# Smt. Omwati v. Collector, District Pilibhit & Ors

- **Citation:** (2022) 12 ILRA 457
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-10
- **Case number:** Writ-C No. 31006 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-omwati-v-collector-district-pilibhit-ors-47631
- **Pages:** 11

## Headnote

A. Civil Law - UP Revenue Code, 2006 -
Section 98(1) - UP Revenue Code Rules,
2016 - R. 99 - Transfer of land by a
person belongs to Schedule Caste -
Restriction imposed - Permission was
rejected on the ground that she had not
produced any certificate from the Gram
Pradhan to the effect that no member of
the Scheduled Caste/Scheduled Tribe of
the village was ready to purchase the
property in question - Validity challenged
- High Court set aside the impugned
orders holding that it was passed in the
absence of consideration of the relevant
provisions and being based on wholly
irrelevant consideration and as such are
legally unsustainable. (Para 19 and 26)
B. Discretionary power - Exercise thereof
- Keeping the irrelevant consideration in
mind - Effect - Held, 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. (Para
23)
Writ petition allowed. (E-1)
List of Cases cited :-

## Text

12 All. Smt. Omwati Vs. Collector, District Pilibhit & Ors.
457
Rule 5(1) allows a claim for compassionate
appointment only when the spouse of the
deceased employee is not already employed
under the Central Government or a State
Government or a Corporation owned or
controlled by the Central Government or a
State Government therefore, once it is not
in dispute that Tabassum Khan, spouse of
the
deceased
employee
was
under
employment as noticed above, the claim for
compassionate
appointment
was
not
sustainable. Consequently, the claim of the
petitioner for compassionate appointment
was rightly rejected and the learned Single
Judge was justified in dismissing the writ
petition.

16. The Appeal is dismissed.
----------
(2022) 12 ILRA 457
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2021

BEFORE

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

Writ-C No. 31006 of 2021
With
Writ-C No. 31010 of 2021

Smt. Omwati ...Petitioner
Versus
Collector, District Pilibhit & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Siddharth Nandan

Counsel for the Respondents:
C.S.C.

A. Civil Law - UP Revenue Code, 2006 -
Section 98(1) - UP Revenue Code Rules,
2016 - R. 99 - Transfer of land by a
person belongs to Schedule Caste -
Restriction imposed - Permission was
rejected on the ground that she had not
produced any certificate from the Gram
Pradhan to the effect that no member of
the Scheduled Caste/Scheduled Tribe of
the village was ready to purchase the
property in question - Validity challenged
- High Court set aside the impugned
orders holding that it was passed in the
absence of consideration of the relevant
provisions and being based on wholly
irrelevant consideration and as such are
legally unsustainable. (Para 19 and 26)
B. Discretionary power - Exercise thereof
- Keeping the irrelevant consideration in
mind - Effect - Held, 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. (Para
23)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Sitaram Vs St. of U.P. & ors.; 2022 (155) RD
178
2. R. Vs St Pancras Vestry; (1890) 24 Q.B.D.
371
3. Associated Provincial Picture Houses, Ltd. Vs
Wednesbury Corp.; [1947] 2 All E.R. 680
4. Padfield & ors. Vs Minister of Agriculture,
Fisheries & Food & ors.; [1968] 1 All E.R. 694
5. Breen Vs Amalamated Engineering Union &
ors.; [1971] 2 Q.B. 175

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

1. The two writ petitions are based on
similar set of facts and raise common
questions of law, accordingly with the
consent of the parties, the petitions are
being taken up for hearing together.
458 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Heard Sri Siddharth Nandan,
learned counsel for the petitioners and Ms.
Shivi Mishra, learned Standing Counsel for
the State respondents.

3. Writ C No. -31006 of 2021 seeks to
raise a challenge to an order dated
9.11.2021
passed
by
the
respondent
no.1/Collector, District Pilibhit in Case No.
1307 of 2021 (Omwati vs. State of U.P.)
under Section 98(1) of U.P. Revenue Code,
20061. A further prayer has been made for
a direction to the respondent authorities to
grant permission for executing the sale
deed in pursuance of an agreement to sell
dated 5.12.2019 as per terms of Section 98
of the Code, 2006 read with Rule 99 of the
U.P. Revenue Code Rules, 20162.

