# Mohd. Sageer v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 1008
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-01
- **Case number:** Civil Misc. Writ Petition No. 33595 of 2010
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-sageer-v-state-of-u-p-ors-42921
- **Pages:** 3

## Headnote

Indian Stamp Act, 1899-Art.-35-Schedule IB-as amended by U.P. Act No. 9 of 2001adding clause (c)-lease of shop granted for
premium of Rs. 19,000/- with monthly rent
of Rs. 200/-without fixing any time limitshall be governed by explanation (2) and
not by Section 35(c)(i)-collector to find out
whether stamp paid is sufficient or notpetition
partly
allowed.
2 All]. Mohd Sageer Vs. State of U.P. & Ors.
1009
Held: Para-6 & 7

## Text

1008 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution
of
India,
Art.-226-Writ
Petition-maintainability-once Civil suit
got dismissed as withdrawn with liberty
to file fresh suit-Writ Petition for same
cause of action-held-not maintainable.

Held: Para-5
Once, the petitioner had filed a suit and
was permitted to withdraw the same
with liberty to file a fresh suit, this does
not entitle him to file a writ petition for
the same cause of action. This issue has
been squarely settled by a Division
Bench of this Court in the case of M/S
Akay Organics Pvt. Ltd. Vs. ONGC and
Ors. reported in 1992 AWC pg. 792
(paras 5 to 7) that relies on the ratio of
Sheonath Dubey Vs. DIOS Mainpuri as
reported in 1985 UPLBEC pg. 1374
(paras 11 to 14).

Case Law discussed:
1992 AWC pg. 792; 1985 UPLBEC pg 1374.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Sri Prabhat Kumar
Srivastava,
learned
counsel
for the
petitioner.

2. Sri Srivastava has filed two
supplementary affidavits today which are
taken on record.

3. However, before proceeding on
the merits of the case, the Court finds that
the petitioner had filed Original Suit No.
1293 of 2013 on 10th March, 2014. The
said suit was dismissed as withdrawn with
liberty to file a fresh suit on the ground
that the petitioner had failed to serve the
notice under Section 80 of the C.P.C. on
the defendant.

4. This writ petition has been filed
for the same cause of action. Sri
Srivastava states that this was done in an
urgency. The matter was entertained and
the learned counsel was granted time to
file supplementary affidavits.

5. Once, the petitioner had filed a suit
and was permitted to withdraw the same with
liberty to file a fresh suit, this does not entitle
him to file a writ petition for the same cause
of action. This issue has been squarely settled
by a Division Bench of this Court in the case
of M/S Akay Organics Pvt. Ltd. Vs. ONGC
and Ors. reported in 1992 AWC pg. 792
(paras 5 to 7) that relies on the ratio of
Sheonath Dubey Vs. DIOS Mainpuri as
reported in 1985 UPLBEC pg. 1374 (paras
11 to 14).

6. The writ petition is, accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 33595 of 2010

Mohd. Sageer ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.P.S. Chauhan

Counsel for the Respondents:
C.S.C.

Indian Stamp Act, 1899-Art.-35-Schedule IB-as amended by U.P. Act No. 9 of 2001adding clause (c)-lease of shop granted for
premium of Rs. 19,000/- with monthly rent
of Rs. 200/-without fixing any time limitshall be governed by explanation (2) and
not by Section 35(c)(i)-collector to find out
whether stamp paid is sufficient or notpetition
partly
allowed.
2 All]. Mohd Sageer Vs. State of U.P. & Ors.
1009
Held: Para-6 & 7
6. The mere fact that no term or period
of lease is prescribed, I find it difficult to
accept the view taken by authorities
below that the document in question
would be governed by Article 35(c)(ii).

7. In the case of any discrepancy or doubt in
taxing statute the interpretation which is in
favour of subject must be adopted. Taking
clue therefrom, in my view, the petitioner
would be liable to pay stamp duty under
Article 35(c)(i). Applying the same the duty
has to be calculated taking into account the
amount or value of premium as payable on
the lease. It is true that in the lease deed, as
such, the amount of premium is not
mentioned but it has come in the orders of
authorities below that premium paid was Rs.
19,000/-, the stamp duty would be payable
accordingly and not otherwise.

