Viswatosh Narayan Singh vs State Of U.P. And Others
2021 Latest Caselaw 11086 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 42
 

 
Case :- WRIT - C No. - 54850 of 2009
 

 
Petitioner :- Viswatosh Narayan Singh
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Anubhav Chandra,B.K. Srivastva
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard Sri Anubhav Chandra, learned counsel for the petitioner, Sri Siddharth Singh, learned Addl. Chief Standing Counsel.

2. Present petition has been filed for quashing the impugned orders dated 27.12.2006, 29.9.2007 passed by Respondent no.3/ Sub Divisional Officer, Tehsil Kerakat, District Jaunpur and order dated 4.9.2009 passed by Respondent no.2/ Deputy Commissioner (Stamps), Varanasi Division, Varanasi.

3. By the impugned order dated 27.12.2006 passed by Respondent no.3/ Sub-Divisional Officer, Tehsil Kerakat, District Jaunpur, treating the lease deed to be in perpetuity in proceedings initiated under Section 47-A of the Indian Stamps Act, deficiency of stamp duty was found in the light of Schedule 1-B Article 35(a)(vi) of the Indian Stamps Act. The revision filed against the same was also dismissed.

4. It was submitted by learned counsel for the petitioner that initially order dated 27.12.2006 was passed by Respondent no.3 against the petitioner without granting proper opportunity of hearing to him and without following proper procedure of law. It was further pointed out that in fact, lease deed was surrendered on 2.6.2006.

5. The restoration application filed against the same was rejected. Therefore, two revisions filed by the petitioner before the Revisional Authorities and both were dismissed by Respondent no.2 / Deputy Commissioner (Stamps), Varanasi Division, Varanasi.

6. Several arguments have been raised to contend that the facts as well as law on the issue involved have not been appreciated by the authorities concerned. By drawing attention to the various clauses of the lease deed dated 20.4.2005, it was submitted that a lease deed was executed for a period of 30 years only with a clause of renewal of the same, hence, the stamp duty could have been levied under Schedule 1-B Article 35(a)(v) of the Indian Stamp Act and not under Sub-Clause (vi) and therefore, the impugned orders are liable to be set aside. He has specifically drawn the attention to Clause (c)(iv), (v) and Clause 3(b) of the Lease Deed to contend that the lease deed was for a period of 30 years only and it was specifically clarified that at the time of such renewal, the parties shall execute fresh lease deed.

7. Submission, therefore, is that stamp duty could have been levied under Article 35 (a) (v) and not under Article 35(a)(vi) of the Schedule 1-B. He has placed reliance on the judgment of this Court passed by a Division Bench of this Court in Gopal Swarup Chaturvedi Vs. State of U.P. and others, 2007 (102) RD 574 and a judgment of this Court passed in Reliance Industries Limited vs. State of U.P. & others, 2018(10) ADJ 137.

8. Per contra, Sri Siddharth Singh, learned Addl. Chief Standing Counsel by drawing attention to lease deed submitted that the lease deed provided that the lessor shall not terminate the lease before the expiry of the period of 30 years. He had further submitted that the lease deed further provided that the lessor agrees that at the expiry of the said term of 30 years this lease will automatically and without any further act of the parties hereto shall stand renewed for a further similar period. Submission, therefore, is that the lease therefore is to be treated lease in perpetuity and, therefore, would be covered by Article 35 (a)(vi) of Schedule 1-B of the Indian Stamps Act. Submission, therefore, is that the impugned orders warrant no interference by this Court and the petition is devoid of merits and is liable to be dismissed.

9. I have considered the rival submissions and perused the record. For disposing of the petition, it would be appropriate to take note of the Clause (c) and 3(b) of the Lease Deed, which are quoted hereunder:

"c) The LESSOR has made the following representations to the LESSEE--

i) The LESSOR has full power and absolute authority to grant this lease to the LESSEE.

ii) The Demised Premises are free from all encumbrances and charges and the LESSOR is not holding valid and marketable tilt to the same

iii) The Demised Premises can be used for Non Agricultural purpose and the LESSOR has obtained the necessary Non Agricultural permission and the Demised Premises have been made commercially usable.

iv) The LESSEE shall be at liability to sub-lease the said premises in favour of ESSAR OIL LIMITED (EOL) a Company incorporated under the provisions of Companies Act 1956 and having its registered office at Khambhalia PO, Box No. 24, Distt. Jamnagar Gujrat-361305 and Brnahc office at Urvanshi Complex First Floor Sigra, Varanasi period of 30 years for the said business.

v) The LESSOR shall not terminate the lease before the expiry of the said period of 30 years.

"3. The LESSOR doth hereby covenant with the LESSEE as follows:-

a) .....

(b) The LESSOR agrees that at the expiration of the said term of 30 years this lease will automatically and without any further act of the parties hereto shall stand renewed for a further similar period, unless either party shall, prior to the expiration of the last mentioned term have given to the other party three calendar month's previous notice in writing of its intention not to renew the lease. The renewed lease will be on a monthly rent as may be mutually agreed between the parties subject to the same covenants, conditions and agreement as are herein contained including the present covenant for renewal. It being clarified that at the time of such renewal the parties shall execute fresh lease deed."

(Emphasis supplied)

10. A perusal of the aforesaid clause clearly reveals that although there is a provision for renewal of the lease deed, however, it has also been provided that three calendar month's previous notice in writing of can be given for its intention not to renew the lease and it has further been clarified that at the time of such renewal, the party shall execute fresh lease.

11. In Gopal Swarup Chaturvedi (supra) after discussing various judgments of Hon'ble Apex Court, it has been held that the renewal of lease means the grant of fresh lease, which requires fresh registration. Relevant paragraph of the said judgment is quoted hereunder:

"11. Renewal of a lease is nothing but a grant of a fresh lease. The Hon'ble Supreme Court in Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 SC2609, has held that while considering such an issue the terms and conditions incorporated in the lease have to be examined as a whole and effect has to be given to each and every term incorporated therein. The Court observed that it is called a renewal simply because it postulates the existence of a period lease which generally provides for renewal as of right. In all other respects it is really a fresh lease. Renewal is merely used to enable the Government to given preference to the previous permit holders who are to be treated on a different footing from the new applicants.

12. In Gajraj Singh and others v. State Transport Appellate Tribunal and others, AIR 1997 SC 412, the Hon'ble Supreme Court explained that renewal is a fresh grant, though it brings life to the previous lease or licence granted as per the existing appropriate provisions of the statute and though it is not a vested or accrued right, an application for renewal has to be dealt with according to the law in operation after compliance with the preconditions. There is a distinction between the right acquired or accrued and a privilege, hope and expectations to get a right. However, a right to apply for renewal and to get a favourable order would not be deemed to be a right accrued, unless some positive acts are done.

13. In Pravash Chandra Dalul and another v. Vishwanath Banerjee and another, AIR 1989 SC 1834, the Hon'ble Supreme Court dealing with a case under the provisions of Calcutta Thika Tenancy Act, 1949, explained the distinction between extension and renewal of lease, observing that extension merely means prolongation of the lease where renewal means a new lease.

14. Similar observations that renewal is nothing but a fresh lease between the parties have been made by the Courts as is evident from the judgments in Dasarathi Kumar v. Sarat Chandra Ghose and another, AIR 1934 Cal 135; Mahadeb Ram Kahar v. Tinkori Roy, AIR 1954 Cal 539, and Chotey Lal v. Sheo Shankar, AIR 1951 All 478.

15. The word 'renewed' has been used by the legislature in the provisions of section 116 of the Transfer of Property Act, 1882 and it had been interpreted by the Courts time and again as grant of fresh lease.

16. In Kai Khushro Bezonjee Capadia v. Bal Jerbal Hirjibhoi Warden, AIR 1949 FC 129, the Federal Court considered the provisions of Section 16 'of the Transfer of Property Act, 1882 and explained the meaning of 'renewed', observing that it is nothing but a new lease drawn into existence by the bilateral act of the lessor and lessee.

17. Renewal has been given the meaning in various Dictionaries as to begin again, to repeat, to make again, to substitute new for, to acquire again, to restore, re-establish, to set up again, bring back into use or in existence, to take up again or recommence, to replace by some new or fresh thing of the same kind or a fresh supply. Thus, renewal of lease is nothing but a grant of lease for a fresh period.

18. In R.M. Mehta v. HPFM Co. Ltd, AIR 1976 Mad 194, the Madras High Court considered a similar issue and placed reliance upon the Dictionary meaning of the "renewal of lease" given in Ballentine's Law Dictionary 2nd Edn. wherein it has been defined as under:--

"There is a distinction between a stipulation in a lease to renew it for an additional term and one to extend it. In that stipulation, to re-new requires the making of a new lease, while stipulation to extend does not."

19. Thus, in view of the above, the inescapable conclusion that follows is that renewal of lease means grant of a fresh lease."

(Emphasis supplied)

12. In the present petition, in the lease deed in question, it has been specifically provided that at the time of renewal of lease, the parties shall execute fresh lease, which necessarily means fresh registration.

13. In Gopal Swarup Chaturvedi (supra), it was clearly held that such lease deed is not covered under Article 35(a)(vi) of the Indian Stamp Act. Placing reliance on judgment in Gopal Swarup Chaturvedi (supra) in the case of Reliance Industries Limited (supra), identical question as involved in the present case, was considered and the impugned orders were set aside. Relevant paragraph of Reliance Industries Limited (supra) is quoted hereunder:

"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 Vs. State of U.P. and others, 2007 (102) RD 574."

(Emphasis supplied)

14. Same view has been taken in (I) (2010) 110 RD 822, Ashish Kumar v. Deputy Commissioner (Stamp) and Ors, (ii) (2011) 5 All LJ 388, Manish Jain Vs. State of U.P, and (iii) (Manu/UP/2818/2018), Smt. Sudama Devi Vs. State of U.P.,

15. In view of the aforesaid, the impugned orders are not sustainable in the eye of law. It is nobody's case that the stamp duty has not been paid as per Article 35(a)(v) of Schedule 1-B of the Indian Stamp Act.

16. In such view of the matter, impugned orders dated 27.12.2006, 29.9.2007 passed by Respondent no.3/ Sub Divisional Officer, Tehsil Kerakat, District Jaunpur and order dated 4.9.2009 passed by Respondent no.2/ Deputy Commissioner (Stamps), Varanasi Division, Varanasi are hereby quashed.

17. Accordingly, the writ petition is allowed.

18. Any amount lying deposited pursuant to the order of this Court dated 23.10.2009 shall be refunded to the petitioner with an interest of 9% per annum from the date of deposit, within a period of 2 months from the date of production of a self attested copy of this order, which may be verified from the web-site of Allahabad High Court.

Order Date :- 15.9.2021

N.S.Rathour