# Thakur Ram Chandra Ji Mahraj v. Board

- **Citation:** (2007) 1 ILRA 4
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-10
- **Case number:** Civil Misc. Writ Petition No. 35795 of 1991
- **Bench:** Janardan Sahai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/thakur-ram-chandra-ji-mahraj-v-board-40878
- **Pages:** 7

## Headnote

Sri Satya Prakash
Sri R.N. Sharma
Sri G.N. Verma
Sri Anoop Trivedi
Sri Gajendra Pratap
Sri A. Srivastava
S.C.
(A) U.P. Zamindari Abolition and Land
Reform Act-Section 331 (4) read with
Code of Civil Procedure 1908 Section100-Second Appeal decided by Board of
Revenue-without
framing
substantial
Question of law-whether the amended
provision of Civil Procedure applicable in
the
pending
second
appeal
under
U.P.Z.A. & L.R. Act also? Held-'yes'.

Held: Para 7

The
question
whether
a
particular
enactment, which refers to a previous
enactment, is legislation by reference or
legislation by incorporation is often a
difficult one. To remove as far as
possible any uncertainty on this count it
appears the legislature has introduced
Sub Section 30 by amendment in the
definition
clause
Section

## Text

4 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
provisions of Regulation 19 Chapter II of
the U.P. Intermediate Education Act,
1921 with immediate effect.

The writ petition is allowed as above.
The impugned order of approval dated
17.5.2002 is quashed. There will be no
order as to costs. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2006

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 35795 of 1991

Thakur Ram Chandra Ji Mahraj

...Petitioner
Versus
Board of Revenue & others ...Respondents

Connected with
Civil Misc. Writ Petition No. 2499 of 1992
Thakur Ram Chandra Ji Mahraj Vs. Board
of Revenue and others.

Counsel for the Petitioner:
Sri O.P. Kulshrestha
Sri R. Asthana
Sri S.S. Upadhyaya
Smt. Sadhna Upadhyaya
Sri H.N. Sharma
Sri V.K. Singh
Sri R.S. Misra
Sr. G. Bhatt
Sri B.N. Upadhyaya
Sri R.P. Goyal

Counsel for the Respondents:
Sri Satya Prakash
Sri R.N. Sharma
Sri G.N. Verma
Sri Anoop Trivedi
Sri Gajendra Pratap
Sri A. Srivastava
S.C.
(A) U.P. Zamindari Abolition and Land
Reform Act-Section 331 (4) read with
Code of Civil Procedure 1908 Section100-Second Appeal decided by Board of
Revenue-without
framing
substantial
Question of law-whether the amended
provision of Civil Procedure applicable in
the
pending
second
appeal
under
U.P.Z.A. & L.R. Act also? Held-'yes'.

Held: Para 7

The
question
whether
a
particular
enactment, which refers to a previous
enactment, is legislation by reference or
legislation by incorporation is often a
difficult one. To remove as far as
possible any uncertainty on this count it
appears the legislature has introduced
Sub Section 30 by amendment in the
definition
clause
Section
3.
The
definition clause has to be applied unless
there is anything repugnant in the
context. It is plain that the burden of
showing contrary context lies upon him
who
asserts
that
the
definition
is
inapplicable. There is nothing in Sub
Section 4 of Section 331 on the basis of
which an interpretation different from
that given in Sub Section 30 of Section 3
be adopted. Taking it that the reference
made in Section 331 (4) to Section 100
Civil Procedure Code is by way of
legislation
by
incorporation
the
reference would be deemed to be to the
amended Section 100 Civil Procedure
Code in view of the definition clause
Section 3 (30) of the U.P. Zamindari
Abolition and Land Reforms Act. That
definition
expresses
the
legislative
intendment
to
apply
the
amended
provision and carves out an exception to
the rule about the effect of legislation by
incorporation similar to one of the
exceptions carved out by the Supreme
Court in Narsimhan's case (supra). The
other exception carved out by the
Supreme Court, which we have noticed is
where both the Acts are supplemental to
each other. While it is true that the U.P.
Zamindari Abolition and Land Reforms
Act does not supplement the Civil
Procedure Code and the two Acts are
1 All] Thakur Ram Chandra Ji Maharaj & ors. V. Board of Revenue. and others
5
thus not supplemental to each other but
on the subject of suits, appeals and other
proceedings the Civil Procedure Code
does supplement the U.P. Zamindari
Abolition and Land Reforms Act. The
definition in Section 3 (30) of U.P.
Zamindari Abolition and Land Reforms
Act carves out an exception to the
general rule of interpretation that in
legislation
by
incorporation
an
amendment in the Act referred to does
not affect the incorporated provision.
The M. R.T.P. Act which, was considered
by the Supreme Court in Mahindra's case
(supra) does not have any provision like
Section 3 (30) or Section 341 U.P.
Zamindari Abolition and Land Reforms
Act nor does the Civil Procedure Code
supplement the proceedings under the
M.R.T.P. Act. For the reasons given above
I am of the view that the amended
Section 100 Civil Procedure Code would
be applicable to second appeals in the
Board of Revenue.

