Allahabad High Court
Career Convent Edu. Andcharitable ... vs State Of U.P.Thru ... on 29 April, 2025
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:24421-DB
A.F.R.
Court No. - 2
Case :- WRIT - C No. - 1953 of 2021
Petitioner :- Career Convent Edu. Andcharitable Trust Thru Manager And Anr.
Respondent :- State Of U.P.Thru Addl.Chief/Prin.Secy. Revenue Lko And Ors.
Counsel for Petitioner :- Lalta Prasad Misra,Amit Jaiswal-Ojus Law,Gaurav Mehrotra,Sharad Pathak
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey
Hon'ble Rajan Roy,J.
Hon'ble Om Prakash Shukla,J.
(1) Supplementary counter affidavit filed today by Shri Manish Mishra, learned Additional Chief Standing Counsel for the State, is taken on record.
(2) We have heard learned Counsel for the petitioners Mr. Gaurav Mehrotra, learned Advocate assisted by Mr. Amit Jaiswal, Ms. Maria Fatima, Ms. Manjari, and Mr. Aditya Singh, and Shri Manish Mishra, learned Additional Chief Standing Counsel for the State.
(3) The petitioner is an educational institution. Its campus is spread over an area of nearly 15 lakhs square feet of which a small part i.e. 5080 square feet is alleged to be an encroachment. Alleging such encroachment, proceedings were drawn under Section 67 of U.P. Revenue Code, 2006 (hereinafter referred to as "Code, 2006") against it. According to the petitioner, without service of notice upon it and without hearing it, final order was passed therein on 29.02.2020. Being aggrieved, an appeal was preferred by the petitioner under Section 67 (5) of U.P. Revenue Code, 2006, but, the appellate authority without considering the pleas raised rejected the same on 05.10.2020 which led to the filing of a revision before the Board of Revenue under Section 210 of the U.P. Revenue Code, 2006. The revision was initially allowed on 27.10.2020 on the ground that the Tehsildar did not have authority to exercise the power which in fact was vested in the Assistant Collector (under Section 67 of the Code, 2006.). However, thereafter, a notification dated 29.12.2020 was issued by the State Government empowering the Tehsildar to exercise such powers, that too, with retrospective effect i.e. from the date of promulgation of the Code, 2006 i.e. on 11.02.2016. Based on the same, a review application was filed before the Board of Revenue by the State authorities which was allowed. Being aggrieved against the aforesaid, this petition has been filed inter alia challenging the notification dated 29.12.2020, the order dated 29.02.202 passed under Section 67 (1) of Code, 2006, the appellate order dated 05.10.2020 passed under Section 67 (5) of the Code, 2006 and the order passed in the review proceedings arising out of the Revision, on 08.01.2021, by the Board of Revenue.
(4) It has also been brought to our notice that in the interregnum, as according to the petitioner, the area in dispute was purchased by it and is part of the property purchased by the trust deed dated 01.10.1995 but in order to avoid any further litigation or dispute the petitioner, as it was ready to purchase the said property or exchange it in terms of Section 101 of the Code, 2006 and the relevant Government Orders on the subject, therefore, it accordingly applied and the said exchange proceedings are pending consideration before the Commissioner as the State Government has delegated its powers under the proviso to sub section 2 of Section 101 of the Code, 2006, a fact which is admitted to the State Counsel. In these circumstances, it was also argued by the counsel for the petitioner that apart from the fact that the orders impugned including the notification are not sustainable on facts and in law, even if this Court arrives at a different conclusion or for that matter, in the alternative, as, exchange proceedings are pending, the same be also ordered to be decided at the earliest, as, ultimately, if the exchange takes place, the merits of the dispute may become irrelevant.
