1

AFR

Court No. - 34

Case :- WRIT - C No. - 7279 of 2006

Petitioner :- D.L.F. Universal Limited And Another

Respondent :- State of U.P. and Others

Counsel for Petitioner :- Shesh Kumar,Saurabh Srivastava,T.P. Singh

Counsel for Respondent :- C.S.C.,D Awasthi,V.P. Mathur

Hon'ble Sudhir Agarwal,J.

Hon'ble Rajeev Misra,J.

1.Present writ petition under Article 226 of the Constitution of India

has been filed by M/s D.L.F. Universal Limited and its Executive

Director, Legal and Constituted Attorney, Sri K. Swarup initially, seeking

a writ of mandamus commanding respondents to refund stamp duty of

Rs.16,91,03,000/- along with interest at the rate of 24% per annum to

petitioners realized from them towards stamp duty on the instrument in

question though it was not chargeable with any stamp duty.

Subsequently, by amendment prayer (d) has been inserted to issue a writ

of certioari quashing second proviso of amended notification dated

10.07.2008, issued by U.P. Government (Annexure 1 to the affidavit and

Annexure 9 to the writ petition) in so far as it relates to denial of stamp

duty already paid.

2.Facts, in brief, giving rise to present petition are that petitioner 1,

M/s D.L.F. Universal Ltd., is a company incorporated under Companies

Act, 1956 (hereinafter referred to as Act 1956) and continuing as such

under the provisions Companies Act, 2013 (hereinafter referred to as

“Act, 2013”). Company is dealing in transaction of land, construction of

multi-storeyed colonies, commercial complexes etc. New Okhla

Industrial Authority (hereinafter referred to as “NOIDA”), a statutory

body constituted under U.P. Industrial Development Act, 1976

(hereinafter referred to as “U.P. Act, 1976”) invited tenders for allotment

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of commercial plot no. 003, Block M, Sector 18, NOIDA under the

Scheme Commercial Hub, Sector 18 (2003-04). Petitioners' tender was

accepted by competent authority and they were allotted aforesaid land

which has a total area of 54320.18 sq. meter, at the rate of Rs.31,850/-

per sq. meter. Total premium of plot was calculated as Rs.1,73,00,97,

733/- and allotment money as Rs.43,25,24,433.25. Petitioner had already

deposited earnest money as Rs.3 crores, hence, after deducting aforesaid

amount, petitioner was required to deposit balance amount of

Rs.40,25,24,433.25 within 15 days from the date of acceptance of letter

and balance premium of Rs.129,75,73,299.75 was payable within 90

days from the date of issue of acceptance letter without interest. The land

in dispute was involved in a Public Interest Litigation, i.e., PIL No.

10137 of 2004 filed by one Anil Kumar Srivastava which ultimately was

transferred to Supreme Court and decided in Civil Appeal No. 5402 of

2004, vide Judgment dated 20.8.2004 and it was dismissed. Supreme

Court permitted petitioners to pay balance amount of 75 per cent within

a week. Pursuant thereto, 75 per cent balance amount was paid to

NOIDA on 26 August 2004 and request for execution of lease deed and

handing over possession was made. Before lease deed could be executed,

State Government issued a notification 19.01.2005 modifying its earlier

notification dated 31.08.1998 in exercise of powers under clause (a),

sub-section (1) of Section 9 of Indian Stamp Act 1899 (hereinafter

referred to as Act 1889) as amended from time to time in State of U.P.,

stating that with effect from the date of notification dated 19.01.2005

instruments as shown in column 4 of the Schedule executed for the

purposes provided in paragraphs 4.2.1, 4.2.2 and 4.2.3 and clauses (a) to

(f) of paragraph 8.2 of the Industrial and Service Sector Investment

Policy, 2004, are exempted from stamp duty. It also provided that

exemption shall be granted only on the first instrument executed for

transfer of an immovable property in favour of an enterpreneur. District

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Magistrate or General Manager, District Industries Centre was to sign

such instrument as witnesses for confirming the fact that transfer is being

executed under the said policy. Paras 4.2.1, 4.2.2, 4.2.3 and 8.2 (a) to (f)

as said in notification read as under:-

Paragraph

number of the

Industrial and

Service Sector

Investment

Policy, 2004 of

the State

Purpose and other details Extent of

remission

Nature of

investment

and Article

number of

Schedule I-B

4.2.1 (a) For setting up of new small scale or

Tiny industrial units in 29 district of

Purchanchal and in 7 district of

Bundelkhand.

