# Suresh Singh v. Board of Revenue & Ors

- **Citation:** (2014) 1 ILRA 474
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-02
- **Case number:** Civil Misc. Writ Petition No. 11589 of 2014
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-singh-v-board-of-revenue-ors-42882
- **Pages:** 7

## Headnote

U.P. Land Revenue Act, 1901-Section191-Transfer of case pending before
Additional
Commissioner
to
otherwithout having consent from concern
commissioner without notice to other
side-while
direction
for
expeditious
disposal already there-in absence of
procedure to deal with transfer casesprovisions of section 24 CPC be followedorder entailing civil consequences can
not
be
passed-Board
exceeded
its
jurisdiction while transfer application
already filed before commissioner and
comments sought from concern Courtheld-such order arbitrary and illegal.-
quashed.

Held:Para-24
It is settled principle of law that justice
should not only be done, but it appears to
have been done. The manner in which the
learned
Member
Board
of
Revenue
proceeded to decide the transfer application
cannot be said to be a fair and transparent
particularly in the circumstances when the
transfer application has been allowed on
the allegation of the malafide.

Case Law Discussed:
(1957) 1 All ER 49 p. 53: 1957 AC 436(HL);
AIR 1967 SC 1877; AIR 1989 SC 317; AIR
1989 SC 159 Page 162; (2004) 6 SCC 254
Page 259; (1978) 1 SCC 248:(1978) 2 SCR
621; (1998(8) SCC 1; (2005(6) SCC 321);
((2007) 6 SCC 668); (2008(3) ESC 433(SC).

## Text

474 INDIAN LAW REPORTS ALLAHABAD SERIES

certainly amenable to writ jurisdiction of
this Court. Consequently, preliminary
objection is overruled.

21. Sri Alok Mathur, Counsel for the
respondent is directed to file counter
affidavit within three weeks. List thereafter.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 11589 of 2014

Suresh Singh............................ Petitioner
Versus
Board of Revenue & Ors.......Respondents

Counsel for the Petitioner:
Dr. Vinod Kumar Rai, Sri Ashok Kumar
Singh

Counsel for the Respondents:
C.S.C.

U.P. Land Revenue Act, 1901-Section191-Transfer of case pending before
Additional
Commissioner
to
otherwithout having consent from concern
commissioner without notice to other
side-while
direction
for
expeditious
disposal already there-in absence of
procedure to deal with transfer casesprovisions of section 24 CPC be followedorder entailing civil consequences can
not
be
passed-Board
exceeded
its
jurisdiction while transfer application
already filed before commissioner and
comments sought from concern Courtheld-such order arbitrary and illegal.-
quashed.

Held:Para-24
It is settled principle of law that justice
should not only be done, but it appears to
have been done. The manner in which the
learned
Member
Board
of
Revenue
proceeded to decide the transfer application
cannot be said to be a fair and transparent
particularly in the circumstances when the
transfer application has been allowed on
the allegation of the malafide.

Case Law Discussed:
(1957) 1 All ER 49 p. 53: 1957 AC 436(HL);
AIR 1967 SC 1877; AIR 1989 SC 317; AIR
1989 SC 159 Page 162; (2004) 6 SCC 254
Page 259; (1978) 1 SCC 248:(1978) 2 SCR
621; (1998(8) SCC 1; (2005(6) SCC 321);
((2007) 6 SCC 668); (2008(3) ESC 433(SC).

(Delivered by Hon'ble Ran Vijay Singh, J.)

1. Heard Dr. V.K.Rai, along with Sri
Ashok Kumar Singh, learned counsel for
the petitioner and the learned standing
counsel for the respondents.

2. Considering the facts of the case
the writ petition is taken up for final
disposal without issuing notice to the
private respondent with liberty to him to
file an application seeking variation/
recall /modification of the order which is
going to be passed.

3. This writ petition has been filed
with the following prayer:

I)Issue a writ of certiorari to quash
the order dated 21.2.2014 passed by
respondent no.1 in transfer application no.
597 (LR2001-14 (Kailash Nath Singh vs.
Suresh);

II)issue a writ of mandamus directing
to the respondent no.2 to decide the
appeal no.2 of 2009 Suresh Singh versus
Uday
Chand
Singh
and
others,
expeditiously.