(B) U.P. Zamindari Abolition and Land
Reform
Act
1955-Section
331
(4)-
substantial
question
of
law-second
appeal can not be decided and heard
without framing substantial question of
law-as
the
amended
provisions
of
Section
100
C.P.C.
are
equally
applicable-held-Second Appeal can not
be decided without framing substantial
questions of law-matter remitted back
before
the
Board
with
necessary
direction.

Held: Para 9

The Board of Revenue has not examined
the matter from the point as to whether
a
substantial
question
of law was
involved in the case or not. That apart
the parties are to be heard only on the
question framed. As no question was
framed the appeal could not have been
heard
and
allowed
and
the
whole
exercise was in vain. It is not a feasible
course to fill up this omission by framing
questions in this court and then hearing
the parties. I am of the view that the
matter should be sent back to the Board
of Revenue
Case law discussed:
2001 (3) AWC-2258
2004 (9) RD-119
2006 RD-831
1979 SCC-526
AIR 1975 SC (2)-1835

(Delivered by Hon'ble Janardan Sahai, J.)

1. Sub Section 4 of Section 331 of
the U.P. Zamindari Abolition and Land
Reforms Act creates a right of second
appeal to the Board of Revenue on any of
the grounds specified in Section 100 of
the Code of Civil Procedure. Section 100
of
the
Civil
Procedure
code
was
drastically amended in the year 1976 by
Act No. 104 of 1976 whereby the grounds
of appeal were restricted to those which
involve a substantial question of law to be
formulated by the High Court. After the
amendment
in
Section
100
Civil
Procedure Code doubts arose as to
whether the amended Section 100 Civil
Procedure Code would be applicable to
second appeals in the Board of Revenue
or the unamended one, which contained
wider grounds for interference. In Ram
Sanehi Vs. Board of Revenue 1993 RD
208 a single Judge of this Court held that
it is Section 100 Civil Procedure Code as
amended from time to time, which would
govern second appeals in the Board of
Revenue. In Sri Net Bharti and others Vs.
Board of Revenue and others 2001 (3)
A.W.C. 2258 and in Ved Pal Vs. Board of
Revenue 2004 (9) R.D. 119 the same
view was taken. In fact not a single
decision of this court taking a different
view has been cited at the Bar.

2. In a recent decision Baikunth
Nath Kaushik Vs. Anand Swaroop
Kaushik 2006 RD 831 the Uttranchal
6 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
High Court has taken the view that the
reference to Section 100 Civil Procedure
Code made in sub Section 4 of Section
331 of the U.P. Zamindari Abolition and
Land Reforms Act is legislation by
incorporation
and,
therefore,
the
amendment
in
Section
100
Civil
Procedure Code, would not apply to
second appeals in the Board of Revenue.
The
Uttranchal
High
Court
placed
reliance upon the decision of the Apex
Court in Mahindra Vs. Mahindra 1979
SCC 529 which was a case under the
Monopolies
and
Restrictive
Trade
Practices Act. Section 55 of that Act
refers to the grounds specified in Section
100 of the Civil Procedure Code as being
the grounds on which an appeal would lie
to the Supreme Court. The Supreme Court
having examined the scheme of the
Monopolies
and
Restrictive
Trade
Practices Act held that the reference to
Section 100 Civil Procedure Code made
in Section 55 of the Monopolies and
Restrictive Trade Practices Act was by
way of legislation by incorporation and
therefore
the
subsequent amendment
made in Section 100 Civil Procedure
Code was not applicable to appeals under
Section 55 of the Monopolies and
Restrictive Trade Practices Act.

3.