4. The petitioner claims to be
recorded as a bhumidhar with transferable
rights over half portion of land bearing
Khata no.13, Gata no. 218 area 0.679
hectares situate at Village Simraya, Tehsil
Puranpur, District Pilibhit. It has been
submitted that the petitioner is married and
is residing with her husband at Village
Mainakot, which is situate at a distance of
50 kms and since it is not possible for her
to carry out agriculture over the land in
question, she entered into a registered
agreement to sell dated 5.12.2019 with the
respondent
no.3
and
submitted
an
application dated 6.12.2019 to the Collector
seeking permission under Section 98(1) of
the Code, 2006. A report thereon dated
20.1.2022 was submitted by the Tahsildar
concerned.
The
petitioner
thereafter,
approached this Court by filing Writ C No.
7110 of 2020 (Smt. Omwati vs. Collector,
District Pilibhit and 2 Others) which was
disposed of in terms of an order dated
4.5.2020 directing the respondent no.1 to
pass an appropriate order on the application
submitted by the petitioner within a
prescribed time period. The application
filed by the petitioner was subsequently
rejected by the respondent no.1 by means
of an order dated 6.12.2019. Being
aggrieved, against the aforesaid order, the
petitioner has preferred the present writ
petition.

5. Writ C No. 31010 of 2021 seeks to
bring into question the order dated
9.11.2021 passed by the respondent no.
1/Collector, District Pilibhit in Case No.
1306 of 2021 (Shiv Narayan vs. State of
U.P.) under Section 98(1) of the Code,
2006. A further prayer is sought for a
direction to the respondent no.1 to grant
permission for execution of the sale deed in
furtherance of an agreement to sell dated
9.12.2019 as per terms of Section 98 of the
Code, 2006 read with Rule 99 of the Rules,
2016. The petitioner has asserted himself to
be a bhumidhar with transferable rights
over land under Khata no. 289, Gata no.
412, area 0.301 hectares and 2/4th of Khata
no. 54, Gata no. 556 area 0.122 hectares
and Khata no. 215, Gata no. 413Aa, area
0.080 hectares situate at Village Simraya,
Tehsil Ghunghchihai, Tehsil Puranpur,
District Pilibhit and also half share of
Khata no. 002, Gata no. 301 area 3.561
hectares situate at Village Bhagwantapur,
Tehsil Puranpur, District Pilibhit. It is
submitted that petitioner had entered into a
registered
agreement
to
sell
dated
9.12.2019 with the respondent no.3 in
respect of the land in question which is
situate at a distance of 18 kms and
accordingly, it was not possible for him to
carry out agriculture over the said land. The
petitioner has also stated that he was in
need of funds to repay the loan which he
had taken. An application was therefore,
submitted before the respondent no.1 in the
prescribed format for seeking permission as
per Section 98(1) of the Code, 2006. A
12 All. Smt. Omwati Vs. Collector, District Pilibhit & Ors.
459
report dated 20.1.2020 was submitted by
the Tahsildar thereon. The matter remained
pending and in view thereof, the petitioner
had to approach this Court by filing Writ C
No. 7115 of 2020 (Shiv Narayan vs.
Collector, District Pilibhit and 2 Others)
which was disposed of by an order dated
4.5.2020
directing
the
respondent
authorities to pass appropriate order within
a time bound period. The application of the
petitioner was subsequently rejected by the
respondent no.1 by
an
order
dated
10.12.2019. It is against the aforesaid order
that the writ petition has been filed.

6. Counsel for the petitioner has
referred to the provisions contained under
Section 98 of the Code, 2006 and Rule 99
of the Rules, 2016 to contend that in the
case of Smt. Omwati (petitioner in Writ C
no. 31006 of 2021) the petitioner had
fulfilled the conditions mentioned in Rule
99 of the Rules, 2016 and accordingly, was
entitled for being granted permission. It is
submitted that the application of the
petitioner has been rejected merely on the
ground that she had not produced any
certificate from the Gram Pradhan to the
effect that no member of the Scheduled
Caste/Scheduled Tribe of the village was
ready to purchase the property in question
and therefore, she was not entitled for grant
of permission solely for the reason that the
agricultural land was at a distance of 50
kms from the place where she was residing.

7. It is sought to be contended that
there is no requirement under the relevant
statutory provisions or the rules made
thereunder with regard to filing of a
certificate of the Gram Pradhan to indicate
that no person belonging to the Scheduled
Caste in the village was ready to purchase
the property and that the petitioner having
specifically stated that it was not feasible
for her to travel a distance of 50 kms to
cultivate the land, she was entitled for grant
of
permission.
Learned
counsel
has
submitted that the provision under Section
98 of the Code, 2006 read with Rule 99 of
the Rules, 2016 is a beneficial piece of
legislation and the discretion granted to the
Collector in this regard under clause (c) of
the proviso to Section 98(1) ought to have
been exercised liberally and in furtherance
with
the
intent
of
the
legislature.
Accordingly, it is urged that the order
passed by the Collector rejecting her
application
is
erroneous
and
legally
unsustainbale.

