# Shri Nand Kumar Agarwal and another v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-10-07
- **Case number:** Civil Misc. Writ Petition No. 3118 of 1993
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-nand-kumar-agarwal-and-another-v-state-of-u-p-and-others-41396
- **Pages:** 7

## Text

2 All] Shri Nand Kumar Agarwal and another V. State of U.P. and others
637
12. The District Magistrate in her
report
dated
7.10.2008
to
the
Commissioner,
Vindhyachal
Region,
Mirzapur forwarded the opinion of the
enquiry
officer,
along
with
her
recommendations that interviews were not
transparent
and
that
money
was
exchanged in manipulating the marks of
large number of candidates. The boards
assembled, half a hour before the
interviews every day, after 30.9.2008. She
recommended the cancellation of the
entire selections.

13. The irregularities in this case
were practiced on such a large scale that it
cannot be said that the general category
candidates did not benefit or that they can
be separated from the reserved category
candidates, in declaring the results. The
material on record does not support the
submission that the tainted candidates can
be separated from the candidates, who did
not influence increase of marks for
ensuring their selections.

14. The select list was not published
and thus the petitioners have not acquired
any rights to be selected. In State of M.P.
Vs. Sanjay Kumar Pathak, (2008) 1
SCC 456, the Supreme Court held that
even
though
selection
process
was
completed no appointment can be made in
the absence of select list and that the State
Government is not bound to appoint and
select candidates. The judgment in Inder
Preet Singh Vs. State of Punjab, (2006)
11 SCC 356, cited by the petitioners is
also not applicable to the facts of the case.
Here the corrupt practices adopted by the
selection committees were so mixed up
that it is not possible to separate the
tainted from those, who may be honest
and good candidates. It will thus be in the
interest
of
all
concerned
that
the
selections are held afresh.

15. The District Magistrate is the
appointing authority of 'Safai Karmis' in
the Rules of 1985. The State Government
as employer of all the government
servants has overall responsibility and
accountability to maintain transparency
and fairness in the selections, and thus it
cannot be said that the State Government
did not have the authority to cancel the
selections.

16. The writ petition is dismissed.
The interim order dated 18.12.2008 is
discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2009

BEFORE
THE HON'BLE PRAKASH KRISHNA, J

Civil Misc. Writ Petition No. 3118 of 1993

Shri Nand Kumar Agarwal and another

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel forthe Petitioner:
Sri R.P. Goyal
Sri Manish Goyal

Counsel forthe Opposite Party:
S.C.

Stamp Act-Section 35-B of Schedule 1-B-
read with Section 2(16)(c):Stamp dutylease deed executed for 10 years-annual
rent of Rs. 400/- per annum-stamp duty
of Rs. 90 paid-proceeding initiated for
additional amount on ground the plot
situated within market area of 1500 sq.
feet-held
stamp
duty
be
paid
in
accordance with real nature or substance
638 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of document and not on transaction the
word lease as defined under Stamp Act
in
Section
2(16)(c)
stamp
duty
chargeable under Section 35(b) schedule
1-B
of
the
Act-direction
to
refund
Additional
amount
deposited
during
proceedings issued.

Held: Para 20 & 21

Keeping in mind the above proposition of
law, I find sufficient force in the
argument of the learned counsel for the
petitioner
that
the
instrument
in
question if a 'lease deed' of agricultural
land. The fact that the said lease has
been
executed
in
violation
of
the
provisions of U.P.Z.A. & L.R. Act will not
affect the relevant Article relating to the
lease for the purpose of determining the
stamp duty. The said lease may be void
or
invalid
under
the
provisions
of
U.P.Z.A. & L.R. Act or under any other
Act, but so far as the Stamp Act is
concerned,
the
instrument
shall
be
chargeable as a 'lease deed.'

