# Smt. Jitendra Devi Pandey v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 348
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-11
- **Case number:** Writ-C No. 1007067 of 2012
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jitendra-devi-pandey-v-state-of-u-p-ors-49666
- **Pages:** 5

## Headnote

A. Civil Law - Indian Stamp Act, 1899 -
Sections 33 & 47-A - Stamp Deficiency -
Instrument transferring the lease hold
rights, not title - However, the deed of
assignment was treated as Sale-deed -
Legality challenged - Nomenclature of
deed, how far relevant - Held, by means
of deed in question, only lease hold rights
have been granted to the petitioner,
particularly in view of the fact that lessor
himself had only lease hold rights and not
title over the property in question -
Nature of a deed is to be considered only
as per substance of the deed and not its
nomenclature. Deed was issued granting
rights over the immoveable property only
for a period of 30 years and therefore the
lessor had reserved rights of reversion to
himself and as such the deed could have
been considered only as lease deed
instead of deed of sale. (Para 12 and 13)
Writ petition allowed. (E-1)
2 All. Smt. Jitendra Devi Pandey Vs. State of U.P. & Ors.
349
List of Cases cited :-

## Text

348 INDIAN LAW REPORTS ALLAHABAD SERIES
road, there was no occasion for them to have
established market value in terms of nonagricultual property abutting a road. To that
extent, there is certain error in the orders
impugned.

12. It is also noticeable that by means of
impugned order, penalty to the tune of
Rs.6,42,400/- has been imposed upon the
petitioner-institution. However, no reasoning
whatsoever has been attributed for imposition
of such penalty particularly in view of the
fact that there was no concealment by the
petitioner-institution in the instrument of
transfer which clearly indicated a narration of
all the facts including conversion of the
property, firstly, into non-agricultural and
subsequently into agricultural as well as the
fact of the portion of the property purchased
by
the
petitioner-institution
through
instrument of transfer. The orders also do not
indicate any concealment of fact having been
made in the instrument of transfer and
therefore in the considered opinion of this
Court, there was no occasion for the
authorities to have imposed penalty.

13. Considering the aforesaid facts, the
impugned orders 12.10.2012 and 16.03.2015
are set aside to the extent of imposition of
penalty and determination of market rate for
the property as abutting a road. The
authorities
are
directed
to
recalculate
additional stamp duty payable by petitioner
ignoring
the
penalty
clause
and
redetermination of additional stamp duty taking
the property in question to be non-agricultural
but not in the vicinity of a road.

14. Consequently, the writ petition is
partly allowed. The parties to bear their
own costs.

15. Learned counsel for petitioner
submits that in pursuance of impugned
orders, additional stamp duty has been
deposited by the petitioner. The same shall
be adjusted by the authorities with regard to
new determination of additional stamp
duty, which is to be made.
----------
(2023) 2 ILRA 348
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.01.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-C No. 1007067 of 2012

Smt. Jitendra Devi Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Bajrangi Verma

Counsel for the Respondents:
C.S.C.

A. Civil Law - Indian Stamp Act, 1899 -
Sections 33 & 47-A - Stamp Deficiency -
Instrument transferring the lease hold
rights, not title - However, the deed of
assignment was treated as Sale-deed -
Legality challenged - Nomenclature of
deed, how far relevant - Held, by means
of deed in question, only lease hold rights
have been granted to the petitioner,
particularly in view of the fact that lessor
himself had only lease hold rights and not
title over the property in question -
Nature of a deed is to be considered only
as per substance of the deed and not its
nomenclature. Deed was issued granting
rights over the immoveable property only
for a period of 30 years and therefore the
lessor had reserved rights of reversion to
himself and as such the deed could have
been considered only as lease deed
instead of deed of sale. (Para 12 and 13)
Writ petition allowed. (E-1)
2 All. Smt. Jitendra Devi Pandey Vs. State of U.P. & Ors.
349
List of Cases cited :-
1. Writ Petition No. 3056(MB) of 2003; Ajay
Shanker Dixit & anr. Vs St. of U.P. & ors. and
other decided on 09.08.2018
2. Resident Welfare Association Noida Vs St. of
U.P., (2009) 14 SCC 716
3. Madras Refinery Ltd. C.S.'s case; (1977)2
SCR 564
(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned
counsel
for
petitioner and learned State Counsel
appearing on behalf of the opposite parties.

2. Petition has been filed challenging
the order dated 13th of September, 2011
passed under Section 47-A of Indian Stamp
Act, 1899 as well as the order dated 27th of
July, 2012 passed in Appeal under Section
56 of the Act.

3. Learned counsel for petitioner
submits that the property in question which
is immovable in nature was leased out to
one Smt. Neera Khanna W/o Sri Mahendra
Singh Khanna by means of registered lease
deed dated 10th March, 1995 executed by
the Uttar Pradesh Avash and Vikas Parisad,
Lucknow for a period of 30 years. She
transferred the lease hold rights by means
of assignment in favour of one Pradeep
Agarwal, who in turn transferred his lease
hold rights to the petitioner by means of
lease deed dated 15.02.2008 which was
presented for registration and stamp duty
thereupon was paid in terms of Article 63
of Schedule 1-B of the Act whereafter
proceeding under Section 47-A(3) of the
Act was referred, whereby the deed of
assignment has been treated to be a deed of
sale in view of the Clauses contained
therein. Appeal filed there against under
Section 56 of the Act has also been
rejected.