III)Any other relief order and direction,
which this Hon'ble Court may deem fit and
proper
in
the
interest
of
justice..
1 All] Suresh Singh Vs. Board of Revenue & Ors.

475

IV)Costs of the petition be awarded
to the petitioners.

On 24.10.2014 this Court has passed
the following order:

"Heard Dr. Vinod Kumar Rai along
with Sri Ashok Kumar Singh, learned
counsel for the petitioner.

While
assailing
the
impugned
transfer order 21.1.2014 passed by the
learned Member Board of Revenue in
Transfer Application No. 597/LR/201314, learned counsel for the petitioner
contends that the transfer was sought by
the otherside on the basis of malafide
against
the
learned
Additional
Commissioner. The learned Member
Board
of
Revenue
without
having
comment of the learned Additional
Commissioner and without there being
any notice to the petitioner has passed the
impugned order. In his submissions,
earlier on 7.5.2013, a direction was issued
by this Court in Writ-C No. 16790 of
2013 (Kailash Nath and another Vs. State
of U.P. and others) to decide the appeal
expeditiously. The other side, after this
order was passed, has filed transfer
application for transferring the case from
the court of Additional Commissioner. On
that, comment was sought for by the
Commissioner
from
the
Additional
Commissioner. Pending that, he has filed
another transfer application before the
Board of Revenue, on which impugned
order has been passed.

Learned Standing Counsel is directed
to get the entire records of Transfer
Application
No.597/LR/2013-14
and
Transfer Application No. 65.

Put up on 4th March, 2014 as fresh
as first case."

4. On 11.3.2014 learned standing
counsel has produced the record.

5. The facts giving rise to this case are
that vide order dated 21.1.2014 passed on
transfer application 597/LR/2013-14 (Kailash
Nath Singh vs. Suresh Singh), learned
Member Board of Revenue has allowed the
transfer application and transferred Appeal
No. 2 of 2009 (Suresh Singh vs. Kailash
Singh and others) from the court of Additional
Commissioner, Varanasi Division Varanasi,
(the respondentno.2) to the Court of
Commissioner, Varanasi Division, Varanasi,
respondent no.3. The transfer was sought on
the allegation that the behaviour of the learned
Additional Commissioner was such as if he
was siding with the other side with the further
allegation that the respondent no.2 has got
interpolated the record by calling the
appellant, Suresh Singh (the petitioner) in his
chamber and in this way the respondent
applicant became confident that in case the
matter is heard by the respondent no.2
injustice may be done to the contesting
respondent no.4, namely, Kailash Singh.

6. Learned Member Board of
Revenue by the impugned order believing
the allegation made in the transfer
application true, has allowed the transfer
application without there being any notice
or opportunity of hearing to the petitioner
as well as the respondent no.2.

7. It is stated that with respect to the
aforesaid pending case before the court
below this Court was earlier approached
through Writ-C No. 16790 of 2013 (Kailash
Singh and others vs. State of U.P. And
others) and this Court Court has disposed of
the writ petition vide order dated 7.5.2013
with the direction to the respondent no.2 to
decide the appeal expeditiously without
476 INDIAN LAW REPORTS ALLAHABAD SERIES

granting unnecessary adjournment to the
learned counsel for the parties.

8. It appears after the aforesaid order
was produced before the respondent no.2, he
has proceeded to decide the appeal. The
respondent with a view to delay the
proceeding has filed Transfer Application No.
65 before the respondent no. 3. On this
transfer application the respondent no.3 has
sought comments of the respondent no.2
fixing 10.12.2014. It is stated in paragraph 7
of the writ petition that respondent no.2 has
sent his comment to the respondent no.3. A
copy of the transfer application and the
comment of the respondent no.2 has been
brought on record as Annexure 4 to the writ
petition. It is stated in paragraph no. 8 of the
writ petition that concealing the material facts
respondent no.4 has filed another transfer
application No. 59 /2013-14 before the
learned Member Board of Revenue which has
been allowed by the impugned order.

9. Submission of the learned counsel
for the petitioner is that the impugned
order is unsustainable in the eye of law as
the same has been passed without
affording an opportunity of hearing to the
petitioner. In his submission the transfer
application ought ought to have been
rejected for the reason that the respondent
no.4 has filed transfer application No. 65
before the respondent no.3 which is still
pending and concealing this fact second
transfer application was filed.