(5) After arguing the matter at some length, a consensus was arrived at between the parties which is also based on the averments made in the supplementary counter affidavit of the State filed today, that the procedure prescribed in Rule 67 of the U.P. Revenue Code Rules, 2016 (hereinafter referred to as "Rules, 2016") read with Section 67 of the Code, 2006 has not been followed and notices were not served upon the petitioners in terms of the provision of the Code, 2006 especially Section 216 of the Code, 2006. We also find it to be so. This aspect of the matter was not seen appropriately by the Appellate Court, which dismissed the appeal of the petitioners vide judgement dated 05.10.2020. So far as the revision filed by the petitioner which was initially allowed on 27.10.2020, the same was reviewed by a subsequent judgment dated 08.01.2021 on the ground that subsequent to the initial judgment in the revision, a notification had been issued by the State Government with retrospective effect from 29.12.2020, empowering the Tehsildar to exercise powers of the Assistant Collector under Section 67 of the Code, 2006; secondly, the revision was not maintainable in the first place in view of Section 210(1) of the Code, 2006 as an appeal had already been preferred by the revisionist, therefore, as the aforesaid grounds constituted an error apparent on the face of the record for allowing the review, the review application was allowed and the revision was dismissed.
(6) We have perused Section 210(1) of the Code, 2006 and find that a revision can be filed under it, only if, against the order under challenge, an appeal does not lie under the Code, 2006, whereas, against the order passed under Section 62 of the Code, 2006 an appeal lies under Section 67(5) of the Code, 2006, the revision filed by the petitioner was, thus, not maintainable. To this extent, the order passed in review can not be said to be erroneous.
(7) The question which is, however, required to be considered is as to whether the notification dated 29.12.2020 empowering the Tehsildar to exercise the powers of Assistant Collector (First Class) under Section 67 of the Code, 2006 that too with retrospective effect from 11.02.2016, is sustainable, was it at all required ?.
(8) In this context, we may refer to our order dated 08.04.2025 which reads as under:-
"1. Heard Sri Gaurav Mehrotra, Advocate, assisted by Sri Amit Jaiswal, Advocate and Aditya Singh, Advocate for the petitioner and Addl. C.S.C. for the State as also Sri Dilip Kumar Pandey, learned counsel for the Gaon Sabha.
2. After hearing the parties, one of the issues which arises for consideration is as to whether the Tehsildar had jurisdiction to initiate proceedings and pass a final order under Section 67 of the U.P. Land Revenue Code, 2006 (hereinafter referred to as 'the Code') or not?
3. Although the counsel for the petitioner places reliance upon an order of this Court putting a similar query, whereupon the State Government issued a Notification dated 29.12.2020 under Section 14(2) and Section 2(1)(9) of the Code authorizing the Tehsildar and Tehsildar (Judicial) to discharge the acts of Assistant Collector as prescribed under Section 67 of the said Code with effect from 11.2.2016, i.e. retrospective effect.
4. Apart from the issue as to whether this could have been done with retrospective effect, another issue which crops in this context is as to whether the Notification authorizing the Tehsildar, for similar action under a similar provision, i.e. Section 122-B of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as 'the Act 1950'), existed earlier and whether it continued to operate for the purposes of Section 67 of the U.P. Land Revenue Code, 2006 or not, as under the proviso to sub-Section (2) of Section 230, such Notifications, in sofar as they are not inconsistent with the provisions of the U.P. Land Revenue Code, 2006 be deemed to have been done or taken under the corresponding provisions of the said Code, and shall continue to be in force accordingly, unless and until they are superseded by anything done or action taken under the said Code.
5. There is another process contained in Section 24 of the U.P. General Clauses Act 1904, which is also relevant in this regard
6. We would, therefore, like to have the Notifications, if any, under the Act 1950 or the Act 1901 for exercise of power by the Tehsildar under Section 122-B, as Sri Pandey, learned counsel for the Gaon Sabha says that there were Notifications under the earlier authorizing the Tehsildar to perform the said duty.
7. Once the Notifications are on record, then the burden would be upon the petitioner's counsel to demonstrate as to whether they are inconsistent with the Code 2006, if so, how? At least as of now the provisions of Section 122-B of the Act 1950 and Section 67 of the Code 2006 appear to be para materia.