8. As regards the case of Shiv
Narayan (petitioner in Writ C no. 31010 of
2021), learned counsel for the petitioner
has pointed out that here also the
application has been rejected by assigning
the reason that the petitioner had not
submitted any certificate from the Gram
Pradhan that no person in the village
belonging to the category of Scheduled
Caste/Scheduled
Tribe
was
ready
to
purchase the property in question and in
view thereof, the permission could not be
granted only for the reason that the
agricultural land was at a distance of 18
kms from the place where he was residing.

9. Learned counsel appearing for the
State respondents has supported the order
passed by the respondent authorities by
pointing out that the petitioners having not
fulfilled the conditions specified under
Section 98(1) of the Code, 2006 read with
Rule 99 of the Rules, 2016, the applications
seeking permission have rightly been
rejected. It has been submitted that the
restrictions ingrained in the aforesaid
statutory provisions are with a view to
protect the interest of the bhumidhars
belonging to Scheduled Castes and the
460 INDIAN LAW REPORTS ALLAHABAD SERIES
discretion conferred on the Collector under
clause (c) of the proviso to Section 98(1) is
structured in the manner as prescribed
under Rule 99 and cannot be extended
beyond the specified terms.

10. Section 98 of the Code, 2006 and
Rule 99 of the Rules, 2016 which are
relevant for the purpose of the controversy
in question are being extracted below:

"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.
12 All. Smt. Omwati Vs. Collector, District Pilibhit & Ors.
461

(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
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."

11. Section 98 of the Code mandates
that no bhumidhar belonging to a scheduled
462 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.

12. 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.

13. 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;

14. 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;
12 All. Smt. Omwati Vs. Collector, District Pilibhit & Ors.
463

(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.

(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.

15. 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.

16. 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.

17. 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.

18. The aforementioned legal position
with regard to the interpretation of the
provisions contained under Section 98 of
the Code, 2006 and Rule 99 of the Rules,
2016 which relate to the restrictions on
transfer by bhumidhars belonging to a
Scheduled Caste and the manner in which
permission may be granted for the purpose
by the Collector, were subject matter of
consideration in a recent decision of this
464 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in Sitaram vs State of U.P. and
others3, which has been relied upon by
counsel for both the parties.

19. In Omwati's case (Writ C no.
31006 of 2021), the respondent authority
taking note of the fact that the principal
ground for seeking permission was that the
land in question was situate at a distance of
50 kms from the place where she was
residing with her husband, has held that the
petitioner had not produced any certificate
from the Gram Pradhan to the effect that no
person in the village belonging to the
category of Scheduled Caste/Scheduled
Tribe was ready to purchase the property in
question and that consequent to the sale
transaction, the petitioner will be left with
no land and would become landless. In the
light of the aforesaid fact, the respondent
authority has arrived at a conclusion that
merely the reason that the land in question
was situate at a distance of 50 kms from the
place where the petitioner was residing
would not be a valid ground for grant of
permission under Section 98 of the Code,
2006.

20. In the case of Shiv Narayan (Writ
C no. 31010 of 2021), the contention of the
petitioner that the land in respect of which
permission was sought was at a distance of
18 kms from the place where he was
residing has been taken note of by the
respondent authority and in this case also it
has been held that since the petitoner had
not produced any certificate from the Gram
Pradhan to the effect that no person in the
village
belonging
to
Scheduled
Caste/Scheduled
Tribe
was
ready
to
purchase the property in question, the
requisite permission could not be granted
only for the reason that the land in question
was situate at a distance of 18 kms from the
place of residence of the petitioner.

21. The requirement of submission of
a certificate from the Gram Pradhan that no
person in the village belonging to the
category of Scheduled Caste/Scheduled
Tribe was ready to purchase the property in
question is not one of the conditions
specified under Section 98 of the Code,
2006 read with sub rule (8) of Rules 99 of
the Rules, 2016, and therefore, the same
cannot be said to be a condition precedent
for the purpose of grant of permission
under Section 98 of the Code, 2006.

22. As per the statutory scheme laid
down 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

23. In this regard, it would be relevant
to reiterate the view taken by this Court in
the case of Sitaram (supra) to the effect
12 All. Smt. Omwati Vs. Collector, District Pilibhit & Ors.
465
that 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.

24. The authority while exercising the
discretionary power in a case where the
discretion of the authority has been
structured while laying down specific
conditions would be required to exercise
the discretionary power taking into account
only the relevant considerations and
disregarding the consideration which are
irrelevant.

