Allahabad High Court
Mahendra Pratap And Another vs State Of U.P. And 6 Others on 26 April, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 05.04.2023
Delivered On:- 26.04.2023
Case :- CIVIL MISC REVIEW APPLICATION No. - 335 of 2022
Applicant :- Mahendra Pratap And Another
Opposite Party :- State Of U.P. And 6 Others
Counsel for Applicant :- Pavan Kumar Srivastava,Bare Lal
Counsel for Opposite Party :- C.S.C.,Abhishek Kumar Yadav,Aprajit Yadav,Azad Rai,Bhola Nath Yadav,Moni Gupta,Shyam Lal Yadav
Hon'ble Siddharth, J.
1. Heard Sri Bare Lal, learned counsel for the applicant and Sri Abhishek Kumar Yadav, learned counsel for the opposite party.
2. This review application has been filed on behalf of the petitioners praying for review of the order dated 23.06.2022 passed by this Court in Writ -B No. 1372 of 2022 on the ground that in Section 24(4) of U.P. Revenue Code, 2006, the words "the order of Commissioner shall be final,", the phrase "the order of Commissioner shall, subject to provisions of Section 210, be final," has been substituted hence it has been submitted that the revision preferred by the respondent no. 2 was not maintainable without filing of appeal before the commissioner.
3. Learned counsel for the petitioners has relied upon a judgment of a coordinate Bench of this Court in the case of Jhinka Devi vs. State of U.P. and Others reported in 2022 0 Supreme (All) 471.
4. Counsel for the petitioners submits that in the present case no appeal was preferred at all by the respondent no. 5 and therefore availing remedy of revision without preferring the appeal as per Section 24(4) of U.P. Revenue Code was not in accordance amended Section 280 of Code.
5. Counsel for the respondent no. 5 has relied upon the judgment passed by the division Bench of this Court in review petition filed in Special Appeal No. 1083 of 2019 and has relied upon in paragraph nos. 9 and 10 of the aforesaid judgment :-
"9. Therefore, the settled law is that power of review is available only when there is an error apparent on the face of the record and not on erroneous decision. If the parties aggrieved by the judgment on the ground that it is erroneous, remedy is only questioning the said order in appeal. The power of review under Order XLVII, rule 1, CPC may be opened inter alia, only if there is a mistake or an error apparent on the face of the record, the said power cannot be exercised as is not permissible for an erroneous decision to be "reheard and corrected." A review application also cannot be allowed to be "an appeal in disguise".
10. Same view was also expressed by a co-ordinate Bench of this Court while dealing with review application filed in the Writ Petition in the case T.P. Singh vs. Registrar/Assistant Registrar Firms and Another, 2018 (4) ADJ 782."
6. A coordinate Bench of this Court in the case of Jhinka Devi (Supra) considered the scheme of the code regarding Section 24 and Section 210 as amended from time to time as follows :-
" 7. The Uttar Pradesh Revenue Code Bill, 2006 was passed by the Uttar Pradesh Legislative Assembly and assented to by the President on 29 November, 2012 and published in the U.P. Gazette (Extra.), Part I, Section (ka) on 12 December 2012, vide Vishay Anubhag-1-Noti. No. 1044 (2) 179-v-12-1 (ka) 33/2006, dated 12 December, 2012 as U.P. Act No. 8 of 2012. Vide Noti. No. 1879/1-1-2015-15(1)/1998-19T.C.III dated 18 December 2015, Sections 1, 4-19, 233 and 234 of the U.P. Revenue Code, 2006 (U.P. Act No. 8 of 2012) came into force on 18 December, 2015 and the remaining provisions of the said Act came into force on 11 February 2016.
