# S.K. Rastogi v. Addl Commissioner/Chief Controlling Revenue Authority and another

- **Citation:** (2010) 2 ILRA 908
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-22
- **Case number:** Civil Misc. Writ Petition No. 34565 of 2003
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-k-rastogi-v-addl-commissioner-chief-controlling-revenue-authority-and-another-41711
- **Pages:** 4

## Headnote

Indian Stamp Act 1899 Section 47-A-U.P.
Zamindari Abolition and Land Reforms
Act
1950
Section
143-Stamp
DutyDeficiency
of
court
fee-purchase
of
agricultural land as per entry in revenue
records-authorities
assessing
market
value on potential user for residential
purpose-No
deceleration
v/s
143
UPZALR Act in respect of land as nonagricultural-no cogent material on record
to show that instrument in question
deficiently stamped-Held; value of land
to
be
determined
as
on
date
of
transaction-and not on presumption of
future user or purpose.

Held Para 8, 9 and 10

Learned counsel for the petitioner has
placed reliance upon a decision of this
court in the case of Veer Bal Singh Vs
State of U.P. and Others 2009 (108) RD
124 and has relied upon paragraph 9 to
state that unless there is a declaration
under Section 143 of the U.P. Z.A. & L.R.
Act an agricultural land cannot be
treated as non agricultural. He states
that admittedly there is no declaration
under Section 143 of the U.P.Z.A. & L.R.
Act with respect to the land in question
and therefore it could not be treated as
non agricultural land.

He has further relied upon paragraph 16
to 19 of the said judgment to state that
the
respondent
no.
2
could
not
determine the deficiency in stamp duty
on the date of execution of the sale deed
without any material on record and also
he could not determine the deficiency by
recording that the future utility of the
land was for residential purpose and
therefore it has to be treated as non
agricultural.

The submission of learned counsel for
the petitioner appears to have substance
inasmuch as there is no cogent evidence
referred to in the impugned orders to
enable the authorities to charge stamp
duty of the land in question as non
agricultural
land.
There
is
also
no
evidence on record to indicate that on
the date when the land in question was
purchased by the petitioner it was non
agricultural.
In
fact
report
of
the
Tehsildar in the year 2001 has clearly
stated that two years back i.e. in the
year 1999 the land was being used for
agricultural
purpose.
Admittedly
the
portion purchased by the petitioner is
half portion of the plot in question and
there is no construction existing over the
land
in
question.
Consequently
the
respondents have committed an error in
determining the deficiency of stamp duty
on the future utility of the land which
was
earlier
admittedly
used
as
agricultural land. The impugned orders
have been passed without any basis and
even on the reports available on record
the land in question was agricultural in
the year 1997 when it was purchased by
the petitioner.
Case Law Discussed:
2009 (108) RD 124

## Text

908 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

in Harness Rules, 1974, the petitioner
cannot get the benefit of compassionate
appointment.

5. A counter affidavit has been filed
and the same stand has been taken in the
counter affidavit.

6. Learned standing counsel contends
that the petitioner has been rightly nonsuited as his father had worked only for
three months.

7. Having perused the affidavit
exchanged between the parties, it would be
appropriate to quote Rule 2(a) of the Rules,
1974 which indicates the definition of a
Government servant:

"2 (a) "Government servant" means a
Government
servant
employed
in
connection with the affairs of Uttar
Pradesh, who-

(i)
was
permanent
in
such
employment; or

(ii) though temporary had been
regularly appointed in such employment; or

(iii) though not regularly appointed,
had put in three years continuous service in
regular vacancy in such employment."

8. A perusal of the aforesaid definition
indicates that a Government Servant has
been defined alternatively in three clauses
as contained therein. All three clauses are
independent of each other. The criteria of an
employee having put in three years
continuous service is in respect of a
Government servant who has not been
regularly appointed but has put in three
years continuous service in a regular
vacancy. Thus, the aforesaid rider of three
years is a precondition in relation to such
category of Government employees, who
have not been regularly appointed.

9. On facts in the present case, it
remains undisputed that the petitioner's
father had been regularly appointed and,
therefore, the three years completion of
service is not a sine qua non for such an
employee to enable his dependant to claim
appointment under the Dying-in-Harness
Rules. The impugned order has, therefore,
been passed against records and by
misconstruing the Rules. The counter
affidavit also suffers from the same
infirmity.

10. In this view of the matter, the
order dated 26.12.2007 is unsustainable. It
is hereby quashed. The respondent-Director
shall proceed to process the appointment of
the petitioner under the compassionate
appointment rules forthwith and pass an
order within a period of six weeks from the
date of presentation of a certified copy of
this order before him.

11. With the aforesaid observations,
the writ petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2010

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 34565 of 2003

Sanjiv Kumar Rastogi

 ...Petitioner
Versus
Additional
Commissioner/Chief
Controlling
Revenue
Authority
and
another

 ...Respondent
2 All] S.K. Rastogi V. Addl Commissioner/Chief Controlling Revenue Authority and another 909
Counsel for the Petitioner:
Sri Rajiv Gupta
Sri K.S. Ojha

Counsel for the Respondent:
C.S.C.

Indian Stamp Act 1899 Section 47-A-U.P.
Zamindari Abolition and Land Reforms
Act
1950
Section
143-Stamp
DutyDeficiency
of
court
fee-purchase
of
agricultural land as per entry in revenue
records-authorities
assessing
market
value on potential user for residential
purpose-No
deceleration
v/s
143
UPZALR Act in respect of land as nonagricultural-no cogent material on record
to show that instrument in question
deficiently stamped-Held; value of land
to
be
determined
as
on
date
of
transaction-and not on presumption of
future user or purpose.

Held Para 8, 9 and 10

Learned counsel for the petitioner has
placed reliance upon a decision of this
court in the case of Veer Bal Singh Vs
State of U.P. and Others 2009 (108) RD
124 and has relied upon paragraph 9 to
state that unless there is a declaration
under Section 143 of the U.P. Z.A. & L.R.
Act an agricultural land cannot be
treated as non agricultural. He states
that admittedly there is no declaration
under Section 143 of the U.P.Z.A. & L.R.
Act with respect to the land in question
and therefore it could not be treated as
non agricultural land.

He has further relied upon paragraph 16
to 19 of the said judgment to state that
the
respondent
no.
2
could
not
determine the deficiency in stamp duty
on the date of execution of the sale deed
without any material on record and also
he could not determine the deficiency by
recording that the future utility of the
land was for residential purpose and
therefore it has to be treated as non
agricultural.

The submission of learned counsel for
the petitioner appears to have substance
inasmuch as there is no cogent evidence
referred to in the impugned orders to
enable the authorities to charge stamp
duty of the land in question as non
agricultural
land.
There
is
also
no
evidence on record to indicate that on
the date when the land in question was
purchased by the petitioner it was non
agricultural.
In
fact
report
of
the
Tehsildar in the year 2001 has clearly
stated that two years back i.e. in the
year 1999 the land was being used for
agricultural
purpose.
Admittedly
the
portion purchased by the petitioner is
half portion of the plot in question and
there is no construction existing over the
land
in
question.
Consequently
the
respondents have committed an error in
determining the deficiency of stamp duty
on the future utility of the land which
was
earlier
admittedly
used
as
agricultural land. The impugned orders
have been passed without any basis and
even on the reports available on record
the land in question was agricultural in
the year 1997 when it was purchased by
the petitioner.
Case Law Discussed:
2009 (108) RD 124

(Delivered by Hon'ble Sanjay Misra,J. )

1. Heard Sri K.S. Ojha learned counsel
for the petitioner and learned Standing
Counsel for the respondents. Counter and
rejoinder affidavits have been exchanged
between the parties.

2. The petitioner claims to have
purchased an area of 0.136 hectare
agricultural land in Village Mawana Kalan,
Pargana Hastinapur, Tehsil Mawana, District
Meerut by sale deed dated 15.10.1997 for
sale consideration of Rs. 36,000. For the
purpose of paying the stamp duty the value
of the property was fixed at Rs. 41,000 and
therefore a total of Rs. 4350 was paid in
910 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

accordance with the market value of Rs. 6
lakh per hectare fixed by the District
Magistrate for agricultural land.

3. The petitioner is aggrieved by
the order dated 30.5.2001 (annexure 3 to
the writ petition) passed by the Sub
Divisional Magistrate, Mawana, District
Meerut as well as by the appellate order
dated 18.11.2002 (annexure 4 to the writ
petition) passed by the Additional
Commissioner/Chief
Controlling
Revenue Authority, Meerut and the order
dated 3.6.2003 (annexure 5 to the writ
petition) whereby the review application
filed by the petitioner before the
respondent no. 1 has been rejected.

4. Learned Standing Counsel while
referring to the counter affidavit has
submitted that clearly the land in
question was described within the urban
area and Nagar Palika limits and hence
for the purpose of payment of stamp duty
the value of Rs.500 per square yard for
residential area fixed by the District
Magistrate was chargeable. He further
states that the land in question is situated
half km. from the main road and its area
is 680 square metres which is clearly for
the purpose of residential use.

5. Having considered the submission
of learned counsel for the parties and
perused the records the Tehsildar had
made a report on 20.6.1998 on a query
made by the petitioner that the land in
question is outside the Nagar Palika
limits. The Tehsildar had also submitted a
report before the respondent no. 2 on
12.4.2001 by stating that this land was
used for agricultural purpose till two years
back and at present the land is lying
vacant and the circle rate applicable is Rs.
6 lakh per hectare.

6. In the order passed by the
respondent no. 2 under Section 47 A of
the Stamp Act a finding has been
recorded that the land in question was
earlier being used for agricultural purpose
and is entered in the revenue records as
agricultural land. He has also found that
the land in question is situated near the
Kishanpur Birana road and is lying vacant
but it is likely to be used for residential
purpose and therefore the stamp duty to
be charged is to be according to the circle
rate of Rs. 500 per square metre and
hence the petitioner is liable to pay Rs.
30,700 as stamp duty whereas he has only
paid Rs. 4350 as stamp duty.

7. The first appellate authority has
confirmed the findings recorded by the
respondent no. 2 and has rejected the
review application of the petitioner on the
same ground by further holding that the
future use of the land in question is likely
to be residential and therefore when no
agricultural activity is going on it has to
be charged at Rs. 500 per square metre.

8. Learned counsel for the petitioner
has placed reliance upon a decision of this
court in the case of Veer Bal Singh Vs State
of U.P. and Others 2009 (108) RD 124 and
has relied upon paragraph 9 to state that
unless there is a declaration under Section
143 of the U.P. Z.A. & L.R. Act an
agricultural land cannot be treated as non
agricultural. He states that admittedly there
is no declaration under Section 143 of the
U.P.Z.A. & L.R. Act with respect to the
land in question and therefore it could not
be treated as non agricultural land.
2 All] Pradeep Kumar V. Union of India and others
911

9. He has further relied upon
paragraph 16 to 19 of the said judgment to
state that the respondent no. 2 could not
determine the deficiency in stamp duty on
the date of execution of the sale deed
without any material on record and also
he could not determine the deficiency by
recording that the future utility of the land
was for residential purpose and therefore
it has to be treated as non agricultural.

10. The submission of learned
counsel for the petitioner appears to have
substance inasmuch as there is no cogent
evidence referred to in the impugned
orders to enable the authorities to charge
stamp duty of the land in question as non
agricultural land. There is also no
evidence on record to indicate that on the
date when the land in question was
purchased by the petitioner it was non
agricultural. In fact report of the Tehsildar
in the year 2001 has clearly stated that
two years back i.e. in the year 1999 the
land was being used for agricultural
purpose.
Admittedly
the
portion
purchased by the petitioner is half portion
of the plot in question and there is no
construction existing over the land in
question. Consequently the respondents
have committed an error in determining
the deficiency of stamp duty on the future
utility of the land which was earlier
admittedly used as agricultural land. The
impugned orders have been passed
without any basis and even on the reports
available on record the land in question
was agricultural in the year 1997 when it
was purchased by the petitioner.

11. The impugned orders being
based on no material or evidence are
arbitrary and liable to be set aside. The
impugned
order
dated
30.5.2001,
18.11.2002 and 3.6.2003 passed by the
respondent nos. 1 and 2 are hereby set
aside. The writ petition is allowed.

12. No order is passed as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No.47233 of 2009

Pradeep Kumar

 ...Petitioner
Versus
Union of India & others ...Respondent

Counsel for the Petitioner:
Sri Kamal Singh Yadav

Counsel for the Respondents:
Sri J.K.Tiwari
A.S.G.I.
C.S.C. (2009/41192)
Sri M.C.Tripathi

Constitution
of
India-Act
226-Medical
Practise-Right to held, not absolute Restrict
by Chief Medical Officer on unregistered
unqualified practitioners, held, reasonableDegree/diploma of Ayurvedic Ratna by
Hindi
Sahitya
Sammelan
Prayag-not
recognized by Indian Medicine Control
Council-Act-1970-question
squarely
covered by Apex Court judgement in 2009
(5) SCC 206.

Held Para 4 and 5

The
question
whether
Hindi
Sahitya
Sammelan Prayag, Allahabad has the
authority to award medical qualifications
after 1967, has been considered by this
Court and the Supreme Court. In the
judgement dated 1.6.2010 in Rajasthan
Pradesh V.S. Sardarshahar & Another Vs.
Union
of
India
&
others