Viewed as above, the definition of lease
as give under the Stamp Act only should
be looked upon for the purposes of
charge ability of stamp duty on such
instrument. The said document may be
treated
differently
under
any
other
enactment, it is of no consequence so far
as the question of payment of stamp
duty is concerned.
Case law discussed:
AIR 1976 Allahabad 475, AIR 1961 Supreme
Court 1047, AIR 1970 MP 74.

(Delivered by Hon'ble Prakash Krishna , J.)

1. Challenging the legality and
validity of the two orders dated 27.2.1992
passed
by
the
Additional
District
Magistrate
(Finance
&
Revenue),
Firozabad and dated 12.1.1993 passed by
the Chief Controlling Revenue Authority,
Board of Revenue, U.P. At Allahabad in a
proceeding under section 33/40 of the
Indian Stamp Act, initiated against the
petitioner demanding a sum of Rs. 59,
656.50 towards deficiency in stamp duty
and Rs. 500/- towards the penalty, the
present writ petition has been filed.

2. The facts of the case may be noted
in brief:-

During audit inspection for the
period of March, 1989 to December, 1989
it was found by them that a lease deed
being
document
No.
4505
dated
10.5.1989 was executed for a period of 10
years on annual rent of Rs. 400/- on
which stamp duty of Rs. 90/- was paid.
Proceeding were initiated against the
petitioner with regard to the4 lease deed
of 15000 sq. ft. area of plot no. 187
executed by Smt. Premwati wife of Nand
Kumar Agarwal. The said lease deed was
executed in favour of the present
petitioner who were partners in M/s.
Seema Plastic Industries Mainpure Road,
Shikohabad. The lessor is wife of the
petitioner no. 1 and mother of the
petitioner no. 2. The said lease deed was
treated as a document of sale in view of
Section 164 of U.P. Z.A. & L.R. Act by
the Stamp Department. Since the plot so
leased out is surrounded by commercial
establishment, the District Magistrate
opined that the stamp duty as applicable
to commercial land is chargeable. The
Additional District Magistrate (F& R) by
the order dated 27.2.1992 held that the
report submitted by the sub Registrar,
Shikohabad in the light of the objections
raised by the audit party that stamp duty is
payable treating the said document as sale
deed in view of section 164 of the
U.P.Z.A. & L.R. Act is perfectly justified.
The said order has been confirmed in
revision no. 783 of 1991-1992 by the
authority below.
2 All] Shri Nand Kumar Agarwal and another V. State of U.P. and others
639
3. Shri Manish Goyal, learned
counsel for the petitioners, submits that
the document in question is a lease deed
and the authorities below were not
justified in view of section 164 of
U.P.Z.A. & L.R. Act in treating the said
document as a sale deed. The submission
is that the lease as defined under the
Stamp Act should be taken into account
for the purposes of determining the stamp
duty on the instrument in question. He
further submits that in view of various
provisions contained in the U.P.Z.A. &
L.R. Act, lease of an agricultural land
unless made by a disable person is void
and there is no transfer of right, interest or
title in pursuance of the said document
and therefore no stamp duty is payable.
The learned standing counsel, on the other
hand, supports the impugned order.

4. Considered the submission of
learned counsel for the parties and
perused the record.

5. It may be noted that lease of
immovable property has been defined in
section 105 of the Transfer of Property
Act which means transfer of right to enjoy
such property, made for certain time,
express or implied, or in perpetuity, is
consideration of a price paid or promised,
r of money, a share of crops, service or
any other thing of value, to be rendered
periodically or on specified occasions, to
the transferor by the transferee, who
accepts the transfer on such terms.

"Lease as defined under Section 2
(16) of the Indian Stamp Act, is as
follows:-

"Lease means a lease of immovable
property and included also-

(a) a patta;

(b) a
kabuliyat
or
other
undertaking in writing, not being a
counter part of a lease, to cultivate,
occupy, or pay or deliver rent for
immovable property;
(c) any instrument by which
tolls or any description are let;
(d) any
writing
on
an
application for lease intended to
signify
that
the
application
is
granted;

(e) any instrument by which
mining lease is granted in respect of
minor minerals as defined in Clause
(e) of Section 3 of the Mines and
Minerals
(Regulation
and
Development) Act, 1957."

