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2023 DIGILAW 1171 (ALL)

Akeedan v. State of U. P.

2023-04-27

SYED QAMAR HASAN RIZVI

body2023
JUDGMENT : SYED QAMAR HASAN RIZVI, J. 1. Heard Sri Ramesh Chandra Tiwari and Sri Diwakar Prasad Tiwari, learned counsels for the petitioner and Sri Anshul Nigam, learned Standing Counsel for the State-respondent Nos. 1, 2 & 3. Sri H.N. Singh, leaned Senior Advocate assisted by Sri Jayant Prakash Singh, learned counsel for the respondent Nos. 4 to 8. 2. The present writ petition has been filed seeking a writ in the nature of certiorari to quash the impugned orders dated 15.3.2023 and dated 6.2.2023, passed by the Commissioner, Moradabad Division, Moradabad (respondent No. 2) and the Sub Divisional Magistrate, Sambhal (respondent No. 3), respectively. 3. The factual matrix of the case in brief is that admittedly the properties bearing Khata No. 77, plot No. 34/0.059 hectare, Khata No. 233 plot No. 173/0.146, Khata No. 235 plot No. 177/0.425 and Khata No. 236 plot No. 175A/0.032 and plot No. 176/0.016, total 0.048 from two plots and plot No. 175B/0.028, 176B/0.012 hectare total 0.040 from two plots situated at Mohalla Chaudhary Sarai, District Sambhal and Khata No. 81 plot No. 208/5/1.967 situated in Village Sher Khan Sarai and Khata No. 43 plot No. 34/0.623 situated at Bhawani Das Sarai, District Sambhal (hereinafter referred to as plots) were recorded in the name of Kallu alias Kallan, resident of Chaudhary Sarai, Sambhal, District Sambhal. 4. The petitioner is the wife of late Kallu alias Kallan and she is in continuous possession over the plots in question. While the respondent No. 4 to 7 are the nephews (sons of the brother) of late Kallu and the respondent No. 8 is the daughter of late Kallu. After the death of said Kallu alias Kallan, the respondent Nos. 4 to 8 (hereinafter collectively referred to as the respondents) instituted a case under Section 34/35 of the U.P. Land Revenue Act, 1901 for mutation in respect of the plots in question and the same was registered as Case No. 849, 850 and 851 in the year 2005 before the Tehsildar Sambhal. The aforesaid applications for mutation were filed by the respondents on the strength of a registered Will Deed dated 17.8.1998 in favour of the respondents. The Tehsildar Sambhal, vide order dated 29.4.2005 allowed the aforesaid mutation cases and accordingly, the names of the respondents were entered in the revenue record replacing the name of late Kallu alias Kallan. 5. The aforesaid applications for mutation were filed by the respondents on the strength of a registered Will Deed dated 17.8.1998 in favour of the respondents. The Tehsildar Sambhal, vide order dated 29.4.2005 allowed the aforesaid mutation cases and accordingly, the names of the respondents were entered in the revenue record replacing the name of late Kallu alias Kallan. 5. The submission of the learned counsel for the petitioner is that the petitioner is continuously in peaceful possession of the properties in question since the life time of her husband and she had no knowledge of the aforesaid order of mutation dated 29.4.2005 until the year 2022. She for the first time came to know about the said mutation order dated 29.4.2005 through her counsel from a pending proceeding instituted by the private respondents under Section 31/32 (Zaheer Ahmad v. State). As soon as she became aware of the aforesaid order of mutation dated 29.4.2005, she immediately moved an application for restoration on 30.4.2022 on the ground that since the order dated 29.4.2005 passed by the Court of Tehsildar Sambhal, was an ex-parte order and the same was passed even without issuing any notices to the legal heirs of Kallu alias Kallan, as such, the same being an ex-parte order is liable to be recalled. On the aforesaid application dated 30.4.2022 for restoration, the Tehsildar Sambhal, issued notices to the private respondents. In pursuance to the said notices, the present respondent Nos. 4 to 8 appeared before the Court of Tehsildar and filed their objection against the aforesaid restoration application. 6. On the basis of the material available on record, the Tehsildar Sambhal vide order dated 19.12.2022, allowed the said restoration application preferred by the petitioner and recalled the earlier mutation order dated 29.4.2005 and fixed 27.12.2022 for the evidence in the case and also directed for the endorsement of the said order in the revenue record. 7. 6. On the basis of the material available on record, the Tehsildar Sambhal vide order dated 19.12.2022, allowed the said restoration application preferred by the petitioner and recalled the earlier mutation order dated 29.4.2005 and fixed 27.12.2022 for the evidence in the case and also directed for the endorsement of the said order in the revenue record. 7. Against the aforesaid order dated 19.12.2022, the present respondents preferred an Appeal under Section 35(2) of the U.P. Revenue Code, 2006 before the Sub Divisional Officer, Sambhal (respondent No. 3) which was registered as Appeal No. 15996/2022 (Zaheer Ahmad v. Akeedan), mainly on the ground that the respondents are the successors of the late Kallu alias Kallan on the basis of a registered Will, which has never been challenged by the petitioner and further that the aforesaid restoration application is highly belated as the same has been filed after a lapse of about 17 years and that the question of delay has not been taken into consideration by the Tehsildar while allowing the restoration application. 