# Mohd. Muslim & Ors v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-04
- **Case number:** Writ C No. 10523 of 2024
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-muslim-ors-v-state-of-u-p-ors-51114
- **Pages:** 7

## Headnote

196 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Revenue Law / Procedural Law - The
U.P. Revenue Code, 2006 - Section 210 -
Revisional
Powers,
Section
144
-
Declaratory
Suits,
Section
146
-
Injunction, Revision is maintainable only
if the impugned order amounts to a "suit
or proceeding decided" and no appeal lies
against it - Jurisdictional error must exist
-
An
order
withdrawing
an
earlier
injunction does not dispose of the interim
application and hence cannot be termed
as a "proceeding decided" under Section
210.(Para - 23 to28 ,35 to 37)

Petitioners are tenure holders of land - recorded
in revenue records - Private respondentsinitiated litigations - filed an application for
interim
injunction-
rejected
-
Petitioners
instituted a declaratory suit - sought an
injunction - Ex parte status quo was granted -
later withdrawn by Sub-Divisional Magistrate -
Private respondents filed a revision against the
withdrawal
order-
allowed
-
Petitioners
challenged revisional order - asserting not
maintainable - hence petition. (Para 5 to 11)

HELD: - Order against which the revision has
been entertained and also allowed, cannot be
said to be an order relating to a 'suit' or
proceeding decided. Revisional order passed by
Commissioner legally unsustainable. Impugned
order set aside. Interim application to be
decided expeditiously, preferably within two
months. (Para 37,39-44)

Petition Allowed. (E-7)
List of Cases cited:

## Text

10 All. Mohd. Muslim & Ors. Vs. State of U.P. & Ors.
195
arbitrariness, irrationality, malafides and
bias. However, this Court has cautioned
time and again that courts should exercise
a lot of restraint while exercising their
powers of judicial review in contractual or
commercial matters. This court is normally
loathe to interfere in contractual matters
unless a clear-cut case of arbitrariness or
malafides or bias or irrationality is made
out. One must remember that today many
public sector undertakings compete with
the private industry. The contracts entered
into between private parties are not subject
to scrutiny under writ jurisdiction. No
doubt, the bodies which are State within the
meaning of Article 12 of the Constitution
are bound to act fairly and are amenable to
the writ jurisdiction of Superior Courts, but
this discretionary power must be exercised
with a great deal of restraint and caution.
The Courts must realise their limitations
and the havoc which needless interference
in commercial matters can cause. In
contracts involving technical issues, the
Courts should be even more reluctant
because most of us in judges' robes do not
have the necessary expertise to adjudicate
upon technical issues beyond our domain.
The courts should not use a magnifying
glass while scanning the tenders and make
every small mistake appear like a big
blunder. In fact, the courts must give fair
play in the joints to the Government and
public sector undertakings in matters of
contract. Courts must also not interfere
where
such
interference
will
cause
unnecessary loss to public exchequer."

42. In Michigan Rubber (India)
Limited versus State of Karnataka, 2012 (8)
SCC 216, the Supreme Court held that a
court while interfering in tender or
contractual matters, in exercise of power of
judicial review, should itself pose the
following questions:

(i) Whether the process adopted
or decision made by the authority is Mala
fide or intended to favour someone;

or

whether the process adopted or
decision
made
is
so
arbitrary
and
irrational that the court can say: "the
decision is such that no responsible
Authority, acting reasonably, and in
accordance with relevant law could have
reached?; And

(ii) whether the public interest is
affected?.

43. We find that neither of the
aforesaid two questions as we pose them to
ourselves can be answered in favour of the
petitioner.