6. A conjoint reading of the
definitions of lease as given under the
Transfer of Property Act as also given
under the Stamp Act would show that
under the Stamp Act, lease has been
widely defined.

7. In Banney Khan Vs. The Chief
Inspector of Stamp , U.P. AIR 1976
Allahabad 475 it has been observed that
the Stamp Act has been framed to
consolidation and amend the law relating
to stamps. It has been held that its
provisions should be treated as complete
in themselves and in order to determine
the nature of a document for the purposes
of an Act , reliance should be placed on
the provisions of the Act and not on any
other enactment.

8. The authorities below proceeded
to hold that the document is insufficiently
stamped on the ground that such a lease of
agricultural land is not permissible under
640 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the provisions of U.P.Z.A. & L.R. Act. If
a lease deed is executed in violation of the
provisions of U.P.Z.A. & L.R. Act, the
lessor will become bhumidhar with non
transferable right if the total area of land
held by him together with land held by
his family including the land let out to
him does not exceed 12-1/2 acres and
where the total area exceeds 12-1/2 acres
the provisions of Section 154 and 163 of
U.P.Z.A. & L.R. Act will apply.

9. Section 154 of the U.P.Z.A. &
L.R. Act provides that no bhumidhar shall
have the right to transfer by sale or gift
any land other than tea gardens to any
person where the transferee shall , as a
result of such sale or gift, becomes
entitled to land which together with land
if any, held by his family will, in the
aggregate, exceed 12.50 acres in Uttar
Pradesh.

10. It has been found that in the
present case the lessor has executed the
lease deed in violation of the provisions
of Section 156 of U.P.Z.A. & L.R. Act,
the consequence as provided under
sections 156 and 157 of the U.P.Z.A. &
L.R. Act will ensue. It has been found that
the said lease deed in view of the various
provisions of U.P.Z.A. & L.R. Act,
already referred to above, will amount to
a sale deed and, therefore, the stamp duty
shall be payable on the market value of
the subject matter of the instrument, as
applicable to a deed of conveyance.

11. Challenging the aforesaid orders,
the learned Counsel submits that the
provisions of U.P.Z.A. & L.R. Act
cannot be taken into consideration while
deciding a dispute under the Stamp Act.
Reliance has been placed on a Special
Bench decision of this Court in Banney
Khan vs. The Chief Inspector of Stamp,
U.P., AIR 1976 Allahabad 475. In this
case the question was with regard to the
applicability of the correct Article in
respect of toll auction. The case of the
auction purchaser was that such a
transaction does not amount to lease as
defined under Transfer of Property Act
while on the other hand, the case of the
stamp department was that it amounts a
'lease' as defined under Section 2 (16) of
the Indian Stamp Act and the duty was
chargeable
under
Article
35(b)
of
Schedule
1-
B
of
U.P.
Stamp
(Amendment) Act, 1962. The court posed
the question whether the document is a
lease deed falling under Section 2 (16) of
the Indian Stamp Act or 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 1-B of
the Act. In the above context, the
following observations, which were relied
upon by the learned Counsel here, were
made:-

"........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."

12. Ultimately, it was held that in
view of definition of 'lease' given in
Section 2 (16) (C) of the Stamp Act duty
is chargeable under Article 35(b) of
Schedule 1-B of the Stamp Act as
amended in U.P.

13. It is an acknowledged legal
position that there are two guiding
2 All] Shri Nand Kumar Agarwal and another V. State of U.P. and others
641
principles for applicability of the Stamp
Act in respect of a particular document.
They are :-

(i) The Court is not bound by the
apparent tenor of an instrument, it shall
decide according to the real nature or
substance of the document; and

(ii) The duty is on the instrument
and not on the transaction.