Full Conveyance

Article 23(a)

(b) For setting up of New Medium or

large industrial units in 29 district of

Purchanchal and in 7 districts of

Buldelkhand

Half Conveyance

Article 23(a)

(c) For setting up of industrial units in

rest of the districts of the State

Half Conveyance

Article 23(a)

4.2.2 Transfer of land for development of

infrastructure facilities viz. for

establishing Industrial Estates, Road,

Bridges, over-bridges, wholesale

market, Transhipment Centre, Integrated

Transport and Commercial Centre,

Container Depot, Electricity Supply,

Water Supply, Water drainage,

Exhibition Centres, Warehouse.

Full Conveyance

Article 23(a)

4.2.3 Establishment of Information

Technology, Business Process

Outsourcing units, Call Centres, Agro-

Processing units.

Full Conveyance

Article 23(a)

and Lease

Article 35

8.2(a) Transfer of immovable property for such

multi-facility Hospital having an

established capacity of minimum 100

beds and having an area which is more

than the area for medical purpose as

prescribed in the relevant Government

order and haring such medical facilities

as provided in the relevant Government

order.

Full Conveyance

Article 23(a)

and Lease

Article 35

8.2(b) Transfer of immovable property for a

Super-speciality Hospital having

medical facilities as provided in the

Full Conveyance

Article 23(a)

and Lease

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relevant Government order Article 35

8.2(c) Transfer of immovable property for a

Hospital established in Block

Headquarter (which is different from a

Tehsil and District Headquarter) having

an established capacity of minimum 50

beds and having such medical facilities

as provided in the relevant Government

order.

Full Conveyance

Article 23(a)

and Lease

Article 35

8.2(d) Transfer of immovable property for a

Hospital established in a village (which

is different from a Block Headquarter)

having an established capacity of

minimum 30 beds and having such

medical facilities as provided in the

relevant Government order.

Full Conveyance

Article 23(a)

and Lease

Article 35

8.2(e) Transfer of immovable property for a

training institute for Technical or

Information Technology established in a

Block Headquarter (which is different

from a District Headquarter) having a

minimum 75 students/ trainees and

which is running on a syllabus approved

by the State Government.

Full Conveyance

Article 23(a)

and Lease

Article 35

8.2(f) Transfer of immovable property for a

Medical and Dental College or other

Educational Institutions, Multiplex

Cinema Hall, Shopping Malls,

Entertainment Centres in which the

cost of construction and machinery is

not less than rupees ten crore and

which have such facilities and which

fulfill the conditions as have been

provided in Government order no.

845/5-1-04-(28)/ 2002 dated Febryary

27, 2004 issued by Medical Section-1,

Government of Uttar Pradesh orders

issued by the related Government

Departments from time to time.

Full Conveyance

Article 23(a)

and Lease

Article 35

3. Notification also said that immovable property, which was

transferred shall not be used for the purpose other than the purpose

described in said policy. Explanation in the notification gives details of

districts as referred to in aforesaid paragraph 4.2.1 and reads as under:-

“(a)29 districts of Purvanchal shall comprise of the revenue

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districts of Faizabad, Sultanpur, Barabanki, Gonda, Bahraich,

Basti, Siddharthnagar, Gorakhpur, Maharajganj, Deoria,

Kushinagar, Azamgarh, Mau, Ballia, Varanasi, Ghazipur, Jaunpur,

Mirzapur, Sonbhadra, Sant Ravidas nagar, Allahabad, Fatehpur,

Pratapgarh, Balrampur, Chandauli, Sravasti, Kaushambi,

Ambedkarnagar, Sant Kabir Nagar.