8. In exercise of the powers under Section 35(2) of the U.P. Revenue Code, 2006, the Sub Divisional Officer vide order dated 6.2.2023 allowed the said Appeal No. 15996/2022 and set aside the order dated 19.12.2022 passed by the Tehsildar, by means of which the aforesaid restoration application was allowed and further directed to maintain the entries in the revenue records that were made in pursuance of the earlier order dated 29.4.2005, passed by the learned Tehsildar Sambhal. 9. Aggrieved by the said order dated 6.2.2023 passed by the Appellate Court in Appeal No. 15996/2022, the petitioner preferred a revision under Section 210 of the U.P. Revenue Code, 2006 before the learned Commissioner, Moradabad Division primarily on the ground that the appeal filed by the respondents was not maintainable under Section 35(2) of the U.P. Revenue Code, 2006, and moreover the Sub Divisional Officer was not competent to decide the said appeal in the light of the provisions of Section 231 of U.P. Revenue Code, 2006, as the said appeal could have only be entertained by the Collector under Section 210 of the U.P. Land Revenue Act, 1901. Learned counsel for the petitioner further contended that the learned Appellate Court has failed to appreciate that the question of delay is merely a technical aspect while the petitioner, being the widow is the lawful heir and successor of late Kallu alias Kallan and has a bona fide claim over the plots in question, as such the technicalities ought not to have come in the way of substantial justice. The petitioner also disputed the genuineness of the Will dated 17.8.1998 on the basis of which the entire proceeding of mutation was initiated. 10. The learned Commissioner, Moradabad Division (respondent No. 2) by means of the impugned order dated 15.3.2023 upheld the Appellate Court's order dated 6.2.2023 passed by the Sub Divisional Officer and dismissed the said revision at the admission stage itself. Aggrieved by the aforesaid orders dated 6.2.2023 as well as dated 15.3.2023, the petitioner has preferred the instant writ petition. 11. Learned Senior Advocate appearing on behalf of the respondents, at the very outset, raised an objection regarding the maintainability of the writ petition and submitted that the writ petition under Article 226 of the Constitution of India in the proceedings relating to the mutation is not entertainable. He relied upon the judgment and order passed by this Court, in the case of Smt. Kalawati v. Board of Revenue and others, 2022 (4) ADJ 578 . He contended that the writ petition under Article 226 of the Constitution of India may be entertained against the order passed in the mutation proceedings only where the order or the proceedings are wholly without jurisdiction or the order suffers from some patent jurisdictional error and further where there has been a violation of principal of natural justice. 12. Sri Anshul Nigam, learned Standing Counsel, appearing for the State-respondents has also raised preliminary objection regarding the maintainability of the writ petition on the ground that since the proceedings, in the instant case, have arisen from the application being filed under Section 34 of the U.P. Revenue Code, 2006 for the mutation in the revenue records and the said proceedings being summary in nature, the instant writ petition is not maintainable. 13. 13. Per Contra, the contention of the learned counsel for the petitioner is that the order dated 29.4.2005 passed by the Tehsildar Sambhal is an ex-parte order as the same was passed at the back of the petitioner depriving her the opportunity of hearing. He further submits that since in the present writ petition the maintainability of proceedings of the above mentioned appeal before the Sub Divisional Officer (respondent No. 3), as well as the order dated 15.3.2023 passed in the revision by the Commissioner are under challenge on the ground of jurisdictional competence and as such the objections regarding the maintainability of the writ petition as raised by the respondent counsels are not sustainable. 14. In the case of Madhav Pandey and others v. Board of Revenue and others, 2002 (2) AWC 1311 ; this Court has held that the mutation proceeding is summary in nature and a writ petition against the summary proceeding is not entertainable under Article 226 of the Constitution of India. In Para 26 of the said judgment, it has been very categorically held as under: “...there is no need to consider the question as to whether the revisional Court has committed any error in exercise of jurisdiction. Assuming for argument sake that there is some error in exercise of jurisdiction by the Board of Revenue, the said error will not make the order without jurisdiction. As held above, the writ petition arising out of the summary proceedings, can be entertained only when there is lack of jurisdiction. It being not a case of lack of jurisdiction, no interference is called for in the impugned order on the basis of the above submission of the counsel for the petitioners.” 