44. Consequently, the writ petition
stands dismissed.

45. Interim order, if any, shall stands
discharged.
----------
(2024) 10 ILRA 195
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2024

BEFORE

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

Writ C No. 10523 of 2024

Mohd. Muslim & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Dhananjai Rai, Vibhu Rai

Counsel for the Respondents:
Azad Rai, C.S.C., Sudhir Kumar Singh
Parmar
196 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Revenue Law / Procedural Law - The
U.P. Revenue Code, 2006 - Section 210 -
Revisional
Powers,
Section
144
-
Declaratory
Suits,
Section
146
-
Injunction, Revision is maintainable only
if the impugned order amounts to a "suit
or proceeding decided" and no appeal lies
against it - Jurisdictional error must exist
-
An
order
withdrawing
an
earlier
injunction does not dispose of the interim
application and hence cannot be termed
as a "proceeding decided" under Section
210.(Para - 23 to28 ,35 to 37)

Petitioners are tenure holders of land - recorded
in revenue records - Private respondentsinitiated litigations - filed an application for
interim
injunction-
rejected
-
Petitioners
instituted a declaratory suit - sought an
injunction - Ex parte status quo was granted -
later withdrawn by Sub-Divisional Magistrate -
Private respondents filed a revision against the
withdrawal
order-
allowed
-
Petitioners
challenged revisional order - asserting not
maintainable - hence petition. (Para 5 to 11)

HELD: - Order against which the revision has
been entertained and also allowed, cannot be
said to be an order relating to a 'suit' or
proceeding decided. Revisional order passed by
Commissioner legally unsustainable. Impugned
order set aside. Interim application to be
decided expeditiously, preferably within two
months. (Para 37,39-44)

Petition Allowed. (E-7)
List of Cases cited:
1. Paltoo Ram Vs St. of UP & ors., WRIT C No.
10192 of 2023
2. Riyasat Ali Vs Deputy D.D.C. & ors., WRIT - B
No. - 85 of 2022
3. Rishi Kumar Vs St. of U.P. & ors., Writ-C
No.36341 of 2015

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

1. On an oral prayer, counsel for the
petitioners is permitted to correct the array
of parties.

2. Heard Sri Vibhu Rai, learned
counsel for the petitioners, Sri Abhishek
Shukla, learned Additional Chief Standing
Counsel
appearing
for
the
Staterespondents and Sri Surendra Kumar
Chaubey holding brief of Sri Sudhir Kumar
Singh
Parmar,
learned
counsel
for
respondent nos.5 and 6.

3. The present petition has been filed
seeking to assail the order dated 20.01.2024
passed by respondent no.2, Commissioner,
Prayagraj Division, Prayagraj in Revision
No.1369
of
2022
(Computer
Case
No.C202202000001369, Mohd. Salim and
another Vs. Mohd. Muslim and others),
under Section 210 of the UP Revenue
Code, 20061.

4. The factual matrix of the case, as
laid down in the writ petition, is as
follows.

5. The petitioners herein claim to be
tenure holders of land bearing arazi no.410
situate
at
Village
Beli
Kachhar,
Phaphamau, Prayagraj, and that their names
are duly recorded in the
revenue records.

6. It is stated that in regard to the land
in question there have been litigations
between the petitioners and the private
respondents, in the past. Reference has
been made to a civil suit being Original
Suit No.374 of 2020, instituted by the
private respondents, which is said to be
pending. It is stated that the application for
interim injunction in the aforesaid suit has
been rejected.
10 All. Mohd. Muslim & Ors. Vs. State of U.P. & Ors.
197

7. It has been asserted that concealing
the fact of pendency of the aforesaid civil
suit, the petitioners instituted a declaratory
suit under Section 144 of the Revenue
Code,
registered
as
Case
No.T202002030304753 in the Court of
Sub-Divisional
Magistrate,
Soraon,
Prayagraj.

8. An application for injunction under
Section 146 was also moved in the
aforesaid suit.

9. Upon the aforesaid application, the
Sub-Divisional Magistrate is said to have
passed an ex parte order of status quo dated
17.10.2022, whereupon detailed objections
were filed by the petitioners herein, and the
earlier order granting status quo was
thereafter withdrawn/recalled by means of
an order dated 01.11.2022.

10. The aforesaid order, recalling the
earlier order, was assailed in a revision
filed by the private respondents, before the
Commissioner,
Prayagraj
Division,
Prayagraj under Section 210 of the
Revenue Code, which has been allowed by
means of an order dated 20.01.2024, which
is now being assailed by means of the
present petition.

