to "such
right, privilege, obligation, liability. as
aforesaid". In other words, the remedy
which is referred to in clause (e) is in
respect of a right, privilege, obligation or
liability of the nature which is referred to in
clause (c).