15. In the case of Smt. Hadisul Nisha v. Additional Commissioner (Judicial), Faizabad and others, 2021 (6) ADJ 176 ; this Court has carved out certain exceptions per which the writ petition would be maintainable even against orders passed in summary proceedings despite the said order having been affirmed/set aside by the Appellate Court and Board of Revenue. For the sake of conveyance, Para 19 wherein the said proposition has been laid down, is indicated below: “19. The Courts in the aforecited decisions have laid down a few parametres for entertaining writs arising out of mutation proceedings. The exceptions that have been carved out being very few, for example: (i) If the order is without jurisdiction. For the sake of conveyance, Para 19 wherein the said proposition has been laid down, is indicated below: “19. The Courts in the aforecited decisions have laid down a few parametres for entertaining writs arising out of mutation proceedings. The exceptions that have been carved out being very few, for example: (i) If the order is without jurisdiction. (ii) If the rights and title of the parties have already been decided by the competent Court, and that has been varied by the mutation Courts. (iii) If the mutation has been directed not on the basis of possession or simply on the basis of some title deed, but after entering into a debate of entitlement to succeed the property, touching into the merits of the rival claims. (iv) If rights have been created which are against statutory provisions of any Statute, and the entry itself confers a title on the petitioner by virtue of the provisions of the U.P. Zamindari Abolition and Land Reforms Act. (v) Where the orders impugned in the writ petition have been passed on the basis of fraud or misrepresentation of facts, or by fabricating the documents by anyone of the litigants. (vi) Where the Courts have not considered the matter on merits for example the Courts have passed orders on restoration applications etc. [Vijay Shankar v. Additional Commissioner, 2015 (33) LCD 1073 ].” 16. A similar view has been taken by this Court in the case of Smt. Kalawati v. Board of Revenue and others, 2022 (4) ADJ 578 . 17. The question of maintainability of the writ petition has been dealt with by the Hon'ble Apex Court in the case of Ms Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum Assessing Authority, AIR Online 2023 SC 76, by relying upon in the case of Whirlpool Corporation Private Ltd. v. State of U.P. and others, 1990 (8) SCC 1, held that: “6. At the end of the last century, this Court in paragraph 15 of the its decision in Whirpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 , carved out the exceptions on the existence whereof a Writ Court could be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the Statute. The same read as under: (i) where the writ petition seeks enforcement of any of the fundamental rights. The same read as under: (i) where the writ petition seeks enforcement of any of the fundamental rights. (ii) where there is violation of principles of natural justice. (iii) where the order or the proceedings are wholly without jurisdiction. (iv) where the vires of an act is challenged.” 18. After taking into consideration the submissions made by the learned counsel for the parties on the maintainability of the writ petition, this Court is of the view that since in the instant case the question of violation of principles of natural justice and the jurisdictional competence of the authority passing the impugned orders are involved as such in the light of the law laid down by the Hon'ble Supreme Court as well as by this Court as mentioned above the objections raised by the learned counsel for the respondents regarding the maintainability of the writ petition are not sustainable and is accordingly turned down. 19. Now, on the merits of the case, the learned counsel for the petitioner submits that while dismissing the revision, the Commissioner did not consider the legal questions that were raised before him and has entered into the question of genuineness of the Will which was beyond the competence of Revenue Court. 20. He further submits that the legal issue as raised in revision before the learned Commissioner was, that the appeal filed before the Sub Divisional Officer, under Section 35(2) of the U.P. Revenue Code, 2006, was not at all maintainable in view of the provision of Section 231 of the U.P. Revenue Code, 2006. The Sub Divisional Officer entertained the aforesaid Appeal No. 15996/2022 filed by the respondents dehors of jurisdiction. 21. Per contra, learned Senior Advocate appearing for the respondents submitted that the learned Sub Divisional Officer has rightly entertained Hehe He kjnthe said appeal filed by the respondents as the same was against the order dated 19.12.2022 passed by the Tehsildar concerned who passed the order under Section 34/35 of the U.P. Revenue Code, 2006, and the appeal against which lies before the Sub Divisional Officer under Section 35(2) of the U.P. Revenue Code, 2006. Learned Sr. Learned Sr. Advocate has drawn the attention of this Court to the restoration application dated 30.4.2022 filed by the petitioner as contained in Annexure 3 to the writ petition, to show that the same was filed under Section 34 of the Land Revenue Act, 1901 and the order dated 19.12.2022 passed by the Tehsildar concerned as contained in Annexure 4 to the writ petition, was passed in exercise of power under Section 34/35 of the U.P. Revenue Code, 2006. The contention of the learned counsel for the respondents is that at the time when the restoration