11. The principal ground on which the
order
dated
20.01.2024
passed
by
respondent no.2, is sought to be challenged
is by seeking to raise a contention that the
order
dated
01.11.2022
passed
by
respondent no.7 in the declaratory suit,
against which the revision had been filed,
did not finally dispose the application for
injunction, and as such a revision would
not lie against the said order. Accordingly,
it is contended the order passed by the
revisional court is without jurisdiction and
is legally unsustainable.

12. In support of the aforesaid
contention, reliance has been placed on the
decisions of this Court in Paltoo Ram Vs.
State of UP and others2 and Riyasat Ali
Vs. Deputy Director of Consolidation
and others3.

13.
Counsel
appearing
for
the
contesting respondents has refuted the
aforesaid submissions by contending that in
terms of the order dated 01.11.2022, the
interim order granted earlier on 17.10.2022
having been withdrawn, it cannot be said
that the revision would not be maintainable
against the said order.

14. Learned counsel has placed
reliance upon the decision in Rishi Kumar
Vs. State of UP and others4 to support his
submissions.

15. Rival contentions now fall for
consideration.

16. The provision with regard to
declaratory suits finds place under Chapter
IX of the Revenue Code. Section 144 is
with regard to declaratory suits by the
tenure holders and the same reads as
follows:-

"144.
Declaratory
suits
by
tenure holders.─ (1) Any person claiming
to be a bhumidhar or asami of any holding
or part thereof, whether exclusively or
jointly, with any other person, may sue for
a declaration of his rights in such holding
or part.

(2) In every suit under subsection (1) instituted by or on behalf of─

(a) a Bhumidhar, the State and
the Gram Panchayat shall be necessary
parties;

(b) an asami, the land-holder shall
be a necessary party."
198 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Section 144 contains the provision
for declaratory suits by tenure holders and
in terms thereof any person claiming to be
a bhumidhar or asami of any holding or
part thereof, whether exclusively or jointly
with any other person, may sue for a
declaration of his rights in such holding or
part thereof.

18. Section 146 contains the provision
for injunction, and the same reads as
follows :-

"146.
Provision
for
injunction.─If in the course of a suit under
Section 144 or 145, it is proved by affidavit
or otherwise ─

(a) that any property, trees or
crops standing on the land in dispute is in
danger of being wasted, damaged or
alienated by any party to the suit; or

(b) that any party to the suit
threatens or intends to remove or dispose of
the said property, trees or crops in order to
defeat the ends of justice, the Court may
grant a temporary injunction, and where
necessary, also appoint a receiver."

19. Section 146 contains the provision
for injunction and in terms thereof, if in the
course of a suit under Section 144 or 145 it
is proved by affidavit or otherwise : i.e. (i)
that any property, trees or crops standing
on the land in dispute is in danger of being
wasted, damaged or alienated by any party
to the suit; or (ii) that any party to the suit
threatens or intends to remove or dispose of
the said property, trees or crops in order to
defeat the ends of justice, the Court is
empowered
to
grant
a
temporary
injunction, and where necessary, also
appoint a receiver.

20. Section
210
relates
to
the
revisional powers of the Board or the
Commissioner to call for the records of any
suit or the proceeding decided by the
subordinate revenue court in which no
appeal lies. Section 210 reads as follows:-

"210. Power to call for the
records.-(1)
The
Board
or
the
Commissioner may call for the record of
any suit or proceeding decided by any
subordinate Revenue Court in which no
appeal lies, for the purpose of satisfying
itself or himself as to the legality or
propriety of any order passed in such suit
or proceeding; and if such subordinate
court appears to have-

(a) exercised a jurisdiction not
vested in it by law; or

(b)
failed
to
exercise
a
jurisdiction of vested; or

(c) acted in the exercise of such
jurisdiction illegally or with material
irregularity;

the Board, or the Commissioner,
as the case may be may pass such order in
the case as it or he thinks fit.

(2) If an application under this
section has been moved by any person
either to the Board or to the Commissioner,
no further application by the same person
shall be entertained by the other of them.

Explanation.-For the removal of
doubt it is, hereby, declared that when an
application under this section has been
moved either to the Board or to the
Commissioner, the application shall not be
permitted to be withdrawn for the purpose
of filing the application against the same
order to the other of them."

