# Ram Bachan Smarak High School v. Addl. Commissioner Nyayik Lucknow Division Lko. & Ors

- **Citation:** (2022) 12 ILRA 511
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-16
- **Case number:** Writ C No. 1005704 of 2013
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bachan-smarak-high-school-v-addl-commissioner-nyayik-lucknow-division-lko-47916
- **Pages:** 5

## Headnote

A. Civil Law -Indian Stamp Act, 1899Section 47-A, 56(1)-In the instant
case, the term incorporated in the
lease-deed, was for a period of thirty
years and as such, the stamp duty
payable was clearly in terms of the
Schedule-I Article 35(a)(v) of the Act,
1899 and not in terms of the ScheduleI Article 35(a)(vi) of the Act, 1899 as
has been imposed by the competent
authority by the impugned order-the
matter has not been considered in the
proper perspective while rejecting the
appeal by the appellate authorityThus, the impugned orders are legally
unsustainable in the eyes of law.(Para
1to 18)

B. Renewal of lease is in the nature of
grant of fresh lease. the terms and
conditions incorporated in the lease
have to be examined as a whole and
effect has to be given to each and
every
term
incorporated
therein.
Renewal of lease has been construed
to be nothing but grant of lease for
fresh period. Here, in the present case
term of lease was 30 years and after
expiry
of
the
same
lessee
could
request the lessor for execution of new
lease deed by way of renewal. Same
could not have been clubbed to be 40
years whereas the said renewal period
was also specified for a period of 10
years.(Para 16)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

12 All. Ram Bachan Smarak High School Vs. Addl. Commissioner Nyayik Lucknow Division
 Lko. & Ors.
511

(vii). Appropriate entries and the
endorsement of the order be made in the
revenue records.

(viii). The District Magistrate,
Ambedkar Nagar shall furnish its report
indicating the developments, progress of
the pending litigations and measures taken
by him relating to the assets/liabilities and
income of the temple before this court
periodically.

42. For this limited monitoring the
matter shall now be listed on 03rd April,
2023.

43. A copy of this order shall be
communicated to the District Magistrate,
Ambedkar Nagar through the Senior
Registrar of this Court.

44. Subject to the aforesaid directions,
the instant writ petition at the behest of the
petitioner/Sri Dhananjay Das is dismissed.
Costs are made easy.
----------
(2022) 12 ILRA 511
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ C No. 1005704 of 2013

Ram Bachan Smarak High School
 ...Petitioner
Versus
Addl.
Commissioner
Nyayik
Lucknow
Division Lko. & Ors. ...Respondents

Counsel for the Petitioner:
Mahendra Pratap Pandey, Avinash Pandey

Counsel for the Respondent:
C.S.C.
A. Civil Law -Indian Stamp Act, 1899Section 47-A, 56(1)-In the instant
case, the term incorporated in the
lease-deed, was for a period of thirty
years and as such, the stamp duty
payable was clearly in terms of the
Schedule-I Article 35(a)(v) of the Act,
1899 and not in terms of the ScheduleI Article 35(a)(vi) of the Act, 1899 as
has been imposed by the competent
authority by the impugned order-the
matter has not been considered in the
proper perspective while rejecting the
appeal by the appellate authorityThus, the impugned orders are legally
unsustainable in the eyes of law.(Para
1to 18)

B. Renewal of lease is in the nature of
grant of fresh lease. the terms and
conditions incorporated in the lease
have to be examined as a whole and
effect has to be given to each and
every
term
incorporated
therein.
Renewal of lease has been construed
to be nothing but grant of lease for
fresh period. Here, in the present case
term of lease was 30 years and after
expiry
of
the
same
lessee
could
request the lessor for execution of new
lease deed by way of renewal. Same
could not have been clubbed to be 40
years whereas the said renewal period
was also specified for a period of 10
years.(Para 16)

The writ petition is allowed. (E-6)

List of Cases cited:
1. BPCL Vs Commr , Kanpur Div. Kanpur &ors..,
CMWP No. 43796 of 2005

