# Mahesh v. State Of U.P

- **Citation:** (2016) 8 ILRA 1062
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-16
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-v-state-of-u-p-44125
- **Pages:** 9

## Headnote

The aforesaid three appeals, the appellants have challenged the judgment and order of conviction dated
01.08.2005 passed by the Additional Sessions Judge, F.T.C. No.1, Hathras in Sessions Trial No.331 of 2001
arising out of Case Crime No.125 of 2001, (State Vs. Mohd. Alam and others), under Section 364-A IPC, Police
Station Hasayan, District Hathras, whereby the appellants were sentenced to life imprisonment coupled with
fine of Rs.1000/- each; default clause stipulates one month additional simple imprisonment to the concerned
convict.

Facts of this case, as unfolded by the first information, appear to be that first informant Mahendra Pratap
Singh son of Sri Hakim Singh resident of Nagla Danda Majra Jarera, Police Station Hasayan, District Hathras
gave written report (Ext. Ka-1) at aforesaid police station on 10.6.2001 alleging commission of offence of
kidnapping for ransom of his nephew Raja, to the effect that labourers used to come to his village for
harvesting wheat and paddy crop from state of Bihar. One among them, Mohd. Alam son of Jahid resident of
village-Bhagal, police station-Sontakhad, District Kishanganj, Bihar had come to his village one and half year
ago and he used to stay at the house of informant. He also worked as labourer in the village. Due to this, little
children of his house were familiar with him. He took advantage of his familiarity with children of the house
and he in collusion with one Data Ram and his two sons Naresh and Mahesh, kidnapped his nephew Raja
aged about three years on 07.06.2001. All the four persons are absconding from his village ever since.

In the result, the aforesaid appeals are partly allowed. The judgment and order of conviction dated
01.08.2005 passed by the Additional Sessions Judge, F.T.C. No.1, Hathras in Sessions Trial No.331 of 2001
arising out of Case Crime No.125 of 2001, (State Vs. Mohd. Alam and others), under Section 364-A IPC, Police
Station Hasayan, District Hathras, is altered/modified from Section 364A IPC to Section 365 IPC.
8 All. Mahesh Vs State Of U.P.
1063
In this case, appellant Mohd. Alam is in jail since 10.06.2001 and Naseem and Mahesh are in jail since
01.08.2005, therefore, Mohd. Alam has already spent over 15 years of incarceration, whereas, the other two
appellants Naseem and Mahesh have already spent about more than 11 years of incarceration. Therefore, the
respective period of imprisonment already undergone by the present appellants is justified, as the sentence
provided for the offence under Section 365 IPC, which they have already suffered in surplus. A fine of
Rs.1000/- each is also imposed on the appellants and in case of default in payment of fine the concerned
convict shall have to undergo additional imprisonment for one month.

In so far as payment of the amount of fine is concerned, the appellants are given one month's time to deposit
the same. In case the amount of fine is deposited by the appellants, they shall be released forthwith, if they
are not wanted in connection with any other case.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Held: Para-

Case Law discussed:

## Text

1062 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1062
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD16.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 3647 Of 2005
&
Connected With Other Cases

Mahesh ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Ajit Kumar Singh Solanki, Anshu Chaudhary, J. S. Sengar, M. K. Upadhyay, Noor Mohammad, P C Mishra,
Pramod Kumar Singh

Counsel for the Respondent:
Govt. Advocate

The aforesaid three appeals, the appellants have challenged the judgment and order of conviction dated
01.08.2005 passed by the Additional Sessions Judge, F.T.C. No.1, Hathras in Sessions Trial No.331 of 2001
arising out of Case Crime No.125 of 2001, (State Vs. Mohd. Alam and others), under Section 364-A IPC, Police
Station Hasayan, District Hathras, whereby the appellants were sentenced to life imprisonment coupled with
fine of Rs.1000/- each; default clause stipulates one month additional simple imprisonment to the concerned
convict.

Facts of this case, as unfolded by the first information, appear to be that first informant Mahendra Pratap
Singh son of Sri Hakim Singh resident of Nagla Danda Majra Jarera, Police Station Hasayan, District Hathras
gave written report (Ext. Ka-1) at aforesaid police station on 10.6.2001 alleging commission of offence of
kidnapping for ransom of his nephew Raja, to the effect that labourers used to come to his village for
harvesting wheat and paddy crop from state of Bihar. One among them, Mohd. Alam son of Jahid resident of
village-Bhagal, police station-Sontakhad, District Kishanganj, Bihar had come to his village one and half year
ago and he used to stay at the house of informant. He also worked as labourer in the village. Due to this, little
children of his house were familiar with him. He took advantage of his familiarity with children of the house
and he in collusion with one Data Ram and his two sons Naresh and Mahesh, kidnapped his nephew Raja
aged about three years on 07.06.2001. All the four persons are absconding from his village ever since.

In the result, the aforesaid appeals are partly allowed. The judgment and order of conviction dated
01.08.2005 passed by the Additional Sessions Judge, F.T.C. No.1, Hathras in Sessions Trial No.331 of 2001
arising out of Case Crime No.125 of 2001, (State Vs. Mohd. Alam and others), under Section 364-A IPC, Police
Station Hasayan, District Hathras, is altered/modified from Section 364A IPC to Section 365 IPC.
8 All. Mahesh Vs State Of U.P.
1063
In this case, appellant Mohd. Alam is in jail since 10.06.2001 and Naseem and Mahesh are in jail since
01.08.2005, therefore, Mohd. Alam has already spent over 15 years of incarceration, whereas, the other two
appellants Naseem and Mahesh have already spent about more than 11 years of incarceration. Therefore, the
respective period of imprisonment already undergone by the present appellants is justified, as the sentence
provided for the offence under Section 365 IPC, which they have already suffered in surplus. A fine of
Rs.1000/- each is also imposed on the appellants and in case of default in payment of fine the concerned
convict shall have to undergo additional imprisonment for one month.

In so far as payment of the amount of fine is concerned, the appellants are given one month's time to deposit
the same. In case the amount of fine is deposited by the appellants, they shall be released forthwith, if they
are not wanted in connection with any other case.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Held: Para-

Case Law discussed:

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. By way of the aforesaid three appeals, the appellants have challenged the judgment and
order of conviction dated 01.08.2005 passed by the Additional Sessions Judge, F.T.C. No.1,
Hathras in Sessions Trial No.331 of 2001 arising out of Case Crime No.125 of 2001, (State Vs.
Mohd. Alam and others), under Section 364-A IPC, Police Station Hasayan, District Hathras,
whereby the appellants were sentenced to life imprisonment coupled with fine of Rs.1000/- each;
default clause stipulates one month additional simple imprisonment to the concerned convict.

2. Heard at length Sri N.I. Jafri assisted by Sri Noor Mohammad, Shahroze Khan and Sri
S.P.S. Chauchan, learned counsels for the appellant and Sri Saghir Ahmad, Sri J. K. Upadhyay and
Kumari Meena, learned AGAs for the state.

3. Facts of this case, as unfolded by the first information, appear to be that first informant
Mahendra Pratap Singh son of Sri Hakim Singh resident of Nagla Danda Majra Jarera, Police
Station Hasayan, District Hathras gave written report (Ext. Ka-1) at aforesaid police station on
10.6.2001 alleging commission of offence of kidnapping for ransom of his nephew Raja, to the
effect that labourers used to come to his village for harvesting wheat and paddy crop from state of
Bihar. One among them, Mohd. Alam son of Jahid resident of village-Bhagal, police stationSontakhad, District Kishanganj, Bihar had come to his village one and half year ago and he used to
stay at the house of informant. He also worked as labourer in the village. Due to this, little children
of his house were familiar with him. He took advantage of his familiarity with children of the house
and he in collusion with one Data Ram and his two sons Naresh and Mahesh, kidnapped his
nephew Raja aged about three years on 07.06.2001. All the four persons are absconding from his
village ever since.
1064 INDIAN LAW REPORTS ALLAHABAD SERIES

4. On search being made, it was told by Sri Hari Prasad Sharma resident of Nagla Veer
Sahai that Mohd. Alam and Mahesh son of Data Ram were seen by him on the canal bridge
(culvert) and the child was in the lap of Mohd. Alam. Both were seen going away by bus towards
Sikandrarau. The first informant made hectic efforts for search of the child in and around
Sikandrarau, but in vain. Next day, Data Ram said to Pradeep Kumar (cousin brother of first
informant- Mahendra Pratap Singh) that in case Rs.2 lacs are spent by them, then the victim child
can be traced out. Pradeep Kumar agreed to the same and asked Data Ram that they will pay money
but he should disclose the whereabouts of the child. At this, Data Ram said that he will arrange his
talk with Naresh, whereupon, in the presence of several villagers, Naresh told that Mohd. Alam has
told him that he will come at Panth Crossing in Sikandrarau on 10.6.2001 at 2.00 p.m. Report be
lodged and appropriate action be taken. Scribe of this report is Om Veer Singh Raghav. This report
is Exhibit Ka-1.

5. Contents of this report were taken down in the Check FIR on 10.6.2001 at Crime No.125
of 2001, under Section 364A IPC at 8.45 a.m. at police station- Hasayan. Check FIR is Exhibit Ka6 on record.

6. On the basis of entries made in Check FIR, a case was registered against the present
appellants in the date and relevant general diary at aforesaid crime number at police station
Hasayan at 8.45 a.m. on 10.6.2001 under Section 364A IPC, copy whereof is Exhibit Ka-7. The
investigation of the case was entrusted to Mahendra Pratap Singh, SHO Hasayan who arrested
appellant Mohd. Alam at the instance of first informant and he recovered victim Raja on the
pointing out of the appellant Mohd. Alam from Naseem and Mahesh on 10.6.2001 at 7.00 p.m. The
Investigating Officer prepared recovery memo of the victim on the spot, which is Exhibit Ka-2.
Thereafter the victim was handed over to the custody of his father Naresh Pal Singh. This custody
memo of the victim is Exhibit Ka-3. The site plan of the place of recovery of the child was also
prepared by him, which is Exhibit Ka-4. The Investigating Officer recorded statements of various
witnesses and after completing the investigation filed charge-sheet against the appellants which is
Exhibit Ka-5.

7. Thereafter, the case of the appellants was committed to the court of sessions from where
it was eventually made over for trial to the court of Additional Sessions Judge, F.T.C. 1, Hathras,
where the appellants were heard on point of charge. The trial court framed charge under Section
364-A IPC against the present appellants. Charge was read over and explained to the accused, who
denied the charge and opted for trial. Thereafter, the prosecution was asked to adduce its testimony.
Prosecution in all has produced six witnesses. Brief reference of the same is as hereunder:-

8. Mahendra Pratap Singh P.W.1 is the first informant. He has proved written report
Exhibit Ka-1. Pradeep Kumar P.W.2 is witness of fact as well as witness to the fact of recovery of
the victim. Hari Prasad Sharma P.W.3 is also witness of fact and he has testified fact that he saw the
victim in the company of appellants Mohd. Alam and Mahesh on the day of occurrence (7.6.2001).
Vijay Pal Singh P.W.4 is also witness of fact as well as witness of extra-judicial confession
allegedly made by appellant Mohd. Alam. He is also witness of recovery of victim. Mahendra
8 All. Mahesh Vs State Of U.P.
1065
Pratap Singh, retired S.I. P.W.5 was the Investigating Officer. He has proved the entire
investigation and recovery of the victim and has also proved charge-sheet Exhibit Ka-5. HCP
Kalicharan P.W.6 is the Constable. He has proved Check FIR and the relevant GD entry.

9. Thereafter, evidence for the prosecution was closed and statement of the appellants were
recorded under Section 313 Cr.P.C., wherein, they termed their implication false and submitted that
they are innocent and no incident of kidnapping for ransom ever took place.

10. The accused Mahesh has stated that he has been falsely implicated in this case on
account of conspiracy hatched up for expelling him from the village.

11. The accused Mohd. Alam has stated that informant side exploited him as bonded labour
and they did not pay his wages due to him for about four years and when he demanded the same, he
was falsely implicated in this case in collusion with the police.

12. The accused Naseem also stated on similar lines and he also asked for his wages due to
him, which was refused and he was falsely implicated in this case in collusion with police.

13. Defence, in turn, has produced D.W.1 Kalyan Singh.

14. Learned trial court after hearing both the parties on merit passed the aforesaid judgment
and order of conviction and sentence dated 01.08.2005 against the present appellants.

15. Consequently, this appeal.

16. We have been vehemently persuaded on behalf of the appellants that in this case, when
the case was considered on merit by the trial court then on the same evidence, the two other coaccused Data Ram and Naresh were acquitted by the trial court by means of the same judgment
holding that demand of ransom was not proved against them, whereas, the case of the present
appellants stands on better footing than that of the aforesaid two accused Data Ram and Naresh.
Testimony on point of demand for ransom by the appellants is altogether missing and finding of
conviction, thus, has become perverse and erroneous.

17. PW-1 Mahendra Pratap Singh son of Hakim Singh is vacillating in his testimony and he
has not been consistent; instead he appears to have been improving the prosecution version against
the appellants. His testimony before trial court is in sheer contrast to his statement given to the
Investigating Officer.

18. Similar is the testimony of other witnesses of fact. The entire story of recovery of
victim Raja was planted by the first informant and the Investigating Officer of this case. No such
incident of kidnapping for ransom ever took place. The testimony appearing against the present
appellants at the most can be taken to be confined to the extent of kidnapping with an intent to
confine the victim secretly and wrongfully. There is no iota of evidence against the present
1066 INDIAN LAW REPORTS ALLAHABAD SERIES

appellants that they were directly involved in demanding any ransom for kidnapping, therefore, the
case of the appellants is not covered under Section 364-A IPC. For the sake of argument it can be
inferred that the appellants have committed offence under Section 365 IPC.

19. Cumulative reading of testimony of prosecution witnesses of fact will lead one, at the
most, to the inference and conclusion that the case is covered under Section 365 IPC rather than
under Section 364A IPC.

20. It has been claimed by learned counsel for the appellants that Mohd. Alam is in jail
since 10.6.2001. Naseem and Mahesh are in jail since 1.8.2005. Even the first informant could not
testify categorically against the appellants regarding demand for ransom by them.

21. Learned counsel for the appellants summed up that though the testimony of the
prosecution witnesses of fact is shaky and inconsistent as a whole, but the same is altogether
missing regarding fact of demand for ransom. Therefore, the case is not covered under Section
364A IPC.

22. Per contra, learned AGA has submitted that specific argument regarding the case being
not covered under Section 364A IPC is without any substance. The entire testimony on record and
its cumulative effect overwhelmingly covers the case of the appellants under Section 364A IPC.

23. The recovery of the child was made from the appellants and the Investigating Officer
has proved the recovery. Apart from that, the prosecution witnesses have also proved recovery of
the child from the present appellants. The learned trial court was justified in recording conviction
under Section 364 A IPC and has recorded just conviction and sentence against the appellants.

24. Also considered the above submissions pros and cons. In view of the arguments
advanced, particularly on behalf of the appellants, this appeal is confined to the point as to whether
the appellants' case is covered under Section 365 IPC instead of Section 364A IPC (?), or they are
entitled to acquittal against charge under Section 364A IPC?

25. Before we proceed further with the meritorial aspect of the case on the point under
consideration, it would be appropriate to have a dip into the contents of first information report. It is
reflected from written report (Exhibit Ka-1) that the nephew of the first informant was kidnapped
on 07.06.2001. However, time of disappearance/kidnapping of the victim has not been mentioned
in the first information report.

26. This incident of kidnapping took place on 07.06.2001 and on the very next day, one
Hari Prasad Sharma (P.W.3) told the first informant that he saw the victim in the company of
Mohd. Alam and Mahesh on canal bridge (culvert) and they were going by bus to Sikandararau.
Though search was made for the victim but whereabout of the victim was not known. Data Ram
(acquitted co-accused) said to one Pradeep Kumar, (cousin brother of informant) that child will be
returned if Rs.2 lacs are spent. As a sequel to it, the money was arranged and Data Ram was asked
8 All. Mahesh Vs State Of U.P.
1067
to divulge the whereabouts of the child, whereupon, he facilitated their talk with co-accused
Naresh, who, in presence of, the villagers told that Mohd. Alam will come on Panth Crossing at
Sikandararau on 10.6.2001 at 2.00 p.m. and thereafter, recovery of the child was made on
10.6.2001 at 7.00 p.m. from Mahesh, Naseem and Mohd. Alam- the present appellants.

27. It is obvious that the first information report was lodged at 8.45 a.m. on 10.6.2001 and
the recovery of the victim was made at 7 p.m. on 10.6.2001. We have also scanned carefully entire
evidence of all the prosecution witnesses of fact and particularly, on point of demand for ransom,
whether it was so made by the present appellants. We could neither discover any testimony on the
point nor could we infer from attendant circumstances that it was so made by the appellants.
Certainly, act of the appellants brings their case within purview of kidnapping with intent secretly
and wrongfully to confine person. It is established by evidence that the victim was recovered from
their possession on 10.6.2001 at 7.00 p.m.

28. The attention of this Court has been invited to the testimony of Hari Prasad Sharma
P.W.3 as appearing in the last paragraph of his testimony in his cross-examination on page-31 of
the paper book, wherein he has sated that Data Ram never indulged in any sort of talk concerning
demand for ransom with Pradeep Kumar, Mahendra Pratap Singh etc.

29. In this view of the matter, testimony of P.W.3-Hari Prasad Sharma on point of demand
for ransom by the present appellants or their indulgence for the same is not proved. However, the
fact of recovery of the victim from possession of the appellants on the pointing out of appellant
Mohd. Alam is very much proved by the testimony of prosecution witnesses and the recovery
memo of victim Raja is very much proved, as Exhibit Ka-2.

30. At this stage it would be appropriate to discuss testimony of Mahendra Pratap Singhretired S.I.-who was the Investigating Officer of this case. He has deposed that he arrested Mohd.
Alam at the instance of informant and thereafter relevant information was extracted from Mohd.
Alam which led to recovery of co-accused Naseem and Mahesh where recovery of victim Raja was
also made. A recovery memo (Exhibit ka-2) was prepared on the spot. He has stated that he started
for place of recovery from Panth Crossing around 6.00 P.M. and reached to the spot in 7-8 minutes,
left behind his Jeep 20.25 steps before the spot of recovery.

31. Also, fact of recovery of victim has been testified by Vijay Pal Singh-P.W.4 when he
sated that Raja was recovered at the pointing out of Mohd. Alam at that relevant point of time Raja
was sitting in the lap of Naseem and accused Mahesh was giving Raja some eatable. Informant
identified his son Raja. I.O. and the witnesses with the help of other persons surrounded the
accused, arrested them and recovered Raja from their possession around 7.00 p.m. on 10.6.2001.

32. Thus testimony on record brings case of appellants within purview of Section 365 IPC.
At this stage it would be relevant to extract Section 365 IPC:
1068 INDIAN LAW REPORTS ALLAHABAD SERIES

"365. Kidnapping or abducting with intent secretly and wrongfully to confine
person.--Whoever kidnaps or abducts any person with intent to cause that person to be secretly and
wrongfully con-fined, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine."

33. Thus after careful scrutiny of facts and testimony on record we do not come across any
specific piece of evidence, which may give any force or credence to the claim of the prosecution
that the present appellants kidnapped Raja for ransom.

34. Here in the present case, the offence proved is one of kidnapping with intent to confine
Raja secretly and wrongfully. The learned trial court, while appreciating testimony on record and its
cumulative effect, failed to take integral view of the matter and has misread the evidence on the
point of applicability of relevant section of IPC, convicted the appellants under Section 364A IPC
and passed sentence against them- which under facts and circumstances of this case was not
justified.

35. We have no hesitation in expressing at this stage that learned trial court has already
acquitted the two other co-accused Naresh and Data Ram by the same judgment and order giving
benefit of doubt against whom some reference of ransom erupts in prosecution testimony. To hold
that the present appellants were directly involved in demanding ransom for release of victim (Raja)
is not justified, under facts and circumstances of the case qua testimony of prosecution witnesses as
a whole.

36. We are mindful of legal proposition that conviction under Section 364A IPC is
primarily based on demand for ransom and there should be positive evidence regarding any such
demand made by the accused person. Point under context takes us to careful scrutiny of the
testimony of witnesses of fact particularly P.W.1, P.W.2, P.W.3 and P.W.4, these witnesses
nowhere testify that any ransom was demanded by the present appellants. The incriminating
circumstances against the appellants are very much confined to the recovery of the child from their
possession on the pointing out of Mohd. Alam.

37. On the one hand our thoughtful consideration of the testimony on record takes us to fact
that indulgence of the present appellants for any demand for ransom is found to be altogether
missing and on this count, the prosecution has failed, out and out, to establish the essential
ingredients of such demand as required under Section 364A IPC. Therefore, the essential
ingredients of Section 364A IPC are not existing against the present appellants. On the other hand,
the offence alleged and proved against the present appellants squarely falls within the ambit and
purview of Section 365 IPC.

38. Accordingly, we are of the firm opinion that conviction of appellants recorded by the
trial court under Section 364A IPC should be altered and modified to one under Section 365 IPC
only. The conviction and sentence so awarded stands modified accordingly.
8 All. Mahesh Vs State Of U.P.
1069
39. As per the dictum contained under Section 365 IPC, the offence is punishable with
imprisonment of either description for a term which may extend to seven years, coupled with fine.

40. In the result, the aforesaid appeals are partly allowed. The judgment and order of
conviction dated 01.08.2005 passed by the Additional Sessions Judge, F.T.C. No.1, Hathras in
Sessions Trial No.331 of 2001 arising out of Case Crime No.125 of 2001, (State Vs. Mohd. Alam
and others), under Section 364-A IPC, Police Station Hasayan, District Hathras, is altered/modified
from Section 364A IPC to Section 365 IPC.

41. In this case, appellant Mohd. Alam is in jail since 10.06.2001 and Naseem and Mahesh
are in jail since 01.08.2005, therefore, Mohd. Alam has already spent over 15 years of
incarceration, whereas, the other two appellants Naseem and Mahesh have already spent about
more than 11 years of incarceration. Therefore, the respective period of imprisonment already
undergone by the present appellants is justified, as the sentence provided for the offence under
Section 365 IPC, which they have already suffered in surplus. A fine of Rs.1000/- each is also
imposed on the appellants and in case of default in payment of fine the concerned convict shall
have to undergo additional imprisonment for one month.

42. In so far as payment of the amount of fine is concerned, the appellants are given one
month's time to deposit the same. In case the amount of fine is deposited by the appellants, they
shall be released forthwith, if they are not wanted in connection with any other case.

43. Let a copy of this order be certified to the concerned trial court for its intimation and
follow up action.
---------
1070 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1070
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.8.2016

BEFORE

THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE VIPIN SINHA, J.

Writ A / Civil Misc. Writ Petition No.- 16006 Of 2016

Arvind Kumar ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
T.P. Singh (Senior Counsel), Siddharth Nandan

Counsel for the Respondents:
Ramesh Upadhyay (Chief Standing Counsel)

This bunch of writ petitions involves a common question and has been decided together. The
petitioners offered their land for sale under the "Green Field Project (Agra to Lucknow) Entry
Control Express Way" pursuant to notification issued under Section 4 of the Land Acquisition Act.
The Committee constituted under Government Order dated 02.09.2013 approved the rate of
Rs.800/- per square metre treating the land as abadi land on the basis of order dated 30.07.2012
passed under Section 5(1)(c) of the U.P. Consolidation of Holdings Act, 1953. The petitioners
accepted the said rate and executed registered sale deeds on 30.12.2014. Subsequently, the
respondents issued recovery notices dated 23.11.2015 for recovery of the amount paid, alleging
that the land was actually agricultural land and not abadi, and that ante-dated orders were
passed under the Consolidation Act in collusion with the petitioners. The objections filed by the
petitioners were rejected by the Collector vide order dated 07.03.2016, which is under challenge.

The petitioners contended that once the offer was made by the respondents, accepted by them
and registered sale deeds were executed after payment of consideration, the amount cannot be
recovered as arrears of land revenue on mere allegations of fraud or wrong classification of land.
It was further submitted that the order treating the land as abadi has not been cancelled till
date.

All the writ petitions are allowed. The recovery notices and the impugned orders are quashed.

Held: Para- The Court held that so long as the order dated 30.07.2012 passed under Section
5(1)(c) of the U.P. Consolidation of Holdings Act treating the land as abadi remains in existence
and has not been set aside, the respondents cannot treat the land as agricultural land and
recover the amount as arrears of land revenue. Mere allegations of collusion or ante-dating of
the order have not been proved. Even if excess amount was paid on account of wrong rate being
offered by the respondents, the same cannot be recovered as arrears of land revenue. In case of
any fraud, the only remedy available to the respondents is to file a suit for cancellation of the
sale deed. At present, there is a concluded contract and a registered sale deed. The stipulation in