(b)7 districts of Buldelkhand shall comprise of the

revenue districts of Jhansi, Jalaun, Lalitpur, Banda, Mahoba,

Hamirpur, Chitrakoot.

(c)Rest of the districts of the State means the districts of

the State which are not mentioned in clauses (a) and (b) above.”

4. NOIDA required petitioners to execute sale deed on payment of

stamp duty of Rs.166,10,300/-. The lease deed was executed on 25

th

February 2005 between NOIDA and petitioners and registered on the

same day in the office of Sub Registrar-II, NOIDA. Copy of lease deed

shows that land was allotted to petitioners for the purpose of shopping

malls, multiplexes, showrooms, retail outlets, hotels, restaurants, offices

and such other commercial usage after constructing building according

to setbacks and building plan approved by lessor. Despite the fact that no

stamp duty was payable in terms of paras 8.2(f) notification dated

19.01.2005, in ignorance thereof, NOIDA charged stamp duty upon

petitioners for execution of aforesaid lease deed dated 25.2.2005.

Petitioners submitted plan for construction of shopping malls etc. which

was sanctioned and petitioners started work and the estimated cost of

construction is much more than Rs.10 crores. Therefore, all the

conditions set out in notification dated 19.01.2005 were satisfied so as to

exempt petitioners from payment of stamp duty. Petitioners, therefore,

sent letter dated 19.4.2005 requesting Chief Executive Officer, NOIDA

to refund stamp duty illegally realized from petitioners.

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5.NOIDA officials replied, vide letter dated 16.09.2005 that the

matter relating to refund of stamp duty is under the jurisdiction of Tax

and Registration Department, U.P. Government. Consequently,

petitioners sent representation dated 27.09.2005 requesting District

Magistrate/ Collector, Gautam Budh Nagar to refund aforesaid stamp

duty which was illegally realised from petitioners. Having received no

reply, petitioners sent registered notice dated 19.12.2005 to all concerned

authorities, namely, Chief Controlling Revenue Authority, Sub Registrar,

District Magistrate and Vice Chairman, NOIDA making demand to

refund of stamp duty. This writ petition, therefore, has been filed with a

prayer that aforesaid stamp duty should be refunded.

6.During pendency of present writ petition, an amendment has been

made in Government Notification dated 31.8.1998, w.e.f 19.01.2005 in

exercise of powers under Section 21 of General Clauses Act, 1897 read

with Section 9 (1) (a) of Act 1899, by notification dated 10.07.2008,

whereby two provisos have been inserted at the end of para 1, which

read as under:-

“Provided that where the District Magistrate or the General

Manager, District Industries Centre of the concerned District

could not have signed such instrument as witness due to any

procedural omission, the District Magistrate of the concerned

district shall issue a certificate to the effect that the instrument of

transfer has been executed under the aforesaid policy such

certificate shall have the same effect as if such instrument were

signed as witness by the District Magistrate or the General

Manager, District Industries Centre of the concerned district

before the registration thereof.

Provided further that any amount of the duty already paid

on such instrument shall not be refunded on the basis of

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aforesaid certificate issued by the District Magistrate of the

concerned district.” (emphasis added)

7.Thus, aforesaid amendment denied refund of stamp duty where it

has already been paid. This notification has also been challenged on the

ground that the amount illegally realized cannot be retained by State and

it violates constitutional right of property enshrined under Article 300A

of the Constitution. Denial of refund is patently illegal, arbitrary and

without any authority of law. An amount realized from any person

without any authority of law cannot be retained by State and it cannot

deny its refund.

