- (1.) T. George Joseph, J. This is a revision against the order dated 14-1-2003 passed by Shri Cheda Lal, Deputy Commissioner Stamp, Agra. The Deputy Commissioner held that the document under examination was a lease deed and Stamp Duty amounting to Rs. 83,22,900 was chargeable on it. He had also ordered the recovery of interest on the amount, at the rate of 1. 5% from the date of execution of the document.
(2.) THE disputed doucment was recovered from the office of the Agra Municipal Corporation when the officers of the Registration Department inspected it. THE Registration department considers the document chargeable under the Stamp Act. THEy argue that it is a lease deed, which is chargeable at par with a conveyance. THE document is drafted as a licence agreement and the second party argues that it is not a lease deed and does not attract stamp duty at par with a conveyance. It is undisputed that the document was not registered and that a lease deed is compulsory to be registered under the Registration Act and the Transfer of Property Act. THE department argues that the document was deceptively drafted as a licence agreement to defeat the provisions of the Stamp Act and is, indeed a lease deed and is chargeable as such, though not registered under the Registration Act. The revisionists argue that the document in question is not a lease deed primarily because it was not registered. A lease deed has to be a registered document if it is to qualify as such under the Transfer of Property Act. Since the document is not a lease deed, they argue that Stamp Duty applicable on a conveyance is not chargeable on it. They also argue that the relationship between the two parties to the unregistered document is that a licensor and a licensee and the compliance of the conditions of the document is ensured under this relationship. The argument that the document is not a lease deed merely on account of its non-registration is not tenable. In AIR 1933 Allahabad 735, Sulaiman, C. J. held as follows: "section 2, sub-section 16 Stamp Act, while presumably borrowing the definition of "lease" as contained in the Transfer of Property Act, also thereto a provision that "lease" shall include also among other things a kabuliat or other undertaking in writing (not being a counterpart of a lease) to cultivate, occupy or pay or deliver rent for immovable property. The use of the words ''include also`` obviously implies that the definition of ''lease`` as contained in the Stamp Act is wider and more comprehensive than the definition of it in Section 105, T. P. Act. It would follow that even if a transaction does not amount to a lease under Section 105, of the latter Act, it may nevertheless be a lease for the purposes of the Stamp Act. ''
(3.) THE revisionists are absolutely justified in arguing that the document is not a lease deed under the Transfer of Property Act since it was not registered. But is can very well be a lease deed under the Stamp Act since the Stamp Act follows a wider definition. According to the Stamp Act, thetransaction will be a lease, if it sets up to "occupy an immovable property. " Though Suleiman C. J. has not elaborated on the differences between the lease as defined in the Transfer of Property Act and the same as defined in the Stamp Act, it is clear for the purpose of the present case that it is wrong to follow the strict definition of the Transfer of Property Act. In the later part of the judgment, the C. J. has adopted the general meaning of the term 'lease' to distinguish it from a 'licence'. THErefore, the document has to be examined on the strength of the conditions of the transaction to find out whether the document is a lease or a licence. In the same judgment, Suleiman C. J. has explored how the difference between a lease and a licence can be examined. He continues as follows: "no doubt the parties call this doucument an agreement by way of licence and throughtout that doucment the same phraseology has been used and the parties are called licensor and licensee. There is also a clear statement that this deed should not be construed to create a tenancy in favour of the Oil Company. It is however clear that such recitals in a document can never be conclusive, and we have to look to the substance of the terms agreed upon and not to the nomenclature given to the deed by the parties. ";