A.F.R.

Neutral Citation No. - 2025:AHC:123012

Court No. - 35

Case :- WRIT - C No. - 22221 of 2025

Petitioner :- Dina Nath Singh And Another

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Nikhil Kumar,Vagish Yadav

Counsel for Respondent :- C.S.C.,Rakesh Singh

Hon'ble Syed Qamar Hasan Rizvi,J.

1. Heard, Sri Nikhil Kumar, learned counsel for the petitioners, Sri

Nandlal Maurya, learned standing counsel appearing on behalf of

the respondent nos. 1 to 4 and Sri Rakesh Singh, learned counsel

appearing for the respondent no. 5.

2. The core dispute involved in the present writ petition is purely

legal one that as to whether the appellate Court, without adverting

to the question of Limitation as prescribed under section 24(4) of

the U.P. Revenue Code, 2006, could have admitted and allowed the

time-barred appeal vide order dated 26.04.2023 and the impugned

order dated 17.05.2025 respectively. This Court with the consent of

the learned counsels representing their respective parties; proceeds

to decide the present writ petition finally at the stage of admission

itself, without inviting counter affidavit.

3. By means of the present writ petition, the petitioners have

assailed the order dated 17.05.2025 passed by the learned

Additional Commissioner, Judicial (Second), Varanasi Division,

Varanasi (respondent no.3) in Case No. 771 of 2023 (Upendra Nath

Singh versus Dina Singh & others), under Section 24(4) of the U.P.

Revenue Code, 2006.

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4. The epitome of the facts, which needs a necessary mention for

the limited purpose of deciding the core controversy, involved in the

instant writ petition and emanating from the material available

before this Court is that the petitioner’s father filed an Application

dated 01.09.2017 under Section 20/24 of the U.P. Revenue Code,

2006, before the Deputy Collector (respondent No.4) for

demarcation of boundaries of land having Araji No. 950, Mauja

Khajurgaon, Pargana Pachotar, Tehsil Kasimabad, District Ghazipur

(hereinafter referred to as the land in question). The said application

was registered as Case No. T201814291102291 of 2017. The

Deputy Collector (respondent No.4), vide order dated 01.09.2017

directed the Revenue Inspector to inspect and measure the land in

question and submit a report of the same.

5. Aggrieved by the said order dated 01.09.2017 passed by the

Deputy Collector (respondent No.4), one Suresh Singh (brother of

Respondent No. 5) moved a recall application dated 05.06.2018,

inter-alia raising the ground that the said order dated 01.09.2017

was passed ex-parte without issuing any notice to him.

6. However, in compliance of the order dated 01.09.2017 passed by

the respondent No.4 in Case No. T201814291102291 of 2017, the

Revenue Inspector submitted a report dated 12.06.2018 before the

Deputy Collector, Kasimabad, Ghazipur (respondent no. 4), inter-

alia, detailing the measurement of the land in question and

requesting therein for necessary action.

7. Subsequently, vide order dated 11.12.2018 passed by the Deputy

Collector (respondent no.4), the aforesaid recall application dated

05.06.2018 came to be dismissed. Shortly thereafter, the petitioners’

father died on 19.12.2019, and the petitioners were substituted as

legal heirs.

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8. Thereafter, the Deputy Collector (respondent no.4) on the basis of

the Revenue Inspector’s report dated 12.06.2018, passed the order

dated 08.06.2022 whereby the said report was confirmed and

direction was issued to the concerned Tehsildar, regarding the

demarcation of the land in question. The said order dated

08.06.2022 was executed by the Tehsildar and the Lekhpal, on

26.03.2023.

9. Challenging the aforesaid order dated 08.06.2022, respondent

no.5 preferred an appeal on 12.04.2023 under Section 24(4) of the

U.P. Revenue Code, 2006, which was registered as Case No. 771 of

2023 before the learned Additional Commissioner (respondent

no.3).

10. Learned Additional Commissioner (respondent no.3) admitted

the said appeal vide order 26.04.2023 and issued notice on the

appeal and summoned the lower court record.