application was filed before the Tehsildar, no proceedings were pending and as such the provisions of Section 231 of the U.P. Revenue Code, 2006 will not be applicable as the same is applicable only in respect of the pending proceedings. He further submits that in the instant case, the mutation case was decided way back on 29.4.2005 and that order attained finality as the same was incorporated in the revenue record. He further submits that the restoration application filed by the petitioner was not at all maintainable as the same was filed under the provisions of the old Act i.e. U.P. Land Revenue Act, 1901, which was repealed after the enforcement of the U.P. Revenue Code, 2006, that came into force on 11.2.2016, and the respondents rightly filed the appeal before the Sub Divisional Officer on 23.12.2022 under the provision of the U.P. Revenue Code, 2006 and as such there is no illegality or infirmity in the order dated 6.2.2023 passed by the Sub Divisional Officer (respondent No. 3). 22. Sri Anshul Nigam, learned Standing Counsel for the State has justified the orders passed by the learned Sub Divisional Officer (respondent No. 3) and the learned Commissioner (respondent No. 2), as the same have been passed perfectly in accordance with law. 23. In view of the aforesaid factual matrix and in the light of the provision of Section 231 of the U.P. Revenue Code, 2006, a question arises whether proceeding of restoration initiated on the application dated 30.4.2022 filed by the petitioner, were to be carried out under the provisions of the Land Revenue Act, 1901 or under the provision of U.P. Revenue Code, 2006 which came into force w.e.f. 11.2.2016? 24. 24. The provision of Section 231 of the U.P. Revenue Code, 2006 that deals with the applicability of the said Code of 2006 to the pending proceedings. For ready reference, Section 231 of the U.P. Revenue Code, 2006 is reproduced below: “Applicability of the Code to pending proceeding: (1) Save as otherwise expressly provided in this Code, all cases pending before the State Government or any Revenue Court immediately before the commencement of this Code, whether in appeal, revision, review or otherwise, shall be decided in accordance with the provisions of the appropriate law, which would have been applicable to them had this Code not been passed. (2) All cases pending in any Civil Court immediately before the commencement of this Code which would under this Code be exclusively triable by a revenue Court, shall be disposed of by such Civil Court according to the law in force prior to the date of such commencement.” 25. This Court invited the assistance of Sri Pankaj Kumar Gupta, Advocate, a prominent lawyer of this Court, to address on the above mentioned legal issue. 26. Sri Gupta submitted that the intention of the legislature is very much clear from the language of Section 231 of the U.P. Revenue Code, 2006 that all cases pending before the State Government or any Revenue Court immediately before the commencement of the U.P. Revenue Code, 2006; whether any appeal, revision, review or otherwise, shall be decided in accordance with the provisions of the appropriate law, which would have been applicable had the U.P. Revenue Code, 2006 not been passed. He emphasized the word 'otherwise' used in the Section 231 of U.P. Revenue Code, 2006 and submits that in the instant case, after the restoration of the mutation case (Case No. 849/850/851 of 2005), by the Tehsildar vide order dated 19.12.2022, the said proceedings stood revived and restored to the position as that of 29.4.2005. He submitted that the word 'otherwise' as used in the Section 231 of U.P. Revenue Code, 2006 fully covers the proceedings of restoration, recall, second appeal etc. He placed before this Court the Circular No. 6101/12-L(1)/2017 dated 3.11.2020. Para 5 of the said circular is quoted below: 27. Sri Gupta further submitted that Para 5 of the above mentioned circular is nothing but a clarification of the Section 231 of the U.P. Revenue Code, 2006. 28. He placed before this Court the Circular No. 6101/12-L(1)/2017 dated 3.11.2020. Para 5 of the said circular is quoted below: 27. Sri Gupta further submitted that Para 5 of the above mentioned circular is nothing but a clarification of the Section 231 of the U.P. Revenue Code, 2006. 28. This Court in the case of Lakshmi Prashad v. Commissioner (Judicial) Varanasi Region and others, 2016 (11) ADJ 18 , has held that appeal and revision is continuation of the proceedings and therefore, any appeal or revision against an order passed under the repealed Act will be considered as proceedings in continuation of the repealed Act itself. For ready reference Para No. 8 to 11 of Lakshmi Parashad case (supra) are reproduced below: “8. The question therefore, which arises for consideration is as to the provision whereunder, an order passed in proceedings under Section 34 of the U.P. Land Revenue Act can be challenged once the Revenue Code, 2006 has been enforced. 