# Sitaram v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 956
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-06
- **Case number:** Writ C No. 26603 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sitaram-v-state-of-u-p-ors-48613
- **Pages:** 11

## Headnote

(A) Land Law - The Uttar Pradesh Revenue
Code, 2006 - Section 98(1), - Restrictions
on transfer by bhumidhars belonging to a
Scheduled Caste, The U.P. Revenue Code
Rules, 2016 - Rule 99 - Collector's
permission for transfer of Scheduled Caste
bhumidhar's land, proviso to section 98 -
conditions under which permission may be
granted by the Collector - 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.(Para -25 )

(B) Land Law - The Uttar Pradesh Revenue
Code, 2006 - Conditions which are
required to be satisfied while considering
5 All. Sitaram Vs. State of U.P. & Ors.
957
grant of permission by the Collector to a
bhumidhar belonging to a scheduled caste
- seeking to transfer land belonging to him
- having been clearly specified under the
proviso to sub-section (1) of Section 98
read with sub-rule (8) of Rule 99 - the
reference made in the orders impugned to
any other circumstance and on the basis
thereof to reject the application of the
petitioner seeking grant of permission to
transfer - would therefore render the
exercise of the discretionary power as
ultra vires and invalid.(Para - 20,26)

Petitioner's
son
died
untimely,
leaving
behind two daughters and two sons - meet
liabilities - desired to sell land in question -
old and feeble - no one to look after him -
sought
permission from
Collector for
transfer of land - report called from
committee
headed
by
SDO
-
report
submitted by team of revenue officers -
made a clear recommendation in favour of
petitioner
-
indicating
that
conditions
prescribed for purpose under the relevant
statutory provision stood satisfied - reasons
assigned in order dated 19.07.2021 passed
by Respondent no. 3 - that applicant did not
state circumstances under which land in
question was purchased - could make
arrangement for irrigation facilities - not
produced any evidence in support of his
illness - wholly inconsequential for purpose
of grant of permission for transfer - seeking
transfer of land for personal gains - not
relevant
-
based
on
a
conjecture
-
application rejected by Respondent no.3 -
revision filed - rejected by Respondent no.

## Text

956 INDIAN LAW REPORTS ALLAHABAD SERIES

42. It is not disputed that the claim of
the petitioner that she was the second wife
of the deceased tenure holder which was
sought to be set up on the basis of
documentary
evidence
would
require
adjudication of rights of the parties
requiring detailed appreciation of facts and
the same would be clearly beyond the
scope
and
purview
of
summary
proceedings relating to claims of mutation.

43. Counsel for the petitioner has not
been able to point out any circumstance
which may persuade this Court to entertain
the writ petition in exception to the settled
legal position that ordinarily orders passed
in mutation proceedings are not to be
interfered
with
in
exercise
of
the
extraordinary jurisdiction of this Court
under Article 226 of the Constitution of
India.

44. At this stage, learned counsel for
the petitioner seeks to urge that the
findings
returned
in
the
mutation
proceedings
may
prejudice
the
petitioner's case in a suit pertaining to
claim of title. The aforesaid apprehension
is wholly without basis since findings
returned by mutation courts in summary
proceedings are for the limited purpose of
correction of revenue records and do not
have any presumptive value on a question
of
title
which
is
required
to
be
adjudicated by the court of competent
jurisdiction without being influenced by
any
finding
returned
in
mutation
proceedings. In this regard the provision
contained under Section 39 of the Code
has already been taken note of wherein it
is provided in unequivocal terms that
order passed under Section 35 would not
debar any person from establishing his
rights to the land by means of a suit under
Section 144.

45. Having regard to the aforesaid this
Court is not inclined to exercise its
extraordinary
discretionary
jurisdiction
under Article 226 of the Constitution of
India in the facts of the present case.

