# D.L.F. Universal Ltd. & Anr v. State of U.P. & Ors

- **Citation:** (2020) 7 ILRA 278
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-22
- **Case number:** Writ C No. 7279 of 2006
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/d-l-f-universal-ltd-anr-v-state-of-u-p-ors-45337
- **Pages:** 16

## Headnote

A. Company Law - Companies Act, 2013 -
The Constitution of India,1950-Article 226
- refund of stamp duties-Petitioners contended
that denial of refund is illegal but could not
dispute that in absence of first proviso,
petitioners were not entitled to seek any
exemption of stamp duty under notification
dated 19.01.2005-Moreover, when exemption
notification dated 19.01.2005 came into force,
second proviso,denying refund was already
existing on the statute book since 10.01. 2005the contention that refund has been denied to
petitioners is discriminatory, is not acceptable.
(Para 36)

Petitioners did not present instrument in
question either before District Magistrate or
General Manager, District Industrial Centre for
authentication and confirmation of facts that
transfer under lease is covered
by the
notification. In absence of compliance of all the
conditions of notification dated 19.01.2005,
Petitioners cannot claim exemption form stamp
duty and no remission is permissible. (Para 14)
7 All. D.L.F. Universal Ltd. & Anr. Vs. State of U.P. & Ors.
279
The writ petition is dismissed.
(E-6)

## Text

_Characters 0–39,827 of 43,442. This is a partial read: ask again with offset=39827 for what follows._

278 INDIAN LAW REPORTS ALLAHABAD SERIES

...................

The "person aggrieved" means a
person who is wrongfully deprived of his
entitlement which he is legally entitled to
receive and it does not include any kind of
disappointment or personal inconvenience.
"Person aggrieved" means a person who is
injured or he is adversely affected in a
legal
sense.
(Vide
K.N.
Lakshminarasimaiah Vs. Secretary, Mysore
S.T.A.T., (1966) 2 Mys. L.J. 199).

Whether a person is injured in
strict legal sense, must be determined by
the nature of the injury considering the
facts and circumstances involving in each
case. A fanciful or sentimental grievance
may not be sufficient to confer a standi to
sue upon the individual. There must be
injuria or a legal grievance, as the law can
appreciate and not a stat pro ratione
valuntas reasons.

.......................

........................"
 (emphasis added)

18. The petitioner has not suffered
any legal injury by the allotments and the
allotments do not affect his title over the
plots. Thus, in view of the observations
made by this Court in Munshi (Supra),
there is no illegality in the orders of the
revenue authorities holding that the the
petitioner was not an aggrieved person
and had no right to challenge the
allotments
made
in
favour
of
the
respondents.

19. There is no illegality in the
impugned orders dated 20.11.2017 and
24.10.2019 passed by the Collector and
the Commissioner.

20. The writ petition lacks merit and
is dismissed.
----------
(2020)07ILR A278
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Writ C No. 7279 of 2006

D.L.F. Universal Ltd. & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shesh Kumar, Sri Saurabh Srivastava,
Sri T.P. Singh, Sri Navin Sinha.

Counsel for the Respondents:
C.S.C., Sri D. Awasthi, Sri V.P. Mathur, Sri
Ramendra Pratap Singh.

A. Company Law - Companies Act, 2013 -
The Constitution of India,1950-Article 226
- refund of stamp duties-Petitioners contended
that denial of refund is illegal but could not
dispute that in absence of first proviso,
petitioners were not entitled to seek any
exemption of stamp duty under notification
dated 19.01.2005-Moreover, when exemption
notification dated 19.01.2005 came into force,
second proviso,denying refund was already
existing on the statute book since 10.01. 2005the contention that refund has been denied to
petitioners is discriminatory, is not acceptable.
(Para 36)

Petitioners did not present instrument in
question either before District Magistrate or
General Manager, District Industrial Centre for
authentication and confirmation of facts that
transfer under lease is covered
by the
notification. In absence of compliance of all the
conditions of notification dated 19.01.2005,
Petitioners cannot claim exemption form stamp
duty and no remission is permissible. (Para 14)
7 All. D.L.F. Universal Ltd. & Anr. Vs. State of U.P. & Ors.
279
The writ petition is dismissed.
(E-6)

(Delivered by Hon'ble Sudhir Agarwal, J.
& Hon'ble Rajeev Misra, J.)

1. Present writ petition under Article
226 of the Constitution of India has been
filed by M/s D.L.F. Universal Limited and
its
Executive
Director,
Legal
and
Constituted Attorney, Sri K. Swarup
initially, seeking a writ of mandamus
commanding respondents to refund stamp
duty of Rs.16,91,03,000/- along with
interest at the rate of 24% per annum to
petitioners realized from them towards
stamp duty on the instrument in question
though it was not chargeable with any
stamp duty. Subsequently, by amendment
prayer (d) has been inserted to issue a writ
of certioari quashing second proviso of
amended notification dated 10.07.2008,
issued by U.P. Government (Annexure 1 to
the affidavit and Annexure 9 to the writ
petition) in so far as it relates to denial of
stamp duty already paid.

2. Facts, in brief, giving rise to
present petition are that petitioner 1, M/s
D.L.F. Universal Ltd., is a company
incorporated under Companies Act, 1956
(hereinafter referred to as Act 1956) and
continuing as such under the provisions
Companies Act, 2013 (hereinafter referred
to as "Act, 2013"). Company is dealing in
transaction of land, construction of multistoreyed colonies, commercial complexes
etc.
New
Okhla
Industrial Authority
(hereinafter referred to as "NOIDA"), a
statutory body constituted under U.P.
Industrial
Development
Act,
1976
(hereinafter referred to as "U.P. Act, 1976")
invited tenders for allotment of commercial
plot no. 003, Block M, Sector 18, NOIDA
under the Scheme Commercial Hub, Sector
18 (2003-04). Petitioners' tender was
accepted by competent authority and they
were allotted aforesaid land which has a
total area of 54320.18 sq. meter, at the rate
of Rs.31,850/- per sq. meter. Total premium
of plot was calculated as Rs.1,73,00,97,
733/-
and
allotment
money
as
Rs.43,25,24,433.25. Petitioner had already
deposited earnest money as Rs.3 crores,
hence, after deducting aforesaid amount,
petitioner was required to deposit balance
amount of Rs.40,25,24,433.25 within 15
days from the date of acceptance of letter
and
balance
premium
of
Rs.129,75,73,299.75 was payable within 90
days from the date of issue of acceptance
letter without interest. The land in dispute
was involved in a Public Interest Litigation,
i.e., PIL No. 10137 of 2004 filed by one
Anil Kumar Srivastava which ultimately
was transferred to Supreme Court and
decided in Civil Appeal No. 5402 of 2004,
vide Judgment dated 20.8.2004 and it was
dismissed.
Supreme
Court
permitted
petitioners to pay balance amount of 75 per
cent within a week. Pursuant thereto, 75 per
cent balance amount was paid to NOIDA
on 26 August 2004 and request for
execution of lease deed and handing over
possession was made. Before lease deed
could be executed, State Government
issued a notification 19.01.2005 modifying
its earlier notification dated 31.08.1998 in
exercise of powers under clause (a), subsection (1) of Section 9 of Indian Stamp
Act 1899 (hereinafter referred to as Act
1889) as amended from time to time in
State of U.P., stating that with effect from
the date of notification dated 19.01.2005
instruments as shown in column 4 of the
Schedule
executed
for
the
purposes
provided in paragraphs 4.2.1, 4.2.2 and
4.2.3 and clauses (a) to (f) of paragraph 8.2
of the Industrial and Service Sector
Investment Policy, 2004, are exempted
280 INDIAN LAW REPORTS ALLAHABAD SERIES
from stamp duty. It also provided that
exemption shall be granted only on the first
instrument executed for transfer of an
immovable property in favour of an
enterpreneur. District Magistrate or General
Manager, District Industries Centre was to
sign such instrument as witnesses for
confirming the fact that transfer is being
executed under the said policy. Paras 4.2.1,
4.2.2, 4.2.3 and 8.2 (a) to (f) as said in
notification read as under:-

Paragraph
number of
the
Industrial
and
Service
Sector
Investment
Policy,
2004 of the
State

Purpose
and other
details
Extent
of
remiss
ion
Nature
of
investm
ent and
Article
number
of
Schedul
e I-B
4.2.1
(a)
For
setting up
of
new
small scale
or
Tiny
industrial
units in 29
district
of
Purchanch
al and in 7
district
of
Bundelkha
nd.
Full
Convey
ance
Article
23(a)

(b)
For
setting up
of
New
Medium or
large
industrial
units in 29
Half
Convey
ance
Article
23(a)
district
of
Purchanch
al and in 7
districts of
Buldelkhan
d

(c)
For
setting up
of
industrial
units
in
rest of the
districts of
the State
Half
Convey
ance
Article
23(a)
4.2.2
Transfer of
land
for
developme
nt
of
infrastruct
ure
facilities
viz.
for
establishin
g
Industrial
Estates,
Road,
Bridges,
overbridges,
wholesale
market,
Transhipm
ent Centre,
Integrated
Transport
and
Commercia
l
Centre,
Container
Depot,
Electricity
Supply,
Water
Full
Convey
ance
Article
23(a)
7 All. D.L.F. Universal Ltd. & Anr. Vs. State of U.P. & Ors.
281
Supply,
Water
drainage,
Exhibition
Centres,
Warehouse.
4.2.3
Establishm
ent
of
Informatio
n
Technology
, Business
Process
Outsourcin
g
units,
Call
Centres,
AgroProcessing
units.

Full
Convey
ance
Article
23(a)
and
Lease
Article
35
8.2 (a)
Transfer of
immovable
property
for
such
multifacility
Hospital
having an
established
capacity of
minimum
100
beds
and having
an
area
which
is
more than
the
area
for medical
purpose as
prescribed
in
the
relevant
Full
Convey
ance
Article
23(a)
and
Lease
Article
35
Governme
nt
order
and haring
such
medical
facilities as
provided in
the
relevant
Governme
nt order.
8.2 (b)
Transfer of
immovable
property
for
a
Superspeciality
Hospital
having
medical
facilities as
provided in
the
relevant
Governme
nt order

Full
Convey
ance
Article
23(a)
and
Lease
Article
35
8.2 (c)
Transfer of
immovable
property
for
a
Hospital
established
in
Block
Headquart
er
(which
is different
from
a
Tehsil and
District
Headquart
er) having
an
established
Full
Convey
ance
Article
23(a)
and
Lease
Article
35
282 INDIAN LAW REPORTS ALLAHABAD SERIES
capacity of
minimum
50
beds
and having
such
medical
facilities as
provided in
the
relevant
Governme
nt order.
8.2 (d)
Transfer of
immovable
property
for
a
Hospital
established
in a village
(which
is
different
from
a
Block
Headquart
er) having
an
established
capacity of
minimum
30
beds
and having
such
medical
facilities as
provided in
the
relevant
Governme
nt order.

