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Faraheem v. State Of U.P. & Others - WRIT - C No. 63044 of 2005 [2005] RD-AH 3946 (4 October 2005)


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                                                                                                Court No.5.

               Civil Misc. Writ Petition No. 63044 of 2005.

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

Hon'ble Janardan Sahai, J.

          The question in this case is whether the instrument dated 1.6.2001 by which the petitioner has been given the theka to collect parking fees is a lease within the meaning of Section 2 (16) of the Indian Stamp Act and governed by the provisions of Article 35 of Schedule 1-B. The copy of the instrument has been annexed along with the writ petition as Annexure-1. The theka has been granted to the petitioner for a period of one year i.e. from 2001-2002 for a sum of Rs. 15.25 lacs. Paragraph three of the agreement provides that the petitioner shall be entitled to collect fess in accordance with the byelaws of the Nagar Palika Parishad. Paragraph 2 provides that the theka relates to Ikka, Bus, Tempo and Three Wheelers. The authorities below have found that the instrument in question is a lease and have held that the stamp duty of Rs. 100/- paid by the petitioner is deficient. It is submitted by the petitioner's counsel that the agreement in question is a mere licence and not a lease. Lease has  been defined in Section 2 (16) of the Indian Stamp Act, which is follows;

             "2 (16) "Lease".- "Lease" means a lease of immovable property, and includes also -

                            (a) a patta;

              (b) a kabuliyat or other undertaking in writing, not being a counterpart of a lease, to cultivate, occupy or pay or deliver rent, for immovable property;

                           (C)  any instrument by which tolls of any description are let;

             (d)any writing on an application for a 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.

                Parking fee is a fee charged from vehicles parked on the stand maintained by the petitioner. It is a toll and falls under Clause (C) of Section                                                  

2 (16) of the Indian Stamp Act. The authorities below were therefore right in treating the instrument as a lease dutiable under Article 35 of Schedule 1-B of the Stamp Act.

             There is no merit in this petition. Dismissed.




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