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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 575 OF 2009
IN
WRIT PETITION NO. 4520 OF 2009.
Pankaj Ramlakhan Dubey,
Prop. M/s. Vedamsh Agro Food
Products, aged 26 years, Occup.:
Business, Office at Opp. Ayurvedic
Amravati.
College, Dastur Nagar Road,
..... APPELLANT
....Versus....
1) State of Maharashtra, through
its Secretary, Revenue and Forest
Department, Mantralaya, Mumbai,
2) The Deputy Inspector General of
Registration and Deputy Controller
of Stamps, Amravati Office Mangilal
Plot Camp, Amravati,
3) The Joint District Registrar, Class-I,
Collectorate of Stamps, Amravati
Office, Mangilal Plot Camp, Amravati,
4) The Sub-Registrar Class-2, Amravati
City-1, Dist. Amravati.
5) The Regional Officer MIDC, Amravati
Area Badnera By-pass Road,
Dist. Amravati,
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6) The General Manager, District
Industrial Centre (DIC), Amravati
Area Badnera By-pass Road,
District Amravati. ...... RESPONDENTS.
Mr. B.G. Kulkarni, Advocate for appellant,
Mr. D.P. Thakre, Assistant Government Pleader for respondent nos. 1
to 6.
CORAM: S.A. BOBDE & P.D. KODE, JJ.
DATED: APRIL 7, 2010.
ORAL JUDGMENT (PER S.A. BOBDE, J.)
1] Admit. Taken up for final hearing by consent.
2] This is a Letters Patent Appeal against the judgment of
the learned Single Judge holding that the document in question is not
a lease and, therefore, the notification dated 12.6.2007 which
exempts leases from payment of stamp duty under the Bombay
Stamps Act is not applicable.
3] The Maharashtra Industrial Development Corporation had
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allotted Plot No. C-43/2 to Smt. Nitu Vinod Dubey, trading as
Proprietor of M/s. Yashoda Milk & Allied Products. The allotment
was made by an agreement to lease the plot to the said Smt. Nitu
Dubey. The lease-deed was to be executed upon fulfilment of
certain conditions by the allottee. The allottee, however, agreed to
transfer the rights under the agreement to lease to the
appellant/petitioner Pankaj Ramlakhan Dubey. The MIDC signed
the said agreement as a consenting party and Clause 3 of that
agreement reads as follows :-
“As soon as the Executive Engineer has certified that the
factory building and works on the plot described in the
First Schedule to the Principal Agreement have been
erected and if the parties of the Third Part shall have
observed all the stipulations and condition contained in
the Principal Agreement the Grantor will grant and the
parties of the Third Part will accept a Lease (which shall
be executed in duplicate of the said plot described in the
First Schedule to the Principal Agreement and the factory
building erected there on the Standard form of Lease
prescribed by the Grantor for the term and at the yearly
mentioned in the principal Agreement without any further
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4concurrence of the Licensee.”
Thus, it was agreed that after the appellant/petitioner complies with
all the conditions contained in the principal agreement, the Grantor,
i.e. MIDC will grant a lease and the petitioner will accept it. It is clear
from the above recital that no lease-deed was executed either in
favour of the original allottee Smt. Nitu Dubey or the petitioner by this
agreement.
4] This agreement was submitted for adjudication under
Section 31(3) of the Bombay Stamp Act to the Collector of Stamps.
Before the Collector, it was the contention of the petitioner that the
document did not constitute a lease and was merely an agreement to
lease the property in question. In the alternative, according to the
petitioner, if it was to be treated as a lease, the transaction was
exempted from payment of duty under a Government Resolution No.
th
Stamps 2007/C.No.196(2) M-1, dated 12 June, 2007, which
provided that there shall be remission of stamp duty chargeable
under the Act in respect of a lease if it is executed for starting a new
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unit in the Information Technological Park or the Biotech Park.
There is no dispute that the property in question is located in the
Biotech Park.
5] The Collector of Stamps passed an order on 7.7.2009
holding that the document in question amounts to a transfer of lease
by Smt. Nitu Dubey in favour of the petitioner and was, therefore,
chargeable to duty under Entry No.60 of Schedule I which reads as
follows :-
Entry Description of Instrument Proper Stamp Duty
No. 1 2
60 Transfer of Lease by way of The same duty as is leviable
assignment and not by way of on a Conveyance under
under-lease or by way of clauses (a), (b), (c) or (d), as
decree or final order passed the case may be, of Article
by any Civil Court or any 25, on the market value of
Revenue Officer. the property, which is the
subject matter of transfer.
Against the said order, the petitioner preferred an appeal under
Section 32(B) of the Bombay Stamps Act, 1958 before the Deputy
Inspector General of Registration and Deputy Controller of Stamps
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(Appellate Authority), Amravati. The Appellate Authority held that the
document, i.e. the proposed agreement to lease did not come under
the purview of the Government Resolution dated 12.6.2007 and was,
therefore, not entitled for exemption but it is chargeable to stamp
duty by virtue of Entry 60 (supra). Against the order of the Appellate
Authority, the petitioner preferred Writ Petition before the learned
Single Judge of this Court. The learned Single Judge came to the
conclusion that the document in question is not a lease-deed since it
is an agreement to lease. The learned Single Judge came to the
conclusion that it is not a lease-deed and, therefore, not chargeable
under Entry 36 of the Stamp Act but nonetheless is chargeable to
stamp duty under Entry 60 of the Stamp Act. The learned Single
Judge thus dismissed the Writ Petition.
6] Shri Bhanudas Kulkarni, the learned Counsel for the
appellant, submitted that the document in question was rightly
construed by the learned Single Judge as an agreement to lease
since no transfer of property by way of lease is effected by that
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document. However, according to the learned Counsel since the
document was not liable to be construed as a lease, then its
assignment by the original allottee Smt. Nitu Dubey to the appellant
could not have been considered to be a transfer of lease under Entry
No.60 and, therefore, the document could not have been charged to
stamp duty as if it were a lease.
7] Mr. D.P. Thakre, the learned A.G.P. for respondents, did
not dispute the contents of the document and submitted that the
document was rightly held to be an agreement to lease and not a
lease by the learned Single Judge.
8] Having considered the matter, we are of the view that if the
document was not to be treated as a lease but only as an agreement
to lease, the Writ Petition filed by the appellant ought to have been
allowed. Indeed, if no lease had ever been executed by the MIDC in
favour of Smt. Nitu Dubey, the transfer or assignment of her rights
under the agreement to lease could not have been considered to be a
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transfer of lease. The rights that were transferred by Smt. Nitu
Dubey, i.e. in favour of the appellant were exactly those which she
had acquired from the MIDC. Since she had not acquired any
leasehold rights from the MIDC, she could not have transferred any
such rights to the appellant. Therefore, the document could not have
become chargeable to duty under Entry No.60 (supra) which makes
stamp duty leviable on transfer of lease by way of assignment. The
learned Single Judge seems to have overlooked this position.
9] In the circumstances, we find that the document in
question has been rightly held to be an agreement to lease. We,
however, set aside the judgment of the learned Single Judge to the
extent that the document has been treated to be a transfer of lease
under Entry 60. We accordingly hold that the document is not
chargeable to stamp duty as a lease or as a transfer of lease. We
direct that the amount paid by the appellant towards stamp duty shall
be refunded to the appellant upon a proper application made in that
regard.
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10] In the result, the appeal stands allowed. There shall be no
order as to costs.
JUDGE. JUDGE.
J.
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