2. Gopal Swaroop Chaturvedi Vs St. of U.P. &
ors. (2007) 10 RD 574

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and learned Standing counsel
appearing for the State respondents.
512 INDIAN LAW REPORTS ALLAHABAD SERIES

2. By means of the present petitioner,
the petitioner has prayed for the following
reliefs:-

"(I) Issue a writ, order or
direction in the nature of certiorari quash
the impugned order dated 19.1.2013 passed
by
Additional
Commissioner
Nyayik
opposite party no.1 in appeal no.242/201011 under section 56 (1) of Indian Stamp Act
and order dated 11.6.2010 & order
dated10.5.2011 passed by opposite party
no.3 A.D.M. (East) Lucknow in case
no.7010/589/2003 contained in Annexure
NO.1, 2 & 5 to this writ petition."

3. The case set forth by the petitioner
is that a registered lease-deed was executed
on 18.6.2003 a copy of which is Annexure
No.3 to the petition. The said lease-deed
was for a period of 30 years. Clause 5 of
lease-deed provided that Lessee shall have
one option for same period and it will be
determined on the basis of the mutual
consent of the parties by executing a
separate lease-deed after expiry of lease
period.

4. Proceedings were initiated against
the petitioner under Section 47-A of Indian
Stamp Act, 1899 contending that less stamp
duty had been paid on the said lease-deed
and the petitioner was liable to pay
additional stamp duty.

5. The petitioner put in appearance
before
the
competent
authority
and
contended that the stamp duty paid by the
petitioner was in terms of Schedule I-BArticle 35 (a) (v) of the Act, 1899 which
provides that where the lease purports to be
for a term exceeding twenty years but not
exceeding thirty years then the same duty
as a conveyance for a consideration equal
six times the amount or value of the
average annual rent reserved, shall be
payable.

6. The competent authority, vide
impugned order dated 11.6.2010 a copy of
which is Annexure No.2 to the petition, was
of the view that as Clause 5 of the leasedeed also contained a renewal term as such
the lease-deed cannot be construed for a
period of thirty years rather, would be
exceeding the period of thirty years and
consequently, the provisions of Schedule-IB Article 35 (a) (vi) would be applicable
that where the lease-deed purports to be for
a term exceeding thirty years or in
perpetuity then the same duty as the
conveyance No.23 clause (a)
for a
consideration equal to the market value of
the property would be payable. On the
basis of the same, the petitioner has been
required to pay additional stamp duty along
with penalty and interest.

7. Being aggrieved, the petitioner
filed application dated 30.4.2011 for recall
of the order dated 11.6.2010 passed in Case
No.70 of 2010 (State Vs. Ram Charan
Smarak High School) under Stamp Act.
The said application has been rejected by
the year dated 10.5.2011 a copy of which is
Annexure No.5 to the petition.

8. Being aggrieved, the petitioner
filed an appeal against the orders dated
11.6.2010 and 10.5.2011 but the appellate
authority concurred with the view of the
prescribed authority and dismissed the
appeal, vide order dated 19.1.2013 a copy
of which is Annexure No.1 to the petition.

9. The argument of the learned
counsel for the petitioner is that when from
the lease-deed itself it clearly emerges that
the lease-deed was for a period of thirty
years but also had a clause for the same
12 All. Ram Bachan Smarak High School Vs. Addl. Commissioner Nyayik Lucknow Division
 Lko. & Ors.
513
period to be determined on the basis of
mutual consent of parties but that required
executing a separate lease-deed, as such,
the lease-deed itself has to be construed for
a period of thirty years and not beyond that
and thus, the stamp duty as paid on the
basis of the Schedule-I-B Article 35 (a) (v)
of the Act, 1899, was correctly paid.

10. It is contended that the competent
authority has patently erred in law in
interpreting clause-5 of the said lease-deed
to hold that as Clause-5 of the lease-deed
also contains a renewal clause as such, the
lease-deed has to be construed as having
been executed for a period exceeding thirty
years so as to attract the stamp duty
payable in terms of Schedule-I-B Article 35
(a) (vi) of the Act, 1899.