Full
Convey
ance
Article
23(a)
and
Lease
Article
35
8.2 (e)
Transfer of
immovable
Full
Convey
ance
property
for
a
training
institute for
Technical
or
Informatio
n
Technology
established
in a Block
Headquart
er
(which
is different
from
a
District
Headquart
er) having
a minimum
75
students/
trainees
and which
is running
on
a
syllabus
approved
by
the
State
Governme
nt.
Article
23(a)
and
Lease
Article
35
8.2 (f)
Transfer of
immovable
property
for
a
Medical
and Dental
College or
other
Educationa
l
Institutions
, Multiplex
Cinema
Full
Convey
ance
Article
23(a)
and
Lease
Article
35
7 All. D.L.F. Universal Ltd. & Anr. Vs. State of U.P. & Ors.
283
Hall,
Shopping
Malls,
Entertain
ment
Centres in
which the
cost
of
constructio
n
and
machinery
is not less
than
rupees ten
crore and
which
have such
facilities
and which
fulfill
the
conditions
as
have
been
provided in
Governme
nt
order
no. 845/51-04-(28)/
2002 dated
Febryary
27,
2004
issued
by
Medical
Section-1,
Governme
nt of Uttar
Pradesh
orders
issued
by
the related
Governme
nt
Departmen
ts
from
time
to
time.

3.

Notification
also
said
that
immovable property, which was transferred
shall not be used for the purpose other than
the purpose described in said policy.
Explanation in the notification gives details
of districts as referred to in aforesaid
paragraph 4.2.1 and reads as under:-

"(a) 29 districts of Purvanchal
shall comprise of the revenue districts of
Faizabad, Sultanpur, Barabanki, Gonda,
Bahraich,
Basti,
Siddharthnagar,
Gorakhpur,
Maharajganj,
Deoria,
Kushinagar,
Azamgarh,
Mau,
Ballia,
Varanasi, Ghazipur, Jaunpur, Mirzapur,
Sonbhadra, Sant Ravidas nagar, Allahabad,
Fatehpur,
Pratapgarh,
Balrampur,
Chandauli,
Sravasti,
Kaushambi,
Ambedkarnagar, Sant Kabir Nagar.

(b) 7 districts of Buldelkhand
shall comprise of the revenue districts of
Jhansi, Jalaun, Lalitpur, Banda, Mahoba,
Hamirpur, Chitrakoot.

(c) Rest of the districts of the
State means the districts of the State which
are not mentioned in clauses (a) and (b)
above."

4. NOIDA required petitioners to
execute sale deed on payment of stamp
duty of Rs.166,10,300/-. The lease deed
was executed on 25th February 2005
between NOIDA and petitioners and
registered on the same day in the office of
Sub Registrar-II, NOIDA. Copy of lease
deed shows that land was allotted to
petitioners for the purpose of shopping
malls,
multiplexes,
showrooms,
retail
outlets, hotels, restaurants, offices and such
other commercial usage after constructing
building according to setbacks and building
284 INDIAN LAW REPORTS ALLAHABAD SERIES
plan approved by lessor. Despite the fact
that no stamp duty was payable in terms of
paras 8.2(f) notification dated 19.01.2005,
in ignorance thereof, NOIDA charged
stamp duty upon petitioners for execution
of aforesaid lease deed dated 25.2.2005.
Petitioners submitted plan for construction
of
shopping
malls
etc.
which
was
sanctioned and petitioners started work and
the estimated cost of construction is much
more than Rs.10 crores. Therefore, all the
conditions set out in notification dated
19.01.2005 were satisfied so as to exempt
petitioners from payment of stamp duty.
Petitioners, therefore, sent letter dated
19.4.2005
requesting
Chief
Executive
Officer, NOIDA to refund stamp duty
illegally realized from petitioners.

5. NOIDA officials replied, vide letter
dated 16.09.2005 that the matter relating to
refund of stamp duty is under the
jurisdiction
of
Tax
and
Registration
Department,
U.P.
Government.
Consequently,
petitioners
sent
representation dated 27.09.2005 requesting
District Magistrate/ Collector, Gautam
Budh Nagar to refund aforesaid stamp duty
which
was
illegally
realised
from
petitioners. Having received no reply,
petitioners sent registered notice dated
19.12.2005 to all concerned authorities,
namely,
Chief
Controlling
Revenue
Authority,
Sub
Registrar,
District
Magistrate and Vice Chairman, NOIDA
making demand to refund of stamp duty.
This writ petition, therefore, has been filed
with a prayer that aforesaid stamp duty
should be refunded.

6. During pendency of present writ
petition, an amendment has been made in
Government Notification dated 31.8.1998,
w.e.f 19.01.2005 in exercise of powers
under Section 21 of General Clauses Act,
1897 read with Section 9 (1) (a) of Act
1899, by notification dated 10.07.2008,
whereby two provisos have been inserted at
the end of para 1, which read as under:-

"Provided that where the District
Magistrate or the General Manager,
District Industries Centre of the concerned
District could not have signed such
instrument
as
witness
due
to
any
procedural
omission,
the
District
Magistrate of the concerned district shall
issue a certificate to the effect that the
instrument of transfer has been executed
under the aforesaid policy such certificate
shall have the same effect as if such
instrument were signed as witness by the
District
Magistrate
or
the
General
Manager, District Industries Centre of the
concerned district before the registration
thereof.

Provided
further
that
any
amount of the duty already paid on such
instrument shall not be refunded on the
basis of aforesaid certificate issued by the
District Magistrate of the concerned
district." (emphasis added)

7. Thus, aforesaid amendment denied
refund of stamp duty where it has already
been paid. This notification has also been
challenged on the ground that the amount
illegally realized cannot be retained by
State and it violates constitutional right of
property enshrined under Article 300A of
the Constitution. Denial of refund is
patently illegal, arbitrary and without any
authority of law. An amount realized from
any person without any authority of law
cannot be retained by State and it cannot
deny its refund.

8. Contesting writ petition, a counter
affidavit has been filed on behalf of
7 All. D.L.F. Universal Ltd. & Anr. Vs. State of U.P. & Ors.
285
Respondents-1 and 2, sworn by Sri G.K.
Srivastava, Deputy Commissioner (Stamp)
Head Quarter Allahabad. It is not disputed
that petitioners are lessee of plot no.003
Block M, Sector 18, NOIDA, which was
allotted by NOIDA, vide allotment letter
dated 12.4.2004. The consideration of
premium agreed between parties shown in
lease deed was Rs.1,73,00,97,733/- and the
term of lease is 90 years from the date of
execution of lease, which was executed on
25.2.2005. Thus, the deed in question is an
"instrument" within Section 2 (14) of Act
1899, which reads as under:-

"(14) "Instrument" includes every
document by which any right or liability
is, or purports to be, created, transferred,
limited,
extended,
extinguished
or
recorded." (emphasis added)

9. Instrument is a "lease" under
Section 2(16) and it reads as under:-

"(16) "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 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."

10. An Instrument of lease, therefore,
is chargeable under Section 3(aa) of Act
1899. Section 3(aa) reads as under:-

"3(aa).
Every
instrument
mentioned in Schedule I-A or I-B, which,
not having been previously executed by
any person, was executed in Uttar Pradesh:

(i) in the case of instruments
mentioned in Schedule I-A, on or after the
date
on
which
the
U.P.
Stamp
(Amendment) Act, 1948 came into force,
and

(ii) in the case of instruments
mentioned in Schedule I-B, on or after the
date
on
which
the
U.P.
Stamp
(Amendment) Act, 1952 comes into force."

11. Stamp Duty is payable at or at the
time of execution of deed as provided in
Section 17 of Act 1889. The amount of
stamp duty payable under Article 35 (c) (ii)
of Schedule 1-B of Act 1899, reads as
under:-

Article
35.
Lease
(including an under lease
or sub-lease and any
agreement to let or sublet)

(a) where by such
lease the rent is fixed and
no premium is paid or
delivered-

(i)
where
the
lease
purports to be for a term
not exceeding one year;

(ii)
where
the
lease
purports to be for a terms
exceeding one year but
not exceeding five years.

(iii)
where
the
lease
purports to be for a terms
exceeding five years but
not exceeding ten years.

(iv)
where
the
lease

The same duty as a
Bond (No. 15) for the
whole amount payable
or delivered under such
lease.

The same duty as
Conveyance (No. 23
Cl.
(a),
for
a
consideration equal to
four times the amount
or value of the average
annual rent reserved.

The same duty as
Conveyance (No. 23
Cl.
(a),
for
a
consideration equal to
four times the amount
286 INDIAN LAW REPORTS ALLAHABAD SERIES
purports to be for a term
exceeding ten years but
not
exceeding
twenty
years.

(v)
where
the
lease
purports to be for a term
exceeding twenty years
but not exceeding thirty
years.

(vi)
where
the
lease
purports to be for a term
exceeding thirty years or
in perpetuity or does not
purport to be for any
definite term.

(vii) .....

(viii) .....

(b) where the lease
is granted for a fine or
premium or for money
advanced and where no
rent is reserved-

(i)
where
the
lease
purports to be for a term
not
exceeding
thirty
years.

(ii)
where
the
lease
purports to be for a term
exceeding thirty years.

(c) where the lease is
granted for a fine or
premium or for money
advanced in addition to
rent reserved-

(i)
where
the
lease
purports to be for a term
not
exceeding
thirty
years.

or value of the average
annual rent reserved.

The same duty as
Conveyance (No. 23
Cl.
(a),
for
a
consideration equal to
four times the amount
or value of the average
annual rent reserved.

The same duty as
Conveyance (No. 23
Cl.
(a),
for
a
consideration equal to
four times the amount
or value of the average
annual rent reserved.

The
same
duty
as
Conveyance (No. 23
Cl.
(a),
for
a
consideration equal the
market
value
of
property which is the
subject of the lease.

The same duty as
Conveyance (No. 23
Cl.
(a),
for
a
consideration equal to
the amount or value of
such fine or premium
or advance as set forth
in the lease.

The same duty as
a Conveyance No. 23
cl.
(a),
for
a
consideration equal to
the market value of the
property
which
is
subject of the lease.

The same duty as a
Conveyance No. 23 cl.
(a), for a consideration
equal to the amount or
value of such fine or

(ii)
where
the
lease
purports to be for a terms
exceeding thirty years.

premium or advance as
set forth in the lease, in
addition to the duty
which would have been
payable on such lease,
if no fine or premium
or advance had been
paid or delivered:

Provided that in a
case
when
an
agreement to lease is
stamped with the ad
valorem stamp required
for lease, and a lease in
pursuance
of
such
agreement
is
subsequently executed,
the duty on such lease
shall not exceed Fifty
rupees.

The same duty as
a Conveyance No. 23
cl.
(a),
for
a
consideration equal to
the market value of the
property
which
is
subject of the lease.

12. Petitioners at no point of time,
either before execution of deed or after
execution thereof, within reasonable time,
approached Collector (Stamp) seeking
remission of duty in question by making
application for remission. In order to justify
exemption, the instrument in question has
to satisfy the following conditions:-

I. The policy referred in the
notification is the Industrial and Service
Sector Investment Policy 2004.

II. Exemption shall be granted
only on the first instrument executed for
transfer for an immovable property in
favour of an enterpreneur.

III. The District Magistrate or
General Manager, District Industry Centre
7 All. D.L.F. Universal Ltd. & Anr. Vs. State of U.P. & Ors.
287
of the concerned district shall sign such
instrument as witness for the purpose of
confirming the fact that transfer is being
executed under the said policy.

IV. The immovable property so
transferred shall not be used for the purpose
other than the purpose prescribed in the
policy.

13. Petitioners claim to fall under
clause 8.2 (f) which restrict application of
notification to transfer of immovable
property for a multiplex/shopping mall for
which cost of construction and machinery
is not less than 10 crores. Duty is
chargeable only on instrument and no
transaction. Therefore it was incumbent
upon
petitioners
to
mention
in
the
instrument specifically all those factors
which affect chargeability of stamp duty
under At, 1899. Section 27 of Act 1899
requires disclosure of all such facts and it
reads as under:-

"27. Facts affecting duty to be
set
forth
in
instrument.
--The
consideration (if any) and all other facts
and
circumstances
affecting
the
chargeability of any instrument with duty,
or the amount of the duty with which it its
chargeable, shall be fully and truly set
forth therein." (emphasis added)

14. In the case in hand, lease deed no
where mention the relevant facts, which
may attract notification dated 19.1.2005
inasmuch as it has no where mentioned that
cost of constructions and machinery would
be
10
crores
and
above.
Similarly
petitioners did not present instrument in
question either before District Magistrate or
General Manager, District Industrial Centre
of Gautam Budh Nagar for authentication
and confirmation of facts that transfer
under lease is covered by the notification.
In absence of compliance of all the
conditions of notification dated 19.1.2005,
petitioners cannot claim exemption from
stamp duty and no remission is permissible.
At no point of time, petitioners made any
application
to
District
Magistrate
intimating the cost of construction for
securing remission thereon. Notification
dated 19.1.2005 has to be read with
notification dated 10 July 2008, which has
made
amendment
with
effect
from
19.1.2005. In view of second proviso to
notification dated 19.1.2005 read with
notification dated 10th July 2005, no refund
is permissible.

15. Respondents 3 and 4 have also
filed separate counter affidavits stating that
petitioners never claimed exemption from
stamp duty and notification dated 10 July
2008 is within the power of State
Government to reduce, remit or compound
duties under Section 9 of Act 1899.

16. In the supplementary rejoinder
affidavit, petitioners have claimed that
notification dated 10th July 2008 is
arbitrary and has been issued to frustrate
the claim of refund of petitioners.

17. Sri Navin Sinha, learned Senior
Advocate assisted by Sri Shesh Kumar,
Advocate has appeared for petitioners and
learned Standing Counsel as well as Sri
Ramendra Pratap Singh, Advocate for
respondents.

18.

Sri
Sinha,
submitted
that
exemption could not be claimed by
petitioners at the time of execution of lease
deed due to lack of knowledge of
Notification dated 19.01.2005 and for that
reason petitioners cannot be penalized. He
submitted that as soon as petitioners came
288 INDIAN LAW REPORTS ALLAHABAD SERIES
to know about said mistake, they sent
letters dated 19.04.2005 and 16.09.2005
(Annexures-4 and 5 to writ petition) and
thereafter a legal notice dated 19.12.2005.
He contended that impugned notification
dated 10.07.2008 issued with retrospective
effect inserting second proviso, is only to
deny refund of stamp duty to petitioners
and, therefore, is arbitrary, discriminatory
and violative of Article 14 of the
Constitution of India.