8. Another aspect to be considered is as asserted by Sri Mehrotra, that the land in question ceases to be land of any Gaon Sabha in view of the Notification dated 5.12.2019 under Section 3 of the U.P. Municipal Corporation's Act 1959 (hereinafter referred as 'the Act 1959'), as the said land was included within the Municipal limits of Municipal Corporation, Lucknow, and thereafter though the villages may continue, but the land in question would not be that of the Gaon Sabha, but would be of the Municipal corporation, Lucknow. However, in this context when we peruse section 67, we find that such lands, if they belong to local authority, then also the said provision would apply and the term 'local authority', though it has not been defined in U.P. Revenue Code 2006, has been defined in Section 4(25) of the U.P. General Clauses Act 1904, which includes a Nagar Maha Palika, therefore, the land, even if belongs to Municipal Corporation, Lucknow, would attract Section 67 of the Code 2006, however, here again there is a twist. Even if Section 67 is applicable, assuming it to be so, the procedure for taking any action thereunder is prescribed in Rule 67, and it is the case of Sri Mehrotra that the said procedure has not been followed. In fact, no notice, whatsoever, as is envisaged therein, and under Section 67 of the Code 2006 was ever issued and served to the petitioner.
9. On being confronted Sri Tiwari, at least as of now could not demonstrate that any such notice issued, was served, upon the petitioner, prior to passing an under Section 67.
10. Other issues pertaining to the validity of the Notification dated 29.12.2020, i.e. retrospectivity given, validity of the order passed by the Board of Revenue on the review application as also the validity of the orders passed under Section 67, U.P. Land Revenue Code, 2006 and the appellate order(s) on merits, shall also be considered, if required.
11. List/put up this case tomorrow, i.e. on 9.4.2025 for further hearing.
12. We expect some responsible officer, not below the rank of Joint Secretary in the Revenue Department of the Government and the officer, not below the rank of Addl. Commissioner in the Board of Revenue to assist us tomorrow, on the points referred hereinabove."
(9) It appears that some query was put by this Court at Allahabad in Writ-C No.2111 of 2020 vide order dated 10.06.2020, which reads as under:-
"As per Section 233(3) of the U.P. Revenue Code, 2006 (hereinafter referred to as the 'Code'), only such orders of the State Government or of the Board of Revenue passed before the enactment of the Code were to continue which were not inconsistent with the provisions of the Code.
In the instant case, learned Standing Counsel to justify orders being passed by the Tehsildar has taken recourse to certain Government Orders dated 25.7.1960 and 7.1.1964 and has submitted that a Tehsildar could exercise powers of the Assistant Collector under section 67 of the Code by virtue of the Government Orders.
Learned counsel for the petitioner, however, submitted that if the provisions of section 233(3) were perused, then these Government Orders would become inconsistent with the provisions of the Code and, therefore, would be deemed to have been done away with.
Learned Standing Counsel may, therefore, produce such fresh orders of delegation, if they are there, under sections 14 and 219 of the Code by the next date of listing otherwise it shall be established that the Tehsildar had no authority to pass orders under section 67 of the Code.
Since, the jurisdiction of the Tehsildar itself has been questioned and the Tehsildar had sent the impugned notice, the proceedings initiated by the impugned notice shall remain stayed till the next date of listing.
List this petition along with the connected petitions on 6.7.2020 as a first case before the appropriate Court."
(10) After passing of the above quoted order, the impugned notification dated 29.12.2020 was issued.
(11) In our order dated 08.04.2025, we had raised two points in this regard; firstly, as to whether such a notification could have been given retrospective effect under Section 219 of the Code, 2006 and the other was as to the necessity of issuing the impugned notification empowering the Tehsildar as aforesaid, if, there were earlier notifications under the erstwhile U.P. Land Revenue Act, 1901 (hereinafter referred to as "Act, 1901") or U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'Act, 1950') already empowering him under Section 122-B of the Act, 1950 and if the said notifications continued to operate for the purposes of Section 67 of the Code, 2006, a provision corresponding to Section 122-B.
(12) Now, so far as the first issue is concerned, the law is settled that unless and until there is a provision in the statute itself permitting retrospective effect to Rules and Notifications made thereunder, as is impugned herein, the same cannot be done. We may in this context refer to the judgments of Hon'ble Supreme Court in the case of Union of India and Ors. vs. G.S. Chatha Rice Mills and Anr. reported in 2020 SCC OnLine SC 770, Vice Chancellor, M.D. University Rohtak vs. Jahan Singh reported in (2007) 5 SCC 77, State of Rajasthan and Others vs. Basant Agrotech (India) Limited reported in (2013) 15 SCC 1 and Union of India and Others vs. Dr. S. Krishna Murthy and Others reported in (1989) 4 SCC 689.