8.Contesting writ petition, a counter affidavit has been filed on

behalf of Respondents-1 and 2, sworn by Sri G.K. Srivastava, Deputy

Commissioner (Stamp) Head Quarter Allahabad. It is not disputed that

petitioners are lessee of plot no.003 Block M, Sector 18, NOIDA, which

was allotted by NOIDA, vide allotment letter dated 12.4.2004. The

consideration of premium agreed between parties shown in lease deed

was Rs.1,73,00,97,733/- and the term of lease is 90 years from the date

of execution of lease, which was executed on 25.2.2005. Thus, the deed

in question is an “instrument” within Section 2 (14) of Act 1899, which

reads as under:-

“(14) “Instrument” includes every document by which any right

or liability is, or purports to be, created, transferred, limited,

extended, extinguished or recorded.” (emphasis added)

9.Instrument is a “lease” under Section 2(16) and it reads as under:-

“(16) “Lease” means a lease of immovable property, and includes

also-

(a) a patta;

(b) a kabuliyat or other undertaking in writing, not being a

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counterpart of a lease, to cultivate, occupy, or pay or

deliver 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.”

10.An Instrument of lease, therefore, is chargeable under Section

3(aa) of Act 1899. Section 3(aa) reads as under:-

“3(aa). Every instrument mentioned in Schedule I-A or I-B, which,

not having been previously executed by any person, was executed

in Uttar Pradesh:

(i)in the case of instruments mentioned in Schedule I-A,

on or after the date on which the U.P. Stamp (Amendment)

Act, 1948 came into force, and

(ii)in the case of instruments mentioned in Schedule I-B,

on or after the date on which the U.P. Stamp (Amendment)

Act, 1952 comes into force.”

11.Stamp Duty is payable at or at the time of execution of deed as

provided in Section 17 of Act 1889. The amount of stamp duty payable

under Article 35 (c) (ii) of Schedule 1-B of Act 1899, reads as under:-

Article 35. Lease (including an under

lease or sub-lease and any agreement

to let or sub-let)

(a) where by such lease the rent is

fixed and no premium is paid or

delivered-

(i) where the lease purports to be for a

term not exceeding one year;

(ii) where the lease purports to be for

a terms exceeding one year but not

exceeding five years.

The same duty as a Bond (No. 15) for

the whole amount payable or

delivered under such lease.

The same duty as Conveyance (No. 23

Cl. (a), for a consideration equal to

four times the amount or value of the

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(iii) where the lease purports to be for

a terms exceeding five years but not

exceeding ten years.

(iv) where the lease purports to be for

a term exceeding ten years but not

exceeding twenty years.

(v) where the lease purports to be for

a term exceeding twenty years but not

exceeding thirty years.

(vi) where the lease purports to be for

a term exceeding thirty years or in

perpetuity or does not purport to be

for any definite term.

(vii) …..

(viii) …..

(b) where the lease is granted for a

fine or premium or for money

advanced and where no rent is

reserved-

(i) where the lease purports to be for a

term not exceeding thirty years.

(ii) where the lease purports to be for

a term exceeding thirty years.

(c) where the lease is granted for a

fine or premium or for money

advanced in addition to rent reserved-

(i) where the lease purports to be for a

term not exceeding thirty years.

average annual rent reserved.

The same duty as Conveyance (No. 23

Cl. (a), for a consideration equal to

four times the amount or value of the

average annual rent reserved.

The same duty as Conveyance (No. 23

Cl. (a), for a consideration equal to

four times the amount or value of the

average annual rent reserved.

The same duty as Conveyance (No. 23

Cl. (a), for a consideration equal to

four times the amount or value of the

average annual rent reserved.

The same duty as Conveyance (No. 23

Cl. (a), for a consideration equal the

market value of property which is the

subject of the lease.

The same duty as Conveyance (No. 23

Cl. (a), for a consideration equal to the

amount or value of such fine or

premium or advance as set forth in the

lease.

The same duty as a Conveyance No.

23 cl. (a), for a consideration equal to

the market value of the property

which is subject of the lease.

The same duty as a Conveyance No.

23 cl. (a), for a consideration equal to

the amount or value of such fine or

premium or advance as set forth in the

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(ii) where the lease purports to be for

a terms exceeding thirty years.

lease, in addition to the duty which

would have been payable on such

lease, if no fine or premium or

advance had been paid or delivered:

Provided that in a case when an

agreement to lease is stamped with the

ad valorem stamp required for lease,

and a lease in pursuance of such

agreement is subsequently executed,

the duty on such lease shall not

exceed Fifty rupees.

