Dr. Yogendra Kumar Srivastava, J.
1. Heard Sri Anurag Tripathi, learned counsel for the petitioner, Sri J.N. Maurya, learned Chief Standing Counsel appearing along with Sri Satyendra Nath Srivastava and Sri Abhishek Shukla, learned Additional Chief Standing Counsel, and Sri Amresh Kumar Tewari learned Standing Counsel, for the State respondents, and Sri Madan Mohan Srivastava, learned counsel appearing for the respondent No. 5.
2. The present petition has been filed seeking to assail the order dated 3.1.2023, passed by the respondent No. 4, the Tahsildar, Tehsil Manjhanpur, District Kaushambi, in Case No. 559 of 2022, (Computerized Case No. T202202420300559), [Rajesh Kumar Pandey Vs. Hari Prasad Pandey], in proceedings under Section 25 of the U.P. Revenue Code, 20061, and also praying for certain ancillary reliefs.
3. An objection has been raised by the counsel appearing for the State respondents with regard to the entertainability of the writ petition by pointing out that the order passed under Section 25 of the Revenue Code, would be subject to the statutory alternative remedy of a revision under Section 27 of the Revenue Code.
4. In response to the aforesaid objection, counsel for the petitioner has sought to urge that the land in question which is situate in village “Purabsharira”, Tehsil Manjhanpur, District Kaushambi, is part of the notified area of the Nagar Panchayat, PurabPaschimsharira, and in view thereof the provisions of the Revenue Code would not be applicable, and therefore the order impugned being without jurisdiction, the plea of a statutory alternative remedy, would not create a bar to the writ petition being entertained.
5. Attention of the Court has been drawn to a notification bearing Notification No. 2875/IX10201928T.A./19, dated 31.12.2019, issued by the Uttar Pradesh Shasan, Nagar Vikas Anubhag – 1, exercising powers under Clause (2) of Article 243Q of the Constitution read with Section 3 of the Uttar Pradesh Municipalities Act, 1916. In terms of above, it has been specified that the local area with limits as given in the Schedule, shall be a transitional area for the purpose of Part IXA of the Constitution, and a Nagar Panchayat shall be constituted for the same, which would be known as Nagar Panchayat, PurabPaschim Sharira in District Kaushambi.
6. To examine the issue relating to the jurisdiction of the respondent authority which has passed the order impugned, the question relating to the applicability of the provisions of the Revenue Code to an area notified under the Uttar Pradesh Municipalities Act, 1916, would be required to be considered.
7. The U.P. Revenue Code, 2006, has been described as an Act to consolidate and amend the law relating to land tenures and the land revenue in the State of Uttar Pradesh, and to provide for matters connected therewith and incidental thereto.
8. The provision relating to extent of the Act is contained under Section 1 of the Revenue Code. The applicability of the Revenue Code is provided for, under Section 2, whereas Section 3 contains the provision for extension of the Code to new areas.
9. For ease of reference, the aforesaid statutory provisions contained in Sections 1, 2 and 3, are being extracted below:
“1. Short title, extent and commencement.—(1) This Act may be called the Uttar Pradesh Revenue Code, 2006.
(2) It extends to the whole of Uttar Pradesh.
(3) It shall come into force on such date as the State Government may, by notification, appoint and different dates may be appointed for different areas or for different provisions of this Code.
2. Applicability of the Code.—The provisions of this Code, except Chapters VIII and IX shall apply to the whole of Uttar Pradesh, and Chapters VIII and IX shall apply to the areas to which any of the enactments specified at serial numbers 19 and 25 of the First Schedule was applicable on the date immediately preceding their repeal by this Code.
3. Extension of the Code to new areas.—(1) Whereafter the commencement of this Code, any area is added to the territory of Uttar Pradesh, the State Government may, by notification, extend the whole or any provision of this Code, to such area.
(2) Where any notification is issued under subsection (1), the provisions of any Act, rule or regulation in force in the area referred to in the said subsection, which are inconsistent with the provisions so applied, shall be deemed to have been repealed.
(3) The State Government may, by a subsequent notification, amend, modify or alter any notification issued under subsection (1).”
10. The enactment of the Revenue Code has resulted in repeal of certain enactments, which have been specified in the First Schedule of the Act. The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and the U.P. Land Revenue Act, 1901, are amongst the various enactments which have been repealed.
11. In terms of subsection (2) of Section 1, as aforestated, the Revenue Code extends to the whole of Uttar Pradesh.
12. Section 2 of the Revenue Code which relates to its applicability, declares that the provisions of the Revenue Code shall apply to the whole of Uttar Pradesh, except:
(i) Chapter VIII which deals with management of land and other properties of Gram Panchayat or other local authorities, and
(ii) Chapter IX which deals with tenures.
