# Ahmad Ali Khan v. State Of U.P. & Ors

- **Citation:** (2025) 9 ILRA 520
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-25
- **Case number:** Writ C No. 61072 of 2012
- **Bench:** Shekhar B. Saraf, Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahmad-ali-khan-v-state-of-u-p-ors-53922
- **Pages:** 17

## Headnote

Mr. Arimardan Singh Rajpoot, Mr. Shashi
Prakash Singh, Mr. Chandra Prakash Yadav

ISSUE FOR CONSIDERATION
Whether the Sub-Registrar was justified
in refusing registration of an agreement to
sell
relating
to
a
bungalow
(superstructure) on Old Grant land in
Meerut
Cantonment
without
prior
permission/NOC from the Defence Estates
Officer/Central Government, and whether
such refusal can be challenged directly
under Article 226 without exhausting the
statutory appeal under Section 72 of the
Indian Registration Act, 1908.

HEADNOTE
Cantonment Land Administration Rules, 1937 -
Rules 2(c) & 15 - GGO No. 179 dated
12.09.1836 - Old Grant property - Agreement
to sell of superstructure standing on defence
land - Registration refused for want of prior
permission - Superstructure cannot be treated
as a separate entity from the defence land -
"building site" includes the building together
with open ground/courtyard adjacent thereto -
attempt to register agreement to sell without
prior permission is a colourable device to do
indirectly what is directly prohibited - such
agreement contemplates eventual transfer of
possession and incidents of ownership and is
impermissible
without
sanction
of
Central
Government - refusal by Sub-Registrar is in
strict compliance with Division Bench directions
dated 28.08.2010 and State Circular dated
21.02.2011 - refusal order is appealable under
Section 72 of the Registration Act, 1908 -
alternative and efficacious statutory remedy
available - direct writ petition not maintainable
- petition dismissed.
HELD
Petitioner purchased Old Grant rights for
Bungalow No.132, Meerut Cantonment vide sale
deed executed by the heir of the recorded
holder of occupancy rights. Petitioner entered
into an agreement to sell and applied for
registration of the said agreement, on which
objections were raised by the Sub-Registrar
citing absence of prior permission/NOC from the
Defence
Estate
Officer.
Held:
Land
of
Cantonment Board cannot be sold without prior
permission of the Central Government/Defence
9 All. Ahmad Ali Khan Vs. State of U.P. & Ors.
521
Estate Officer as provided under Rule 15 of the
Cantonment Land Administration Rules, 1937.
General
Order
No.179
dated
12.09.1836
provides that the property of the Government
cannot be sold by the grantee, but houses or
other property situated thereon may be
transferred subject to restrictions. Under the
law, the petitioner cannot transfer any land
without the prior permission of the Central
Government. The superstructure in question
was on defence land and cannot be treated as a
separate entity. An agreement which, in
substance, transfers possession, consideration
and incidents of ownership without prior NOC is
a
colourable
action,
void
ab
initio
and
unenforceable.
The
Sub-Registrar
refused
registration of the agreement to sell, which is a
step preceding execution of the sale deed of the
house and the land attached thereto. The
rejection was based on Government orders and
the judgment of this Court directing that
property belonging to Cantonment Board shall
not be registered until prior permission is
obtained from the competent authority. Further,
against the refusal order, a statutory remedy is
available under Section 72 of the Registration
Act to file an appeal, and thereafter a suit may
be instituted under Section 77. Writ petition not
maintainable. (E-5)

CASE LAW CITED
Chief Executive Officer v. Surendra Kumar Vakil,
(1999) 3 SCC 555;
Chitra Kumari v. Union of India, (2001) 3 SCC
208;
Shital Parshad Jain v. Union of India, AIR 1991
Del 253;
Cantonment Board, Varanasi v. State of U.P.,
Writ-C
No.12897
of
2008,
decided
on
28.08.2010;
Virendra Kumar v. State of U.P., PIL No.74227
of 2010, decided on 22.12.2010.)

List of Acts
Cantonments Act, 1924; Cantonments Act,2006.
Registration Act, 1908;
Transfer of Property Act, 1882;
Indian Contract Act, 1872;
Cantonment Land Administration Rules, 1937;
General Order No.179 dated 12.09.1836;

Lis

## Text

_Characters 0–39,696 of 54,841. This is a partial read: ask again with offset=39696 for what follows._

520 INDIAN LAW REPORTS ALLAHABAD SERIES
any further, comply with the findings
recorded hereinabove and thereafter will
proceed to carry out any determination in
accordance with law in the light of what
has been stated hereinabove before taking
any other step.

122. It goes without saying that the
petitioner as well as any other person
claiming rights through the Tenure Holder
or independently will have a right to
exercise the choice of plots falling in their
share with regard to which the Prescribed
Authority shall be obliged to give an
opportunity for the same as was already
indicated by the Prescribed Authority itself
in the order dated 28.02.1995.

123. Needless to mention that this
order
shall
stand
recorded
in
the
proceedings and shall also be reflected in
all the concerned revenue records for
compliance. The Petition stands allowed in
the above terms with liberty to the
Prescribed Authority to proceed as directed
above. No order as to costs.
----------
(2025) 9 ILRA 520
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2025

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Writ C No. 61072 of 2012

Ahmad Ali Khan ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Vinayak Mithal

Counsel for the Respondents:
Mr. Arimardan Singh Rajpoot, Mr. Shashi
Prakash Singh, Mr. Chandra Prakash Yadav

ISSUE FOR CONSIDERATION
Whether the Sub-Registrar was justified
in refusing registration of an agreement to
sell
relating
to
a
bungalow
(superstructure) on Old Grant land in
Meerut
Cantonment
without
prior
permission/NOC from the Defence Estates
Officer/Central Government, and whether
such refusal can be challenged directly
under Article 226 without exhausting the
statutory appeal under Section 72 of the
Indian Registration Act, 1908.