8. The provisions with regard to settlement of boundary disputes are contained under Section 24 of the Code. Section 24 of the Code, as it originally stood, is being extracted below :-
"24. Disputes regarding boundaries.─(1) The Sub-Divisional Officer may, on his own motion or on an application made in this behalf by a person interested, decide, by summary inquiry, any dispute regarding boundaries on the basis of existing survey maps or, where they have been revised in accordance with the provisions of the Uttar Pradesh Consolidation of Holdings Act, 1953, on the basis of such maps, but if this is not possible, the boundaries shall be fixed on the basis of actual possession.
(2) If in the course of an inquiry into a dispute under sub-section (1), the Sub-Divisional Officer is unable to satisfy himself as to which party is in possession or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupant, the Sub-Divisional Officer shall─
(a) in the first case, ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession;
(b) in the second case, put the person so dispossessed in possession, and for that purpose use or cause to be used such force as may be necessary and shall then fix the boundary accordingly.
(3) Every proceeding under this section shall, as far as possible, be concluded by the Sub-Divisional Officer within six months from the date of the application.
(4) Any person aggrieved by the order of the Sub-Divisional Officer may prefer an appeal before the Commissioner within 30 days of the date of such order. The order of the Commissioner shall be final."
Section 210 of the Code, as it originally stood, is as follows :-
"210 Power to call for the records.―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, or where an appeal lies but has not been preferred, 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.
(3) No application under this section shall be entertained after the expiry of a period of thirty days from the date of the order sought to be revised or from the date of commencement of this Code, whichever is later."
7. The Uttar Pradesh Revenue Code, 2006 was amended in terms of the Uttar Pradesh Revenue Code (Amendment) Act, 2016 [U.P. Act No. 4 of 2016]. The amendments made to Section 24 and Section 210 in the amending Act of 2016.
8. The provisions under Section 24 and Section 210 consequent to the amendment made in terms of the U.P. Act No. 4 of 2016, stood as follows :-
"24. Disputes regarding boundaries.─(1) The Sub-Divisional Officer may, on his own motion or on an application made in this behalf by a person interested, decide, by summary inquiry, any dispute regarding boundaries on the basis of existing survey map or, where the same is not possible in accordance with the provisions of the Uttar Pradesh Consolidation of Holdings Act 1953, on the basis of such maps.
(2) If in the course of an inquiry into a dispute under sub-section (1), the Sub-Divisional Offices is unable to satisfy himself as to which party is in possession or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupant, the Sub-Divisional Officer shall─
(a) in the first case, ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession;
(b) in the second case, put the person so dispossessed in possession, and for that purpose use or cause to be used such force as may be necessary and shall then fix the boundary accordingly.
(3) Every proceeding under this section shall, as far as possible, be concluded by the Sub-Divisional Officer within three months from the date of the application.
(4) Any person aggrieved by the order of the Sub-Divisional Officer may prefer an appeal before the Commissioner within 30 days of the date of such order. The order of the Commissioner shall be final."
"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."
9. The U.P. Revenue Code, 2006 was subject to further amendments made in terms of the Uttar Pradesh Revenue Code (Amendment) Act, 2019 [U.P. Act No. 7 of 2019], which was deemed to come into force on March 10, 2019.
10. The provisions contained under Section 24 and Section 210 consequent to the amendments made as per the terms of the U.P. Act No. 7 of 2019 now stand as under :-
"24. Disputes regarding boundaries.─ (1) The Sub-Divisional Officer may, on his own motion or on an application made in this behalf by a person interested, decide, by summary inquiry, any dispute regarding boundaries on the basis of existing survey map or, where the same is not possible in accordance with the provisions of the Uttar Pradesh Consolidation of Holdings Act 1953, on the basis of such maps.
(2) If in the course of an inquiry into a dispute under sub-section (1), the Sub-Divisional Offices is unable to satisfy himself as to which party is in possession or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupant, the Sub-Divisional Officer shall─
(a) in the first case, ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession;
(b) in the second case, put the person so dispossessed in possession, and for that purpose use or cause to be used such force as may be necessary and shall then fix the boundary accordingly.
