# Social Upliftment of Village Down Trodden & Health Action & ors v. State of U.P. & ors

- **Citation:** (2009) 1 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-03-06
- **Case number:** Civil Misc. Writ Petition No. 19196 of 2008
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/social-upliftment-of-village-down-trodden-health-action-ors-v-state-of-u-p-ors-41364
- **Pages:** 7

## Headnote

Indian Stamps Act, 1899, as amended by
Act
No,
9
of
01-Lease
deed
of
agricultural plots for a period of 30
years-with increase of premium at the
rate of 10% after expiring of 10 yearsstamp duty paid as per section 2(16)-
objection that stamp duty payable as per
valuation
of
land-apart
from
contravention of Section 156 and 157 of
UPZALR Act-held-as per Bal Krishna
case-considering guiding principle-stamp
duty properly paid-demand of addition
duty as well penalty-illegal.

Held: Para 17:

Keeping in mind the above proposition of
law, I find sufficient force in the
instrument in question is a 'lease deed'
for 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 purposes 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'.
Case Law Discussed:
U.P., AIR 1976 Allahabad 476, 1965 SC 1092,
1970 MP 74, 1961 Supreme Court 1047.

## Text

290 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
respondents are directed to ensure that
charge of Pradhan of the village is
question is handed over to the petitioner
forthwith.

21. Besides allowing this petition,
since this Court is of the firm view that
the respondents authorities acted in an
arbitrary manner and passed the order
under Section 95(1)(g) of the Act in
complete violation of the provisions of the
Rule of 1997, due to which the petitioner
had to suffer and remain out of office for
a considerably long period. In the facts of
this case, this Court liable to pays costs to
the petitioner. In the facts of this case, this
Court quantifies the cost at Rs.50,000/-
which would be adequate. This amount of
Rs.50,000/-
shall
be
paid
by
the
respondents to the petitioner within two
months from today.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2009

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 19196 of 2008

Social
Upliftment
of
Village
Down
Trodden and Health Action, Jaunpur and
others

 ...Petitioners

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

Counsel for the Petitioner:
Sri B.K. Srivastava
Sri Dhiraj Srivastava

Counsel for the Respondents:
Sri S.P. Kesarwani
S.C.

Indian Stamps Act, 1899, as amended by
Act
No,
9
of
01-Lease
deed
of
agricultural plots for a period of 30
years-with increase of premium at the
rate of 10% after expiring of 10 yearsstamp duty paid as per section 2(16)-
objection that stamp duty payable as per
valuation
of
land-apart
from
contravention of Section 156 and 157 of
UPZALR Act-held-as per Bal Krishna
case-considering guiding principle-stamp
duty properly paid-demand of addition
duty as well penalty-illegal.

Held: Para 17:

Keeping in mind the above proposition of
law, I find sufficient force in the
instrument in question is a 'lease deed'
for 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 purposes 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'.
Case Law Discussed:
U.P., AIR 1976 Allahabad 476, 1965 SC 1092,
1970 MP 74, 1961 Supreme Court 1047.

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

1. The present writ petition arises
out of the proceedings initiated against the
petitioners under the provisions of Indian
Stamp
Act.
The
sole
point
for
consideration is whether the instrument in
question which is a lease deed is
chargeable to stamp duty under Article
35(v) or under Article 35 (vi) of Schedule
1-B of the Indian Stamp Act, 1899 as
amended in the State of U.P by U.P. Act
No. 9 of 2001 w.e.f. 25.4.2001. The
petitioner is a society registered under the
provisions of Societies Registration Act.
The aims and objects of the society is to
render effective services to the poor and
1 All] Social Upliftment of Village Down Trodden & Health Action & ors. V. State of U.P. & ors 291
down trodden classes residing in villages,
in almost every field. The petitioner no.2
claims himself as President of the society
and the petitioner nos.3 and 4, according
to their own showing, have nothing to do
with
the
society.
Mahant
Subhash
Chandra
claiming
himself
chela
Bajrangdas Siwaith/Manager of Sri Ram
Janki Mandir situate in village Kataibna
Tehsil Aurai District Sant Ravidas Nagar
executed a lease deed dated 29-11-2005 in
favour of the petitioners for a period of 30
years for doing plantation and gardening
etc. and a sum of Rs.12,000/- per year is
payable as premium subject to increase of
rent at the rate of 10% after every 10
years. The lease deed is for a period of 30
years and it also contains a clause for its
cancellation and execution of de novo
lease
deed.
Gata
nos.
96/2,
97,
172/8,220/5,172/2,
172/3,
172/12,172/7,220/4 and 221, total 10
plots, are subject matter of the lease. The
stamp duty was paid in terms of Section
2(16) of the Indian Stamp Act as per
Article 35(a)(v) of Schedule 1-B. Notice
under Section 33/47-A(as amended in the
State of U.P.) was issued by the stamp
department on the allegations that the said
lease deed being in violation of Sections
156 and 157 of U.P.Zamindari Abolition
and Land Reforms Act, 1950, the stamp
duty is payable on the market value on the
property as the said lease is void under
Section 164 of the U.P.Z.A.& L.R.Act
and
the
transferee
would
become
bhumidhar with non transferable right
under Section 164 of the said Act. The
contention of the petitioners, that the
provisions of U.P.Z.A.& L.R. Act to
determine the duty on the instrument in
question i.e. lease deed cannot be
invoked, has not been found favour by
either of the two authorities below. The
Assistant Inspector General (Registration)
by his order dated 29.12.2006 found that
the document in question is deficient by
Rs.5,90,286/- towards the stamp duty and
Rs.4,200/- towards registration fee and a
sum of Rs.10,000/- has been levied as
penalty.
The
said
order
has
been
confirmed in stamp appeal no. 140 of
2006-07
by
the
Chief
Controlling
Revenue Authority, vide order dated
23.5.2007 and the review application to
review the said order has been dismissed
by the order dated 4.2.2008. By means of
the present petition, the petitioner have
sought for quashing of all the aforesaid
orders.

