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2018 DIGILAW 778 (ALL)

SUDAMA DEVI v. STATE OF U. P.

2018-04-02

SIDDHARTHA VARMA

body2018
JUDGMENT Hon’ble Siddhartha Varma, J.—Heard Sri S.N. Tripathi, learned counsel for the petitioner and the learned Standing Counsel and perused the record. 2. This writ petition has been filed by the petitioner for quashing the impugned orders dated 28.2.2006 and 12.10.2006 passed by Deputy Commissioner Stamp, Gorakhpur Division, Gorakhpur and the Commissioner, Gorakhpur Division, Gorakhpur respondent Nos. 3 and 2 respectively. 3. When a tenancy deed was executed on 4.1.2005 and was registered on 6.1.2005, a certain stamp duty was paid on the instrument, which was questioned by the stamp authorities and a notice was issued to the petitioner as to why the stamp duty which was being found deficient be not recovered from her as per Article 35(a)(vi) under Schedule 1-B of the Indian Stamp Act, 1899 (hereinafter referred to as the ‘Act of 1899’). The petitioner replied to the notice and explained that the lease was for a period commencing on 7.9.2004 and ending on 6.9.2033 and therefore it was for a period, which was definitely lesser than 30 years and therefore her case was covered under Article 35(a)(v) of the Schedule 1-B of the ‘Act of 1899’. However, the explanation as was given by the petitioner was not considered appropriate by the Deputy Commissioner Stamp, Gorakhpur Division, Gorakhpur. The appeal which was filed by the petitioner was also dismissed on 12.10.2006. 4. Learned counsel for the petitioner has submitted that when lease was for a period which was less than 30 years then it should be covered by the provisions of Article 35(a)(v) of Schedule 1-B of the ‘Act of 1899’ and not by the provisions of Article 35(a)(vi) of the Schedule 1(B). 5. A bare perusal of the lease-deed shows that even though there was a provision to continue with the tenancy in the lease-deed, the same had to be registered afresh after the expiry of the period for which the lease was granted. 6. Learned counsel for the petitioner relied upon a decision in Ashish Kumar v. Deputy Commissioner (Stamp), Bareilly Division, 2010 (110) RD 822 and 2007(102) RD 574 and submitted that the two provisions i.e. the provisions of Article 35(a)(v) and Article 35(a)(vi) of the ‘Act of 1899’ operated in two different realms. The provision of Article 35(a)(v) under schedule 1-B of the ‘Act of 1899’ covered instruments which were for a period of less than 30 years. The provision of Article 35(a)(v) under schedule 1-B of the ‘Act of 1899’ covered instruments which were for a period of less than 30 years. Under Article 35(a)(vi) of the schedule 1-B of the ‘Act of 1899’ the instrument which was to be registered would have given the property on lease for a period which exceeded 30 years. 7. Learned Standing counsel however in reply has submitted that the lease-deed in paragraph 5 had made a provision for the extension of the lease even after 6.9.2033 and therefore it was a document by which property was leased out in perpetuity. 8. Having heard the learned counsel for the parties, I am of the view that the lease-deed confined itself for a period, which commenced on 7.9.2004 and ended on 6.9.2033 and, therefore, it leased out the property for a period which did not cross 30 years and was thus covered by the provisions of Article 35(a)(v) of the Schedule 1-B of the ‘Act of 1899’. Renewal of lease undeniably meant a fresh lease-deed. This is also what has been held in Gopal Swarup Chturvedi v. State of U.P. and others, 2007(102)RD 574. 9. Under such circumstances, the orders dated 28.2.2006 and 12.10.2006 passed by Commissioner, Gorakhpur Division, Gorakhpur and Deputy Commissioner Stamp, Gorakhpur Division, Gorakhpur cannot be sustained and are quashed. The writ petition is hereby allowed.