9. The contention of learned counsel for the petitioner is that after the repeal of the U.P. Land Revenue Act, by enforcement of the U.P. Revenue Code, 2006, any appeal or revision, necessarily lies in accordance with the provision contained in the Revenue Code, 2006, and not in accordance with the provisions of the repealed Act. 10. From deciding this issue, Section 231 of the U.P. Revenue Code, 2006 is relevant and the same is extracted below: “Section 231: Applicability of the Code to pending proceedings: (1) Save as otherwise expressly provided in this Code, all cases pending before the State Government or any revenue Court immediately before the commencement of this Code, whether in appeal, revision, review or otherwise, shall be decided in accordance with the provisions of the appropriate law, which would have been applicable to them had this Code not been passed. (2) All cases pending in any Civil Court immediately before the commencement of this Code which would under this Code be exclusively triable by a revenue Court, shall be disposed of by such Civil Court according to the law in force prior to the date of such commencement.” 11. Sub-section 1 of Section 231 quoted above, is in my considered opinion absolutely categorical. Sub-section 1 of Section 231 quoted above, is in my considered opinion absolutely categorical. Therefore, an order on an application under Section 34 of the U.P. Land Revenue Act, is appealable and revisable in accordance with the provisions of the U.P. Land Revenue Act, itself and, therefore, the provision of Section 210 as also Section 219 of the U.P. Revenue Act are attracted and can be invoked even after the enforcement of the U.P. Revenue Code, 2006.” 29. Section 231 of U.P. Revenue Code, 2006 is very categorical. It begins with the word “save as otherwise expressly provided in this Code” that defines the extent of applicability of the U.P. Revenue Code, 2006 to the pending proceedings. It is evident from the language of Section 231 of the U.P. Revenue Code, 2006 that the remedies available under the entire Code of 2006 in respect of proceedings that were instituted before the Revenue Courts under the old enactment which was repealed by U.P. Revenue Code, 2006 have been saved. 30. Further, the word “pending proceeding” used in Section 231 of the U.P. Revenue Code, 2006 means all the cases pending before the State Government or any revenue Court immediately before the commencement of this Code and reflects the clear legislative intention to cover all the matters that have not been concluded. 31. The Supreme Court of India in the case of S.K. Kashyap and others v. State of Rajasthan, AIR 1971 SC 1120 , has defined the word “pending.” The relevant extract of paragraph 25 of the said judgment is reproduced as under: “(25).........The word 'pending' will ordinarily mean that the matter is not concluded and the Court which has cognizance of it can make an order on the matter in issue. The test is whether any proceedings can be taken jn the cause before the Court or tribunal where it is said to be pending. The answer is that until the case is concluded it is pending......” 32. In the present case, once the Tehsildar vide order dated 19.12.2022 restored and proceeding of the mutation case, the said proceedings stood revived and assumed the position as that was of 29.4.2005. 33. The aforementioned Circular No. 6101/12-L(1)/2017 dated 3.11.2020 issued by the Government of U.P. also clarifies the legal position that all the subsequent proceedings including the Appeal or Review etc. 33. The aforementioned Circular No. 6101/12-L(1)/2017 dated 3.11.2020 issued by the Government of U.P. also clarifies the legal position that all the subsequent proceedings including the Appeal or Review etc. to be carried out in accordance with the provisions of the Acts in which they were instituted. 34. Section 231 of the U.P. Revenue Code, 2006 provides that the nature of pending cases to which this provision applies are appeal, revision, review or otherwise. 35. Section 6 of the U.P. General Clauses Act, 1904 also supports the said view. For ready reference of the provision of Section 6 of the U.P. General Clauses Act, 1904 is reproduced herein-below: “Effect of repeal-Where any (Uttar Pradesh) Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: (a) revive anything not in force or existing at the time at which the repeal takes effect. (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder. (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. (d) affect any penalty, forefeiture or punishment incurred in respect of any offence committed against any enactment so repealed. (e) affect any remedy or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forefeiture or punishment as aforesaid.” 36. The Sub-clause (e) of Section 6 very clearly provides that the repeal of an Act shall not affect any remedy, investigation or legal proceeding commenced before the repealing Act. Any such remedy may be enforced and any such investigation or legal proceeding may be constituted and concluded and any such penalty, forefeiture or punishment imposed will be considered as if the Repealing Act had not been passed. Simply put, if any legal remedy arises out of a proceeding under the Act of 1901, then, such legal proceeding will be governed by the Act of 1901 as if the Repealing code of 2006 had not been passed. 37. This Court in the case of Anand Kumar Singh and others v. State of U.P. and others, 2017 (6) ADJ 728 , has held as under: “20. 37. This Court in the case of Anand Kumar Singh and others v. State of U.P. and others, 2017 (6) ADJ 728 , has held as under: “20. Thus, if Section 231 of U.P. Revenue Code, 2006 saves the pending proceedings under the previous enactments, in my considered opinion, the remedies available under the whole enactment in respect of proceedings instituted before the subordinate revenue Courts under previous enactments will also be saved. 