13. The aforesaid Chapters VIII and IX of the Revenue Code have been stated to apply to the areas to which any of the enactments specified at Serial Nos. 19 and 25 of the First Schedule, was applicable on the date immediately preceding its repeal by the Revenue Code. The enactment Specified at Serial No. 19 is the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 19502, and the enactment specified at Serial No. 25 is the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 19563.
14. Section 25 of the Revenue Code, which pertains to “rights of way and other easements” and under which the order impugned has been passed, is part of Chapter IX of the Code, and in terms thereof, in the event of any dispute arising as to the route by which a tenureholder or an agricultural labourer, shall have access to his land or to the waste or pasture land of the village (other than by the public roads, paths or common land) or as to the source from or course by which he may avail himself of irrigational facilities, the Tahsildar may, after such local inquiry as may be considered necessary, decide the matter with reference to the prevailing custom and with due regard to the convenience of all the parties concerned.
15. Section 26 relates to “removal of obstacles” and in its terms if the Tahsildar finds that any obstacle impedes the free use of a public road, path or common land of a village or obstructs the road or water course or source of water, he may direct the removal of such obstacle.
16. The powers exerciable by the Tahsildar under Section 25 or Section 26, are subject to the revisional power of the Sub Divisional Officer, under Section 27 of the Revenue Code.
17. The aforesaid provisions, under Sections 25, 26 and 27, are part of Chapter IX of the Revenue Code, and as per the terms of Section 2 thereof, the said provisions would be applicable to the whole of the Uttar Pradesh, without any exception.
18. For ready reference, Sections 25, 26 and 27 are being reproduced below:
“25. Rights of way and other easements. In the event of any dispute arising as to the route by which a tenureholder or an agricultural labourer shall have access to his land or to the waste or pasture land of the village (other than by the public roads, paths or common land) or as to the source from or course by which he may avail himself of irrigational facilities, the Tahsildar may, after such local inquiry as may be considered necessary, decide the matter with reference to the prevailing custom and with due regard to the convenience of all the parties concerned. He may direct the removal of such obstacle and may, for that purpose, use or cause to be used such force as may be necessary and may recover the cost of such removal from the person concerned in the manner prescribed.
26. Removal of obstacle. –If the Tahsildar finds that any obstacle impedes the free use of a public road, path or common land of a village or obstructs the road or watercourse or source of water, he may direct the removal of such obstacle and may, for that purpose, use or cause to be used such force as may be necessary and may recover the cost of such removal from the person concerned in the manner prescribed.
27. Revisional powers of SubDivisional Officer. – The SubDivisional Officer may call for the record of any case decided by the Tahsildar under section 25 or 26, for the purpose of satisfying himself as to the legality or propriety of such decision, and may, after affording opportunity of hearing to the parties concerned, pass such orders as he thinks fit:
Provided that 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.”
19. The applicability of the provisions contained under Chapters VIII and IX of the Revenue Code, have been made subject to the applicability of any of the enactments specified at Serial Nos. 19 and 25 of the First Schedule, immediately preceding their repeal by the Code.
20. It would therefore be necessary to examine the extent of the Z.A. Act, 1950, and for the purpose, the provisions contained under subsection (2) of Section 1 of the said Act would be required to be adverted. For ease of reference, Section 1 of the Z.A. Act, is being reproduced below:
“1. Short title, extent and commencement. (1) This Act may be called the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.
(2) It extends to the whole of the Uttar Pradesh except the areas which, on the 7th day of July, 1949, were included in a municipality or a notified area under the provisions of the United Provinces Municipalities Act, 1916 (U.P. Act II of 1916) or a Cantonment, under the provisions of the Cantonment Act, 1924 (U.P. Act II of 1924) or a Town Areas under the provisions of the United Provinces Town Areas Act, 1914 (U.P. Act I of 1914)
Provided that in relation to areas included in the Rampur Municipality, this subsection shall have effect as if for the words and figures ‘7th day of July, 1949’ the words and figures' 31st day of July, 1949, were substituted therein
Provided further that where any area which on July 7, 1949, was included in a Municipality, Notified Area, Cantonment or Town Area, cease to be so included therein at any time after that date and no notification has been made in respect thereof under Section 8 of the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956—
(i) in case it has ceased to be so included at any time before June 29, 1971, this Act shall extend to such area from June 29, 1971; and
(ii) in any other case, this Act shall extend to such area from the date on which the area ceases to be so included.
