Devi Baksh vs State Of U.P. Ministray Of Revenue, Lko. ...
2025 Latest Caselaw 8713 ALL

Allahabad High Court

Devi Baksh vs State Of U.P. Ministray Of Revenue, Lko. ... on 7 April, 2025

Author: Saurabh Lavania

Bench: Saurabh Lavania

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


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Neutral Citation No. - 2025:AHC-LKO:19474
 
Court No. - 7
 
Case :- WRIT - C No. - 3298 of 2025
 
Petitioner :- Devi Baksh
 
Respondent :- State Of U.P. Ministray Of Revenue, Lko. Thru . Prin. Secy. And 3 Others
 
Counsel for Petitioner :- Mohd. Murtaza Hasan,Anshuman Srivastava,Sadiya Khan
 
Counsel for Respondent :- C.S.C.,Pankaj Gupta
 

 
Hon'ble Saurabh Lavania,J.
 

1. Heard learned counsel for the petitioner, learned State Counsel and Shri Pankaj Gupta, learned counsel for Gaon Sabha.

2. The facts of the case which are relevant for the purpose of disposal of the present petition are as under.

(i) Under Section 122-B of U.P. Zamindari Abolition & Land Reforms Act, 1950 (in short 'Act of 1950') a case was instituted against the petitioner alleging therein that the petitioner has encroached the Gaon Sabha land, i.e. Gata No.1055 M., situated at Village- Wazeerganj (Mahadeva) Tehsil- Tarbganj, District - Gonda.

(ii) The case aforesaid u/s 122-B of the Act, 1950, registered as Case No.231, was decided vide order dated 21.11.2016 passed by Tehsildar/Assistant Collector, Tarabganj, Gonda. The order dated 21.11.2016 is extracted hereinunder.

"???????? ??? ?? ????????? ????????? ?????? ?? ??????? ?????? 30.10.13 ?? ???? ?? ???????? ?? ??? ?????????? ????? 49? ???? ????, ?? ?????? ???? ?????? ???????? ??? ??????? ?? ??? ?? ????? 49? ?? ??????? ?????? ???? ????? ???? ???? ???????? ??? ????? ?????? ?????? 17.11.16 ?? ??????? ?? ???????? ??????? ????? ???? ??? ??? ???????? ???? ??? ???? ?????

?????? ?????? ??????? ?????? 30.10.13 ??? ???? ?????? 1055 ??/0.0120 ??? ???? ???? ???? ?????? ??. ??????? ?? ?????? ??? ????????? ?????, ???? ? ???? ?? ????? ????? ????? ????? ???????? ?? ?????? ???? ??? ?????? ??? ?? ???? ?????? 1055??/0.1300 ???????????? ?????? ?? ???? ?????? 20.04.2015 ?????? ???? ???? ?? ???? ?? ????? ???? ????? ????-6 (2) ??? ???? ???? ??? ????? ???? ????? ???? ???? ???

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?? ?????? ??????? ?? ??????? ???? ????? 49? ???? ?? ???? ??? ??? ?????? ????????? ???????? ????? ????? ???"

3. Being aggrieved, an appeal under Section 67(5) of U.P. Land Revenue Code, 2006 (in short 'Code 2006'), registered as Appeal/Case No.430 of 2017, Computerized Case No.D201708300430 (State Vs. Devi Baksh & others) was filed.

4. At this stage it would be apt to refer the judgment dated 19.10.2023 passed in Writ-B No.695 of 2023 (Smt. Reeta Devi Vs. The Board of Revenue U.P. Lko. Thru. Its Member and 6 others) wherein this Court after taking note of Section 231 of the Code of 2006 and various pronouncements in para 25 observed as under.

"25. Having considered the facts of the case, indicated above, particularly that the case in issue was instituted under Section 229-B of the Act of 1950, the language couched under Section 231 of Code of 2006 as also taking note of observations of Hon'ble Apex Court and of this Court in the judgments, referred above, I am of the view that in the case in issue the Act of 1950 and the Rules made thereunder namely U.P. Zamindari Abolition and Land Reforms Rules, 1952, would be applicable and the same ought to have been considered and as such, the opposite party No.1-Board of Revenue, Lucknow, U.P., erred in law in dismissing the revision(s), indicated above, on the basis of provisions of Code of 2006 and Rules of 2016. Accordingly, this Court is of the view that interference in the matter is required."

