Heard learned counsel for the petitioner, Shri Ramesh Pundir for the respondent no.1 and Shri Diwakar Singh for the Land Management Committee.
I have also heard learned Standing Counsel for the State-respondents, consequent to the order passed by this Court on 04.01.2019, which is quoted below -
" Learned Standing Counsel may examine the matter and make his submissions on Monday, next.
Put up on Monday i.e. 07.01.2019, as fresh."
The writ petition arises out of proceedings under Section 34 of the U.P. Land Revenue Act for mutation.
The facts of the case briefly stated are that the dispute pertains to plot nos.2316 area 1 biswa, 5 biswansi, 2318 area 2 biswas and 2319 area 6 biswas situated in village Pata, Tehsil Manjhanpur, Pargana Karari, District Kaushambi, which was recorded in the name of Maiku son of Surajdeen.
An application for mutation was filed by the petitioner in the year 1994 claiming on the basis of an alleged family settlement. This mutation application was allowed on 17.01.1995 by the Tehsildar.
During the pendency of the mutation case, on 08.08.1994, the respondent no.1 also filed a separate mutation application claiming on the basis of a registered sale deed allegedly executed in his favour by Maiku on 07.04.1994.
Counsel for the parties are not in a position to state the exact date of death of Maiku.
However, the mutation application filed by respondent no.1 came to be dismissed for want of prosecution on 08.08.1994. On 25.05.1994, the respondent no.1 filed a fresh application for mutation, which was dismissed vide order dated 25.05.1995 holding it to be not maintainable being a second mutation application.
Thereafter, in the year 2013, the respondent no.1 filed an application under Section 201 of the U.P. Land Revenue Act for recall of the order dated 17.01.1995 in favour of the petitioner.
The Tehsildar vide order dated 19.01.2013 allowed the recall application.
The petitioner preferred a revision before the Commissioner, which revision was allowed on 25.01.2018 and the order passed by the Tehsildar was set aside.
Against this order of the Commissioner, the respondent no.1 filed a revision before the Board of Revenue, Allahabad, which has been allowed. The order impugned has been maintained, however, the matter has been remanded back to the Tehsildar for passing a fresh order, after hearing the parties.
The contention of counsel for the petitioner is two fold. First that the revision itself, filed before the Board of Revenue, Allahabad, was not maintainable, at Allahabad. The revision could have been filed and entertained only by the Board of Revenue, Lucknow.
The second contention raised is that the order passed by the Commissioner was set aside only on the ground that it was on question of limitation. This is factually incorrect. The order had been passed primarily on the ground that two mutation applications filed by him had already been rejected. Therefore, there was no justification for recall of the mutation order passed in the year 1995, in favour of the petitioner.
Additionally, it is also submitted that an application under Section 201 was not maintainable at the instance of one not party to the proceedings wherein, the order was passed.
With regard to issue of jurisdiction raised by counsel for the petitioner, a supplementary affidavit has been filed, annexing thereto, a circular issued by the Board of Revenue dated 29.12.2017 being Circular No.3945/RC-13 (Nyay).
This circular, states that in a meeting of the entire Board, held on 08.12.2017, all other circulars distributing the work between the Board of Revenue, Allahabad, Lucknow and in the circuit Benches at Meerut and Agra stand rescinded in exercise of powers conferred by Section 9 of the U.P. Revenue Code 2006 read with Rule 8 of the Rules framed under the Act.
It also provides that in cases arising out of proceedings of the U.P. Land Revenue Act 1901, the U.P. Zamindari Abolition and Land Reforms Act 1970 and the U.P. Revenue code 2006 has amended in 2016, any matter, at the level of the Board of Revenue can be filed at any place as per the convenience of the persons filing the case, be it at Allahabad or Lucknow.
This very same circular has been relied upon by counsel for the respondents as also learned Standing Counsel to justify the exercise of jurisdiction by the Board of Revenue at Allahabad while passing the order impugned.
I have considered the submissions made by counsel for the parties and perused the record.
It is not in dispute that prior to the issuance of the circular referred to above, all the matters arising out of proceedings under the U.P. Land Revenue Act at the stage of the Board of Revenue were required to be filed and considered by the Board of Revenue at Lucknow.
Apart from this, the Board of Revenue at Lucknow also exercised jurisdiction over matters arising out of proceedings under Section 285(I) of the U.P. Zamindari Abolition and Land Reforms Rules. In all other matters arising out of proceedings under the U.P. Zamindari Abolition and Land Reforms Act or Rules framed thereunder, the jurisdiction was with the Board of Revenue at Allahabad.
For deciding the controversy raised by means of this writ petition and since, the notification aforesaid has been passed in exercise of powers conferred by Section 9 of the U.P. Revenue Code 2006 as amended in the year 2016 and the Rules framed thereunder, especially Rule 8,it would be relevant to take note and refer to Section 230 of the U.P. Revenue Code 2006. The said provisions is extracted below -
"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."
In my considered opinion, Sub-section 2(e) of the above extracted provision is relevant as it holds that despite, the U.P. Land Revenue Act, 2001 and U.P. Zamindari Abolition and Land Reforms Act, 1950 having been repealed, such repeal shall not effect any principle or Rule of law or established jurisdiction. The jurisdiction therefore, as it existed earlier, stood saved. The proviso to Section 230 will not authorize the Board of Revenue to issue the circular.
Besides, the circular does not appear to be aimed at making the legal process, either simpler or transparent. In fact, it can only result in greater confusion. The issue of jurisdiction should be clear and not one left to chance or to the whims and fancies of litigant(s).
The circular can also result in a single order being challenged, at least before three forums, the B. of R at Allahabad, at Lucknow as also before one of the circuit Benches, which will only result in chaos with the possibility of three different orders being passed against or in favour of a single order. This would be a very distinct possibility specially in matters where a large number of pattas are cancelled by a single order. In such matters, in variably several revisions are filed.
Moreover, nothing as to the object of the circular or what it seeks to achieve, except create confusion in the minds of the litigants, could be pointed out by learned Standing Counsel.
Moreover, Section 231 of the U.P. Revenue Code 2006 in effect provides that proceedings initiated and pending under the repealed Acts (U.P. Zamindari Abolition and Land Reforms Act & U.P. Land Revenue Act) would have to be continued and decided as per the repealed Acts, despite such repeal and enforcement of Code, itself.
However, the circular aforesaid is already under challenge before a Division Bench of this Court. However, the circulars and notifications as regards, the jurisdiction of the Board of Revenue at Lucknow and Allahabad stands saved and cannot be overridden by the circular.
For the same reason, the order impugned having been passed by the Board of Revenue at Allahabad is not liable to be sustained as it is wholly without jurisdiction.
The revision should have been filed and could have been entertained by the Board of Revenue at Lucknow as was the established practice which stood saved by Section 230 (2) and Section 231 of the Revenue Code, 2006. Since, the revision itself had been preferred before a forum, which lacked jurisdiction, the impugned order passed is also necessarily, without jurisdiction and is liable to be set aside on this ground.
Accordingly, the writ petition is allowed, the order dated 24.10.2018 passed by the Board of Revenue U.P. at Allahabad is set aside as having been passed without jurisdiction or at least passed exercising jurisdiction conferred by a circular, which circular is in the teeth of and contrary to Section 230(2)(e) and Section 231 of the U.P. Revenue Code, 2006.
Order Date :- 24.1.2019 RKM