(13) No such provision has been placed before us nor could we find any in the Code, 2006 which permitted issuance of such notification with retrospective effect. Thus, the notification dated 29.12.2020 to the extent it has been given retrospective effect cannot be sustained in law especialy as the notification does not deal with procedural aspect but one which vests jurisdiction on the Tehsildar.
(14) On the other issue regarding requirement/necessity of such a notification dated 29.12.2020, in view of queries made by us on 08.04.2025, certain notifications issued under the erstwhile Act, 1950 and Act, 1901 have been brought on record, which are dated 06.06.1953, 25.07.1960 and 07.01.1964, alongwith the supplementary counter affidavit filed today.
(15) As per the notification dated 06.06.1953 exercising the powers under Section 15 read with Section 221 and 224 of the Act, 1901 all Tehsildars were appointed as ex-officio Assistant Collectors of the First Class. By the second notification dated 25.07.1960 in exercise of the powers conferred by Section 15 read with Section 221 and 224 of the Act, 1901 as amended in its application to the areas to which U.P Land Reforms (Amendment) Act, 1958 (hereinafter referred to as 'Act, 1958') extends, the Governor was pleased to confer on Tehsildars of the said areas all the powers of the Assistant Collectors of the First Class. By the third notification dated 07.01.1964 in relation to areas to which the Act, 1950 applied and with reference to Section 15 read with Section 221 and 224 of the Act, 1901, the Governor was pleased to appoint all the Tehsildars as Assistant Collectors of First Class. By another notification of the same date i.e. 07.01.1964 all such Assistant Collectors of the First Class were empowered to exercise the powers under Section 122-B of the Act, 1950 etc., which were to be performed by the Collectors referred therein.
(16) As is evident from a reading of the aforesaid notifications, the same have been issued under Section 15 read with Section 221 and 224 of the Act, 1901. The said Act, 1901 dealt with jurisdiction of revenue officers in the United Provinces, which subsequently became State of Uttar Pradesh. Section 15 of the Act, 1901 empowered the State Government to appoint to each district as many other persons as it thinks fit to be Assistant Collector of the first or second class. Therefore, by virtue of the aforesaid notifications referable to this provision, the Tehsildars were appointed as ex-officio Assistant Collectors by the notification dated 06.06.1953 and by the subsequent notification dated 25.07.1960, they were given all the powers of the Assistant Collectors of the first Class. By the third notification dated 07.01.1964, all the Tehsildars in relation to the areas to which the Act, 1950 applied were appointed as Assistant Collectors of First Class and by another notification dated 071.01.1964, all such Assistant Collectors of the First Class were empowered to exercise powers under Section 122-B of the Act, 1950.
(17) As per Section 122-B of the Act, 1950, according to which, the Assistant Collector could take action in matters where any property vested under the said Act in a Gaon Sabha or local authority is damaged or misappropriated and such Gaon Sabha and local authority is entitled to take or retain possession of any such land. Section 67 of the Code, 2006 with which we are concerned in this case is a corresponding/similar provision.
(18) We may also point out that Section 221 of the Act, 1901 empowered the State Government to confer powers under the said Act, 1901 and empower persons by name, or classes of officials generally by their official titles and to vary or cancel any such order. Section 224 of the Act, 1901 empowered the State Government to confer on any Tehsildar or any of the powers of an Assistant Collector of the first or second class etc.
(19) Now, the aforesaid Act, 1901 and the Act, 1950 were repealed by Section 230 (1) of the Code, 2006 read with the First Schedule appended to it. Sub-section 2 of Section 230 contains a saving clause.The repealing and saving clause is contained in Section 230 of the Code, 2006, which reads as under:-
"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 Uttaranchal.
(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 title State of all estates and the cessation of all rights, title and interest of all 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, proclamations 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, in so far 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."
(20) The proviso to sub-section 2 of Section 230 of the Code, 2006 is relevant, according to which, 'anything done or any action taken including any rules, manuals, assessments, appointments and transfers made, notifications, powers conferred under any such enactment shall, in so far 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.