5. A Division Bench of this Court in judgment dated 11.12.2024 passed in Writ-C No.43025 of 2018 (Charan Singh Vs. State of U.P. & others) also took similar view. Para(s) 2 and 14 to 17 of the judgment are extracted hereinunder has observed as under.

"2. The instant reference to the following effect has been placed before us by Hon?ble the Chief Justice. The issue raised in the reference is reproduced herein below for the sake of clarity:

?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.?

x x x x x x x

14. Having heard learned counsel for the parties and having gone through the record, we are of the view that the learned Single Judge, who had made the reference, had not considered the provisions of Section 230(2)(d) of the U.P. Revenue Code, 2006, in its right perspective, and therefore, while only considering the provision of Section 231 of the U.P. Revenue Code, 2006 the reference was made. Had the court been shown the provisions of Section 230(2)(d) of the U.P. Revenue Code, 2006 then it would have become clear that such remedies as were available to the party which had filed any lis before the commencement of the new Act then all the remedies would have continued as were available to the litigant at the time of the filing of the Suit. All remedies upon the filing of the Suit namely the filing of Appeals, Second Appeals, Revisions etc. are really but steps in a series of proceedings connected by an intrinsic unity and are to be treated to be as a one legal proceeding. The Right of Appeal is not a matter of procedure but is a substantive Right. The institution of a Suit carries with it the implication that all remedies in force at the time of the filing of the Suit were to be preserved to the parties till the rest of the career of the Suit. The Appeal or a remedy to go to higher Court accrues to a litigant on the very 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. In the instant case, since all remedies available at the time of the notification of the U.P. Revenue Code, 2006, had to continue, the remedy of Revision would also continue, even if it was not an inherent right which had accrued to the litigant as would be the case with an appeal.

15. Any repealing law which repeals an earlier law shall not affect the remedies available to a party which were available to the party on the date when the suit was filed. It would continue to be in existence for the litigant just as it was available to him or her on the date of the filing the lis. A vested right to go to a higher Court can be taken away by a subsequent enactment if the latter expressly provides or a bare reading of it shows that the right of going to a higher Court as per the earlier law had been by a necessary intendment taken away.

16. In the case at hand, we find that not only by the repealing act the remedies of going to a higher Court had not been taken away but in fact they had been continued by the provisions of the U.P. Revenue Code, 2006, as is contained under section 230(2)(d) of the U.P. Revenue Code, 2006. The section 231 of the U.P. Revenue Code, 2006 only states that all the cases pending before the Revenue Courts immediately before the commencement of the U.P. Revenue Code, 2006 whether any case, Appeal, Revision or otherwise shall be decided in accordance with the provisions of appropriate law which would have been applicable, as if the U.P. Revenue Code, 2006 had not been passed. Hence, section 231 of the U.P. Revenue Code, 2006, was a provision which only clarifies that a remedy which was available at the time when the lis was filed and had been availed would be decided by the provisions of the Old Act. There is no provision in the new Act which after repealing the U.P. Z.A. & L.R. Act, 1950, snatches from a litigant the right of further remedies as were provided under the U.P. Z.A. & L.R. Act, 1950, and hence we are answering the reference by observing that the Revision which was filed by the petitioner could have been filed and there was no provision in the U.P. Revenue Code, 2006, which had expressly taken away the vested right of having a remedy to go to a higher Court by means of a Revision.

17. The reference is accordingly, answered. It may be placed before Court which is now seized with the various petitions in which the reference was made."

6. As per the aforementioned judgment(s) remedy available under the Act, 1950 ought to have been availed.

7. The appeal aforesaid has been decided by the impugned order dated 05.10.2024. The operative portion of the same is extracted hereinunder.