The
difference
between
legislation
by
incorporation
and
legislation by reference is well known. In
legislation by incorporation provisions of
the Act to which reference is made are
deemed to be bodily incorporated in the
statute, which refers to them. The logical
corollary of this fiction as we may call it
is that an amendment subsequently made
in the Act referred to would not affect the
provisions
deemed
to
have
been
incorporated in the Act, which refers. The
rule, however, is not an inflexible one. In
A.I.R. 1975 SC (2) 1835 The State of
Madhya Pradesh Vs. M.V. Narasimhan
four exceptions to the rule have been
carved out. Two of them which may have
some relevance to this case are;. One:
where the two Acts are supplemental to
each other and two: where the amendment
in the Act referred to by express or
implied
intendment
applies
to
the
incorporated provisions in the Act in
which the reference is made. In this
context it is necessary to examine the
provisions
of
the
U.P.
Zamindari
Abolition and Land Reforms Act.

4. Section 3 sub section 30 of the
U.P. Zamindari Abolition and Land
Reforms Act reads as follows;

(30) any reference to any enactment
shall be construed as a reference to that
enactment as amended from time to time
in its application to Uttar Pradesh, and in
the case of the Code of Civil Procedure,
1908, as a reference to that Code subject
also to any annulments alterations and
additions to the rules contained in the
First Schedule thereto made from time to
time under Section 122 thereof by the
High Court."

5. In view of this provision the
amendment
in
Section
100
Civil
Procedure code would be applicable to
second appeals to the Board. Sri Gajendra
Pratap,
learned
counsel
for
the
respondents however submits that Section
3 (30) is in two parts separated by a
disjunctive ''and' occurring before the
words "in the case of the Code of Civil
Procedure." According to him the word
''enactment' occurring in the first part does
not include the Civil Procedure Code for
which specific provision has been made in
the second part and the annulments,
1 All] Thakur Ram Chandra Ji Maharaj & ors. V. Board of Revenue. and others
7
alterations and additions in reference to
the Civil Procedure Code are confined to
the rules in the First Schedule as amended
form time to time by the High Court in
exercise of powers under Section 122. If
so interpreted the amendment made by
Parliament in Section 100 Civil Procedure
Code by act 104 of 1976 would not apply
to second appeals under the U.P.
Zamindari Abolition and Land Reforms
Act. But I am not inclined to accept this
narrow interpretation placed on the
section.
The
opening
words
''any
reference to any enactment' are words of
the widest amplitude and in their plain
meaning would also cover the Civil
Procedure Code, which undoubtedly is an
enactment. Nor is the reference in the sub
section to amendments in the enactment,
confined to amendments, which are
applicable to U.P. alone. The expression
"enactment as amended from time to time
in its application to Uttar Pradesh" means
the amended enactment as applicable to
U.P. The definition is wide enough to
cover any amendment in the enactment
referred to whether by a Central Act or by
a State Act if it extends to U.P.
irrespective of the fact that it does or does
not apply to other areas also. The second
part of Sub section 30 is merely
clarificatory of the legislative intent that
not only amendments by the legislature
but even amendments in the rules of the
First Schedule of the Civil Procedure
Code made by the High Court in the
exercise of power under Section 122 of
the Civil Procedure Code would be
applicable to that provision of the U.P.
Zamindari Abolition and Land Reforms
Act, which refers to the Civil Procedure
code. I am therefore not inclined to give
the narrow meaning to Section 3 (30)
sought to be given by Sri Gajendra Pratap.
The view that I am taking also appears to
be in line with the scheme of the Act as
we shall presently see.

