Allahabad High Court
Kishore Kumar Singh & Another vs State Of U.P. & Others on 9 August, 2017
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 6 AFR
Case :- WRIT - C No. - 13035 of 2003
Petitioner :- Kishore Kumar Singh & Another
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Anupam Kulshreshtha
Counsel for Respondent :- C.S.C.
Hon'ble B. Amit Sthalekar,J.
Heard Sri Anupam Kulshreshtha, learned counsel for the petitioners and Sri S.K. Upadhayay, learned Standing Counsel for the respondents.
The two petitioners in the writ petition are seeking quashing of the order dated 17.2.2000 passed by the ADM (Finance and Revenue), Agra in proceedings under Section 47A of the Indian Stamp Act, 1899 (hereinafter referred to as the Act, 1899) as well as the order dated 26.2.2003 passed by the Commissioner, Agra Division, Agra whereby the petitioner's revision has been rejected.
Briefly stated the facts of the case are that the petitioners purchased the rights of plots no. 73 Ka and 73 Kha area 7 Bigha 18 Biswa 3 Biswansi in Village Sonari, Tehsil and District-Agra through a registered deed executed on 23.8.1999. The land in question was acquired by the Agra Development Authority and a notification under Section 4(1) read with Section 17 (4) of the Land Acquisition Act was published in the Gazette on 30.1.1989 and thereafter a declaration under Section 6 of the Land Acquisition Act was published in the Gazette on 5.9.1989. The possession of the land was taken by the Collector on 11.9.1990. During this period, the vendor Shri Desh Raj Singh and Smt. Anna Devi transferred their rights to receive the compensation of the land to the petitioners for a consideration of Rs. 80,000/- on which stamp duty was paid at Rs. 8,000/-. Alleging that there was deficiency of stamp duty proceedings under Section 33/47A of the Act, 1899 were initiated against the petitioners by issue of notice dated 21.10.1999. The petitioners filed their objection stating that the land had been acquired by the State Government and they had only purchased the rights to receive the compensation flowing under the award and there was no right of title to the property in question passed on to them. The ADM (F&R) assuming that there was deficiency of stamp duty and that the deed in question resulted in a sale of the property in dispute has held the value of the property to be Rs. 18,24,312/- and has assessed stamp duty at Rs. 1,82,500/- and after deducting Rs. 8,000/- already paid by the petitioner, the deficiency of stamp duty was computed at Rs. 1,74,500/-. Aggrieved the petitioner filed revision which has also been rejected by the Commissioner, Agra Division, Agra.
The submission of Sri Anupam Kulshreshtra, learned counsel for the petitioner is that the deed in question does not result in the transfer in any manner of any property in favour of the petitioners and all that has been transferred to them or purchased by them under this deed is the right to receive compensation which also would have to be determined by the State Government. Therefore, the deed would not be termed to be a sale deed but rather it would be a release under Article 55 of Schedule I-B of the Act, 1899. Article 55 reads as under:-
Description of instrument
Proper stamp duty
55. Release-That is to say, any instrument, not being such a release as is provided for by Section 23-A, wherey a person renounces a claim upon another person or against any specified property--
(a) if the amount or value of the claim does not exceed Rs. 2500
(b) in any other case
The same duty as a bond (No. 15) for such amount or value as set forth in the release.
The same duty as a bond (No. 15) for Rs. 3000.
The submission further is that the document has wrongly been treated as a conveyance and charged to stamp duty under Article 23 of the Schedule I-B of the Act, 1899, which reads as under:-
Description of instrument
Proper stamp duty
23. Conveyance-as defined by Section 2(10) not being a Transfer charged or exempted under No. 62-
(a) if relating to immovable property where the amount or value of the consideration of such conveyance, as set forth therein, or the market value of the immovable property, which is the subject of such conveyance, whichever is greater, does not exceed Rs. 500
Where it exceeds Rs. 500 but does not exceed Rs. 1000
and for every Rs. 1000 or part there of in excess of Rs. 1,000
(b) If relating to moveable property-[See item 136 Appendix II]
where the amount or value of the consideration of such conveyance, as set forth therein, does not exceed Rs. 1000
and for every Rs 1000 or part thereof in excess of Rs. 1,000
Exemption
Assignent of a copy-right for musical works by resident of or first published in India.
Sixty rupees
One hundred and twenty five rupees
One hundred and twenty five rupees:
Provided that the duty payable shall be rounded off to the next multiple of ten rupees.
