Charan Singh vs State Of U.P. And 3 Others
2019 Latest Caselaw 294 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 37
 

 
Case :- WRIT - C No. - 43025 of 2018
 

 
Petitioner :- Charan Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vishal Khandelwal
 
Counsel for Respondent :- C.S.C.,Manu Singh
 

 
Hon'ble Siddhartha Varma,J.

In the instant writ petition when it came to the notice of the Court that a Revision had been filed against the judgement and decree of the Trial Court passed in a Suit filed under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, (hereinafter referred to as 'the Act') then a specific query was raised by the Court as to how a Revision could be maintained in view of the provisions of Section 207 of the U.P. Revenue Code, 2006, (hereinafter referred to as 'the Code') wherein it has been stated that if a party was aggrieved by a final order or decree passed in any suit specified in Column 2 of the 3rd Schedule then he had to file a First Appeal to the Court specified in Column 4 of the 3rd Schedule.

Learned counsel submitted that since there was a judgement of this Court dated 20.4.2017 passed in the Misc. Single No. 8354 of 2014 (Anand Kumar Singh & Another vs. State of U.P. Thru. Seyc. Revenue U.P. Civil Sectt. & Ors.) reported in 2017 (135) RD 642 laying down the law that after the enforcement of the Code on 11.2.2016, the remedy as was available in the earlier enactment/provisions, would still be available, the Revision was definitely maintainable. He submitted that as per the provisions of the U.P.Z.A. & L.R. Act, a Revision was maintainable under Section 333 which had provided that a Revision was maintainable if a statutory remedy of appeal, which lay, had not been availed of. He, therefore, submitted that as per the judgement and order dated 20.4.2017 reported in 2017 (135) RD 642, a Revision was maintainable as per the U.P.Z.A. & L.R. Act, 1950.

To bolster his submissions learned counsel for the petitioner read out paragraph 21 of the judgement reported in 2017 (135) RD 642. Since the counsel for the petitioner read out paragraph 21, the same is being reproduced here as under:-

"21. 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."

Learned counsel further relied upon a judgement reported in 2016 (133) RD 798 (Lakshmi Prasad vs. Commissioner (Judicial), Varanasi Region, Varanasi and others) and specifically relying upon paragraph 16 of the judgement submitted that a Revisional jurisdiction could be invoked in place of an appellate jurisdiction where a Revision had been filed instead of an appeal. Since the learned counsel read out paragraph 16, the same is being reproduced here as under:-

"16. The revisional jurisdiction can be invoked in place of appellate jurisdiction and therefore, in cases where a revision is filed instead of an appeal, in view of the provisions contained in the second part of section 219, the same is akin to an appeal and must be held to be continuation of the proceedings."

Further learned counsel for the petitioner relied upon judgments reported in AIR 1953 SC 221 (Messrs. Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and Others and AIR 1957 SC 540 (Garikapati Veeraya v. N. Subbiah Choudhry and others). As the learned counsel read out paragraph 23 of the judgment reported in AIR 1957 SC 540, the same is being reproduced here as under:-

"23. From the decisions cited above the following principles clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. "

Still further learned counsel relied upon AIR 1928 Lahor 627 (FB) : (Bhai) Kirpa Singh v. Rasalldar Ajaipal Singh and Others. Learned counsel submitted, by placing reliance on the above judgments, that a right to appeal is a substantive right which accrues to a plaintiff or even to a defendant, the day a suit is filed and, therefore, he submitted that a right to appeal is not a mere matter of procedure but is a substantive right.

Learned counsel relying upon section 230 (2) of the Code submitted that notwithstanding the repeal of the enactments provided in the first schedule appended to the U.P. Revenue Code, 2006, the validity of any substantive right could not be taken away and, therefore, submitted that since the right to appeal was a substantive right, it could not be taken away by the subsequent enactment of 2006.

Learned Standing Counsel Sri Rajesh Kumar, in reply, however, has submitted that as per Section 231 of the U.P. Revenue Code, 2006, only such proceedings which were pending on 11.2.2016 would be governed by the earlier Act i.e. the U.P. Zamindari Abolition and Land Reforms Act, 1950, and if any Appeal or Revision had to be filed against the order which would be passed in the pending proceeding after the commencement of the U.P. Revenue Code, 2006 then they would have to be filed as per the Section 231 of the Code in a forum which was provided by the Code.