46. The petition stands dismissed
accordingly.
----------
(2022)05ILR A956
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2022

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

Writ C No. 26603 of 2021

Sitaram ...Petitioner
Versus
State of U.P. & Ors. ....Respondents

Counsel for the Petitioner:
Sri Guru Prasad Mishra

Counsel for the Respondents:
C.S.C.

(A) Land Law - The Uttar Pradesh Revenue
Code, 2006 - Section 98(1), - Restrictions
on transfer by bhumidhars belonging to a
Scheduled Caste, The U.P. Revenue Code
Rules, 2016 - Rule 99 - Collector's
permission for transfer of Scheduled Caste
bhumidhar's land, proviso to section 98 -
conditions under which permission may be
granted by the Collector - 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.(Para -25 )

(B) Land Law - The Uttar Pradesh Revenue
Code, 2006 - Conditions which are
required to be satisfied while considering
5 All. Sitaram Vs. State of U.P. & Ors.
957
grant of permission by the Collector to a
bhumidhar belonging to a scheduled caste
- seeking to transfer land belonging to him
- having been clearly specified under the
proviso to sub-section (1) of Section 98
read with sub-rule (8) of Rule 99 - the
reference made in the orders impugned to
any other circumstance and on the basis
thereof to reject the application of the
petitioner seeking grant of permission to
transfer - would therefore render the
exercise of the discretionary power as
ultra vires and invalid.(Para - 20,26)

Petitioner's
son
died
untimely,
leaving
behind two daughters and two sons - meet
liabilities - desired to sell land in question -
old and feeble - no one to look after him -
sought
permission from
Collector for
transfer of land - report called from
committee
headed
by
SDO
-
report
submitted by team of revenue officers -
made a clear recommendation in favour of
petitioner
-
indicating
that
conditions
prescribed for purpose under the relevant
statutory provision stood satisfied - reasons
assigned in order dated 19.07.2021 passed
by Respondent no. 3 - that applicant did not
state circumstances under which land in
question was purchased - could make
arrangement for irrigation facilities - not
produced any evidence in support of his
illness - wholly inconsequential for purpose
of grant of permission for transfer - seeking
transfer of land for personal gains - not
relevant
-
based
on
a
conjecture
-
application rejected by Respondent no.3 -
revision filed - rejected by Respondent no.
2. (Para -3,4,19 )

HELD:-Impugned orders passed in the
absence of consideration of the relevant
provisions and being based on wholly
irrelevant consideration, are accordingly
held to be legally unsustainable and are set
aside and quashed. Matter remitted to
Respondent no. 3 for passing of 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. (Para- 26,27)

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

1. Lord Esher MR in R. Vs St Pancras Vestry,
(1890) 24 Q.B.D. 371

2. Associated Provincial Picture Houses, Ltd. Vs
Wednesbury Corporation , (1947) 2 AII E.R. 680

3. Padfield & ors. Vs Minister of Agriculture,
Fisheries & Food & ors. , (1968) 1 AII E.R. 694

4. Lord Denning, M.R. in Breen Vs A.E.U. & ors.
, (1971) 2 Q.B. 175

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

1. Heard Sri Guru Prasad Mishra,
learned counsel for the petitioner and Sri
Ajeet Kumar Singh, learned Additional
Advocate General assisted by Sri Amit
Verma, learned Standing Counsel for the
State Respondents.

2. The present petition seeks to assail
the order dated 19.07.2021 passed by the
Respondent no. 3-Additional Collector
(Administration), Muzaffarnagar in Case
No. 433 of 2020 (Computerized Case No.
D2020095500000433, Sitaram vs. State)
whereby
permission
sought
by
the
petitioner under Section 98(1) of the Uttar
Pradesh Revenue Code, 20061 was turned
down.
The
subsequent
order
dated
16.08.2021 passed by the Respondent no.2Additional Commissioner (Administration),
Saharanpur Division, Saharanpur in Case
No. 1145 of 2021 (Computerized Case No.
C202109000001145, Sitaram vs. State of
U.P.) in terms of which the revision filed
by the petitioner has been rejected is also
sought to be challenged.