HEADNOTE
Cantonment Land Administration Rules, 1937 -
Rules 2(c) & 15 - GGO No. 179 dated
12.09.1836 - Old Grant property - Agreement
to sell of superstructure standing on defence
land - Registration refused for want of prior
permission - Superstructure cannot be treated
as a separate entity from the defence land -
"building site" includes the building together
with open ground/courtyard adjacent thereto -
attempt to register agreement to sell without
prior permission is a colourable device to do
indirectly what is directly prohibited - such
agreement contemplates eventual transfer of
possession and incidents of ownership and is
impermissible
without
sanction
of
Central
Government - refusal by Sub-Registrar is in
strict compliance with Division Bench directions
dated 28.08.2010 and State Circular dated
21.02.2011 - refusal order is appealable under
Section 72 of the Registration Act, 1908 -
alternative and efficacious statutory remedy
available - direct writ petition not maintainable
- petition dismissed.
HELD
Petitioner purchased Old Grant rights for
Bungalow No.132, Meerut Cantonment vide sale
deed executed by the heir of the recorded
holder of occupancy rights. Petitioner entered
into an agreement to sell and applied for
registration of the said agreement, on which
objections were raised by the Sub-Registrar
citing absence of prior permission/NOC from the
Defence
Estate
Officer.
Held:
Land
of
Cantonment Board cannot be sold without prior
permission of the Central Government/Defence
9 All. Ahmad Ali Khan Vs. State of U.P. & Ors.
521
Estate Officer as provided under Rule 15 of the
Cantonment Land Administration Rules, 1937.
General
Order
No.179
dated
12.09.1836
provides that the property of the Government
cannot be sold by the grantee, but houses or
other property situated thereon may be
transferred subject to restrictions. Under the
law, the petitioner cannot transfer any land
without the prior permission of the Central
Government. The superstructure in question
was on defence land and cannot be treated as a
separate entity. An agreement which, in
substance, transfers possession, consideration
and incidents of ownership without prior NOC is
a
colourable
action,
void
ab
initio
and
unenforceable.
The
Sub-Registrar
refused
registration of the agreement to sell, which is a
step preceding execution of the sale deed of the
house and the land attached thereto. The
rejection was based on Government orders and
the judgment of this Court directing that
property belonging to Cantonment Board shall
not be registered until prior permission is
obtained from the competent authority. Further,
against the refusal order, a statutory remedy is
available under Section 72 of the Registration
Act to file an appeal, and thereafter a suit may
be instituted under Section 77. Writ petition not
maintainable. (E-5)

CASE LAW CITED
Chief Executive Officer v. Surendra Kumar Vakil,
(1999) 3 SCC 555;
Chitra Kumari v. Union of India, (2001) 3 SCC
208;
Shital Parshad Jain v. Union of India, AIR 1991
Del 253;
Cantonment Board, Varanasi v. State of U.P.,
Writ-C
No.12897
of
2008,
decided
on
28.08.2010;
Virendra Kumar v. State of U.P., PIL No.74227
of 2010, decided on 22.12.2010.)

List of Acts
Cantonments Act, 1924; Cantonments Act,2006.
Registration Act, 1908;
Transfer of Property Act, 1882;
Indian Contract Act, 1872;
Cantonment Land Administration Rules, 1937;
General Order No.179 dated 12.09.1836;

List of Keywords
Cantonment - Old Grant - Defence land -
Registration - Agreement to sell - Prior
permission - Defence Estate Officer - Building
site - Colourable transaction - Alternative
remedy - Maintainability of writ.

CASE ARISING FROM
Order
dated
26.10.2012
passed
by
Sub
Registrar IV, Sadar, Meerut refusing registration
of the agreement to sell

Appearances for Parties
Advs For Petitioner: Vinayak Mithal.
Advs For Respondents: Arimardan Singh
Rajpoot, Addl. C.S.C. for State; Shashi Prakash
Singh, Addl. Solicitor General of India, with
Chandra Prakash Yadav for Union of India.

(Delivered by Hon'ble Praveen Kumar
Giri, J.)

This is a writ petition under Article 226
of the Constitution of India, wherein the writ
petitioner has made the following prayers :

"(a) issue writ, order of direction
of in the nature of CERTIORARI calling for
the records and quashing the objection
raised
by
respondent
no.
3
dated
26.10.2012 (Annexure-1 to the present
writ petition).

(b) issue writ, order or direction
in
the
nature
of
MANDAMUS
commanding
the
respondent
no.3
to
register the instrument presented in his
office by the petitioner on 26.10.2012 for
registration
of
agreement-to-sell
with
respect to property described as Bungalow
No.132, Survey No.56, British Calvary
(B.C) Lines, Bungalow Area, Meerut
Cantt."

FACTS

2. The factual matrix of the present
writ petition is delineated below :
522 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) The Sub Registrar, IV, Sadar,
Meerut vide order dated October 26, 2012
made
objections
in
registering
the
agreement to sale entered into by the
petitioner, Ahmad Ali Khan, with Sri Ajay
Gupta and Smt. Parul Gupta in respect of a
property known as Bungalow No.132,
Survey No.56, British Calvary (B.C.)
Lines, Bungalow Area, Meerut Cantt.
relying upon the decision of this Court in
Writ C No. 12897 of 2008 (Cantonment
Board, Varanasi vs. State of U.P. and
others) decided on 28.10.2010, PIL No.
74227 of 2010 (Virendra Kumar and
Others vs. State of U.P. and others) decided
on 22.12.2010 and the Circular issued by
the government of Uttar Pradesh dated
21.02.2011. The objection/letter dated
October 26, 2012 is quoted below :

"कार्ाालर् उप विबन्धक चिुर्ा, मेरठ

आपवि पची

महोदय,

आप द्वारा मेरे समक्ष चनबन्धन हेतु प्रस्तुत
चविय अनुबन्ध-पत्र जोचक बंगला नम्बर 132, सवे नम्बर 56
चिचर्श कैलवरी (बी०सी०) लाईन्स, बंगला एररया, मेरठ कैण्र् की
2994.23 वगभमी० भूचम से सम्बचन्धत है के सम्बन्ध में आपको
अवगत कराया जाता है चक ररर् याचिका संख्या-
12897/2008, कैण्र्ूनमेन्र् बोडभ, वाराणसी बनाम, उ०प्र०
सरकार व अन्य में मा०उच्ि० न्यायालय, इलाहाबाद द्वारा चदनांक
28-08-2010 को पाररत चनणभय आदेश व तत्पश्चात
पी०आई०एल संख्या 74227/2010, चवरेन्र कुमार व अन्य
बनाम उ०प्र० सरकार व अन्य में मा० उच्ि० न्यायालय, इलाहाबाद
द्वारा चदनांक 22-12-2010 को पाररत आदेश के अनुिम में
उ०प्र० शासन द्वारा जारी पत्र संख्या 523/ग्यारह-5-2011
चदनांक 21-02-2011 पर कायाभलय महाचनरीक्षक, चनबन्धन,
उ०प्र०, इलाहाबाद के पत्र संख्या 860/चवचध चनयम चदनांक 0403-2011 के चनदेशानुसार मेरठ कैण्र् में चस्थत सम्पचत्तयों के
अन्तरण से सम्बचन्धत चकसी भी प्रलेख जैसे चविय-पत्र, दान-पत्र,
पट्टा, इकरारनामा आचद का इस कायाभलय में चदनांक 03-032011 से चनबन्धन चबना मेरठ कैण्र् बोडभ, मेरठ / रक्षा सम्पदा
अचधकारी. मेरठ कैण्र् (जैसी भी चस्थचत हो) द्वारा जारी
एन०ओ०सी० / अनुमचत के नहीं चकया जा रहा है। अतः यचद आप
द्वारा प्रस्तुत प्रलेख के साथ मेरठ कैण्र् बोडभ, मेरठ/रक्षा सम्पदा
अचधकारी, मेरठ कैण्र् (यथा चस्थचत) की एन०ओ०सी०/ अनुमचत
होगी तो प्रलेख का चनबन्धन अवश्य चकया जायेगा। आपने अनुमचत
नहीं प्रस्तुत की है इसचलये कृपया सम्बचन्धत अनुमचत के साथ ही
प्रस्तुत करें तभी चनबन्धन की कायभवाही की जायेगी।

sd/- dated 26.10.2012

उप चनबन्धक ितुथभ

 मेरठ सदर, मेरठ"

(b) The petitioner has entered into
an agreement to sale of a property
belonging to the Union of India situated in
Cantonment
area
and
controlled
by
Cantonment Board. The petitioner itself has
admitted this fact in the agreement to sale.
The agreement to sale in question is being
quoted below :

"मविय-अनुबन्ध ।

टटाम्प शुकक : अंकन 90,000/- रूपये।

कब्जा मविय पत्र की रमजटरी के समय प्रदान मकया
जायेगा।

हम मक श्री अहमद अली खान पुत्र श्री अरशद अली
खान, मनवासी ग्राम कोताना, तहसील बडौत, मजला बागपत,
वतटमान मनवासी 305, हरी लक्ष्मी लोक, ईब्ज़ िॉमसंग, मेरठ
(उ०प्र०):-----------------------प्रथम पक्ष ।।

व

श्री अजय गुप्ता पुत्र टवगीय श्री आर०के० गुप्ता व
श्रीमती पारूल गुप्ता धमटपत्नी श्री अजय गुप्ता, मनवासीगण ए-2,
शास्त्रीनगर, मेरठ शहर :-: मद्वतीय पक्ष ।।

जो मक सम्पूणट बंगला नम्बर 132 सवे नम्बर 56
मिमटश कैलवरी (बी०सी०) लाईन्स, बंगला एररया, मेरठ कैन्ट
9 All. Ahmad Ali Khan Vs. State of U.P. & Ors.
523
मजसकी ओकड ग्रान्ट भूमम का क्षेत्रफल 2994.23 वगट मीटर है
मनम्न सीममत जो संलग्न मानमचत्र में लाल रंग से मदखलाया गया
है, के प्रथम पक्ष व्यमिगत टवामी एवं वाटतमवक अमधकारी हैं।
प्रथम पक्ष ने उपरोि बंगले को द्वारा मविय-पत्र मदनांक
18.05.2006 ई० को श्री तेजपाल मसंह चतरथ व श्रीमती
सुरजीत पुरी व श्रीमती कमल चढ््‌ढा से खरीद मकया था मक
मजसकी रमजटरी बही नम्बर 1 मजकद 1995 के सुफे
315/345 में नम्बर 214 पर मदनांक 11.01.2008 ई०
कायाटलय उप मनबन्धक चतुथट मेरठ हुई तथा उपरोि बंगला
आज की मतमथ तक प्रत्येक प्रकार के ऋण तथा भार आमद से
उऋण एवं वैधामनक त्रुमटयों तथा दोिों आमद से मुि तथा रमहत
है और प्रथम पक्ष को उसके मविय तथा हटतान्तररत आमद करने
के समटत टवाममत्व एवं अमधकार प्राप्त हैं. कोई वैधामनक त्रुमट
अथवा दोि प्रथम पक्ष के मविय अमधकारों में बाधक नहीं है।
प्रथम पक्ष ने उपरोि बंगले को मविय करने का अनुबन्ध मद्वतीय
पक्ष से अंकन 45,00,000/- रूपये (पैंतामलस लाख रूपये)
में तय कर मलया है और कुल मूकय के मध्ये अंकन
25,00,000/- रूपये (पच्चीस लाख रूपये) अमग्रम धनरामश
के रूप में प्रथम पक्ष ने मद्वतीय पक्ष से मनम्नप्रकार प्राप्त कर मलये
हैं। अतैः उभय पक्ष मनम्न मनयमों से बाध्य होते हैं :-

01. यह मक मद्वतीय पक्ष आज की मतमथ से एक विट
की अवमध के अन्तगटत उपरोि सम्पमत्त का मविय पत्र प्रथम पक्ष से
अपने अथवा अपने मनोनीत व्यमि के पक्ष में मनष्पामदत कराकर
रमजटरी करा लेंगे तथा अवशेि धनरामश मविय पत्र की रमजटरी के
समय चुकता कर देंगे और कब्जा मविय पत्र की रमजटरी के समय
प्रथम पक्ष मद्वतीय पक्ष से प्राप्त कर लेंगे, कोई आपमत्त नहीं होगी।

02. यह मक इस अनुबन्ध के द्वारा बंगले का मनमाटण
सम्पूणट रूप से तथा भूमम से सम्बमन्धत केवल ओकड ग्रान्ट अमधकारों
को मविय करने का अनुबन्ध मकया गया है. भूमम भारत सरकार की
ममलमकयत है इसमलए यह अनुबन्ध भूमम से सम्बमन्धत नहीं है।

03. यह मक मविय पत्र से सम्बमन्धत टटाम्प व फीस
आमद का समटत खचाट मद्वतीय पक्ष टवयं वहन करेंगे।

04. यह मक यमद उपरोि अवमध के अन्तगटत प्रथम
पक्ष मविय पत्र रमजटरी करने में कोई आपमत्त अथवा इंकार करेंगे तब
मद्वतीय पक्ष को मविय पत्र न्यायालय के द्वारा न्यायालय के खचे
समहत रमजटरी करा लेने का अमधकार प्राप्त होगा मजसमें प्रथम पक्ष
को कोई आपमत्त नहीं होगी।

05. यह मक सीमलंग की भूमम से म्बमन्धत जो मववाद
मवचाराधीन है उनके समाप्त हो जाने के उपरांत यथा प्रकार भूमम इस
अनुबन्ध के अन्तगटत समझी जायेगी।

06. यह मक मद्वतीय पक्ष के नाम पररवतटन का
प्राथटना-पत्र रक्षा सम्पदा अमधकारी के कायाटलय में मवचाराधीन है
उसकी कायटवाही प्रथम पक्ष लगातार करते रहेंगे और उस कायटवाही
को पूणट कराने में सहयोग करेंगे।

07. यह मक उभय पक्ष एवं उनके उत्तरामधकारी
उपरोि मविय अनुबन्ध के पाबन्द रहेंगे। अतैः यह मविय अनुबन्ध
मलख मदया मक प्रमामणत हो और उमचत समय पर उपयोगी हो। इमत
।।

सीमायें उपरोि सम्पमत्त :-

पूरब :
बंगला नम्बर 131.

पमश्चम :
बंगला नम्बर 133.

उत्तर :
सरकारी सडक मवख्यात बैरेक टरीट।

दमक्षण :
बंगला नम्बर 140.

मववरण प्रामप्त अमग्रम धनरामश :-

01. अंकन 5,00,000/- रूपये (पांच लाख
रूपये) प्रथम पक्ष ने मद्वतीय पक्ष से द्वारा चैक संख्या 167014
मदनांक 04.10.2011 ई० मौसूमा जम्मू एण्ड काममीर बैंक मल०
प्राप्त मकये।

02. अंकन 20,00,000/- रूपये (बीस लाख
रूपये) प्रथम पक्ष ने मद्वतीय पक्ष से द्वारा चैक संख्या 172694
मदनांक 09.07.2012 ई० मौसूमा जम्मू एण्ड काममीर बैंक मल०
प्राप्त मकये।

तहरीर तारीख : 26.10.2012 ईo मसमवदा श्री
देवेंर कुमार गगट, प्रलेखक, मेरठ ।"

CONTENTIONS
OF
THE
PETITIONER
524 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Learned counsel appearing on
behalf of the petitioner has made the
following submissions :

a. The petitioner had purchased
the old grant rights for Bungalow No.132,
Survey No.56, British Calvary (B.C.)
Lines, Bungalow Area, Meerut Cantt vide
sale deed dated 18.05.2006 executed by Sri
Tejpal Singh Chatrath, Smt. Surjeet Puri
and Smt. Kamal Chaddha who were the
recorded holders of occupancy right with
respect to the aforesaid Bungalow. The
petitioner entered into an agreement to sale
with Sri Ajay Gupta and Smt. Parul Gupta
on 26.10.2012 for total consideration of
Rs.45.00 lacs out of which the petitioner
has accepted Rs.25.00 lacs as advance
payment.
Petitioner
had
applied
for
registration of the said agreement to sale on
which objections were raised by the Sub
Registrar.

b. There is no provision in the
Registration Act, 1908 enabling the Sub
Registrar to deny the registration of any
deed, therefore, he cannot deny registering
the agreement to sale in favour of a third
person by the petitioner.

c. The petitioner is in possession
of the aforesaid Bungalow and as per the
agreement to sale, the possession will be
delivered to the vendees at the time of
execution of the sale deed. As per the
agreement to sale, the time period for
execution of the sale deed has been fixed to
be one year.

d. The agreement to sale is only
with respect to the superstructure upon the
land and there is no agreement to sale with
respect to the land. In fact, the petitioner
has admitted in the agreement to sale that
the land is in the ownership of the Central
Government and the agreement to sale does
not include the land and as such agreement
to sale has nothing to do with the land.

e. For the execution of such
agreement, no prior permission of the
Cantonment Board is required. However,
the Sub Registrar in view of the circular
dated 21.02.2011; circulated on 04.03.2011
has raised objection to the effect that the
document presented cannot be registered in
the absence of permission by the Defence
Estate Officer of the Cantonment Board,
Meerut.

f. The aforesaid circular is based
upon two Division Bench orders of this
Hon'ble Court which prohibit the execution
of a deed relating to land. There is no
prohibition with respect to the registration
of an instrument relating to an agreement to
transfer a superstructure. Hence, none of
the documents that form the basis of the
objections are applicable in the facts of the
present case.

g. A contract for sale is not
transfer and this is evident from the proviso
to Section 54 of the Transfer of Property
Act. Hence, registration of an agreement to
transfer does not imply the transfer of the
property
or
a
sale.
Under
such
circumstances, the instrument presented
before the Sub Registrar does not amount
to sale and as such is not barred. In fact,
Rules
have been
framed
under
the
Cantonment Act, 1924 that are called as
Transfer of Property in Cantonment (Form
of Notice and Manner of giving such
Notice) Rules, 1985 which provides that
only upon registration of the transfer of title
that notice is required to be given to the
Cantonment Board and not prior to getting
the instrument registered. The registered
instrument of transfer is to be provided to
9 All. Ahmad Ali Khan Vs. State of U.P. & Ors.
525
the Cantonment Board along with notice of
transfer. This is evident from perusal of
Rule 3 as well as from perusal of Form-A
provided for in the said Rules.

h. The Sub Registrar cannot
refuse to register the agreement to sale
inasmuch
as
the
document
becomes
compulsorily registrable as contemplated
under Section 17(1A) of the Registration
Act, 1908 (hereinafter referred to as 'the
Registration Act'), therefore, the Sub
Registrar has failed in his duty to register
the instrument and the objections raised by
the respondent no. 3 is dehors the statutory
provision contained under Section 17(1A)
of the Registration Act.

i. The Sub Registrar has misread
and misinterpreted the judgments and
orders of this Court, which relate only to
transfer of land. The case of transfer of land
is clearly distinguishable from a case of
transfer of super structure inasmuch as the
ownership of the land stands vested in the
Central Government and any transfer of
land by a private person without permission
or notice to the Central Government clouds
the title of the Central Government and as
such
prior
permission
or
notice
is
necessary. However, so far as transfer of
superstructure is concerned ownership
vests in the person to whom it was granted
and the ownership of the superstructure can
be transferred by a private arrangement. It
is for this reason that Rules have been
framed by the Cantonment to give notice of
such transfer after such transfer gets
affected.

j. In the present matter, it is not in
dispute that on the demise of the recorded
holder of occupancy rights in the year
1997, the legal heirs namely Capt. Tej Pal
Singh (son), Mrs. Surjeet Puri and Mrs.
Kanwal Chaddha (Daughters) had moved
an application for mutation which remained
pending at the end of the concerned
authorities. Thereafter, when the rights
came to be transferred to the petitioner
pursuant to the sale deed dated 18.05.2006,
the petitioner had also applied for mutation
vide his letter dated 10.04.2008. It is,
therefore, apparent that the onus casted
upon the petitioner was duly discharged by
him and nothing more remained to be done
on his part. In such a situation it does not
lie in the mouth of the respondents to allege
that there did not exist any valid title with
the petitioner to enter into an agreement to
sell. Such being the situation the agreement
to sell as executed by the petitioner in
faovur of Mr. Ajay Gupta and Mrs. Parul
Gupta is in accordance with the provision
of law which holds the field and any
inference to the contrary sought to be made
by the Defense Estate Officer is wholly
misconceived.

k. It is not the case of the
petitioner that the land is being sold by him
but it is only property standing upon the
land which is sought to be transferred by
the petitioner.

CONTENTIONS
OF
RESPONDENTS

4. Learned counsel appearing on
behalf of the respondents has rebutted the
arguments of the petitioners and made the
following submissions:

a. The petitioner has not obtained
the land in a legal manner as provided
under the law as without prior permission
of the Central Government, no property can
be transferred to any person as is provided
under Rule 15 of the Cantonment Land
Administration Rules, 1937 (hereinafter
526 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to as 'the Cantonment Rules,
1937').

b. No property can be transferred
without prior permission of the authority of
Cantonment Board/Central Government as
per Rule 15 of the Cantonment Rules, 1937
as well as the Circular Dated 21.01.2011
issued by Government of Uttar Pradesh and
the decisions of this Court.

c. The property in question
admeasuring 2994.23 sq.mtrs is held on
Old Grant Terms and recorded occupancy
holders of the premises are Major Jaswant
Singh Chatrath and Smt. Tirath Kaur, under
the management of Defence Estate Officer
Meerut Circle, Meerut Cantt.

d. On demise of recorded Holder
of Occupancy Rights during 1997 their
legal heirs, namely, Capt. Tejpal Singh
(son), Mrs Surjit Puri and Mrs Kanwal
Chadha (daughter) had applied for mutation
in their favour but before their names could
be recorded in the General Land Register
maintained by Defence Estate Officer,
Meerut, the said legal heirs transferred the
property to Shri Ahmed Ali Khan S/o
Arshad Ali Khan by virtue of sale deed
registered on 18.05.2006. Hence, their
request for mutation is also required to be
rejected due to violation of Old Grant
Terms. Through a general power of
attorney, Shri. Arshad Ali Khan, Shri
Ahmed Ali Khan applied for mutation of
property in his name vide letter dated
16.04.2008, which is still pending and the
property still stands recorded in the General
Land Register, Meerut Cantt in the names
of Major Jawant Singh Chatrath and Smt.
Tirath Kaur. However, Shri Ahmed Ali
Khan has submitted a registered admission
declaration
deed
dated
07.10.2008
admitting title of Govt. over the land and
trees standing thereon and also the term of
'Old Grant' under the General Order by the
Governor General in Council, No.179 dated
12.09.1836 (hereinafter referred to as 'the
GGO-179 dated 12.09.1836'). As per term
of 'Old Grant', prior permission for any
sale/purchase is needed.