10. On this fact normally this Court
would have issued notice to the contesting
respondent but considering the nature of
the order which has been passed in a
summary proceeding inviting of the
counter affidavit will unnecessarily delay
the disposal of the appeal on merit either
by respondent no.2 or by respondent no.3,
therefore the case is taken up for final
disposal with the consent of the learned
counsel representing the parties.

11. The basic question which
requires address of this Court is as to
weather this kind of order can be
sustained in the eye of law in which
allegation has been made against the court
by the party seeking transfer of case and
the learned Member Board of Revenue
without inviting comment of the court
concerned and without affording an
opportunity of hearing to the other side
can pass such type of order.

12.

Learned
standing
counsel
appearing for the State submitted that from
the perusal of the impugned order and the
record available with him perhaps he cannot
defend the order to the extent to which the
same has been passed without affording
opportunity of hearing but simultaneously
he has also submitted that while allowing
the transfer application since no comment
has been made either against the respondent
no.2 against whom allegation has been
made or against the petitioner, therefore,
considering the nature of the proceeding
which is summary in nature as no prejudice
has been caused to the parties as substantial
justice has been done to them, therefore,
this Court should not interfere with the
impugned order.

13. Section 191 and 192 of the U.P.
Land Revenue Act, 1901 (hereinafter
referred to as the Act) empowers the
Collector/Commissioner/Board of Revenue
to transfer the case from one revenue court
to another revenue court.

"191.
Power
of
Board
or
Commissioner to transfer cases. - The
Board or a Commissioner may transfer
1 All] Suresh Singh Vs. Board of Revenue & Ors.

477
any case or proceeding arising under the
provisions of this Act, including a
partition case, from any subordinate
Revenue Court or Revenue Officer to any
other Court or officer competent to deal
therewith.

192. Power to transfer cases to and
from subordinates.- The Collector, an
Assistant Collector in charge of a subdivision of district, a Tahsildar, a Record
Officer, or a Settlement Officer may make
over any case or class of cases arising under
the provisions of this Act or otherwise, for
inquiry or decision, from his own file to any
of his subordinates competent to deal with
such case or class of cases; or may
withdraw any case or class of cases form
any Revenue Officer subordinate to him and
may deal with such case or class of cases
himself or refer the same for disposal to any
other such Revenue Officer competent to
deal therewith."

14. On being confronted as to
weather there is any rule or any provision
in the Revenue Court Manual how to
decide the transfer application filed either
before the Board of Revenue or Collector/
Assistant Collector/ Incharge of Division,
learned standing counsel states that
neither there are any rule nor any
provision under the Revenue Court
Manual which prescribe method to decide
the transfer application. Learned counsel
for the petitioner also joins hand with the
learned standing counsel in this regard.

15. The question would be in
absence of any procedure prescribed
under the rules what procedure should
have been adopted by the Court while
dealing with the transfer application where
transfer has been sought on the ground of
mala fide against the court concerned.

16. It is well settled principles of
interpretation of the statutes that for
achieving the aim and objects of the statute if
there are other pari materia statutes then with
a view to make the statute workable, help of
other statutes may be taken. Such type of
extension of the rule is always permissible,
as stated by Lord Mansfield "where there are
different statutes in pari materia though made
at different times, or even expired, and not
referring to each other, they shall be taken
and construed together as one system and as
explanatory of each other." A.G. v. HRH
Prince Ernest Augustus of Hanover, (1957) 1
All ER 49, p. 53 : 1957 AC 436 (HL). This
view has been followed by the Apex Court in
the case of Shah & Co. Bombay Vs. State of
Maharashtra, AIR 1967 SC 1877, Sirsilk
Ltd. Vs. Textiles Committee A.I.R. 1989 SC
317, Jugul Kishore Vs. State of Maharashtra,
AIR 1989 SC 159 Page 162 and Kusum
Ingots and Alloys Ltd. vs. Union of India,
(2004) 6 SCC 254 Page 259 and in many
other cases. In these judgments the Apex
Court has taken the view that statute on the
same point, pari materia have to be read in a
complementary manner so that they do not
create contradictions while operating in the
same field.