19. Learned counsel appearing for
respondents collectively argued that stamp
duty was payable by petitioners and they
did not satisfy the conditions provided in
Notification dated 19.01.2005 so as to
entitle for exemption from stamp duty. In
any case Notification dated 10.07.2008 has
inserted second proviso in Government
Order dated 31.08.1998 w.e.f. 10.01.2005
while
exemption
was
granted
by
Notification dated 19.01.2005 and hence in
law second proviso was existing already on
statute book when exemption notification
was issued and hence it cannot be said that
it
is
discriminatory.
Even
otherwise,
petitioners have no otherwise legal right to
claim refund. Lastly it is contended that
with regard to eligibility for exemption etc.
the dispute raised by petitioners involve
investigation into facts and petitioners have
a
statutory
remedy before
Collector,
therefore, must avail the same and writ
petition should be dismissed.

20. We propose to first consider,
whether petitioners are ex facie entitled for
exemption from payment of stamp duty and
they were covered by para 8.2(f) of
notification dated 19.01.2005 for the reason
that question of refund will arise only if,
this question is answered in favour of
petitioners and only then validity of
notification dated 10.07.2008 will be
necessary to be considered.

21.

All
the
conveyance
and
instruments
transferring
immovable
property by way of lease in general have
not been exempted from stamp duty vide
notification dated 19.01.2005. Instead para
8.2(f) is confined to certain conditions if
fulfilled only then one can claim exemption
from stamp duty under the said notification.
These conditions are:

(i)
Transfer
of
immovable
property
must
be
for
development/
construction of medical and dental college
or
other
educational
institutions,
multiplexes, cinema halls, shopping malls
and entertainment centres.

(ii) The cost of construction and
machinery must not be less than Rs. 10
crores.

(iii)
Such
development/
construction must have such facilities and
which fulfill the conditions as provided in
Government Order dated 27.02.2004 and
other orders issued from time to time.

(iv) The District Magistrate or
General Manager, District Industry Centre
of concerned District must sign such
instrument as witness for the purpose of
confirming the fact that transfer is being
executed under above policy.

 22. We do not find averments and
relevant facts in writ petition that these
conditions were satisfied by petitioners so
as to entitle them for exemption of stamp
duty. In fact Government Order dated
27.02.2004 has not even been placed on
record by petitioners and there is no
7 All. D.L.F. Universal Ltd. & Anr. Vs. State of U.P. & Ors.
289
averment whatsoever that the facilities and
conditions provided therein were satisfied.

23. Copy of Government Order dated
27.02.2004 has been placed on record by
Respondents-1 and 2 as Annexure-CA 3 to
their
counter
affidavit.
The
aforesaid
Government order deals with steps taken to
encourage Service Sector in the State of U.P.
under
Industrial
and
Service
Sector
Investment Policy, 2004 and it reads as under:

^^izs"kd]

Jh jkds'k dqekj feRry]

izeq[k lfpo]

m0iz0 'kkluA

lsok es]

egkfuns'kd]

fpfdRlk ,oa LokLF;]

y[kuÅA

fpfdRlk vuqHkkx&1

y[kuÅ fnukad 27-04-2004

fo"k;& vkS|ksfxd ,oa lsok {ks= fuos'k
uhfr 2004 ds vUrxZr lsok {ks= dks izksRlkgu
fn;s tkus ds lEcU/k esaA

egksn;]

mi;qZDr fo"k; ij eq>s ;g dgus dk
funsZ'k gqvk gS fd foxr dqN

o"kZ ls lsok {ks= dk vkfFkZd fodkl
,oa jkstxkj l`tu esa egRoiw.kZ LFkku jgk gSA
rhoz vkfFkZd fodkl rFkk Hkwfe ij c<+rs gq,
ncko dks de djus ds fy, lsok {ks= dks
izksRlkfgr fd;k tkuk vko';d gSA vr% bl
uhfr ds vUrxZr lsok {ks= ds fodkl ij fo'ks"k
cy fn;k tk;sxkA

2-
lsok
{ks=
ds
midzeksa
;Fkk&fpfdRlky;ksa esfMdy o MsUVy dkystksa
f'k{k.k laLFkkuksa bR;kfn esa futh {ks= ds fuos'k
dks izksRlkgu fn;k tk;sxkA bl gsrq foHkkx dh
vksj ls visf{kr vukifRr @ vuqKk izkFkfedrk
ds vk/kkj ij fuxZr dh tk;sxhA

3- voLFkkiuk lqfo/kkvksa ds ln`'k gh
lsok {ks= ds ,sls midze tks fuEufyf[kr Js.kh
esa vkPNKfnr gSa] dks vpy lEifRr ds dze
vFkok fdjk;s ij ysus ij 100 izfr'kr LvkEi
fM;wVh ls NwV vkSj :0 2 izfr gtkj 1⁄4vf/kdre
:0 50001⁄2 dh nj ij fuca/ku lqfo/kk miyC/k
djk;h tk;sxh%&

1⁄4d1⁄2 izns'k esa fdlh Hkh Hkkx esa fLFkr
fu/kkZfjr lqfo/kkvksa ls ;qDr ,sls eYVh QSlhfyVh
fpfdRlky;] ftudh LFkkfir {kerk U;wure
100 csM gS] vkSj ftuesa fpfdRlk lqfo/kkvksa gsrq
iz;qDr {ks=Qy fu/kkZfjr lhek ls vf/kd gSA

1⁄4[k1⁄2 izns'k esa fLFkr fu/kZfjr lqfo/kkvksa
ls ;qDr vfr fof'k"Vrk;qDr fpfdRlky;A