3. As per the facts set out in the writ
petition, the petitioner claims himself to be
a recorded tenure holder of Khasra No.
379/2 measuring 0.3280 hectares, recorded
958 INDIAN LAW REPORTS ALLAHABAD SERIES
in Khata No. 50 situate at Village-Behada
Assa,
Tehsil
Jaansath,
District
Muzafarnagar. The petitioner is stated to
have purchased the aforesaid land on
02.03.2005 and thereafter claims to have
become a bhumidhar with transferable
rights. It is contended that the petitioner's
son died untimely, leaving behind two
daughters and two sons and to meet these
liabilities, the petitioner desired to sell the
land in question. It is also stated that the
petitioner had become old and feeble and
with no one to look after him, he sought
permission from the Collector for transfer
of the land and submitted the application in
the prescribed RC Form-27. Upon the
aforesaid application, a report was called
from the committee headed by the Sub
Divisional Officer and as per the report
dated 13.01.2020, the land in question had
been obtained by the petitioner by means of
a sale deed and the petitioner was recorded
as bhumidhar with transferable rights. It
was also stated in the report that the land in
question was not a public utility land and
that after transfer of the same, the area of
the land held by the petitioner would be
4.4150 hectares. It was mentioned in the
report that the petitioner was old and
remained frequently ill and in the absence
of adequate irrigation facilities was finding
it difficult to carry on the agricultural
operations. Taking into consideration this
together with the fact that his son was
predeceased leaving behind the liability of
two grand-daughters and two grand-sons on
the petitioner and that the petitioner was in
need of funds for their education and
marriage, the report along with the
recommendation of the Committee was
submitted to the authority concerned.

4. It is submitted that despite the
aforesaid report in terms of which a clear
recommendation was made in favour of the
petitioner, his application was rejected by
the Respondent no.3 by an order dated
19.07.2021 by assigning reasons that the
application did not state the circumstances
under which the land in question was
purchased and that the petitioner could
make arrangement for irrigation facilities.
The order also records that the petitioner
had not produced any evidence to support
the factum of his illness. It was also stated
that the petitioner was allotted the land in
question on a patta and that he was seeking
transfer of the land for personal gains. The
revision filed by the petitioner against the
aforesaid order has been rejected by the
Respondent no. 2 cursorily after reiterating
similar reasons.

5. Contention of the learned counsel
appearing for the petitioner is that the
reasons
assigned
by
the
respondent
authorities in rejecting his application
seeking
permission
are
wholly
inconsequential for the purpose of grant of
permission under Section 98 of the Code,
2006. It is submitted that none of the
reasons cited by the respondent authorities
for rejecting his application could be said to
be a valid ground as per the relevant
statutory provision.

6.

Controverting
the
aforesaid
contention, learned Additional Advocate
General has tried to support the order
passed by the respondent authorities by
seeking to reiterate the reasons which have
been
specified
in
the
orders
under
challenge.

7. In order to appreciate the rival
contentions, the provisions contained under
Section 98 which provide for restrictions
on transfer by bhumidhar belonging to
Scheduled Caste and the relevant rule
under the U.P. Revenue Code Rules,
20162, may be referred to.
5 All. Sitaram Vs. State of U.P. & Ors.
959

"98. Restrictions on transfer by
bhumidhars belonging to a Scheduled
Caste.--(1) Without prejudice to the
provisions of this Chapter, no bhumidhar
belonging to a scheduled caste shall have
the right to transfer, by way of sale, gift,
mortgage or lease any land to a person not
belonging to a scheduled caste, except with
the previous permission of the Collector in
writing:

Provided that the permission by
the Collector may be granted only when--

(a) the bhumidhar belonging to a
scheduled caste has no surviving heir
specified in clause (a) of sub-section (2) of
section 108 or clause (a) of section 110, as
the case may be; or

(b) the bhumidhar belonging to a
scheduled caste has settled or is ordinarily
residing in the district other than that in
which the land proposed to be transferred is
situate or in any other State for the purpose
of any service or any trade, occupation,
profession or business; or

(c) the Collector is, for the
reasons prescribed, satisfied that it is
necessary to grant the permission for
transfer of land.

