Point of Law: There is no infirmity in order passed by learned appellate court. However petitioner cannot be denied his right to substantive justice in view of provisions of U.P. Land Revenue Code, 2006.

JUDGMENT :

1. Heard Sri Byas Kumar Prasad, learned counsel holding brief of Mohammad Mustafa Khan, learned counsel for the petitioner and Sri Anirudh Kumar Upadhyay, learned counsel for the respondents.

2. Sri Byas Kumar Prasad, learned counsel for the petitioner contends that the Board of Revenue adopted a hyper technical view of the matter by failing to remit the matter to the competent court to proceed with the hearing of the appeal in accordance with the provisions of U.P. Land Revenue Act, 1901. The petitioner has instituted the appeal before the competent court under the relevant provisions. A miscarriage of justice has happened since the appeal of the petitioner has not been heard on merits by any competent court.

3. Sri Anirudh Kumar Upadhyay, learned counsel for the respondents in his usual fairness does not dispute the aforesaid fact. He however defends the order of Board of Revenue and contends that the appellate authority misdirected itself in law by continuing the proceedings under the U.P. Land Revenue Code, 2006. The same provisions were not applicable to the aforesaid proceedings.

4. Heard learned counsel for the parties.

5. Proceedings were instituted by the petitioner under Section 34 of the U.P. Land Revenue Act, 1901 which came to be registered as Case no. 648 of 2008 (Nirhi Vs Gujrati) before the court of Tehsildar, Shohratgarh, District Sidhharth Nagar. The learned trial court found against the petitioner and dismissed the application under Section 34 of the U.P. Land Revenue Act, 1901; by order dated 02.09.2014.

6. Aggrieved the petitioner took the order of the learned trial court in appeal before the court of Sub-Divisional Magistrate, Shohratgarh, District Siddharth Nagar. The appeal was preferred under Section 210 of the U.P. Land Revenue Act, 1901. However, the appeal was registered by the court under Section 207 of the U.P. Land Revenue Code, 2006 as Case no. T2016176351052266 (Nirhi Vs Muniram). The appeal of the petitioner was allowed by order dated 21.01.2017 and the order passed by the learned trial court was set aside.

7. The respondent no. 7 carried the order of the lower court in revision before the Board of Revenue under Section 219 of the U.P. Land Revenue Act, 1901. The revision was registered as Case no. REV/186/2017, Computer no. R2017176300186 (Muniram Vs Nirhi). The revising court allowed the revision and set aside the order passed by the learned appellate court. The sole footing on which the learned revising court by the impugned order dated 09.10.2019 reversed the order of the learned appellate court was that the appellate proceedings ought to have taken out and heard under the provisions of U.P. Land Revenue Act, 1901, in view of the provisions under Section 231 of the U.P. Land Revenue Code, 2006. The learned appellate court erred in law by permitting the proceedings to continue under the U.P. Land Revenue Code, 2006 though the same was not applicable to the aforesaid proceedings.

8. There is no infirmity in the order passed by the learned appellate court. However, the petitioner cannot be denied his right to substantive justice in view of the provisions of the U.P. Land Revenue Code, 2006. The learned appellate court is directed to recommence the appellate proceedings under Section 217 of the U.P. Land Revenue Act, 1901 and decide them in terms of the aforesaid Act. In case the proceedings are not maintainable before the earlier appellate court, the same shall be transferred to the competent court which has the jurisdiction to hear the appeal under Section 210 of the U.P. Land Revenue Act, 1901. The appellate court shall make all endeavor to decide the said appeal within a period of six months from the date of receipt of a certified copy of this order and implement the above directions.

9. The writ petition is disposed of.