# Viswatosh Narayan Singh v. State Of U.P. & Ors

- **Citation:** (2023) 4 ILRA 940
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-15
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/viswatosh-narayan-singh-v-state-of-u-p-ors-47621
- **Pages:** 6

## Headnote

A. Indian Stamp Act, 1899 - Section 47-A
- Schedule 1-B, Article 35(a)(v) and
35(a)(vi) - Expiry of term of lease -
Renewal - Stamp duty has been paid as
per Article 35(a)(v) of Schedule 1-B Effect
- Effect - Lease deed provide that at the
time of renewal of lease, the parties shall
execute fresh lease, which necessarily
means fresh registration - Effect - Gopal
Swarup Chaturvedi's case relied upon -
Held, such lease deed is not covered under
Article 35(a)(vi) of the Indian Stamp Act.
(Para 6, 12 and 13)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

940 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The language of the section
emphasizes that it applies to all orders
passed by the revenue officers in matters
relating to mutation and correction of errors
or omission of revenue entries and it
provides in clear terms that such order shall
not debar any person from establishing his
rights to the land by means of a declaratory
suit under Section 144.

21. The object of the section being to
enable a person to seek declaration of his
rights on questions of title irrespective of
the orders passed in mutation proceedings
with regard to correction of revenue entries,
the remedy of seeking a declaration on
questions of title by filing a declaration suit
remains open. The existence of
an
efficacious statutory alternative remedy
would therefore also be a reason for not
entertaining a writ petition in exercise of
discretionary jurisdiction under Article 226.

22. Thus, it had been constant view of
the Hon'ble Apex Court as well as this
Court that mutation proceedings are
summary in nature and no right or title is
created. The revenue entries is only for
the collection of revenue from the person
whose name is entered in the records. The
title can only be seen in a regular suit
filed for declaration and not in a writ
petition which arises out of summary
proceedings.

23. In view of the above the orders
passed by the revenue authorities need no
interference and writ petition is dismissed,
accordingly. However, it is open to the
petitioner to file declaratory suit claiming
his right over the land in dispute.
----------
(2023) 4 ILRA 940
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2021
BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ-C No .54850 of 2009

Viswatosh Narayan Singh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anubhav Chandra, Sri B.K. Srivastava

Counsel for the Respondents:
C.S.C.

A. Indian Stamp Act, 1899 - Section 47-A
- Schedule 1-B, Article 35(a)(v) and
35(a)(vi) - Expiry of term of lease -
Renewal - Stamp duty has been paid as
per Article 35(a)(v) of Schedule 1-B Effect
- Effect - Lease deed provide that at the
time of renewal of lease, the parties shall
execute fresh lease, which necessarily
means fresh registration - Effect - Gopal
Swarup Chaturvedi's case relied upon -
Held, such lease deed is not covered under
Article 35(a)(vi) of the Indian Stamp Act.
(Para 6, 12 and 13)
Writ petition allowed. (E-1)
List of Cases cited:
1. Gopal Swarup Chaturvedi Vs St. of U.P. & ors.;
2007 (102) RD 574
2. Reliance Industries Ltd. Vs St. of U.P. &
others; 2018(10) ADJ 137
3. Ashish Kumar Vs Deputy Commissioner
(Stamp) and Ors; (2010) 110 RD 822
4. Manish Jain Vs St. of U.P; (2011) 5 All LJ 388
5.
Smt.
Sudama Devi
Vs
St.
of
U.P.;
(Manu/UP/2818/2018)

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Anubhav Chandra,
learned counsel for the petitioner, Sri
4 All. Viswatosh Narayan Singh Vs. State of U.P. & Ors.
941
Siddharth Singh, learned Addl. Chief
Standing Counsel.

2. Present petition has been filed for
quashing the impugned orders dated
27.12.2006,
29.9.2007
passed
by
Respondent no.3/ Sub Divisional Officer,
Tehsil Kerakat, District Jaunpur and order
dated 4.9.2009 passed by Respondent no.2/
Deputy Commissioner (Stamps), Varanasi
Division, Varanasi.

3. By the impugned order dated
27.12.2006 passed by Respondent no.3/
Sub-Divisional Officer, Tehsil Kerakat,
District Jaunpur, treating the lease deed to
be in perpetuity in proceedings initiated
under Section 47-A of the Indian Stamps
Act, deficiency of stamp duty was found in
the light of Schedule 1-B Article 35(a)(vi)
of the Indian Stamps Act. The revision
filed against the same was also dismissed.