(21) Now, the words 'under any such enactment' occurring in the proviso are a reference to the enactments which were being repealed by sub-section 1 of Section 230 of the Code, 2006. The Act, 1950 and the Act, 1901 were such enactments, as already referred. The notifications referred hereinabove were issued under the said enactment conferring the power of Assistant Collector on the Tehsildar specificially with regard to Section 122-B of the Act, 1950.
(22) The question is as to whether the aforesaid notifications by which power was conferred upon the Tehsildar, as already noticed, for taking action under Section 122-B of the Act, 1950, to which Section 67 of the Code, 2006 corresponds, are inconsistent with the provisions of the Code, 2006, if not, then the proviso to sub- section 2 of Section 230 of the Code, 2006 comes into play. If they are inconsistent, then, of course, the result would be otherwise, and they would not apply to proceedings under Section 67 of the Code, 2006.
(23) When we peruse the Code, 2006, we find Section 13 (1) of the Code, 2006, to be pari materia with the provisions of Section 15 (1) of the Act, 1901 as it provides that the State Government may appoint in each district as many persons as it thinks fit to be Assistant Collectors of the First or Second Class. It is under such a provision contained in sub section 1 of Section 15 of the Act, 1901 that the aforesaid notifications were issued, of course, read with Section 221 and 224 of the Act, 1901.
(24) In this context, we may mention that not every Assistant Collector of the First or Second class is made in-charge of one or more sub divisions of a district as is referred in sub-section 2 of Section 13 of the Code, 2006. Where such an officer i.e. an Assistant Collector of the First Class is made in-charge of one or more sub divisions of a district, he is to be called the Assistant Collector of First Class in-charge of a sub division or a Sub Divisional Officer.
(25) As per Section 14(2) of the Code, 2006, subject to the provisions of the Code, the Tehsildar and Tehsildar (judicial) shall exercise such powers and discharge such duties as the State Government or the Board or in absence of any direction from the State Government or the Board, the Collector my direct.
(26) Section 17 of the Code, 2006 provides that it shall be lawful for the State Government or the authority competent to appoint, as the case may be, to appoint one and the same person being otherwise competent according to law, for any two or more of the offices provided for in the said Chapter or to confer upon an officer of one denomination all or any of the powers or duties of any other officer or officers within certain local limits or otherwise, as it may deem expedient.
(27) We may also refer to Section 19 (2) of the Act, 1901, according to which, the Revenue Officers appointed under the Code, 2006 shall, subject to the control of the State Government, exercise such other powers and discharge such other duties, as the State Government may, by general or special order, direct.
(28) As per Section 225-D, an Assistant Collector of the First Class not in-charge of a sub-division of a district shall exercise all or any of the powers conferred on an Assistant Collector of the First Class in-charge of a sub-division in such cases or classes of cases as the Collector may from time to time refer to him for disposal.
(29) Thus, the provisions of the Code, 2006 referred hereinabove are almost similar to the provisions contained in the Act, 1901 which have been referred, under which the notifications have been issued meaning thereby similar notifications such as the one which were issued under the Act, 1901 could be issued by the State Government under the aforesaid provisions also.
(30) Similarly, Section 67 of the Code, 2006, which is the provision under which action has been taken against the petitioners, is also pari materia to Section 122-B of the Act, 1950.
(31) We have already mentioned that under this section 122-B, it is the Assistant collector who was empowered to take action by the said provision itself. Now the designation Assistant Collector was specifically mentioned in Section 15 as distinct from the designation/ post of Tehsildar which was mentioned in Section 17 of the Act, 1901 but looking into the necessity to empower Tehsildars and confer upon them the powers of Assistant Collectors referred in Section 15, the above mentioned notifications were issued under the Act, 1901 by virtue of which the Tehsildar exercised the powers of Assistant Collector under Section 122-B of the Act, 1950 and other provisions.
(32) We do not find any inconsistency in the notifications referred above which were issued under the Act, 1901 viz-a-vis the provisions of the Code, 2006 or any notification issued thereunder including the impugned notification dated 29.12.2020.
