# Birendra Singh & Ors v. Board of Revenue U.P. at Allahabad & Ors

- **Citation:** (2023) 1 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-23
- **Case number:** Writ-B No. 45796 of 2017
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/birendra-singh-ors-v-board-of-revenue-u-p-at-allahabad-ors-49165
- **Pages:** 7

## Headnote

Civil Law - Indian Stamp Act, 1899 -
Section 47-A - Instruments undervalued -
valuation has to be done on the date of
execution of the sale deed and not on the
grounds of its potential use subsequently
for
a
different
purpose
-
Petitioner
purchased agricultural plot vide registered
sale deed for Rs. 47,200 - stamp of Rs.
15370/- was paid on the value of Rs.
1,06,000 - Proceeding under Section 47-A
of Indian Stamp was initiated - Naib
Tehsildar submitted his report dated
06.11.1995 that plot in dispute is an
agricultural
plot
and
no
building
is
situated over the same - Additional
Collector ordered to deficient stamp duty
as well as penalty against the petitioner -
order of imposition of stamp duty affirmed
by revisional court on the ground of future
potential of the land in dispute - Held -
imposition of residential/ abadi rate for
determining the valuation of land on the
ground of future potential of the land in
dispute is illegal - Impugned order set
aside (Para 10, 14, 16)

Allowed. (E-5)

List of Cases cited:

## Text

570 INDIAN LAW REPORTS ALLAHABAD SERIES
decision rendered in Smt. Pushpa Sarin
(Supra) has been also considered.

16. Considering the facts and
circumstances of the case as well as ratio
law
laid
down
in
Smt.
Pushpa
Sarin(supra) and Chhotey Lal (Supra)
the impugned order dated 29.01.1996
passed by the Additional Collector and
order dated 14.05.2001 passed by the
Board of Revenue Allahabad cannot be
sustained in the eye of law as such the same
are hereby set aside. The writ petition
stands allowed. No order as to costs.
----------
(2023) 1 ILRA 570
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 45796 of 2017

Birendra Singh & Ors. ...Petitioners
Versus
Board of Revenue U.P. at Allahabad & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Suneel Kumar Rai, Sri Basant Kumar
Upadhyay, Sri Saket Mani Tripathi

Counsel for the Respondents:
C.S.C., Sri Madan Mohan, Sri Prem Sagar Verma

Civil Law - Indian Stamp Act, 1899 -
Section 47-A - Instruments undervalued -
valuation has to be done on the date of
execution of the sale deed and not on the
grounds of its potential use subsequently
for
a
different
purpose
-
Petitioner
purchased agricultural plot vide registered
sale deed for Rs. 47,200 - stamp of Rs.
15370/- was paid on the value of Rs.
1,06,000 - Proceeding under Section 47-A
of Indian Stamp was initiated - Naib
Tehsildar submitted his report dated
06.11.1995 that plot in dispute is an
agricultural
plot
and
no
building
is
situated over the same - Additional
Collector ordered to deficient stamp duty
as well as penalty against the petitioner -
order of imposition of stamp duty affirmed
by revisional court on the ground of future
potential of the land in dispute - Held -
imposition of residential/ abadi rate for
determining the valuation of land on the
ground of future potential of the land in
dispute is illegal - Impugned order set
aside (Para 10, 14, 16)

Allowed. (E-5)

List of Cases cited:

1. Chhotey Lal Vs St.of U.P. & ors. 2021 (152)
RD 141

2. Smt. Pushpa Sarin Vs St of U.P. 2015 (127)
RD 855

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Sri Suneel Kumar Rai,
learned counsel for the petitioner, Sri
Madan
Mohan,
learned
counsel
for
contesting respondent Nos.6 and learned
Standing Counsel for the State-respondents.

2. Brief facts of the case are that
Khasara No.395 M measuring 1.06 hectare
(2.68 acre) situated in Mauja Basai Sher
Ghar,
Bangar, Tehsil-Chhata,
DistrictMathura belong to one Munshi son of
Ghanturi, who executed a registered sale
deed on 21.11.1991 in favour of Basanta
son of Bhajana. Another sale deed was
executed by Basanta with respect to 0.82
acre in favour of Bhagwat son of Ghanturi
and for 0.62 acre area sale deed was
executed by Basanta in favour of Balram
son of Maunsi. On 21.06.1993 Balram
executed sale-deed in favour of respondent
No.6 Basanta executed another sale deed
1 All. Birendra Singh & Ors. Vs. Board of Revenue U.P. at Allahabad & Ors.
571
on 07.02.1992 with respect to 0.62 acre
area in favour of Harveer son of Munshi.
On 07.05.1994 Mushi further executed sale
deed with respect to 0.62 acre area in
favour of one Bhanwar Singh and others
who executed the sale deed in favour of
respondent No.6 on 29.08.2000. Due to
violation of Section-168-A of U.P.Z.A. &
L. R. Act the mutation applied by
respondent No.6 were rejected by Tehsildar
vide order dated 30.06.2006. The revision
filed by respondent No.6 against the order
of Tahildar dated 30.06.2006 was dismissed
by Additional Commissioner vide order
dated 26.06.2008. Balram and others
(Vendor of respondent NO.6 executed two
sale deed in favour of petitioner's father on
23.07.2008 and 01.08.2008, the name of
petitioner's father was accordingly mutated
vide order dated 09.09.2008. Respondent
No.6 filed an application to recall the order
dated 09.09.2008 passed by the Tehsildar
which was rejected vide order dated
09.06.2009 on the ground of pendency of
writ petition No.47211 of 2008 Bhagwat
versus State of U.P. And others, the order of
status quo has been also passed by this
Court in Writ Petition No.47211 of 2008.
Respondent No.6 filed another mutation
application dated 05.05.2010 on the basis
of
Government
Notification
dated
05.02.2010 by which bar of Section-168-A
was lifted with condition of payment of Rs.
1000/- or 2% of the cost of the land
whichever
is
higher
accordingly
Upziladhikar vide order dated 22.05.2010
ordered that if respondent No.6 will deposit
Rs. 14420/- in treasury the sale-deed
executed in his favour will become regular
and legal.

3. Petitioners filed an application
under Order 9 Rule 13 C.P.C. For recalling
the ex parte order dated 22.05.2010 but the
same was rejected vide order dated
04.04.2012 by Upziladhihar. Petitioners
challenged the order dated 04.04.2012
through Revision before Board of Revenue
which was dismissed in default on
16.11.2016 accordingly petitioners filed
restoration
application
on
30.01.2017
which was dismissed by Board of Revenue
vide order dated 04.08.2017 on the ground
earlier passed on 30.11.2016 was on merit
as such no interference was made against
the order dated 30.11.2016 hence this writ
petition.

4. This Court while entertaining the
writ petition has passed the following
orders dated 22.09.2017:-

"Heard
learned
counsel
for
the
petitioner as well as learned Standing
counsel appearing for the State respondents
no. 1 to 5.

Issue notice to the respondents no. 6 to
10 fixing at an early date by registered post
AD. Steps be taken within a week.

All the respondents are granted six
weeks time to file counter affidavit. The
petitioner shall have three weeks thereafter
to file rejoinder affidavit.

List immediately thereafter. "

5. In pursuance of the order dated
22.09.2017 respondent No.6 has put in
appearance and filed his counter affidavit to
the writ petition. Petitioners have filed their
rejoinder affidavit also.

