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2018 DIGILAW 1036 (ALL)

RELIANCE INDUSTRIES LIMITED v. STATE OF U. P.

2018-04-26

SIDDHARTHA VARMA

body2018
JUDGMENT Hon’ble Siddhartha Varma, J.—The instant writ petition has been filed against the judgment and order dated 8.1.2007 passed by the Additional District Magistrate (Finance and Revenue) Jalaun, Orai and the judgment and order dated 3.4.2008 passed by the Commissioner, Jhansi Division, Jhansi which he passed in his Revisional jurisdiction. 2. The facts of the case are that a lease deed was executed in favour of the petitioner on 18.2.2005. On a report dated 5.8.2006, of the Assistant Inspector General of Registration, Jalaun, a case was registered and the petitioner was put to notice. The petitioner replied and thereafter when its reply was not found satisfactory, by order dated 8.1.2007 a deficiency of stamp duty to the tune of Rs. 3,35,200/- was found by Additional District Magistrate (Finance and Revenue) Jalaun, Orai. The petitioner filed a revision which was also dismissed on 3.4.2008 by the Commissioner, Jhansi Division, Jhansi. Aggrieved thereof the instant writ petition has been filed. 3. The contention of Sri Anil Kumar Bajpai, learned counsel for the petitioner, is that the very premise on the basis of which the stamp duty has been imposed was wrong. The authorities had under Article 35(a)(vi) of Schedule 1-B of the Indian Stamp Act considered the lease to be one in perpetuity and had charged the instrument at the rates provided for instruments which were to be charged under Article 35(a)(vi) and not as an instrument chrgeable under Article 35(a)(iv) of the Schedule 1-B of the Indian Stamp Act 1899. Learned counsel for the petitioner read out both the Articles and so the same are being reproduced here as under: “35(a)(iv) where the lease purports to be for a term exceeding ten years but not exceeding twenty years. 35(a)(vi)where the lease purports to be for a term exceeding thirty years or in perpetuity or does not purport to be for any definite term.” 4. The contention of the learned counsel for the petitioner is that if an instrument was valued as per Article 35(a)(iv) of the of the Indian Stamp Act, the stamp duty had to be charged only on five times the value of the average annual rent. The contention of the learned counsel for the petitioner is that if an instrument was valued as per Article 35(a)(iv) of the of the Indian Stamp Act, the stamp duty had to be charged only on five times the value of the average annual rent. However, if stamp duty had to be charged for an instrument under Article 35(vi) of the of the Indian Stamp it had to be valued for a consideration equal to the market value of the property which was the subject of the lease. The further contention of the learned counsel for the petitioner is that if in the lease deed it was provided that a lease had to be extended after a certain period then it meant that a fresh deed had to be executed after that period. In the instant case initially the lease deed was executed for a period of 20 years and, therefore, there was a provision in the lease deed itself that the lease could be extended by another 20 years. Relying upon the judgment in Gopal Swarup Chatruvedi v. State of U.P. and others, 2007 (102) RD 574, he submitted that renewal of a lease deed was a fresh execution of a lease deed and it could not be said that just because of the existence of a provision of renewal after 20 years the lease deed could be presumed to be for a period which would be for more than 20 years. Learned counsel for the petitioner further submitted that the deficiency should have been recovered from the lessor as in the agreement it was provided that the lessor had to pay the stamp duty. He relied upon Section 29 of the Indian Stamp Act, 1899 and submitted that when there was an agreement that the lessor had to pay the stamp duty, then the duty to pay the stamp could not be cast upon the lessee as is provided under Section 29 (c) of the Indian Stamp Act, 1899. Since learned counsel read out Section 29, the relevant portions of it are being reproduced here as under: “29. Duty by whom payable—In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne. Since learned counsel read out Section 29, the relevant portions of it are being reproduced here as under: “29. Duty by whom payable—In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne. 29(c) In the case of conveyance (including a re-conveyance of a mortgaged property)- by the grantee; in the case of lease or agreement to lease-by the lessee or intended lessee.” 5. Learned Standing Counsel in reply, however, submitted that since there was a provision for the extension of lease after the expiry of twenty years it had to be presumed that it was a lease in perpetuity and the instrument would be chargeable under Article 35(vi) of the of the Indian Stamp Act. 6. Having heard the learned counsel for the parties, I am of the view that when the lease deed provided that it was only for a period of 20 years and that it could be extended thereafter, then it would only mean that the lease was for a period of 20 years and that it could be renewed after the 20 years period. After twenty years there was an option with either of the parties to opt out of the agreement. In that case there would be no extension. However, if there was an extension then it would mean a fresh agreement followed by a fresh registration. This is exactly what has also been held in Gopal Swarup Chatruvedi v. State of U.P. and others, 2007 (102) RD 574. 7. Under such circumstances, the order dated 8.1.2007 passed by the Additional District Magistrate (Finance and Revenue) Jalaun, Orai and the order dated 3.4.2008 passed by the Commissioner, Jhansi Division, Jhansi are quashed. 8. The matter is now remanded back to the Additional District Magistrate (Finance and Revenue) Jalaun at Orai, who shall readjudicate the matter in accordance with law within a period of two months from the date of presentation of a certified copy of this order. If the decision goes in favour of the writ petitioner then the amount which might have been deposited by it would be refunded to it with interest at the rate of 8% per annum. The writ petition is allowed.