11. The respondent no.5 also preferred an application seeking

interim relief, before the learned Additional Commissioner

(respondent no.3), inter-alia, praying for an order directing the

parties to maintain 'status quo' on the disputed land and thereupon

the learned Additional Commissioner (respondent no.3) vide order

dated 01.06.2023 passed an interim order directing the parties to

maintain 'status quo'.

12. As the aforesaid appeal having Case No. 771 of 2023 was

pending since April 2023 and the interim order dated 01.06.2023

was also continuing for almost two years, the petitioner filed a writ

petition, being Writ-C No. 7874 of 2025, before this Court, inter

alia, praying for the following relief:

"(a) issue a writ, order or direction in the nature of

certiorari calling for the record of the case and quash the Order

dated 01.06.2023 and 26.04.2023 respectively passed by the

respondent no.3 in case no. 771 of 2023 (Computerized case No.

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C202314000000771) (Upendra Nath Singh Vs. Dina Sing and

others) under section 24(4) of U.P. Revenue Code, 2006, pending

before the respondent no.3 (Annexure-1 & 2 to this Writ Petition).

(b) issue a writ, order or direction in the nature of mandamus

commanding the respondent no.3 to decide the case no. 771 of

2023 (Computerized case No. C202314000000771) (Upendra

Nath Singh Vs. Dina Sing and others) under section 24(4) of U.P.

Revenue Code, 2006 in a time bound manner preferably within a

period of one month.

13. This Court, vide order dated 19.03.2025 disposed of the

aforesaid petition having Writ- C No. 7874 of 2025 (Dina Nath

Singh versus State of U.P. and others). For ready reference, the

operative part of the same is extracted herein below:

"4. Since, the appeal is pending and the interim order has been

granted by the appellate court, the petitioner has remedy of filing

application for vacation of interim relief.

5. In view of the above, I am not inclined to interfere in the matter.

6. Accordingly, the writ petition stands disposed of with liberty to

the petitioner to approach the appellate court for redressal of his

grievance by moving an application for vacation of interim order.

7. In case, the petitioner moves an application for vacation of

interim order, before appropriate authority, the same shall be

decided preferably within a period of twelve weeks from the date

of production of a certified copy of this order after ensuring

service upon all the opposite parties and giving opportunity of

hearing to the parties concerned.

8. It is also expected that respondent No. 3 shall consider and

decide the aforementioned appeal, in accordance with law,

expeditiously, preferably within a period of next six months from

the date of production of a certified copy of this order after

ensuring service upon all the opposite parties and giving

opportunity of hearing to the parties concerned and without

granting unnecessary adjournments to either of the parties

provided that there is no other legal impediment."

14. The Appellate Court / learned Additional Commissioner,

Judicial (Second), Varanasi Division, Varanasi (respondent no.3)

finally decided the Case No. 771 of 2023 (Upendra Nath Singh

versus Dina Singh & others) vide judgement and order dated

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17.05.2025, by allowing the fifth respondent’s Appeal under Section

24(4) of the U.P. Revenue Code, 2006.

15. Being aggrieved by the aforesaid judgement and order dated

17.05.2025 passed by learned Additional Commissioner (respondent

no.3), the petitioners have preferred the instant writ petition inter-

alia raising several grounds.

16. The petitioner’s argument majorly revolved around pointing out

how the learned Additional Commissioner (respondent no.3) erred

in deciding the time-barred appeal on merit by allowing the same

without condoning the delay in filing the said appeal.

17. The contention of Sri Nikhil Kumar learned counsel appearing

for the petitioners is that the impugned order dated 17.05.2025

being without jurisdiction is illegal as the learned Additional

Commissioner (respondent no.3) allowed a time-barred appeal

ignoring the legal issue of Limitation. He submits that Section 24(4)

of the U.P. Revenue Code, 2006 clearly prescribes the limitation

period of 30 days for filing of an appeal while, in the present case,

the fifth respondent herein, filed the appeal on 12.04.2023 against

the order dated 08.06.2022, i.e., with a delay of over ten months but

the learned Appellate Court by completely ignoring the petitioners’

objections in that regard, proceeded to decide the Appeal on merits.