To answer as to under what article
the instrument falls, the first thing to be
looked into is the document itself in order
to
determine
the
character
thereof.
Applying the above principle of law, in
my considered view, for the purposes of
determining the stamp duty, the document
should be taken into account and not the
transaction. If the said principles is
applied on the facts of the present case, on
a plain reading of the instrument,
evidently it is nothing but a lease deed. It
has not been found by any of the
authorities below that from the tenor of
the document it is other that a lease deed.
What would be the effect of a particular
statute on such instrument is another
question which does not fall within the
purview of the Stamp Act.

14. Stamp Act, as pointed out above
by Special Bench decision in the case of
Banney Khan (supra) is exhaustive on
the subject relating to chargeability of
stamp duty. The word 'lease' for the
purposes of the Stamp Act would mean
'lease' as defined under the Stamp Act.
The lease as understood in any other Act
is completely out of context for the
purposes of controversy involved under
the Stamp Act.

15. It is equally well settled that
Stamp Act is a taxing statute. It must be
construed strictly, and if two meanings
are equally possible, the meaning in
favour of the subject must be given effect
to. (See Board of Revenue Vs. Rai Saheb
Sidhnath, AIR 1965 SC 1092).

16. In interpreting a taxing statute,
it has been said time and again, that
equity has not role to play. Equitable
consideration are entirely out of place.
Nor can taxing statutes be interpreted on
any presumption or assumption. The court
must look squarely at the words of the
statute and interpret them. It must
interpret a taxing statute in the light of
what is clearly expressed; it cannot imply
anything which is not expressed; it cannot
import provisions in the statutes so as to
supply any assumed deficiency. (See
Commissioner of Sales Tax, U.P. Vs.
Modi Sugar Mills Ltd. , AIR 1961
Supreme Court 1047).

17. The stamp duty payable upon an
instrument
must
be
determined
by
referring to the terms of the document and
the Court is not entitled to take into
consideration
evidence
de-hors
the
instrument itself. In determining whether
a document is sufficiently stamped with
reference to its admissibility in evidence
the document itself must be looked at as it
stands
without
having
recourse
to
collateral circumstances to be proved by
extraneous evidence.

18. The world 'instrument' has been
defined under Section 2(14) of the Act
which includes every document by which
any right or liability is, or purports to be,
created, transferred, limited, extended,
extinguished or recorded.
642 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

19. In Bal Krishna Vs. Borad of
Refvenue, AIR 1970 MP 74, it has been
held that the following principles govern
the application of Stamp Act to the
instrument :-

:(i) The first rule is that duty is
payable on the instrument and not on the
transaction.

(ii) The second rule is that the
Court is not (Sic) by the apparent tenor of
the instrument, it is the real nature of the
transaction which will determine the
stamp duty.

(iii) The third rule is that the Court
must look at the document itself as it
stands and it is not permissible to show,
by evidence, any collateral circumstances.

(iv) The fourth rule is that in
determining the stamp duty, the substance
of the transaction as disclosed by the
whole of the instrument has to be looked
to, and not merely the operative parts of
the instrument.

(v) The fifth rule is that stamp duty
is payable on an instrument according to
its tenor and it does not matter that it
cannot be given effect to for some
independent cause.

(vi) The sixth rule is that there can
be no objection to a device effectuating a
transaction in a manner that lower rate of
duty is attracted.

The goodness or badness of a
vendor's title in no way affects the
question of stamp duty. The instrument
has to be stamped according to its true
intent and meaning of the transaction
which it represents."

20. Keeping in mind the above
proposition of law, I find sufficient force
in the argument of the learned counsel for
the petitioner that the instrument in
question if a 'lease deed' of agricultural
land. The fact that the said lease has been
executed in violation of the provisions of
U.P.Z.A. & L.R. Act will not affect the
relevant Article relating to the lease for
the purpose of determining the stamp
duty. The said lease may be void or
invalid under the provisions of U.P.Z.A.
& L.R. Act or under any other Act, but so
far as the Stamp Act is concerned, the
instrument shall be chargeable as a 'lease
deed.'

21. Viewed as above, the definition
of lease as give under the Stamp Act only
should be looked upon for the purposes of
charge ability of stamp duty on such
instrument. The said document may be
treated
differently
under
any
other
enactment, it is of no consequence so far
as the question of payment of stamp duty
is concerned.

22. In the result, the writ petition
succeeds and is allowed with costs. The
impugned orders are hereby set aside.
Any amount deposited in pursuance of the
impugned orders or in pursuance of the
interim order passed by this Court shall be
refunded to the petitioners within a period
of one month from the date of production
of certified copy of this order by the
authority concerned. In case of default,
the authority concerned shall also be
liable to pay interest @ 6% per annum
from the date of deposit to the date of
actual refund.

The writ petition is allowed with
costs.
---------
2 All] Jagmal Singh V. State of U.P. and others
643
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 7149 of 2009

Jagmal Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri K.B. Srivastava

Counsel for the Respondents:
Sri Pankaj Rai
S.C.

U.P. Cooperative Collection Funds and
Amin and Others Employees Service
Rules 2002-Rule 29- Revision- petitioner
continuously
worked
as
Cooperative
Kurk Amin for 16 years 17 days on
substantive post -thereafter worked as
junior clerk (collection) at Tehsil level
retired on 31.10.06 after completing 31
years 87 days service. Denial of pension
on ground of working as junior clerkwhich is not a post of Amin of other
employee of concerned category-held
illegal petitioner worked throughout on
substantive
post
as
government
employee -entitled to club -entire service
period for purpose of retirement dues
and pension.

Held: Para 10:

The issue, as to whether a Cooperative
Kurk Amin is a government servant
holding a civil post, is thus no longer
resintegra. This court and Apex Court
have held that the cooperative Kurk
Amins are government servants. The
petitioner,
appointed
as
Cooperative
Kurk Amin of the collectorate on the
regular pay scale on 28.7.1975; working
continuously thereafter in the capacities
of the Sahkari Kurk Amins, and Junior
Clerk,
continued

to
serve
as
a
government
servant
throughout
on
regular basis from the date of his initial
appointment on 28.7.1975 to the date he
attained superannuation and retired at
the age of 60 years as a member of
service of whose service conditions are
regulated by the rules of 2002. He is
thus entitled to club his entire services
together for the purposes of retirement
dues and pension.
Case law discussed:
7326 (S/S) of 2004, (2001) 4 SCC 78, (1983) 2
SCC 33, 047, AIR 1970 MP 74.

(Delivered by Hon'ble Sunil Ambwani , J.)

1. Heard Shri K.B. Srivastava,
learned counsel for the petitioner. Learned
standing counsel appears for the
respondents. With the consent of parties
the writ petition was finally heard on
2.4.2009

2. The petitioner was appointed as
Sahkari Cooperative Kurk Amin on
28.7.1975 in the play scale of Rs.200-320
for realization of outstanding dues of
cooperative societies. On 28.2.1984 the
District Assistant Registrar, Cooperative
Societies U.P. Muzaffarnagar appointed
him on the post of Sahkari Kurk Amin at
Tehsil level in the office of Additional
District
Cooperative
Officer,
Sadar,
Muzaffarnagar in the pay scale of Rs.
354-550. Subsequently by an order dated
29.11.1990 issued by the Additional
Registrar
(Banking)
Cooperative
Societies. U.P. Lucknow, the Deputy
Registrar, Merrut was directed to appoint
the petitioner as Junior Clerk from the
post of Kosthak Lipik/Sahkari Kurk Amin
and accordingly the Deputy Registrar,
Cooperative
Societies,
U.P.
Merrut
Region, Merrut directed the District
Assistant
Registrar,
Cooperative
Societies, U.P. Haridwar to appoint the