MUNINDRA NATH UPADHYAYA Vs. STATE OF U P

JUDGEMENT

(1.) G. P. Mathur, J. Several writ petitions have been filed challenging the order of the respondents whereby the petitioners have been asked to pay stamp duty on the agreements executed in their favour for collection of toll tax. Two such petitions in which leading arguments have been advanced are being disposed of by a common order.

(2.) IN exercise of the powers under sub-section (1) of Section 9 read with Section 2-C of the INdian Tolls Act, 1851 (Act VIII of 1851), inserted by the INdian Tolls (Uttar Pradesh Amendment) Act, 1974 (U. P. Act, No. 22 of 1974) (hereinafter referred to as the 'act'), in its application to Uttar Pradesh, the State Government made the Uttar Pradesh Tolls Regulation, Levy and Collection Rules, 1980. Rule 4 provides that in accordance with the provisions as Section 2-C of the INdian Tolls Act, the Governor or his nominee may invite auction bids from the persons desirous of taking lease for the collection of the tolls levied on the bridges specified in the notification issued by the Government. On 4-1-1994 an auction was held for giving the right to collect toll over a bridge known as Sanjay Setu which is on Kanpur- Hamirpur Road. The bid of Rs. 24,43,000 made by Munindra Nath Upadhyaya being the highest was accepted. The Executive Engineer, P. W. D. Hamirpur by the order dated 3-2-1994 (Annexure 1) to the writ petition) directed him to supply stamp duty of Rs. 4,42,942. 50 foe she purpose of execution of the agreement. Writ Petition No. 4978 of 1994 has been filed for quashing of the aforesaid order, in writ petition No. 18595 of 1988 Roshan Lal has sought quashing of a similar order, dated 13-9. 1988 for payment of stamp duty on the agreement executed in his favour for collection of tolls over Nakatia Nala Bridge on National Highway No. 24 in the district Bareilly. The respondents have levied stamp duty under Article 35 (b) of Schedule I-B of the INdian Stamp Act as applicable to the State of U. P. The petitioners contend that the agreement to realise toll is not a lease and being an agreement simpliciter which is not otherwise provided for in the Schedule, they are liable to pay stamp duty of Rs. 100 only in accordance with Article 5 (c) of Schedule I-B. In order to appreciate the controversy raised, it will be convenient to refer to relevant statutory provision. Section 2 (16) of Stamp Act defines a 'lease' and it 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 i rent, for immovable property ; (c) any instrument by which tolls of any description are let; (d) any writing on an application for a 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 (c) of Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957. The relevant part of Article 35 of Schedule I-B reads as follows : Description of INstrument Proper stamp-duty 35. Lease, including an uuder-iease or sub-leaste and any agreement to let or sub-let - (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Where the lease is granted for a fine or premium or for money advanced and where no rent is reserved ; The same duty as a Conveyance (No. 23) for a consideration equal to the amount or value of such fine or premium or advance as set forth in the lease. (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . provided ;. . . . . . . . . . . . . . . . . . . . . Explanations (1 ). . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . (4) The aggregate amount. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . at which tolls are let, whether payable in lump sum or instal ments, shall be deem ed to be premimum for the purposes of this Article Article 5 relates to agreement or memorandum of an agreement relating to sale of a bill of exchange or sale of a Government security or share in a company or sale of an immovable property. The definition of the word 'lease' as given in Section 2 (16) of the Act shows that it is in two parts. The first part provides that it means a lease of immovable property. The second part, however, lays down that it also includes the instruments enumerated in clauses (a) to (e), Sub-clause (c) lays down that lease includes any instrument by which tolls of any description are let. The use of the word "includes" shows that the definition is not restrictive and exhaustive but is prima facie extensive.