The same duty as a Conveyance No.

23 cl. (a), for a consideration equal to

the market value of the property

which is subject of the lease.

12. Petitioners at no point of time, either before execution of deed or

after execution thereof, within reasonable time, approached Collector

(Stamp) seeking remission of duty in question by making application for

remission. In order to justify exemption, the instrument in question has

to satisfy the following conditions:-

I.The policy referred in the notification is the Industrial and

Service Sector Investment Policy 2004.

II.Exemption shall be granted only on the first instrument

executed for transfer for an immovable property in favour of

an enterpreneur.

III. The District Magistrate or General Manager, District

Industry Centre of the concerned district shall sign such

instrument as witness for the purpose of confirming the fact that

transfer is being executed under the said policy.

IV.The immovable property so transferred shall not be used for

the purpose other than the purpose prescribed in the policy.

13.Petitioners claim to fall under clause 8.2 (f) which restrict

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application of notification to transfer of immovable property for a

multiplex/shopping mall for which cost of construction and machinery is

not less than 10 crores. Duty is chargeable only on instrument and no

transaction. Therefore it was incumbent upon petitioners to mention in

the instrument specifically all those factors which affect chargeability of

stamp duty under At, 1899. Section 27 of Act 1899 requires disclosure of

all such facts and it reads as under:-

“27. Facts affecting duty to be set forth in instrument. —The

consideration (if any) and all other facts and circumstances

affecting the chargeability of any instrument with duty, or the

amount of the duty with which it its chargeable, shall be fully

and truly set forth therein.” (emphasis added)

14.In the case in hand, lease deed no where mention the relevant

facts, which may attract notification dated 19.1.2005 inasmuch as it has

no where mentioned that cost of constructions and machinery would be

10 crores and above. Similarly petitioners did not present instrument in

question either before District Magistrate or General Manager, District

Industrial Centre of Gautam Budh Nagar for authentication and

confirmation of facts that transfer under lease is covered by the

notification. In absence of compliance of all the conditions of

notification dated 19.1.2005, petitioners cannot claim exemption from

stamp duty and no remission is permissible. At no point of time,

petitioners made any application to District Magistrate intimating the

cost of construction for securing remission thereon. Notification dated

19.1.2005 has to be read with notification dated 10 July 2008, which has

made amendment with effect from 19.1.2005. In view of second proviso

to notification dated 19.1.2005 read with notification dated 10

th

July

2005, no refund is permissible.

15. Respondents 3 and 4 have also filed separate counter affidavits

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stating that petitioners never claimed exemption from stamp duty and

notification dated 10 July 2008 is within the power of State Government

to reduce, remit or compound duties under Section 9 of Act 1899.

16.In the supplementary rejoinder affidavit, petitioners have claimed

that notification dated 10

th

July 2008 is arbitrary and has been issued to

frustrate the claim of refund of petitioners.

17.Sri Navin Sinha, learned Senior Advocate assisted by Sri Shesh

Kumar, Advocate has appeared for petitioners and learned Standing

Counsel as well as Sri Ramendra Pratap Singh, Advocate for

respondents.

18.Sri Sinha, submitted that exemption could not be claimed by

petitioners at the time of execution of lease deed due to lack of

knowledge of Notification dated 19.01.2005 and for that reason

petitioners cannot be penalized. He submitted that as soon as petitioners

came to know about said mistake, they sent letters dated 19.04.2005 and

16.09.2005 (Annexures-4 and 5 to writ petition) and thereafter a legal

notice dated 19.12.2005. He contended that impugned notification dated

10.07.2008 issued with retrospective effect inserting second proviso, is

only to deny refund of stamp duty to petitioners and, therefore, is

arbitrary, discriminatory and violative of Article 14 of the Constitution of

India.