6. Section 341 of the U.P. Zamindari
Abolition and Land Reforms Act applies
the provisions of the Civil Procedure to
proceedings under the U. P. Zamindari
Abolition and Land Reforms Act unless
otherwise
expressly
provided.
The
Zamindari Abolition and Land Reforms
Act has made provision for suits, appeals,
second appeals, revisions etc. The Civil
Procedure Code thus has been made
applicable to them unless otherwise
expressly provided. No express provision
making
the
Civil
Procedure
Code
inapplicable has however been cited. On
the subject of suits, appeals, revisions and
other proceedings the Civil Procedure
code supplements the U.P. Zamindari
Abolition and Land Reforms Act by force
of Section 341. In the earlier Tenancy
laws of the State namely in the U.P.
Tenancy Act, 1939, Agra Tenancy Act,
1926 and N.W.P. Tenancy Act 1901 there
were provisions similar to Section 341 of
U.P. Zamindari Abolition and Land
Reforms Act. Although the nature of suits
that can be instituted in the revenue courts
has been specified in the U.P. Zamindari
Abolition and Land Reforms Act as was
also done in the earlier tenancy laws of
the State but the question of jurisdiction
of the Revenue Court vis-à-vis the civil
court in particular cases has been a
complex question and a constant source of
litigation traveling up to the highest court
of the land. Suits for which relief can be
obtained in the revenue court are
frequently instituted and tried in the civil
court and vice versa. Faced with this
situation
the
legislature
has
made
provision in Section 331 (1A) U.P.
Zamindari Abolition and Land Reforms
Act that the question of jurisdiction if not
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
raised in the trial court at the earliest
possible
opportunity
shall
not
be
entertained in appeal and unless there has
been a consequent failure of justice.
Provisions quite similar to this existed in
the earlier tenancy laws of the State. The
legislative intent behind such a provision
appears to have been that as the trial,
appeal and second appeal whether in the
civil court or revenue court is regulated
by a substantially similar set of provisions
on account of the Civil Procedure Code
applying both to civil courts and revenue
courts no injustice is likely to be caused
by a trial in the wrong court. Just like the
U.P. Zamindari Abolition and Land
Reforms Act the N. W. P. Tenancy Act
1901, the Agra Tenancy Act, 1926, the
U.P. Tenancy Act, 1939 also contained
provision for second appeal on the
grounds specified in Section 100 Civil
Procedure Code. Undoubtedly Section
341 U.P. Zamindari Abolition and Land
Reforms Act, which applies the Civil
Procedure code as a whole to proceedings
under the U.P. Zamindari Abolition and
Land Reforms Act is legislation by
reference. It supplements the proceedings
under the U.P. Zamindari Abolition and
Land Reforms Act in view of Section 341.
The normal rule of interpretation would,
therefore, be to apply the amendments in
the Civil Procedure Code to proceedings
in the U.P. Zamindari Abolition and Land
Reforms Act. If any difficulty in applying
this rule of interpretation has arisen in
respect of second appeals under the U.P.
Zamindari Abolition and Land Reforms
Act on account of the reference to the
grounds specified in Section 100 Civil
Procedure code being legislation by
incorporation
that
difficulty
stands
removed by the definition in Sub Section
30 of Section 3 U.P. Zamindari Abolition
and Land Reforms Act. If however an
amendment in the Civil Procedure Code is
of such a nature that its application to the
section,
which
refers
to
the
Civil
Procedure Code would be repugnant to
the context it would be inapplicable in
view of the exception of contrary context
contained in the definition clause.

7. The question whether a particular
enactment, which refers to a previous
enactment, is legislation by reference or
legislation by incorporation is often a
difficult one. To remove as far as possible
any uncertainty on this count it appears
the legislature has introduced Sub Section
30 by amendment in the definition clause
Section 3. The definition clause has to be
applied unless there is anything repugnant
in the context. It is plain that the burden
of showing contrary context lies upon him
who
asserts
that
the
definition
is
inapplicable. There is nothing in Sub
Section 4 of Section 331 on the basis of
which an interpretation different from that
given in Sub Section 30 of Section 3 be
adopted. Taking it that the reference made
in Section 331 (4) to Section 100 Civil
Procedure Code is by way of legislation
by incorporation the reference would be
deemed to be to the amended Section 100
Civil Procedure Code in view of the
definition clause Section 3 (30) of the
U.P. Zamindari Abolition and Land
Reforms Act. That definition expresses
the legislative intendment to apply the
amended provision and carves out an
exception to the rule about the effect of
legislation by incorporation similar to one
of the exceptions carved out by the
Supreme Court in Narsimhan's case
(supra). The other exception carved out
by the Supreme Court, which we have
noticed is where both the Acts are
supplemental to each other. While it is
true that the U.P. Zamindari Abolition and
1 All] Thakur Ram Chandra Ji Maharaj & ors. V. Board of Revenue. and others
9
Land Reforms Act does not supplement
the Civil Procedure Code and the two
Acts are thus not supplemental to each
other but on the subject of suits, appeals
and other proceedings the Civil Procedure
Code does supplement the U.P. Zamindari
Abolition and Land Reforms Act. The
definition in Section 3 (30) of U.P.
Zamindari Abolition and Land Reforms
Act carves out an exception to the general
rule of interpretation that in legislation by
incorporation an amendment in the Act
referred
to
does
not
affect
the
incorporated provision. The M. R.T.P.
Act which, was considered by the
Supreme Court in Mahindra's case (supra)
does not have any provision like Section 3
(30) or Section 341 U.P. Zamindari
Abolition and Land Reforms Act nor does
the Civil Procedure Code supplement the
proceedings under the M.R.T.P. Act. For
the reasons given above I am of the view
that the amended Section 100 Civil
Procedure Code would be applicable to
second appeals in the Board of Revenue.