21. The language employed under Sections 230 and 231 of U.P. Revenue Code, 2006 suggests that it is not only the proceedings pending under the previous enactments on the date the Code came into operation that have been saved but other provisions of the previous enactments have also been saved including the provision containing judicial remedies, such as remedies available under Sections 210 and 219 of U.P. Land Revenue Act and the remedies available under Sections 331 and 333 of U.P.Z.A. and L.R. Act.” 38. As such, in the light of the provisions contained in Section 231 of U.P. Revenue Code, 2006 and also taking into account the provisions contained in Section 6 of the General Clauses Act, it is clear that the remedy as provided under Section 210 of U.P. Land Revenue Act will be available to person aggrieved against the order passed by the subordinate Courts under U.P. Land Revenue Act, 1901 in the proceedings instituted before enforcement of U.P. Revenue Code, 2006, even if they are concluded after enforcement of U.P. Revenue Code, 2006. 39. In view of the above, the position that emerges is that the restoration proceeding is covered within the word 'otherwise' as used in Section 231 of the U.P. Revenue Code, 2006. As such, the restoration application moved by the petitioner under the provisions of the old Act i.e. U.P. Land Revenue Act, 1901 was perfectly in accordance with law and the Tehsildar concerned has rightly entertained the same and passed the order dated 19.12.2022. 40. Learned counsel for the petitioner has raised another issue that the order dated 6.2.2023 passed by the Sub Divisional Officer under Section 35(2) of the U.P. Revenue Code, 2006 is without jurisdiction as he was not competent to entertain and decide the appeal under the provisions of Section 35(2) of the U.P. Revenue Code, 2006, whereas Section 210 of the U.P. Land Revenue Act, 1901, empowers the Collector to entertain the appeal. 41. 41. The relevant portion of Section 210 of the U.P. Land Revenue Act, 1901 is quoted below: “Courts to which appeals lie: (1) Appeal shall lie under this Act as follows: (a) to the Record Officer from orders passed by any Assistant Record Officer. (b) (i) to the Commissioner from orders passed by a Collector or an Assistant Collector first class or Assistant Collector in charge of sub-division. (ii) to the Collector from orders passed by an Assistant Collector second class or Tahsildar. (c) [* * *] (2) [* * *] (3) [* * *] (4) [* * *] (5) [* * *] (6) No appeal shall lie against an order passed under Sections 28, 33, [* * *], 39 or 40.” 42. Sri Anshul Nigam, learned Standing Counsel appearing for the State has vehemently opposed this contention of the petitioner and submits that as per Section 223 of the U.P. Land Revenue Act, 1901, the State Government is empowered to delegate the powers and duties of the Collector to the Assistant Collector/Sub Divisional Officer of the concerned area. For that purpose, the State Government issued a notification being Notification No. U.O. 877/I/(104)/75-Ra-1 dated 24.1.1976 by which the State Government has empowered the Sub Divisonal Officers/Assistant Collectors to perform the duties and power of the Collector in concerned Tehsil/area. 43. Section 223 of the U.P. Land Revenue Act, 1901 reads as under: “Investment of Assistant Collector with powers of Collector - The [State Government] may confer on any Assistant Collector of the first class all or any of the powers of a Collector, and all powers so conferred shall be exercised subject to the control of the Collector of the district.” 44. The learned Standing Counsel has placed the Notification No. U.O. 877/I/(104)/75-Ra-1 dated 24.1.1976 issued by the State Government. The relevant portion of the said Notification is quoted below: “Under Section 223 of U.P. Land Revenue Act, 1901 (U.P. Act No. III of 1901), the State Government has empowered all the Assistant Collectors of First class incharge of sub-division to discharge the functions of collector under Section 210 of the Act in areas in respect of which notifications have been issued.” 45. In view of the aforesaid position, the contention of the learned counsel for the petitioner that the Sub Divisional Officer was not competent to pass the order dated 6.2.2023, is not sustainable. 46. In view of the aforesaid position, the contention of the learned counsel for the petitioner that the Sub Divisional Officer was not competent to pass the order dated 6.2.2023, is not sustainable. 46. In the case of Charan Singh v. State of U.P. and others, 2019(6) ADJ 52 , a similar yet different question has been referred by a co-ordinate bench of this Court to a larger bench. The question framed by this Court is as follows: “Whether when Section 231 of the Code specially states that only such proceedings which were pending before the commencement of the Code would be decided in accordance with provisions of the law passed in those proceedings be governed by the previous enactment i.e. the U.P. Zamindari Abolition and Land Reforms Act, 1950 or by the provisions of the U.P. Revenue Code, 2006.” 