TATATELE SERVICES LTD Vs. STATE OF U P

JUDGEMENT

(1.) JANARDAN Sahai, J. The petitioner was granted a licence under Section 4 (2) of the Indian Telegraph Act, 1885 to establish, maintain and operate fixed and mobile telephone services. In connection with this business the peti tioner installs radio based station also known as cell sites and Telecom towers at suitable locations usually on empty roof top spaces of buildings. The petitioner has entered into various identical agreements each described as a licence in respect of a number of sites in Ghaziabad for installing cell site and other related equipments on the terrace or ground space of the property of the 'licensor'. The dispute in the present writ petition relates to 17 such licence deeds each of which was executed on a stamp paper of Rs. 100 in accordance with Entry 5-C of Schedule 1-B of the Indian Stamp Act.

(2.) A circular letter dated 5. 2. 2003 was issued by the Commissioner (Stamps) to the various Assistant Commissioners and Collectors of Stamp in UP. that telephone companies were executing agreements with private persons for taking on rent their roofs for installation of tower and these documents were neither being registered nor stamped and the Additional Collectors were directed to visit the offices of the companies and to examine the agreements and ensure the recovery of proper stamp duty and registration of such agreement. In pursuance of the circular the District Magistrate Ghaziabad issued notice dated 9. 11. 2004 to the petitioner stating that the petitioner was not paying the requisite stamp duty under Article 35 of Schedule 1-B of the Stamp Act, which is applicable to a lease and was thereby violating the provisions of Section 17 of the Act. The petitioner was called upon to appear before the District Magistrate on 19. 11. 2004. The notice was followed by another notice dated 10. 12. 2004. The notice dated 9. 11. 2004, which according to the petitioner was served upon the petitioner on 20. 12. 2004 after the date of the meeting was accompanied by a format in which the petitioner was required to provide information regarding the rent per month payable and the period of the agreement. The petitioner gave reply dated 27. 1. 2005 and furnished the details of the aforesaid agreements disclosing the monthly charges being paid by the petitioner as compensation to the licensor/guarantor and the period of the licence, namely 20 years. The copy of the letter dated 27. 1. 2005 of the petitioner has been filed by it as Annexure P-8.

(3.) I have heard Sri Sunil Gupta, learned senior Advocate who appeared for the petitioner and the learned Advocate General who defended the validity of the U. P. Amendment. I have also heard the learned Standing Counsel. Written arguments have been filed on behalf of the petitioner and also by the State. The petitioner's case is that in its very nature stamp duty is a duty levied on an original instrument and not upon the transaction nor upon a copy of the instrument. The duty it is submitted is leviable only upon the voluntary production of the instrument. It is in this sense that stamp duty has been used in the Stamp Act and accepted by Courts. Entry 44 of List III of the Vllth Schedule of the Constitution of India is as follows: "stamp duty other than duties and fees calculated by means of judicial stamps but not including the rates of stamp duty. "