8. Coming now to the facts of the
case. A suit was filed by the respondents
under
Section
229-B
of
the
U.P.
Zamindari Abolition and Land Reforms
Act, which was decreed by the trial court.
The appeal of the defendant was allowed
by the Additional Commissioner. The
second appeal of the plaintiff was allowed
by the Board of Revenue without framing
any substantial questions of law.

9. It was submitted by Sri Gajendra
Pratap that even though the Board of
Revenue may not have framed substantial
questions of law but as the order passed
by the Board of Revenue is correct on
merits this court in exercise of writ
jurisdiction can decline to interfere. In
support of his contention he relied upon a
decision of the Apex Court in A.I.R. 1966
SC 828 Gadde Venkateswara Rao Vs.
Government of Andhra Pradesh and
others.
The
proposition
cannot
be
doubted. The Supreme Court however in
a series of decisions has set aside
judgments of this Court in second appeal
on the ground that without substantial
questions of law being framed the appeal
was allowed. Reference may be made to
the recent decision of the apex court in
Gian Dass Vs. Gram Panchayat Village
Sunner Kalan and others 2006 (101) RD
449. The Board of Revenue has not
examined the matter from the point as to
whether a substantial question of law was
involved in the case or not. That apart the
parties are to be heard only on the
question framed. As no question was
framed the appeal could not have been
heard and allowed and the whole exercise
was in vain. It is not a feasible course to
fill up this omission by framing questions
in this court and then hearing the parties. I
am of the view that the matter should be
sent back to the Board of Revenue

10. In the result the writ petitions are
allowed. The order dated 23.9.1991
passed by the Board of Revenue, U.P. at
Allahabad is set aside and the case is sent
back to the Board of Revenue for fresh
decision in accordance with law.

Petition Allowed.
---------
10 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.11.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Writ Petition No.58504 of 2006

Smt. Shail Agrawal

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.B. Paul
Sri A.P. Paul

Counsel for the Respondents:
Sri G.K. Khanna
S.C.

Constitution
of
India,
Art.
226Alternative Remedy-read with court fee
Act-section 6A, 7 (iv-A), 17 (iii) schedule
II-alternative
remedy-writ
petition
challenging order passed by the Trial
Court-mode of fixation of court fee under
challenge-argument regarding finality of
order-held-misconceived-patently
erroneous statutory remedy by way of
appeal under section 6 A-writ petitionheld-not maintainable.

Held: Para 12, 16 & 18

From the aforesaid, it is clear that this
Section is confined to such decision on a
question relating to the valuation for the
purpose of determining the Court fee.

From the aforesaid decisions, it is clear
that Section 12 of the Court Fees Act is
not applicable in the present case. In the
present case, the Civil Judge held that
the court fee is payable under Section
7(iv-A) of the Court Fees Act and that
Article 17 (iii) of Schedule II of the Court
Fees Act has no application. A decision
on the question whether the suit falls
under Section 7(iv-A) or Article 17(iii) of
Schedule II of the Court Fees Ac is not a
decision on a question relating to the
valuation but on a question relating to
the basis or the mode of computation of
the court fee. Keeping this in mind, the
Supreme Court in Nemi Chand case
(supra) held that the finality declared by
Section 12 is limited only to the question
of valuation pure and simple and does
not relate to the category under which a
certain suit falls.

In view of the aforesaid, the contention
of the learned counsel for the petitioner
is, that the order of the Civil Judge was
one under Section 12 of the Court Fees
Act and had become final is patently
erroneous.
Case law discussed:
AIR 1934 Alld.-620
2005 (3) AWC-2751
1957 ALJ-53,
AIR 1968 Alld-216

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The plaintiff presented a suit
praying that the three sale deeds dated
1.11.2004 and 17.2.2006 be declared null
and void and further prayed that the
defendants be restrained from transferring
the property on the basis of the sale deeds.
In paragraph 12 of the plaint, the plaintiff
disclosed the valuation of the sale deeds
and on that basis, paid a sum of
Rs.1300.00 as court fee. The Munsarim
submitted a report dated 19.7.2006 stating
therein that as per the valuation given by
the plaintiff, the total amount of court fee
payable as per Section 7 (iv-A) of the
Court Fees Act is Rs.62,792.50, whereas
the plaintiff has only paid a sum of
Rs.1300.00
towards
court
fee.
Consequently, the Munsarim reported that
the remaining court fee was required to be
paid by the plaintiff.

2. Pursuant to the aforesaid report,
the plaintiff filed an objection dated