- (1.) G. P. Mathur, J. Several writ petitions have been filed challenging the order of the respondents whereby the petitioners have been asked to pay stamp duty on the agreements executed in their favour for collection of toll tax. Two such petitions in which leading arguments have been advanced are being disposed of by a common order.
(2.) IN exercise of the powers under sub-section (1) of Section 9 read with Section 2-C of the INdian Tolls Act, 1851 (Act VIII of 1851), inserted by the INdian Tolls (Uttar Pradesh Amendment) Act, 1974 (U. P. Act, No. 22 of 1974) (hereinafter referred to as the 'act'), in its application to Uttar Pradesh, the State Government made the Uttar Pradesh Tolls Regulation, Levy and Collection Rules, 1980. Rule 4 provides that in accordance with the provisions as Section 2-C of the INdian Tolls Act, the Governor or his nominee may invite auction bids from the persons desirous of taking lease for the collection of the tolls levied on the bridges specified in the notification issued by the Government. On 4-1-1994 an auction was held for giving the right to collect toll over a bridge known as Sanjay Setu which is on Kanpur- Hamirpur Road. The bid of Rs. 24,43,000 made by Munindra Nath Upadhyaya being the highest was accepted. The Executive Engineer, P. W. D. Hamirpur by the order dated 3-2-1994 (Annexure 1) to the writ petition) directed him to supply stamp duty of Rs. 4,42,942. 50 foe she purpose of execution of the agreement. Writ Petition No. 4978 of 1994 has been filed for quashing of the aforesaid order, in writ petition No. 18595 of 1988 Roshan Lal has sought quashing of a similar order, dated 13-9. 1988 for payment of stamp duty on the agreement executed in his favour for collection of tolls over Nakatia Nala Bridge on National Highway No. 24 in the district Bareilly. The respondents have levied stamp duty under Article 35 (b) of Schedule I-B of the INdian Stamp Act as applicable to the State of U. P. The petitioners contend that the agreement to realise toll is not a lease and being an agreement simpliciter which is not otherwise provided for in the Schedule, they are liable to pay stamp duty of Rs. 100 only in accordance with Article 5 (c) of Schedule I-B. In order to appreciate the controversy raised, it will be convenient to refer to relevant statutory provision. Section 2 (16) of Stamp Act defines a 'lease' and it reads as under ; 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 i 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 (c) of Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957. The relevant part of Article 35 of Schedule I-B reads as follows : Description of INstrument Proper stamp-duty 35. Lease, including an uuder-iease or sub-leaste and any agreement to let or sub-let - (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Where the lease is granted for a fine or premium or for money advanced and where no rent is reserved ; The same duty as a Conveyance (No. 23) for a consideration equal to the amount or value of such fine or premium or advance as set forth in the lease. (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . provided ;. . . . . . . . . . . . . . . . . . . . . Explanations (1 ). . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . (4) The aggregate amount. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . at which tolls are let, whether payable in lump sum or instal ments, shall be deem ed to be premimum for the purposes of this Article Article 5 relates to agreement or memorandum of an agreement relating to sale of a bill of exchange or sale of a Government security or share in a company or sale of an immovable property. The definition of the word 'lease' as given in Section 2 (16) of the Act shows that it is in two parts. The first part provides that it means a lease of immovable property. The second part, however, lays down that it also includes the instruments enumerated in clauses (a) to (e), Sub-clause (c) lays down that lease includes any instrument by which tolls of any description are let. The use of the word "includes" shows that the definition is not restrictive and exhaustive but is prima facie extensive. In Maxwell on the Interpretation of Statutes (Twelfth Edn.) the use of word 'include' in the definition clause has been explained in the following words on page 270 : ". . . . . . "sometimes, however, the word 'includes' is used 'in order to enlarge the meaning of words or phrases occurring in the body of the statute ; and when it is so used these words or phrases must be construed as comprehending, 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 v. Hospital Mazdoor Sangh, AIR 1960 SC 610. Ganjendragadkar-J observed as follows : "the words used in an inclusive definition and cannot be treated as restricted in any sense. Where the courts are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider conotation. " 5, In S. G. R. Tiles Manufacturing Ltd. v. Stale of Gujarat, AIR 1977 SC 90, it was held as follows in para-3 of the Reports : "we may refer to the often-quoted observation of Lord Watson in Dilworth v. Commissioner of Stamps', (1899) AC 99 at pp. 155-106, that when the word 'include' is used in interpretation clauses to enlarge the meaning of words or phrases in the statute 'these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall includes. ' Thus where 'includes' has an extending force, it adds to the word or phrase a meaning which does not naturally belong to it. " This has been reiterated in M/s. Doy Pack System Pvt. Ltd. . v. Union of India, AIR 1988 SC 782. It is, therefore, well settled that the normal rule is that the use of the word 'include' in definition clauses enlarges the meaning of the words and phrases occurring in the body of the statute. 