25. The legal position in this regard has
been summarised in the case of Sitaram by
referring to the decisions in R. vs. St Pancras
Vestry4, Associated Provincial Picture
Houses,
Ltd.
vs.
Wednesbury
Corporation5, Padfield And Others vs.
Minister of Agriculture, Fisheries And
Food
And
Others6
and
Breen
vs.
Amalamated
Engineering
Union
And
Others7. The relevant observations made in
the case of Sitaram are being extracted below:-

"21.
The
"irrelevant
considerations" doctrine was stated by
Lord Esher MR in R. vs. St Pancras
Vestry 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
Corporation wherein 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
into account matters which it ought not to
take into account, or, conversely, has
refused to take into account or neglected to
466 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

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.

27. In both the writ petitions, the
matter is remitted to the Collector 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 applications
of the petitioners 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.

28. The writ petitions are allowed to
the extent indicated above.
----------
12 All. Sugreev Nishad Vs. State of U.P.
467
(2022) 12 ILRA 467
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2020

BEFORE

THE HON'BLE ASHOK KUMAR, J.

Criminal Misc. Anticipatory Bail Application No.
4502 of 2020
(U/S 438 CR.P.C.)

Sugreev Nishad ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Vinay Kumar Mishra

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 147, 148, 307, 353, 332,
333, 336, 341, 323, 504, 506 & 427 - The
Code of Criminal Procedure, 1973 -
Section 438 - Anticipatory Bail, Criminal
Law Amendment Act, 2013 - Section 7,
Prevention of Damages to Public Property
Act, 1984 - Section3/5

Illegal sand mining and transportation - sand
mafia - policies related to sand mining made by
government - violated with connivance of
officials of administration - lease - lease rent in
lieu of sand mining - illegal sand transported
operated by same lease holders - unregistered
vehicles.(Para - 15,17)

HELD:-Ordered senior officials of the Uttar
Pradesh government to verify facts, take
cognizance and immediate action, stop illegal
sand mining and transportation immediately,
and issue guidelines to all their subordinates
(subordinate officers) directing them to submit
to the government all details related to sand
mining under their respective jurisdictions every
month.(Para -18 )

Anticipatory bail application rejected. (E-7)
(Delivered by Hon'ble Ashok Kumar, J.)

1. प्रस्तुत आपरानधक प्रकीणम अनग्रम
जमाित प्राथमिा पत्र, आवेदक- सुग्रीव नििाद पुत्र
नशवकरि निवासी ग्राम कन्जासा, पुनलस स्ट्ेशि
घूरपुर, नजला प्रयागराज द्वारा अन्तगमत धारा 438
आपरानधक (आपरानधक प्रनिया संनहता) प्रस्तुत
की गई।

2. वाद के तथ्य इस प्रकार हैं नक नदिांक
10.05.2020 को समय मध्य रानत्र 12.40 बजे
जब उपनिरीक्षक सुनमत आिन्द मय हमराह के
मय वाहि यू.पी.70ए जी 1819 व यू.पी. 32 बी
जी 7510 थािा हाजा को यह सूचिा प्राप्त हुई की
उक्त थािे के क्षेत्रानधकार के अन्तगमत अवैध बालू
खिि व पररवहि नकया जा रहा है तो समस्त
पुनलस टीम यमुिा िदी के घाट पर दनबश देिे
पहुंची जहााँ पर पुनलस टीम को दो टरैक्टर पर
बालू लदी खड़ी प्राप्त हुई साथ ही आस-पास के
क्षेत्र पर भारी मात्रा में बालू डम्प करके टीले िुमा
स्थल नदखायी नदया व लगभग 10-15 व्यन्धक्त जो
उक्त बालू खिि व पररवहि से सम्बन्धन्धत थें
मौजूद नमले।

3. पुनलस टीम द्वारा खिि स्थल पर मौजूद
व्यन्धक्तयों से उिके िाम व पते पूाँछे गए नजस पर
उन्ोंिे अपिे िाम व वन्धियत का निम्न नववरण
नदयाः

1. गुलबदि नििाद पुत्र भुल्लि
नििाद, 2. मन्जीत नििाद पुत्र स्व० रामधिी, 3.
अनिल नििाद पुत्र स्व० रामधिी, 4. फूल चन्द्र
पुत्र स्व० बाबूलाल, 5. निममला नििाद पत्नी
राजाराम, 6. रमेश नििाद पुत्र राजाराम, 7.
नदिेश नििाद पुत्र स्व० रामािुज, 8. प्रवीण
नििाद पुत्र स्व० रामािुज, 9. सुग्रीव नििाद पुत्र
नशवकरि, 10. धमेन्द्र नििाद पुत्र स्व० रामकरि
समस्त नि० गण ग्राम कन्जासा थािा घूरपुर
जिपद प्रयागराज।