4. It was submitted by learned counsel
for the petitioner that initially order dated
27.12.2006 was passed by Respondent no.3
against the petitioner without granting
proper opportunity of hearing to him and
without following proper procedure of law.
It was further pointed out that in fact, lease
deed was surrendered on 2.6.2006.

5. The restoration application filed
against the same was rejected. Therefore,
two revisions filed by the petitioner before
the Revisional Authorities and both were
dismissed by Respondent no.2 / Deputy
Commissioner
(Stamps),
Varanasi
Division, Varanasi.

6. Several arguments have been raised
to contend that the facts as well as law on
the
issue
involved
have
not
been
appreciated by the authorities concerned.
By drawing attention to the various clauses
of the lease deed dated 20.4.2005, it was
submitted that a lease deed was executed
for a period of 30 years only with a clause
of renewal of the same, hence, the stamp
duty could have been levied under
Schedule 1-B Article 35(a)(v) of the Indian
Stamp Act and not under Sub-Clause (vi)
and therefore, the impugned orders are
liable to be set aside. He has specifically
drawn the attention to Clause (c)(iv), (v)
and Clause 3(b) of the Lease Deed to
contend that the lease deed was for a period
of 30 years only and it was specifically
clarified that at the time of such renewal,
the parties shall execute fresh lease deed.

7. Submission, therefore, is that stamp
duty could have been levied under Article
35 (a) (v) and not under Article 35(a)(vi) of
the Schedule 1-B. He has placed reliance
on the judgment of this Court passed by a
Division Bench of this Court in Gopal
Swarup Chaturvedi Vs. State of U.P. and
others, 2007 (102) RD 574 and a judgment
of this Court passed in Reliance Industries
Limited vs. State of U.P. & others,
2018(10) ADJ 137.

8. Per contra, Sri Siddharth Singh,
learned Addl. Chief Standing Counsel by
drawing attention to lease deed submitted
that the lease deed provided that the lessor
shall not terminate the lease before the
expiry of the period of 30 years. He had
further submitted that the lease deed further
provided that the lessor agrees that at the
expiry of the said term of 30 years this
lease will automatically and without any
further act of the parties hereto shall stand
renewed for a further similar period.
Submission, therefore, is that the lease
therefore is to be treated lease in perpetuity
and, therefore, would be covered by Article
35 (a)(vi) of Schedule 1-B of the Indian
Stamps Act. Submission, therefore, is that
942 INDIAN LAW REPORTS ALLAHABAD SERIES
the
impugned
orders
warrant
no
interference by this Court and the petition
is devoid of merits and is liable to be
dismissed.

9. I have considered the rival
submissions and perused the record. For
disposing of the petition, it would be
appropriate to take note of the Clause (c)
and 3(b) of the Lease Deed, which are
quoted hereunder:

"c) The LESSOR has made the
following representations to the LESSEE--

i) The LESSOR has full power
and absolute authority to grant this lease to
the LESSEE.

ii) The Demised Premises are free
from all encumbrances and charges and the
LESSOR
is
not
holding
valid
and
marketable tilt to the same

iii) The Demised Premises can be
used for Non Agricultural purpose and the
LESSOR has obtained the necessary Non
Agricultural permission and the Demised
Premises have been made commercially
usable.

iv) The LESSEE shall be at
liability to sub-lease the said premises in
favour of ESSAR OIL LIMITED (EOL) a
Company
incorporated
under
the
provisions of Companies Act 1956 and
having its registered office at Khambhalia
PO, Box No. 24, Distt. Jamnagar Gujrat361305 and Brnahc office at Urvanshi
Complex First Floor Sigra, Varanasi period
of 30 years for the said business.

v)
The
LESSOR
shall
not
terminate the lease before the expiry of the
said period of 30 years.

"3. The LESSOR doth hereby
covenant with the LESSEE as follows:-

a) .....

(b) The LESSOR agrees that at
the expiration of the said term of 30 years
this lease will automatically and without
any further act of the parties hereto shall
stand renewed for a further similar period,
unless either party shall, prior to the
expiration of the last mentioned term have
given to the other party three calendar
month's previous notice in writing of its
intention not to renew the lease. The
renewed lease will be on a monthly rent as
may be mutually agreed between the
parties subject to the same covenants,
conditions and agreement as are herein
contained including the present covenant
for renewal. It being clarified that at the
time of such renewal the parties shall
execute fresh lease deed."
(Emphasis supplied)

10. A perusal of the aforesaid clause
clearly reveals that although there is a
provision for renewal of the lease deed,
however, it has also been provided that
three calendar month's previous notice in
writing of can be given for its intention not
to renew the lease and it has further been
clarified that at the time of such renewal,
the party shall execute fresh lease.

