Allahabad High Court
Brijesh vs State Of U.P. And 4 Others on 10 August, 2022
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 32
Case :- WRIT - B No. - 297 of 2022
Petitioner :- Brijesh
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Kamal Kumar Singh,Dharnidhar Pandey
Counsel for Respondent :- C.S.C.,Pankaj Kumar Gupta,Surya Shanker Pandey
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner, learned counsel for private respondent no.5, learned counsel for respondent no.6-Gaon Sabha and the learned Standing Counsel representing respondents no.1 to 4.
A very short question, as to whether the order dated 09.02.2021 passed by the Additional Commissioner in exercise of his power under Section 210 of the U.P. Revenye Code, 2006 (in brevity 'Code, 2006') in a revision arising out of proceeding under Section 34 of the U.P. Land Revenue Act (in brevity 'L.R. Act') is sustainable in the eyes of law or not, is involved in the instant writ petition.
Facts culled out from the averments made in the instant writ petition reveals that the present petition is arising out of proceeding under Section 34 of the L.R. Act. The Tehsildar has passed the order dated 16.01.2017. Against the said order a recall application was filed which was allowed vide order dated 13.07.2017. Having been aggrieved with the order passed on the recall application, present petitioner has preferred revision which was allowed vide order dated 09.02.2021. Feeling aggrieved against the order dated 09.02.2021 passed by the Additional Commissioner, respondent no. 5 has preferred revision before the Board of Revenue. Aforesaid revision was allowed vide order dated 07.09.2021 passed by the Board of Revenue and the matter was remitted before the Additional Commissioner. While passing the remand order dated 07.09.2021, the Board of Revenue has taken into consideration the provision of Code, 2006 and observed that, initially, proceeding was initiated under the L.R. Act, therefore, filing of revision under the provisions of Code, 2006 is not maintainable in the eyes of law and the order passed by the Additional Commissioner, exercising his power under Section 210 of Code, 2006 is non est. The Board of Revenue has cited the provision as enunciated under Section 231 of Code, 2006 which is quoted herein below :-
"231. Applicability of the Code to pending proceedings. -(1) Save as otherwise expressly provided in this Code, all the 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 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."
As per provisions, mentioned above, all the cases pending before the State Government or any Revenue Court immediately before the commencement of Code, 2006, whether an appeal, revision or otherwise, shall be decided in accordance with the previous law which was applicable before the commencement of Code, 2006. In the matter in hand, proceeding was initiated under Section 34 of the L.R. Act. Memo of revision dated 24.07.2017 (Annexure-3) reveals that it was filed under Section 219 of the L.R. Act coupled with the new Section 210 of Code, 2006. In the memo of revision, both the provisions have been mentioned but perusal of caption of case in the order dated 07.09.2021 indicates that the Additional Commissioner has exercised his power under Section 210 of Code, 2006.
In my opinion, simple difference of nomenclature will not effect the jurisdiction of the Court, in case, the power exists otherwise in the same authority who has passed the order. Under either of the provisions namely Section 210 of the Code, 2006 and Section 219 of the L.R. Act, the Additional Commissioner is the competent authority to pass an order and difference of nomenclature, as indicated in the caption of case in the order dated 09.02.2021, would not effect the jurisdiction of the Additional Commissioner and cannot prove fatal to the right and title of the parties concerned under litigation. In the memo of revision both provisions were mentioned. Even assuming that revision was filed under Section 210 of Code, 2006 and the learned Additional Commissioner has passed the order under Section 210 of the Code, 2006, it would not amount that the order passed is without jurisdiction. It cannot be said that he has an inherent lack of jurisdiction to pass such order in a revision arising out of proceeding under Section 34 of the L.R. Act. Citing wrong section of provision of law would not make the proceeding illegal decided by the Additional Commissioner who is otherwise competent to decide the revision. Identical issue was considered in the case of Abubakar vs. Momin Girls High School & Another reported in 2022 (154) R.D., 312. In the matter of Isha Beevi & Others vs. Tax Recovery Officer & Others reported in A.I.R. (1975) S.C., 2135, the Hon'ble Apex Court has expounded that citing of wrong provision of law is not enough if the order to proceed actually therein under other provision. The relevant portion of paragraph no. 5 of the aforesaid Apex Court judgment is reproduced herein below :-
"5. ..........................The grievance of the appellants, however, is that the tax recovery officer had no jurisdiction whatsoever to start tax recovery proceedings against them. They have, therefore, asked for writs of prohibition. The existence of an alternative remedy is not generally a bar to the issuance of such a writ or order. But, in the order to substantiate a right to obtain a writ of prohibition from a High Court or from this Court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority complained against. It is not enough if a wrong section of provision of law is cited in a notice or order if the power to proceed is actually there under another provision."
In this conspectus as above, I am of the considered opinion that wrong mentioning of provisions cannot vitiates the order passed by the authority concerned, in case the jurisdiction otherwise exists in the same authority. I find substance in the present petition. Accordingly, it succeeds and allowed. Order dated 07.9.2021 passed by the Board of Revenue is hereby quashed. Revision is restored to its original number and the parties are relegated before the Board of Revenue to get the revision decided afresh. However, it is provided that the Board of Revenue shall make an endeavour to decide the revision, in accordance with law, expeditiously, preferably within a period of ten months from the date of production of certified copy of this order.
With the aforesaid observations/direction, the instant writ petition is allowed.
Order Date :- 10.8.2022
VR