18. It is further submitted on behalf of the petitioners that the

learned Additional Commissioner (respondent no.3) in utter

disregard to the settled law on the subject, not only admitted the

said time-barred appeal vide order 26.04.2023 but also granted

interim relief on the application moved by the fifth respondent, vide

order dated 01.06.2023.

19. It is asserted by the learned counsel on behalf of the petitioners

that the consideration on the issue of statutory limitation is a legal

mandate and the adjudication on prayer for condonation of delay is

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not a mere formality, the same requires a specific order after notice

to the opposite party. In the absence of an order for condonation of

delay in a time-barred appeal the same is not at all maintainable.

20. It has also been argued by the learned counsel for the petitioner

that the learned appellate court has failed to consider that in the

proceeding arising out of the provisions of the U.P. Revenue Code,

2006, Gram Panchayat being a necessary party, has not been made

party in the appeal filed by the fifth respondent and as such the

same was liable to be dismissed as not maintainable. He submitted

that Section 73 of the U.P. Revenue Code, 2006 would be attracted

in the present case.

21. Sri. Nand Lal Maurya, learned Standing Counsel appearing on

behalf of the State-respondents, to defend the impugned order dated

17.05.2025 succinctly submitted that the Additional Commissioner

(respondent no.3) decided the said appeal perfectly in compliance of

Order dated 19.03.2025 passed by this Court in Writ-C No. 7874 of

2025 (supra), wherein the learned Additional Commissioner

(respondent no.3) was directed to consider and decide the same in

accordance with law, expeditiously, preferably within a period of

next six months from the date of production of a certified copy of

the order after ensuring service upon all the opposite parties and

giving opportunity of hearing to the parties concerned and without

granting unnecessary adjournments to either of the parties provided

that there is no other legal impediment.

22. Further, he raised objection regarding the entertainability of the

present Writ Petition. His contention is that the petitioners’ failure to

pursue the remedy available under section 210 of the U.P. Revenue

Code, 2006 bars them from invoking the extraordinary jurisdiction

of this Court under Article 226 of the Constitution of India. He

pressed that in the presence of an existing efficacious alternative

remedy, the present writ petition is premature.

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23. Sri Rakesh Singh, learned counsel appearing for the fifth

respondent, canvassed the following three arguments:

Firstly, that the present writ petition is not maintainable in

view of the availability of a statutory remedy of revision under

Section 210 of the U.P. Revenue Code, 2006. To support his

contention, he relied upon the judgement passed by the co-ordinate

bench of this court in the case of Jhinka Devi versus State of U.P.

& 4 Others, (Writ-C No. 25616 of 2021), decided on 12.05.2022,

reported in (2022) 156 RD 233, wherein this Court held that an

order passed by the learned Commissioner under Section 24(4) is

subject to revision under Section 210 of the U.P. Revenue Code,

2006.

Secondly, that the appellant / respondent no.5 herein, not only

narrated the genuine and acceptable cause for delay in the memo of

appeal itself and also filed separate application dated 12.04.2023

duly supported by an affidavit seeking condonation of delay in

filing the appeal. He submitted that the learned Additional

Commissioner (respondent no.3) after taking into consideration all

the pleas and objections raised by the contesting parties, decided the

appeal by a well-considered and detailed judgement dated

17.05.2023. The argument advanced by the learned counsel for the

fifth respondent is that the Section 5 of the Limitation Act, 1963

requires explanation of the cause, for not preferring the appeal or

the application within period of limitation prescribed under the Act.

Explanation of delay can be given in memorandum of the appeal

even the delay can be condoned on oral prayer. The substantial

justice deserves to be preferred as against the technical

considerations. He further contended that even if the order in appeal

has been passed ignoring delay condonation application the delay

shall be deemed to be condoned. He urged that the instant writ

petition be dismissed accordingly. In support of his contention, he

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placed reliance upon the judgement passed by the co-ordinate

Bench of this Court in the case of Indrajeet Singh versus Deputy

Director of Consolidation & others, reported in (2014) 123 RD

254.

Thirdly, confuting the assertion made by the learned counsel

for the petitioner that non impleadment of Gram Panchayat as party

in the appeal filed by the fifth respondent rendered the same not-

maintainable, the learned counsel for the respondent submitted that

since Gram Panchayat was not party in proceeding initiated on

behalf of the petitioner, before the court of first instance under

section 24 of the U.P. Revenue Code, 2006, as such, the said

objection at this stage, at least on behalf of the petitioners is

unsustainable.

24. In rebuttal to the respondent’s objection regarding the

maintainability of the writ petition, it is submitted on behalf of the

petitioner that the learned appellate court, in admitting and deciding

on merits a time-barred appeal without first condoning the delay,

acted in excess of its jurisdiction, thereby committing a

jurisdictional error warranting interference by this Court in exercise

of its powers under Article 226 of the Constitution of India. In

support of his contention, he placed reliance upon the judgment

passed by the Hon’ble Supreme Court in the case of Godrej Sara

Lee Ltd. versus Excise and Taxation Officer-Cum-Assessing

Authority & Others (Civil Appeal No. 5393 of 2010), decided on

01.02.2023, reported in 2023 SCC OnLine SC 95, wherein the

Hon’ble Apex Court observed that the discretionary power of the

High Court under Article 226 of the Constitution of India is not

ousted merely because of the presence of an alternative remedy,

particularly where the controversy is purely legal one and it does

not involve disputed questions of fact.

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25. On having heard the submissions of the learned counsels of the

respective parties and perusal of the materials available on record,

this Court finds it necessary to first address the question of

entertainability of the present writ petition.

26. The core issue involved in the instant case is as to whether the

Appellate Court, without dealing with the issue of Limitation as

specifically prescribed under section 24(4) of the U.P. Revenue

Code, 2006, could have admitted and decided a time barred appeal

on merits without condonation of delay in filing the same.

18. Sub-section 4 of section 24 of the U.P. Revenue Code, 2006

reads as under:

“Any person aggrieved by the order of the Sub-Divisional

Officer may prefer an appeal before the Commissioner

within 30 days of the date of such order. The order of the

Commissioner shall be final.”

27. A co-ordinate Bench of this Court in the case of Jhinka Devi

(supra), has held that by virtue of the amendment to Sub-section (4)

of Section 24 through U.P. Act No. 7 of 2019, the finality of an

order passed by the Commissioner in appeal, is subject to the

revisional powers of the Board of Revenue under Section 210 of the

U.P. Revenue Code, 2006. As no second appeal is provided against

the order of Commissioner under the said Section 24(4), the Board

of Revenue is vested with the power to examine the legality or

propriety of the orders passed by the Commissioner. For ready

reference, the relevant excerpts of the judgement passed by this

Court in the case of Jhinka Devi (supra) is reproduced herein below,

“52. By virtue of the amendment made to sub-section (4)

of Section 24 in terms of U.P. Act No. 7 of 2019 the

finality attached to the order of the Commissioner in

appeal, has now been made subject to Section 210. There

being no provision under the Code for a second appeal

against the order of the Commissioner passed under sub-

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section (4) of Section 24, it can be said that against the

order of the Commissioner in appeal, no further appeal

lies, and therefore the necessary condition for invocation

of the powers of the Board under Section 210 for calling

the records and exercising revisional powers against the

order passed by the Commissioner in appeal under sub-

section (4) of Section 24, stands fulfilled.

…

63. It would therefore follow as a necessary consequence

that the order passed by the Commissioner in appeal

under sub-section (4) of Section 24, which is final in the

sense that there is no further appeal thereagainst, would

be subject to the revisional powers of the Board to be

exercised under Section 210.”

28. It is relevant to note that in a long line of decisions, the Hon’ble

Supreme Court has been pleased to hold that availability of an

alternative remedy does not operate as an absolute bar to the

“maintainability” of a writ petition and that the rule, which requires

a party to pursue the alternative remedy provided by a statute, is a

rule of policy, convenience and discretion rather than a rule of law.

29. The issue of ‘maintainability’ and ‘entertainability’ of a writ

petition in the presence of an alternative remedy has been dealt with

in detail by the Hon’ble Supreme Court in the case of Godrej Sara

Lee (supra). For a ready reference, Paragraph 4 of the judgment

passed by the Hon’ble Apex Court in the said case is reproduced

hereinbelow,

“4. …It is axiomatic that the high courts (bearing in

mind the facts of each particular case) have a discretion

whether to entertain a writ petition or not. One of the

self-imposed restrictions on the exercise of power under

Article 226 that has evolved through judicial precedents

is that the high courts should normally not entertain a

writ petition, where an effective and efficacious

alternative remedy is available. At the same time, it must

be remembered that mere availability of an alternative

remedy of appeal or revision, which the party invoking

the jurisdiction of the high court under Article 226 has

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not pursued, would not oust the jurisdiction of the high

court and render a writ petition “not maintainable”. In a

long line of decisions, this Court has made it clear that

availability of an alternative remedy does not operate as

an absolute bar to the “maintainability” of a writ

petition and that the rule, which requires a party to

pursue the alternative remedy provided by a statute, is a

rule of policy, convenience and discretion rather than a

rule of law. Though elementary, it needs to be restated

that “entertainability” and “maintainability” of a writ

petition are distinct concepts. The fine but real distinction

between the two ought not to be lost sight of. The

objection as to “maintainability” goes to the root of the

matter and if such objection were found to be of

substance, the courts would be rendered incapable of

even receiving the lis for adjudication. On the other

hand, the question of “entertainability” is entirely within

the realm of discretion of the high courts, writ remedy

being discretionary. A writ petition despite being

maintainable may not be entertained by a high court for

very many reasons or relief could even be refused to the

petitioner, despite setting up a sound legal point, grant of

the claimed relief would not further public interest.

Hence, dismissal of a writ petition by a high court on the

ground that the petitioner has not availed the alternative

remedy without, however, examining whether an

exceptional case has been made out such entertainment

would not be proper.”

30. The material available before this Court shows that the order

dated 08.06.2022 passed by the Deputy Collector (respondent no.4)

was challenged by means of an appeal filed on 12.04.2023, under

Section 24(4) of the U.P. Revenue Code, 2006; by the respondent

no.5 and the same was registered as Case No. 771 of 2023 before

the learned Additional Commissioner (respondent no.3).

31. Section 24(4) of the U.P. Revenue Code, 2006 clearly prescribes

the limitation period of 30 days for filing of an appeal while, in the

present case, the fifth respondent herein, filed the appeal with a

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delay of over ten months, but the learned Appellate Court without

adverting on the issue of the delay, decided the Appeal on merits.

32. It is a well-settled proposition of law that the question of

limitation is not a mere technicality but pertains to the very

jurisdiction of the Court, striking at the root of the appellate

authority’s competence to entertain the appeal. Unless the delay in

filing is condoned, the appeal cannot be said to have come into

existence in the eyes of law. In the absence of a validly instituted

appeal, the Court lacks jurisdiction to hear and decide a time-barred

appeal on merits. Unless delay is condoned in accordance with law,

the appeal cannot be treated as having been validly instituted.

33. The Hon’ble Supreme Court in the case of Whirlpool

Corporation versus Registrar of Trade Marks, Mumbai,

reported in (1998) 8 SCC1, has been pleased to carve out the

following exceptions on the existence whereof a writ court would

be justified in entertaining a writ petition despite the party

approaching it not having availed the alternative remedy provided

by the statute:-

(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; or

(iv) where the vires of an Act is challenged.

(emphasis supplies by this court)

34. In the light of the law settled by the Hon’ble Supreme Court as

discussed in the preceding paragraphs, it emerges that merely

because of the availability of the remedy under section 210 of the

U.P. Revenue Code. 2006, ispo facto, does not oust the writ

jurisdiction of this Court to entertain the present writ petition.

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35. Now, coming to the predominant dispute involved in the present

writ regarding the jurisdiction of the appellate authority to admit,

hear and decide a time-barred appeal on merit without condoning

the delay in filing the same. The law on the subject is well settled

that unless the delay is condoned, the appeal does not come into

existence legally, and in such absence, the Court is wholly without

jurisdiction to hear or decide the same on merits.

36. In the case of Esha Bhattacharjee versus Managing

Committee of Raghunathpur Nafar Academy, reported in (2013)

12 SCC 649, the Hon’ble Apex Court has been pleased to observe

as under:

“22.1. (a) An application for condonation of delay should

be drafted with careful concern and not in a haphazard

manner harbouring the notion that the courts are

required to condone delay on the bedrock of the principle

that adjudication of a lis on merits is seminal to justice

dispensation system.

22.2. (b) An application for condonation of delay should

not be dealt with in a routine manner on the base of

individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down

regard being had to the concept of judicial discretion, yet

a conscious effort for achieving consistency and

collegiality of the adjudicatory system should be made as

that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a

non-serious matter and, hence, lackadaisical propensity

can be exhibited in a nonchalant manner requires to be

curbed, of course, within legal parameters."

37. The Hon’ble Supreme Court, in the case of Union of India &

another versus Jahangir Byramji Jeejeebhoy(D), reported in

2024 SCC OnLine SC 489, has observed that the question of

limitation is not merely a technical consideration. The rules of

limitation are based on the principles of sound public policy and

principles of equity. That the length of the delay is a relevant matter

which the court must take into consideration while considering

whether the delay should be condoned or not. The Hon’ble Apex

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Court has been pleased to hold that while considering the plea for

condonation of delay, the court must not start with the merits of the

main matter. However, the courts are required to condone delay on

the bedrock of the principle that adjudication of a lis on merits is

seminal to justice dispensation system. The court owes a duty to

first ascertain the bona fides of the explanation offered by the party

seeking condonation. It is only if the sufficient cause assigned by

the litigant and the opposition of the other side is equally balanced

that the court may bring into aid the merits of the matter for the

purpose of condoning the delay.

38. Thus, there is no dispute with regard to the proposition of law

that the issue of condonation of delay in the proceeding must be

decided at the first instance before delving into the merits of the

case. However, if the delay is condoned, there is no bar on the

courts to proceed with the case and decide the same on merits on

the very day; keeping in view the nature of the proceedings, which

may result in a final order. In the same manner, if the prayer for

condonation of delay is rejected, the proceeding will automatically

fail.

39. It is trite in law that if an appeal filed after the expiry of the

limitation period is accompanied by an application for condonation

of delay supported by an affidavit stating sufficient cause for delay

in filing the said appeal and if the appellate court finds the cause

sufficient for condonation of delay, the appellate court must record

its reasons to that effect. Without condoning the delay in filing an

appeal, the appellate authority lacks jurisdiction to entertain such

time-barred appeals. This view finds its support from the judgment

passed by this Court in the case of Balvir Singh versus Vijay Pal

& Others, (Writ-C No. 37564 of 2011), decided on 14.07.2011.

40. Further, in the case of Anil Kumar Nigam & other versus

State of U.P. & another, (Writ-B No. 4925 of 2024), decided on

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31.01.2025, this Court held that unless the delay is condoned, any

order passed including orders on interim reliefs, will be manifestly

illegal.

41. From a bare reading of Section 24(4) of the U.P. Revenue Code,

2006, it is clear that the appeal must be filed within the stipulated

period of 30 days as provided by the statute.

42. In the present case, the fifth respondent preferred an appeal on

12.04.2023 under Section 24(4) of the U.P. Revenue Code, 2006

against the order dated 08.06.2022 passed by the Deputy Collector

(respondent No.4), accompanied by a separate application dated

12.04.2023 under section 5 of the Limitation Act, 1963 seeking

condonation of delay in filing the appeal. Certified copies of the

said application dated 12.04.2023 and its supporting affidavit, filed

by learned counsel for the respondent no. 5 before this court is

available on record.

43. The petitioner filed detailed objection dated 26.04.2023 inter-

alia raising objection to the maintainability of the appeal on the

ground of being barred by Limitation.