"???????? ?? ?????? ????? ??? 1419 ?? 1424 ???? ????? ???????, ??? ??????? ??? ?????? ???? ?????? ?? ???? ??? 1105 ?? ???????? ??-???? ??0 1055/0.1300??0 ?? ???????????? ?????? ?? ???? ?? ???????? ????? ?? ?? ???????? ??-

"???????? ???????????? ?????? ??? ?? 6 ??? ????? ????? ??????? ???????? ????-123 (1) ???????? ???? ???????? ???? ??? ?????? 20.04.2015 ?? ???? ??? ?? ???? ??? 1055 ??0/0.010??? ???? ???? ?? ???? ?? ????? ?? ?? ????? ???? 6(2) ????? ???"

"???????? ???????????? ?????? ??? ?? 6 ????? ????? ????? ??????? ???????? ????-123 (1) ???????? ???? ???????? ???? ??? ?????? 20.04.2015 ?? ???? ??? ?? ???? ??? 1055 ??0/0.0080 ??? ???? ???? ?? ???? ?? ????? ?? ?? ????? ???? 6(2) ????? ???"

???????????? ?????? ?? ???? ???? ?????? 20.04.2015 ?? ?? ?????? ?? ?? ???????? ???? ??? 1055??/0.010 ??? ?? ??? ????? ?? 123 (1) ???????? ???? ???????? ???? ?? ??? ???? ??? ??? ??? ???? ??? 1055??/0.0080 ????? ????? ????? ?? 123(1) ???????? ???? ???????? ???? ?? ??? ???? ??? ??? ??????? ???? ??? ????? ????? ?????? ?? ???? ??????? ?? ??? ??? ???? ???? ??? ??? ?????? ??? ???????? ?????? ?? ??? ?? ?????? ???? ???? ???????? ???? ???????? 21.11.2016 ????? ???? ??? ??, ?? ???? ????? ?????? ???? ???? ???

??????? ??????? ?? ???? ?? ?? ?? ???????? ?? ??????? ??? ?? ????????? ?????? ???????? ??????? ???? ??????? ???? ???? ??? ??? ???????? ?????? ????? ???????? ???? ???????? 21.11.2016 ?????? ???? ???? ????? ???

????

????????? ?????? ???????? ???? ???????? 02.01.2017 ??????? ?? ???? ??? ??? ???????? ?????? ????? ???????? ???? ???????? 21.11.2016 ?????? ???? ???? ??? ??? ???????? ?????? ???????? ??-???? ?? ???????/??????? ???? ???? ????? ????? ?????? ?? ????? ??????? ???? ??? ?? ????? ???????/??????? ???? ???? ????? ????? ?????? ????? ??????? ??? ??????? ??? ?????? ???? ?????? ?? ??????? ??-???? ??? 1055 ??0/0.012 ??0 ?? ????? ???? ???? ???? ??????? 36,000 ???? ????? ??????????? ????????? ?? ???? ??? ???? ?? ????? ?? ??? ??? ???????? ?? ???????? ???? ???? ???? ??????? ???? ?? ??????????? ???? ?? ????? ???????? ?????? ?? ??? ?? ???? ???? ?? ???????? ?? ???????? ??? ?????? ????????? ????? ????? ???"

8. From the above quoted portion of the impugned order dated 05.10.2024, this Court is of the view that while passing the impugned order dated 05.10.2024 the opposite party no.2- Additional District Magistrate, Finance and Revenue, Gonda has not considered the order dated 20.04.2015 in its true spirit as also has not considered the relevant rules for the purposes of assessing the amount of damages. Thus, this Court finds that interference of this Court is required.

9. Accordingly, the order dated 05.10.2024 is hereby set aside with liberty to the State/Gaon Sabha to take appropriate remedy challenging the order dated 21.11.2016, which shall be decided by the authority concerned on merits after providing opportunity of hearing to the petitioner by reasoned and speaking order, after taking note of entire facts and the relevant provisions.

10. The petition stands allowed. No order as to cost.

Order Date :- 7.4.2025

Anand/-