4. Learned counsel for petitioner
submits that the authorities have erred in
law in treating the deed of assignment of
lease to be deed of sale only on the basis
that vacant possession of lease hold plot of
land was being transferred to the assignee
as well as the fact that the assignee was
granted rights of mutation and for getting
the said property freehold in her favour. It
is submitted that the authorities have totally
lost sight of the fact that no transfer of title
of the property had taken place and only
rights of possession over the property in
terms of assignment of lease had been
provided for a particular consideration and,
as such, the authorities have erred in law in
treating it as an instrument of transfer of
title.

5. Learned counsel has placed
reliance on the Division Bench judgment of
this Court in the case of Sri Ajay Shanker
Dixit and Another Vs. State of U.P. and
Others and other connected matters in
Writ Petition No. 3056(MB) of 2003 in
which this Court by means of judgment and
order dated 09.08.2018 has held that the
language of deed will not decide the nature
of deed of transfer and if the transferer has
been given only lease hold rights, then only
lease hold rights can be transferred further
and not absolute ownership. It has,
therefore, been held that despite the
language of deed, it is to be treated as a
lease deed and not as a deed of absolute
sale and, therefore, stamp duty cannot be
directed to be paid as per market value
considering such a deed to be deed of sale.
Relevant portions of the judgment are as
follows:

"The basic concept for deciding
the stamp duty is based on principle that a
person cannot transfer a better title than
what he has.
350 INDIAN LAW REPORTS ALLAHABAD SERIES

Now, a person in whose favour
lease deed has been executed is only
entitled to transfer the lease hold rights and
he can not transfer the absolute ownership
in the property.

The language of deed will not
decide the nature of deed of transfer and
even if it has been written in the deed that
transferor is having absolute right in
regard to the property, it cannot be
accepted as such. If transferor was given
only lease hold rights, then he is entitled
only to transfer the lease hold rights and
not the absolute ownership.

Accordingly,
the
earlier
contention of learned Additional Chief
Standing Counsel that as per language of
deed, it is to be treated as absolute sale or
lease deed, cannot be accepted and stamp
duty cannot be directed to be paid as per
market value. Although, it has come in the
evidence that at present, there is no
construction on the disputed property and
only the land is to be transferred by way of
an assignment. Even if construction is
there, then so far land is concerned, the
transferor is not having absolute right and,
accordingly, cannot transfer the land
absolutely. So far land is concerned, its
lease hold rights can be transferred but if
construction is there, then same can be
transferred on the basis of absolute
ownership and on that stamp duty will be
charged on market value. In case any
construction is being raised by the lease
holders, then construction will be in the
ownership of lease holder and in case any
deed is executed in reference to the
construction, then same can be transferred
absolutely, but so far land is concerned,
that can only be transferred by instrument
of transfer of lease by way of an
assignment."

6. Reference has also been made to
law propounded by Hon'ble Supreme Court
in
the
case
of
Resident
Welfare
Association Noida vs. State of Uttar
Pradesh, (2009) 14 SCC 716.

7. Learned State Counsel, on the other
hand, has submitted that the deed of
assignment itself indicates three conditions
in Paragraph nos. 2, 6 and 7 that possession
over the vacant immovable property has
been transferred to the petitioner who has
also been granted rights to get her name
mutated in the revenue records with further
right being granted that the assignee would
be entitled to get the freehold of plot
executed at her own cost. It is, thus,
submitted that by means of the aforesaid
instrument, interest in the property has been
transferred alongwith possession thereon
and, as such, despite the instrument
indicating it to be a lease deed, in effect
rights and title over the property has been
transferred and, therefore, stamp duty has
been imposed treating deed to be a deed of
sale.

8. Upon consideration of submissions
advanced by learned counsel for the parties
and perusal of material on record, it
appears that orders under Section 47-A(3)
of the Act have been passed primarily on
account of clauses in deed of assignment
whereby possession of lease hold plot has
been delivered to the assignee who has also
been recorded rights to get her name
mutated in revenue records, with further
right of entitlement to get the plot freehold
at her own cost. The aforesaid three
conditions are given on which the deed of
assignment has been treated to be a deed of
sale and stamp duty in accordance thereof
has been imposed.
2 All. Smt. Jitendra Devi Pandey Vs. State of U.P. & Ors.
351

9. From the Division Bench judgment
in the case of Sri Ajay Shanker Dixit
(supra), it is evident that as per law
propounded by Division Bench of this Court,
it has been held that basic concept for
deciding the stamp duty is based on principle
that a person cannot transfer a better title than
what he has. As a natural correlate, a person
having only lease hold rights, cannot be
deemed to have transferred title since he
himself does not have title over the property
concerned and, as such, can be deemed only
to have transferred rights of lease holder. The
Division Bench has also held that language of
the deed will not decide the nature of deed of
transfer even if certain conditions with regard
to absolute right with regard to property have
been indicated therein primarily on the
premise that a person cannot transfer a better
title that he has.

