Prakash Krishna, J. - (1.) THE present writ petition arises out of the proceedings initiated against the petitioners under the provisions of Indian Stamp Act. The sole point for consideration is whether the instrument in question which is a lease deed is chargeable to stamp duty under Article 35 (v) or under Article 35 (vi) of Schedule 1-B of the Indian Stamp Act, 1899 as amended in the State of U.P. by U.P. Act No. 9 of 2001 w.e.f. 25-4- 2001. The petitioner is a society registered under the provisions of Societies Registration Act. The aims and objects of the society is to render effective services to the poor and down trodden class residing in village, in almost every field. The petitioner No. 2 claims himself as President of the society and the petitioner Nos. 3 and 4, according to their own showing, have nothing to do with the society. Mahant Subhash Chandra claiming himself chela Bajrangdas Siwaith/Manager of Sri Ram Janki Mandir situate in village Kataibna Tehsil Aurai District Sant Ravidas Nagar executed a lease deed dated 29-11-2005 in favour of the petitioners for a period of 30 years for doing plantation and gardening etc. and a sum of Rs. 12.000/- per year is payable as premium subject to increase of rent at the rate of 10% after every 10 years. The lease deed is for a period of 30 years and it also contains a clause for its cancellation and execution of de novo lease deed. Gata Nos. 96/2, 97, 172/8, 220/5, 172/2, 172/3, 172/12, 172/7, 220/4 and 221, total 10 plots, are subject-matter of the lease. The stamp duty was paid in terms of Section 2(16) of the Indian Stamp Act as per Article 35 (a) (v) of Schedule 1-B. Notice under Section 33/47-A (as amended in the State of U.P.) was issued by the stamp department on the allegations that the said lease deed being in violation of Sections 156 and 157 of U.P. Zamindari Abolition and Land Reforms Act, 1950, the stamp duty is payable on the market value of the property as the said lease is void under Section 164 of the U.P.Z.A. and L.R. Act and the transferee would become bhumidhar with non-transferable right under Section 164 of the said Act. The contention of the petitioners, that the provisions of U.P.Z.A. and L.R. Act to determine the duty on the instrument in question i.e. lease deed cannot be invoked, has not been found favour by either of the two authorities below. The Assistant Inspector General (Registration) by his order dated 29-12-2006 found that the document in question is deficient by Rs. 5,90,286 towards the stamp duty and Rs. 4,200/- towards registration fee and a sum of Rs. 10,000/- has been levied as penalty. The said order has been confirmed in stamp appeal No. 140 of 2006-07 by the Chief Controlling Revenue Authority, vide order dated 23-5-2007 and the review application to review the said order has been dismissed by the order dated 4-2-2008. By means of the present petition, the petitioners have sought for quashing of all the aforesaid three orders.
(2.) WHEN the petition came up for consideration before this Court, the following order was passed on 18- 4-2008: "Prima facie the document of lease treated to be conveyance for the purposes of stamp duty appears to be of doubtful. The lessor (a religious institution) does not appear to have taken permission of the District Judge for lease of 30 years. The second party has not been properly described. The status of petitioner Nos. 3 and 4 in the sale deed is not clearly given. The clause 12 (for renewal) is absolutely vague. Sri B.K. Srivastava submits that the document is in respect of the barren land and is lease, and that Section 164 of the UPZA and LR Act is not attracted. He further submits that the Assistant Inspector General (Registration) has not been conferred powers as Asstt. Commissioner (Stamps). The appellate authority has found that document violates Sections 156 and 157 and that under Section 165 if it is for more than 12-1/2 acres the consequence of void transfer by bhumidhar will follow, which are given out in Section 167. Shri B.K. Srivastava prays for and is granted a week's adjournment to make further submissions. Put up/list on 24th April, 2008." Sri B.K. Srivastava, learned Senior Counsel appearing on behalf of the petitioners in support of the present writ petition raised the following two points : (1) The Assistant Inspector General (Registration) has not been conferred power as Assistant Commissioner (Stamp). There being no such notification or delegation, the order passed by the said authority is void and illegal. (2) The provisions of alleged statute cannot be taken into consideration while determining the applicability of a particular Article for the purposes of payment of stamp duty. In other words, the provisions of U.P.Z.A. and L.R. Act were invoked by the authorities below to hold that the instrument in question is chargeable under Article 35(vi) of Schedule 1-B of the Act. The learned Standing Counsel, on the other hand, supports the impugned orders and submits that there has been a notification conferring power and Assistant Commissioner (Stamp) also holds the designation of Assistant Inspector General (Registration).
(3.) CONSIDERED the respective submissions of the learned counsel for the parties and perused the record. Taking the questions in seriatim, it may be noted that 'Collector' has been defined by Section 2(9) of the Act which includes besides other things a Deputy Commissioner and any officer whom the State Government may, by notification in the official Gazette, appoint in this behalf. A notification has been issued in the official Gazette by invoking said power, conferring power of Collector on the Assistant Commissioner (Stamp) also. When these things were pointed out, the argument was thereafter given up and was not pursued. Apart from the above, no such plea was raised before either of the two authorities below. Even otherwise also, the order of the Assistant Inspector General (Registration) having been merged in the order of Chief Controlling Revenue Authority in appeal, the defect of jurisdiction, if any, stands cured.;