MAHESH CHANDRA Vs. STATE OF U P

JUDGEMENT

(1.) S. R. Singh, J. The question that comes into focus for determination in the present writ petition is whether the instrument by which the right to collect tolls in respect of Peelakhar Bridge situate at kilometre Stone flacked with the figure '19' Km. on Rampur Beesalpur Milk Road in the district of Rampur is a 'lease' within the meaning of Section 2 (16) of the Indian Stamp Act, 1889 (in short the 'act') chargeable to stamp duty in accordance with Article 35 (b) read with Article 23 of Schedule 1-B of the Act.

(2.) THE facts beyond the pale of controversy are that the right to collect tolls in respect of the bridge in question was let out to the petitioner in consi deration of a sum of Rs. 1,38,000 settled on the basis of public auction for a span of one year. By means of the notice dated 20th September, 1986, the petitioner was notified to deposit stamp duty payable at the rate of Rs. 47. 50 per thousand in accordance with Article 35 (b) of Schedule 1-B of the Act. THE petitioner contested the notice and urged that the instrument in question was a licence and not the lease and as such, it was chargeable to stamp duty in accordance with Article 5 (c) of Schedule 1-B of the Act and not in accordance with Article 35 (b) of Schedule 1-B. Assistant Commissioner of Stamp, Moradabad Region, by means of the order date 31-5- 1990, held that the instrument in question would be chargeable to stamp duty in accordance with Article 35 (b) read with Article 23 of the Stamp Act. THE petitioner who had deposited the stamp duty of Rs. 6,550 was required to deposit a sum of Rs. 6,550 more. It is this order which is sought to be quash ed by means of the present petition.

(3.) IT crystallises that the word 'lease' as defined in Section 2 (16) of the Act means not only "lease of immoveable, property" but it also includes, inter alia, any instrument by which tolls of any description are let. In M/s. Bilal Ahmad Sherwani and Kishore Lal v. State, AIR 1992 All 181 a Division Bench of this Court has held that "lease for collection of toll tax falls under Section 2 (16) (c) of the Act". Although the Division Bench in the aforestated case has further held that "there is no transfer of immovable property" in the case of a lease for collection of tolls but this observation seems to be founded on admission as would be evident from the word "admittedly" preceding the observation aforestated. We have, however, our own reserva tions on the point as to whether the right to collect tolls in respect of a bridge can constitute 'benefit' arising out of the land so as to bring it within the purview of "immovable property" as defined in Section 3 of the General Clauses Act, which definition, in the absence of any definition of the term 'immovable property' in the Act, may be attracted - (See Qudrat Ullah v. Bareilly Municipality, AIR 1974 SC 396 ). For the purpose of the present case, we need not dwell upon this issue.