# Pawan Kumar v. State of U.P. & Ors

- **Citation:** (2025) 3 ILRA 812
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-17
- **Case number:** Writ C No. 1001723 of 2003
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-v-state-of-u-p-ors-53242
- **Pages:** 8

## Headnote

(A) Revenue Law - Stamp Duty - Legality
of
orders
under
Stamp
Act
and
interpretation
of
agreement
vis-à-vis
transfer of possession - Indian Stamp Act,
1899 - Sections 56 & 47A/33 - U.P.
Zamindari Abolition and Land Reforms
Act,
1950
-
Section
164
-
Indian
Registration
Act,
1908
-
Relevant
Provisions - Transfer of possession alone
is not sufficient for applicability of Section
164; transfer of possession must be in
pursuance
of
transfer
of
holding
-
Registered instrument necessary for value
exceeding Rs.100 - Legal pre-condition for
Section 164 not established - agreement
to
sell
cannot
confer
title.(Para
-
6,8,14,15,16)

Petitioner challenged orders passed under the
Indian Stamp Act - regarding deficiency of
stamp
duty
on
tenancy
agreement
and
subsequent revision - both orders passed
without recording reasons or findings. (Para - 2
to 5)

HELD: - Court quashed the orders passed
under Sections 56 and 47A/33 of the Indian
Stamp Act, holding that they lacked reasons and
findings. Mere delivery of possession under an
unregistered agreement does not constitute a
valid transfer under Section 164 of the U.P. ZA
& LR Act. (Para -16 to 18)

Writ Petition allowed. (E-7)

List of Cases cited:
3 All. Pawan Kumar Vs. State of U.P. & Ors.
813

## Text

812 INDIAN LAW REPORTS ALLAHABAD SERIES
copy whereof was not even supplied to the
employee and no show cause notice having
been issued to him, the termination was
apparently stigmatic in nature, which could
not have been done without following the
principles of natural justice.

10. We do not need to join issue
with the judgments cited by learned
counsel appearing on behalf of the
respondents as the principle therein is
accepted by us that an Advocate cannot file
a writ petition for recovery of this
professional fees. However, the present
factual matrix of the case is completely
different, wherein recovery is being sought
by the client (F.C.I.) against the Advocate
(petitioner) by way of setting off alleged
excess payments against the payments that
are due to be paid to the petitioner in
future.

11. In light of above discussion,
the impugned orders dated 05.03.2024
(Annexure
No.
13),
24/28.06.2022
(Annexure No. 10), 24.06.2022 (Annexure
No. 8) and 16.02.2022 (Annexure No. 5) by
the
respondent-Corporation
cannot
be
sustained and are quashed and set aside.

12. Liberty is granted to the Food
Corporation of India to proceed de-novo
with the investigation against the petitioner,
if it wishes to do so. However, the
Corporation
must
comply
with
the
principles of natural justice as enunciated
above.

13. The writ petition stands
disposed of.
----------
(2025) 3 ILRA 812
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.03.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ C No. 1001723 of 2003

Pawan Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
A.N. Mishra, Virendra Misra

Counsel for the Respondents:
C.S.C.

(A) Revenue Law - Stamp Duty - Legality
of
orders
under
Stamp
Act
and
interpretation
of
agreement
vis-à-vis
transfer of possession - Indian Stamp Act,
1899 - Sections 56 & 47A/33 - U.P.
Zamindari Abolition and Land Reforms
Act,
1950
-
Section
164
-
Indian
Registration
Act,
1908
-
Relevant
Provisions - Transfer of possession alone
is not sufficient for applicability of Section
164; transfer of possession must be in
pursuance
of
transfer
of
holding
-
Registered instrument necessary for value
exceeding Rs.100 - Legal pre-condition for
Section 164 not established - agreement
to
sell
cannot
confer
title.(Para
-
6,8,14,15,16)

Petitioner challenged orders passed under the
Indian Stamp Act - regarding deficiency of
stamp
duty
on
tenancy
agreement
and
subsequent revision - both orders passed
without recording reasons or findings. (Para - 2
to 5)

HELD: - Court quashed the orders passed
under Sections 56 and 47A/33 of the Indian
Stamp Act, holding that they lacked reasons and
findings. Mere delivery of possession under an
unregistered agreement does not constitute a
valid transfer under Section 164 of the U.P. ZA
& LR Act. (Para -16 to 18)

Writ Petition allowed. (E-7)

List of Cases cited:
3 All. Pawan Kumar Vs. State of U.P. & Ors.
813
1. Mohammad Fasih, Appellant Vs Munir Khan &
anr., Respondents, 1987 All. L.J. 617

2. Umesh Chand & ors. Vs Board of Revenue,
U.P., Alld. & ors., 2002 SCC Online All 1508 :
2002 All LJ 680

3. Rama Shanker & ors. Vs D.D.C., Writ B
No.5314 of 1980

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Virendra Misra, learned
counsel for the petitioner and learned
Additional Chief Standing Counsel for the
respondent - State.

2. By means of present writ
petition, the petitioner is challenging the
order
dated
14.05.2003
passed
by
Commissioner,
Faizabad
Division,
Faizabad in revision No.73 Barabanki
under Section 56 of Indian Stamp Act;
Pawan Kumar Agrawal Vs. State of U.P.
and others and order dated 05.03.2001
passed by Additional District Magistrate,
(Finance and Revenue) (ADM - F&R),
Barabanki in case No.80/2000-01 under
Section 47A/33 Indian Stamp Act; State of
U.P. Vs. Pawan Kumar Agrawal.

3. Factual matrix of the case is that
the petitioner took a piece of land area
measuring 130 Ft. in east to west side and
350 Ft. in north-south length of Gata
No.171 and 173 situated at revenue village
Satrahi Pargana and Tehsil Haidergarh,
District Barabanki. A notice was issued by
the Collector, Stamps, Barabanki, which
was replied by the petitioner on 14.09.1998
and specifically denied the allegations and
justified the assessment of stamps of
instrument of tenancy of land in question.

4. The Tehsildar, Haidergarh
prepared a report and found a deficiency of
stamp of value of Rs.1200/-. The ADM
(F&R)/Collector
Stamps,
Barabanki
discarded the explanation and response
submitted by the petitioner on 14.09.1998
and also ignored the report submitted by
the Tehsildar without making any finding
and observation and decided the case
finally on 09.06.1999.

5. The Tehsildar, without assigning
any
reason,
observation
and
finding
decided the restoration application filed by
the petitioner vide order dated 05.03.2001.
Against the order passed by ADM (F&R),
the petitioner preferred a revision against
order dated 05.03.2001, which was also
dismissed by the Commissioner without
assigning any reason and without giving
any finding on the report of the Tehsildar
and explanation of the petitioner. Hence,
the present writ petition has been filed
before this Court.

6. Submission of learned counsel
for the petitioner is that in view of Section
164, U.P. Zamindari Abolition and Land
Reforms Act (U.P. ZA&LR Act), the
agreement in question would be deemed to
be a transfer inasmuch as it was admitted
therein that possession over the property in
suit had been delivered to the respondents
in pursuance of the said agreement. Since
possession over the property had been
transferred to the respondents in pursuance
of the said agreement, the agreement was
for all purposes a sale of the property. This
submission also is on the face of it
untenable. Section 164, U.P. ZA&LR Act
deals with transfer with possession by a
bhumidhar. It contemplates transfer of any
holding or any part thereof made by a
bhumidhar
by
which
possession
is
transferred to the transferee for the purpose
of securing any payment of money referred
to in the said section. On the face of it for
814 INDIAN LAW REPORTS ALLAHABAD SERIES
the application of Section 164 transfer of
possession alone is not sufficient. What is
required by the section is transfer of
possession made in pursuance of transfer of
any holding or part thereof. Since an
agreement of sale does not have the effect
of transferring any holding or part thereof
even if possession was transferred of the
holding in pursuance of the said agreement,
it cannot be said that the agreement
amounted to a sale under Section 164.
Section 164 contemplates transfer by a
bhumidhar. In support of his submission, he
placed reliance upon a judgment in the case
of Mohammad Fasih, Appellant Vs. Munir
Khan and another, respondents; 1987 All.
L.J. 617, paragraph 16.

7. Next submission of learned
counsel for the petitioner is that on perusal
of impugned order, it is clear that any
transfer of any holding regarding an
amount of Rs.100/- or more can be only
executed by registered documents. "Any
transfer of any holding" referred to under
Section 164 of U.P. ZA&LR Act refers to
transfer of any interest in any holding if the
value is more than 100 rupees of
immovable property, the transfer has to be
effected in accordance with law. No right or
interest can pass in in immovable property
in a manner contrary to provisions of
Transfer of Property Act and Indian
Registration Act.

8. His next submission is that
transfer of possession alone is not sufficient.
What is required by the section is transfer of
possession made in pursuance of transfer of
any holding or part thereof. Thus, the
applicability of Section 164 transfer of
possession has to be in pursuance of transfer
of any holding. Transfer of any holding is
condition
precedent
for
transfer
of
possession. Thus even if possession is
transferred by bhumidhar without transferring
any interest in the holding, the said transfer
cannot be covered by Section 164 of U.P. ZA
& LR Act. In support of his submissions, he
placed reliance upon a judgment in the case
of Umesh Chand and others Vs. Board of
Revenue, U.P. Allahabad and others; 2002
SCC Online All 1508 : 2002 All LJ 680,
paragraph 18, 19, 20 & 21.

9. 9. He further placed reliance upon
a judgment in the case of Rama Shanker and
others Vs. D.D.C.; Writ B No.5314 of 1980
decided on 18.02.2020, wherein Division
Bench of this Court was followed as referred
hereinabove. Relevent paragraphs are 18, 19
& 20.

10. On the other hand, learned
Additional Chief Standing Counsel submitted
that the impugned order passed by the
respondents do not suffer from any infirmity
or illegality and are just and valid.

11. His next submission is that on
the basis of agreement possession was
transferred to the transferee, therefore, the
judgment relied upon by learned counsel for
the petitioner do not apply to the present facts
and circumstances of the case.

12.

I
have
considered
the
submissions advanced by learned counsel for
the parties and perused the material on record
as well as judgments relied upon by learned
counsel for the petitioner.

13. To resolve the controversy
involved in the matter, relevant portion of
the judgments relied upon are being quoted
below:

i) Mohammad Fasih, Appellant
V.
Munir
Khan
and
another,
Respondents; 1987 All. L.J. 617:
3 All. Pawan Kumar Vs. State of U.P. & Ors.
815
"16)
Counsel
for
the
respondents in this connection
urged that in view of S. 164, U.P.
Zamindari Abolition and Land
Reforms Act, the agreement in
question would be deemed to be
a transfer inasmuch as it was
admitted therein that possession
over the property in suit had
been delivered to the respondents
in
pursuance
of
the
said
agreement. According to him
since
possession
over
the
property had been transferred to
the respondents in pursuance of
the said agreement the agreement
was for all purposes a sale of the
property. This submission also is
on the face of it untenable.
Section 164, U.P. Zamindari
Abolition and Land Reforms Act,
deals
with
transfer
with
possession by a bhumidhar. It
contemplates transfer of any
holding or any part thereof made
by
a
bhumidhar
by
which
possession is transferred to the
tranaferee for the purpose of
securing any payment of money
referred to in the said section.
On teh face of it for the
application of S. 164 transfer of
possession alone is not sufficient.
What is required by the section is
transfer of possession made in
pursuance of transfer of any
holding or part thereof. Since an
agreement of sale does not have
the effect of transferring any
holding or part thereof even if
possession was transferred of the
holding in pursuance of the said
agreement it cannot be said that
the agreement amounted to a sale
under S. 164. Moreover, S. 164
contemplates
transfer
by
a
bhumidhar. .........................."

ii) Umesh Chand and others V.
Board of Revenue, U.P., Allahabad and
others; 2002 SCC Online All 1508 : 2002
All LJ 680:

"18.
From
the
above
discussions, it is clear that any
transfer of any holding regarding
an amount of Rs. 100 or more can
be only executed by registered
documents. "Any transfer of any
holding" referred to under Section
164 of U.P. Zamindari Abolition
and Land Reforms Act refers to
transfer of any interest in any
holding if the value is more than
100 rupees of immovable property,
the transfer has to be effected in
accordance with law. No right or
interest can pass in immovable
property in a manner contrary to
provisions of Transfer of Property
Act and Indian Registration Act.
The Division Bench of this Court in
Mohd. Fasih v. Munir Khan, 1987
ALJ 617, considered the scope and
ambit of Section 164 of U.P.
Zamindari Abolition and Land
Reforms Act. The Division Bench
held in paragraph 16,
"16.
Counsel
for
the
respondents in this connection
urged that in view of Section 164,
U.P. Zamindari Abolition and Land
Reforms Act, the agreement in
question would be deemed to be a
transfer
inasmuch
as
it
was
admitted therein that possession
over the property in suit had been
delivered to the respondents in
pursuance of the said agreement.
According to him since possession
816 INDIAN LAW REPORTS ALLAHABAD SERIES
over
the
property
had
been
transferred to the respondents in
pursuance of the said agreement
the agreement was for all purposes
a sale of the property. This
submission also is on the face of it
untenable.
Section
164,
U.P.
Zamindari Abolition and Land
Reforms Act. deals with transfer
with possession by a bhumidhar. It
contemplates
transfer
of
any
holding or any part thereof made
by
a
bhumidhar
by
which
possession is transferred to the
transferee for the purpose of
securing any payment of money
referred to in the said section. On
the face of it for the application of
Section 164 transfer of possession
alone is not sufficient. What is
required by the section is transfer
of possession made in pursuance of
transfer of any holding or part
thereof. Since an agreement of sale
does
not
have
the
effect
of
transferring any holding or part
thereof even if possession was
transferred of the holding in
pursuance of the said agreement it
cannot be said that the agreement
amounted to a sale under Section
164.
Moreover,
Section
164
contemplates
transfer
by
a
bhumidhar."

19. The Division Bench in
the aforesaid judgment has clearly
held that under Section 164,
transfer of possession alone is not
sufficient. It held "what is required
by the section is transfer of
possession made in pursuance of
transfer of any holding or part
thereof." Thus, for applicability of
Section 164, transfer of possession
has to be in pursuance of transfer
of any holding. Transfer of any
holding is condition precedent for
transfer of possession. Thus, even if
possession
is
transferred
by
bhumidhar
without
transferring
any interest in the holding, the said
transfer cannot be covered by
Section 164 of U.P. Zamindari
Abolition and Land Reforms Act.
As observed above, transfer of any
right in a holding by bhumidhar
can be made of a value more than
Rs. 100 by registered document.
The Division Bench has also
clearly held that even if by
registered
agreement
to
sale,
transfer of possession is made by
bhumidhar, the said transfer will
not be covered by Section 164 of
U.P. Zamindari Abolition and Land
Reforms Act since by agreement to
sale, no right or interest is
transferred in the holding. When by
registered agreement to sale with
transfer of possession does not
come within Section 164 of U.P.
Zamindari Abolition and Land
Reforms Act, there is no question of
applying provisions of Section 164
of U.P. Zamindari Abolition and
Land Reforms Act in the facts of the
present case whereas, as noted
above, only a plain receipt of
revenue stamp was given by the
father of defendants as advance for
transferring the land in dispute.
The case of the plaintiff, as noted
above, clearly indicates that the
transaction was more or less in the
nature of agreement to sale. In view
of
the
Division
Bench
pronouncement, it is clear that
provisions of Section 164 of U.P.
Zamindari Abolition and Land
3 All. Pawan Kumar Vs. State of U.P. & Ors.
817
Reforms Act are not attracted in the
facts of the present case.
20. This Court in several
other decisions has taken the same
view. In Data Ram v. Additional
Civil Judge, Bulandshahr and Anr.,
1978 ALJ 840, this Court held that
there must be a transfer of holding
in law, such as to transfer some
right, title or interest of the tenure
holder in the holding. It was held in
paragraph 4 that :
"4. Having given the matter
my anxious consideration, I am
unable to agree with the contention
of the learned counsel. Although
Section 164 speaks of "any transfer
of any holding or part thereof made
by a bhumidhar", it does not mean
that the transfer of holding spoken
of thereby may be merely a transfer
of possession over land included in
the holding. There must be a
transfer of the holding in law, such
as to transfer some right, title or
Interest of the tenure holder in the
holding. A transfer of interest in
holding cannot be effected in case
of property valued at more than Rs.
100
without
a
registered
Instrument. Even if there is transfer
of possession under an unregistered
agreement, there is no transfer of
any right, title or interest of the
tenure-holder in the holding. In my
opinion
a
bare
transfer
of
possession of land by a tenureholder, may be for securing any
payment of any advance to him, is
not covered by Section 164 of the
U.P. Zamindari Abolition and Land
Reforms Act, 1950. The object of
Section 164 is to convert such
transactions as a Zarpeshgi lease
or a usufructuary mortgage into
sale, and not to convert mere
transfers of possession of land by a
tenure holder without any transfer
of Interest in the holding into sales.
In this view of the matter the order
of the Additional Civil Judge
cannot be said to suffer from any
error of law."
21. In 1978 Rev. Dec 307 :
(1978 All LJ 836) Kedar v. District
Judge, Banda it was held that :
"Before
this
provision
applies, the transaction in question
has to be a transfer. An agreement
to sell cannot be held to be transfer
as contemplated by this section, for
no title passes to another person as
a result of the transaction. This
apart, even assuming that such an
agreement would fall within the
purview of Section 164 of the Act,
inasmuch
as
the
Instrument
evidencing it was not a registered
one, no title at all could pass under
this document as the consideration
in the agreement to sell was in
excess of Rs. 100. This contention
must, therefore, be rejected."

iii) Rama Shanker and others V.
D.D.C., Writ B No.5314 of 1980 decided
on 18.02.2020:

19. The division bench in
the case of Mohd. Fasih (supra)
also had the occasion to examine
the same issue. It specifically dealt
with the precise submission being
advanced
by
learned
Senior
Counsel for the petitioners, at page
41 of the report, wherein it was
observed as under:-
"Counsel
for
the
respondents in this connection
urged that in view of Section 164 of
818 INDIAN LAW REPORTS ALLAHABAD SERIES
the U.P. Zamindari Abolition and
Land Reforms Act the agreement in
question would be deemed to be a
transfer
inasmuch
as
it
was
admitted therein that possession
over the property in suit had been
delivered to the respondents in
pursuance of the said agreement.
According to him since possession
over
the
property
had
been
transferred to the respondents in
pursuance of the said agreement
the agreement was for all purposes
a sale of the property. This
submission also is on the face of it
untenable. Section 164 of the U.P.
Zamindari Abolition and Land
Reforms Act deals with transfer
with possession by a Bhumidhar. It
contemplates
transfer
of
any
holding or any part thereof made
by
a
Bhumidhar
by
which
possession is transferred to the
transferee for the purpose of
securing any payment of money
referred to in the said section. On
the face of it for the application of
Section 164 transfer of possession
alone is not sufficient. What is
required by the section is transfer
of possession made in pursuance of
transfer of any holding or part
thereof. Since an agreement of sale
does
not
have
the
effect
of
transferring any holding or part
thereof even if possession was
transferred of the holding in
pursuance of the said agreement it
cannot be said that the agreement
amounted to a sale under Section
164."
20.
In
view
of
the
authoritative pronouncement of law
made by the division bench and in
absence of any contrary law being
shown to exist, the submission
being advanced on the strength of
Section 164 of the Zamindari Act,
clearly does not survive for any
active
consideration.
Since
a
simple agreement to sell does not
have the effect of transferring any
holding,
mere
passing
of
possession, even if proved, could
not have given birth to title in
favour of Nepal, under section 164
of the Zamindari Act. The essential
pre-condition of Section 164 of the
Zamindari Act, was never claimed
or
proven
to
have
existed.
Indisputably, the burden to prove
such fact was on Nepal, which was
never discharged. Existence or
otherwise of such contract as may
have given rise to possession in
favour of Nepal would remain a
factual plea. It was never raised
before the fact finding authorities.
It cannot be raised now."

14. In the case of Mohammad
Fasih (Supra), it has been held that since
possession over the property had been
transferred to the respondents in pursuance
of the said agreement, the agreement was
for all purposes a sale of the property. This
submission also is on the face of it
untenable. Section 164, U.P. ZA&LR Act
deals with transfer with possession by a
bhumidhar. It contemplates transfer of any
holding or any part thereof made by a
bhumidhar
by
which
possession
is
transferred to the transferee for the purpose
of securing any payment of money referred
to in the said section. On the face of it for
the application of Section 164 transfer of
possession alone is not sufficient. What is
required by the section is transfer of
possession made in pursuance of transfer of
any holding or part thereof. Since an
3 All. Raju Vs. The Collector Sitapur & Ors.
819
agreement of sale does not have the
effect of transferring any holding or part
thereof even if possession was transferred
of the holding in pursuance of the said
agreement, it cannot be said that the
agreement amounted to a sale under
Section 164. Section 164 contemplates
transfer by a bhumidhar.

15. In the case of Umesh Chand
and another (Supra), it has been held that
it is clear that any transfer of any holding
regarding an amount of Rs.100/- or more
can be only executed by registered
documents. "Any transfer of any holding"
referred to under Section 164 of U.P.
ZA&LR Act refers to transfer of any
interest in any holding if the value is more
than 100 rupees of immovable property, the
transfer has to be effected in accordance
with law. No right or interest can pass in in
immovable property in a manner contrary
to provisions of Transfer of Property Act
and Indian Registration Act.

16. In the case of Rama Shanker and
others (Supra), it has been held that since a
simple agreement to sell does not have the effect
of transferring any holding, mere passing of
possession, even if proved, could not have given
birth to title in favour of Nepal, under section 164
of the Zamindari Act. The essential pre-condition
of Section 164 of the Zamindari Act, was never
claimed or proven to have existed.

17. In view of facts
and
circumstances
of
present
case,
the
judgments relied upon by learned counsel
for the petitioner are fully applicable to the
present case and in view of reasoning
recorded therein, the writ petition deserves
to be allowed.

18. Accordingly, the impugned
order
dated
14.05.2003
passed
by
Commissioner,
Faizabad
Division,
Faizabad in revision No.73 Barabanki
under Section 56 of Indian Stamp Act;
Pawan Kumar Agrawal Vs. State of U.P.
and others and order dated 05.03.2001
passed by Additional District Magistrate,
(Finance and Revenue) (ADM - F&R),
Barabanki in case No.80/2000-01 under
Section 47A/33 Indian Stamp Act; State of
U.P. Vs. Pawan Kumar Agrawal are hereby
quashed.

19. The writ petition succeeds and
is allowed.

20. No order as to costs.
----------
(2025) 3 ILRA 819
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.03.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ C No. 1002243 of 2001

Raju ...Petitioner
Versus
The Collector Sitapur & Ors.
 ...Respondents

Counsel for the Petitioner:
Avadhesh Kumar

Counsel for the Respondents:
C.S.C., R.N. Gupta

(A)
Revenue
Law
-
Unauthorized
occupation - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Section 122-B -
Chapter VIII Rule 12 Explanation II of
Rules of the Court - Legal requirement of
inspection and proof - Failure to conduct
inspection in presence of petitioner or
counsel and lack of reliable measurement
renders
order
illegal
-
Illegality
in
assuming possession without basis in
revenue record - Reliance on defective