# Wasim Raja Khan v. Board of Revenue U.P. & Ors

- **Citation:** (2014) 1 ILRA 489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-11
- **Case number:** Civil Misc. Writ Petition No. 15248 of 2014
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/wasim-raja-khan-v-board-of-revenue-u-p-ors-42900
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-order passed
by Commissioner as well as Board of
Revenue-challenging
on
ground-once
revision time barred-in absence of delay
condonation application-only course was to
dismiss revision as time barred-contrary to
that notices issued-revision against order
490 INDIAN LAW REPORTS ALLAHABAD SERIES

passed by S.D.O. under Section 33/39 L.R.
Act-without issue notices to the affected
parties while accepting report by Naib
Tehsildar-held-if
the
order
passed
by
Commissioner set-a-side illegal order of
SDO come into existence-hence illegal
order would revive can not be interferedthe SDO directed to decide the proceeding
after hearing to all concern within time
bond period.

Held: Para-16
In view of the aforesaid legal position, if the
order dated 15.7.2013 is interfered with
and quashed, another illegal order dated
30.4.2010 would revive. It is settled that if
by quashing of an illegal order, another
illegality revives in that eventuality, the
Court should not interfere with such orders
under the writ jurisdiction.

Case Law discussed:
2008 14 SCC 445; 2005 Volume 4 SCC 613;
(2009) 6 SCC 194; 2001(9) SCC 717;
2013(118) RD 48; (2010) 13 SCC 336; AIR
1966 SC 828; AIR 1970 SC 645; AIR 1999 SC
3609; AIR 2000 SC 2976; AIR 2003 SC 2889;
2003(4) Supreme 44; (2004) 6 SCC 800;
(2011) 3 SCC 436; 2013(8) ADJ 424.

## Text

1 All] Wasim Raja Khan Vs. Board of Revenue U.P. & Ors.

489
para 36 of the judgement has observed as
under:

"The commission has been empowered
to frame tariff. It has, however, not been
empowered to frame tariff with retrospective
effect so as to cover a period before its
constitution. The matter might have been
different if such a power had been conferred
on the Commission. It is now a well settled
principle of law that the rule of law inter alia
postulates that all laws would be prospective
subject of course to enactment of an express
provisions or intendment to the contrary."

10. The observations made by the
Hon'ble Apex Court clearly support the
stand advanced by the counsel for the
petitioners and contrary view in the facts
and circumstances of the case cannot be
possibly taken.

11. The learned counsel for the
respondents tried to defend the validity of
the tariff notification primarily on the
ground that the petitioners have an
alternative remedy before the Tribunal.
However, no satisfactory explanation
could be advanced as to the authority
under which the impugned notification
was made applicable retrospectively.

12. The argument of an alternate
remedy at this stage of proceedings carries no
weight particularly when the pleadings
between the parties have already been
exchanged and the question involved in the
writ petition is a pure question of law. Even
otherwise, the respondent corporation clearly
lacks legal authority under which it could
enforce
the
impugned
notifications
retrospectively. Therefore, the plea of
alternative remedy cannot be construed to be a
bar for entertaining the present writ petitions
under Article 226 of the Constitution of India

13. In view of the position of law stated
above, there is merit in the contention of the
learned counsel for the petitioners and
challenge to the retrospective application of the
impugned notifications is liable to succeed.

14. In the result, writ petitions are
allowed to the extent that the revised tariff
promulgated
by
the
U.P.
Electricity
Regulatory Commission on 19.10.2012,
published on 23.10.2012 and notified on
25.10.2012 shall be affective from 1.11.2012
and the applicability of the tariff as notified
from 1.10.2012 retrospectively is thus,
quashed. The amount, if any, realized from
the petitioners treating the tariff effective from
01.10.2012 shall be adjusted by the
respondent corporation in the future bills of
the respective petitioners in the bunch of
writ petitions mentioned hereinabove.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 15248 of 2014

Wasim Raja Khan..... Petitioner
Versus
Board of Revenue U.P. & Ors. Respondents

Counsel for the Petitioner:
Sri Yogesh Kumar Singh, Sri Subhash Singh
Yadav

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-order passed
by Commissioner as well as Board of
Revenue-challenging
on
ground-once
revision time barred-in absence of delay
condonation application-only course was to
dismiss revision as time barred-contrary to
that notices issued-revision against order
490 INDIAN LAW REPORTS ALLAHABAD SERIES

passed by S.D.O. under Section 33/39 L.R.
Act-without issue notices to the affected
parties while accepting report by Naib
Tehsildar-held-if
the
order
passed
by
Commissioner set-a-side illegal order of
SDO come into existence-hence illegal
order would revive can not be interferedthe SDO directed to decide the proceeding
after hearing to all concern within time
bond period.