21. The language of Section 210
indicates that the powers of revision may
be exercised in respect of any order passed
in a suit or 'proceeding decided'. The word
'proceeding' though not defined under the
Revenue Code, when applied to a suit, is
10 All. Mohd. Muslim & Ors. Vs. State of U.P. & Ors.
199
generally used, to express the separate steps
taken in the course of a suit.

22. Section 210 of the Revenue Code
which provides the remedy of a revision
empowers the Board or the Commissioner
to call for the record of 'any suit or
proceeding 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
suit or proceeding.

23. A plain reading of Section 210 of
the Revenue Code indicates that a revision
would be entertainable on the cumulative
satisfaction of the following circumstances:

I. (i) impugned order amounts to
a 'suit or proceeding decided';

(ii) such an order must have been
passed by any Revenue Court subordinate
to the Board of Revenue or Commissioner;

(iii) such an order must not be
appealable.

II. there must be an assertion with
regard to jurisdictional error by the
subordinate revenue court, i.e. to say:

(i) exercise of jurisdiction not
vested in it by law, or

(ii)
failure
to
exercise
a
jurisdiction so vested, or

(iii) acting in the exercise of such
jurisdiction illegally or with material
irregularity.

24. The section comprises two parts,
the first prescribes the condition under
which jurisdiction of the Board or the
Commissioner arises, i.e. there is a 'suit or
proceeding decided' by a subordinate
Revenue Court in which no appeal lies, the
second sets out the circumstances in which
the jurisdiction may be exercised.

25. The former concerns the power to
call for records of courts subordinate to it
by the Board or the Commissioner and
relates to existence of condition precedent
on the basis of which such exercise of
jurisdiction under Section 210 depends.
The latter relates to spelling out the
circumstances under which the jurisdiction
under Section 210 may be exercised.

26. The maintainability of a revision
would therefore depend on two conditions;
first, that it must relate to a suit or
proceeding decided by any Revenue Court
subordinate to the Board or Commissioner
and second, it must be in connection with
any 'suit or proceeding decided', against
which no appeal lies.

27. It would be upon a cumulative
satisfaction of the aforementioned two
conditions
that
a
revision
would
be
entertainable.
The
jurisdiction
of
the
revisional court would depend on the
existence of both the conditions - in a case
where either of the conditions is not present,
the revision would not be entertainable.

28. The order against which the
revisional jurisdiction is proposed to be
invoked must amount to a 'suit or
proceeding decided'. This would be the
necessary pre-condition which must exist
before the revisional court can assume
jurisdiction in a particular case.

29. The word 'proceeding', in the
expression 'proceeding decided' occurring
in Section 210 of the Revenue Code is to be
construed in a manner so as to include any
suit, appeal or application.

30. In order for a revision to be
entertainable the impugned order must
amount to a 'suit or proceeding decided'.
200 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In addition, the order must have
been
passed
by
any
revenue
court
subordinate to the Board of Revenue or
Commissioner, and such order must not be
appealable.

32.
The
expression
'proceeding
decided', in the context of maintainability
of a revision under Section 210 of the
Revenue Code, has been discussed in
extenso in a recent judgment of this Court
in Paltoo Ram Vs. State of UP and
others2, wherein it has been held that one
of the conditions precedent for the
entertainability of a revision is that the
impugned order must amount to a 'suit or
proceeding decided'.

33. The decision in the case of Riyasat
Ali Vs. Deputy Director of Consolidation
and others3, relied upon by the petitioner,
has reiterated the legal position that a
revision would not be entertainable against
an interlocutory order.

34. In the case of Rishi Kumar Vs.
State of UP and others4, sought to be
relied upon by the counsel appearing for
the contesting respondent, the application
filed under Section 229-D of the UPZA and
LR Act, 19505, seeking injunction, had
been rejected, and in the said circumstances
it was held that the remedy thereagainst
was to file a revision under Section 333 of
the 1950 Act. The aforesaid judgment
would therefore be distinguishable on facts,
as it was a case where the application for
injunction had been disposed, whereas in
the present case the same is pending.