(2) For the purposes of granting
permission under this section the Collector
may make such inquiry as may be
prescribed.

Rule
99.
Collector's
permission for transfer of Scheduled
Caste bhumidhar's land. (Section 98).--
(1) An application under section 98 (1) or
under section 98 (1) read with section
107, for permission to transfer land by
way of sale or gift or for permission to
bequeath land by will, as the case may be,
shall be made by a Bhumidhar with
transferable
rights
belonging
to
Scheduled Caste to the Collector in R.C.
Form-27.

(2) An application under section
98 (1), for permission to mortgage his
interest in the land shall be made by a
bhumidhar, belonging to a Scheduled
Caste to the Collector in R.C. Form-28.

(3) An application under section
98 (1), for permission to let out land shall
be made by a bhumidhar belonging to a
Scheduled Caste to the Collector in R.C.
Form-29.

(4) On receipt of an application
under section 98 (1) the Collector shall
make such inquiry as he may, in the
circumstances
of
the
case,
deem
necessary. He may also depute an officer
not below the rank of Naib Tahsildar for:

(a) verification of the facts
stated in the application; and

(b) reporting the circumstances
in which permission for transfer is
sought.

(5) The inquiry officer referred
to in sub-rule (4) of this rule shall submit
the report in duplicate within the period
of fifteen days, from the date of receiving
the order of such inquiry.

(6) A copy of the report shall be
supplied to the applicant free of charge,
from the office of the Collector where
such report has been submitted.

(7)
The
applicant
may
file
objection against the report submitted by
960 INDIAN LAW REPORTS ALLAHABAD SERIES
the inquiry officer within the period of
seven days from the date of receipt of the
copy of the report.

(8) After receiving the report
submitted under sub-rule (3) and the
objection, if any, if the Collector is satisfied
that-

(a) the conditions of clause (a) or
clause (b) of subsection (1) of section 98
are fulfilled; or

(b) the tenure holder or any
member of his family is suffering from any
fatal disease regarding which the certificate
has been issued by any physician or
surgeon specialist in the disease concerned
and the permission for transfer is necessary
to meet out the expenses for the treatment
of such disease; or

(c) the applicant is seeking
permission under section 98(1) of the
Code for the proposed transfer to
purchase any other land
from the
consideration of such proposed transfer
and the facts in this regard in the
application are supported with certified
copy of a registered agreement to sell in
favour of the applicant; or

(d) the area of land held by the
applicant on the date of application does
not, after such transfer, reduce to less than
1.26 hectares, and

(e) if the permission is being
sought for transfer by sale the consideration
for the transfer of the land is not below the
amount calculated as per the circle rate
fixed by the Collector;

he may grant the permission by
recording the reasons.

Explanation. --For the removal of
doubt it is a hereby clarified that if the
condition enumerated in clause (d) of this
sub-rule is not fulfilled but any condition
enumerated in clauses (a) to (c) of this rule
is fulfilled the permission under section
98(1) of the Code may be granted by
Collector.

(9) An application referred to in
sub-rule (2) or sub-rule (3) of rule 99 for
permission to mortgage or to let out land,
as the case may be, may be granted by the
Collector on his being satisfied that the
mortgage or letting out, as the case may be,
is not possible in favour of a person
belonging to a Scheduled Caste or
Scheduled Tribe.

(10) An application referred to in
sub-rule (1) of rule 99 for permission to
bequeath land by will, may be granted by
the Collector on his being satisfied that the
bequeath of the land was not possible in
favour of the person belonging to a
Scheduled Caste or a Scheduled Tribe.

(11) The Collector shall make an
endeavor to dispose of the application
under section 98(1) within the period of
fifteen days from the date of receiving the
report submitted by the inquiry officer and
if the application is not disposed of within
such period the reason for the same shall be
recorded."