19.Learned counsel appearing for respondents collectively argued that

stamp duty was payable by petitioners and they did not satisfy the

conditions provided in Notification dated 19.01.2005 so as to entitle for

exemption from stamp duty. In any case Notification dated 10.07.2008

has inserted second proviso in Government Order dated 31.08.1998

w.e.f. 10.01.2005 while exemption was granted by Notification dated

19.01.2005 and hence in law second proviso was existing already on

statute book when exemption notification was issued and hence it cannot

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be said that it is discriminatory. Even otherwise, petitioners have no

otherwise legal right to claim refund. Lastly it is contended that with

regard to eligibility for exemption etc. the dispute raised by petitioners

involve investigation into facts and petitioners have a statutory remedy

before Collector, therefore, must avail the same and writ petition should

be dismissed.

20.We propose to first consider, whether petitioners are ex facie

entitled for exemption from payment of stamp duty and they were

covered by para 8.2(f) of notification dated 19.01.2005 for the reason

that question of refund will arise only if, this question is answered in

favour of petitioners and only then validity of notification dated

10.07.2008 will be necessary to be considered.

21.All the conveyance and instruments transferring immovable

property by way of lease in general have not been exempted from stamp

duty vide notification dated 19.01.2005. Instead para 8.2(f) is confined to

certain conditions if fulfilled only then one can claim exemption from

stamp duty under the said notification. These conditions are:

(i) Transfer of immovable property must be for development/

construction of medical and dental college or other educational

institutions, multiplexes, cinema halls, shopping malls and

entertainment centres.

(ii) The cost of construction and machinery must not be less than

Rs. 10 crores.

(iii)Such development/ construction must have such facilities

and which fulfill the conditions as provided in Government Order

dated 27.02.2004 and other orders issued from time to time.

(iv)The District Magistrate or General Manager, District

Industry Centre of concerned District must sign such instrument as

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witness for the purpose of confirming the fact that transfer is being

executed under above policy.

22.We do not find averments and relevant facts in writ petition that

these conditions were satisfied by petitioners so as to entitle them for

exemption of stamp duty. In fact Government Order dated 27.02.2004

has not even been placed on record by petitioners and there is no

averment whatsoever that the facilities and conditions provided therein

were satisfied.

23.Copy of Government Order dated 27.02.2004 has been placed on

record by Respondents-1 and 2 as Annexure-CA 3 to their counter

affidavit. The aforesaid Government order deals with steps taken to

encourage Service Sector in the State of U.P. under Industrial and

Service Sector Investment Policy, 2004 and it reads as under:

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24.Learned counsel for petitioners submitted that aforesaid

Government Order is not applicable since lease of immovable property

executed in favour of petitioners is not for establishment of medical and

other institution but for development of land by constructing shopping

malls, multiplexes, showrooms, retail outlets, hotels, restaurants, offices

and such other commercial usage. Even if it is accepted, still

Government Order dated 19.01.2005 will not be attracted unless

petitioners demonstrate that condition of cost of construction and

machinery is not less than Rs. 10 crores. On this aspect also we do not

find any averment and material in writ petition. The only averment

which could have been searched out is contained in para 8 and 22 of writ

petition, which read as under:

“8.That from the perusal of the said notification, it is clear that

17

the lease of immovable property relating to first transaction is

completely exempted from payment of stamp duty in full if cost of

construction is ten crores and above. In this regard it is submitted

that the petitioner has been allotted land in question for

construction of shopping malls and the cost of the said

construction would be much more than Rs. 10 crores, therefore,

the said notification (Annexure-2) is fully applicable in the facts

and circumstances of the present case and the transaction in

question was fully exempted from payment of an7 stamp duty.”

“22.That from the lease deed, copy of site plan and from the spot

is is clear that the land in question is being utilized for

construction of shopping malls and the cost of such construction

would not be less than Rs. 10 crores and the transaction in

question is also a first transaction of immovable property,

therefore, all the conditions of the notification are applicable to

the facts and circumstances of the present case and the petitioner

is lawfully entitled to get exemption from payment of stamp duty

and the stamp duty already realized from the petitioner is liable to

be refunded forthwith. A true copy of estimated cost is annexed

herewith as Annexure-8 to the writ petition.”

25.Paragraph 8 has been sworn on the basis of information received

from record but no such record is available or placed before this Court.

26.Even letters/ representations claim to have been submitted by

petitioners for refund of stamp duty after execution of lease deed,

nowhere states that petitioners satisfy the aforesaid conditions and actual

cost of construction and machinery etc. is more than Rs. 10 crores. Copy

of said representations is Annexures-4 and 6 to writ petition.

27.Annexure-4 is a letter addressed to Chief Executive Officer,

NOIDA and Annexure-6 is a letter sent to District Magistrate/ Collector,

18

Gautambudh Nagar. Nothing has been said in the letter sent to Chief

Executive Officer, NOIDA. Letter sent to District Magistrate/ Collector,

Gautambudh Nagar also states nothing on this aspect. There is no

averment whatsoever that aforesaid conditions are satisfied by

petitioners.

28.Learned counsel for petitioners drew out attention to Annexure-8

and averments made in para 22 of writ petition and contended that

project's estimated cost is more than Rs. 313 Crores which apparently

satisfy the requirement of Government Notification dated 19.01.2005.

29.We have gone through Annexure-8 to the writ petition and find

that it does not contain any date and we do not know as to at what stage

it was prepared. Moreover, for the purpose of attracting notification

dated 19.01.2005 it is not the cost of project but the cost of construction

and machinery only which is to be taken into account and question as to

what would be included by the term “cost of construction” and

“machinery”, is a question of fact need to be examined appropriately at

appropriate forum. This claim was never made by petitioners before

respondents-authorities and from the estimated cost of project, it cannot

be said as to what items have to be taken for attracting notification dated

19.01.2005. We, therefore, hold that petitioners have failed to show that

they satisfy the conditions precedent for attracting Government

Notification dated 19.01.2005 and, therefore, not entitled for exemption.

30.There is one more condition provided in Government Notification

dated 19.01.2005 that instrument is the first one executed for transfer of

immovable property in favour of an interprenure and secondly that

District Magistrate or General Manager, District Industry Centre

(hereinafter referred to as “GM, DIC”) of concerned district shall sign

such instrument as a witness for the purpose of confirming the fact that

transfer is being executed under the said policy. It appears that

19

petitioners were satisfied that they do not satisfy the aforesaid conditions

and, therefore, lease deed executed by petitioners is not witnessed either

by District Magistrate or GM, DIC, as contemplated in Government

Notification dated 19.01.2005. The two witnesses to the deed are,

Subhash Chaudhary and Jasmir Singh. It is not disputed before us that

none of them held the office of District Magistrate or GM, DIC at the

time of execution of lease deed in District Gautambudh Nagar.

Therefore, even this condition remained uncomplied with. Learned

counsel for petitioners has not addressed us on the question that

aforesaid condition of witnessing the document by District Magistrate or

GM, DIC is not a necessary condition for attracting Government

Notification dated 19.01.2005.

31.In the alternative, even if we accept the contention of petitioners

counsel that Annexure-8 to writ petition read with para 22, the entire cost

of project will constitute sufficient satisfaction of requirement of Rs. 10

crores cost of construction and machinery contemplated in notification

dated 19.01.2005, we proceed now to consider whether petitioners can

claim refund despite an otherwise provision made by Government

Notification dated 10.07.2008.

32.It is not in dispute that when an instrument/ conveyance is

executed, it attract stamp duty chargeable under Section 3(aa) read with

(in the present case) Schedule I-B of Act, 1899. The document in

question, therefore, was chargeable with stamp duty.

33. Section 3, however, states that subject to provisions of Act, 1899

and the exemptions contained in Schedule I, the document shall be

chargeable with duty of the amount indicated in Schedule. Section 9

confers power upon Government, by rule or order published in official

gazette, to reduce, remit or compound duty prospectively or

retrospectively and it reads as under:

20

9. Power to reduce, remit or compound duties.--

(1) The Government

may, by rule or order published in the Official Gazette,—

(a) reduce or remit, whether prospectively or retrospectively, in the whole

or any part of the territories under its administration, the duties with

which any instruments or any particular class of instruments, or any of the

instruments belonging to such class, or any instruments when executed by

or in favour of any particular class of persons or by or in favour of any

members of such class, are chargeable, and

(b) provide for the composition or consolidation of duties of policies of

insurance and in the case of issues by any incorporated company or other

body corporate or of transfers (where there is a single transferee, whether

incorporated or not) of debentures, bonds or other marketable securities.

(2) In this section, the expression “the Government” means,—

(a) in relation to stamp-duty in respect of bills of exchange, cheques,

promissory notes, bills of lading, letters of credit, policies of insurance,

transfer of shares, debentures, proxies and receipts, and in relation to any

other stamp-duty chargeable under this Act and falling within entry 96 of

List I in the Seventh Schedule to the Constitution, except the subject

matters referred to in clause (b) of sub-section (1);

(b) save as aforesaid, the State Government.

34.Section 27 provides that consideration, if any, and all other facts

and circumstances affecting chargeability of any instrument with duty or

the amount of duty of which it is chargeable, shall be fully and truly set

forth in the instrument. It is not disputed that in the entire instrument i.e.

lease deed, there is no assertion of facts which may affect chargeability

of duty so as to claim exemption or reduction or remission in the amount

of stamp duty.

21

35.Further, the power has been conferred upon Government to

reduce, remit or compound duties, which has also been conferred power

to do so retrospectively. Notification dated 10.07.2008 has been issued in

exercise of power under Section 9(1) of Act, 1899 making amendment in

Government Notification dated 31.08.1998 w.e.f. 10.01.2005. It

categorically states that amount of duty already paid shall not be

refunded. The first proviso which has been inserted by notification dated

10.07.2008 shows that if lease deed was executed in reference to

Industrial and Service Sector Investment Policy, 2004 and District

Magistrate or GM, DIC have not signed the instrument as witness,

subsequently on an application given by party such a certificate can be

issued by District Magistrate or GM, DIC which will have the same

effect as if the document was signed and witnessed by District

Magistrate or GM, DIC but this validation by way of second proviso will

not result in refund of any amount of stamp duty. The power to issue

notification under Section 9 with retrospective effect has been validly

conferred and it could not be said that notification second proviso is ultra

vires. In both the provisos which has been inserted are integrally

connected and a lapse which earlier has occurred in lease deeds in order

to grant other benefits under industrial policy etc., a method has been

provided to do away such flaw but with a condition that amount already

paid shall not be refunded. Second proviso is integrally connected with

first proviso inasmuch as first proviso applies to the case where its

compliance was not earlier done, hence duty exemption could not have

been claimed. In order to protect the entrepreneur from other benefits he

has been allowed to get such mistake rectified but with condition that no

refund of amount already paid shall be made. Therefore, both provisos

have to stay either together or not and it cannot be said that first proviso

should stay but second proviso must go. When a benefit under such

document is claimed, one has to claim as it is in its entirety and not

22

partially.

36.Learned counsel for petitioners contended that denial of refund is

illegal but could not dispute that in absence of first proviso, petitioners

were not entitled to seek any exemption of stamp duty under Notification

dated 19.01.2005. Moreover, exemption has been granted by Notification

dated 19.01.2005 which is effective from the date of notification

published in official gazette while amendment in Government

Notification dated 31.08.1998 has been made by Government

Notification dated 10.07.2008 w.e.f. 10.01.2005, meaning thereby when

exemption Notification dated 19.01.2005 came into force, second

proviso denying refund was already existing on the statute book since

10.01.2005. Hence, it cannot be said that something has been done only

to deny benefit to petitioners. Therefore, the contention that refund has

been denied to petitioners only by singling out them and it is

discriminatory, is not acceptable.

37.No other point has been argued.

38.The writ petition lacks merit. Dismissed accordingly.

Order Date :- 22.11.2019

Arshad/AK