(33) This Court while passing the interim order dated 10.06.2020 in Writ-C No. 2111 of 2020 which in fact triggered issuance of the impugned notification has not noticed the provisions contained in Section 230 of the Code, 2006 nor has it mentioned the basis for its observation that there would be inconsistency between the notifications dated 25.07.1960 and 07.01.1964 viz-a-viz the Code, 2006. No reasons have been given. No final orders have been passed in the said proceedings. There is nothing on record to show that the said notifications were/are in any manner inconsistent with the provisions of the Code, 2006. Neither the Counsel for the petitioners nor the Counsel for the State could point out any such inconsistency. Therefore, as a logical corollary, notifications dated 06.06.1953, 25.07.1960, 07.01.1964 shall be deemed to have been done or issued under the corresponding provisions of the Code, 2006 which are Sections 13 (1), 14, 17 and 19 of the Code, 2006 and they continue to be in force accordingly under the proviso to sub-section 2 of Section 230 of the Code, 2006, , especially as the notification dated 29.12.2020 does not superceed the earlier notifications under the Act, 1901.
(34) We may in this very context point out that prior to implementation of the Code, 2006, it is the Sub Divisional Officer which was empowered to act under Section 67 of the Code, 2006. However, by the UP Act No.4 of 2016, the word Sub Divisional Officer were substituted by the words Assistant Collector. This is relevant when it is read conjointly with section 13(1), 17 and 19 of the Code, 2006.
(35) We may in this very context refer to Section 24 of the U.P. General Clauses Act, 1904 (hereinafter referred to as "Act, 1904"), which reads as under:-
"Section 24. Continuation of appointments, notifications, orders, etc., issued under enactments repealed and re-enacted. -
Where any enactment is repealed and re-enacted by an [Uttar Pradesh] Act, with or without modification, then, unless it is otherwise expressly provided, any appointment, [or statutory instrument or form], made or issued under the repealed enactment, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so reenacted, unless and until it is superseded by any appointment, [or statutory instrument or form] made or issued under the provisions so re-enacted."
(36) As per the above-quoted provision where any enactment is repealed and re-enacted by an [Uttar Pradesh] Act, with or without modification, then, unless it is otherwise expressly provided, any appointment, [or statutory instrument or form] made or issued under the repealed enactment, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so reenacted, unless and until it is superseded by any appointment, [or statutory instrument or form] made or issued under the provisions so re-enacted. The term statutory instrument has been defined in Section 4 (42B) of the Act, 1904 to mean any notification, order or scheme, rule or bye-law issued under any enactment and having the force of law. It is beyond cavil that the notifications issued under the Act, 1901 and the Act, 1950 as referred hereinabove are statutory instruments as referred in Section 24 of the Act, 1904, therefore, by virtue of the said provision of the Act, 1904 also, which is on similar lines as the repeal and saving provision contained in Section 230 of the Code, 2006, the aforesaid notifications are not only saved but continue to apply to the Code, 2006 and, in this context, to the proceedings under Section 67 of the Code, 2006 as such there was no necessity to issue the notification dated 29.12.2020, which in any case does not add anything to the earlier notifications nor susbstract from it. It appears to have been issued merely because of the tentative observations in the order dated 10.06.2020 referred earlier instead of informing the Court about the correct factual and legal provision.
(37) In view of the above discussion, the irresistible conclusion is that the impugned notification dated 29.12.2020 appears to have been issued under some misconception of facts and law and possibly without proper scrutiny as to the applicability of the notifications issued under the Act, 1901 and Act, 1950 to the proceedings under the Code, 2006 in the light of Section 230 contained therein, apart from the fact that it could not have been implemented with retrospective effect.
(38) Another anomaly which we find in the impugned notification dated 29.12.2020 is that it appears to have been issued in exercise of powers under Section 219 of the Code, 2006 whereas the said provision empowers the State Government to delegate the powers vested in it under the Code, 2006 to the Board or any other officer or authority subordinate to it. The power which is exercised under Section 67 of the Code, 2006 is not one which is exercised by the State Government, therefore, for this reason also the alleged delegation by the impugned notification is not sustainable.
(39) In any case, we have already held, for the reasons discussed hereinabove, that the notification apart from being bad in law, is also otiose.