11. In this regard, reliance has been
placed on the judgment of this Court dated
3.3.2008 passed in Civil Misc. Writ
Petition No.43796 of 2005 (Bharat
Petroleum Corporation Limited. Vs.
Commissioner, Kanpur division Kanpur
and others.). Placing reliance on the
aforesaid judgment of Bharat Petroleum
Corporation
Limited
(supra),
the
argument is that this Court in the aforesaid
case has held that when a particular period
is indicated in the lease-deed and even if
the provisions of renewal is there, then ipso
facto the lease period could not be
construed beyond the period what is
indicated in the lease-deed and said
renewal clause is to be read separately.

12. It is thus argued that considering
the law laid down in the case of Bharat
Petroleum Corporation Limited (supra),
the orders passed by the competent
authority as well as passed by the appellate
authority are patently bad in the eyes of law
and merit to be set aside.

13. On the order hand, learned
standing counsel contents on the basis of
the averments contained in the counter
affidavit argues that though the lease
initially was for the period of thirty years
but Clause 5 of the deed also contains the
clause that the Lessee shall have one option
for the same period to be determined on the
basis of mutual consent of parties by
executing a separate lease-deed as such the
same is to be necessarily construed as a
lease-deed exceeding the period of thirty
years and as such the authority has
correctly proceeded to direct the petitioner
to
pay
the
additional
stamp
duty
considering Schedule-I-B Article 35 (a) (vi)
of the Act, 1899 and that Schedule-I-B
Article 35 (a) (v) of the Act, 1899 over
which the reliance has been placed by the
learned counsel for the petitioner, shall not
be applicable.

14. Having heard learned counsel for
the parties and having perused the record
what emerges is that a lease-deed was
executed on 18.6.2003. The stamp duty was
paid in terms of the Schedule-I-B Article 35
(a) (v) of the Act, 1899. Proceedings were
initiated against the petitioner under the
Act, 1899 and the authority by means of the
order dated 11.6.2010 has held that as
clause-5 of the lease-deed also contains a
clause of extension for the same period i.e.
exceeding 30 years as such, the stamp duty
is to be ascertainable and payable as per
Schedule-I-B Article 35 (a) (vi) of the Act,
1899 and consequently, the impugned
orders have been passed. The recall
application as well as the appeal filed by
the petitioner have also been rejected by
means of the order dated 10.5.2011 and
19.1.2013.

15. The point for consideration before
this Court is that where the lease-deed has
514 INDIAN LAW REPORTS ALLAHABAD SERIES
been executed for the period of thirty years
but the clause in the lease-deed also
provides for an option for renewal
exceeding certain period as to whether
additional period would be construed as the
period for which the stamp duty is to be
paid or it is for initial period for which the
lease-deed has been executed which is to be
considered for payment of stamp duty.

16. The said issue has been
considered by this Court in the case of
Bharat Petroleum Corporation Limited
(supra) wherein this Court has held as
under:-

"After respective arguments have
been advanced, factual position which
emerges is to the effect that in the present
case lease deed had been executed and the
period for which said lease was executed is
clearly mentioned therein to be 30 years
with effect from 01.10.2001 and the rent
was payable by 15th day of every month.
Upon expiration or sooner of the said
period, lessor was obliged to deliver vacant
possession
of
the
plot
and
remove
therefrom all buildings structures and plant
and all its other properties therein at its
own cost and restore the said land in its
original condition and if the lessee was
desirous to get the said lease renewed on
expiration of its term, then he was obliged
to give notice to the lessor in writing prior
to the expiration of the term hereby granted
and was obliged to pay the rent and taxes
duly observed and performed all the terms,
covenant, conditions and stipulations and
then lessor was obliged to grant them a
renewed registered lease deed of the
property in question for further period of
ten years commencing from the date of
expiration. In the present case period of
lease has been construed to be 40 years,
whereas lease deed which has been
referred to in the present case clearly
mentions that the period of lease was 30
years and gave right to the lessor to get the
lease deed renewed on the same terms and
conditions for a further period of ten years.
Once
30
years
period
was
clearly
mentioned therein and the provision of
renewal was there, then ipso facto, lease
period could not have been construed to
be 40 years as has been sought to be done
in the present case, whereas period of
lease is fixed and the provision of renewal
has been incorporated and the said
renewal period was also specified for a
period of 10 years.

