# Brijesh Kumar Dubey v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 800
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-19
- **Case number:** Writ-C No. 38508 of 2022
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-kumar-dubey-v-state-of-u-p-ors-50627
- **Pages:** 4

## Headnote

Civil Law - U.P. Revenue Code, 2006-
Sections 4(16), 8 & 210 - Board of
Revenue - Board of Revenue is the Chief
controlling authority having supervisory
powers over all subordinate revenue
courts. Sub Divisional Magistrate while
exercising
adjudicatory
powers
of
a
judicial nature acts as a Revenue Court',
and is a court subordinate to the Board of
Revenue and subject to its revisional
jurisdiction and also its control and
supervision. When a superior court issues
an order of remand to an inferior court
with certain directions, the latter is
obligated to decide in accordance with the
said directions. Held: lack of propriety on
the part of the Sub Divisional Magistrate
in refusing to accord consideration to the
recall
application
of
the
petitioner,
disregarding the direction issued by the
Board of Revenue while allowing the
revision of the petitioner. (Para 8, 9, 10,
11)

Allowed. (E-5)

## Text

800 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The circumstances under
which exercise of discretionary powers by
a statutory authority may be held to be
invalid were stated in Padfield And
Others vs. Minister of Agriculture,
Fisheries And Food And Others, wherein
Lord Upjohn observed as follows:

"Unlawful
behaviour
by
the
Minister may be state with sufficient
accuracy ... (a) by an outright refusal to
consider the relevant matter, or (b) by
misdirecting himself in point of law, or (c)
by taking into account some wholly
irrelevant or extraneous consideration, or
(d) by wholly omitting to take into account
a relevant consideration."

24. The principle laid down in the
decision of the House of Lords in
Padfield's case (supra) was reiterated by
Lord Denning, M.R. in Breen vs.
Amalamated Engineering Union And
Others, by stating as follows:

"The discretion of a statutory
body is never unfettered. It is a discretion
which is to be exercised according to law.
That means at least this: the statutory body
must be guided by relevant considerations
and not by irrelevant. If its decision is
influenced by extraneous considerations
which it ought not to have taken into
account, then the decision cannot stand. No
matter that the statutory body may have
acted in good faith; nevertheless the
decision will be set aside."

25. The proposition can thus
broadly be laid down by stating that a
decision
by
an
authority
exercising
discretionary power under a statute must be
arrived at by taking into account the
relevant considerations and eschewing the
irrelevant considerations, in the absence of
which the action would have to be held as
ultra vires and void."

64. For the aforesaid reasons, and in
particular that the orders passed by the
respondent authorities are non-speaking
and
not
indicative
of
an
objective
consideration of the relevant statutory
provisions required for the purposes of
grant of permission for transfer under
Section 98 of the U.P. Revenue Code,
2006, the impugned orders are held to be
legally unsustainable and are set aside.

65. The matter is remitted to the
respondent no. 3 for passing a fresh order
on the basis of the provisions contained
under Section 98 of the Code, 2006 read
with sub-rule (8) of Rule 99 of the Rules,
2016 in the light of the discussion made
hereinabove. The respondent authority
would be expected to pass appropriate
orders on the application of the petitioner
under
Section
98
seeking
grant
of
permission for transfer, expeditiously, and
preferably within a period of three months
from the date of presentation of a certified
copy of this order.

66. The writ petition is allowed to the
extent indicated above.
----------
(2023) 7 ILRA 800
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 38508 of 2022

Brijesh Kumar Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
7 All. Brijesh Kumar Dubey Vs. State of U.P. & Ors.
801
Sri Radhey Krishna Pandey, Sri Manish
Pandey

Counsel for the Respondents:
C.S.C., Sri Ajattshantru, Sri Awadhesh
Kumar Mishra, Sri Abhishek Shukla