(40) In view of these anomalies and illegalities, we quash the notification dated 29.12.2020, however, with liberty to the State Government to issue a clarificatory notification referable to the provisions discussed hereinabove or such other provisions as may be attracted, that, the Tehsildar shall continue to exercise the powers vested in him by the notifications dated 06.06.1953, 25.07.1960, 07.01.1964 under Section 15 read with 221 and 224 of the Act, 1901 for the purposes of Section 67 of the Code, 2006 as he has been doing, if it so chooses.
(41) In the meantime, the Tehsildars referred above shall continue to exercise the powers of Assistant Collector for purposes of proceedings under Section 67 of the Code, 2006 under the notifications referred above read in terms of the proviso to Section 230(2) of the Code, 2006.
(42) Consequently, the order of the Board of Revenue insofar as it relies the notification dated 29.12.2020 cannot be sustained. It is, however, sustained on the ground of non-maintainability of the revision itself under Section 210 of the Code, 2006 as already mentioned.
(43) Now, so far as the merits of the challenge to the orders passed under Section 67 of the Code, 2006 and the appellate order is concerned, in view of the admitted position in the supplementary counter affidavit filed today on behalf of the State that the procedure prescribed in Rule 67 of the Rules, 2016 read with Section 67 of the Code, 2006 was not followed, as, this aspect has not been apreciated by the Appellate Court, even though the revision of the petitioner was not maintainable, apparently so, we, quash the order dated 29.02.2020 passed under Section 67 of the Code, 2006 as also the appellate order dated 05.10.2020 and remand the proceedings back to the Tehsildar for a consideration afresh as per law. The petitioner shall now put in appearance before the Tehsildar without waiting for a notice, within the next one month.
(44) As already noticed, proceedings for exchange of land alleged to have been encroached by the petitioner with another land under Section 101 of the Code, 2006 are said to be pending before the Divisional Commissioner, Lucknow. It is informed that earlier the Additional District Magistrate, Lucknow had made a favourable recommendation for exchange/purchase as offered by the petitioner based on N.O.C. granted by the Municipal Corporation, Lucknow on 08.02.2024, however, subsequently it appears that the Municipal Corporation, Lucknow has informed the Additional District Magistrate, Lucknow that the matter had not been taken to the House of the Municipal Corporation as was requirements which is proposed to be done now, therefore, the matter is still pending. If the House grants permission or N.O.C., as the case may be, the same shall be forwarded to the Divisional Commissioner, Lucknow for a decision under Section 101 of the Code, 2006. Even though, the Municipal Corporation, Lucknow is not an opposite party herein but as we are not adjudicating any of its rights in these proceedings, it is ordered/directed that till exchange proceedings under Section 101 of the Code, 2006 read with Government Orders and notifications as may be applicable, are pending, further proceedings under Section 67 of the Code, 2006 shall not be held, however, as soon as a final decision is taken in the exchange proceeding, if it is against the petitioner, then, the Tehsildar shall proceed to consider and dispose of the said proceedings as per law, as already observed. If the exchange is allowed, then, this fact shall be brought to the notice of the Tehsildar. The House of the Municipal Corporation, Lucknow is directed to take an early decision in the matter say withing three months especially in view of the statement of the petitioners' Counsel that it has applied for being upgraded as a University and a letter of intent in this regard has been issued by the State Government. Shri Manish Mishra, Additional Chief Standing Counsel shall communicate our order to the Municipal Commissioner, Lucknow for compliance.
(45) We appreciate the assistance provided by learned Standing Counsel for the State as also the officers of the State Government, namely-Shri Raj Kumar Dwivedi, O.S.D., Board of Revenue and Shri Ghanshyam Chaturvedi, Under Secretary, Government of U.P. who are present. but we wish that this effort would have been made prior to issuance of the impugned notification dated 29.12.2020 so as to avoid the situation which has arisen in this case.
(46) The writ petition is allowed but only in the aforesaid terms, in part.
(47) Copy of this judgment shall be sent to the Chairman, Board of Revenue, Government of Uttar Pradesh, Additional Chief Secretary/Principal Secretary, Revenue, Government of U.P. as also the Legal Remembrancer, Government of U.P.
(Om Prakash Shukla, J.) (Rajan Roy, J.)
Order Date :- 29.4.2025
-Piyush-
