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2007 DIGILAW 1328 (ALL)

INDRABHAN SINGH. v. STATE OF UTTAR PRADESH

2007-05-02

S.N.SRIVASTAVA, S.S.CHAUHAN

body2007
JUDGMENT By the Court.—Impugned herein is the order dated 6.6.2005 passed by Opp. party No. 4 by which demand was made to execute agreement on the stamp duty at the rate of 10% on the amount of Rs. 51,61,334/- which was the amount settled between the parties in connection with the contract for collection of stand fee from tempos, taxis and private buses within the limit of Nagar Palika Parishad Faizabad. 2. This matter was heard and the petition was ordered to be dismissed in limine in the open Court observing that reasons would follow later on. The reasons for dismissing the writ petition are as follows. 3. Heard learned Counsel for the petitioner and Sri Ravi Singh and Sri Rakesh Bajpai appearing for the respondents. 4. It would transpire from the record that auction of theka for the year 2005-2006 for collection of stand fee from tempos, taxis and private buses within the limit of Nagar Palika Parishad Faizabad was settled in favour of petitioner for a sum of Rs. 51,61,334/- and in connection with the aforesaid Theka the petitioner was required to execute agreement on stamp papers at the rate of 10% of the amount of Theka i.e. Rs. 51,61,334/-. It would further appear from the record that the petitioner furnished stamp paper of the amount of Rs. 50,000/- which was not accepted and by means of order dated 6.6.2005, the Nagar Palika Parishad called upon the petitioner to deposit stamp duty at the rate of 10% as aforesaid. It is in this backdrop that present petition has been preferred impugning the order dated 6.6.2005. Per contra, learned Standing Counsel contended that the demand to pay stamp duty at the rate of 10% of the Theka amount was rightly made from the petitioner as envisaged in Schedule 1-B, Article 35(2) of the Stamp Act. He further contended that the impugned order was rightly passed in accordance with law attended with the argument that no case is made out for interference by this Court. 5. He further contended that the impugned order was rightly passed in accordance with law attended with the argument that no case is made out for interference by this Court. 5. The main brunt of the argument advanced across the bar by the learned Counsel for the petitioner is that the matter on which stamp duty is required is a licence and not the lease deed and to enforce his submissions, the learned Counsel heavily relied upon decisions in Som Dutt Builders Ltd. v. State of U.P. and others, 2005 (23) LCD 1030 and Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262 canvassing that the impugned agreement contained in Annexure 1 to the rejoinder affidavit is a licence and stamp duty as demanded is not payable on licence. We have scrutinized the decisions cited across the bar. Upon close scrutiny of the said decisions, we find that the said decisions have been rendered on different facts and in different perspective and the same cannot be imported for application to the facts of the present case. To be precise, the decision in Som Dutta Builders Ltd. (supra) related to execution and settlement of certain land by auction in favour of the highest bidder by the Kanpur Development Authority. Moreover, the proposition laid down by the learned Single Judge in that case does not prop up the case of the petitioner inasmuch as the document impugned therein had created exclusive right in favour of petitioner and the same was given to the petitioner without any interference under the impugned agreement which it was held, necessarily amounted to lease and not the licence. The second decision cited across the bar in Associated Hotels of India Ltd. (supra) was also rendered on different facts in different perspective. The dispute in that case related to allotment of a room in a hotel and as such that facts of that case too are dissimilar to the facts of the present case. 6. On the other hand, the learned Standing Counsel placed credence on a decision of Full Bench in Mohd. Yaqoob Khan and another v. Chief Controlling Revenue Authority, AIR 1977 All 93 (FB). The other decisions relied upon are Banney Khan v. Chief Inspector of Stamp, U.P., AIR 1976 All 475 ; Jagdish Lala and another v. Collector Budaun and others, AIR 1979 All 307 ; Mohd. Yaqoob Khan and another v. Chief Controlling Revenue Authority, AIR 1977 All 93 (FB). The other decisions relied upon are Banney Khan v. Chief Inspector of Stamp, U.P., AIR 1976 All 475 ; Jagdish Lala and another v. Collector Budaun and others, AIR 1979 All 307 ; Mohd. Ali v. Board of Revenue U.P. Allahabad and others, AIR 1987 All. 348 ; Atma Singh and another v. Municipal Board, Ghaziabad, 1993 A.W.C. 250. The Full Bench decision and other decisions cited above were considered in M.G. Contractor and another v. Commissioner Jhansi and others, 2003 (5) AWC 4009 were elaborately considered and discussed. The facts in the Full Bench case were that the bid had been accepted and bid sheet was prepared and was signed by the petitioners in that case and they were required to deposit the bid amount and again the bid was signed by them as well as three members of the Municipal Board and the same was subsequently approved by the Board. The question that arose in that petition was whether the bid sheet when it was signed by the highest bidders amounted to an agreement creating right or liability. It was held by the Full Bench that the bid sheet neither creates nor purports to create any right or liability and it was in consequence held that it ails to satisfy the requirements of an instrument much- less an instrument. The Full Bench held that the officer made immediately after the conclusion of the auction by the contractors was signed by the contractor as well as the competent authority authorized in this regard and thus it amounted to acceptance and in this view of the matter, the agreement became complete and as such was chargeable to stamp duty as an agreement to let under Article 35 (b) of Schedule IB of the Stamp Act. The Full Bench also considered the word lease in juxtaposition of alongwith instrument and held that even if a document purports to create or transfer a right, the same would attract the provisions of the Stamp Act. Taking into consideration the ratio flowing from the Full Bench decision, the learned Single Judge in M.G. Contractor’s case (supra) held the view that auction of Tahbazari rights for collection of stand fee was lease and not the licence. Taking into consideration the ratio flowing from the Full Bench decision, the learned Single Judge in M.G. Contractor’s case (supra) held the view that auction of Tahbazari rights for collection of stand fee was lease and not the licence. The Full Bench decision and other decisions cited across the bar by the learned Standing Counsel lends support to the contention of the learned Standing Counsel that the agreement entered into between the petitioner and Nagar Palika Parishad Faizabad has the complexion of a lease and therefore, stamp duty is payable under Article 35 (II) of Schedule 1-B of the Stamp Act. 7. In view of the above discussions, we also lend support to the contentions of learned Standing Counsel regard being had to the decisions cited across the bar that the agreement entered into between the parties has the complexion of a lease and therefore stamp duty is payable under Article 35 (II) of Schedule 1-B of the Stamp Act. 8. As a result of foregoing discussions, the petition is devoid of merit and no case is made out for interference with the impugned order. 9. In the result, the writ petition is dismissed in limine. ————