# Arshad & Anr v. A.C. (Admin.), Saharanpur & Ors

- **Citation:** (2023) 2 ILRA 332
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-13
- **Case number:** Writ-C No. 66973 of 2012
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arshad-anr-v-a-c-admin-saharanpur-ors-49207
- **Pages:** 7

## Headnote

A. Civil Law - UP Zamindari Abolition &
Land Reforms Act, 1950 - Section 168-A -
Transaction of fragmented land - UP ZA &
LR (Amendment Act) 2004 - Sections 4 &
11 - Deletion of S. 168-A of the Principle
Act - Effect - Benefit of Section 11, how
far can be extended - Held, the source of
power to declare a particular transaction
void was very much taken away, and
therefore, the Collector had no jurisdiction
as such to exercise any such power - Held
further, the benefit got eclipsed for the
litigation, But since the transaction had no
more remained void for the saving clause
being there, the petitioner cannot be
made to suffer and to that extent,
therefore, the benefit of Section 11 of the
Amending Act, 2004 can be extended to
the petitioner. (Para 11 and 17)
Writ petition disposed of. (E-1)
List of Cases cited :-

## Text

332 INDIAN LAW REPORTS ALLAHABAD SERIES
law. Because, even when there is no period
of limitation prescribed for exercise of such
powers, the intervening delay, may have
led to creation of third party rights, that
cannot be trampled by a belated exercise of
a discretionary power especially when no
cogent explanation for the delay is in sight.
Rule of law it is said must run closely with
the rule of life. Even in cases where the
orders sought to be revised are fraudulent,
the exercise of power must be within a
reasonable period of the discovery of fraud.
Simply describing an act or transaction to
be fraudulent will not extend the time for its
correction to infinity; for otherwise the
exercise of revisional power would itself be
tantamount to a fraud upon the statute that
vests such power in an authority.

32. In the case at hand, while the
entry sought to be corrected is described as
fraudulent, there is nothing in the notice
impugned before the High Court as to when
was the alleged fraud discovered by the
State. A specific statement in that regard
was essential for it was a jurisdictional
fact, which ought to be clearly asserted in
the notice issued to the respondents. The
attempt
of
the
appellant-State
to
demonstrate that the notice was issued
within a reasonable period of the discovery
of the alleged fraud is, therefore, futile. At
any rate, when the Government allowed the
land in question for housing sites to be
given to Government employees in the year
1991, it must be presumed to have known
about the record and the revenue entries
concerning the parcel of land made in the
ordinary course of official business. In as
much as, the notice was issued as late as on
31st December, 2004, it was delayed by
nearly 13 years. No explanation has been
offered even for this delay assuming that
the same ought to be counted only from the
year 1991. Judged from any angle the
notice seeking to reverse the entries made
half a century ago, was clearly beyond
reasonable time and was rightly quashed."

 (emphasis added)"

23. In such above view of the matter,
therefore, the order of review passed by the
Additional Commissioner (Judicial) dated
04.01.2011 is unsustainable in law and
therefore, deserves to be set aside. Once I
proceed to set aside the order of review
dated 04.01.2011, the consequential order
to it dated 18.04.2012 could also needed to
be set aside. If these two orders are set
aside as I propose to do in this petition, I
need not go to other questions with regard
to validity of lease etc. as the same in my
considered view cannot be permitted to be
reopened after a lapse of so many years.
Thus the order passed by the Additional
Commissioner (Judicial) dated 04.01.2011
allowing the review application of the State
respondents and the consequential order
dated 18.04.2012 are hereby set aside.

24. In view of the above, this petition
stands allowed. Orders dated 04.01.2011
and 18.04.2012 passed by respondent nos.
1 & 2 respectively are hereby set aside.
----------
(2023) 2 ILRA 332
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-C No. 66973 of 2012

Arshad & Anr. ...Petitioners
Versus
A.C. (Admin.), Saharanpur & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri M.A. Khan
2 All. Arshad & Anr. Vs. A.C. (Admin.), Saharanpur & Ors.
333
Counsel for the Respondents:
C.S.C., Sri D.D. Chauhan, Sri Abhishek
Tiwari