17. As has been noticed since there
is no provision how to deal with transfer
application filed either under section 191
or 192 of the Act therefore provisions
contained in Section 24 of the Civil
Procedure Code, which is meant for
transferring the cases from one court to
another court on principle can be made
applicable, which reads as under:

"24. General power of transfer and
withdrawal.-(1) On the application of any
of the parties and after notice to the
parties and after hearing such of them as
desire to be heard, or of its own motion
478 INDIAN LAW REPORTS ALLAHABAD SERIES

without such notice, the High Court or the
District Court may at any stage.

(a) Transfer any suit,, appeal or other
proceeding pending before it for trial or
disposal to any Court subordinate to it and
competent to try or dispose of the same, or

(b) Withdraw any suit, appeal or
other proceeding pending in any Court
subordinate to it, and

(i) Try or dispose of the same, or

(ii) Transfer the same for trial or
disposal to any Court subordinate to it and
competent to try or dispose of the same;
or

(iii) Retransfer the same for trial or
disposal to the Court from which it was
withdrawn.

(2) Where any suit or proceeding has
been transferred or withdrawn under subsection (1), the Court which is thereafter
to try or dispose of such suit or
proceeding may, subject to any special
directions in the case of an order of
transfer, either re-try it or proceed from
the point at which it was transferred or
withdrawn.

(3) For the purpose of this section--
(a) Courts of Additional and Assistant
Judges shall be deemed to be subordinate
to the District Court; (b) "proceeding"
includes a proceeding for the execution of
a decree or order.

(4) The Court trying any suit
transferred or withdrawn under this
section from a Court of Small Causes
shall, for the purposes of such suit, be
deemed to be a Court of Small Causes.

(5) A suit or proceeding may be
transferred under this section from a
Court which has no jurisdiction to try it.

18. It would transpire from the bare
reading of sub-section (1) of Section 24 of
the Civil Procedure Code that after receipt
of transfer application the court has to
issue notice to the parties only after
hearing them order has to be passed.
However, in some cases the court on its
own wish can transfer a case without
notice but when order is to be passed after
notice or without notice this has not been
elaborated. I am of the opinion that in a
situation where the court is passing an
order transferring the case on his own
motion in that eventuality notice is not
required but when the transfer is sought
on the ground of malafide certainly
without having comment of the court
concerned against whome malafide was
made and hearing the affected parties
transfer application cannot be allowed.

19. Here in this case since the
transfer has neither been sought on the
administrative
ground
nor
personal
inconvenience of the person concerned
but on the basis of the allegations made
against the presiding officer, therefore,
the learned Member, Board of Revenue,
in my view, has erred in allowing the
application without having comment of
the
respondent
no.2
against
whom
allegation was made without verifying the
genuineness of the grounds taken in the
transfer application and also without there
being any notice to the other side.

20. The matter may be examined
from another angle also. The Apex Court
in the case of D.K.Yadav Vs. J.M.A.
Industries Ltd. ( 1993,SCC 259 ) has
made the following observations:

"The cardinal point that has to be
borne in mind, in every case, is whether
the person concerned should have a
reasonable opportunity of presenting his
case and the authority should act fairly,
1 All] Suresh Singh Vs. Board of Revenue & Ors.

479
justly, reasonably and impartially. It is not
so much to act judicially but is to act
fairly, namely, the procedure adopted
must be just, fair and reasonable in the
particular circumstances of the case. In
other words application of the principles
of natural justice that no man should be
condemned unheard intends to prevent the
authority from acting arbitrarily effecting
the rights of the concerned person."

21. In State of Orissa Vs. (Misss)
Birapani Dei (1967 AIR S.C. 1269)
Hon'ble Apex Court has held that even an
administrative order which involves civil
consequences must be made consistently
with the rules of natural justice. The
person concerned must be informed of the
case, the evidence in support thereof
supplied and must be given a fair
opportunity to meet the case before an
adverse decision is taken. Since no such
opportunity was given it was held that
superannuation was in violation of
principles of natural justice.

22. In Maneka Gandhi Vs. Union of
India (1978) 1 SCC 248: (1978) 2 SCR
621 a Bench of seven judges of the Apex
Court has held that the substantive and
procedural laws and action taken under
them will have to pass the test under
article 14. The test of reasons and justice
cannot be abstract. They cannot be
divorced from the needs of the nation.
The tests have to be pragmatic otherwise
they would cease to be reasonable. The
procedure prescribed must be just, fair
and reasonable even though there is no
specific provision in a statute or rules
made thereunder for showing cause
against action proposed to be taken
against an individual, which affects the
right of that individual. The duty to give
reasonable opportunity to be heard will be
implied from the nature of the function to
be performed by the authority which has
the power to take punitive or damaging
action. Even executive authorities which
take administrative action involving any
deprivation of or restriction on inherent
fundamental rights of citizens, must take
care to see that justice is not only done
but manifestly appears to be done. They
have a duty to proceed in a way which is
free from even the appearance of
arbitrariness,
unreasonableness
or
unfairness. They have to act in a manner
which is patently impartial and meets the
requirement of natural justice.