1⁄4x1⁄2 fodkl [k.M eq[;ky; 1⁄4tks
ftyk o rglhy eq[;ky; ls fHkUu gksa1⁄2 ij
fLFkr fu/kkZfjr lqfo/kkvksa ls ;qDr ,sls
fpfdRlky; ftudh LFkkfir {kerk U;wure 50
csM dh gksA

1⁄4?k1⁄2 fodkl [k.M eq[;ky; ls uhps
xzkeh.k {ks=ksa esa LFkkfir fu/kkZfjr lqfo/kkvksa ls
;qDr ,sls fpfdRlky; ftudh LFkkfir {kerk
U;wure 30 csM gksA

1⁄4p1⁄2 fu/kkZfjr lqfo/kkvksa ls ;qDr rFkk
fu/kkZfjr 'krsZa iw.kZ djus okys ,sls esfMdy ;k
MsUVy dkyst] vU; f'k{k.k laLFkk,a ftuesa Hkou
vkSj e'khujh esa dqy ykxr :0 1000 djksM ls
de u gksA

4- mijksDr iz;kstuksa gsrq jkT; ljdkj
}kjk fuEu 'kqYdkas ls NwV iznku dh tk;sxhA
290 INDIAN LAW REPORTS ALLAHABAD SERIES

1⁄411⁄2 iwth fuos'k gsrq iz;qDr IykUV ,oa
e'khujh vkfn ij dksbZ izos'k dj ns; ugha gksxkA

1⁄421⁄2 ;fn Hkwfe dk vf/kxzg.k jkT;
ljdkj }kjk fd;k tkrk gS rks vf/kxzg.k 'kqYd ls
NwV nh tk;sxhA

1⁄431⁄2 iwth fuos'k dks izksRlkfgr djus gsrq
fodkl izkf/kdj.kksa @ LFkkuh; fudk;ksa }kjk yxk;s
tkus okys fodkl 'kqYd] eyok 'kqYd ls NwV nsus
ds lkFk&lkFk 05 o"kksZa gsrq gkml VSDl] okVj
VSDl ,oa vU; lHkh VSDlksa @ 'kqYdksa ls NwV nh
tk;sxhA

1⁄441⁄2 LFkkiuk dh frfFk ls 10 o"kZ gsrq
bysfDVflVh M~;wVh ls NwV nh tk;sxhA

5- bl lEiw.kZ dk;Z dks lEiUu djus
ds fy, vf/koklh Hkkjrh;ksa dk foLr`r losZ{k.k
djk;k tk;sxk ,oa muls lfdz;rk ls lEidZ djds
izns'k esa fuos'k ds fy, vkefU=r fd;k tk;sxkA
vf/koklh Hkkjrh;ksa ds ns'k izse dh Hkkouk dks
n`f"Vxr j[krs gq, mUgsa vius xkao] dLcs vFkok
'kgj dh LFkkuh; lkekftd voLFkkiuk ds
mPphdj.k vFkok vU; lekt lsok ds dk;ksZa esa
lg;ksx nsus ds fy, izsfjr fd;k tk;sxkA

Hkonh;]

gLrk{kj vifBr

1⁄4jkds'k dqekj feRry1⁄2

izeq[k lfpoA**

24. Learned counsel for petitioners
submitted that aforesaid Government Order is
not applicable since lease of immovable
property executed in favour of petitioners is not
for establishment of medical and other
institution but for development of land by
constructing shopping malls, multiplexes,
showrooms, retail outlets, hotels, restaurants,
offices and such other commercial usage. Even
if it is accepted, still Government Order dated
19.01.2005 will not be attracted unless
petitioners demonstrate that condition of cost of
construction and machinery is not less than Rs.
10 crores. On this aspect also we do not find
any averment and material in writ petition. The
only averment which could have been searched
out is contained in para 8 and 22 of writ
petition, which read as under:

"8. That from the perusal of the said
notification, it is clear that the lease of
immovable property relating to first transaction
is completely exempted from payment of stamp
duty in full if cost of construction is ten crores
and above. In this regard it is submitted that the
petitioner has been allotted land in question for
construction of shopping malls and the cost of
the said construction would be much more than
Rs. 10 crores, therefore, the said notification
(Annexure-2) is fully applicable in the facts and
circumstances of the present case and the
transaction in question was fully exempted from
payment of an7 stamp duty."

"22. That from the lease deed, copy
of site plan and from the spot is is clear that the
land in question is being utilized for
construction of shopping malls and the cost of
such construction would not be less than Rs. 10
crores and the transaction in question is also a
first transaction of immovable property,
therefore, all the conditions of the notification
are applicable to the facts and circumstances of
the present case and the petitioner is lawfully
entitled to get exemption from payment of stamp
duty and the stamp duty already realized from
the petitioner is liable to be refunded forthwith.
A true copy of estimated cost is annexed
herewith as Annexure-8 to the writ petition."

25. Paragraph 8 has been sworn on
the basis of information received from
record but no such record is available or
placed before this Court.

26. Even letters/ representations claim
to have been submitted by petitioners for
7 All. D.L.F. Universal Ltd. & Anr. Vs. State of U.P. & Ors.
291
refund of stamp duty after execution of
lease deed, nowhere states that petitioners
satisfy the aforesaid conditions and actual
cost of construction and machinery etc. is
more than Rs. 10 crores. Copy of said
representations is Annexures-4 and 6 to
writ petition.