A. Civil Law - UP Zamindari Abolition &
Land Reforms Act, 1950 - Section 168-A -
Transaction of fragmented land - UP ZA &
LR (Amendment Act) 2004 - Sections 4 &
11 - Deletion of S. 168-A of the Principle
Act - Effect - Benefit of Section 11, how
far can be extended - Held, the source of
power to declare a particular transaction
void was very much taken away, and
therefore, the Collector had no jurisdiction
as such to exercise any such power - Held
further, the benefit got eclipsed for the
litigation, But since the transaction had no
more remained void for the saving clause
being there, the petitioner cannot be
made to suffer and to that extent,
therefore, the benefit of Section 11 of the
Amending Act, 2004 can be extended to
the petitioner. (Para 11 and 17)
Writ petition disposed of. (E-1)
List of Cases cited :-
1. Ram Pratap & ors. Vs Gulab (2013) 1LR
2All909
2. Writ C No. 14489 of 2008; Smt. Sumita Devi
Vs Sushila Devi & ors.
3. Kolhapur Canesugar Works Ltd. & anr. Vs
U.O.I. & ors. (2000) 2 SCC 536
4. Second Appeal No. 2585 of 1974; Smt. Janki
& anr. Vs Murari Lal & ors.
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri M.A. Khan, learned
counsel for the petitioners, Sri Abhishek
Tiwari, learned brief holder for the State
and Sri D.D. Chauhan, learned counsel
appearing for the Gaon Sabha.

2. By means of this petition filed
under Article 226 of the Constitution,
petitioners have sought a writ of certiorari
for quashing the order dated 3.9.2004
passed by the Collector, Saharanpur and the
order dated 1.6.2012 passed by the
Additional Commissioner (Administration),
Saharanpur Mandal, Saharanpur.

3. The argument advanced by the
learned counsel for the petitioners is that
the vary provision i.e. Section 168A of the
U.P.
Zamindari
Abolition
and
Land
Reforms Act having been deleted from the
Statute vide U.P. Zamindari Abolition and
Land Reforms (Amendment) Act, 2004
notified w.e.f. 23.8.2004, there existed no
more any law under which a transaction of
land in fragmentation could be held to be
void.

4. It is argued that though the
amending law has taken immediate effect
prospectively but has also saved those
transactions which would have been
rendered void by fiction of law created
under the erstwhile Section 168A of the
U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950. He has drawn the
attention of Section 4 and Section 11 of the
Amending Act of 2004, which provide in
the first instance deletion of Section 168A
from the Statute and secondly saving those
transactions which were to be held
otherwise void in view of fiction created by
Section 168 of the Act.

5. It is argued that those transactions
would now be rendered as voidable and can
be validated by depositing such fee as may
be prescribed for by notification of the
State Government. It is submitted that both
the orders passed by the Collector dated
3.9.2004 admittedly after the amending
provision had been brought into existence
as per notification issued on 23.8.2004 and
so also the order passed by the Additional
Commissioner, Saharanpur, and therefore,
are not sustainable.
334 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Per contra, it is argued by Sri
Abhishek Tiwari, learned brief holder
appearing for the State that provision as
contained Section 11 of the Amending Act,
2004 created a prescribed period of one
year only for getting such transaction prior
to the Amending Act coming into force
voidable if condition of deficit is certified
with only within a period of one year. It is
further argued that another Amending Act
came into effect with notification on
29.3.2005 as the U.P. Zamindari Abolition
and Land Reforms (Amendment) Act, 2005
whereby Section 11 of the old Amending
Act has been completely omitted by subsection 2 of Section 4. However, Section
4(1) reiterated the position of getting the
old transactions validated by making
deposit within a period of one year.
Learned brief holder further placed before
this Court U.P. Zamindari Abolition and
Land Reforms (Special Provisions) Act,
2014 and 2015 wherein by Section 2 this
benefit to get the transfer validated by
necessary deposit, was extended for a
further period of two years i.e.upto 2015
and 2016

7. I have heard the learned counsel
for the parties and perused the record and
the relevant amending provision of the
U.P. Zamindari Abolition and Land
Reforms Act and the orders impugned
herein this petition and I find only two
questions
arising
in
this
case
for
consideration : (a) whether the Collector
was justified in passing the order on
3.9.2004 holding the transaction in
question being in fragment, to be
prohibited under Section 168-A on
3.9.2004; and (b) whether the benefit
conferred under Section 11 of the
Amending Act of 2004 and Section 4(1)
of the Amending Act, 2005 would be
available to the petitioner?

8. Coming to the first question, I find
that the provision Section 168-A was
deleted from the Statute book by Amending
Act, 2004 with immediate effect saving the
old transactions by virtue of Section 11 of
the said Act. It would be necessary to go
through the relevant provisions of Section
168-A of U.P. Z.A. & L.R. Act, 1950 runs
as under:

"168-A. Transfer of fragments.-
Notwithstanding the provisions of any law
for the time being in force, no person shall
transfer whether by sale, gift or exchange
any fragment situate in a consolidated area
except where the transfer is in favour of
tenure- holder who has a plot contiguous to
the fragment or where the transfer is not in
favour of any such tenure-holder the whole
or so much of the plot in which person has
bhumidhari rights, which pertains to the
fragment is thereby transferred. (2) The
transfer of any land contrary to the
provisions of sub-section (1) shall be void.
(3) When a bhumidhar has made any
transfer in contravention of the provisions
of sub-section (1) the provisions of Section
167 shall mutatis mutandis apply."

9. Section 4 and Section 11 of the
U.P.
Zamindari
Abolition
and
Land
Reforms (Amendment) Act, 2004 run as
follow:-

"Section 4- Section 168-A of the
Principal Act shall be omitted."

Section 11- It is hereby declared
that any transfer of a fragment which had
become void under Section 168-A as it
stood before the commencement of this Act
shall be deemed to have been voidable any
any person may get such transfer validated
by depositing such fee and within such time
and in such manner as may be notified by
the State Government
2 All. Arshad & Anr. Vs. A.C. (Admin.), Saharanpur & Ors.
335

Provided
that
the
above
provisions shall cease to be in force after
expiry of one year from the date of
commencement of this Act"

10. Upon bare reading of the
aforesaid deleted provisions and new
provisions of the Amending Act it is clear
that while transactions of for fragmented
land that were earlier void, would no more
be void as such and further all such
transactions that had become void before
the amendment came vide Section 4-A of
the Amending Act stood saved, however,
such transactions were placed in the
category of voidable contracts and could be
validated within a period of one year from
the date, the amending provisions were
brought into force complying with the
provisions as contained under Section 11 of
the Amending Act.

11. The transaction in question also
stood automatically saved, and therefore,
the Collector had run out of its jurisdiction
and authority to declare such transaction of
fragmented land to be void under a deleted
provision, namely Section 168A of U.P.
Zamindari Abolition and Land Reforms
Act. The source of power to declare a
particular transaction void was very much
taken away, and therefore, the Collector
had no jurisdiction as such to exercise any
such power. Therefore, the order passed by
the Collector is not sustainable. Learned
Additional Commissioner has also not
looked into this legal aspect involved in the
matter, and therefore, the order passed by
the Additional Commissioner, Saharanpur
confirming the order passed by the
Collector is also not sustainable.

12. Now the second question is
regarding benefit to be conferred upon the
petitioner. Section 11 of Amending Act,
2004 which stood repealed in the year 2005
with new provision getting incorporated by
virtue of Section 4(1) which only saved
those lands from the rigours of the old
provision of the Act where the State had
not come to be recorded in the revenue
records upon such land.

13. I may here refer to the further
Amending Acts that came to the rescue of
such purchasers who could not be benefited
within one year time, even though State
had not come to be recorded upon such
land. The second Amending Act namely
the U.P. Zamindari Abolition and Land
Reforms (Amendment) Act, 2005 reiterated
Section 11 of the Previous Act, vide
Section 4(1) and vide Section 4(2) omitted
Section 11. Section 4 (2) run as under:-

"(2) It shall be lawful for the
State Government, if it so considers
necessary, to issue, from time ta time, the
notification referred to in sub-section (1) in
respect only of such area or areas as may
be specified and all the provisions of
subsection (1) shall be applicable to and in
the case of every such notification."

14. The aforesaid provisions came to
be reiterated vide Section 2 of the U.P.
Zamindari Abolition and Land Reforms
(Special Provision) Act, 2010. Section 2
runs as under:-

" It is hereby declared that any
transfer of such fragment as had become
void under Section 168-A of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 1950 as it stood before the
commencement of the Uttar Pradesh
Zamindari Abolition and Land Reforms
(Amendment) Act, 2004 (U.P. Act No. 27 of
2004) and had not been entered in revenue
records in favour of State Government
336 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be deemed to have been divested and
any person may get such transfer validated
by depositing such fee and within such time
and in such manner as may be notified by
the State Government;

Provided
that,
this
special
provision shall cease to be in force after
expiry of two years from the date of
commencement of this Act."

15. The Aims, Objects and Reason for
bringing Land Reforms (Special Provision)
Bill, 2010 have been spelt out thus:-

"With
a
view
to
providing
opportunity of validation, in any transfer of
such fragment as had become void under
Section 168-A of the Uttar Pradesh
Zamindari Abolition and Land Reforms
Act,
1950
as
it
stood
before
the
commencement of the Uttar Pradesh
Zamindari Abolition and Land Reforms
(Amendment) Act, 2004 (U.P. Act No. 27 of
2004) and had not been entered in revenue
records in favour of the State Government,
it has been decided to make a law to
provide for making special provision in
relation to the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950
(U.P. Act No. 1 of 1951).

The Uttar Pradesh Zamindari
Abolition and Land Reforms (Special
Provision)
Bill,
2010
is
introduced
accordingly."

16. Now looking to the history of
various Amendment Acts and the last one
that spelt out Aims, Objects and Reason,
the State Legislature intended that if
provisions of Section 168 have been
deleted, the transaction of such fragmented
land already reached be saved. The
innocent villagers who were vandees, were
required to do certain formalities, provided
of course entry in the name of State had not
came to be made upon the land for such
transactions being void earlier.

17. In my considered view, the
litigation before the Collector was the
cause of petitioner not getting the benefit of
Section 11 of the Amending Act of 2004.
The benefit got eclipsed for the litigation,
But since the transaction had no more
remained void for the saving clause being
there, the petitioner cannot be made to
suffer and to that extent, therefore, the
benefit of Section 11 of the Amending Act,
2004 can be extended to the petitioner. So
far the fact that this provision got further
repealed by virtue of Section 4(1) of the
Amending Act, 2005 is concerned, and the
benefit was available only for those cases
where the entries had not been changed in
operating the name of State. In the present
case, it is an admitted fact to the parties that
the entries still stand in the name of the
petitioners in respect of land in question.

18. In the case of Ram Pratap &
others Vs. Gulab (2013) 1LR 2All909,
this Court had occasioned to interrupt
the law. The issue in the case what
would be position of Amending Act
deletes a provision and does not save the
pending proceedings and then provides
for protection in respect of those
transaction that would have otherwise
been void for the provision that has been
deleted. The Court proceeded to examine
the matter from the point of view of
Aims and Objects with which the
particular provision has been deleted and
another provision has been inserted in its
place.

19. The Court referred to the
judgment of Smt. Sumita Devi Vs. Sushila
Devi & others (Writ-C No. 14489 of 2008),
wherein it was held as under:-
2 All. Arshad & Anr. Vs. A.C. (Admin.), Saharanpur & Ors.
337

"Moreover provisions of Section
168-A were quite harsh. The Section has
also been deleted. U.P. Act No. 27 of 2004
which deleted Section 168-A made the
previous transactions hit by the said
section voidable (in stead of void) and
curable (capable of being validated) on
payment of some nominal fees within a
particular period which has now expired
(Section 11). Accordingly, for these two
reasons the section shall be interpreted (for
the sake of past transactions) liberally, in
favour of vendor and vendee."

20. The Court referred to the
judgment of Hon'ble Supreme Court in
Kolhapur Canesugar Works Ltd. &
another Vs. Union of India & others
(2000) 2 SCC 536 has held thus:-

"The position is well known that
at common law, the normal effect of
repealing a statute or deleting a provision
is to obliterate it from the statute book as
completely as if it had never been passed,
and the statute must be considered as a law
that never existed. To this rule, an
exception is engrafted by the provisions
Section 6(1). If a provision of a statute is
unconditionally omitted without a saving
clause in favour of pending proceedings,
all actions must stop where the omission
finds them, and if final relief has not been
granted before the omission goes into
effect, it cannot be granted afterwards.
Savings of the nature contained in Section
6or in special Acts may modify the position.
Thus the operation of repeal or deletion as
to the future and the past largely depends
on the savings applicable. In a case where
a particular provision in a statute is
omitted and in its place another provision
dealing with the same contingency is ]
introduced without a saving clause in
favour of pending proceedings then it can
be reasonably inferred that the intention of
the
legislature
is
that
the
pending
proceeding shall not continue but a fresh
proceeding for the same purpose may be
initiated under the new provision.

In the present case, as noted
earlier, Section 6 of the General Clauses
Act has no application. There is no saving
provision in favour of pending proceeding.
Therefore action for realisation of the
amount refunded can only be taken under
the new provision in accordance with the
terms thereof."

21. The Court referred to the
judgment in the case of Smt. Janki &
another Vs. Murari Lal & others (Second
Appeal No. 2585 of 1974) wherein it has
been held thus:-

"In terms of the above said
amendments in the present case, the sale
deed dated 15.1.1969 executed by Smt.
Ganga Devi in favour of Amar Singh and
Murari Lal being void under Section 168-A
as it stood before the commencement of the
Act 2004, was deemed to have been
voidable in terms of Section 11 of the
special provisions and further amended by
Act No.27 of 2004 by which Section 11 has
also been omitted as it stood and has been
replaced by Section 4 of U. P. Act No.13 of
2004, in terms of which the alleged sale
deed dated 15.1.1969 alleged to have
become void stands voidable in the case of
transfer of such fragment, provided, it has
not been entered in the revenue records in
favour of the State Government, on the date
of the commencement of the U.P. Act
No.27 of 2004 or U.P. Act No.13 of 2005
as the case may be and such transferees
may get such transfer validated by
depositing such fee and within such time
and in such manner as may be notified by
the State Government. In view of the above
338 INDIAN LAW REPORTS ALLAHABAD SERIES
said findings, the first question is decided
accordingly."

22.

Considering
the
aforesaid
judgments, the Court allowed the appeal
and set aside the judgment and decree of
the
First
Appellate
Court
and
the
respondent was directed to execute the sale
deed.
In
my
considered
view
the
proposition of law as has been discussed
above and laid down are fully attracted to
the present case, and therefore, the order
passed by the Collector and the order
passed
by
the
Commissioner
are
unsustainable and deserve to be set aside.

23. The order passed by the Collector
dated 3.9.2004 and the order passed by the
Additional
Commissioner,
Saharanpur
dated 1.6.2012 impugned herein this
petition as Annexures 2 and 4 are hereby
quashed.

24. The petitioner is at liberty to move
an appropriate application for making
necessary deposit to validate the transaction
that has already taken place in respect of
which his name is recorded in the revenue
records within a period of three months and
if any application as such is made, the
petitioner may be required to deposit the
amount if any that he would have been
required to pay in the year 2004-05 and no
interest shall be charged upon such amount.
An appropriate order in the above regard
shall be passed within two weeks of the
received of the application.

25. With the aforesaid observations
and directions, this petition stands disposed
of.
----------
(2023) 2 ILRA 338
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.01.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-C No. 1000019 of 2008

Ajay Agarwal & Ors. ...Petitioners
Versus
Commissioner, Lko. & Ors. ...Respondents

Counsel for the Petitioners:
Sudeep Kumar, A.K. Pandey

Counsel for the Respondents:
C.S.C.

A. Civil Law - UP Stamp Act, 1899 -
Section 47-A Clause (1) & (2) - UP
Stamp (Valuation of Property) Rules,
1997 - Rule 7 - Applicability of Rule 7 -
Held, no distinction whatsoever has
been carved out under Rule 7 of the
Rules of 1997 with regard to procedure
being required to be followed under
section 47 A - There being no distinction
indicated under provisions of the Act,
Rule 7 of Rules of 1997 would be
applicable on proceedings under section
47A (1) as well as under Section 47A (3)
and are mandatory in nature. (Para 14
and 21)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Ram Khelawan @ Bachcha Vs St. of U.P. &
ors. reported in 2005(2) JCLR 610 (Allahabad)
2. Ganga Ram Vs St. of U.P. & ors. reported in
2020(38) LCD 1991
(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned
counsel
for
petitioners and Mr. Devendra Mohan
Shukla, learned State counsel appearing for
opposite parties.