Over 2 lakh Indian cases. Search powered by Google!

Case Details

VINAYENDRA NATH UPADHYAY & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Vinayendra Nath Upadhyay & Others v. State Of U.P. & Others - WRIT - C No. 51987 of 2005 [2006] RD-AH 2898 (7 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.5

Civil Misc. Writ Petition No. 51979 of 2005

Vinayendra Nath Upadhyay  Versus  State of U.P. and others  

With

Civil Misc. Writ Petition No. 51985 of 2005

Vinayendra Nath Upadhyay  Versus  The State of U.P. and others

With

Civil Misc. Writ Petition No. 51986 of 2005

Vinayendra Nath Upadhyay  Versus  The State of U.P. and others

With

Civil Misc. Writ Petition No. 51987 of 2005

Vinayendra Nath Upadhyay  Versus  The State of U.P. and others

With

Civil Misc. Writ Petition No. 51990 of 2005

Vinayendra Nath Upadhyay  Versus  The State of U.P. and others

With

Civil Misc. Writ Petition No. 51991 of 2005

Vinayendra Nath Upadhyay  Versus  The State of U.P. and others

With

Civil Misc. Writ Petition No. 51992 of 2005

Vinayendra Nath Upadhyay  Versus  State of U.P. and others

And With

Civil Misc. Writ Petition No. 51995 of 2005

Vinayendra Nath Upadhyay  Versus  State of U.P. and others

------------

Hon'ble Janardan Sahai, J

The controversy involved in this bunch of writ petitions is identical. The petitioners took a contract for realisation of toll in respect of two bridges viz., Sastri Bridge and Phapamau Bridge. The petitioners paid stamp duty treating it as a lease of moveable property. The Additional District Magistrate (Finance & Revenue), Allahabad treating it as a lease of immovable property imposed two percent additional duty payable on transfer of immoveable property within a development area under Section 39 of the U.P. Urban Planning & Development Act, 1973. Against this order the petitioners filed a revision which was dismissed on 26.3.2004 by the Chief Controlling Revenue Authority, Allahabad. The petitioners then filed a restoration application, which was also dismissed on 15.3.2005. All these orders have been challenged by the petitioners in this bunch of writ petitions.

The submission of the petitioners' counsel is that although the instrument in question is a lease  it is a lease of moveable property and Section 39 of the U.P. Urban Planning & development Act, 1973 is not attracted as that provision relates to a lease of immoveable property situate within the Development Area. Reliance is placed upon a Division Bench decision of this court in M/s. Bilal Ahmad Sherwani and Kishori Lal vs. State of U.P. and others [AIR 1992 Alld 181].  The Division Bench took the view that Section 2 (16) of the Indian Stamp Act is in two parts - the first part relates to a lease of immoveable property and the second part extends the definition and includes within its fold lease of property, which is not immovable.  Clause (c) of Section 2 (16) of the Indian stamp Act in the second part relates to an agreement to let out tolls. The Division Bench held that an agreement to let out tolls is not a lease of immoveable property but is a lease within the meaning  of Section 2 (16) in view of the extended definition covering leases of other than immovable property and therefore Section 39 of the U.P. Urban Planning & Development Act is not applicable. These cases are clearly covered by the Division Bench decision in M/s. Bilal Ahmad Sherwani (Supra).

Shri Anil Mehrotra, learned standing counsel however submitted that the view taken by the Division Bench requires reconsideration. Reference was made by him to the observation of the Division Bench in that case that admittedly there was no transfer of immoveable property. This observation it is submitted by learned standing counsel was based on assumption that a lease of tolls is not a lease of immovable property and therefore not covered under the first part of Section 2 (16). The assumption it is submitted is erroneous and is against the principles laid down in previous decisions of this court. Immoveable property has been defined under Section 3 (26) of the General Clauses Act as under:-

"3 (26) ''immovable property' shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth;"

The submission of the learned standing counsel is that toll is a benefit arising out of land and therefore immovable property within the meaning of Section 2 (26). Reliance is placed upon a large number of decisions none of which  however relates to tolls. In Smt. Dropadi Devi Vs. Ram Das and others [AIR 1974 Allahabad 473]  an agreement to collect market fee was held to be a lease of immoveable property in view of the definition of that term under Section 3 (26) of General Clauses Act. Some of the other decisions relied upon by learned standing counsel are:-

AIR 1936 PC 230 ME Moola Sons Vs. Official Assignee Rangoon in which an interest in future rents and profits of certain immovable property was regarded as immovable property. In AIR 1956 SC 7 Anand Bahera Vs. State of Orissa it was held that a right to catch fish is immoveable property

It does appear that the attention of the Division Bench in M/s. Bilal Ahmad Sherwani (Supra) was not drawn towards the question whether a toll is a benefit arising out of land and therefore immovable property. The word ''land' it is submitted has a wide connotation and would cover a bridge, which is permanently embedded in the ground.  It is also submitted by the learned standing counsel that the word ''includes'; has a flexible meaning and the view taken by the Division Bench that while the first part of Section 2 (16) of the Indian Stamp Act defines lease of immoveable property while the second part is an inclusive definition which takes within its sweep transfers not relating to immoveable property is not correct. Reliance is placed upon the meaning of the word ''include' explained in Maxell on The Interpretation of Statues (Twelfth Edition) which reads as under:-:  

"... Some times, however, the word ''include' is used in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when not only such things as they signify according to their natural import, but also those things which the interpretation clause declares, that they shall include. In other words, the word in respect of which "includes" is used bears both its extended statutory meaning and "its ordinary, popular, and natural sense whenever that would be properly applicable".

In State of Bombay and others vs. Hospital Mazdoor Sabha AIR 1960 SC 610 it was held that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense.

It is further submitted that the bridges in question are situate within the Development Area. Although Section 39 of the U.P. Urban Planning and Planning Act, 1973 which relates to transfer of immoveable property within the development area  it is submitted by standing counsel is applicable in the instant case there are other provisions whereunder duty can be imposed upon transfer of immoveable property,  which may not be situate within a development area. He relies upon Section 67-H of the U.P. Town Improvement Trust Act, 1919 and Section 62 of U.P. Awas Evam Vikas Adhiniyam, 1965 in which also there are similar provisions for charging additional stamp duty to the tune of two percent.

The contentions advanced by the learned standing counsel require consideration. These aspects of the matter, it appears, were not brought to the notice of the Division Bench in M/s. Bilal Ahmad Sherwani (Supra). However, as a Single Jude I am bound by the decision of the Division Bench and cannot differ from its decision. Only a bench of co-ordinate strength can differ.  In the circumstances it is appropriate that all these cases may be placed before the Hon'ble Chief Justice to consider laying them before a Larger Bench or for such appropriate orders as he may deem fit. Lay the papers before Hon'ble Chief Justice.

7.2.2006

sn


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.