47. However, as the controversy in the present case does not relate to either appeal or revision and is restricted to the issue of whether the restoration proceedings would be considered as a pending or a fresh proceeding. As such, the question involved in the present case is different from the question involved in the case of Charan Singh (supra). 48. The next question that has been raised by the learned counsel for the petitioner is that the learned Appellate Court has decided the appeal without framing the issues as is provided under Para 20 of the U.P. Revenue Court Manual, which reads as under: “Framing of issues: (1) Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant, must allege in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) Issues are of two kinds (a) issues of fact, and (b) issues of law. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) Issues are of two kinds (a) issues of fact, and (b) issues of law. (5) At the first hearing of suit the Court shall after reading the plaint and the written statements, if any, after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appear to depend. (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.” 49. Sri Pankaj Kumar Gupta, Advocate has drew the attention of this Court to Section 225-A of the U.P. Revenue Code, 2006 that deals with the determination of questions in summary proceedings which provides that all the questions arising for determination in any summary proceeding under this Code shall be decided upon affidavit in the prescribed manner. 50. For ready reference, Section 225-A of U.P. Revenue Code, 2006 is reproduced as under: “225-A Determination of questions in summary proceeding: Notwithstanding anything contained in other provisions of this Code, all the questions arising for determination in any summary proceeding under this Code shall be decided upon affidavits, in the manner prescribed: Provided that if Revenue Court or Revenue Officer is satisfied that the cross-examination of any witness, who has filed affidavit, is necessary, it or he may direct to produce the witness for such cross-examination.” 51. The mutation proceedings are proceedings of summary nature and as such it is not necessary for the Court concerned to frame questions or issues and as such by not framing the issues, the Court has committed no such illegality that vitiates the order. Any mutation proceeding does not determines the title of the parties and for that purpose, it is always open for the petitioner to approach the competent Court for the determination of the title as is provided under Section 40-A of the U.P. Land Revenue Act, 1901. 52. In the case of Jitendra Singh v. State of Madhya Pradesh, (2021) 0 Supreme (SC) 487; Hon'ble the Supreme Court of India has been pleased to hold as under. 52. In the case of Jitendra Singh v. State of Madhya Pradesh, (2021) 0 Supreme (SC) 487; Hon'ble the Supreme Court of India has been pleased to hold as under. For the sake of conveyance, paragraphs 5, 6 & 6.1 are reproduced as under: “..............5. We have heard Shri Nishesh Sharma, learned Advocate appearing for the petitioner. It is not in dispute that the dispute is with respect to mutation entry in the revenue records. The petitioner herein submitted an application to mutate his name on the basis of the alleged will dated 20.5.1998 executed by Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai died on 27.8.2011. From the record, it emerges that the application before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of Smt. Ananti Bai. It cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate Civil Court/Court and get his rights crystalised and only thereafter on the basis of the decision before the Civil Court necessary mutation entry can be made. 6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) by LRs. (1997) 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter. 6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent Civil Court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58 ; Faqruddin v. Tajuddin, (2008) 8 SCC 12 ; Rajinder Singh v. State of J&K, (2008) 9 SCC 368 ; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689 ; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342 ; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co. (2019) 3 SCC 191 ; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259 and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70 ...............” 53. In view of above, it is the settled proposition of law that if there is any dispute with respect to the title and more particularly when mutation entry is sought to be made on the basis of Will, party who is claiming title/right on the basis of the Will has to approach appropriate Civil Court/Court and get his rights crystallised and only thereafter on the basis of the decision before Civil Court, necessary mutation entry can be made. Mutation of property in revenue records neither creates nor extinguishes title to property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. 54. Learned Senior Advocate appearing for the respondents further submitted that the Tehsildar concerned, while passing the order dated 19.12.2022 has quoted Section 34/35 of the U.P. Revenue Code, 2006 in its order and as such it shall be presumed that he has passed the order under the provisions of the new Code i.e. U.P. Revenue Code, 2006. 55. 