(3) Every proceeding under this section shall, as far as possible, be concluded by the Sub-Divisional Officer within three months from the date of the application.
(4) Any person aggrieved by the order of the Sub-Divisional Officer may prefer an appeal before the Commissioner within 30 days of the date of such order. The order of the Commissioner shall, subject to the provisions of Section 210, be final."
"210 Power to call for the records.―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."
11. This Court further held that in order to appreciate the rival contentions, the provisions contained under sub-section (4) of Section 24, as they stood prior to the amendment brought about by the U.P. Act No. 7 of 2019 and post the amendment, would have to be considered in juxtaposition, as follows :-
Pre-amendment Post-amendment Section 24 (4).─Any person aggrieved by the order of the Sub-Divisional Officer may prefer an appeal before the Commissioner within 30 days of the date of such order. The order of the Commissioner shall be final.
Section 24 (4).─Any person aggrieved by the order of the Sub-Divisional Officer may prefer an appeal before the Commissioner within 30 days of the date of such order. The order of the Commissioner shall subject to the provisions of Section 210 be final.
12. Under the pre-amended provision the order of the Commissioner passed in an appeal under sub-section (4) of Section 24, against the order of the Sub-Divisional Officer under sub-section (1) of Section 24, was to be final. The amending Act of 2019 has made the finality attached to the order of the Commissioner under sub-section (4) subject to the provisions of Section 210.
13. Section 210, as it stands after the amendment brought about by the U.P. Act No. 4 of 2016, empowers the Board or the Commissioner to call for the record of any suit or proceedings decided by any subordinate revenue court "in which no appeal lies" for the purpose of satisfying itself as to the legality or propriety of any order passed in such suit or proceedings.
14. The Board or the Commissioner, may pass such order in the case as it thinks fit, if the 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.
15. It would therefore be seen that under Section 210, the Board or the Commissioner, may exercise the power to call for the record of any suit or proceedings decided by any subordinate revenue court, under the following conditions :-
(i) where no appeal lies; and
(ii) the 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 thereafter pass such order in the case as it or he thinks fit.
16. A plain reading of the aforesaid provisions at first blush would suggest that the remedy of a revision under Section 210 being available in a case where no appeal lies, the order passed by the Commissioner under sub-section (4) of Section 24 would not be revisable before the Board under Section 210.
17. The aforesaid proposition, though seemingly attractive, would have to be examined in the context of the amendment made to sub-section (4) of Section 24 by the amending Act of 2019 in terms of which the finality attached to the order of the Commissioner passed in the appeal has been made subject to the provisions of Section 210.
18. The provisions contained under sub-section (4) of Section 24, as they stand post the amendment of the year 2019, whereby the finality attached to the order passed by the Commissioner in appeal has been made subject to the provisions of Section 210, has to be read together with the apparently conflicting provisions under Section 210 which contains an interdict that the revisional powers thereunder are to be exercised where no appeal lies.
19. It is a settled principle of statutory construction that the provisions of a statute are to be read in a way that renders them compatible and not contradictory.
20. From the reading of the aforesaid ratio of this Court, it is clear that Section 210 whereunder the Board is empowered to call for the records of any suit or proceedings "decided" by any "subordinate revenue court", indicates the legislative intent that a revision would lie against judicial adjudications of suits and proceedings; administrative proceedings conducted by those very authorities being not within the purview of Section 210. The Sub-Divisional Officer, acting under sub-section (1) of Section 24, is empowered to "decide" any "dispute" regarding boundaries, and the order passed by the Sub-Divisional Officer is subject to an appeal under sub-section (4) before the Commissioner; the order of the Commissioner thereafter is to be final. The provisions contained sub-section (1) and sub-section (4) of Section 24 leave no room for doubt that the Sub-Divisional Officer and also the Commissioner exercising powers thereunder, discharge judicial functions.