2. When the petition came up for
consideration before this Court, the
following
order
was
passed
on
18.4.2008:-

"Prima facie the document of lease
treated to be conveyance for the purpose
of stamp duty appears to be of doubtful.
The lessor (a religious institution) does
not appear to have taken permission of
the District Judge for lease of 30 years.
The second party has not been properly
described. The status of petitioner nos. 3
and 4 in the sale deed is not clearly given.
The clause 12(for renewal) is absolutely
vague.

Sri B.K. Srivastava submits that the
document is in respect of the barren land
and is lease, and that Section 164 of the
UPZA & LR Act is not attracted. He
further
submits
that
the
Assistant
Inspector General (Registration) has not
been
conferred
powers
as
Asstt.
Commissioner (Stamps).

The appellate authority has found
that document violates Section 156 and
157 and that under Section 165 if it is for
more than 12-1/2 acres the consequences
292 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of void transfer by bhumidhar will follow,
which are given out in Section 167.

Shri B.K.Srivastava prays for and is
granted a week's adjournment to make
further submission.

Put up/list on 24th April, 2008."

Sri B.K. Srivastava, learned Senior
Counsel appearing on behalf of the
petitioners in support of the present writ
petition raised the following two points:-

(1) The Assistant Inspector General
(Registration) has not been conferred
power as Assistant Commissioner
(Stamp). There being no such
notification or delegation, the order
passed by the said authority is void
and illegal.

(2) The provisions of alleged statute
cannot be taken into consideration
while determining the applicability
of a particular Article for the
purposes of payment of stamp duty.
In other words, the provisions of
U.P.Z.A. & L.R .Act were invoked
by the authorities below to hold that
the
instrument
in
question
is
chargeable under Article 35(vi) of
Schedule 1-B of the Act.

3. The learned Standing Counsel, on
the other hand, supports the impugned
orders and submits that there has been a
notification
conferring
power
and
Assistant Commissioner (Stamp) also
holds
the
designation
of
Assistant
Inspector General (Registration).

4.

Considered
the
respective
submissions of the learned counsel for the
parties and perusal the record.

5. Taking the question in seriatim, it
may be noted that 'Collector' has been
defined by Section 2(9) of the Act which
includes besides other things a Deputy
Commissioner and any officer whom the
State Government may, by notification in
the official gazette, appoint in this behalf.
A notification has been issued in the
official gazette by invoking said power,
conferring power of Collector on the
Assistant Commissioner (Stamp) also.
When these things were pointed out, the
argument was thereafter given up and was
not pursued. Apart from the above, no
such plea was raised before either of the
two authorities below. Even otherwise
also, the order of the Assistant Inspector
General
(Registration)
having
been
merged in the order of Chief Controlling
Revenue Authority in appeal, the defect
of jurisdiction, if any, stands cured.

6. The next submission is more vital.
A copy of the lease deed has been
annexed as Annexure-1 to the writ
petition. A plain reading of the said
document would show that Shebait of the
temple let out the said property on an
yearly rent of Rs.12,000/- with a view to
augment the income of the temple. A sum
of Rs. 50,000/- has been paid by the
lessee to the lessor as a security money
which would form part of rent and the
said money shall be spent on the
maintenance of the temple property and to
meet the litigation expenses. In case of
default in payment of rent, the amount of
arrears of rent will be adjusted from the
said security amount. Clause 4 of the
lease
deed
provides
periodical
enhancement of rent by 10% after every
10 years. It has been further provided that
the said lease is for a period of 30 years
and will commence from 29-11-2005, the
date on which it was registered. Clause 12
1 All] Social Upliftment of Village Down Trodden & Health Action & ors. V. State of U.P. & ors 293
of the said lease provides that the parties
to the agreement may mutually agree to
cancel the said lease prior to the expiry of
the period and a fresh lease deed may be
registered, subject to fresh conditions.

7. 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
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. 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, become entitled to land which
together with land if any, held by his
family will, in the aggregate, exceed
12.50 acres in Uttar Pradesh. 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.

8. Challenging the aforesaid orders,
the learned Senior 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 476.
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 observation, which were relied
upon by the learned Senior 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."

9. Ultimately, it was held that in
view of definition of 'lease' given in
294 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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.

10. It is an acknowledged legal
position that there are two guiding
principles for applicability of the Stamp
Act in respect of a particular document.
They are:-

(1) The Court is not bound by the
apparent tenor of an instrument, is
shall decide according to the real
nature or substance or the document;
and
(2) The duty is on the instrument and not
on the transaction.

11. 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 purpose of
determining the stamp duty, the document
should be taken into account and not the
transaction. If the said purpose is applied
on the facts on 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.

12. 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.

13. It is equally well settled that
Stamp Act is taxing statute. It must be
construed strictly, and if two meaning 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).

14. The stamp duty payable upon an
instrument
must
be
determined
by
referring to the terms of the document and
the Courts 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.

15. The word '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.

16. In Bal Krishna Vs. Board of
Revenue, 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
1 All] Social Upliftment of Village Down Trodden & Health Action & ors. V. State of U.P. & ors 295
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."

17. Keeping in mind the above
proposition of law, I find sufficient force
in the instrument in question is a 'lease
deed' for 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
purposes 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'.

18. In interpreting a taxing statute, it
has been said time and again, that equity
has
no
role
to
play.
Equitable
consideration are entirely out of place.
Nor can taxing statutes be interpreted on
any presumption or assumptions. The
Court must look squarely at the words or
the statute and interpret them. It must be
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 Sale Tax, U.P. Vs.
Modi Nagar Mills Ltd., AIR 1961
Supreme Court 1047)

19. In view of the above discussion,
the impugned orders cannot be sustained.
It is held that the instrument in question
was duly stamped and demand of
additional stamp duty, levy of penalty and
additional registration fee are, therefore,
unjustified and are hereby quashed.

20. In the result, the writ petition
succeeds and is allowed. All the three
impugned orders, referred to above, are
hereby quashed. Any amount already
deposited in pursuance of the impugned
orders shall be refunded to the petitioners
within a period of one month from the
date of production of certified copy of this
order. In case of default, the respondents
shall be liable to pay interest at the rate of
12% per annum from the date of deposit
to the date of actual refund.

21. No order as to costs.
---------
296 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 27795 of 2008

Kalrav Agarwal and another ...Petitioner

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

Counsel for the Petitioner:
Sri Anoop Trivedi

Counsel for the Respondents:
Sri Prabhakar Awasthi
S.C.

Constitution of India Article-226-Writ
jurisdiction-Election of Society-can be
challenged by 1⁄4 member of Society
under
Section
25
of
the
Societies
Registration Act- two members do not
represent 1⁄4 member-writ petition at the
instance
of
two
member-held
not
maintainable.

Held: Para 7 & 8:

In Dr. P.P. Rastogi and others Vs. Merrut
University, Merrut and another, 1997(1)
U.P.L.B.E.C. 415, a Division Bench of this
Court held that an individual member of
the Committee of Management had not
locus standi to file an application and
that if every member of the Committee
of Management was permitted to file
such application, it would create of lot of
problems.

Consequently, this Court is of the opinion
that
a
writ
petition
filed
by
and
individual
member
which
does
not
represent 1⁄4 members of the Society
cannot be entertained. The judgements
cited by the learned counsel for the
petitioner has no application with regard
to
the
maintainability
of
the
writ
petition. The said judgement talks about
the validity of the election conducted by
a Committee after the expiry of the
stipulated
period
conducted
by
a
Committee
after the
expiry of the
stipulated period contemplated under it s
rule or bye laws.
Case law discussed:
43508 of 2006, 2000 (1) ESC 870, 2002 (1)
AWC 771, 1997 (1) U.P.L.B.E.C. 415.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Anoop Trivedi, the
learned counsel for the petitioner and Sri
Prabhakar Awasthi, the learned counsel
for the respondent no. 6.

2. Two members of a society know
as Dharm Samaj Society Inter College
and Sanskrit Pathshala, Aligarh, has filed
the present writ petition challenging the
order dated 3rd May, 2008 passed by the
Deputy Registrars, Firms, Societies and
Chits, Agra under Section 4 of the
Societies Registration Act. By this order,
the office bearers of the managing body
has been registered.

3. At the outset, the writ petition
filed by two members of the Society is not
maintainable. A dispute with regard to the
election of the office bearers of a Society
can be challenged by 1⁄4 members of the
Society under Section 25 (1) of the Act.
The provisions of 1⁄4 members of the
Society was deliberately incorporated for
a purpose and one such reason is, that
frivolous dispute may not be raised by an
individual and that a majority of the
members of the society, if aggrieved by
the election could raise a dispute under
Section 25 which could be decided by an
authority in a summary manner.

4. In the light of the aforesaid
provision and the embargo placed under