6. The petitioners had made bids for taking lease for the collection of the tolls levied on the bridges specified in the notification issued by the State Government in accordance with Rule 4 of the Rules and therefore the agreement by which such aright is granted to them is clearly covered by sub-clause (c) of Section 2 (16) of the Stamp Act as it is an instrument by which tolls of any description are let. Thus there can be no doubt that the agreement executed in favour of the petitioners is a 'lease' for the purpose of Stamp Act. The agreement being a lease it is clearly covered by Article 35 of Schedule 1-B. Article 5 can have no relevance here as the agreement executed in favour of the petitioners does not relate to sale of bill of exchange or sale of Government security or sale of immovable property. Sub-clause (c) of Article 5 has to be read ejusdem generis with preceding clauses and has to be construed as limited to things of the same kind as those specified in clauses (a), (b) and (b-1) viz. to sale of an immovable or movable property. It can have no application in absence of sale. 7. Shri B. B. Paul has strenuously urged that lease has been defined in Section 105 of Transfer of Property Act and it means transfer of a right to enjoy immovable property made for a certain time in consideration of a price paid or promised and unless some right had been conferred under the agreement in respect of the bridge, the question of lease would not arise. It is submitted that as under the agreement merely a right has been conferred to realise toll from the vehicles but no right as such over the bridge has been conferred, the agreement cannot be termed as a lease. In support of his submission, learned counsel has placed reliance upon the decision of Supreme Court in Associated Hotels v. R. N. Kapoor, AIR 1959 SC 1262 and Board of Revenue v. A. M. Ansari, AIR 1975 SC 1813, wherein it was held that lease creates an interest in immovable property or a right to possess it. According to the learned counsel the right to collect toll is in the nature of 'profits a prendre' which has been explained in Halsbury's Laws of England (4 Edition) as under : - "a 'profits a prendre' is a right to take something of another persons land. It may be more fully defines as a right to enter another's land and to take some profit cf the soil, or a portion of the soil itself for the use of owner of the right. " 8. Reference is also made to a Full Bench decision of our court in Board of Revenue v. Mulakh Raj, 1984 ALJ 331, wherein it was held that an instrument granting a right to remove sand from the bed of the river or an instrument granting a right for the removal of sand and morum is not a lease deed within the meaning of Section 2 (16) (c) of the Stampt Act but is a mere licence chargeable under Article 5 (c) of Schedule 1-B of the Act, though it is termed as "mining lease" under Minor and Minerals (Concession) Rules, 1963. 9. We are unable to accept the submission made by the learned counsel for the petitioners. The question for consideration is as to under which Article of Schedule 1-B of the Act, stamp duty on the agreement executed in favour of the petitioner is to be charged. Since the question is to be consi dered with reference to the Stamp Act which defined a 'lease' it will not be proper to refer to the definition of the aforesaid word under the Transfer of Property Act or to decide the controversy keeping in view some general notion or the meaning of the word as it is understood in common parlance. Had the word 'lease' not been defined in the Stamp Act it may have been permis sible to its definition under the Transfer of Property Act or to have the same meaning as it is understood in common parlance. But the statute under which stamp duty is levied having itself defined the word 'lease' and it being a special statute governing the controversy involved, its provision will prevail over the general law on the subject. There is a well known maxim generalia specialibus non derogant which means general provisions will not abrogate special provisions. It is well settled that where there are general words in a later Act, capable of reasonable application without being extended to subjects specially dealt with by earlier legislation, in the absence of an indication of a particular intention to that effect, the presumption is that the general words were not intended to repeal the earlier and special legis lation, [per Lord Selborne in Seward v. Versa Cruz, (1884) App. Cas. 59 at p. 68]. In Maxwell on The Interpretation of Statutes, the law on the subject has been stated in following words : "when the Legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment most be construed in that respect according to its own subject-matters and its own terms. " 10. The rule that general provisions should yield to specific provisions has been laid down in several Supreme Court decisions (See U. P. State Electricity Board v. H. S. Jain, AIR 1979 SC 65 and J. K. Cotton Spinning and Weaving Mills v. State of U. P. , AIR 1961 SC 1174, There cannot be slightest doubt that Stamp Act is a special statute as its principal subject-matter is charging of stamp duty which is the controversy involved in the present case. Therefore, it is true definition of word 'lease' as given in the Stamp Act which alone can be looked and not any other enactment. Since the agreement executed in favour of the petitioners gives them a right to collect tolls, it is clearly covered by sub-clause (c) of Section 2 (16) and would be a lease for the purposes of the Stamp Act. 11. It may be mentioned here that the Full Bench in Board of Revenue v. Mulakh Raj (supra), was dealing with a document executed in March, 1976. After the aforesaid decision was rendered, the Legislature intervened by promulgation of Indian Stamp (Uttar Pradesh Amendment) Ordinance, 1991 on 9-10- 1991. Subsequently this was replaced by U. P. Act No. 11 of 1992 which is deemed to have come into force on 1-11-1991. By the aforesaid amending Act, sub-clause (e) was added to Section 2 (16) of the Act and explanation (4) was added to Article 35 of Schedule 1-B. By the aforesaid amendment, an instrument granting mining lease in respect of minor minerals will also be deemed to be a lease. 12. The view which we have taken viz. that an instrument granting right to collect tolls over a bridge is a lease within the meaning of Section 2 (16) of the Stamp Act and is chargeable to duty under Article 35 of Schedule I-B of the Act is also supported by two earlier decisions of this Court rendered in Ramesh v. Additional District Magistrate (Finance and Revenue), 1991 (2) ACJ 1161 and Mahesh Chandra v. State, 1994 ACJ 1173. The case of Ramesh Kumar relates to a period prior to insertion of explanation (4) to Article 35, Schedule I-B of the Act by U. P. Act No. 11 of 1991, yet it was granred for collection of tolls for a fixed amount and no rent was reserved, lease will be for a premium and the case would be covered by sub-clause (b) of the aforesaid Article. The newly added Explanation (4) makes the position further clear that the aggregate amount at which tolls are let shall be deemed to be premium for the purpose of Article 35. 13. In view of the discussions made above, there is no merit in these petitions which are hereby dismissed. Interim orders are vacated. Petition dismissed. .;