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

1. Heard Sri R.P.S. Chauhan,
Advocate for petitioner and learned
Standing Counsel for the respondents.

2. The questions up for consideration
are, whether the lease deed dated 12.09.2006
provides for a lease of more than three years
or it is a lease for less than 12 months and
secondly, whether the authorities below are
justified in determining the payability of
stamp duty on the basis of circle rate instead
of lease rent.

3. The record shows that shop in
question was allotted to petitioner on a
premium of Rs. 19,000/- and the monthly
rent determined was Rs. 200/-. The
agreement was executed between parties,
i.e., petitioner and Nagar Palika Parishad
on 12.09.2007. However, no period of
lease has been mentioned therein.

4. Article 35, Schedule 1-B of
Indian Stamp Act, 1899 (hereinafter
referred to as the "Act, 1899") has been
amended by U.P. Act No. 9 of 2001 w.e.f.
25.04.2001 by substitution of Clause (b)
and (c) therein. Clause (a) is applicable to
such leases where rent is fixed but no
premium is paid or delivered. Admittedly
that would not be applicable hereat. Clause
(b) is applicable where a lease is granted for
a fine or premium, or for money advanced
or for where no rent is reserved. Even this
clause is not applicable. Hence, Clause (c)
is applicable in the present case, which
reads as under:

(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

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

(ii) Where the lease purports to be
for term exceeding thirty years

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

5. Now the question is Article
35(c)(i) is applicable where the term of
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
lease is not exceeding 30 years while
clause (ii) is applicable where term of
lease exceeds 30 years. In the present
case, as such the lease document does not
contain any period except that 10%
monthly rent would be increased after five
years. It is a lease without any definite
term as is evident from Explanation (2),
which reads as under:

"(2) A lease from month to month, or
year to year, without any fixed period or
one for a fixed period with a provision
allowing the lessee to hold over thereafter
for an indefinite term, shall be deemed,
for the purposes of this Article, to be a
lease not purporting to be for any definite
term."

6. The mere fact that no term or
period of lease is prescribed, I find it
difficult to accept the view taken by
authorities below that the document in
question would be governed by Article
35(c)(ii).

7. In the case of any discrepancy or
doubt in taxing statute the interpretation
which is in favour of subject must be
adopted. Taking clue therefrom, in my
view, the petitioner would be liable to pay
stamp
duty
under
Article
35(c)(i).
Applying the same the duty has to be
calculated taking into account the amount
or value of premium as payable on the
lease. It is true that in the lease deed, as
such, the amount of premium is not
mentioned but it has come in the orders of
authorities below that premium paid was
Rs. 19,000/-, the stamp duty would be
payable accordingly and not otherwise.

8. In view of above, the writ petition
is partly allowed. Impugned orders dated
19.12.2009 and 14.05.2010 are hereby
quashed and the matter is remanded to
Collector to find out the stamp duty
payable and whether already paid by
petitioner is sufficient or not. The
Collector shall pass consequential order
within a period of three months from
today.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No.34915 of 2011

Jag Pal Singh ...Petitioner
Versus
M.D, Kanpur Electricity Supply Co. Kanpur
Nagar & Ors. ...Respondents

Counsel for the Petitioner:
Sri V.K. Srivastava, Sri S.K. Srivastava

Counsel for the Respondents:
Sri Sandeep Kumar Srivastava, Sri Ayank
Mishra, Sri Pranjal Mehrotra, S.C.

Constitution of India, Art.-226-Correction of
date of birth-class IV employee-service
book date of birth recorded 03.09.49-but in
document
of
company-date
of
birth
reflected as 28.05.55 accordingly continued
in service up to 13.05.2011 instead of
30.09.2009-recovery
of
salary
drawn
between actual date of retirement and
working of fortuous period-petitioner being
illiterate man not instrumental in excess
working than the actual date of retirement
held-no
question
recovery
of
excess
amount -if already recovered be refunded.

Held: Para-16
The respondents took work from the
petitioner and paid his salary for the work,
though
it
was
beyond
the
age
of
retirement, the petitioner is class IV
illiterate employee, there is no fraud or
misrepresentation on his part, thus the