TaxTMI 
TaxTMI 
2022 (5) TMI 1692
X X X X Extracts X X X X
X X X X Extracts X X X X
.... U.P. Revenue Code, 2006 [the Code] being Appeal No. 00631/2020 and the earlier order dated 26.10.2019 passed by the Sub-Divisional Magistrate Tehsil Harraiya, District Basti/respondent no. 3 in Case No. 06482/2019 under Section 24 of the Code whereby the application of the respondent no. 5 under Section 24 of the Code has been allowed. 3. An objection with regard to the entertainability of the writ petition was raised on behalf of the State respondents by pointing out that the order passed in appeal under sub-section (4) of Section 24 of the Code is subject to the remedy of revision under Section 210 of the Code. 4. Counsel for the petitioner has sought to refute the aforesaid contention by submitting that the remedy of revision under Section 210 of the Code is available only in a situation where no appeal lies and in the instant case since the petitioner is seeking to assail an order passed in appeal under sub-section (4) of Section 24, the remedy of revision would not be available. 5. The question which thus falls for consideration in the present case is as to whether an order passed in an appeal under sub-section (4) of Section 24 of the Code, would be subject to a rev....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat 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." 9. The Uttar Pradesh Revenue Code Rules, 2016 [the Rules, 2016] were made in exercise of powers under Section 233 of the U.P. Revenue Code, 2006 [U.P. Act No. 8 of 2012], read with Section 21 of the U.P. General Clauses Act, 1904. The English translation of the Rules, 2016 was published in the U.P. Gazette, Part 4, Section (Kha) dt. 10.02.2016. Rule 22 of the aforesaid Rules, which relates to settlement of boundary dispute, is as follows :- "22. Settlement of boundary dispute (Section 24) .- (1) Every application for settlement of boundary dispute under Section 24 (1) of the Code shall be made to the Sub-Divisional-Officer and it shall contain the following, particulars: (a) T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ny two independent witnesses present at the time of the demarcation. If any party refuses to sign the spot-memo, the endorsement to the effect shall be made by the Revenue Inspector. (9) The Revenue Inspector or other Revenue Officer shall submit his report of demarcation with spot-memo within a period of fifteen days from the date of demarcation. The name and address of the every affected party shall be disclosed in the report. (10) On receipt of the report under sub-rule (9), the notices shall be issued within one week to all the affected parties inviting the objections on the report and the date shall be fixed which shall not be later than 15 days from the date of issuing the notice. (11) On the date fixed or on any other date to which the hearing is adjourned, the Sub-Divisional Officer shall decide the dispute regarding the boundaries in accordance with the provisions of the sub-section (2) of the Section 24 of the Code and pass the appropriate order after considering the report and the objections, if any, filed against the report and affording opportunity of hearing to the parties concerned. (12) If the report is confirmed by the Sub-Divisi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ord 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." 11. The Uttar Pradesh Revenue Code, 2006 was amended in terms of the Uttar Pradesh Revenue Code ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....10 of the principal Act by providing as follows :- "19. In Section 210 of the principal Act, in the Hindi version, in sub- section (1) for the words "कोई अपील नहीं हुई" the words "कोई अपील नहीं हो सकती" shall be substituted." 16. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s made his submissions as under :- 17.1 As per the unamended provisions, sub-section (4) of Section 24 of the Code provided the remedy of an appeal against the order of the Sub-Divisional Officer passed under Section 24 and the order passed in appeal by the Commissioner was to be final. The remedy of revision under Section 210 of the Code was available only in a case in which no appeal lies, and therefore since sub-section (4) of Section 24 provided for an appeal, there was to be no further remedy of a revision available thereagainst under Section 210 of the Code. 17.2. Consequent to the amendment made to sub-section (4) of Section 24 as per the U.P. Act No. 7 of 2019, the finality attached to the order of the Commissioner continues subject to the provisions of Section 210 of the Code. The order of the Commissioner under sub-section (4) of Section 24 has been made subject to the provisions of Section 210 of the Code and as per terms of Section 210 the remedy of revision being available only in a case where no appeal lies, the order passed by the Commissioner under sub-section (4) of Section 24 would not be amenable to a further remedy of revision under Section 210 of the Code....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Section 24, the order of the Sub- Divisional Officer is subject to an appeal before the Commissioner and there is no provision with regard to a further appeal. It is therefore contended that since no appeal lies against the appellate order of the Commissioner under sub-section (4) of Section 24, the remedy of revision under Section 210 would not be barred. 19.5 The decision in the case of Vijay Kumar and others (supra), sought to be relied upon by the petitioner, has been rendered in the context of the provisions under the U.P. Land Revenue Act 1901 (now repealed). The scheme of the statutory provisions under the U.P. Revenue Code 2006, consequent to the amendments made in the year 2019, being entirely different the aforesaid decision would not be applicable in the facts of the present case. 20. Learned Additional Advocate General has further placed reliance on the settled principle of statutory construction that even in a case where there appears to be some inconsistency between two statutory provisions, the principle of harmonious construction would have to be applied so as to avoid a head on clash and the provisions of one section of a statute cannot be read in a man....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cord 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. 24. 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. 25. 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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th each other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction." The essence of harmonious construction is to give effect to both the provisions ... " 31. The principle of harmonious construction as a basic rule of interpretation again fell for consideration in Sultana Begum Vs. Prem Chand Jain [(1997) 1 SCC 373] and it was held that the rule of interpretation requires that while interpreting two inconsistent, or, obviously repugnant provisions of an Act, the courts should make an effort to so interpret the provisions as to harmonise them so that the purpose of the Act may be given effect to and both the provisions may be allowed to operate without rendering either of them otiose. The observations made in the judgment are being extracted below :- "10 ... That being so, the rule of interpretation requires that while interpreting two inconsistent, or, obviously repugnant provisions of an Act, the courts should make an effort to so interpret the provisions as to harmonise them so that the purpose of the Act may be given effect to and both the provisions may be allowed to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (5) To harmonise is not to destroy any statutory provision or to render it otiose." 34. The principle of applicability of a harmonious construction in the context of construing conflicting statutory provisions was emphasized in the case of Jagdish Singh vs. Lt. Governor Delhi [(1997) 4 SCC 435] and it was stated thus :- "It is a cardinal principle of construction of a statute or the statutory rule that efforts should be made in construing the different provisions, so that, each provision will have its play and in the event of any conflict a harmonious construction should be given. Further a statute or a rule made thereunder should be read as a whole and one provision should be construed with reference to the other provision so as to make the rule consistent and any construction which would bring any inconsistency or repugnancy between one provision and the other should be avoided. One rule cannot be used to defeat another rule in the same rules unless it is impossible to effect harmonisation between them. The well-known principle of harmonious construction is that effect should be given to all the provisions, and therefore, this Court has held in several cases ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(1918)] ) Learned Hand, J., was equally emphatic when he said: 'Statutes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.' (Lenigh Valley Coal Co. v. Yensavage [218 FR 547, 553] ).". 36. A similar view with regard to applying the principles of harmonious construction so as to give effect to all the provisions and to make them workable was taken in British Airways Plc. Vs. Union of India and others [(2002) 2 SCC 95] and it was stated thus :- "8. While interpreting a statute the court should try to sustain its validity and give such meaning to the provisions which advance the object sought to be achieved by the enactment. The court cannot approach the enactment with a view to pick holes or to search for defects of drafting which make its working impossible. It is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given. The well-known principle of harmonious construction is that effect shall be given to all the provisions and fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ai Saigal v. CIT,AIR 1963 SC 1062. 16. The courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. (See Salmon v. Duncombe, (1886) 11 AC 627, Curtis v. Stovin (1889) 22 QBD 513 referred to in S. Teja Singh case AIR 1959 SC 352. 17. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. (See Nokes v. Doncaster Amalgamated Collieries (1940) 3 All ER 549 referred to in Pye v. Minister for Lands for NSW (1954) 3 All ER 514. The principles indicated in the said cases were reiterated by this Court in Mohan Kumar Singhania v. Union of India,1992 Supp (1) SCC 594 18. The statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Act, 1934, and it was held that the provision with regard to finality of the decision of the revenue court only meant that that there was no further right of appeal against such an order. The observations made in this regard are as follows :- "In our judgment the provision in Clause (2) of Section 5 that "the decision of the Appellate Court shall be final" means no more than this that the order passed by the Appellate Court cannot be made the subject of a second appeal .... The provision about the finality of the decision of the Appellate Court contained in Clause (2), Section 5 cannot therefore warrant the inference that the Legislature intended in any way to limit or control the revisional jurisdiction conferred on this Court by Section 115, Civil P.C." 41. A similar situation arose in the case of Smt. Krishna Devi Vs. Board of Revenue [1972 RD 228], wherein the question of maintainability of a revision before the Board under Section 333 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 [1972 RD 228], against an order passed by the Assistant Collector exercising powers under Rule 115-N (3) of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, in view ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cts as a Revenue Court, which is under the control and supervision of the Board of Revenue; on the other hand, where a Revenue Officer deals with non-judicial matters in revenue, he acts under the control and supervision of the State Government. The functions of the Revenue Officer regarding the land revenue administration may be classified as judicial and non- judicial depending on the nature of the functions being discharged. 44. Section 234 (1) (v) of the U.P. Land Revenue Act, 1901 (now repealed) empowered the State Government to define the matters or proceedings which were deemed to be judicial or non-judicial. In terms of the aforestated provision, para 911 of the Revenue Manual, provided for certain matters to be deemed to be judicial. This included cases relating to settlement of boundary disputes under Sections 41 and 51 of the Land Revenue Act, 1901. 45. The Board of Revenue constituted under Section 7 of the U.P. Revenue Code, 2006, as per Section 8 thereof, is to be the chief controlling authority in all matters relating to disposal of cases, appeals or revisions. The revisional jurisdiction of the Board is provided for by Section 210 of the Code, and in terms the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 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. 49. 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. 50. 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plicable to all statutes alike, which is spoken of as construction ex visceribus actus- within the four corners of the Act. "The office of a good expositor of an Act of Parliament," said Coke in the Lincoln College Case [(1595) 3 Co.Rep.58b], "is to make construction on all parts together, and not of one part only by itself-Nemoenim aliquam partem recte intelligere potest antequam totum iterum atque iterum perleger it." And again he says : It is the most natural and genuine exposition of a statute to construe one part of a statute by another part of the same statute, for that best expresseth the meaning of the makers .... and this exposition is ex visceribus actus. " 55. The finality attached to the provisions of sub-section (4) of Section 24, having been made subject to Section 210, by virtue of the amending Act of 2019, it would be presumed that the legislature was conscious of the existing provisions of Section 210 whereunder in order to invoke revisional powers of the Board the necessary condition is "where no appeal lies". 56. In this regard it may be noted that there is a general presumption that the legislature is aware of the existing law when it passes a legislation ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es not intend to make unnecessary changes in the existing laws. Hence in case of any doubt, a statute is to be so construed as to be consistent with itself throughout its extent so as to harmonize with the other laws and be in consonance with the legislative purpose, provisions and scheme of the enactment. Interpretare et concordare leges legibus, est optimus interpretandi modus, that is, to interpret and in such a way as to harmonize laws with laws is the best mode of interpretation. 61. The presumption against inconsistency would lead to an inference that the legislature while bringing about the amendment to the provisions of sub-section (4) of Section 24 did not intend to create a conflict with the pre-existing provisions of Section 210, and it would be necessary to construe the two provisions harmoniously so as to make them workable. 62. Construing the provisions of sub-section (4) of section 24 and Section 210 in the aforesaid manner and by applying the principle of harmonious construction the apparent conflict between the two provisions would be reconciled and the provisions of the two sections can be read in a manner so as to give full effect to both the provisions wit....