Twenty rupees
Twenty rupees
Reliance has been placed upon a Full Bench decision of this Court in AIR 1979 Allahabad 355, Chief Controlling Revenue Authority vs M/s Anti Biotic Project Virbhadra, Rishikesh, wherein a similar question came up before the Full Bench. Paragraphs 9, 10 and 11 of the said judgement reads as under:-
"9. Next comes the question whether the instrument could be considered to be a "conveyance." The term "conveyance" has been defined in Section 2(10) of the Stamp Act as under: --
"Conveyance -- "Conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable is transferred inter vivos and which is not otherwise specifically provided for by Schedule I, Schedule I-A or Schedule I-B, as the case may be".
This term denotes an instrument in writing by which some title or interest is transferred from one person to another. It would appear from this definition that an actual transfer of property is an essential feature of a "conveyance". Consequently, an agreement to transfer property in the future cannot be treated as a conveyance.
10. The present case appears to be of that type. Under the instrument in question, no rights have been transferred. In fact, law does not require a document in writing for the purposes of transferring movable property. Sale of movable property takes place when it is delivered.
11. Emphasis may be laid at this place on the words "on sale" and "is transferred" used in the definition of the word 'conveyance'. These words are significant. They denote that the document itself should create or vest a complete title in the subject matter of the transfer in the vendee. If, therefore, there is no transfer, the requirement of conveyance or sale could not be said to be satisfied. A perusal of the various clauses of the instrument would show that no transfer of water took place under it. Parties had simply agreed to sell and purchase water in the future. Even the amount which was payable by the Company was not stated in this document. The quantum of the liability depended on a future contingency. Clause (1) of the Agreement provided : --
"The Company will pay at the rate of Rs. 6,000/- per cusec per annum clear of all deductions for the maximum quantity of water drawn by them at any time during the year after deduction for water returned............"
This shows that the payment of the amount depended on certain circumstances which had to take place in the future, No transfer was made to a purchaser under this document. The fact that there was a hope or the expectation or the strong probability of a sale serves merely to emphasise that there was no sale. A complete title in water since did not vest under the document, the same could at the most be said to be an agreement. As such, it falls under Article 5 (c) of Schedule I-B."
The judgment of the Full Bench has been followed by the Allahabad High Court in 2013 (119) RD 557, Prem Singh vs State of U.P. and other. That was also a case where the land in question had been acquired by the U.P. Awas Avam Vikas Parishad in proceedings under Section 28 of the U.P. Awas Avam Vikas Parishad Adhiniyam, 1965 corresponding to Section 4 of the Land Acquisition Act, 1894. There also a deed was executed between the original tenure holder and the petitioner therein and what the deed provided was an assignment and release of the rights to the property which was the subject matter of the land acquisition. This court relying upon the Full Bench decision held that the deed in question was a deed of assignment of interest in the undetermined amount of monetary benefits pending consideration in reference under Section 18 of the Act, 1894. There was no conveyance or transfer of title or interest in the property which had been acquired. Paragraph 13 of the judgment reads as under:-
"13. Therefore, from a reading of the Article 55 and applying the ratio of the Full Bench to the facts of the present case it will be seen that the deed in question was a deed of assignment of interest in the undetermined amount of monetary benefits pending consideration in reference under Section 18 of the Act, 1894 there was no conveyance or transfer of title or interest in the property which had already been acquired by the U.P. Awas Awam Vikas Parishad."
In the present case also the deed which has been filed as Annexure-1 to the writ petition mentions that since the vendor needs money urgently and it may take some time for compensation to be computed and paid and he cannot wait for long, therefore, he was selling his rights to receive compensation and other dues to the vendor i.e. the petitioners. The stamp authority has held that the petitioners sold the land in question and the deed uses the word 'sale' and has accordingly charged the deed to stamp duty treating it to be a conveyance under Article 23 of Schedule I-B.
In my opinion, it is not a word used here or there in a deed which can be said to be determinative of the nature or character of the deed but rather the language of the deed has to be read in its entirety to understand as to what is being stated in the deed and what is sought to be transferred or assigned as the case may be. As already noted above, the deed in question specifically mentions that the vendor is in urgent need of money and cannot wait to receive compensation and other dues and therefore, he is selling his rights to receive the compensation. In respect of the use of the word "sale", no land is being sold or transferred to the petitioners i.e. vendee, therefore, what the deed ultimately does is that it assigns the rights of the vendor to receive compensation and other emoluments under the Land Acquisition Act upon the vendee. In my opinion, the judgment of the Full Bench of this court in the case of M/s Anti Biotic Project (supra) as well as the judgment of the learned Single Judge in the case of Prem Singh (supra) squarely apply to the facts of the present case.
For reasons aforesaid, the impugned orders dated 17.2.2000 and 26.2.2003 cannot be justified in law or on facts and are accordingly quashed.
The writ petition is allowed.
Order Date :- 9.8.2017
Kirti
