The court found that the notification empowering the Tehsildar with retrospective effect was invalid due to lack of legal basis and failure to follow procedural requirements under the U.P. Revenue Code, 2006.

JUDGMENT :

Om Prakash Shukla, J.

1. Supplementary counter affidavit filed today by Shri Manish Mishra, learned Additional Chief Standing Counsel for the State, is taken on record.

2. We have heard learned Counsel for the petitioners Mr. Gaurav Mehrotra, learned Advocate assisted by Mr. Amit Jaiswal, Ms. Maria Fatima, Ms. Manjari, and Mr. Aditya Singh, and Shri Manish Mishra, learned Additional Chief Standing Counsel for the State.

3. The petitioner is an educational institution. Its campus is spread over an area of nearly 15 lakhs square feet of which a small part i.e. 5080 square feet is alleged to be an encroachment. Alleging such encroachment, proceedings were drawn under Section 67 of U.P. Revenue Code, 2006 (hereinafter referred to as "Code, 2006") against it. According to the petitioner, without service of notice upon it and without hearing it, final order was passed therein on 29.02.2020. Being aggrieved, an appeal was preferred by the petitioner under Section 67 (5) of U.P. Revenue Code, 2006, but, the appellate authority without considering the pleas raised rejected the same on 05.10.2020 which led to the filing of a revision before the Board of Revenue under Section 210 of the U.P. Revenue Code, 2006. The revision was initially allowed on 27.10.2020 on the ground that the Tehsildar did not have authority to exercise the power which in fact was vested in the Assistant Collector (under Section 67 of the Code, 2006.). However, thereafter, a notification dated 29.12.2020 was issued by the State Government empowering the Tehsildar to exercise such powers, that too, with retrospective effect i.e. from the date of promulgation of the Code, 2006 i.e. on 11.02.2016. Based on the same, a review application was filed before the Board of Revenue by the State authorities which was allowed. Being aggrieved against the aforesaid, this petition has been filed inter alia challenging the notification dated 29.12.2020, the order dated 29.02.202 passed under Section 67 (1) of Code, 2006, the appellate order dated 05.10.2020 passed under Section 67 (5) of the Code, 2006 and the order passed in the review proceedings arising out of the Revision, on 08.01.2021, by the Board of Revenue.

4. It has also been brought to our notice that in the interregnum, as according to the petitioner, the area in dispute was purchased by it and is part of the property purchased by the trust deed dated01.10.1995 but in order to avoid any further litigation or dispute the petitioner, as it was ready to purchase the said property or exchange it in terms of Section 101 of the Code, 2006 and the relevant Government Orders on the subject, therefore, it accordingly applied and the said exchange proceedings are pending consideration before the Commissioner as the State Government has delegated its powers under the proviso to sub section 2 of Section 101 of the Code, 2006, a fact which is admitted to the State Counsel. In these circumstances, it was also argued by the counsel for the petitioner that apart from the fact that the orders impugned including the notification are not sustainable on facts and in law, even if this Court arrives at a different conclusion or for that matter, in the alternative, as, exchange proceedings are pending, the same be also ordered to be decided at the earliest, as, ultimately, if the exchange takes place, the merits of the dispute may become