35. In the facts of the present case,
there can be no manner of doubt that the
order dated 01.11.2022 passed by the SubDivisional Magistrate, in terms of which
the earlier ex parte order dated 17.10.2022
granting status quo, has been withdrawn,
does not dispose the application for
injunction filed under Section 146 of the
Revenue Code. The aforesaid application
still remains pending before the court
concerned.

36. The application for injunction,
under Section 146, in the course of the suit
under Section 144 of the Revenue Code,
having not been disposed in terms of the
order dated 01.11.2022, it would not be
covered within the ambit of 'proceeding
decided', and in view thereof a revision
would not lie against the said order under
Section 210.

37. In this view of the matter, the
order against which the revision has been
entertained and also allowed, cannot be
said to be an order relating to a 'suit or
proceeding decided'.

38. The condition precedent for the
entertainability of a revision under Section
210 of the Revenue Code, having thus not
been fulfilled, the submissions raised on
behalf of the petitioners with regard to the
revision being not entertainable, are held to
be sustainable.

39. The order dated 20.01.2024 passed
by
respondent
no.2,
Commissioner,
Prayagraj Division, Prayagraj in Revision
No.1369 of 2022 is, therefore, held to be
legally unsustainable, on the point of
entertainability of the revision.

40. The writ petition is therefore
allowed, and the impugned revisional order
dated 20.01.2024, passed by respondent
no.2 is set aside.

41.
Counsel
for
the
contesting
respondents, at this stage, submits that a
10 All. M/S Archita Tour and Travels Vs. State of U.P. & Ors.
201
direction be issued to the concerned
respondent authorities to decide the interim
application in the pending suit
at an early date.

42.
Counsel
appearing
for
the
petitioners has no objection to the aforesaid
prayer.

43. Learned Additional Chief Standing
Counsel for the State-respondents has
submitted that efforts would be made to
decide the aforesaid interim application in
the pending suit at an early date, and that
an endeavour would be made to dispose of
the application within a period of two
months from date.

44. In view of the aforesaid, it may be
observed that the court concerned would be
expected to make an endeavour to decide
the application for interim relief, in the suit
stated to be pending before it, in
accordance with law, expeditiously and
preferably within a period of two months
from the date of production of a certified
copy of the instant order, without granting
any unnecessary adjournments to either of
the parties, provided there is no other legal
impediment.
----------
(2024) 10 ILRA 201
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ Tax No. 226 of 2024

M/S Archita Tour and Travels ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Manish Misra, Bhavini Upadhyay, Dileep
Pandey, Gaurav Upadhyay

Counsel for the Respondents:
C.S.C.

Civil Law- Code of Civil Procedure-1908Order XLI Rule 17- Deciding a case ex parte
on merits without giving reasonable opportunity
to the parties is blatant violation of rule of "Audi
alterum partem". In absence of the appellant,
the Commercial Tax Tribunal had the authority
to dismiss the appeal in default as provided in
the Order XLI Rule 17 of the Code of Civil
Procedure, 1908 rather than hearing it ex parte
and deciding it on merits. (Para 11) (E-15)

List of Cases cited:

1. Benny D'Souza & ors.Vs Melwin D'Souza &
ors.; S.L.P. (C) No.23809 of 2023

2.
Siemens
Engineering
&
Manufacturing
Company of India Ltd. v. Union of India, (1976)
2 SCC 981

3. M/s Ram Sewak Coal Depot, Deori, Mirzapur
Vs The Commissioner of Trade Tax, U.P,
Lucknow; 2003 NTN (Vol.22)- 341

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Shri Manish Misra, learned
counsel for the petitioner as well as Sri
Sanjay Sarin, learned Standing Counsel for
the respondent and perused the record.

2. By means of the present writ
petition, the petitioner has challenged the
order dated 18.12.2023 passed by the
Additional Commissioner, Grade ? II
(Appeal ? 5), Commercial Tax, whereby he
has rejected the appeal of the petitioner and
upheld the order of adjudicating authority
dated 26.07.2021.

3. Learned counsel for the petitioner
has submitted that the impugned order
dated 18.12.2023 has been passed ex-parte