The Allahabad High Court (Lucknow Bench), comprising Justice Rajan Roy and Justice Om Prakash Shukla, has quashed a notification issued by the Government of Uttar Pradesh on 29 December 2020, which retrospectively empowered Tehsildars to exercise the powers of Assistant Collectors under Section 67 of the U.P. Revenue Code, 2006. The Court ruled that such retrospective conferral of jurisdiction was legally unsustainable and violated settled principles of law.
The ruling came in Writ-C No. 1953 of 2021, filed by Career Convent Educational and Charitable Trust and Another, challenging multiple actions arising from proceedings initiated against them for alleged encroachment on government land.
Background:
The petitioners, who operate an educational institution, were alleged to have encroached on 5080 square feet of land. Proceedings under Section 67 of the U.P. Revenue Code, 2006 were initiated against them, culminating in an order dated 29 February 2020 passed by the Tehsildar. The petitioners contended that the said order was passed without prior notice or hearing, in violation of Rule 67 of the U.P. Revenue Code Rules, 2016.
An appeal under Section 67(5) was dismissed on 5 October 2020, prompting the petitioners to file a revision under Section 210, which was initially allowed on the ground that the Tehsildar lacked jurisdiction, as such powers were vested in the Assistant Collector. However, the State Government later issued a notification on 29 December 2020, authorising Tehsildars to exercise such powers with retrospective effect from 11 February 2016, leading to a review of the revision decision and dismissal of the revision on 8 January 2021.
Legal Analysis:
The High Court examined the validity of the 29 December 2020 notification, particularly its retrospective application. Referring to binding precedents of the Supreme Court, the Bench held:
“Unless and until there is a provision in the statute itself permitting retrospective effect to Rules and Notifications made thereunder, the same cannot be done.”
The Court ruled that no such enabling provision existed in the U.P. Revenue Code, 2006. Therefore, the notification conferring jurisdiction on Tehsildars with retrospective effect was invalid.
Notifications Under Earlier Enactments Still Applicable:
The Bench undertook a detailed review of earlier notifications issued under repealed enactments like the U.P. Land Revenue Act, 1901 and the U.P. Zamindari Abolition and Land Reforms Act, 1950. These notifications, including those dated 06.06.1953, 25.07.1960, and 07.01.1964, appointed Tehsildars as ex-officio Assistant Collectors and empowered them under relevant provisions.
The Court found that these notifications continued to remain in force under the saving clause in Section 230(2) of the U.P. Revenue Code, 2006, as they were not inconsistent with the new Code.
“Notifications… shall be deemed to have been done or issued under the corresponding provisions of the Code, 2006 and they continue to be in force accordingly…”
Further support was drawn from Section 24 of the U.P. General Clauses Act, 1904, which ensures continuity of statutory instruments under repealed and re-enacted laws.
Findings on the Proceedings Against the Petitioners:
The Court noted that the mandatory procedure under Rule 67 of the Rules, 2016 was not followed, and no notice was served on the petitioners prior to the passing of the eviction order. This procedural lapse was admitted by the State in its supplementary affidavit.
Though the Court upheld the non-maintainability of the revision under Section 210 (since an appeal had already been filed), it held that both the initial eviction order dated 29.02.2020 and the appellate order dated 05.10.2020 were vitiated by procedural irregularity.
Court’s Directions:
- The Notification dated 29.12.2020 was quashed, but the Tehsildars were permitted to continue acting as Assistant Collectors under earlier saved notifications, until a clarificatory notification is issued if the State so desires.
- The eviction and appellate orders were also quashed, and proceedings were remanded to the Tehsildar for fresh adjudication after proper notice.
- The Court ordered a stay on further proceedings under Section 67 until the pending exchange application under Section 101 of the Revenue Code, 2006 is decided. The Municipal Corporation, Lucknow was directed to take a decision on issuing a no-objection certificate within three months.
- The order was to be communicated to the Municipal Commissioner, Lucknow, for necessary action.
Allowing the petition in part, the Court stated:
“The impugned notification dated 29.12.2020 appears to have been issued under some misconception of facts and law… apart from the fact that it could not have been implemented with retrospective effect.”