10. Hon'ble the Supreme Court in the
case of Resident Welfare Association
Noida (supra) has held as follows:

"...............Moreover,
the
concerned lease deed specifically provides
for a lease of 99 years of the land along
with its appurtenances thereto with the
right of reversion. So it is clear from the
above-mentioned provision that the land
along with its appurtenants would be
reversed back to the lessor after the
stipulated period. The alleged documents is
therefore a transfer of the assignment of
lease and not an outright sale of its
appurtenants. ..........."

11. The said judgment also refers to
the case of Madras Refinery Ltd. C.S.
reported in (1977)2 SCR 564; in the
following manner:

"23. Before we part with this
aspect of the matter, that is to say, whether
the document/instrument was in fact a deed
of assignment or an outright sale, we must
also keep in mind that the nomenclature to
the document of assignment cannot be said
to be determining factor in deciding
whether a particular deed or document was
a lease or a deed of assignment. In Madras
Refinery
Ltd.
vs.
C.S.
MANU/
SC/SC/0292/1977:[1977]2 SCR564, it was
held that in order to decide whether a
particular document is a lease or a deed
of assignment, one has to look at the
substance of the deed of assignment to
the document and not the nomenclature.
Therefore, it must be held that no
importance
can
be
given
to
the
nomenclature to the document. Although
some of the members of the association
had termed the document as a deed of
sale or transfer cum sale deed instead of
as a deed of assignment, it remains as a
deed of assignment as has been noted
above by us."

12. Upon applicability of the
aforesaid judgments, it is apparent that by
means of deed in question dated 15th of
February, 2008 executed in favour of the
petitioner, only lease hold rights have been
granted to the petitioner, particularly in
view of the fact that lessor himself had only
lease hold rights and not title over the
property in question.

13. The aforesaid judgments also
make it evident that the nature of a deed is
to be considered only as per substance of
the deed and not its nomenclature. In the
present case, it is notice that the deed was
issued granting rights over the immoveable
property only for a period of 30 years and
therefore the lessor had reserved rights of
reversion to himself and as such the deed
could have been considered only as lease
deed instead of deed of sale.
352 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In view of aforesaid judgments
and law propounded by the Division
Bench, it is evident that the impugned
orders are contrary to the aforesaid
judgments and, therefore, the aforesaid
orders dated 13th of September, 2011
passed under Section 47-A of Indian Stamp
Act, 1899 as well as the order dated 27th of
July, 2012 passed in Appeal under Section
56 of the Act, are set aside.

15. Consequently, the writ petition is
allowed. Parties to bear own costs.
Consequences to follow.
----------
(2023) 2 ILRA 352
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.02.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Bail Application No. 32824 of 2020
with
Crl. Misc. Bail Application No. 12486 of 2022

Sandeep Kumar Mishra ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Pulak Ganguly, Sri Virendra Kumar Mishra

Counsel for the Respondent:
G.A., Sri Shivam Yadav

(A) Criminal Law - Bail - Indian Penal
Code, 1860 - Sections 376-D, 342 & 506 ,
The Code of criminal procedure, 1973 -
Sections 161,162 & 164 , Indian Evidence
Act, 1872 - Section 114-A - Presumption
as to absence of consent in certain
prosecutions for rape - Offence of gang-rape
- Victim, informant and applicants were working
in the same organization - run in the name of
''Janeu Kranti Abhiyan' - delay in lodging the FIR
- HELD - Inordinate delay in lodging the FIR is
to be considered at the time of adjudicating the
bail. Trial is at its conclusive end. Applicants
have made out a case for bail. (Para-21,22)

Bail application allowed. (E-7)

List of Cases cited:-

1. U.O.I. Vs K.A. Najeeb, AIR 2021 SC 712

2. Bharwada Bhoginbhai Hirjibhai Vs St. of Guj. ,
(1983) 3 SCC 217

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Shri Sudhir Mehrotra, Shri
Pulak Ganguly, learned counsels for the
applicants and Shri Shivam Yadav, learned
counsel for the informant as well as Shri
V.K.S. Parmar, learned A.G.A. for the
State.

2. Since these bail applications arise
out of the same incident, they are being
decided by this common order.

3. The present bail applications have
been filed by the applicants in Case Crime
No.511 of 2019, under Sections 376-D, 342
and 506 I.P.C., Police Station Rohaniya,
District Varanasi, with the prayer to enlarge
them on bail.

PROSECUTION STORY:

4. As per the prosecution story, a first
information report was lodged at P.S.
Daurala, District Meerut stating that the
informant
is
a
resident
of
village
Machchari, P.S. Daurala and is connected
to Param Dham Nyas, Arihantpuram,
Valeedpur, Daurala and his wife aged about
24 years alongwith other colleagues is
living
at
Baroranpur,
P.S.
Rohaniya,
Varanasi for the last one year. She travels
off and on to Meerut and Varanasi for the
works of the organization. At Varanasi, the
informant and his wife used to live in a