Pramod Kumar Srivastava, J. - (1.) An instrument dated 18.5.2004 was executed, the first party of which was petitioner and the second party was respondent no.-4 Bharat Sanchar Nigam Ltd. (BSNL). By this instrument, it was agreed that on top floor of property of petitioner the second party BSNL will erect tower. The agreement for this instrument was for 5 years and under this agreement BSNL had to pay Rs. 4200/- per month as rent to petitioner. This instrument was mentioned as agreement of lease . It was also agreed between the parties to this instrument that the document shall be presented for registration by the lessor (petitioner) and shall be registered at the cost of said lessor. It was also agreed that this agreement of lease would be for 5-years only, and after that period it may be extended up to another 15 years. At the time of execution of this instrument stamp duty of Rs. 100/- was paid. After its registration, the respondent no.-3 had issued show cause notice to petitioner regarding deficiency in payment of stamp duty, and after receiving petitioner's objection, it had passed order dated 17.03.2009 by which it was held that for calculation of duty said instruments is lease deed for 20 years, and it had created rights of lessee in the property. On basis of these findings the respondent no.-3 had held that deficient stamp fees of Rs. 35, 900/- should be paid by petitioner along with penalty and interest. Accordingly, direction was passed by respondent no.-3. Against said order of respondent no.-3, the Appeal no. 6 of 2009, Ashok Kumar Agarwal v. State of U.P. under section 56(1) of Indian Stamp Act was preferred which was heard and dismissed by the judgment dated 6.8.2009 of respondent no.-2 Additional Commissioner (II), Aligarh Division, Aligarh.
(2.) Aggrieved by the above mentioned two impugned judgments of respondents no. 2 and 3, the present writ petition has been preferred by the petitioner.
(3.) Counsel for the petitioner contended that although the instrument in question was mentioned in it as agreement of lease but, in fact, it was instrument of licence and there was no deficiency in stamp fees. He further submitted that under provision of section 29-C of the Act, stamp fees shall be borne by lessee or grantee. In this case it is the respondent no.-4 (BSNL). Therefore, if it is accepted for the sake of argument that any additional stamp fees was to be charged then it should have been claimed from respondent no.-4 and not from the petitioner. His further submission is that in the instrument in question the petitioner had accepted liability to pay expenses of registration which does not include the stamp fees, which is payable by respondent no.-4 under the law. Therefore the demand of stamp fees from lessor/licensor (petitioner) is illegal and erroneous. His further submission is that instrument in question was only for 5 years and there was a clause in it that it may be extended for further 15 years, but in fact it was not instrument for 20 years, as was held by respondent no. 3 and 2 in their orders which are erroneous. Therefore, these orders should be quashed.;