21. The Sub-Divisional Officer while deciding the dispute regarding boundaries in exercise of powers under sub-section (1) of Section 24 of the Code, which corresponds to Section 41 of the U.P. Land Revenue Act (repealed), acts as a "Revenue Court". The Commissioner while deciding an appeal under sub-section (4) against an order passed by the Sub-Divisional Officer, also acts as a "Revenue Court", and as such would be a court subordinate to the Board of Revenue and subject to its revisional jurisdiction.
22. The mere fact that there is no further appeal against the order passed by the Commissioner in an appeal under sub-section (4) of Section 24 would not be held to create a bar in invocation of the revisional jurisdiction of the Board of Revenue under section 210 of the Code. The jurisdiction conferred on the Board under Section 210 to revise the orders passed by the subordinate revenue courts would not be dependent on a motion being made by a party to the case inasmuch as the section confers power upon the Board to exercise revisional jurisdiction independent of any such motion having been made. The fact that a right of appeal is not given to the party concerned would therefore not be held to affect the jurisdiction vested in the Board under Section 210.
23. `The provision under sub-section (4) of Section 24, as it existed, prior to the amending Act of 2019, that "the order of the Commissioner shall be final" would therefore be held to mean no more than that the order passed in appeal under sub-section (4) would not be subject to any second appeal. The provision with regard to finality attached to the order of the Commissioner under sub-section (4) would not in any manner be held to limit or control the revisional jurisdiction conferred upon the Board under Section 210.
24. In terms of the amendment made to sub-section (4) of Section 24 by the U.P. Act No. 7 of 2019, the finality attached to the order passed by the Commissioner in appeal has been made subject to the provisions of Section 210, and as per terms of Section 210, the power of the Board to call for the record of any subordinate court would be exercisable in case where no appeal lies.
25. The order of the Commissioner passed in exercise of powers under sub-section (4) of Section 24 is an order in appeal against the order of the Sub-Divisional Officer passed under sub-section (1) of Section 24, and this order is not subject to any second appeal under the Code. This is further clear from a reading of the Third Schedule of the Code wherein in respect of the provisions contained under Section 24 relating to disputes regarding boundary and boundary marks the court of original jurisdiction has been specified in column 3 as the court of Sub-Divisional Officer and the court of first appeal is mentioned in column 4 as the court of Commissioner; further column 5 pertaining to the second appeal is left blank. This goes to show that the order passed by the Commissioner in appeal under sub-section (4) of Section 24 against the order of the Sub-Divisional Officer acting as a court of original jurisdiction under sub-section (1) of Section 24, has a finality attached to it inasmuch as there is no provision of a second appeal against the said order.
26. By virtue of the amendment made to sub-section (4) of Section 24 in terms of U.P. Act No. 7 of 2019 the finality attached to the order of the Commissioner in appeal, has now been made subject to Section 210. There being no provision under the Code for a second appeal against the order of the Commissioner passed under sub-section (4) of Section 24, it can be said that against the order of the Commissioner in appeal, no further appeal lies, and therefore the necessary condition for invocation of the powers of the Board under Section 210 for calling the records and exercising revisional powers against the order passed by the Commissioner in appeal under sub-section (4) of Section 24, stands fulfilled.
27. On the above consideration this Court finds that there is error appeared on the face of record of the order under review. It has been passed without considering the latest amendments to Sections 24 and 210 of U.P. Revenue Code, 2006. No amount of detailed hearing or reasoning is required. The decision is not being reversed on merits. The order if allowed to stand would occasion miscarriage of justice. The relevant amendments to the aforesaid sections were not brought to the notice of this Court at the time of arguments by the counsel for the petitioners.
28. Hence, this review application is allowed. The order dated 26.06.2022 passed by this Court is reviewed and recalled.
29. List this writ petition before appropriate Court for admission on 08.05.2023 as a fresh case.
Order Date :- 26.04.2023
Rohit