27. Annexure-4 is a letter addressed to
Chief Executive Officer, NOIDA and
Annexure-6 is a letter sent to District
Magistrate/ Collector, Gautambudh Nagar.
Nothing has been said in the letter sent to
Chief Executive Officer, NOIDA. Letter
sent to District Magistrate/ Collector,
Gautambudh Nagar also states nothing on
this
aspect.
There
is
no
averment
whatsoever that aforesaid conditions are
satisfied by petitioners.

28. Learned counsel for petitioners
drew out attention to Annexure-8 and
averments made in para 22 of writ petition
and contended that project's estimated cost
is more than Rs. 313 Crores which
apparently satisfy the requirement of
Government Notification dated 19.01.2005.

29. We have gone through Annexure8 to the writ petition and find that it does
not contain any date and we do not know as
to at what stage it was prepared. Moreover,
for the purpose of attracting notification
dated 19.01.2005 it is not the cost of
project but the cost of construction and
machinery only which is to be taken into
account and question as to what would be
included by the term "cost of construction"
and "machinery", is a question of fact need
to be examined appropriately at appropriate
forum. This claim was never made by
petitioners before respondents-authorities
and from the estimated cost of project, it
cannot be said as to what items have to be
taken for attracting notification dated
19.01.2005. We,
therefore,
hold
that
petitioners have failed to show that they
satisfy
the
conditions
precedent
for
attracting Government Notification dated
19.01.2005 and, therefore, not entitled for
exemption.

30. There is one more condition
provided in Government Notification dated
19.01.2005 that instrument is the first one
executed
for
transfer
of
immovable
property in favour of an interprenure and
secondly that District Magistrate or General
Manager,
District
Industry
Centre
(hereinafter referred to as "GM, DIC") of
concerned
district
shall
sign
such
instrument as a witness for the purpose of
confirming the fact that transfer is being
executed under the said policy. It appears
that petitioners were satisfied that they do
not satisfy the aforesaid conditions and,
therefore,
lease
deed
executed
by
petitioners is not witnessed either by
District Magistrate or GM, DIC, as
contemplated in Government Notification
dated 19.01.2005. The two witnesses to the
deed are, Subhash Chaudhary and Jasmir
Singh. It is not disputed before us that none
of them held the office of District
Magistrate or GM, DIC at the time of
execution
of
lease
deed
in
District
Gautambudh Nagar. Therefore, even this
condition
remained
uncomplied
with.
Learned counsel for petitioners has not
addressed us on the question that aforesaid
condition of witnessing the document by
District Magistrate or GM, DIC is not a
necessary
condition
for
attracting
Government Notification dated 19.01.2005.

31. In the alternative, even if we
accept the contention of petitioners counsel
that Annexure-8 to writ petition read with
para 22, the entire cost of project will
constitute
sufficient
satisfaction
of
292 INDIAN LAW REPORTS ALLAHABAD SERIES
requirement of Rs. 10 crores cost of
construction and machinery contemplated
in notification dated 19.01.2005, we
proceed
now
to
consider
whether
petitioners can claim refund despite an
otherwise provision made by Government
Notification dated 10.07.2008.

32. It is not in dispute that when an
instrument/ conveyance is executed, it
attract stamp duty chargeable under Section
3(aa) read with (in the present case)
Schedule I-B of Act, 1899. The document
in question, therefore, was chargeable with
stamp duty.

33. Section 3, however, states that subject
to provisions of Act, 1899 and the exemptions
contained in Schedule I, the document shall be
chargeable with duty of the amount indicated in
Schedule. Section 9 confers power upon
Government, by rule or order published in
official gazette, to reduce, remit or compound
duty prospectively or retrospectively and it
reads as under:

9. Power to reduce, remit or
compound duties.-- (1) The Government may,
by rule or order published in the Official
Gazette,--

(a)
reduce
or
remit,
whether
prospectively or retrospectively, in the whole or
any
part
of
the
territories
under
its
administration, the duties with which any
instruments or any particular class of
instruments, or any of the instruments
belonging to such class, or any instruments
when executed by or in favour of any particular
class of persons or by or in favour of any
members of such class, are chargeable, and

(b) provide for the composition or
consolidation of duties of policies of insurance
and in the case of issues by any incorporated
company or other body corporate or of
transfers (where there is a single transferee,
whether incorporated or not) of debentures,
bonds or other marketable securities.

(2) In this section, the expression
"the Government" means,--

(a) in relation to stamp-duty in
respect of bills of exchange, cheques,
promissory notes, bills of lading, letters of
credit, policies of insurance, transfer of shares,
debentures, proxies and receipts, and in relation
to any other stamp-duty chargeable under this
Act and falling within entry 96 of List I in the
Seventh Schedule to the Constitution, except the
subject matters referred to in clause (b) of subsection (1);

(b) save as aforesaid, the State
Government.

34.

Section
27
provides
that
consideration, if any, and all other facts and
circumstances affecting chargeability of
any instrument with duty or the amount of
duty of which it is chargeable, shall be fully
and truly set forth in the instrument. It is
not disputed that in the entire instrument
i.e. lease deed, there is no assertion of facts
which may affect chargeability of duty so
as to claim exemption or reduction or
remission in the amount of stamp duty.

35.