23. This view has been consistently
followed by the Hon'ble Apex Court in
number
of
cases
namely,
Whirlpool
Corporation vs. Registrar of Trade Marks
(1998 (8) SCC 1, Canara Bank vs.
V.K.Awasthy
(2005
(6)
SCC
321),
Bidhannagar (Salt Lake) Welfare Ass. vs.
Central Valuation Broad and Others ((2007)
6 SCC 668) and Devdutt vs. Union of India
and others (2008(3) ESC 433(SC).

24. It is settled principle of law that
justice should not only be done, but it
appears to have been done. The manner in
which the learned Member Board of
Revenue proceeded to decide the transfer
application cannot be said to be a fair and
transparent
particularly
in
the
circumstances
when
the
transfer
application has been allowed on the
allegation of the malafide.

25. Learned Member, Board of
Revenue was exercising power of the
court and in court proceeding this kind of
order can never be passed particularly in
the circumstances when relief has been
sought on the ground of malafide against
the court.
480 INDIAN LAW REPORTS ALLAHABAD SERIES

26. In view of the foregoing
discussions I am of the considered
opinion that the impugned order dated
21.1.2014 passed by respondent no. 1 on
the Transfer Application No. 597 (LR2001-14) Kailash Nath Singh vs. Suresh)
is an illegal, arbitrary order, not inspiring
faith in judicial system having colour of
insolency, therefore, it is hereby quashed.
The writ petition succeeds and is allowed.

27. Learned Member, Board of
Revenue is directed to pass a fresh order
in accordance with law only after having
comment of respondent no.2 and hearing
the petitioner, if possible within a period
of three months from the date of
production of a certified copy of the order
of this Court without granting any
unnecessary
adjournment
of
learned
counsel appearing for the parties. In case
any adjournment is sought that may be
granted only after imposing cost with the
direction to deposit the same by the next
date fixed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2014

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No. 12102 of 2011

C/M Major Asharam Inter College, Merruet &
Anr. Petitioners
Versus
Regional Committee & Ors. Respondents

Counsel for the Petitioners:
Sri Indra Raj Singh, Sri R.P. Singh
Sri R.P. Mishra, Sri Ram Gopal Tripathi

Counsel for the Respondents:
C.S.C., Sri S.P. Singh
Constitution of India, Art.-226-Validity of
order passed by Regional Committeechallenged-on ground admitted election
held on 17.06.05-term of management is
five years-after recognition by DIOS of
resolution dated 25.06.07 management
enrolled 150 new members as per scheme
of administration of clause of membership
fee can be deposited only through bank
draft-admittedly membership fee deposited
by case-held as per D.B. Judgment of Shiv
Nath Singh case-as well as per clause of 7
of administration-those 150 members can
not participate in election-warrants no
interference with order of Regional level
committee-petition dismissed.

Held:Para-
In view of the law laid down in the said
case and also in view of admitted facts of
this case, this Court finds that the
procedures laid down in Clause-7 of the
Scheme of Administration has not been
followed in the present case.

Case Law Discussed:
[2008(89) ADJ 540 (DB)]

(Delivered by Hon'ble Pradeep Kumar Singh
Baghel, J.)

1. The petitioners have preferred this
writ petition for quashing the orders dated
03.07.2010 and 29.01.2011, passed by
respondent nos. 2 and 1, whereby the
membership of 150 newly enrolled members
have been rejected by the Regional Level
Committee and a direction has been issued for
holding a fresh election.

2. The brief facts of the case are that
Major Asharam Inter College, Ganeshpur,
Meerut (for short, "the institution"), is a
recognized institution, which receives aid
out of State fund and thus the provisions
of U.P. Intermediate Education Act, 1921
and the U.P. High School & Intermediate
College (Payment of Salaries of Teachers
and other Employees Act, 1971), are