JUDGMENT By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 31 July, 2001 and Order dated 19th August, 2002 (Annexure 3 and 4). 2. Briefly stated, the petitioner had taken a contract from Nagar Panchayat B.H.E.L., Ranipur, Haridwar for collection of the market fee of weekly market for Sector-I and Sector-IV in the BHEL Township. The period of contract was 1" April, 1999 to 31" March, 2000. The contract was granted for a sum of Rs. 10 lacs in favour of the petitioner. The contract was confined only to collect the market fee (Tahabazari) and the amount was payable in four equal instalments as per the schedule mentioned in the agreement. 3. In order to realize the market fee (Tahabazari) an agreement was executed in favour of the Executive Officer, Nagar Pi1nchi1yat BHEL, Ranipur, Haridwar known as Security Bond. The stamp duty according to the petitioner is prescribed as Rs. 100/-. 4. In pursuance of notice dated 25th May, 2001 issued under Section 47-A/33/40(b) of the Stamp Act the petitioner has sent his objections stating therein that the petitioner is ready to pay the amount, however, the respondent nO.2 passed order on 31" July, 2001 by holding a deficiency of Rs. 1,00,000/- on which the stamp was payable to the petitioner. The penalty of Rs. 54,880/- was also imposed and total sum of Rs. 1,52,880/- was directed to be deposited. 5. Aggrieved against the said order, the petitioner filed a revision before the respondent no. 1. The revision was dismissed.. 6. A counter affidavit has been filed, where a reference of G.O. dated 28th July, 2000 was given where In accordance with Sub Clause (4) of Section 47-A, the Collector is empowered to realize the deficiency. 7. Learned counsel for the petitioner Sri Lok Pal Singh has made following submissions :- 1) the document in question was only an agreement in the nature of security bond and as such the stamp duty was payable under Article 57 of Schedule 1-B of the Indian Stamp Act. 2) The penalty has been illegally imposed and there is no provision under Section 47-A of the Stamp Act to impose penalty. 8. So far as the first submission Is concerned, Schedule 1-B of Article 57 reads as under :- "1-B/57 Uttar Pradesh-- (a) As In Central Act. 2) The penalty has been illegally imposed and there is no provision under Section 47-A of the Stamp Act to impose penalty. 8. So far as the first submission Is concerned, Schedule 1-B of Article 57 reads as under :- "1-B/57 Uttar Pradesh-- (a) As In Central Act. (b) do Security bond or mortgage-deed executed by way of security for the due execution of an office, or to account for money or other account for money or other property received by virtue thereof, or executed by a surety to secure the due performance of a central act or the due discharge of a liability. (a) as in Central Act (b) do Twenty-two rupees fifty paise The same duty as a Bond (No. 15) for the amount. The same duty as Bond (No. 15) for Rs. 1000/-." 9. So far as the first contention is concerned, in Board of Revenue U.P. Vs. Hulakh Raj and others 1984 All. L.J. Page 331, the special bench of Allahabad High Court has held that the land itself being not the subject matter of the agreement and it could not be taken away or used in any way except with the produce, viz. sand and gravel, which lay on the land and therefore, document was not intended to be a lease but was In the nature of a licence. Therefore, their Lordships of the special bench has held the nature of land was analogous to a profit a prendre. Relevant observations of Special Bench of the Allahabad High Court is as under :- "The nature of the right in the present case was analogous to a profit a prendre. The land itself was not the subject matter of the agreement. The land could not be taken away or used in any way except that the produce viz. sand and gravel which lay on the land. It could not be taken away from any other land except the one which was specified. In the present case the intention of the parties was clear from the documents in question that only the produce had to be collected, stacked and taken away. It was a specified right without in any way affecting the land on which the produce was available. In the present case the intention of the parties was clear from the documents in question that only the produce had to be collected, stacked and taken away. It was a specified right without in any way affecting the land on which the produce was available. Since there was no transfer of immovable property the document was not intended to be a lease but was in the nature of a licence, i. e. to take away the produce of the land." 10. In the present case, an agreement was executed in respect of the collection of market fee (Tehbazari) in accordance with the lease given by the B.H.E.L. as will appear from the agreement itself, the same are quoted below 11. Thus no rights have been given to the petitioner either in respect of the produce of the land or to use the land but only a right to collect the Tehbazari from the shop keepers has been given and the agreement was like a security bond for the payment in four equal Instalments. 12. In Board of Revenue etc. Vs. A.M. Ansari etc. AIR 1976 SC Page 1813, the Apex Court has held in order to attract the stamp .duty under Article 35 (c) of the Stamp Act, it is necessary that the instrument should satisfy the essential 'condition by creating right over or in respect of the specified property In. favour of .another person. The observations are quoted below :- "23. There now remains for consideration only the last question as to whether the security deposits as to whether the security deposits made by 'the respondents were in the nature of mortgages so as to make the respondents liable to pay the. stamp duty under Article 35(c) of the Stamp Act. For the determination of this question, it is necessary to scrutinize the definition of 'mortgage deed' as contained in Section 2(17) of the Stamp Act which runs thus :- "2. (17). Mortgage-deed includes every instrument whereby, for the purpose of securing money advanced, or to be advanced, by way of loan, or an existing or future debt, or the performance of an engagement, one person transfers, or creates to, or in favour of, another, a right over or in respect of specified property." 24. (17). Mortgage-deed includes every instrument whereby, for the purpose of securing money advanced, or to be advanced, by way of loan, or an existing or future debt, or the performance of an engagement, one person transfers, or creates to, or in favour of, another, a right over or in respect of specified property." 24. A bare perusal of the above definition makes' it clear that in order that an instrument should fall within the above definition, it is necessary that the instrument should satisfy the essential conditions by creating a right over or in respect of a specified property in favour of another person. . 26. There is nothing the above clause to indicate that any right 'over or in the security deposits was created in favour of the State Government. 27. In Reference under Stamp Act, Section 46, (1892) ILR 15 Mad .134 (FB) where a licence issued to an arrack renter expressly required as one of its conditions that the licensee should deposit a sum equal to three months' rental as a; security for the due performance of the contract and the licensee executed a muchalka stating that he agreed to all the terms and conditions mentioned in the license, it was held that neither the licence nor the muchalka taken separately or together fulfilled the conditions of a mortgage as defined in the Stamp Act i.e nether thereby actually created an interest in the deposit in favour of the Government." 13. In Tajveer Singh and others Vs. State of U.P. and others 1997 (2) All we Page 1029, the Division Bench of the Allahabad High Court has held as under .:- (1997 (2)AII WC 1029), . "3.' A special Bench of this court in Mis Hindustan Sugar Mills Ltd. v. State of V.P. and others, AIR 1972 All 8, has laid down that a security' bond is chargeable with a duty under Article 57 Schedule of the Stamp Act. A special Bench of Delhi High Court in Chief Controlling Revenue Authority v. Marshall Produce Brokers Pvt. Ltd. AIR 1980 Del 249, has held that "the amount of security deposit paid for' due performance of the contract of lease is chargeable under Article 57, Schedule 1 B. " Recently a Division Bench of this Court in Sripal Goel v. Deputy Director, Construction, Civil Misc. Writ Petition No. 30837 of 1995, decided on 18-03-1996 has reiterated the same principle, holding that stamp duty on such an agreement is to be paid under Article 57, Schedule 1 B of the Stamp Act. The position is thus settled that a security deed is chargeable with duty under Article 57 of Schedule 1 B. 4. The Supreme Court in Board of Revenue v. A.M. Ansari, AIR 1976 SC 1813, has laid down that the sum, which is offered as security is not a mortgage and, therefore, is not liable to stamp duty under Article 35(c) of the Stamp Act. In this case a full Bench decision of this Court in Rishideo Sondhi v. Dhampur Sugar Mills, AIR 1947 All 190, where it was held that an instrument in which specific amount is offered as security is not a mortgage deed, was cited with approval. 5. This writ petition is accordingly allowed. The impugned order, so far as it demands stamp duty from the petitioners on security deposit is quashed. The respondent will be free to realize the stamp duty, if not already, form the petitioners under Article 57, Schedule 1 B of the Stamp Act as amended by the State of U. P. In view of the facts and circumstances of the case, there shall be no order as to costs." 14. Further the Division Bench of the Allahabad High Court has further confirmed the aforesaid judgment in M/s Strong Construction Vs. State of V.P. and others 2005 ALL. L "10. Page 2336. Relevant observations are quoted below :- "10. There is nothing on record of this case, as it stands today, to indicate that any interest is being created in the security amount as such and the deed sought to be executed between the parties is in the nature of mortgage deed. The respondents have failed to support their claim of charging higher stamp duty under Article 40, Schedule 1B of the Indian Stamps Act vide impugned order dated 15th February, 1996 (Annexure 1 to the writ petition). 11. In absence of the above, decision in the case of Tajveer Singh, (1997 (2) All WC 1029), squarely applies to the facts of the present case. 12. 11. In absence of the above, decision in the case of Tajveer Singh, (1997 (2) All WC 1029), squarely applies to the facts of the present case. 12. Our view is supported by the judgment and order dated 18th March, 1996, passed by Division Bench comprising B.M. Lal and R.K. Mahajan, JJ., in the case of M/s Shri Pal Goel v. Deputy Director (Consolidation), Rajya Krishi Vtpadan Mandi Parishad, V.P. and others (copy filed as Annexure-2 to the Writ Petition No. 31866 of 1996). " 10. Petitioners also referred to a Division Bench judgment of this Court in Writ Petition No. 40007 of 2003, M/s Maa Durga Builders v. State of V.P. and others. In this case also Division Bench of this Court answered the question in hand following the ratio laid down in the case of Tajveer Singh, 1997 (2) All WC 1029 (supra). The Division Bench in the case of M/s Maa Durga Builders (supra) quashed Government Order dated 12-4-1999. True copy of the said judgment in the case of Maa Durga Builders (supra) dated 22-9-2003 is Annexure 6 to the above mentioned Writ Petition No. 41505 of 2004, M/s Adarsh Constructions v. State of V.P. and others whereas copy of the aforementioned Government Order dated 12-4-1999 is Annexure 4 to the said Writ Petition by M/s Maa Durga Builders." 15. Thus the first point is decided in favour of the petitioner that the document in question being agreement in the nature of a security bond and the stamp duty is chargeable under Article 57 Schedule 1-B of the Indian Stamp Act, 1899. 16. So far as the second submission is concerned, the matter is covered by the Full bench Allahabad High Court in Girijesh Kumar srivastava and another Vs. State of U.P. and others 1998 (1) A.W.C. 403 (F. B.) and it has been held that the power to Impose a penalty must be conferred by the statute itself and a taxing statue must be interpreted in the light of the main section itself. Relying upon the decision of Kaka Singh v. Addl. Collector, AIR 1986 All 107; Chandian Eagle Oil Co. Ltd. V.R. (1945) 2 All U.R. 499; Cape Brandy Syndicate v. IRC (1921) 1 KB 64 (at 71), it has been held as under:- "The law regarding fiscal matters being well settled, power to impose penalty must be conferred by the Statute itself. Collector, AIR 1986 All 107; Chandian Eagle Oil Co. Ltd. V.R. (1945) 2 All U.R. 499; Cape Brandy Syndicate v. IRC (1921) 1 KB 64 (at 71), it has been held as under:- "The law regarding fiscal matters being well settled, power to impose penalty must be conferred by the Statute itself. The language of Section 47A alone can be seen and such a power cannot be Inferred by implication or by reference to some general words contained in the Rules. In absence of a specific provision to that effect the Collector Is not empowered to impose penalty. The question is, therefore, answered in favour of the applicants and against the State" 17. So far as the penalty is concerned, the same cannot be imposed in view of the judgment of the Full Bench in Girijesh Kumar Srivastava and another Vs. State of U.P. and others (supra). 18. In view of the aforesaid proposition of law, the petitioner has submitted that Section 47-A of the Indian Stamp Act as amended In State of U.P. has no application at all. The Collector shall examine the matter so far as stamp duty on the document is concerned as well as with regard to the applicability of Section 47-A. 19. The matter is sent back to the Collector for deciding it afresh in the light of the observations made above. 20. Consequently, writ petition partly succeeds and is allowed to the extent of penalty. However, so far as determination of stamp duty is concerned, the matter is sent back to the Collector for deciding the same in accordance with the observations made above.