44. On the prime issue involved in the present writ petition as to

whether, the appellate court could have decided the appeal vide

impugned order dated 17.05.2025 on merits without condoning the

delay in filing the same is concerned, this court finds that the appeal

was admitted without condoning the delay and there is nothing on

record to indicate that the prayer made by the fifth respondent /

appellant for the condonation of delay in filing the appeal and the

objection of the petitioner against the same, has ever been

considered by the learned Additional Commissioner (respondent

No. 3) throughout the impugned proceeding while entertaining the

time barred-appeal, as there is no order regarding condoning the

delay. Accordingly, this Court finds substance in the contention

15

raised by the learned counsel for the petitioner that the appellate

authority could not have decided the appeal on merits without

condoning the delay. In the absence of an order for condonation of

delay in a time-barred appeal the same could not have been

entertained.

45. In so far as the contention of the learned counsel for the

petitioner regarding the maintainability of the impugned appeal on

the ground that the Gram Panchayat was not made party in the

appeal by the fifth respondent rendered the same not-maintainable

in view of section 73 of the U.P. Revenue Code 2006, is concerned,

this Court upon perusal of the said section, finds that the same does

not help the petitioner’s argument. For ready reference, section 73

of the U.P. Revenue Code, 2006 is reproduced herein below:

“73. Representation of Gram Panchayat- (1) In any suit or other

proceedings under this Code, the Gram Panchayat shall be

represented-

(a) in proceeding before the Collector or in a Civil Court, by the

District Government Counsel (Revenue);(b) in proceeding before

the Commissioner, by the Divisional Government Counsel

(Revenue); and(c) in proceeding before the Board or the High

Court, by the separate Standing Counsels (Revenue) of Lucknow or

Allahabad, as the case may be.

(2) Nothing in this Chapter shall preclude the State Government or

the Collector from appointing special Counsel for the conduct of

any suit or proceeding to which any Gram Panchayat is party on

such terms and conditions as may be prescribed.”

46. Looking to the provision of section 73 of the U.P. Revenue

Code, 2006 it is apparent that the same specifies the class of

counsels to represent the Gram Panchayat before different forums

and not with the issue of necessity of its impleadment in a

proceeding.

47. The defence taken by the learned Standing Counsel appearing

on behalf of the State-respondents, to defend the impugned order

passed by the Additional Commissioner (respondent no.3) and the

action of deciding the appeal without adverting to the issue of

limitation, he submitted that the learned appellate authority in

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compliance of order dated 19.03.2025 passed by the Court in Writ-

C No. 7874 of 2025 (supra), finally decided the appeal vide the

impugned order dated 17.05.2025. He contends that this Court vide

order dated 19.03.2025 directed the respondent No. 3 to consider

and decide the aforementioned appeal, in accordance with law,

expeditiously, preferably within a period of next six months from

the date of production of a certified copy of the order after ensuring

service upon all the opposite parties and giving opportunity of

hearing to the parties concerned and without granting unnecessary

adjournments to either of the parties, provided that there is no other

legal impediment. He asserts that the impugned order is perfectly

legal having been passed under the directions of this court.

48. This Court, after taking into consideration the tenor of the

directions issued by the court vide order dated 19.03.2025 passed in

Writ-C No. 7874 of 2025, finds that the court consciously directed

the third respondent to expeditiously consider and decide the

appeal, in accordance with law. It is evident that the Court vide

order dated 19.03.2025 did not directed the appellate Court to hear

the appeal on merit, ignoring the aforesaid objections raised by the

present petitioners more particularly the very legal issue of

Limitation from skipping to pass order on the delay condonation

application and the objection relating to maintainability of the

appeal, before deciding the appeal on merits. At the cost of

repetition, it is once again observed that the issue relating to

limitation strikes at the root of the jurisdictional competence of the

appellate authority. Unless the delay in filing is condoned, the

appeal cannot be said to have come into existence in the eyes of

law. Passing an order by the appellate court by brushing aside the

settled principal of law cannot be taken as an order passed in

accordance with law. Accordingly, the aforesaid argument raised by

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the learned standing counsel is hereby turned down.

