TaxTMI 
TaxTMI 
2025 (7) TMI 1919
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....tion finally at the stage of admission itself, without inviting counter affidavit. 3. By means of the present writ petition, the petitioners have assailed the order dated 17.05.2025 passed by the learned Additional Commissioner, Judicial (Second), Varanasi Division, Varanasi (respondent no.3) in Case No. 771 of 2023 (Upendra Nath Singh versus Dina Singh & others), under Section 24(4) of the U.P. Revenue Code, 2006. 4. The epitome of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the material available before this Court is that the petitioner's father filed an Application dated 01.09.2017 under Section 20/24 of the U.P. Revenue Code, 2006, before the Deputy Collector (respondent No.4) for demarcation of boundaries of land having Araji No. 950, Mauja Khajurgaon, Pargana Pachotar, Tehsil Kasimabad, District Ghazipur (hereinafter referred to as the land in question). The said application was registered as Case No. T201814291102291 of 2017. The Deputy Collector (respondent No.4), vide order dated 01.09.2017 directed the Revenue Inspector to inspect and measure the land in....
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....continuing for almost two years, the petitioner filed a writ petition, being Writ C No. 7874 of 2025, before this Court, inter alia, praying for the following relief: "(a) issue a writ, order or direction in the nature of certiorari calling for the record of the case and quash the Order dated 01.06.2023 and 26.04.2023 respectively passed by the respondent no.3 in case no. 771 of 2023 (Computerized case No. C202314000000771) (Upendra Nath Singh Vs. Dina Sing and others) under section 24(4) of U.P. Revenue Code, 2006, pending before the respondent no.3 (Annexure-1 & 2 to this Writ Petition). (b) issue a writ, order or direction in the nature of mandamus commanding the respondent no.3 to decide the case no. 771 of 2023 (Computerized case No. C202314000000771) (Upendra Nath Singh Vs. Dina Sing and others) under section 24(4) of U.P. Revenue Code, 2006 in a time bound manner preferably within a period of one month. 13. This Court, vide order dated 19.03.2025 disposed of the aforesaid petition having Writ- C No. 7874 of 2025 (Dina Nath Singh versus State of U.P. and others). For ready reference, the operative part of the same is extracted herein below: "4. S....
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....appeal ignoring the legal issue of Limitation. He submits that Section 24(4) of the U.P. Revenue Code, 2006 clearly prescribes the limitation period of 30 days for filing of an appeal while, in the present case, the fifth respondent herein, filed the appeal on 12.04.2023 against the order dated 08.06.2022, i.e., with a delay of over ten months but the learned Appellate Court by completely ignoring the petitioners' objections in that regard, proceeded to decide the Appeal on merits. 18. It is further submitted on behalf of the petitioners that the learned Additional Commissioner (respondent no.3) in utter disregard to the settled law on the subject, not only admitted the said time-barred appeal vide order 26.04.2023 but also granted interim relief on the application moved by the fifth respondent, vide order dated 01.06.2023. 19. It is asserted by the learned counsel on behalf of the petitioners that the consideration on the issue of statutory limitation is a legal mandate and the adjudication on prayer for condonation of delay is not a mere formality, the same requires a specific order after notice to the opposite party. In the absence of an order for condonation of delay in a....
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....Court held that an order passed by the learned Commissioner under Section 24(4) is subject to revision under Section 210 of the U.P. Revenue Code, 2006. Secondly, that the appellant / respondent no.5 herein, not only narrated the genuine and acceptable cause for delay in the memo of appeal itself and also filed separate application dated 12.04.2023 duly supported by an affidavit seeking condonation of delay in filing the appeal. He submitted that the learned Additional Commissioner (respondent no.3) after taking into consideration all the pleas and objections raised by the contesting parties, decided the appeal by a well-considered and detailed judgement dated 17.05.2023. The argument advanced by the learned counsel for the fifth respondent is that the Section 5 of the Limitation Act, 1963 requires explanation of the cause, for not preferring the appeal or the application within period of limitation prescribed under the Act. Explanation of delay can be given in memorandum of the appeal even the delay can be condoned on oral prayer. The substantial justice deserves to be preferred as against the technical considerations. He further contended that even if the order in appeal....
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....ly prescribed under section 24(4) of the U.P. Revenue Code, 2006, could have admitted and decided a time barred appeal on merits without condonation of delay in filing the same. 18. Sub-section 4 of section 24 of the U.P. Revenue Code, 2006 reads as under: "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." 27. A co-ordinate Bench of this Court in the case of Jhinka Devi (supra), has held that by virtue of the amendment to Sub-section (4) of Section 24 through U.P. Act No. 7 of 2019, the finality of an order passed by the Commissioner in appeal, is subject to the revisional powers of the Board of Revenue under Section 210 of the U.P. Revenue Code, 2006. As no second appeal is provided against the order of Commissioner under the said Section 24(4), the Board of Revenue is vested with the power to examine the legality or propriety of the orders passed by the Commissioner. For ready reference, the relevant excerpts of the judgement passed by this Court in the case of Jhinka Devi (supra) is reproduced herein below, "52. ....
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....rt under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petit....
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.... In the light of the law settled by the Hon'ble Supreme Court as discussed in the preceding paragraphs, it emerges that merely because of the availability of the remedy under section 210 of the U.P. Revenue Code. 2006, ispo facto, does not oust the writ jurisdiction of this Court to entertain the present writ petition. 35. Now, coming to the predominant dispute involved in the present writ regarding the jurisdiction of the appellate authority to admit, hear and decide a time-barred appeal on merit without condoning the delay in filing the same. The law on the subject is well settled that unless the delay is condoned, the appeal does not come into existence legally, and in such absence, the Court is wholly without jurisdiction to hear or decide the same on merits. 36. In the case of Esha Bhattacharjee versus Managing Committee of Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, the Hon'ble Apex Court has been pleased to observe as under: "22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that....
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....e proceeding will automatically fail. 39. It is trite in law that if an appeal filed after the expiry of the limitation period is accompanied by an application for condonation of delay supported by an affidavit stating sufficient cause for delay in filing the said appeal and if the appellate court finds the cause sufficient for condonation of delay, the appellate court must record its reasons to that effect. Without condoning the delay in filing an appeal, the appellate authority lacks jurisdiction to entertain such time-barred appeals. This view finds its support from the judgment passed by this Court in the case of Balvir Singh versus Vijay Pal & Others, (Writ-C No. 37564 of 2011), decided on 14.07.2011. 40. Further, in the case of Anil Kumar Nigam & other versus State of U.P. & another, (Writ-B No. 4925 of 2024), decided on 31.01.2025, this Court held that unless the delay is condoned, any order passed including orders on interim reliefs, will be manifestly illegal. 41. From a bare reading of Section 24(4) of the U.P. Revenue Code, 2006, it is clear that the appeal must be filed within the stipulated period of 30 days as provided by the statute. 42. In the present ca....
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....shall be represented (a) in proceeding before the Collector or in a Civil Court, by the District Government Counsel (Revenue);(b) in proceeding before the Commissioner, by the Divisional Government Counsel (Revenue); and(c) in proceeding before the Board or the High Court, by the separate Standing Counsels (Revenue) of Lucknow or Allahabad, as the case may be. (2) Nothing in this Chapter shall preclude the State Government or the Collector from appointing special Counsel for the conduct of any suit or proceeding to which any Gram Panchayat is party on such terms and conditions as may be prescribed." 46. Looking to the provision of section 73 of the U.P. Revenue Code, 2006 it is apparent that the same specifies the class of counsels to represent the Gram Panchayat before different forums and not with the issue of necessity of its impleadment in a proceeding. 47. The defence taken by the learned Standing Counsel appearing on behalf of the State-respondents, to defend the impugned order passed by the Additional Commissioner (respondent no.3) and the action of deciding the appeal without adverting to the issue of limitation, he submitted that the learned appella....
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....en condoned, this Court finds that both the legal position and the factual matrix of the case of Indrajeet Singh (supra) stand on an entirely different footing from the case at hand. 50. In Indrajeet Singh (supra), the writ petition was directed against the order of the Settlement Officer Consolidation rejecting the petitioner's request for postponement of hearing of the appeal during the pendency of the revision under the U.P. Consolidation of Holdings Act, 1953. In paragraph 10 of the said judgment, it was observed that the U.P. Consolidation of Holdings Act, 1953 does not contemplate the filing of a separate application for condonation of delay in the manner prescribed under Order XLI Rule 3-A of the Code of Civil Procedure, 1908. By contrast, the present writ petition arises from proceedings under the U.P. Revenue Code, 2006. Section 214 of the said Code expressly incorporates the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 to every suit, application or proceeding, unless specifically excluded by or under the Code of 2006. Thus, the observations made in Indrajeet Singh (supra) cannot be pressed into service in the present case. Consequently, ....