54. Learned Senior Advocate appearing for the respondents further submitted that the Tehsildar concerned, while passing the order dated 19.12.2022 has quoted Section 34/35 of the U.P. Revenue Code, 2006 in its order and as such it shall be presumed that he has passed the order under the provisions of the new Code i.e. U.P. Revenue Code, 2006. 55. The ancillary issue raised before this Court that the Tehsildar concerned, while passing the order dated 19.12.2022 has quoted Section 34/35 of the U.P. Revenue Code, 2006 and as such it shall be presumed that he has passed the order under the provisions of the U.P. Revenue Code, 2006. 56. Learned counsel for the Petitioner has refuted the aforesaid argument of the counsel of the respondent, by stating that the mentioning of a wrong section will not vitiate the order because the authority has entertained the application under the old Act and as such the mentioning of a section of the new Act will not affect the nature of the proceedings. 57. The Hon'ble Apex Court in the case of Isha Beevi and others v. Tax Recovery Officer and others, AIR (1975) SC 2135, has categorically propounded the law that citing of a wrong provision is not enough if the order to proceed actually there under another provision. Relevant portion of the judgment is quoted below: “.......But, in order to substantiate a right to obtain a Writ of Prohibition from a High Court or from this Court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority complained against. It is not enough if a wrong Section or provision of law is cited in a notice or order if the power to proceed is actually there under another provision.” 58. In view of the above, it is clear that merely wrong mentioning of a provision cannot vitiate the order passed by the authority concerned in case where the jurisdiction otherwise exists in the same authority. 59. Therefore, the fact that the Tehsildar passed the order dated 19.12.2022 under the Section 34/35 of the Revenue Code, 2006 will not vitiate his authority just because of the reason that he has entertained the application bearing the provisions of the old Act. The mentioning of a section of the Act will not affect the nature of the proceedings. 60. Therefore, the fact that the Tehsildar passed the order dated 19.12.2022 under the Section 34/35 of the Revenue Code, 2006 will not vitiate his authority just because of the reason that he has entertained the application bearing the provisions of the old Act. The mentioning of a section of the Act will not affect the nature of the proceedings. 60. The learned Sub Divisional Officer has committed an error in allowing the appeal by taking the technical ground of inordinate delay which is not reasonable in view of the law laid down by the Hon'ble Apex Court in the cases of B.S. Sheshagiri Setty and others v. State of Karnataka and others, (2016) 2 SCC 123 and State of Punjab and another v. Shamlal Murari and another, (1976) 1 SCC 719 , wherein it has been observed that the Courts must consider and decide the case in a manner that the substantial justice may not be sacrificed on the technical grounds. 61. It is the settled principles of law that when substantial justice and technical considerations are pitted against each other, the way should be given to substantial justice. Further, the primary function of Court of law is to adjudicate and decide the matter between the parties on merits in order to settle their grievances. 62. The learned Commissioner, Moradabad Division, Moradabad (respondent No. 2) has also not considered the above mentioned aspect of the case in the light of the law laid down by the Hon'ble Apex Court as well as the settled legal position as discussed above and has passed the impugned order dated 15.3.2023 in a mechanical manner. Hence, the impugned orders dated 6.2.2023 passed by the Sub Divisional Magistrate, Sambhal (respondent No. 3) and order dated 15.3.2023 passed by the Commissioner, Moradabad Division, Moradabad (respondent No. 2) are not sustainable in law and are accordingly quashed. 63. In view of the facts and reasons narrated above, I am of the opinion that the order of restoration dated 19.12.2022 passed by the Tehsildar Sambhal does not suffer from any illegality. The Tehsildar concerned has very rightly allowed the application for restoration with the direction to the office to restore the case to its original number and directed the parties to adduce their evidences before the Court on the date fixed. 64. The Tehsildar concerned has very rightly allowed the application for restoration with the direction to the office to restore the case to its original number and directed the parties to adduce their evidences before the Court on the date fixed. 64. The writ petition is allowed with the direction to the Tehsildar, Sambhal, District Sambhal to consider and decide the Case No. 849/850/851 of 2005 in accordance with the provisions of Section 34/35 of the U.P. Land Revenue Act, 1901, after affording the opportunity of hearing to the parties concerned within a period of three months from the date of receipt of a certified copy of this order. 65. Till the aforesaid mutation proceeding pending before the Tehsildar concerned is finally concluded, the parties are directed to maintain status-quo in respect of the plots in question. 66. No order as to cost. 67. This Court appreciates the valuable assistance provided by the Sri Pankaj Kumar Gupta, Advocate, who extended his full co-operation to this Court during the course of hearing of this case.