# Shailendra and others v. The Chief Controlling Revenue Authority and others

- **Citation:** (2006) 3 ILRA 1094
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-14
- **Case number:** Civil Misc. Writ Petition No. 43847 of 2004
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-and-others-v-the-chief-controlling-revenue-authority-and-others-40739
- **Pages:** 4

## Headnote

Stamp Act, Section 47-A(4)-Imposition
of Penalty-purchase of land measuring 1
Bigha
5
Biswas
7
Dhoor-On
consideration of Rs.10 lakhs-Stamp duty
of Rs.1,04,700/- paid on the valuation of
Rs.10,47,000/-
on
3.11.2000
A.D.M.
finance after making spot inspection on
25.1.03
fixed
the
valuation
as
Rs.4,10,600/- and fixed stamp duty
payable as Rs.4,10,100/- with penalty of
Rs.10,000/- after giving full fledged
opportunity to the petitioner-in the
relevant year the land in questionrecorded in revenue records as 'Abadi
land'-surrounding plots developed as
residential
colonies-held-enhanced
valuation fully justified-cannot be said
erroneous-in view of Full Bench decisionbut the penalty can not be imposed.

Held: Para 4, 5 & 6

Both the authorities namely, Deputy
Commissioner
and
Divisional
Commissioner on the basis of revenue
record, recorded the finding that in the
khasra for the Fasli year 1406 to 1407
land in dispute was shown as abadi land
and not as banzar or agriculture land.
Thus, the valuation of land in dispute
treating it as abadi land can not be said
to be illegal or erroneous.

In the case of Girijesh Kumar Srivastava
and another Vs. State of U.P. and others
(Supra), the Full Bench of this Court held
that while exercising powers under subsection (4) of Section 47-A of the Act,
the Collector can determine the market
value of the property and the duty
payable on the instrument as a result of
such determination but he has no power
to impose penalty.

Respectfully following the Full Bench
decision, the penalty levied in the
present case is liable to be set aside.
Case law discussed:
1998 (1) AWC-403 (FB) relied on.

## Text

1094 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
7. Learned counsel for the petitioner
further contended that even the allegation
of fraudulent act against the petitioner is
not correct and there is material on record
to show that the land settlement was
approved by the petitioner pursuant to the
recommendation of the other authorities
and the said action was also approved by
the Sub Divisional Magistrate. In our
view, it is not a stage where correctness of
the charges can be looked into, since the
correctness of the charge is subject matter
of
departmental
enquiry
and
any
observation made by this Court, on this
issue at this stage, would prejudice the
interest of the parties in the contemplated
departmental enquiry.

8. The next submission of the
learned counsel for the petitioner that the
proceedings have been initiated on
account of mala fide, has also no force,
inasmuch as, a perusal of the array of the
party would show that no person by name
has been impleaded by the petitioner and
the allegation of mala fide has been
levelled vaguely. It is settled that the plea
of mala fide cannot be entertained and
permitted to be argued unless a person
against whom the allegation of mala fide
has been levelled is impleaded eo-nomine
and the mala fide is pleaded with
sufficient material on record. Thus, the
contention with respect to mala fide is
also rejected.

9. In view of the aforesaid
discussions, we are of the view that the
impugned order of suspension does not
warrant any interference at this stage.
However, we are also of the view that the
departmental proceeding should not be
prolonged
unnecessarily
and
the
authorities should endeavour to conclude
the
departmental
proceeding
expeditiously and within a reasonable
time. A government servant cannot be
allowed to remain under suspension for an
indefinite period as it causes not only loss
of morale to such government servant but
also causes wastage of public money and
time.
We,
therefore,
direct
the
respondents to conclude the departmental
proceeding
against
the
petitioner
expeditiously, preferably, within a period
of six months from the date of production
of a certified copy of this order. It is also
made clear that in case the respondents
find that the departmental proceeding can
not be concluded before the aforesaid
time despite co-operation rendered by the
petitioner, it is open to the respondents to
re-consider the question of continuance of
the suspension of the petitioner.

10. With the above observations, the
writ petition stands dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2006

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 43847 of 2004

Shailendra and others. ...Petitioners
Versus
The Chief Controlling Revenue Authority
and others

 ...Respondents

Counsel for the Petitioners:
Sri Raj Kishore Yadav
Sri Suresh Chandra Verma

Counsel for the Respondents:
Sri Anil Mehrotra
Sri S.S. Rajput
S.C.
3 All] Shailendra and others V. The Chief Controlling Revenue Authority and others
1095
Stamp Act, Section 47-A(4)-Imposition
of Penalty-purchase of land measuring 1
Bigha
5
Biswas
7
Dhoor-On
consideration of Rs.10 lakhs-Stamp duty
of Rs.1,04,700/- paid on the valuation of
Rs.10,47,000/-
on
3.11.2000
A.D.M.
finance after making spot inspection on
25.1.03
fixed
the
valuation
as
Rs.4,10,600/- and fixed stamp duty
payable as Rs.4,10,100/- with penalty of
Rs.10,000/- after giving full fledged
opportunity to the petitioner-in the
relevant year the land in questionrecorded in revenue records as 'Abadi
land'-surrounding plots developed as
residential
colonies-held-enhanced
valuation fully justified-cannot be said
erroneous-in view of Full Bench decisionbut the penalty can not be imposed.

Held: Para 4, 5 & 6

Both the authorities namely, Deputy
Commissioner
and
Divisional
Commissioner on the basis of revenue
record, recorded the finding that in the
khasra for the Fasli year 1406 to 1407
land in dispute was shown as abadi land
and not as banzar or agriculture land.
Thus, the valuation of land in dispute
treating it as abadi land can not be said
to be illegal or erroneous.

In the case of Girijesh Kumar Srivastava
and another Vs. State of U.P. and others
(Supra), the Full Bench of this Court held
that while exercising powers under subsection (4) of Section 47-A of the Act,
the Collector can determine the market
value of the property and the duty
payable on the instrument as a result of
such determination but he has no power
to impose penalty.

Respectfully following the Full Bench
decision, the penalty levied in the
present case is liable to be set aside.
Case law discussed:
1998 (1) AWC-403 (FB) relied on.

(Delivered by Hon'ble Rajes Kumar, J.)

1. By means of the present writ
petition, petitioner has challenged the
order dated 17.03.2004 passed in revision
no.1121 of 2003 by Chief Controlling
Revenue Authority/Commissioner, Agra
Division, Agra filed against the order
dated 11.06.2003 passed by Deputy
Commissioner (Stamps), Agra Division,
Agra.

2. The brief facts giving rise to the
present
writ
petition
are
that
the
petitioners purchased plot no.317/5/1 area
1 Bigha 5 Biswa and 7 Biswansi situated
in village Hyatwasan, Pargana, Tehsil and
district Agra for Rs.10 lacs and on the
valuation of Rs.10,47,000/- paid the
stamp duty at Rs.1,04,700/-. The sale
deed was registered on 03.11.2000. The
valuation of the land in dispute was made
on the basis of the circle rate fixed by the
District Magistrate for the agriculture land
@ Rs.35 lacs per hect. It appears that the
Additional District Magistrate (Finance
and
Revenue)
made
a
survey
on
25.01.2003 and submitted a report stating
therein that the land was abadi land, in
which plots have been carved out and the
construction was being going on for
residential purpose. He valued the whole
of the land @ Rs.1400/- sq. mtr., the
valuation fixed by the District Magistrate
for residential land of that area and
accordingly, total valuation was fixed as
abadi land at Rs.41,00,600/- on which
stamp duty has been calculated at
Rs.4,10,100/- and the deficiency of
Rs.3,05,400/- has been worked out. On
the basis of the report given by Additional
District
Magistrate
(Finance
and
Revenue) case no.55/2003-04 has been
registered.
In
the
aforesaid
case,
petitioners have been given opportunity to
1096 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
show cause as to why the demand for the
deficient stamp duty may not be raised
and why the penalty may not be levied.
Petitioners filed the reply stating therein
that the property in dispute was the
agriculture
land
for
which
khasra
no.317/5/1 was filed. It was stated that the
said land was registered in the revenue
record as agriculture land and in khatauni
for Fasli 1406 to 1410 the names of
Shailendra Kumar and Narendra Kumar
were entered as bhumidhars and as per the
khasra Fasli 1406 land was entered as a
banjar land and thus on the date of the
sale, it was the agriculture land and not
the abadi land. It was further stated that
the date of sale is relevant and the
position of the land after the sale is not
relevant. It was submitted that the survey
was made on 25.01.2003 and the facts
stated at the time of survey relates to year
2003 and thus is wholly irrelevant for the
purpose of determination of the land on
the date of sale. Commissioner Stamps
stated that on the request of the petitioner
he himself made the spot inspection of the
plots. He found that the land in dispute is
situated behind Kamla Nagar inside the
Mughal Road and its approach road is
through private plot. In several plots
construction was going on. Commissioner
Stamps has agreed to the submissions of
the
petitioners
that
the
subsequent
construction on the land is not the
relevant but he observed that it was not
acceptable that on the date of sale, the
land was used as an agriculture land. He
observed that in Mauja Ghatsavan, which
falls under the Nagar Nigam Agra in
khasra Fasli 1406, said land was entered
as abadi land and surrounding to the land
recorded at one side Awadhesh Puri
Colony and on other side Bhopal Kunj
Colony are present and thus it can not be
believed that on the date of purchase the
land was useable as agriculture land.
Deputy
Commissioner
Stamps
accordingly, upheld the valuation of the
land at Rs.41,00,600/- and the deficiency
of the stamp at Rs.3,05,400/-. He has also
imposed a sum of Rs.10,000/- towards
penalty. Against the order of the Deputy
Commissioner, Agra petitioners filed
revision before the Commissioner Agra
Division,
Agra.
Commissioner
Agra
Division, Agra by the impugned order
dated
17.03.2004
has
rejected
the
revision.

Heard learned counsel for the parties.

3. Learned counsel for the petitioner
submitted that as per khasra land in
dispute was entered as agriculture land
and in khasra also on the date of sale it
was entered as agriculture land and in the
Fasli 1406 it was shown as banjar land.
He further submitted that the levy of
penalty at Rs.10,000/- is wholly without
jurisdiction in as much as the Deputy
Commissioner has no jurisdiction to levy
the penalty as held by the Full Bench
decision of this Court in the case of
Girijesh
Kumar
Srivastava
and
another Vs. State of U.P. and others,
reported in 1998 (1) A.W.C., 403.
Learned Standing Counsel submitted that
the submission of learned counsel for the
petitioners has no force. He submitted that
the petitioners fails to prove that even on
the date of sale, land in dispute was
entered as agriculture land. He submitted
that
in
the
order
of
the
Deputy
Commissioner and in the order of the
Divisional Commissioner it is stated that
in the khasra for the year 1406 to 1407
land in dispute was not found in the
nature of agriculture land and it was
entered as abadi land. It was further
submitted that surrounding to the land in
3 All] Shailendra and others V. The Chief Controlling Revenue Authority and others
1097
dispute, there were developed residential
colonies in which the residential houses
were built and even in the land in dispute
subsequently, plotting was done and the
residential houses have been constructed
and, therefore, the valuation of the land in
dispute has rightly been made treating as
abadi land and not agriculture land.

4. I do not find any substance in the
argument of learned counsel for the
petitioner so far as valuation of land in
dispute is concerned. It is true that the
nature of land on the date of sale has to be
seen. Both the authorities namely, Deputy
Commissioner
and
Divisional
Commissioner on the basis of revenue
record, recorded the finding that in the
khasra for the Fasli year 1406 to 1407
land in dispute was shown as abadi land
and not as banzar or agriculture land.
Thus, the valuation of land in dispute
treating it as abadi land can not be said to
be illegal or erroneous.

5. In the case of Girijesh Kumar
Srivastava and another Vs. State of
U.P. and others (Supra), the Full Bench
of this Court held that while exercising
powers under sub-section (4) of Section
47-A of the Act, the Collector can
determine the market value of the
property and the duty payable on the
instrument
as
a
result
of
such
determination but he has no power to
impose penalty.

6. Respectfully following the Full
Bench decision, the penalty levied in the
present case is liable to be set aside.

7. In the result, writ petition is
allowed in part. The order of the Deputy
Commissioner and Commissioner so far
as it relates to the valuation and
determination of the land in dispute and
the demand of stamp duty is upheld.
However,
the
penalty
levied
at
Rs.10,000/- is deleted.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2006

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 56470 of 2005

Sudarshan Yadav

...Petitioner
Versus
The Deputy Director of Consolidation,
Ballia and others
 ...Respondents

Counsel for the Petitioner:
Sri J.P. Singh
Sri V.C. Mishra

Counsel for the Respondents:
Sri D.N. Shukla
Sri L.N. Shukla
Sri Rahul Sahai
S.C.

Consolidation of Holdings Act Section48-Power
of
Revisional
Court-chak
allotment
matter-whether
suo
moto
power can be exercised by D.D.C.? Held-
'No'.

Held: Para 11 and 16

In view of the aforesaid this Court is of
the view that exercise of the suo moto
powers
by
the
Deputy
Director
of
Consolidation cannot be said to be just
and proper, but at the same time if
during the course of argument in the
pending revision before the Deputy
Director of Consolidation on the facts if
he feels that some more chak holders are
to be heard for doing complete justice
between the parties, he may always
move accordingly.