Civil Law - U.P. Revenue Code, 2006-
Sections 4(16), 8 & 210 - Board of
Revenue - Board of Revenue is the Chief
controlling authority having supervisory
powers over all subordinate revenue
courts. Sub Divisional Magistrate while
exercising
adjudicatory
powers
of
a
judicial nature acts as a Revenue Court',
and is a court subordinate to the Board of
Revenue and subject to its revisional
jurisdiction and also its control and
supervision. When a superior court issues
an order of remand to an inferior court
with certain directions, the latter is
obligated to decide in accordance with the
said directions. Held: lack of propriety on
the part of the Sub Divisional Magistrate
in refusing to accord consideration to the
recall
application
of
the
petitioner,
disregarding the direction issued by the
Board of Revenue while allowing the
revision of the petitioner. (Para 8, 9, 10,
11)

Allowed. (E-5)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Radhey Krishna Pandey,
learned counsel for the petitioner, Sri
Abhishek Shukla, learned Additional Chief
Standing Counsel appearing for the State
respondents and Sri Awadhesh Kumar
Mishra, learned counsel appearing for the
respondent Nos. 7 and 8.

2. Counsel for the petitioner has
confined his relief to a challenge to the
order dated 23.08.2022 passed by the Sub
Divisional
Magistrate,
Sadar,
Mirzapur/respondent No. 3 whereby the
restoration
application
filed
by
the
petitioner
registered
as
Case
No.
RST/01001/2019, in proceedings under
Section 144 of the U.P. Revenue Code,
2006, has been rejected.

3. As per pleadings in the writ
petition, the petitioner claims to have
purchased certain land parcels by means of
a sale deed dated 24.06.2019 and his name
was also mutated in the revenue records in
terms of an order dated 09.01.2019.
Thereafter, upon coming to know with
regard to pendency of a declaratory suit
filed by the respondent Nos. 7 and 8 in
respect of the said land, an impleadment
application dated 26.09.2019 was filed,
which
was
dismissed
for
want
of
prosecution by an order dated 19.02.2020.
The
restoration
application
filed
thereagainst was also rejected by an order
dated 30.12.2020.

4. It is submitted that against the
orders dated 19.02.2020 and 30.12.2020, in
terms
of
which
the
impleadment
application filed by the petitioner in
proceedings under Section 144, had been
rejected, the petitioner had preferred a
revision being Case No. REV/158/2021
(Computerized
Case
No.
AL2021165300158), which was allowed by
the Board of Revenue in terms of the order
dated 05.07.2021 remitting the matter to
the court of the Sub Divisional Magistrate,
after coming to a conclusion that in a
judicial proceeding the affected party has a
right to be heard.

5. Contention of the learned counsel
for the petitioner is that, by the time the
petitioner could place the aforestated order,
before the Sub Divisional Magistrate, a
final order had been passed deciding the
suit on 28.07.2021.
802 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Thereafter, the petitioner is stated
to have preferred a recall application
annexing
therewith
the
order
dated
05.07.2021 and praying for recall of the
order
dated
28.07.2021.
The
said
application was rejected by the respondent
No. 3 by an order dated 23.08.2022
ostensibly for the reason that since a final
order has been passed in the suit, the recall
application could not be entertained.

7. Contention of the learned counsel
for the petitioner is that once the Board of
Revenue, in exercise of its revisional
powers, had set aside the earlier orders
dated 19.02.2020 and 30.12.2020 and had
remitted the matter to the court of the
respondent No. 3, the said respondent could
not have ignored the order passed by the
revisional
court
and
reject
the
recall/restoration application.

8. In this regard, it may be noted that
the Board of Revenue as per Section 8 of
the Code, 2006, is the chief controlling
authority in all matters relating to disposal
of cases, appeals or revisions. The
revisional jurisdiction of the Board is
provided for by Section 210 of the Code,
and in terms thereof it is empowered to call
for the record of any suit or proceedings
decided by any subordinate revenue court,
in which no appeal lies, for the purpose of
satisfying itself as to the legality or
propriety of any order passed in such suit
or proceedings. The language of the section
is one of wide amplitude and embraces
within its fold any suit or proceeding
decided by the revenue courts subordinate
to the Board of Revenue.

9. The Sub Divisional Magistrate
while exercising adjudicatory powers of a
judicial nature acts as a 'Revenue Court', as
defined under Section 2(16) of the U.P.
Revenue Code, 2006, and as such would be
a court subordinate to the Board of
Revenue and subject to its revisional
jurisdiction and also its control and
supervision.