Learned Standing Counsel drew the attention of the Court to Section 333 of the U.P.Z.A. & L.R. Act, 1950, and Sections, 207, 210, 230 and 231 of the U.P. Revenue Code, 2006, and submitted that a bare perusal of the provisions of Sections 231 and 210 of the U.P. Revenue Code, 2006, would make it clear that a Revision would not lie if an Appeal was maintainable. He submitted that though as per the U.P.Z.A. & L.R. Act, 1950, a Revision was maintainable if an Appeal was not preferred, but as per the new enactment i.e. U.P. Revenue Code, 2006, a Revision would not lie if an Appeal was provided and had not been preferred. Since the learned Standing Counsel read out the Section 333 of the U.P.Z.A. & L.R. Act, 1950, and Sections 207, 210, 230 and 231 of the U.P. Revenue Code, 2006, they are being reproduced here as under:-

"Section 333 of the U.P.Z.A. & L.R. Act,1950-

333. Power to call for cases. - (1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding [other than proceeding under sub-section (4-A) of Section 198] decided by any court subordinate to him in which appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding and if such subordinate court appears to have;

(a) exercised a jurisdiction not vested in it by law;or

(b) failed to exercise a jurisdiction so vested; or

(c) acted in the exercise of jurisdiction illegally or with material irregularity;

the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit.

(2) If an application under this section has been moved by any person either to the Board or to the Commissioner or to the Additional Commissioner, no further application by the same person shall be entertained by any other of them.]"

Sections 207, 210, 230 & 231 of the U.P. Revenue Code, 2006

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

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

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

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

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

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

210. Power to call for the records.-(1) The Board or the Commissioner may call for the record of any suit or proceeding decided by any sub-ordinate Revenue Court in which no appeal lies, for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or proceeding, and if such subordinate Court appears to have-

(a) exercised a jurisdiction not vested in it by law; or

(b) failed to exercise a jurisdiction so vested; or

(c) acted in the exercise of such jurisdiction illegally or with material irregularity;

the Board, or the Commissioner, as the case may be, may pass such order in the case as it or he thinks fit.

(2) If an application under this section has been moved by any person either to the Board or to the Commissioner, no further application by the same person shall be entertained by the other of them.

Explanation. - For the removal of doubt it is, hereby, declared that when an application under this section has been moved either to the Board or to the Commissioner, the application shall not be permitted to be withdrawn for the purpose of filing the application against the same order to the other of them.

(3) No application under this section shall be entertained after the expiry of a period of sixty days from the date of the order sought to be revised or from the date of commencement of this Code, whichever is later.

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 affect-

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

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

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) 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.

Learned Standing Counsel further submits that since Section 231 does not preserve the remedies which might have been available upon the conclusion of any proceedings, the remedies available upon the decision of the appeal, revision, review or suit etc. would be governed by the U.P. Revenue Code, 2006. Learned Standing Counsel also relied upon the judgement reported in AIR 1957 SC 540 (Garikapati Veeraya v. N. Subbiah Choudhry and others) and he also relied upon paragraph 23 of the judgement and submitted that a vested right of appeal could always be taken away by a subsequent enactment if it so provided expressly or by necessary intendment.

Since learned Standing Counsel specifically relied upon paragraph 23(v) of the judgement, the same is being reproduced here as under: -

"23. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. "

He, therefore, submits that proceedings, be they of a Suit, Revision or Appeal which were pending on 11.2.2016 alone would continue and any remedy which would be available upon the decision of the Suit, Appeal or Revision after 11.2.2016 would be governed by the U.P. Revenue Code, 2006.

Having heard the learned counsel for the parties, and after going through the provisions of the two acts, I am of the opinion that as per Section 231 only such proceedings which were pending on 11.2.2016, i.e. the date on which the U.P. Revenue Code, 2006 was notified, should be governed by the provisions of the Old Act, namely, the U.P. Zamindari Abolition and Land Reforms Act, 1950. The remedies available after the disposal of the lis pending on 11.2.2016 would be those which were available under the new Act. Therefore, a Revision against an order/judgment/decree passed in a Suit after 11.2.2016 would not be maintainable. However, since as per the judgment and order dated 20.4.2017 reported in 2017 (135) RD 642, remedies available under the whole of the enactment in respect of proceedings instituted before the subordinate Revenue Court under the previous enactment had been saved, I am of the opinion that the matter should be referred to a Division Bench for reconsideration.

Under such circumstances, the following question may be referred to a Larger Bench :

"Whether when Section 231 of the Code specifically states that only such proceedings which were pending before the commencement of the Code would be decided in accordance with provisions of the law under which those proceedings were filed then would an Appeal or Revision against the orders/judgments/ decrees which would be 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."

Since the Revisional Court's order which has been challenged in this writ petition has yet not been adjudicated upon and since the question regarding the maintainability of the Revision is being referred by me to a Larger Bench, the parties to the lis may maintain strict status-quo.

The record of this case be placed before Hon'ble The Chief Justice.

Order Date :- 28.2.2019

praveen.

(Siddhartha Varma,J.)