Held: Para-16
In view of the aforesaid legal position, if the
order dated 15.7.2013 is interfered with
and quashed, another illegal order dated
30.4.2010 would revive. It is settled that if
by quashing of an illegal order, another
illegality revives in that eventuality, the
Court should not interfere with such orders
under the writ jurisdiction.

Case Law discussed:
2008 14 SCC 445; 2005 Volume 4 SCC 613;
(2009) 6 SCC 194; 2001(9) SCC 717;
2013(118) RD 48; (2010) 13 SCC 336; AIR
1966 SC 828; AIR 1970 SC 645; AIR 1999 SC
3609; AIR 2000 SC 2976; AIR 2003 SC 2889;
2003(4) Supreme 44; (2004) 6 SCC 800;
(2011) 3 SCC 436; 2013(8) ADJ 424.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri Yogesh Kumar Singh
along with Sri Subhash Singh Yadav,
learned counsel for the petitioner and
learned Standing Counsel for the State
respondents.

2. By means of this writ petition, the
petitioner has prayed for issuing a writ of
certiorari
quashing
the
orders
dated
15.7.2013
passed
by
the
Additional
Commissioner(Judicial II) Varanasi Division
Varanasi in Revision No. 231 of 2013 (Imran
Ansari Vs. Tasrifun and others) and order
dated 26.9.2013 passed by the learned
Member Board of Revenue in Revision No.
2668/LR/2012-13 (Tasrifun Nisha and
others Vs. Imran Ansari and others).

3. Vide order dated 15.7.2013, the
Additional Commissioner has allowed the
revision by setting aside the order dated
30.4.2010 passed by the Sub-Divisional
Officer in a proceeding under Section 33/39
of U.P.Land Revenue Act, 1901 ( in short
'the Act'). Whereas by the subsequent order
dated 26.9.2013, petitioner's revision has
been dismissed with the finding that there is
no illegality in the order passed by the
learned Additional Commissioner.

4. While assailing the impugned
orders, learned counsel for the petitioner
contends that the Revision No.231 of 2013
was filed against the order dated 30.4.2010
and the said revision was barred by time. The
learned
Additional
Commissioner
has
allowed the revision at the admission stage
without condoning the delay and without
issuing notice to the petitioner and the
learned Member Board of Revenue has
committed manifest error of law in not
interfering with the order dated 15.7.2013
saying that the order was passed on merit.

5. The contention of learned counsel
for the petitioner is that once the statute
provides period of limitation and also
provides that if any person approaches the
court after expiry of period of limitation,
he can get the benefit of Section 5 of
Limitation Act. In that eventuality, if at
the time of filing of revision, there was no
application for condonation of delay, only
course for the revisional court was to
dismiss the revision as barred by time and
in no case, he could proceed with the
matter to decide the case on merit, unless
an application is filed for condonation of
delay and the delay is condoned after due
notice to the parties concerned.

6. The view taken by me finds
support from the decision of the Apex
1 All] Wasim Raja Khan Vs. Board of Revenue U.P. & Ors.

491
Court in Noharlal Verma Vs. District
Cooperative Central Bank Ltd. Jagdalpur
2008 14 SCC 445, where the Apex Court
has held as under :-

" 32. Now, limitation goes to the root
of the matter. If a suit, appeal or
application is barred by limitation a court
or an adjudicating authority has no
jurisdiction,
power
or
authority
to
entertain such suit, appeal or application
and to decide it on merits.

33. Sub Section (1) of Section 3 of
the Limitation Act, 1963 reads as under:

" 3. Bar of Limitation.- (1) Subject to
the provisions contained in Sections 4 to
24 (inclusive) every suit instituted, appeal
preferred, and application made after the
prescribed period shall be dismissed
although limitation has not be set up as a
defence."

Bare reading of the aforesaid provision
leaves no room for doubt that if a suit is
instituted, appeal is preferred or application
is made after the prescribed period, it has to
be dismissed even though no such plea has
been raised or defence has been set up. In
other words, even in the absence of such plea
by the defendant, respondent or opponent,
the court or authority must dismiss such suit,
appeal or application, if it is satisfied that the
suit, appeal or application is barred by
limitation."

7. In V.M. Salgaocar and Bros. Vs.
Board of Trustees of Port of Mormugao
and another 2005 Volume 4 SCC 613,
following observation has been made by
the Apex Court.

20 " The mandate of Section 3 of the
Limitation Act is that it is the duty of the
court to dismiss any suit instituted after
the
prescribed
period
of
limitation
irrespective of the fact that limitation has
not been set up as a defence. If a suit is ex
facie barred by the law of limitation, a
court has no choice but to dismiss the
same even if the defendant intentionally
has not raised the plea of limitation."

8. In the case of Sneh Gupta Vs. Devi
Sarup and others, (2009)6 SCC 194, in
paragraph 70, the Apex Court has held that in
absence of any application for condonation of
delay, the court has no jurisdiction in terms of
S. 3, Limitation Act, 1963 to entertain the
application filed for setting aside of decree
after expiry of period of limitation.

9. In 2001 (9) SCC 717, Ragho Singh
Vs. Mohan Singh, the Apex Court has held
as under:-

" We have heard learned counsel for
the parties. Since it is not disputed that
the appeal filed before the Additional
Collector was beyond time by 10 days and
an application under Section 5 of the
Limitation
Act
was
not
filed
for
condonation of delay, there was no
jurisdiction in the Additional Collector to
allow that appeal. The appeal was liable
to be dismissed on the ground of
limitation. The Board of Revenue before
which the question of limitation was
agitated was of the view that though an
application for condonation of delay was
not filed, the delay shall be deemed to
have been condoned. This is patently
erroneous. In this situation, the High
Court was right in setting aside the
judgment of the Additional Collector as
also of the Board of Revenue. We find no
infirmity in the impugned judgment. The
appeal is dismissed. No costs."

10. The same view has been
reiterated by this Court in Prabhu and
Another
Vs.
Deputy
Director
of
492 INDIAN LAW REPORTS ALLAHABAD SERIES

Consolidation and others 2013 (118) RD
48, wherein this Court has observed as
under :-

In view of foregoing discussions, the
controversy can be summarized as
under:-

(i)
When
the
statute
provides
limitation for approaching the Court and
a person approaches the Court after the
expiry of the period of limitation, then he
has to approach the Court along with an
application under Section 5 of the
Limitation Act praying extension of
period of limitation or to condone the
delay in approaching the Court.

(ii) Once the application under
Section 5 of the Limitation Act is filed and
unless the delay is condoned, no order
can be passed on merit .

(iii) The delay cannot be condoned
without having the version of otherside
and for that, otherside is required to be
noticed and heard.

11. On being confronted that what is
the period of limitation, learned counsel
for the petitioner contends that the period
of limitation is three years, which has also
been endorsed by the learned Standing
Counsel.

12. Since the revision was filed in July,
2013 and the period of three years has
expired in April, 2013, therefore the revision
was barred by time and the first revisional
court has erred in allowing the revision
without condoning the delay. Learned
counsel for the petitioner may be right in his
submissions but in the revision, the order
dated 30.4.2010 passed by the SubDivisional Officer was under challenge,
which is reproduced hereinunder :-

" Lohd`r @rnuqlkj ijokuk tkjh gks A

g0 vifBr

,l0Mh0vks0

30-04-2010"

13. The order dated 30.4.2010 was
passed on the report of the Naib
Tehsildar,
Western
Mohammadabad,
District Ghazipur for recording the name
of the petitioner over the land in dispute.
The
Sub-Divisional
Officer
without
applying his mind and without addressing
himself on the contents of the report and
without there being any notice to the
otherside, has accepted the report.

14. Since the order has been passed in
a proceeding under Section 33/39 of the Act,
it was incumbent upon the Sub-Divisional
Officer to issue notice to the affected parties
and only thereafter, he could pass the order.
Otherwise also, the order impugned is cryptic
one as it do not contain any reason for
accepting the report.

15. The Apex Court in Sant Lal Gupta
and others vs. Modern Cooperative Group
Housing Society Limited and others, (2010)
13 SCC 336 has observed as under:-

"27.....The reason is the heartbeat of
every conclusion. It introduces clarity in an
order and without the same, the order
becomes
lifeless.
Reasons
substitute
subjectivity with objectivity. The absence of
reasons renders an order indefensible/
unsustainable particularly when the order is
subject to further challenge before a higher
forum. Recording of reasons is principle of
natural justice and every judicial order must
be supported by reasons recorded in writing.
It ensures transparency and fairness in
decision making. The person who is adversely
affected must know why his application has
been rejected. [Vide: State of Orissa v.
1 All] Akash Goel Vs. State of U.P. and Ors.

493
Dhaniram Luhar AIR 2004 SC 1794; State of
Rajasthan v. Sohan Lal & Ors. (2004) 5 SCC
573; Vishnu Dev Sharma v. State of Uttar
Pradesh & Ors. (2008) 3 SCC 172; Steel
Authority of India Ltd. v. Sales Tax Officer,
Rourkela I Circle & Ors. (2008) 9 SCC 407;
State of Uttaranchal & Anr. v. Sunil Kumar
Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C.
v. Jagdish Prasad Gupta AIR 2009 SC 2328;
Ram Phal v. State of Haryana & Ors. (2009)
3 SCC 258; State of Himachal Pradesh v.
Sada Ram & Anr. (2009) 4 SCC 422; and The
Secretary & Curator, Victoria Memorial Hall
v. Howrah Ganatantrik Nagrik Samity &
Ors., AIR 2010 SC 1285).

16. In view of the aforesaid legal
position, if the order dated 15.7.2013 is
interfered with and quashed, another illegal
order dated 30.4.2010 would revive. It is
settled that if by quashing of an illegal order,
another illegality revives in that eventuality,
the Court should not interfere with such
orders under the writ jurisdiction.

17. The view taken by me finds support
from the judgments of the Apex Court in
Gadde Venkateswara Rao Vs Government of
Andhra Pradesh & Ors. AIR 1966 SC 828,
Champalal Binani Vs. CIT, West Bengal AIR
1970 SC 645, Maharaja Chintamani Saran
Nath Shahdeo Vs. State of Bihar & Ors. AIR
1999 SC 3609, Mallikarjuna Mudhagal
Nagappa & Ors. Vs. State of Karnataka &
Ors. AIR 2000 SC 2976, Chandra Singh Vs
State of Rajasthan, AIR 2003 SC 2889, S.D.S.
Shipping Pvt. Ltd. Vs. Jay Container Services
Co. Pvt. Ltd. & Ors. 2003 (4) Supreme 44,
State of Uttaranchal & Anr. Vs. Ajit Singh
Bhola & Anr. (2004) 6 SCC 800 and State of
Orissa & Anr. Vs Mamata Mohanty, (2011) 3
SCC 436.

18. This Court has reiterated the
same view in Smt. Shanti And Another
Vs. Board of Revenue Lko. And 3 Others,
2013 (8) ADJ 424.

19. In view of foregoing discussions, I
am not inclined to interfere with the impugned
orders. The writ petition is dismissed.

20. However, in the last, learned
counsel for the petitioner contended that a
direction may be issued to the SubDivisional Officer to pass appropriate
order in proceeding on merit after hearing
both the sides expeditiously.

21. I find substance in the submission
of learned counsel for th petitioners.
Therefore,
the
Sub-Divisional
Officer,
Mohammadabad,
District
Ghazipur,
is
directed to conclude the proceedings in
accordance with law after hearing all
concerned, expeditiously but not later than ten
months from the date of receipt of certified
copy of the order of this Court.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2014

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 15389 of 2008

Akash Goel..... Petitioner
Versus
State of U.P. and Ors...... Respondents

Counsel for the Petitioner:
Sri L.C. Srivastava

Counsel for the Respondents:
C.S.C., Sri B.P. Singh, Sri Sandeep Singh, Sri
Ajay Kumar Sharma, Sri Bhola Nath Yadav.

Constitution of India, Art.-226-Service Lawcompassionate
appointment-petitioner
being adopted son-claim rejected as on the