10. It would be beyond cavil that
when a superior court issues an order of
remand to an inferior court with certain
directions, the latter is obligated to decide
in accordance with the said directions.

11. Counsel for the State respondents
and
the
counsel
appearing
for
the
respondent Nos. 7 and 8, have not been
able to dispute the lack of propriety on the
part of the Sub Divisional Magistrate in
refusing to accord consideration to the
recall
application
of
the
petitioner,
disregarding the direction issued by the
Board of Revenue while allowing the
revision, in view of its position as the chief
controlling authority having supervisory
powers over all subordinate revenue courts.

12. Counsel for the parties are ad
idem on the point it would serve the
interest of justice if the case is remitted to
the respondent No. 3 for passing of a fresh
order, after taking into consideration the
order dated 05.07.2021 passed by the
Board of Revenue in the revision.

13. Having regard to the aforesaid,
this Court deems it appropriate to set aside
the order dated 23.08.2022 passed by the
respondent No.3, in Case No. 01001 of
2019
(Computerized
Case
No.
201916530001001) (Dhiraj Kumar and
Others Vs. Munni Devi).

14. The matter is remitted to
respondent No. 3 to pass a fresh order
keeping in view the direction issued by the
Board of Revenue in its order dated
7 All. State of U.P. Vs. Radha Charan Since Deceased & Anr.
803
05.07.2021
passed
in
Case
No.
REV/158/2021 (Computerized Case No.
AL2021165300158), in accordance with
law, after giving due opportunity to the
parties
concerned,
expeditiously
and
preferably within a period of three months
from the date of presentation of a certified
copy of this order.

15. The petition stands allowed to the
extent indicated above.
----------
(2023) 7 ILRA 803
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Writ-C No. 40939 of 2004

State of U.P. ...Petitioner
Versus
Radha Charan Since Deceased & Anr.
 ...Respondents

Counsel for the Petitioner:
S.C.

Counsel for the Respondents:
S.C., Indra Pal Singh Rajpoot
Civil Law - Imposition of Ceiling on Land
Holdings Act, Section 10(2) - Transfer of
Property Act, 1882 - Sections 122 & 123 -
U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950, Section 152 - Gift -
Gift to minor. In the instant case, the
donor, tenure-holder Radha Charan, by a
registered gift deed dated 16.04.1979
(prior to 24 January 1971), gifted an area
of 20.26 acres of land to his minor sons,
namely Madan Pal Singh, aged about 14
years, and Ram Pal Singh, aged about 6
years, under the guardianship of their
mother, Suhag Rani. Prescribed Authority
passed order after excluding the land
covered by the gift deed to the extent of
20.26 acres from the holding of Radha
Charan. In the writ petition, the State's
case was that the minors were not
entitled to receive a gift deed in their
favor and that the land held by them in
their own names was liable to be clubbed
together with the land of their father, who
was the original tenure-holder, and the
same was rightly included in the notice.
Held : Gift deed was executed in favor of
the minor sons through their mother, Smt.
Suhag Rani. Though the donees were
minors,
they
had
accepted
the
gift
through their mother, who was competent
to accept the gift on behalf of her sons.
There
was
a
recital
of
delivery
of
possession. Even the property in question
had been mutated in the names of the
donees, and during the lifetime of the
donor, the donees attained the age of
majority and also accepted the gift deed,
behaving with the property in question as
Bhumidhars with transferable rights. All
the elements of a valid gift were complete.
Radha Charan was the Bhumidhar who
transferred his right, title, and interest in
20.26 acres of agricultural land through a
gift deed dated 21.04.1969 to his minor
sons. Gift deed was in accordance with
land laws. The impugned judgment and
order of the learned appellate court are
legal and valid and are not liable to be
interfered with. (Para 21, 22, 35)
Dismissed. (E-5)
List of Cases cited:
1. Sakuntala Devi Vs Amar Devi, A.I.R. 1985
H.P. 111
2. Gauranga Sahu & ors.Vs Maguni Dev & ors.,
A.I.R. 1991 Orissa 151, page 155
3. Sanjukta Ray Vs Bimelendu Mohanty, A.I.R.
1997 Orissa 131
4. Kamakshi Ammal Vs Rajalakshmi, A.I.R. 1995
Madras 415