(emphasis supplied)

49. Regarding the submission of learned counsel for the fifth

respondent, who has placed reliance upon the judgment of the co-

ordinate Bench of this Court in Indrajeet Singh (supra), to contend

that even if the order in appeal is passed without considering the

application for condonation of delay, the delay shall be deemed to

have been condoned, this Court finds that both the legal position

and the factual matrix of the case of Indrajeet Singh (supra) stand

on an entirely different footing from the case at hand.

50. In Indrajeet Singh (supra), the writ petition was directed against

the order of the Settlement Officer Consolidation rejecting the

petitioner’s request for postponement of hearing of the appeal

during the pendency of the revision under the U.P. Consolidation of

Holdings Act, 1953. In paragraph 10 of the said judgment, it was

observed that the U.P. Consolidation of Holdings Act, 1953 does not

contemplate the filing of a separate application for condonation of

delay in the manner prescribed under Order XLI Rule 3-A of the

Code of Civil Procedure, 1908. By contrast, the present writ petition

arises from proceedings under the U.P. Revenue Code, 2006.

Section 214 of the said Code expressly incorporates the provisions

of the Code of Civil Procedure, 1908 and the Limitation Act, 1963

to every suit, application or proceeding, unless specifically excluded

by or under the Code of 2006. Thus, the observations made in

Indrajeet Singh (supra) cannot be pressed into service in the present

case. Consequently, the reliance placed on the said decision does

not advance the respondent’s case.

51. From an overall circumspection of the facts and circumstances

as narrated herein above, this court finds it apposite to remand the

matter to the appellate authority to decide the issue of limitation

after affording opportunity of hearing to the parties. If the delay in

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filing the appeal is found to be satisfactorily explained, the appellate

authority shall pass a specific order condoning the delay and

thereafter proceed to decide the appeal on merits. This course is

necessitated as the learned appellate court, despite pendency of the

delay condonation application as well as objections to

maintainability raised by the petitioners, failed to adjudicate the

issue of limitation. It admitted a time-barred appeal, passed interim

orders, and even decided the appeal on merits without condoning

the delay. Unless delay is condoned, the appeal does not come into

legal existence, and the court lacks jurisdiction to hear or decide it

on merits. Entertaining and deciding a time-barred appeal without

condonation of delay amounts to a jurisdictional error, rendering the

impugned order dated 17.05.2025 unsustainable in law.

52. The core question involved in the instant case is thus answered

that, without condoning the delay in filing the appeal under Section

24(4) of the Uttar Pradesh Revenue Code, 2006, the learned

Appellate Court / Additional Commissioner, Judicial (Second),

Varanasi Division, Varanasi (respondent no. 3) had no jurisdiction to

decide the said appeal on merits vide the impugned order dated

17.05.2025.

53. No other legal point, worth consideration, has either been urged

or pressed by the learned counsel for the parties.

54. It is clarified that nothing recorded hereinabove shall be

construed as an expression on the merits of the case, as the present

adjudication has been confined solely to the limited issue arising for

determination.

55. Since this Court has not itself decided the application for

condonation of delay but has directed the learned Appellate

Authority to take a decision on the issue of limitation after hearing

the parties, it is provided that in case the appellate authority finds

the explanation for delay to be satisfactory, it may condone the

delay by passing a specific order in that regard. If the delay is

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condoned, the appellate authority shall then proceed to decide the

appeal on merits, strictly in accordance with law. The parties shall

remain at liberty to raise all pleas and grounds before the said

authority.

56. In light of the observations and directions made hereinabove,

the present writ petition is allowed. The impugned judgment and

order dated 17.05.2025 passed by the Additional Commissioner,

Judicial (Second), Varanasi Division, Varanasi (respondent no. 3) in

Case No. 771 of 2023 (Upendra Nath Singh versus Dina Singh &

others) under Section 24(4) of the Uttar Pradesh Revenue Code,

2006, is hereby set aside. The matter is remitted to the learned

Appellate Court to proceed in accordance with law.

57. Having regard to the facts and circumstances of the case, the

parties are directed to bear their own costs.

Date :- 25.7.2025

Arif/Abhishek Gupta

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