- (1.) DELAY condoned.
(2.) LEAVE granted. What should be the stamp duty payable on lease agreement executed between appellant No.1 and the respondent entitling the latter to collect toll tax is the question which arises for consideration in this appeal filed against the order passed by the Division Bench of the Uttarakhand High Court whereby the writ petition filed by the respondent was disposed of in terms of the judgments of the Allahabad High Court in Tejveer Singh v. State of Uttar Pradesh [1997 (29) ALR 687] and the Uttarakhand High Court in Writ Petition No. 1020 of 2004 (M/B) - Naresh Agarwal v. State of Uttaranchal. The respondent participated in the auction held by Executive Engineer, Construction Division, PWD, Haldwani (appellant No.2 herein) for grant on lease collection of toll tax for using Haldwani Bye-Pass Road, 14 K.M. (Kathgodam) Gaula bridge. The bid of Rs.22 lakhs given by the respondent was accepted by the competent authority. Thereafter, lease agreement dated 24.3.2006 was executed between the Governor of Uttaranchal (now Uttarakhand) through Commissioner, Kumaon Division and the respondent where by the latter was given exclusive right to collect toll from the vehicles using the road and Gaula bridge. As a condition for execution of lease, communication dated 25.2.2006 was sent by appellant No.2 to the respondent requiring him to deposit stamp duty of Rs.2,20,400/-. However, instead of depositing the stamp duty, the respondent filed Writ Petition No.204(M/ B)of 2006 for quashing the notice issued by appellant No.2 and also for issue of a direction to the appellants to charge stamp duty in accordance with the judgments in Tejveer Sing's case and Naresh Agarwal's case by asserting that the contract executed between the parties was only a security bond and stamp duty was payable as per Article 57 of Schedule l-B of Indian Stamp Act, 1899 (for short, the Act'), as amended by the State of U.P. and as applicable to the State of Uttarakhand.
(3.) THE Division Bench of the High Court disposed of the writ petition by recording a cryptic order, which reads thus: "By means of this writ petition, the petitioner has prayed for writ of certiorari quashing the order dated 25.2.2006 (Annexure No.2) passed by Respondent no.2 and further a writ of mandamus commanding the respondent not to demand/realize stamp duty on the earnest money/security deposit the money of contract as demanded on the basis of the Government instructions and the respondents may be directed to demand stamp duty in pursuance of the direction in the case of Tejveer Singh v. State of U.P. and others reported in [1997 (29)ALR Page 687] as well as judgment passed by this Hon'ble Court in Writ Petition No. 1020/2004 (M/B), Naresh Agarwal v. State of Uttaranchal. 2. A Division Bench of this Court has also followed the aforesaid judgment, which is referred in the prayer clause of the present writ petition. THE controversy raised in the writ petition is squarely covered by the aforementioned judgment as submitted by learned Addl. Chief Standing Counsel. THErefore, the writ petition is disposed of in terms of the aforementioned judgment of Hon'ble Allahabad High Court." Learned counsel for the appellants invited our attention to the contents of lease agreement dated 24.3.2006 to show that the respondent was given exclusive right to collect the toll from 31.3.2006 to 30.3.2007 against the consideration of Rs.22 lacs and argued that stamp duty on such lease is payable under Article 35 of Schedule l-B of the Act and not under Article 57 thereof. In support of this argument, the learned counsel relied upon judgments of the Special Bench of the Allahabad High Court in Banney Khan v. Chief Inspector of Stamp, U.P. [AIR 1976 Allahabad 475] and a Division Bench of the Andhra Pradesh High Court in Uppalapati Durga Prasad and others v. Executive Engineer (RandB) N.H. Division, Srikakulam and others [2001 (4) ALT 228]. Learned counsel then submitted that stamp duty was demanded from the respondent keeping in view the terms of the lease agreement, which enabled him to collect toll tax and not on the security given by him for due performance of the contract and the Division Bench of the High Court committed serious error bv o'i-pasi g of wi*-- on in terms of the judgments in Tejveer Singh's case and Naresh Agarwa s, -.w;