e.
The
GGO-179
dated
12.09.1836 deals with grant of land in
cantonments. It is provided that in every
such case the property of the Government
could not be sold by the grantee but houses
or other property thereon situated could be
transferred subject to certain restrictions. It
further provided that the Government
retained the power to resume the land on
giving due notice and paying the value of
such
buildings
as
may
have
been
authorized to be erected thereon.

f. Such individuals, currently in
possession of the houses, are merely
grantees (licensees) or lessees of land with
absolutely no ownership rights on the land
that continues to vest with the Government
and the occupancy holders are permitted to
transfer their occupancy rights or leasehold
rights only of the authorized structures built
by them on such Government land subject
to certain terms and conditions which
includes prior permission as per Clause 6 of
GGO-179 dated 12.09.1836, in cases of all
Old Grant Properties.

g. The Delhi High Court in Shital
Parshad Jain v. Union of India and
others reported in AIR 1991 Del 253 has
held, that GGO 179 dated 12.09.1836 had
statutory force and is an existing law in
force.

h. The Supreme Court in Chief
Executive Officer v. Surendra Kumar
Vakil reported in 1999 (3) SCC 555, has
9 All. Ahmad Ali Khan Vs. State of U.P. & Ors.
527
held that the terms of the grant are
statutorily regulated under GGO-179 dated
12.09.1836. Further the Supreme Court in
Chitra Kumari v. Union of India and
others reported in (2001)3 SCC 208 has
taken notice that the GGO-179 dated
12.09.1836 is still in force.

i. In a Cantonment, covered
earlier under the Cantonments Act, 1924
and presently under the Cantonments Act,
2006 and for properties given on the Old
Grant Terms, the rights of ownership is
only of the super-structures, which, though
transferred by sale deed, needs to be
compulsorily recorded in the General Land
Register as the Holder of Occupancy
Rights in the first instance. Further, it is an
admitted
fact
that
the
land
within
Cantonment is either leased out or held on
Old
Grant
terms
belongs
to
the
Government of India, Ministry of Defence.
As such land tenure within Cantonments is
very different from what is prevalent and
commonly understood in Municipal areas.
The difference is explained in detail
hereinafter. For convenience and to arrive
at a just/fair conclusion, ALL LANDS
WITHIN
CANTONMENTS
ARE
OWNED BY THE GOVERNMENT OF
INDIA,
MINISTRY
OF
DEFENCE.
Hence, when a property is purchased within
a Cantonment only the superstructure can
be bought and sold, the rights of occupation
of land do not automatically get transferred
to the purchaser of the superstructure or
house property, thereon. The sale has to be
permitted by the Government of India,
Ministry of Defence prior to the purchase
and if all legal/statutory requirements are
fulfilled, as laid down in this connection,
then the Government of India, Ministry of
Defence recognizes the purchaser by
mutating his/her name in the GLR.

j. The municipal areas where
private land exists, sale/purchase of land
alongwith the building is a legally tenable
transaction. Thus, there the purchaser
becomes owner of both land and building
thereon. But not in the peculiar cases of
land within a Cantonment where only the
superstructure is sold and purchased. Even
this purchase is qualified by the fact that
Government of India, Ministry of Defence
should recognize this as per procedure
delineated herein before.

k. The refusal orders passed by
respondent nos.2 and 3 are in accordance
with law and also the order passed by this
Court in writ petition No.12897/2008
followed by the order passed in writ
petition (PIL) No.74227/2010.

l.
As
per
GGO-179
dated
12.09.1836 Old Grant rights cannot be
purchased/Transferred without obtaining
prior approval of Government of India,
Ministry of Defence. It is also stated that
Shri Tejpal Singh Chatrath, Smt. Surjit Puri
and Smt. Kamal Chaddha are till date not
the recorded Holder of Occupancy and the
Government
has
not
yet
sanctioned
mutation in their favour till date.

m. This Court in its order dated
28.08.2010 has clearly stated that "we
direct the Sub Registrar (Registration) not
to register any document and not to execute
any sale deed/lease deed", without there
being no objection or permission of
Defence Estates Officer. Therefore, the
agreement
to
sell
dated
26.10.2012
presented by the petitioner before the Sub
Registrar IV Meerut is null and void as it is
well
covered
under
the
legal
terminology/nomenclature used in the said
order of this Court.
528 INDIAN LAW REPORTS ALLAHABAD SERIES

n. The agreement to sell any
property tantamounts to sale subsequently
as per terms settled in the agreement. So, if
the sale deed or the lease deed cannot be
executed or registered by the Sub Register
without
obtaining
'no
objection'
or
'permission'
of
the
Defence
Estates
Officer, then the agreement to sell which is
a document prior to sale deed, cannot be
registered without obtaining No Objection
or permission of the Defence Estates
Officer as per direction given by this Court.
Therefore, the agreement to sell cannot be
registered by the respondent No.3.

o. The superstructure in question
is on defence land, and there is no material
on record to demonstrate that the said
construction was made after the permission
of the competent authority.

p. It is submitted that the orders
passed by this Court as stated in preceding
paragraphs, apply to the property of the
Cantonment Area even if the land is not
sold. The order dated 28.8.2010 directs the
Sub Registrar (Registration) not to register
any document and not to execute any sale
deed/lease deed of the land falling within
the
Cantonment
Board.
Usually
in
Cantonment Areas only superstructure is
sold due to the land belonging to Ministry
of Defence. But if the superstructure is sold
without the 'permission' or 'no objection'
of Cantonment Board then the intention of
this Court will be defeated. Everybody will
come with a document not selling the land
on which superstructure stands, as the land
is not his and rightfully he is not entitled to
sell it because he has no title on it. In
Cantonment
Area
only
superstructure
belongs to private persons, not the land.

q. It is submitted that if an
agreement to sale is registered without
permission then people will give possession
of the property without getting the sale
deed executed due to the want of
permission and the purpose of the transfer
will become effective, thus, the whole
intention of the Court's order will be
defeated. This Court in its order dated
28.8.2010 directed non registeration of any
document without prior permission. It is
also submitted that before this order the
registration of sale deed/lease deed of the
properties situated in Cantonment Board
area took place without any permission or
no objection by the Defence Estate Officer
of the Cantonment Board. Any transaction
of the cantonment area depends upon the
contracts between the parties and only after
registration any liability of the registering
authority is created because in Registration
Department transactions are not chargeable
only documents are chargeable to stamp
duty. The parties after registration apply for
Mutation to the Cantonment Board.