8. Section 98 of the Code mandates
that
no
bhumidhar
belonging
to
a
scheduled caste shall have the right to
transfer, by way of sale, gift, mortgage or
lease any land to a person not belonging to
a scheduled caste except with the previous
permission of the Collector in writing. The
previous permission of the Collector is
therefore, a condition precedent before any
5 All. Sitaram Vs. State of U.P. & Ors.
961
bhumidhar of scheduled caste can seek to
transfer his land to a person not belonging
to a scheduled caste. In the absence of such
permission having been obtained, the
transfer would be rendered void as per
Section 104, and would be subject to the
consequences provided under Section 105.

9. The proviso to Section 98
enumerates the conditions under which
permission may be granted by the Collector,
and the same are as follows:

(i) the bhumidhar belonging to a
scheduled caste has no surviving heir
specified in clause (a) of sub-section (2) of
section 108 or clause (a) of section 110, as
the case may be; or

(ii) the bhumidhar belonging to a
scheduled caste has settled or is ordinarily
residing in the district other than that in
which the land proposed to be transferred is
situate or in any other State for the purpose of
any service or any trade, occupation,
profession or business; or

(iii) the Collector is, for the reasons
prescribed, satisfied that it is necessary to
grant the permission for transfer of land.

10. The reasons prescribed, as referred
to under clause (c) of the proviso to Section
98(1), upon which the Collector is to record
its satisfaction that it is necessary to grant
permission for transfer of the land, are
specified under sub-rule (8) of Rule 99 of the
Rules, 2016, and the same are as follows:

(i) the conditions of clause (a) or
clause (b) of subsection (1) of section 98 are
fulfilled; or

(ii) the tenure holder or any
member of his family is suffering from any
fatal disease regarding which the certificate
has been issued by any physician or
surgeon specialist in the disease concerned
and the permission for transfer is necessary
to meet out the expenses for the treatment
of such disease; or

(iii) the applicant is seeking
permission under section 98(1) of the Code
for the proposed transfer to purchase any
other land from the consideration of such
proposed transfer and the facts in this regard
in the application are supported with certified
copy of a registered agreement to sell in
favour of the applicant; or

(iv) the area of land held by the
applicant on the date of application does not,
after such transfer, reduce to less than 1.26
hectares, and

(v) if the permission is being
sought for transfer by sale the consideration
for the transfer of the land is not below the
amount calculated as per the circle rate fixed
by the Collector;

11. The conditions under which
permission may be granted for transfer to a
bhumidhar belonging to a scheduled caste
can thus be summarised as follows:-

(i) in the absence of surviving heir
specified in clause (a) of sub-section (2) of
section 108 or clause (a) of section 110;

(ii) the transferor has settled or is
ordinarily residing in the district other than
that in which the land proposed to be
transferred is situate or in any other State for
the purpose of any service or any trade,
occupation, profession or business;

(iii) for the reasons prescribed
under the Rules, i.e.
962 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) the tenure holder or any
member of his family is suffering from any
fatal disease; or

(b) the applicant is seeking
permission for the proposed transfer to
purchase
any
other
land
from
the
consideration of such proposed transfer; or

(c) the area of land held by the
applicant on the date of application does
not, after such transfer, reduce to less than
1.26 hectares, and

(d) if the permission is being
sought for transfer by sale the consideration
is not below the amount calculated as per
the circle rate fixed by the Collector.

12. The explanation to Rule 99
clarifies that in a situation where any
condition enumerated in clause (a) to (c) of
sub-rule (8) of Rule 99 is fulfilled, the
permission may be granted even if the
holding of the bhumidhar (transferor) after
such transfer reduces to less than 1.26
hectares.