11. In Gopal Swarup Chaturvedi
(supra) after discussing various judgments
of Hon'ble Apex Court, it has been held
that the renewal of lease means the grant of
fresh
lease,
which
requires
fresh
registration. Relevant paragraph of the said
judgment is quoted hereunder:

"11. Renewal of a lease is nothing
but a grant of a fresh lease. The Hon'ble
4 All. Viswatosh Narayan Singh Vs. State of U.P. & Ors.
943
Supreme Court in Delhi Development
Authority v. Durga Chand Kaushish, AIR
1973
SC2609,
has
held
that
while
considering such an 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. The Court observed that it is called
a renewal simply because it postulates the
existence of a period lease which generally
provides for renewal as of right. In all other
respects it is really a fresh lease. Renewal is
merely used to enable the Government to
given preference to the previous permit
holders who are to be treated on a different
footing from the new applicants.

12. In Gajraj Singh and others v.
State Transport Appellate Tribunal and
others, AIR 1997 SC 412, the Hon'ble
Supreme Court explained that renewal is a
fresh grant, though it brings life to the
previous lease or licence granted as per the
existing appropriate provisions of the
statute and though it is not a vested or
accrued right, an application for renewal
has to be dealt with according to the law in
operation
after
compliance
with
the
preconditions.
There
is
a
distinction
between the right acquired or accrued and a
privilege, hope and expectations to get a
right. However, a right to apply for renewal
and to get a favourable order would not be
deemed to be a right accrued, unless some
positive acts are done.

13. In Pravash Chandra Dalul and
another v. Vishwanath Banerjee and
another, AIR 1989 SC 1834, the Hon'ble
Supreme Court dealing with a case under
the provisions of Calcutta Thika Tenancy
Act,
1949,
explained
the
distinction
between extension and renewal of lease,
observing that extension merely means
prolongation of the lease where renewal
means a new lease.

14. Similar observations that
renewal is nothing but a fresh lease
between the parties have been made by the
Courts as is evident from the judgments in
Dasarathi Kumar v. Sarat Chandra Ghose
and another, AIR 1934 Cal 135; Mahadeb
Ram Kahar v. Tinkori Roy, AIR 1954 Cal
539, and Chotey Lal v. Sheo Shankar, AIR
1951 All 478.

15. The word 'renewed' has been
used by the legislature in the provisions of
section 116 of the Transfer of Property Act,
1882 and it had been interpreted by the
Courts time and again as grant of fresh
lease.

16. In Kai Khushro Bezonjee
Capadia v. Bal Jerbal Hirjibhoi Warden,
AIR 1949 FC 129, the Federal Court
considered the provisions of Section 16 'of
the Transfer of Property Act, 1882 and
explained
the
meaning
of
'renewed',
observing that it is nothing but a new lease
drawn into existence by the bilateral act of
the lessor and lessee.

17. Renewal has been given the
meaning in various Dictionaries as to begin
again, to repeat, to make again, to
substitute new for, to acquire again, to
restore, re-establish, to set up again, bring
back into use or in existence, to take up
again or recommence, to replace by some
new or fresh thing of the same kind or a
fresh supply. Thus, renewal of lease is
nothing but a grant of lease for a fresh
period.

18. In R.M. Mehta v. HPFM Co.
Ltd, AIR 1976 Mad 194, the Madras High
Court considered a similar issue and placed
944 INDIAN LAW REPORTS ALLAHABAD SERIES
reliance upon the Dictionary meaning of
the "renewal of lease" given in Ballentine's
Law Dictionary 2nd Edn. wherein it has
been defined as under:--

"There is a distinction between a
stipulation in a lease to renew it for an
additional term and one to extend it. In that
stipulation, to re-new requires the making
of a new lease, while stipulation to extend
does not."

19. Thus, in view of the above,
the inescapable conclusion that follows is
that renewal of lease means grant of a fresh
lease."

(Emphasis supplied)

12. In the present petition, in the lease
deed in question, it has been specifically
provided that at the time of renewal of
lease, the parties shall execute fresh lease,
which necessarily means fresh registration.

13. In Gopal Swarup Chaturvedi
(supra), it was clearly held that such lease
deed is not covered under Article 35(a)(vi)
of the Indian Stamp Act. Placing reliance
on judgment in Gopal Swarup Chaturvedi
(supra) in the case of Reliance Industries
Limited (supra), identical question as
involved
in
the
present
case,
was
considered and the impugned orders were
set aside. Relevant paragraph of Reliance
Industries Limited (supra) is quoted
hereunder:

"6. Having heard the learned
counsel for the parties, I am of the view
that when the lease deed provided that it
was only for a period of 20 years and that it
could be extended thereafter, then it would
only mean that the lease was for a period of
20 years and that it could be renewed after
the 20 years period. After twenty years
there was an option with either of the
parties to opt out of the agreement. In that
case
there
would
be
no
extension.
However, if there was an extension then it
would mean a fresh agreement followed by
a fresh registration. This is exactly what
has also been held in Gopal Swarup
Chatruvedi Vs. State of U.P. and others,
2007 (102) RD 574."

(Emphasis supplied)

14. Same view has been taken in (I)
(2010) 110 RD 822, Ashish Kumar v.
Deputy Commissioner (Stamp) and Ors,
(ii) (2011) 5 All LJ 388, Manish Jain Vs.
State
of
U.P,
and
(iii)
(Manu/UP/2818/2018), Smt. Sudama Devi
Vs. State of U.P.,

15. In view of the aforesaid, the
impugned orders are not sustainable in the
eye of law. It is nobody's case that the
stamp duty has not been paid as per Article
35(a)(v) of Schedule 1-B of the Indian
Stamp Act.

16. In such view of the matter,
impugned
orders
dated
27.12.2006,
29.9.2007 passed by Respondent no.3/ Sub
Divisional Officer, Tehsil Kerakat, District
Jaunpur and order dated 4.9.2009 passed by
Respondent no.2/ Deputy Commissioner
(Stamps), Varanasi Division, Varanasi are
hereby quashed.

17. Accordingly, the writ petition is
allowed.

18. Any amount lying deposited
pursuant to the order of this Court dated
23.10.2009 shall be refunded to the
petitioner with an interest of 9% per annum
from the date of deposit, within a period of
4 All. Akhilesh Shukla & Ors. Vs. State of U.P.
945
2 months from the date of production of a
self attested copy of this order, which may
be verified from the web-site of Allahabad
High Court.
----------
(2023) 4 ILRA 945
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 638 of 1996

Akhilesh Shukla & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri A.K. Singh, Sri Shashi Prakash Rai, Sri
Himanshu Mishra

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 323, 324 & 307 - The
Code of Criminal Procedure, 1973 -
Section 360 - Probation of Offenders Act,
1958 - Section 4 - Appeal against
conviction - On 25.05.1985, the informant
was taking bath at his door - Accused
hurled abuses on informant, exhorted the
co-accused to kill him - Hearing this,
informant ran to his verandah - Accused
armed with lathi, pharsa and gun with the
object of committing murder, entered into
his verandah - He was dragged, beaten
severely by accused - The informant
received injuries caused by lathi and
pharsa - Charges framed - Prosecution
examined P.W.1, P.W.2 as witnesses of
fact - P.W.3, P.W.4 were examined as
formal witnesses - Held, on careful
perusal of evidence of P.W.1, P.W.2 it is
found that their evidence is cogent,
reliable - There is long standing enmity
and litigation has taken place between
them - Generally, independent witness
could not come to support either side, if
he supports one party, the other party will
become inimical to him - Evidence of
P.W.1,
P.W.2
is
corroborated
by
documentary evidence - Considering the
evidence of P.W.1, P.W.2, the alleged
contradictions in their evidence is minor
and natural - It doesn't affect prosecution
case in its entirety - The prosecution has
proved charge under aforesaid sections
beyond all reasonable doubts - After
convicting, the trial court instead of
sending them to jail, have released them
on probation - No illegality in the
impugned order, conviction is upheld.
(Para 2, 7, 9, 10, 30, 31, 37, 38, 39, 46,)

Appeal is dismissed. (E-13)

List of Cases cited:

1. Suresh Sitaram Surve Vs St. of Mah., AIR
2003 SC 344

2. Baleshwar Mahto Vs St. of Bihar, AIR 2017 SC 827

3. Karthik Malhar Vs St. of Bihar, 1996 Cr.L.J. 889

4. St. of Andhra Pradesh Vs Punati Ramulu, AIR
1993 SC 2644

5. Leela Ram (dead) through (Duli Chandra) Vs
St. of Har. & ors., 2000 SC (Cr) 222

6. Krishna Mochi & ors. Vs St. of Bihar, 2002
SCC (Cri) 1220

7. Subhash Chand & ors. Vs St. of U.P., 2015
Lawsuit (Alld) 1343

8. St. of Maharashtra Vs Jagmohan Singh Kuldip
Singh Anand & ors. (2004) 7 SCC 659

9. Jagat Pal Singh & ors. Vs St. of Har., AIR
2000 SC 3622

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri Shashi Prakash Rai, learned
counsel for the appellants and learned
A.G.A. for the State.