ANALYSIS AND CONCLUSION

5. Heard learned counsel appearing on
behalf of the parties and perused the
material on record.

6. In this case, the petitioner wants to
register an agreement to sale in respect of a
building erected on the land of Cantonment
Board to a third person and the same has been
refused by the Sub Registrar mentioning the
decisions of this Court as well as the Circular
issued by the Government of Uttar Pradesh.
The Sub Registrar has relied upon the
decision of this Court in Writ Petition No.
12897 of 2008 (Cantonment Board, Varanasi
Vs. State of UP and Others) decided on
28.8.2010. The order is being quoted below:

"By means of this petition, the
petitioner has prayed for a writ of
9 All. Ahmad Ali Khan Vs. State of U.P. & Ors.
529
mandamus commanding the State of U.P.
through Secretary Institutional Finance,
Sub Registrar (Registration) and the
Collector Varanasi not to register any
document pertaining to sale/lease of
immovable properties situated in Cantt.
Area, Varanasi without obtaining no
objection certificate from the competent
authority of Government of India, Ministry
of Defence. The basis of the writ petition is
that the land belongs to the cantonment
board and the fake sale deed/lease deed are
being executed and they are being
registered.

From the avernments made in the
writ petition, it is clear that the fake
sale/lease deeds were being executed by
those persons who were not entitled to
execute the lease deed or sale deed and
fake sale deeds were being registered in
respect of the property belonging to the
Ministry of Defence and after registration
of the document, further litigation has to
face to the Defence department for
cancellation of the sale deed for getting it
declared void in order to check such
execution of fake sale deed/lease deed.

Having regard to the facts and
circumstances of the case stated in the writ
petition, we direct the Sub-Registrar (
Registration) not to register any document
and not to execute any sale deed/ lease
deed of the land falling within the
Cantonment Board and belonging to the
Ministry of defence without there being no
objection or permission by the Defence
Estate Officer of the Cantonment Board
Varanasi.

With the above observation, the
writ petition is disposed of finally."

7. The above order was in respect of
Varanasi Cantonment Board. Later on a
PIL was filed being Public Interest
Litigation (PIL) No. 74227 of 2010
(Virendra Kumar and Others Vs. State
of U.P. and Others), in which order passed
by this Court in Cantonment Board,
Varanasi (supra) was brought to the notice
of the Court which was dealing with the
said PIL. Thereafter, the Court issued
directions to circulate the decision of
Cantonment Board, Varanasi (Supra) to all
the Sub Registrars. The order dated
December 22, 2010 is being quoted below :

"On behalf of respondents 1 to 3,
learned Standing Counsel seeks time to
take instructions in the matter.

Our attention has been drawn by
the writ petitioners to the order dated
28.8.2010 passed in Writ -C No.12897 of
2008,
whereby
the
Sub-Registrar
(Registration) has been directed not to
execute any sale deed/lease deed of the
land falling within the Cantonment Board
and belonging to the Ministry of Defence
without there being no objection or
permission by the Defence Estate Officer of
the Cantonment Board, Varanasi.

Learned Standing Counsel may
seek instructions.

In the meantime, the Secretary,
Institutional Finance, Govt. of U.P. is
directed to circulate to all the SubRegistrars a copy of the order dated
28.8.2010 passed by this Court in Writ-C
No.12897 of 2008.

Place the matter on board on
12.01.2011."
530 INDIAN LAW REPORTS ALLAHABAD SERIES

8. In compliance of the above order,
the Government of Uttar Pradesh vide
Circular dated February 2, 2011 circulated
the above decision of this Court. The
Circular is being quoted below :

"आवश्यक / ... ... ... ...

प्रेषक,

 संख्या -523/ ग्यारह -5-20 11

मधु माथुर

उप सचिव,

उत्तर प्रदेश शासन ।

सेवा में,

महाचनरीक्षक चनबन्धक

उत्तर प्रदेश इलाहाबाद ।

कर एांि विबन्धक अिुभाग-5

लखिऊ
वदिाांक 21 फरिरी 2011

चवषय :- छावनी पररषद की सीमा में आने वाली
सम्पचत्तयों के चवलेख पंजीकरण के सम्बन्ध में।

महोदय,

उपयुभि चवषयक ररर् याचिका संख्या-
12897/ 2008 केन्र्ोमेन्र् बोडभ वाराणसी बनाम उ०प्र० राज्य व
अन्य में पाररत आदेश चदनांक 28 अगस्त 2010 (छायाप्रचत
संलग्न) का सन्दभभ ग्रहण करें।

2- इस सन्बन्ध में मुझे यह कहने का चनदेश
हुआ है चक मा० उच्य न्यायालय द्वारा पाररत उपरोि आदेश पर
अनुपालन सुचनचश्चत कराते हुए सभी सम्बचन्धत को भी उि आदेश
के अनुपालन हेतु आवश्यक आदेश चनगभत करने का कष्ट करें।

संलग्नक : यथोपरर

भवदीया,

ह०अपठनीय

(मधु माथुर)

उप सचिव ।

सांख्र्ा / (1) / ग्र्ारह -5-20 11 िद वदिाांक :

प्रचतचलचप उपमहाचनरीक्षक चनबन्धक/ वाराणसी कों
संलग्नक की प्रचत सचहत अनुपालनाथभ प्रेचषत ।

सांलग्िक र्र्ोपरर।

आज्ञा से

 ह०

(मधु माथुर)

(उप सचिव)

कार्ाालर् महाविरीक्षक विबन्धक उिर प्रदेश
इलाहाबाद।

संख्या 860 / चवचध
चदनांक 04.03.11

उि की प्रचत समस्त उप / सहायक महाचनरीक्षक
चनबन्धन उत्तर प्रदेश कों इस अनुरोध के साथ प्रेचषत चक मा० उच्ि
न्यायालय द्वारा पाररत आदेश का अनुपालन सुचनचश्चत करायें।

ह० अपठनीय

 सन्दीप कुमार शमाभ

 उपर महाचनरीक्षक चनबन्धन (प्र०).

 उत्तर प्रदेश, इलाहाबाद।
सत्यप्रचतचलचप"

9. On being informed about the above
circular issued by the Government of Uttar
Pradesh, the Court dealing with the above
PIL being Public Interest Litigation (PIL)
No. 74227 of 2010 (Virendra Kumar and
Others Vs. State of U.P. and Others)
disposed of the PIL on 3.8.2017. The said
order is being quoted below :

" Heard learned counsel for the
parties.

We need not retain the present
writ petition any further, in view of the fact
of that the counsel for the Cantonment
Board has informed this Court that in view
of the provisions of Cantonment Land
Administration Rules, 1937 specifically
Rule 15 no land of the Cantonment can be
sold without prior permission of the
Central
Government.
In
the
said
9 All. Ahmad Ali Khan Vs. State of U.P. & Ors.
531
background, a Division Bench of this Court
vide order dated 22.12.2010 has already
issued a direction to the Secretary,
Institution Finance, Govt. of U.P. to direct
all Sub-Registrar within the State of Uttar
Pradesh not to register any sale deed/lease
deed in respect of the land falling within
the Cantonment Board and belonging to
the Ministry of Defence without no
objection or permission of the Defence
Estate Officer of the Cantonment Board,
Varanasi.

We have been informed that such
circular has been issued by the State of
Uttar Pradesh.

In view of the aforesaid, no
further directions are required to be made.

This Public Interest Litigation is
disposed of."

10. The Court dealing with the Public
Interest Litigation (hereinafter referred to
as 'the PIL') has disposed of the PIL being
satisfied that the land of Cantonment Board
cannot be sold without prior permission of
the Central Government/Defence Estate
Officer as provided under Rule 15 of the
Cantonment Rules, 1937. The fact was in
the knowledge of the Court dealing with
the PIL that land falling in the Cantonment
Board was situated in the defence area, and
therefore, such land cannot be transferred
to anybody without having prior permission
of the authority mentioned in the Rules,
1937 as it may cause security issues to the
defence establishment as well as to the
Nation. Rule 15 of the Cantonment Rules,
1937 is quoted below :

"5. Sale of land Prohibited-The
sale of land for any purpose without the
definite orders of the Central Government
is prohibited."

11. The Sub Registrar is under
obligation to abide by the order of this
Court and the Circular issued by the State
Government in light of the decisions of this
Court and therefore, as there is no
provision in the Registration Act, the Sub
Registrar has rightly refused to register the
deed of agreement to sale.

12. The submission of the petitioner
that the agreement to sale is only with
respect to the superstructure upon the land
and there is no agreement to sale with
respect to the land cannot sustain as the
superstructure in question is on defence
land and it cannot be treated as a separate
entity. Rule 2(c) of the Cantonment Rules,
1937
defines
'building
site'
which
includes
open
ground
or
courtyard
enclosed by, or adjacent to the building
erected thereupon. Therefore, the building
also includes the land which belongs to the
Cantonment Board. Rule 2(c) is delineated
below:

"(2c) -"building site" means a
portion of land held or intended to be held
for
building
purposes,
whether
any
building be erected thereon or not, and
includes the open ground or courtyard
enclosed by, or adjacent to, any building
erected thereupon;"

13. The GGO-179 dated 12.09.1836
provides
that
the
property
of
the
Government could not be sold by the
grantee but houses or other property
thereon situated could be transferred
subject to certain restrictions. The relevant
provisions of the General Order are being
quoted below :
532 INDIAN LAW REPORTS ALLAHABAD SERIES

"6. Conditions of occupancy- No
ground will be granted except on the
following conditions, which are to be
subscribed by every grantee as well as by
those to whom his grant may subsequently
be transferred:-

1st. Resumption of land- The
Government to retain the power of
resumption at any time on giving one
month's notice and paying the value of such
buildings as may have been authorised to
be erected.

2nd.
Land
belongs
to
Government. Land cannot be sold by
grantee. Trans fer of houses between
military officers-The ground, being in every
case the property of Government, can not
be sold by the grantee, but houses or other
property
thereon
situated
may
be
transferred by one Military or Medical
Officer to another without restriction
except in the case of reliefs, when, if
required, the terms of sale or transfer are
to be adjusted by a Committee of
Arbitration.

3rd. Arbitration in case of
transfer on relief. Transfer of house to
civilian-If the ground has been built upon,
the buildings are not to be disposed of to
any person, of whatever description, who
does not belong to the army, until the
consent of the Officer Commanding the
Station shall have been previously obtained
under his hand.

4th. Transfer to native- When it is
proposed, wide consent of the General
Officer, to transfer possession to a native,
should the value of the house, buildings or
property to be so transferred exceed Rs.
5000, the sale must not be effected until the
sanction of Government shall have been
obtained
through
His
Excellency
the
Commander-in-Chief.

7.