13. The procedure for obtaining
permission for transfer under Section 98 is
provided for under Rule 99 of the Rules,
2016 and as per sub-rule (3) thereof an
application seeking permission to transfer
land by way of sale or gift or for
permission to bequeath land by will, as the
case may be, is to be made by a bhumidhar
with transferable rights belonging to
scheduled caste to the Collector in RCForm 27. Upon receipt of such an
application, the Collector under sub-rule
(4) shall make an enquiry as he may, in the
circumstances of the case deem necessary.
For the purpose he may depute an officer
not below the rank of Naib Tehsildar for :
(a) verification of the facts stated in the
application;
and
(b)
reporting
the
circumstances in which permission for
transfer is sought. Thereafter, under subrule (5), the inquiry officer shall submit the
report in duplicate within a period of 15
days from the date of receiving the order of
such enquiry. The copy of the report is to
be supplied to the applicant under sub-rule
(6) whereupon the applicant may file
objections against the report within a
period of seven days and thereafter the
Collector upon being satisfied that any of
the conditions under sub-rules (8)(a) to (d),
and sub-rule (8)(e) of Rule 99, are fulfilled,
he may grant permission after recording
reasons.

14. The provision with regard to the
transfer
by
bhumidhar
belonging
to
scheduled caste as contained under Section
98 of the Code, 2006 corresponds to
Section 157A and 157-AA of the repealed
Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 19503, with some
points of difference.

15. Under the ZA & LR Act, in terms
of Section 157-A no bhumidhar or asami
belonging to a scheduled caste could
transfer the land to a person not belonging
to a scheduled caste except with the
previous approval of the Collector whereas
under Section 157-AA the restriction was
to the effect that a person belonging to a
scheduled
caste
having
become
a
bhumidhar with transferable rights under
Section 131-B shall have no right to
transfer the land by sale or otherwise to any
person other than a person belonging to a
scheduled caste. The transfer under Section
157-AA was to be permissible only to
persons belonging to scheduled castes in
the order of preference as prescribed under
sub-section (1). The restriction on a
scheduled caste with regard to the transfer
5 All. Sitaram Vs. State of U.P. & Ors.
963
of land in favour of a person who does not
belong to a scheduled caste under Section
157-AA was thus absolute and such
transfer was not permissible in any
contingency. The language of sub-section
(1) of Section 157-AA was such that even
in case of a member of a scheduled caste
acquiring
transferable
rights
of
a
bhumidhar under Section 131-B who is
desirous to transfer such land to another
person belonging to the scheduled caste by
way of sale, gift, mortgage or lease the
right to transfer was not absolute and the
transfer was permissible only in accordance
with the preferences specified therein. Subsection (4) provided that no transfer under
Section 157-AA was permissible without
the previous approval of the Assistant
Collector concerned. These restrictions
were made subject to a further condition
with the insertion of sub-section (5), in
terms of which a transferee of land under
sub-section (1) shall have no right to
transfer the land by way of sale, gift,
mortgage or lease before the expiry of a
period of ten years from the date of transfer
in his favour.

16. The aforementioned distinction with
regard to the rights of a bhumidhar with
transferable rights belonging to a scheduled
caste and a bhumidhar who has acquired the
transferable rights in respect of an allotted
land, is not maintained under the Code, 2006.
The
restrictions
and
the
preferences
enumerated in Section 157-AA of the
repealed ZA & LR Act also have no
existence under the Code, 2006. The
procedure for grant of permission for transfer
by bhumidhar belonging to a scheduled caste
has been simplified under the Code, 2006 and
the Rules made thereunder with a view to
make the procedure more objective and the
requisite permission for transfer is to be
granted to a bhumidhar belonging to a
scheduled caste upon fulfilment of either of
the conditions specified under clause (a) or
(b) of the proviso to sub-section (1) of
Section 98, or upon fulfilment of any of the
conditions specified under clause (b), (c) or
(d) and clause (e) of sub-rule (8) of Rule 99
of the Rules, 2016.

