Allahabad High Court
Jitendra Singh vs State Of U.P. And Others on 7 September, 2015
Bench: Krishna Murari, Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
"Reserved"
Case :- WRIT - C No. - 38269 of 2003
Petitioner :- Satya Prakash Sharma
Respondent :- State Of U.P.And Others
Counsel for Petitioner :- Manish K. Nigam,Rahul Sahai
Counsel for Respondent :- C.S.C.
Hon'ble Krishna Murari, J.
Hon'ble Amar Singh Chauhan, J.
Petitioner was the highest bidder in auction held for collection of parking fee for the year 2002-03. His bid was accepted and an agreement dated 10.04.2002 was executed. Respondent no. 2, Executive Officer, Nagar Panchayat Govardhan, Mathura issued a letter dated 28.07.2003 requiring the petitioner to deposit a sum of Rs.2,05,200/- towards deficiency of stamp duty and same amount towards penalty within 15 days from the date of receipt of notice, failing which, proceedings for realisation of said amount shall be initiated in accordance with Section 48 of the Stamp Act. The aforesaid demand was raised by the Executive Officer on the basis of the some letter written by the Assistant Commissioner (Stamp), District Mathura dated 02.07.2003 that the aforesaid amount is to be deposited in accordance with Section 33 read with section 40 of the Stamp Act.
Learned counsel for the petitioner contends that no proceedings under Section 33/40 of the Stamp Act was ever initiated nor any notice was served nor any order adjudicating deficiency in stamp duty and penalty has ever been passed. It is further submitted that since there is no transfer of interest in the property by an agreement to collect the Tehbazari, the document is not a lease deed and stamp duty cannot be imposed in accordance with Article 35-B of Schedule 1-B of the Stamp Act. It is further submitted that possession over the land is only for the purpose of assigned work under a document, namely, to collect Tehbazari and no interest is conveyed in the land in favour of the petitioner, only a stamp duty of Rs.100/- was payable on the agreement under Article 5-C of Schedule 1-B of the Stamp Act.
A counter affidavit has been filed on behalf of the State wherein categorical averments have been made that agreement to collect Tehbazari has been included in the definition of lease under Section 2 (16) of the Stamp Act and thus, the stamp duty is liable to be paid in accordance with Schedule 35-C . Section 2 (16) reads as under :
"2(16) 'Lease'. - 'Lease' means a lease of immovable property and includes also -
(a) a patta;
(b) a kabuliyat or other undertaking in writing, not being a counterpart of a lease, to cultivate, occupy, or pay or deliver rent for immovable property;
(c) any instrument by which tolls of any description are let;
(d) any writing on an application for lease intended to signify that the application is granted;
(e) any instrument by which mining lease is granted in respect of minor minerals as defined in Clause (e) of Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957.
Since the instrument by which tolls of any description held to have specifically been provided in the Stamp Act include within the definition of lease, it would be treated as lease for the purposes of Stamp Act. The issue stands settled by the Division Bench judgment of this Court in the case of M/s Bilal Ahmad Sherwani and Kishori Lal Vs. State of U. P. and others, 1992 AWC 339 and Munindra Nath Vs. State, AWC 1995 All 1837.
Legal position, thus, is undisputed that an agreement of collection of Tehbazari is liable to stamp duty under Section 35-B, Schedule 1-B of the Stamp Act.
The next question which arises for consideration is whether stamp duty could be demanded and proceedings under Section 48 for the recovery of the amount could be initiated by respondent no. 2.
In the counter affidavit in paragraph 2 (b), it has been stated that a document, if not, properly stamped is liable to be impounded under Section 33 and deficiency of stamp duty along with penalty is liable to be realized. However, there is nothing in the counter affidavit to indicate that any proceedings under Section 33 for impounding of the document and under Section 40 of the Stamp Act was initiated and adjudication in respect of deficiency of stamp duty chargeable and penalty leviable was ever made. It is only after the adjudication is made by the Collector in respect of the deficiency in stamp duty and penalty liable to be charged, the said amount is liable to be recovered under Section 48 of the Stamp Act.
Admittedly, in the present case, there is no material available on record to draw inference that the document was impounded and proceedings for adjudication of deficiency in stamp duty and penalty leviable was ever done. Thus, the impugned letter issued by the respondent no. 2, Executive Officer, Nagar Panchayat Govardhan, Mathura requiring the petitioner to deposit deficiency in stamp duty, failing which, recovery proceedings would be initiated is not liable to be sustained and is hereby quashed. Writ petition to that extent stands allowed. However, it will be open to the respondents-authority to proceed for adjudication of deficiency in stamp duty on the agreement and the penalty chargeable in accordance with law keeping in view the limitation, if, prescribed under law.
Subject to the aforesaid observations and directions, the writ petition stands allowed. However, in the facts and circumstances, there shall be no order as to costs.
Date : 7th September, 2015 (Krishna Murari, J)
Dcs.
(Amar Singh Chauhan, J.)