(3) It shall come into force at once except in the areas mentioned in clauses (a) to (f) of subsection (1) of Section 2, where it shall, subject to any exception or modification under subsection (1) of Section 2, come into force on such date as the State Government may by notification in the Gazette appoint and different dates may be appointed for different areas and different provisions of this Act.”
21. In terms of subsection (2) of Section 1, as aforesaid, the Z.A. Act, 1950 extended to the whole of Uttar Pradesh except the areas which, on the 7th day of July, 1949 were included in a municipality or a notified area under the provisions of the United Provinces Municipalities Act, 1916 or a cantonment under the provisions of the Cantonment Act, 1924, or a town area under the provisions of the United Provinces Town Areas Act, 1914.
22. Subsection (2) of Section 1, of the Z.A. Act carves an exception in respect to the areas to which the Town Areas Act, Cantonment Act or the Municipalities Act, were applicable. The extent of this exclusion is in reference to the cut off date of July 7, 1949. The date is significant because it was on this day that Uttar Pradesh Zamindari Abolition and Land Reforms Bill was first introduced in the legislature. The provision makes it clear that if on July 7, 1949 a particular area was outside the limits of a municipality or a notified area or a cantonment, the Z.A. Act would be applicable, and would continue to apply. The Act would also continue to apply to the area which was subsequently included in a municipality or a notified area, under the United Provinces Municipalities Act, 1916 or a cantonment under the provisions of the Cantonment Act, 1924, or a town area under the provisions of the United Provinces Town Areas Act, 1914.
23. Section 1(2) of the Z.A. Act makes it clear that the inclusion has to be as on the date July 7, 1949, and any subsequent inclusion of the area within the limits of a municipality, notified area, a cantonment area or town area would not be material and would be of no consequence for the purpose.
24. It would therefore follow that in respect of an area which was not included in the limits of a municipality, under the United Provinces Municipalities Act, 1916, as on July 7, 1949, the provisions of the Z.A. Act, 1950 applied, and the subsequent inclusion of such an area within the limits of a municipality after July 7, 1949 would be inconsequential.
25. A conjoint reading of the aforementioned provisions contained under Section 1(2) of the Z.A. Act with the provisions contained under Section 2 of the Revenue Code, would lead to the inference that the provisions under Chapters VIII and IX of the Revenue Code shall apply to such areas, in addition to the provisions under the remaining Chapters being applicable.
26. Having regard to the foregoing discussions, the principles with regard to the applicability of the U.P. Revenue Code, 2006, may be summarized as follows:
26.1. The provisions of the Revenue Code shall apply to the whole of Uttar Pradesh, except: (i) Chapter VIII which deals with management of land and other properties of Gram Panchayat or other local authorities, and (ii) Chapter IX which deals with tenures.
26.2. The provisions of Chapters VIII and IX, together with the provisions under the remaining chapters of the Revenue Code, shall apply to the areas to which the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956, were applicable on the date immediately preceding their repeal by the Revenue Code.
27. As a corollary to the aforesaid principles, it may be stated that an area which was included in the municipal limits after July 7, 1949 and to which Z.A. Act, 1950 continued to be applicable by virtue of the provisions contained under Section 1(2) thereof, would be governed by the provisions of the U.P. Revenue Code, 2006, in its entirety, after the repeal of the Z.A. Act, 1950 by the Revenue Code.
28. In the case at hand, the village in question, having been included within the municipal limits, in terms of a notification dated 31.12.2019, issued under the provisions of the Uttar Pradesh Municipalities Act, 1916, and the provisions of the Z.A. Act, 1950, being applicable to it as on the date of enforcement of the U.P. Revenue Code, 2006, which is February 11, 2016, in terms of Section 2 thereof, the provisions of the U.P. Revenue Code, 2006, would apply to the area, in its entirety.
29. There is thus no manner of doubt with regard to the applicability of the provisions under Sections 25, 26 and 27 of the Revenue Code under Chapter V thereof to the area in question. The objection raised by the petitioner with regard to the jurisdiction of the concerned respondent authority in passing of the order exercising powers under Section 25, is therefore held to be legally untenable.
30. The order dated 03.01.2023 passed by the respondent No. 4 exercising powers under Section 25 of the Revenue Code, having been held to be unassailable on the ground of lack of jurisdiction, the contention raised by the petitioner with regard to the bar of the availability of the statutory alternative remedy under Section 27 being not applicable, cannot be sustained.
31. The writ petition is therefore not entertained on the ground of the availability of the statutory alternative remedy of a revision under Section 27 of the Revenue Code.
32. The petition stands disposed of, leaving it open to the petitioner to take recourse to the statutory alternative remedy.