6. Counsel for the petitioners
submitted that amendment made in Section
168-A of U.P.Z.A.& L.R. Act in 2010 does
not have any retrospective effect as such
mutation of respondent No.6 cannot be
allowed on the basis of sale deed executed
in favour of respondent No.6 which was
void according to Section 168-A of
U.P.Z.A.& L.R. Act. He further submitted
572 INDIAN LAW REPORTS ALLAHABAD SERIES
that sale deed prior to amendment of
Section 168-A of U.P.Z.A.& L.R. Act were
void and non existent coupled with the fact
their mutation was also rejected as such the
same
cannot
be
validated
through
subsequent deposit. He further submitted
that impugned order passed by respondent
Nos.1 and 4 suffers from irregular exercise
of jurisdiction as such are liable to be set
aside. Counsel for the petitioner in support
of his argument on the point of Section
168-A of U.P.Z.A.& L.R. Act has placed
reliance upon two judgments which are as
follows:

[1] 1991 (2) JT 75 = 1991 RD 184

Mithilesh
Kumar
Vs.
Fateh
Bahadur Singh

[II] 2000 (4) AWC 2891

Fateh Bahadur Singh Vs. Jang
Bahadur Gupta and others

7. Counsel for the petitioner further
submitted that suit No.84 of 2006 filed by
respondent Nos. 7, 9 and 10 ( Harveer and
two others) for declaration to declare the
sale deed dated 21.12.1991, 08.05.1992,
21.06.1993, 07.05.1994 and 29.08.2000 in
respect to Plot No. 395 M as void and
ineffective is pending in Civil Court in
which respondent no.6 (Bhagwat) and
respondent no.8 (Balram) are defendant
nos. 1 and 2, one Civil Suit No.120 of 2005
filed by respondent Nos.7, 9 and 10 for
injunction in respect of disputed plot is also
pending in civil court, as such impugned
orders be set aside which shall be subject to
decision of Civil Suit.

8. On the other hand Counsel for
respondent No.6 submitted that in view of
the Gazette Notification dated 05.04.2010
issued by the State of Uttar Pradesh the sale
deed
which
became
barred
by
the
provisions
of
Section-168-A
of
U.P.Z.A.&L.R. Act has been validated on
certain deposit within stipulated time as
such the entire argument advanced by
counsel for the petitioners is misconceived,
the notification dated 05.04.2010 is the
complete reply to the controversy involved
in the matter. He further submitted that
respondent No.6 complied the condition of
government
notification
dated
by
depositing Rs.14,420/- (2% of the cost of
the land) on 24.05.2010 as such the order
dated 22.05.2010 was passed by Sub
Divisional Officer for validating the sale
deed in favour of respondent No.6. He
further submitted that since Munshi had
already transferred the entire land as such
heirs of Munshi i.e. Respondent Nos.7 to
10 could not succeed any land of his father
accordingly, respondent Nos. 7 to 10 had
no right and title to transfer the disputed
plot No. 395M to any person, the sale deed
alleged to be executed on 23.07.2008 by
respondent Nos.7 to 10 in favour of
predecessor in interest of petitioners is null
and void so they cannot acquire any title in
the disputed plot. He further submitted that
Writ Petition No.47211 of 2008 filed by
respondent
No.6
was
dismissed
as
withdrawn by order dated 14.12.2018 due
to validation of sale-deed executed in
favour
of
respondent
No.6
under
Notification dated 05.04.2010 issued by
State
Government.
Counsel
for
the
respondent No.6 in support of his argument
placed following judgments:-

(i) 2011 (4) ADJ 796 = 2011 (4) AWC
3366, Smt. Sumitra Devi vs. Sushila Devi
and others

(ii) 2011 (114) R.D. 767, Deep Chand
vs. Board of Revenue U.P. at Allahabad
and others.

(iii) Second Appeal No.1138 of 2011,
Vijai Bahadur vs. Lakshmi Devi, decided
on 02.02.2012
1 All. Birendra Singh & Ors. Vs. Board of Revenue U.P. at Allahabad & Ors.
573

9. I have considered the argument
advanced by learned counsel for the parties
and perused the record.

10. There is no dispute about the fact
that three sale deeds were executed by
Basanta, Balram and Bhanwar Singh in
favour of respondent No.6 in respect to
disputed plot No.395M total area 2.06 acre
and remaining area of 0.62 acre was
transferred in favour of Harveer. The sale
deed executed in favour of respondent No.6
could not be included in the mutation
proceedings
in
view
of
provisions
contained under Section 168-A of U.P.
Zamindari Abolition and Land Reforms Act
but due to State Government Notification
dated 05.04.2010 the sale deed became
validated
and
the
mutation
of
the
petitioners has been ordered accordingly.

11. In order to appreciate the
controversy involved in the instant writ
petition, the perusal of the provision of
Section 168-A of U.P.Z.A & L.R. Act
before 23.08.2004 and after 23.08.2004 as
well as Government Notification dated
05.04.2010 will be necessary which are as
follows:

Before 23.08.2004:-
(1) "168-A. Transfer of fragments.-

(1) 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 tenureholder the whole or so much of the plot in
which the 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."

Since 23.08.2004:-

(2) "Section 168-A: Prevention of
Fragmentation" "omitted"

168-A Transfer of fragments- Statutory
Amendments

Section 168-A was inserted by U.P. Act
18 of 1956. But it was omitted by U.P. Act
27 of 2004 with effect from 23 August,
2004. Before its deletion, Section 168 -A
stood as under:

(1) 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 tenureholder the whole or so much of the plot in
which the 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.".

"सरिारी गजट, उत्तर प्रदेश

उिर प्रदेशीय सरकार द्वारा प्रकाग्रशत

असाधारण

ग्रविायी पररग्रशष्ट

भाग-4 िण्ड (ि)
574 INDIAN LAW REPORTS ALLAHABAD SERIES

(पररग्रनयत आदेश)

(लिनऊ, स मवार, 05 अप्रैल, 2010)

िैत्र 15, 1932 शक सम्वत

उिर प्रदेश सरकार

राजस्व अनुभाग-1

सोंख्या .........

लखनऊ अप्रैल 2010

अग्रिसूिना

प0अ0-19... ............

21/4

"उिर प्रदेश जमीदारी ग्रवनाश और भूग्रम
व्यवथथा (ग्रवशेष उपबन्ध) अग्रिग्रनयम, 2010
(उिर प्रदेश अग्रिग्रनयम सोंख्या 4 सन् 2010) की
िारा 2 के अिीन शखक्त का प्रय ग करके
राज्यपाल अग्रिसूग्रित करते हैं ग्रक ग्रकसी ट्ुकड़े
के ग्रकसी अोंतरण ज उिर प्रदेश जमीदारी
ग्रवनाश और भूग्रम व्यवथथा अग्रिग्रनयम, 1950
(उिर प्रदेश अग्रिग्रनयम सोंख्या 1 सन् 1951) की
िारा 168-क जैसा ग्रक वह उिर प्रदेश जमीोंदारी
ग्रवनाश
और
भूग्रम
व्यवथथा
(सोंश िन)
अग्रिग्रनयम, 2004 (उिर प्रदेश अग्रिग्रनयम
सोंख्या 27 सन् 2004) के प्रारम्भ के पूवि ग्रवद्यमान
थी, के अिीन शून्य ह गया था और ग्रजसकी
राज्य सरकार के पक्ष में राजस्व अग्रभलेि ों में
प्रग्रवग्रष्ट नहीों की गयी थी, ग्रनग्रविग्रहत समझा
जाएगा, के ग्रवग्रिमान्यकरण के ग्रलए एक हजार
रुपये या भूग्रम के मूल्य का 2 प्रग्रतशत, ज भी
अग्रिक ह , ह गी ज लेिा शीषिक "0029 भू-
राजस्व- 800 - अन्य प्राखप्तयाों- 08- माग्रलकाना
राजस्व- 0806 प्रकीणि प्राखप्तय ों के अिीन जमा
की जायेगी। ग्रवग्रिमान्यकरण हेतु आवेदन पत्र
इस अग्रिसूिना के गजट् में प्रकाग्रशत ह ने के
ग्रदनाोंक से छ: माह के भीतर परगना के प्रभारी
अग्रसस्टेन् कलेक्टर के समक्ष प्रस्तुत ग्रकया
जायेगा। भूग्रम व मूल्य का ह गा ज कलेक्टर
द्वारा स्टाम्प शुल्क के ग्रलए अविाररत ग्रकया गया
है और ऐसे आवेदन ........... क लागू ह ।

आज्ञा से

शम्भु नाथ शुक्ला

"In Pursuance of the provision of
clause (3) of Article 348 of the Constitution
the Governor is pleased to order the
publication
of
the
following
English
translation of notification no. 605/1.1
2010-12(7)2003-31. dated April 05, 2010
for general information.

No. 605/1-1-2010-12(7)2003-31

Dated Lucknow April 05, 2010

In exercise of the powers under section
2 of the Uttar Pradesh Zamidari Abolition
and Land Reforms (Special Provision) Act
2010 (U.P. Act no. IV of 2010) the
Governor is pleased to apply that the fee
for validation of any transfer of a fragment
which had become void under section 168A of the Uttar Pradesh Zamindari Abolition
and Land Reforms Act 1950 (U.P. Act no. 1
of
1951)
as
it
stood
before
the
commencement of the Uttar Pradesh
Zamindari Abolition and land Reforms
(Amendment) Act. 2004 (U.P. Act no. XXVII
of 2004) and had not been entered in
revenue records in favour of the State
Government shall be deemed to have been
divested shall be rupees one thousand or
two percent of the cost of the land
whichever is higher to be deposited under
the head "0029 BHU-RAJASVA-800-ANYA
PARPTIYA-08-MALIKANA RAJASVA-0806
PRAKIRN PRAPTIYA" An application for
validation shall be submitted before the
Assistant Collector In-Charge of subdivision with in six months from the date of
publication of this notification in the
Gazette. The cost of the land shall be such
as determined by the collector for the
Stamp Duty and applicable on the date of
such application"

12. From the provisions quoted above
it is established that the provisions of
1 All. Birendra Singh & Ors. Vs. Board of Revenue U.P. at Allahabad & Ors.
575
Section 168-A of U.P.Z.A. & L.R. Act has
been omitted by U.P. Act No.27 of 2004
with effect from 23.08.2004 and the
notification of the State Government issued
on 05.04.2010 has validated the sale-deed
which were barred by Section 168-A of the
U.P.Z.A. & L.R. Act on certain terms and
conditions.

13. Respondent No.6 in compliance
of
Government
Notification
dated
05.04.2010
deposited
Rs.14,420/-
on
05.05.2010 which is 2% of the cost of the
land in dispute within time period of six
month. Accordingly, mutation was also
ordered in favour of petitioners and
restoration application as well as revision
filed by petitioners were dismissed in
accordance with law.

14. The judgment cited by counsel for
the respondent No.6 are applicable in the
present controversy. Paragraph Nos.4 and 7
of the judgment rendered in Smt. Sumitra
Devi (supra) will be relevant which is as
follows:-

"4. I fully agree with the contention of
the learned Counsel for the petitioner that
after dismissal of the civil suit and appeal,
it was not permissible for Additional
Collector or the revisional authority/Court
to take a contrary view and it was an abuse
of process of Court by respondent No. 2 to
approach them. Moreover as held by the
Appellate Court/A.D.J. plea of sale-deed
being hit by section 168-A of the Act under
the facts and circumstances of the case,
could be raised only by the State or Gaon
sabha and respondent No. 2 had absolutely
no locus standi to agitate the matter. The
sale-deed was executed by respondent No.
5 in favour of petitioner and both of them
were fully satisfied and the Gaon Sabha or
the State Government had not challenged
the same. In the scenario, no other person
had any authority to agitate the matter.

7. Moreover provisions of section 168A 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."

15. Another judgment Deep Chand
(supra) cited by learned counsel for the
respondent No.6 is also relevant. Paragraph
Nos.6, 7 & 8 of the judgment rendered in
Deep Chand (supra) are as follows:-

"6. Learned counsel for the respondent
no. 4, Sri Gupta submits that the answering
respondent had his adjoining Chak over
Khasra No. 518 belonging to him and his
brother
Murli
and
accordingly
the
petitioner
vide
sale
dated
8.10.1985
transferred fifteen Biswas of land out of
Chak No. 521 to the father of the answering
respondent.
The
petitioner
never
challenged the execution of the sale deed.
On the contrary, the petitioner turned
dishonest and he moved an application that
the proceedings should be initiated as the
transfer amounted to a transfer of a
fragment of land, hence was invalid. On
coming to know about the same, the
answering respondent moved before the
Additional Collector and orders were
passed. Accordingly, the name of the father
of the answering respondent was also
mutated on 18.8.1987 and while passing
the order dated 9th July, 1987, there was
full compliance of the principles of natural
576 INDIAN LAW REPORTS ALLAHABAD SERIES
justice. It is only the dishonest intention of
the petitioner which was reflected in the
proceedings that were sought to be pursued
by him. Even otherwise, assuming if the
land was a fragment then too it would vest
in the State and petitioner would not gain
anything to the contrary. It has also been
submitted that as a matter of fact, the State
Government has issued Notifications that in
case, there is a fragmentation then the
same can be regularized by making certain
deposits and, therefore, the sale deed would
not be void.

7. Having heard learned counsel for
the parties and having perused the counter
and rejoinder affidavits, it is evident that
the
rights
of
the
petitioner
stood
extinguished with the execution of the sale
deed. The petitioner had never challenged
the sale deed, as such it appears that the
petitioner has somehow the other tried to
cause damage to the answering respondent
for no valid reason. The petitioner would
not stand to gain anything except causing
sheer harassment to the respondent no. 4.
The contention of the respondent that the
petitioner would not stand to gain anything
appears to be correct.

8. In view of the fact that the petitioner
has been unable to make out any case for
interference in view of the facts that have
been brought on record and the findings
recorded by the authorities, I am not
inclined to interfere in the exercise of
jurisdiction under Article 226 of the
Constitution of India. The writ petition
lacks merit and it is accordingly dismissed.
Interim order granted earlier stands
discharged."

16. The judgment cited by learned
counsel
for
the
petitioners
are
not
applicable in the present controversy as
both the judgment are of year 1991 & 2000
while the Section 168-A of U.P.Z.A. & L.R.
Act has been omitted by U.P. Act No.27 of
2004
w.e.f.
23.08.2004
and
State
Government notification for validation of
sale deed which was hit by Section 168-A
of U.P.Z.A. & L.R. Act came into force on
05.04.2010.

17. It is also material that Civil Suit
No.4 of 2006 has been filed by respondent
Nos.7, 9 and 10 (vendor of petitioners) to
declare the sale-deed of respondent No.6 as
illegal, void and ineffective which is
pending for adjudication before civil court.

18. Considering the entire facts and
circumstances of the case as well as ratio of
law laid down by this Court in Smt.
Sumitra Devi (supra) and Deep Chand
(supra) coupled with the provisions of
validation
of
sale-deed
in
view
of
Government notification dated 05.04.2010,
no interference is required against the
impugned orders.

19. The writ petition is devoid of
merit
and
the
same
is
accordingly
dismissed.

20. No order as to cost.
----------
(2023) 1 ILRA 576
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.12.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MOHD. ASLAM, J.

Criminal Appeal No. 500 of 1984

Ram Shankar & Ors. ...Appellants
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants: