Ashok Kumar Jain vs Board of Revenue and Others

A.K. Shrivastava, J.—By this petition under Article 226/227 of the Constitution of India, the petitioner is challenging the order passed by respondent No. 2/Collector (Stamps) and affirmed by order dated 30-5-2000 (Annexure P-20) by the Board of Revenue holding that the document in question dated 4-10-1999 (Annexure P-16) is undervalued. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this petition. Suffice it to say that the petitioner entered into an agreement with respondent No. 5/Estate Officer and eventually a registered lease-deed dated 4-10-1999 (Annexure P-16) was executed in his favour. When the said document was submitted for registration to the Sub-Registrar, Bhopal, he opined that the document is having deficit stamp duty of Rs. 52,722/-. Eventually, the matter was referred to the Collector Stamps/District Registrar who vide order dated 30-10-1999 (Annexure P-18) concurred with the view of Sub-Registrar and passed an order directing petitioner to deposit deficit stamp duty of Rs. 52,722/-. This order has been affirmed by the Board of Revenue vide order dated 30-5-2000 (Annexure P-20).

The contention of Shri Sanjay Agrawal, learned Counsel for the petitioner is that in the present case the un-amended Schedule 1-A of the Indian Stamp Act, 1899 (in short "unamended Act of 1899") is applicable. He was invited this Court''s attention to item No. 35 of the Schedule 1-A, which relates to lease and has put emphasis on clause (v), which is in respect to lease deed and has submitted that if a lease deed is executed for a term exceeding twenty years but not exceeding thirty years as well as clause (c) which pertains to the premium the stamp duty is payable according to these clauses. Further, it is submitted by him that the petitioner executed the document in terms of the Schedule 1-A of the unamended Act of 1899 on the stamp duty of Rs. 11,613/- although according to law the stamp duty would come to Rs. 11,059/-. Hence, it has been prayed that the order of Collector (Stamps)/respondent No. 2 is ex facie illegal and same error has been committed by the Board of Revenue (respondent No. 1).

On the other hand, Shri Vivek Agrawal, learned Deputy Advocate-General argued in support of the order of the Collector as well as the Board of Revenue and put emphasis that indeed if document in question is read in proper perspective manner, it would amount to sale and, therefore, rightly stamp duty has been assessed by the Collector (Stamps). Hence, it has been prayed that this petition be dismissed.

Having heard learned Counsel for the parties, I am of the view that this petition deserves to be allowed.

The short question which is to be decided in this petition is as to whether the document in question dated 4-10-1999 (Annexure P-16) is a lease deed or sale deed. If it is the lease deed the argument of learned Counsel for the petitioner is to be accepted and in case the same is a document of sale undoubtedly the argument of learned Deputy Advocate General has to be accepted. In this view of the matter, I have given my emphasis to the document which was submitted for its registration on 4-10-1999 (Annexure P-16).

On bare perusal of the starting paras of this document (Annexure P-16), which was executed on Format III under Self Financing Scheme of respondent No. 4, it is gathered that 4th respondent has been denoted to be ''lessor'' while petitioner has been denoted as ''lessee'' in the document. On bare perusal of next paragraph, the picture would become more clear as to whether the document is lease deed or sale deed and this Court apt to quote the said paragraph as under:--

Witnessed that in consideration of payment of Rs. 1,43,861/- (Rupees one lakh forty three thousand eight hundred and sixty one only) as premium of land including development charges, the receipt where of the lessor hereby acknowledge and of the lease rent, hereinafter reserves and of the covenants on the part of the lessee, hereinafter contained, the lessor hereby demises to the lessee, all that, piece of land containing by Admeasurement 148.50 sq.mt. or 1597.86 sq.ft. on there about at Lake View Koh-E-Fiza, Bhopal, House No. HIG-46 within the limits of Bhopal town in Tehsil Huzur in District Bhopal, more particularly described in Schedule as hereunder and for greater clearness delineated on the plan here to annexed and there on coloured Red (hereinafter referred to as ''the said land'') to hold the same for a term of 30 years commencing from the 1st day of May, 1994 ending on the last day of June, year 2024 (hereinafter referred to as ''the said term'') subject to the terms and conditions hereinafter appearing.