17. Under Section 98(1) of the Code,
2006 read with Rule 99 of the Rules, the
Collector may grant permission for transfer
by bhumidhars belonging to scheduled caste
upon fulfilment of either of the five specified
conditions: (i) in the absence of a surviving
heir; (ii) the transferor has settled or is
ordinarily residing in a different district or
State; (iii) the tenure holder or any member of
his family is suffering from any fatal disease;
(iv) the applicant is seeking permission for
transfer to purchase any other land from the
consideration of such proposed transfer; (v)
the area of the land held by the applicant on
the date of application does not, after such
transfer, reduces to less than 1.26 hectares.
This is subject to a further condition that the
consideration for the transfer of the land is
not below the amount calculated as per the
circle rate fixed by the Collector. The
condition with regard to the area of the land,
held by the applicant, consequent to the
transfer of the land being reduced to less than
1.26 hectares, is not mandatory subject to the
fulfilment of any of the other conditions.

18. In a case where the application
has been made as per the prescribed
procedure and upon due enquiry as
provided under the Rules, 2016 either of
the aforestated conditions are held to be
satisfied, the permission is required to be
granted for transfer under Section 98.

19. In the case at hand, the application
by the petitioner was made in the
prescribed form as provided under Rule 99
964 INDIAN LAW REPORTS ALLAHABAD SERIES
upon which the enquiry was duly made for
the purpose of verification of the facts
stated in the application and also reporting
the circumstances under which permission
for transfer was being sought. The report
submitted by a team of revenue officers
made a clear recommendation in favour of
the petitioner indicating that the conditions
prescribed for the purpose under the
relevant statutory provision stood satisfied.
In the face of the aforesaid circumstances,
the reasons assigned in the order dated
19.07.2021 passed by the Respondent no. 3
that the applicant did not state the
circumstances under which the land in
question was purchased and that the
petitioner could make arrangement for
irrigation facilities, or that he had not
produced any evidence to support the
factum
of
his
illness,
are
wholly
inconsequential for the purpose of grant of
permission for transfer. The other reason
stated in the order that the petitioner was
seeking transfer of the land for personal
gains is also not relevant and is based on a
conjecture.

20. In exercise of its discretionary
power, if the concerned authority ignores or
does not take into account considerations
which are relevant to the purpose of the
statute in question, then its action would be
invalid. This would be more so where the
statute
conferring
discretion
on
the
authority has structured the discretion by
expressly laying down the consideration
which should be taken into account by the
authority for exercise of the discretion. In
such a case, if the exercise of the
discretionary power has been influenced by
considerations that cannot lawfully be
taken into account or by disregard of the
relevant considerations required to be taken
into account, the decision arrived at by the
authority would be invalid.

21. The "irrelevant considerations"
doctrine was stated by Lord Esher MR in
R. vs. St Pancras Vestry4 by observing as
follows:

"But they must fairly consider the
application and exercise their discretion on
it fairly, and not take into account any
reason for their decision which is not a
legal one. If people who have to exercise a
public duty by exercising their discretion
take into account matters which the Courts
consider not to be proper for the guidance
of their discretion, then in the eye of the
law
they
have
not
exercised
their
discretion."

22. The scope of interference by Courts
in matters relating to exercise of discretion
conferred by a statute upon an authority was
subject matter of consideration in Associated
Provincial
Picture
Houses,
Ltd.
vs.
Wednesbury Corporation5wherein it was
stated by Lord Greene, M.R. as follows:

"... The law recognises certain
principles on which the discretion must be
exercised ... They are perfectly well
understood. The exercise of such a discretion
must be a real exercise of the discretion. If, in
the statute conferring the discretion, there is
to be found, expressly or by implication,
matters to which the authority exercising the
discretion ought to have regard, then, in
exercising the discretion, they must have
regard to those matters. Conversely, if the
nature of the subject-matter and the general
interpretation of the Act make it clear that
certain matters would not be germane to the
matter in question, they must disregard those
matters.

.... the court is entitled to
investigate the action of the local authority
with a view to seeing whether it has taken
5 All. Sitaram Vs. State of U.P. & Ors.
965
into account matters which it ought not to
take into account, or, conversely, has
refused to take into account or neglected to
take into account matters which it ought to
take into account."

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 Others6,
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
Others7, 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.

26. The conditions which are required
to be satisfied while considering grant of
permission by the Collector to a bhumidhar
belonging to a scheduled caste seeking to
transfer land belonging to him having been
clearly specified under the proviso to subsection (1) of Section 98 read with sub-rule
(8) of Rule 99, the reference made in the
orders impugned to any other circumstance
and on the basis thereof to reject the
application of the petitioner seeking grant
of permission to transfer, would therefore
render the exercise of the discretionary
power as ultra vires and invalid. The orders
impugned having been passed in the
absence of consideration of the relevant
provisions and being based on wholly
irrelevant consideration, are accordingly
held to be legally unsustainable and are set
aside and quashed.

27. The matter is remitted to the
Respondent no. 3 for passing of 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.
966 INDIAN LAW REPORTS ALLAHABAD SERIES

28. The writ petition stands allowed
in the manner indicated above.
----------
(2022)05ILR A966
APPELLATE JURISDICTION
CIVIL SIDE
DATED ALLAHABAD 21.04.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

WRIT A No. 26709 of 2010

Devdutt ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant
Sri Naveen Srivastava, Sri Kashif Gilani, Sri
Navin Kumar, Ms. Jigyasa Singh

Counsel for the Respondents:
C.S.C., Sri Manoj Kumar Singh, Sri Manu
Saxena

A. Service Law - Voluntary retirement -
Pension and Retiral benefits - Civil Service
Regulations: Article 418(A) - U.P. Nagar
Palika
Non
Centralized
Services
Retirement Benefits Rules, 1984 - If an
employee
has
completed
qualifying
service for getting retirement benefits and
has resigned thereafter, he cannot be
denied retiral benefits. His resignation
would amount to voluntary retirement.
(Para 17, 21)

This court finds the only issue to be decided in
this case as to whether the petitioner's
resignation should be taken to be a
voluntary retirement or a resignation right
from service so as to disentitle him to the
retirement benefit under 1984 Rules. (Para
13)

It is within the authority and discretion
of an employer to decide as to whether
to treat a resignation letter as voluntary
retirement or not and once the employer
has treated resignation to be for voluntary
retirement, there seems to be no scope for
any other authority to take a different stand.
(Para 21)

In the present case, the petitioner's employer
has rightly treated the letter of resignation as
voluntary
retirement
and
so
made
recommendation for payment of retirement
benefits including pension. The qualifying
service for pension to the employees of the
non centralised service of a local body has
come to be defined vide Rule 2(ढ़)(ण)(त)
defining the same of Uttar Pradesh Nagar
Palika Non Centralised Retirement Benefits
Regulations, 1984 runs as under. (Para 24)

As per the provisions, an employee if has
attained the age of 50 years and has spent 20
years of service, he would be entitled to seek
voluntary retirement and so consequential
benefits. The petitioner at the time of
resigning
from
service
had
already
attained 50 years of age and had also
completed more than 20 years of service
and
so
he
could
seek
voluntary
retirement and consequential benefits.
(Para 25)

B.
Difference
between
Voluntary
Retirement and Resignation - Voluntary
retirement
would
also
be
a
case
of
resignation. The only difference is that in case
of voluntary retirement an employee intends
to relinquish the job for his attaining
advanced age, illness etc. and shows his
inability
to
continue
to
serve
the
establishment whereas in case of pure
resignation an employee intends to leave the
job either for the reason he has got an
attractive employment or that he is facing
hardships at the end of the employer and
circumstances have forced him/her to resign.
The intention of an employee can be gathered
from the language the resignation letter as
the contents of the letter and the language in
which
it
is
couched
will
only
be
a
determinative factor as to its nature and
character. (Para 20)

Writ petition allowed. (E-4)

Precedent followed: