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Banney Khan Vs. the Chief Inspector of Stamp, U.P. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberMisc. Stamp Act Reference No. 261 of 1972
Judge
Reported inAIR1976All475
ActsUttar Pradesh Stamp Act, 1899 - Sections 2(5) and 2(16) - Schedule - Article 35; Transfer of Property Act, 1882 - Sections 105; Easements Act, 1881 - Sections 52; Uttar Pradesh Stamp (Amendment) Act, 1962
AppellantBanney Khan
RespondentThe Chief Inspector of Stamp, U.P.
Appellant AdvocateB.L. Yadav, Adv.
Respondent AdvocateStanding Counsel
Excerpt:
.....1(b), article 35 (b) of u.p. stamp act,1899 and section 105 of transfer of property act,1882 and section 52 of easements act, 1881 - even if a transaction does not amount to a lease under section 105 of transfer of property act, it may nonetheless be a lease for the purposes of stamp act. - - therefore, it can at best be a licence as defined in section 52 of the easements act. under section 105 of the transfer of property act a lease is a transfer of a right to enjoy immovable property made for a certain time, express or implied or in perpetuity in consideration of a price paid or promised etc. if we had to go entirely by the definition of 'lease' as contained in section 105, it may be difficult to hold that a transaction amounts to a lease when there is no transfer of a..........the case with its opinion and has formulated two points of law for decision, viz:--1. whether the document is a lease deed falling under section 2(16) of the stamp act and is chargeable under article 35 (b), schedule i-b of the u. p. stamp (amendment) act, 1962, with a duty of rs. 1,080/-.2. whether the document is a licence and also a bond under section 2(5) of the stamp act and is chargeable with duty as a bond under article 15, schedule i-b of the above act.4. so far as the first point is concerned, the learned counsel for the applicant has made three submissions. in the first place he has contended that the preamble of the stamp act shows that it is an act to consolidate and amend which means that it collects statutory provisions relating to stamp and embodies them in this act.....
Judgment:

Saxena, J.

1. This is a reference under Section 57 of the Indian Stamp Act, 1899, by the Chief Controlling RevenueAuthority, viz., the Board of Revenue, Uttar Pradesh.

2. Admittedly in an auction Banney

Khan applicant took the contract for collection of toll from the premises known as 'New Sabzimandi' belonging to the Municipal Board, Ujhani, District Budaun, for the period 1st of April, 1967, to March 1968. In pursuance of this auction a document (Annexure I to the Reference) describing the Municipal Board, Ujhani, as 'the lessor' and the applicant as 'the lessee' was executed by both the parties on 31-3-1967. Stamp duty of Rs. 2.50 was paid on this document. The essential terms of the agreement were that during the said period of one year the lessee will remain in possession of the subject-matter of lease and will realise toll on all the goods at the rates provided by the lessor. The lessee will pay to the lessor for such permission a sum of Rs. 23,700/- out of which Rs. 10,000/- will be paid by 1-4-1967 and the balance will be paid in four instalments of Rs. 3,425/- per month by the end of each succeeding month and, as such, the whole amount will be paid by the end of August, 1967. In case of default in the payment of any instalment the lessor will be entitled to determine the lease and enter into possession of the premises and the lessee will forfeit all his rights therein, and will be liable for any sum remaining unpaid and for any loss that may accrue to the lessor by reason of his default.

3. The Inspector of Stamps and Registration, Bareilly Circle, who has been appointed as Collector under Section 40 of the Stamp Act, examined this document in the office of the Municipal Board, Ujhani and being of the view that it is a lease as defined in Section 2(16) of the Indian Stamp Act, was chargeable with duty under Article 35 (b), Schedule I-B of the U. P. Stamp (Amendment) Act, 1962, impounded it and imposed deficit duty of Rs. 1,077.75 and a penalty of Rs. 100/-. The applicant being aggrieved filed an application under Section 56(1) before the Board of Revenue and then prayed that the matter be referred under Section 57 of the Stamp Act to the High Court. Accordingly, the Board of Revenue has submitted a statement of the case with its opinion and has formulated two points of law for decision, viz:--

1. Whether the document is a lease deed falling under Section 2(16) of the Stamp Act and is chargeable under Article 35 (b), Schedule I-B of the U. P. Stamp (Amendment) Act, 1962, with a duty of Rs. 1,080/-.

2. Whether the document is a licence and also a bond under Section 2(5) of the Stamp Act and is chargeable with duty as a bond under Article 15, Schedule I-B of the above Act.

4. So far as the first point is concerned, the learned counsel for the applicant has made three submissions. In the first place he has contended that the preamble of the Stamp Act shows that it is an Act to consolidate and amend which means that it collects statutory provisions relating to stamp and embodies them in this Act making only minor improvements and amendments and does not alter any existing law and, as such, the word 'lease' will be construed to mean as defined in Section 105, Transfer of Property Act and not as contained in the Stamp Act. The contention carries no force because in the case of Santhanand v. Basu-devanand : AIR1930All225 the Full Bench of this Court has held that a consolidating and amending Act does not merely consolidate previous enactments but the whole law on the subject and it does not merely consolidate pre-existing law but also amends it which taken with consolidation of the same implies both addition to and in derogation from the pre-existing law. It is a complete Code in itself as regards the subject it deals with. Again in Ravulu Subba Rao v. Commissioner of Income-tax, Madras : [1956]30ITR163(SC) their Lordships of the Supreme Court have held that the courts must construe the provisions of the consolidating and amending Act as forming a Code complete in itself and exhaustive of the matters dealt with therein and ascertain what the true scope is. Therefore, the Stamp Act also being an Act to consolidate and amend is exhaustive and indicates that all the former Acts on the subject of stamps have been collected and the law embodied therein altered and for determining the nature of a document, the provisions of this Act alone will be taken into consideration.

5. The second contention of the learned counsel for the applicant is that even according to Section 2(16) of the Stamp Act the document must first be a 'lease' within the meaning of Section 105 of the T. P. Act and then alone it can be a lease under the former Act. As the document in question does not create any interest in the property, it cannot be a lease under Section 105, T. P. Act and consequently under Section 2(16) of theStamp Act. It simply permits use of the property of which the legal possession continues with the Municipal Board. Therefore, it can at best be a licence as defined in Section 52 of the Easements Act. In support of this contention reliance is placed on the case of Babu Fazal Haq v. Dataram : AIR1975All373 which lays down distinction between 'lease' and 'licence'. This contention also does not carry much force. Lease is defined both in the Transfer of Property Act and in the Stamp Act. Under Section 105 of the Transfer of Property Act a lease is a transfer of a right to enjoy immovable property made for a certain time, express or implied or in perpetuity in consideration of a price paid or promised etc. If we had to go entirely by the definition of 'lease' as contained in Section 105, it may be difficult to hold that a transaction amounts to a lease when there is no transfer of a right to enjoy the property for a certain time, but Section 2(16) of the Stamp Act defines lease as follows:

'Lease' means a lease of immoveable 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 rent for, immovable property;

(c) any instrument by which tolls of any description are let;

(d) any writing on an application for a lease intending to signify that the application is granted.'

6. This section while presumably borrowing the definition of 'lease' as contained in the T. P. Act adds thereto a provision that 'lease' shall include among other things, documents described in Clauses (a) to (d). The use of the words 'include also' obviously implies that the definition of 'lease' as contained in the Stamp Act is wider and more comprehensive than the definition of it in Section 105, T. P. Act. It would follow that even if a transaction does not amount to a lease under Section 105 of the latter Act, it may nonetheless be a lease for the purposes of Stamp Act. We are supported in this view by the Full Bench decision of this Court in re: Burmah Shell Oil Storage and Distributing Co. Ltd. of India : AIR1933All735 . A casual reading of the definition of 'lease' indicates that any instrument by which tolls of any description are let comes within the definition of this term. What is, therefore, to be seen is whether the document is an instrument by which tolls of any description are let. In our opinion the agreement before us comes clearly within the language quoted above. This is a document by which all lands and buildings known as 'New Subzi Mandi' have been made over by the owners thereof to the applicant for a period of one year. He is entitled to realise fee from occupiers thereof at certain rates in consideration of a sum fixed by public auction. This is 'letting of tolls' and the document is covered by Section 2(16)(c) of the Stamp Act. It is needless to say that the word 'toll' used in this sub-section means any sum of money which is taken in respect of some benefit, the benefit being the temporary use of land, that is, fares and market tolls. It includes all payments or taxes made by persons who frequent the market for the sale of any commodity or any thing which by practice or custom is expected to be sold in the market. This document is signed both by the lessor and the lessee-Therefore, it can hardly be doubted that it is an instrument by which collection of tolls is let and is lease within the meaning of Section 2(16) of the Stamp Act and is chargeable with Stamp duty under Article 35 (b) Schedule I-B of the U. P. Stamp (Amendment) Act, 1962. The same view was taken in the case of Panchayat Samiti v. Smt. Kethavarapu Kannamma, : AIR1973AP72 .

7. Lastly, relying on the case of Trilok Chand v. Chief Controlling Revenue Authority : AIR1973All473 it is argued that the document is a bid-sheet and not a lease. This contention is also not tenable because a bid-sheet is a document on which bids made by various persons at public auction are taken down and their signatures are obtained. The Officer conducting the auction also makes an endorsement that the bid was closed as there was no higher offer. The document is obviously not of that nature. On the other hand it incorporates essential terms relating to the letting of tolls. The Municipal Board and the applicant are described as 'the lessor' and 'the lessee' respectively throughout. Therefore, by no stretch of imagination it can be called a bid-sheet.

8. Upon a consideration of the whole matter we are of the view that the document in question is a lease within the meaning of Section 2(16)(c), Stamp Act and is chargeable under Article 35 (b) Schedule I-B of the U. P. Stamp (Amendment) Act, 1962,

9. So far as the second point is concerned, we have already held that the document is a lease within the meaning of Section 2(16) of the Stamp Act, Therefore, it cannot be a license or a bond and is not chargeable as such.

10. For the reasons given above we answer point No. 1 in the affirmative and point No. 2 in the negative.

11. No order as to costs.


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