Not only this, if Paragraphs 1 to 3 of the document are read in proper perspective, the picture would become more clear that covenant between the first party and second party meaning thereby respondent No. 4 and petitioner is in regard to lease deed because in Para 1, the rate of yearly ground rent and its terms are mentioned. In Para 2, the right has been kept reserved by the lessor to inspect the building which is being leased out, the burden of discharging of all type of taxes has been cast upon the lessee. Similarly, in Para 4, there is condition that the petitioner shall not make any excavation upon any part of the said land or remove any stone sand, gravel, clay or earth therefrom. In Para 5, there is a condition that the petitioner shall not make any erection or alteration in any building or part thereof on the said land except in accordance with the sanction of the Municipal Corporation, Bhopal. Inter alia in Para 9, it has been mentioned that petitioner shall not construct on the said land any public religious or a private religious building open to public use or allow the said to land to be used for such a purpose.

According to me, all these conditions upon which I have put my emphasis indicate that the document in question is only a lease deed and not a sale deed. Had it been a sale deed then these conditions, which I have highlighted hereinabove with other conditions mentioned in the document, would not have been mentioned. Hence, I do not have any scintilla of doubt in holding that the document in question is a lease deed and not a sale deed.

Further, if the aforesaid conditions and other conditions mentioned in the document (Annexure P-16) are tested on the touchstone and anvil of Section 54 of the Transfer of Property Act, 1882 (in short "T.P. Act") it will become more clear that since the ownership of the land has not been transferred to the petitioner and it still vests in the lesser, i.e., respondent No. 4, therefore, the document cannot be said to be a sale-deed.

At the same time, the Court is keeping the document (Annexure P-16) in juxtaposition to Section 105 of T.P. Act, which defines ''lease''. According to this provision, a lease of immoveable property is a transfer of a right to enjoy such property made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. In the same section, the term lesser, lessee, premium and rent have been defined. Accordingly, a transferor is called ''lesser'', transferee is called ''lessee'', price is called ''premium'' and money, share, service or other thing to be so rendered is called ''rent''.

Thus, from all the four corners inter alia all the conditions stipulation in the document do tally with the definition of lease as well as with the definition of lesser, lessee, premium or rent defined u/s 105 of the T.P. Act.

There is no dispute to this proposition that at the relevant point of time, Schedule 1-A of unamended Act of 1899 was applicable and since the document in question, I have already held hereinabove to be lease deed, therefore, stamp duty would be payable under Clause 35 of unamended Act of 1899, which reads thus:--

Lease:--Including an under-

lease of sub-lease and any agreement to let or sub-let

On bare perusal of the said Schedule of unamended Act of 1899 it would reveal that yearly rent has been shown to be Rs. 719/- in the document (Annexure P-16) and accordingly, five times of said rent would come to Rs. 3595/-. Similarly, the premium mentioned in the document is Rs. 1,43,861/-. Thus, if the premium and the yearly rent are added, the figure of Rs. 1,47,456/- would come and accordingly the stamp duty of Rs. 11,059/- is payable. Indeed the petitioner has deposited more stamp duty on the document (Annexure P-16) as admittedly the document/lease deed is upon stamp duty of Rs. 11,613/-. Thus, I am of the view that since the document is a lease deed, hence proper stamp duty has been paid.

For the reasons stated hereinabove, this petition succeeds and is hereby allowed. The impugned order dated 30-10-1999 (Annexure P-18) passed by the respondent No. 2/Collector (Stamps) and also order dated 30-5-2000 (Annexure P-20) passed by the Board of Revenue stand quashed. It is hereby held that document (Annexure P-16) has been correctly valued and has been executed on proper stamp duty prevailing on the date of its execution. Let a writ of certiorari be issued. Looking to the facts and circumstances, the parties are directed to bear their own costs.