Division Bench of this Court in
the case of Gopal Swaroop Chaturvedi v.
State of U.P. and others, 2007 (102) RD
574 has taken the view that renewal of
lease is in the nature of grant of fresh
lease and further while considering such
issue has held that the terms and
conditions incorporated in the lease have
to be examined as a whole and effect has
to be given to each and every term
incorporated therein. Renewal of lease
has been construed to be nothing but
grant of lease for fresh period. Here, in
the present case term of lease was 30 years
and after expiry of the same lessee could
request the lessor for execution of new
lease deed by way of renewal. Same could
not have been clubbed to be 40 years and
thus treating the same to be within the
ambit and scope of Article 35 (c) (ii) of
Scheduled I-B of the Stamp Act. The view
taken by the authority concerned in the
present case that lease is for a period of 40
years, as therein arrangement has been
made for further period of ten years, is not
a correct view, as the lease in question is
for a period of 30 years only with the
condition that it can be further renewed for
a period of 10 years, but it cannot be read
as 40 years and the stamp duty cannot be
12 All. Ravi Kumar Yadav Vs. Union of India & Ors.
515
charged accordingly." (emphasis by this
Court)

17. A perusal of the judgment passed by
this Court in the case of Bharat Petroleum
Corporation Limited (supra) would indicate
that while passing the said judgment, reliance
has been placed on the Division Bench
judgment of this Court in the case of Gopal
Swaroop Chaturvedi v. State of U.P. and
others, 2007 (102) RD 574,wherein it has
been held that the renewal of the lease is in the
nature of grant of fresh lease and while
considering such issue the terms and
conditions incorporated in the lease have to be
examined as a whole and effect has to be given
to each and every term incorporated therein. It
was also held that the renewal of the lease has
to be construed as nothing but grant of lease
for fresh period.

18. Accordingly, keeping in view the
judgment of this Court in the case of Bharat
Petroleum Corporation Limited (supra)
along with the case of Gopal Swaroop
Chaturvedi (supra), what emerges is that
admittedly, the lease-deed executed by the
petitioner, was for the period of thirty years but
clause-5 also provided for a renewal for the
same period with the mutual consent of
parties. However, the mutual consent was
required for execution of a separate lease-deed.
As such, once the lease-deed itself stipulates
that it was executed for a period of thirty years
yet also contains a renewal clause as such
keeping in view the law laid down by the
Division Bench of this Court in the case of
Gopal Swaroop Chaturvedi (supra) as well
as Bharat Petroleum Corporation Limited
(supra), the renewal has to be read separately
inasmuch as, the lease-deed was to be
examined as a whole and the effect has to be
given to each an every term incorporated
therein. In the instant case, the term
incorporated in the lease-deed, was for a
period of thirty years and as such, the stamp
duty payable was clearly in terms of the
Schedule-I Article 35 (a) (v) of the Act, 1899
and not in terms of the Schedule-I Article 35
(a) (vi) of the Act, 1899 as has been imposed
by the competent authority by the impugned
order dated 11.6.2010. As the said matter has
not been considered in the proper perspective
while rejecting the appeal filed by the
petitioner by the appellate authority dated
19.1.2013 as such, it is apparent that both the
orders impugned order dated 11.6.2010 and
19.1.2013 are legally unsustainable in the eyes
of law.

19. Keeping in view the aforesaid
discussion, the instant writ petition deserves to
be allowed and is allowed. The impugned
orders dated 11.6.2010 and 19.1.2013, copy of
which are Annexure No.2 and Annexure No.1
to the writ petition are set aside. Consequently,
there may not be any occasion for setting aside
the order dated 10.5.2011 by which the recall
application has been rejected.

Consequences to follow.
----------
(2022) 12 ILRA 515
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ-A No. 8534 of 2018

Ravi Kumar Yadav ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Yadav, Sri Siddharth
Khare

Counsel for the Respondents: