Allahabad High Court
M/S Kingswood Hotel Pvt. Ltd. And ... vs State Of U.P. And 2 Others on 9 December, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. - 2024:AHC:192062 RESERVED Court No. - 02 Case :- WRIT - C No. - 28403 of 2024 Petitioner :- M/S Kingswood Hotel Pvt. Ltd. And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shiv Sagar Singh Counsel for Respondent :- C.S.C. HON'BLE PIYUSH AGRAWAL,J.
1. Heard Shri Tarun Agrawal, along with Shri Shiv Sagar Singh, learned counsel for the petitioners and Shri Rishi Kumar, learned ACSC for the State - respondents.
2. The instant writ petition has been filed for issuing mandamus directing the respondent no. 2 to register the correction deed dated 15.07.2015 in the name of the petitioner no. 1 as per the provision of Article 34-A of Schedule 1-B of the Indian Stamp Act. The petitioners have further prayed for a direction upon the respondents to ensure registration of the correction deed without any further delay.
3. Learned counsel for the petitioner submits that on 01.03.2010, the New Okhla Industrial Development Authority (hereinafter referred to as, 'the Noida') came out with a Scheme for commercial plots for builders/developers in Noida.
4. He further submits that the scheme, which opened on 01.03.2010, specifically contemplates a condition in paragraph nos. 8(a), 8(d) & 8(e) providing that in case the land is allotted, then special purpose company shall be formed, which shall carry out all their responsibility as allottee and the execution of the lease deed will be made in favour of the special purpose company, which should be a registered firm or an incorporated company.
5. The petitioner no. 1, being consortium lead Member having shareholding of 90% and other Members, participated in the said Scheme vide application dated 20.03.2010. Thereafter, vide letter dated 26.03.2010, the petitioner was allotted the plot in question. After depositing the requisite amount of 10%, the petitioner approached the Noida to execute the lease deed as per the terms of the Scheme. Thereafter, on 31.03.2010, the lease deed was executed. Vide letter dated 10.10.2011, the petitioner informed the Noida to an error on their part in execution of the lease deed dated 31.03.2010.
6. He further submits that in absence of lease deed having been registered in favour of the petitioner (special purpose company), the land could not be used for the required purpose. Further, the petitioner would not be able to commence its project as none of the bankers and financial institutions were willing to extend any credit facility to the petitioners. After great persuasion and various correspondence took place between the petitioners and the Noida, after a lapse of five years & 4 months, the Noida realized its mistake and agreed to enter into a correction deed and admitted the same as an inadvertent mistake on the part of Noida and executed the correction deed dated 15.07.2015.
7. He further submits that thereafter, the petitioners presented the correction deed to be registered as per the provisions of Article 34-A of Scheduled 1-B of the Stamp Act. The respondent, vide letter dated 21.07.2016, informed the petitioners that the correction deed is to be executed with full stamp duty. Thereafter, vide order dated 25.11.2020, the Noida cancelled the allotment of the plot in question and proceeded to take possession vide letter dated 27.11.2020, against which the petitioner preferred Writ C No. 2219/2021, in which vide interim order dated 18.02.2021, this Court has directed the Noida not to create any third party interest, which is still operating.
8. Learned counsel for the petitioner further submits that due to non-registration of the name of the petitioner as SPC in the records of the Registrar, the petitioner is not able to enjoy and use the plot in question for the past 14 years, even after deposit of a substantial amount towards the total premium and paying the stamp duty. He further submits that the correction deed was executed purely on account of clerical error, inadvertent mistake, accidental slip on the part of the Noida, which is duly admitted by it, but the respondents (stamp authorities) are not willing to admit the same and is treating the correction deed as a separate instrument for the purpose of stamp duty contrary to the provisions of Article 34-A of Schedule 1-B of the Stamp Act. He further submits that the Noida being a State under Article 12 of the Constitution, executed the correction deed admitting that it was an inadvertent mistake, accidental slip at its end; whereas, the Office of the Commissioner, Stamp & Registration is taking a different view treating as if it was not a clerical mistake and imposed the stamp duty on the petitioner as per Article 23 of Schedule 1-B of the Stamp Act, instead of Article 34-A of Schedule 1-B of the Act.
9. In support of his submissions, Shri Agrawal has placed reliance on the judgements of the Apex Court in Central Warehousing Corporation Vs. Adani Ports & Special Economic Zone Limited & Others [(2022) 15 SCC 110], Jayalakshmi COELHO Vs. Oswald Joseph COELHO [(2001) 4 SCC 181], Srihari (Dead) through L.R. Ch. Niveditha Reddy Vs. Syed Maqdoom Shah & Others [(2015) 1 SCC 607] and Kishore Singh Ravinder Dev & Others Vs. State of Rajastahn [(1981) 1 SCC 503].
10. Per contra, learned ACSC submits that the correction deed is a fresh transfer deed under the provisions of section 2(10) of the Indian Stamp Act. The instrument executed by the parties on 15.07.2015 named 'correction deed', by which immovable property transferred by one legal personality to an other legal personality and therefore, the instrument in question is chargeable with proper stamp duty as per Articles 23 & 35 of Schedule 1-B of the Stamp Act on the date of its execution. He further submits that on perusal of the letter dated 04.08.2015, it is clear that the inadvertent mistake was on the part of the petitioner in the execution of the lease deed dated 31.03.2010.
11. After hearing learned counsel for the parties, the Court has perused the record.
12. The record reveals that a scheme dated 01.03.2010 was floated by the Noida for allotment of commercial plots to builders/developers, in which clauses 8(a), 8(d) & 8(e) read as under:-
8. In case if bidders have formed a consortium:
a) Members of consortium will have to specify one Lead Member who alone shall be authorized to correspond with authority. Lead Member should be the single largest share holder having at lease 26% share in the consortium. The shareholding of the Lead Member in the consortium shall remain at least 26% till the temporary occupancy/completion certificate of at least one phase of the project is obtained from the Noida. Each member of the consortium with equity stake of at least 10% will be considered as "Relevant Member". The Lead Member of the consortium must necessarily be Firm/Company registered in India with the appropriate statutory authority.
b) ....
c) ....
d) The members shall submit a registered/notarized Memorandum of Agreement (MOA) conveying their intent to jointly apply for the scheme, and in case the plot is allotted to them to form a 'Special Purpose Company', hereinafter called SPS, that will subsequently carry out all their responsibilities as the allottee (s). The registered MOA must specify the equity shareholding of each member of consortium in the proposed SPC. The SPC must necessarily be a company registered in India with the appropriate statutory Authority.
e) Execution of the lease deed will be made in favour of either relevant members or special purpose company (SPC), which should be a registered firm or an incorporated company. However, the area of each of such sub-divided plots purposed for execution if lease deed, as described above, should not be less than 20,000 sq. mtr. and the said sub-division should be in accordance with the planning norms of NOIDA. The lead member of the consortium shall have to retain at least 26% of the shareholding as per MOA, till the temporary occupancy/completion certificate at least one phase of the project is obtained from the NOIDA.
13. The said clauses contemplate that if the land is allotted, then a special purpose company is to be incorporated and the lease deed must be in its favour to carry out development work. In the event the lease deed is not executed in the name of special purpose company, the project cannot be commenced.
14. Admittedly, the land was allotted to the petitioner no. 2 and the lease deed was executed on 31.03.2010, but due to inadvertent mistake on the part of the Noida, the lease deed was not executed in the name of special purpose company, i.e., the petitioner no. 1. The said fact was pointed out to the Noida, but at the first instance, it was not accepted, to which various correspondence were made as annexed along with the writ petition. The Noida realized its mistake and executed a correction deed on 15.07.2015. According to the correction deed, it clarifies its mistake and incorporates/corrects the name of the of M/s Kingswood Hotels Private Limited (SPC of M/s Madhvilata Granite Indian Limited consortium). The other terms & conditions, including the original tenure, remained unchanged.
15. The record further shows that the correction deed did not affect, alter, amend or modify any of the terms contained in the lease deed dated 31.03.2010. The Noida corresponded with the stamp authority for registration of the correction deed. By letter dated 30.05.2016 (Annexure No. 8), the stamp authority refused to treat the correction deed as an instrument referred to Article 34-A of Schedule 1-B of the Stamp Act. The record further shows that the Noida, by executing a correction deed dated 15.07.2015, admits its mistake. Once the State Government, i.e., Noida, admits its mistake and executed the correction deed correcting the name of the petitioner no. 1 as a special purpose company, the respondents (stamp authorities) have no good reason for imposing stamp duty again by giving a nomenclature of a transfer deed.
16. Under the Stamp Act, lease and conveyance are separately and independently defined in sections 2(10) & 2(16) of the said Act. The record shows that no where the lessor has ever stated that the instrument dated 31.03.2010 or correction deed dated 15.07.2015 is a conveyance and not a lease. The lessor continues to be the owner of the property under the lease deed dated 31.03.2010 and correction deed dated 15.07.2015. The petitioner has no right to enjoy and use the property in question in absence of registration of correction deed and possession.
17. The Division Bench of this Court in State of U.P. Vs. M/s SJP Infracon Limited & Another [Special Appeal Defective No. 27 of 2021, decided on 25.06.2021] has held as under:-
5. Sri Sanjay Goswami, appearing on behalf of the State (appellant), submitted that the Stamp Act is a taxing statute. Being a taxing statute, equitable considerations are relegated to the background. What is to be considered is whether the stamp duty imposed on the instrument is valid. If so, whether, under the provisions of the Stamp Act, there could be a refund of stamp duty to the first respondent. According to him, by Section 3 of the Stamp Act stamp duty is chargeable on the instrument at the rate specified in the Schedule. In the State of Uttar Pradesh, vide section 3 (aa) of the Stamp Act, on an instrument of lease, stamp duty chargeable is as specified in Article 35 of Schedule 1-B. Article 35 (b) of Schedule I-B of the Stamp Act becomes applicable where the lease is granted for a fine or premium or for money advanced and where no rent is reserved; and Article 35 (c) of Schedule I-B becomes applicable where the lease is granted for a fine or premium or for money advanced in addition to rent reserved. On instruments contemplated under Article 35 (b) or Article 35 (c) of Schedule 1-B, the stamp duty is payable as on a deed of conveyance under Article 23 (a) of Schedule 1-B either on the premium set forth in the lease or on the market value of the subject of the lease. The original lease instrument dated 15.11.2010 between GNIDA and the first respondent specified the premium as Rs.228,94,57,090/- and stamp duty was paid accordingly. The rectification deed dated 07.02.2013 between GNIDA and the first respondent though reduces the area leased out from 198135.62 square meter to 126302 square meter but does not amend the premium set forth in the original lease instrument. Thus, no excess stamp duty has been paid. Otherwise also, there is no challenge by the writ petitioner (first respondent herein) as to the correctness of the stamp duty charged on the instrument of lease dated 15.11.2010 or the deed of rectification dated 07.02.2013. Under these circumstances, the claim for refund of excess stamp duty paid is misconceived. In so far as the claim for allowances in respect of alleged spoiled stamps is concerned, the same is not maintainable because the provisions relating to such allowances are not attracted. According to him, the provisions of Section 49 (d) (1) & (2) of the Stamp Act are not applicable as the instrument of lease is not completely void from the beginning nor it has been rendered unfit for the purpose originally intended as the demise made by it continues to operate albeit for a reduced area. He submitted that the Apex Court's judgment in Libra Buildtech case (supra) is not applicable on the facts of this case as that was a case where the instrument chargeable to stamp duty was executed under orders of the court and it was cancelled by order of the court. Thus, there the instrument was rendered unfit for the purpose originally intended. Whereas here the instrument of lease remains operable. He submitted that even if it is assumed that the Principal Secretary had no power to review, the earlier order passed by the Joint Secretary was ex facie illegal and, therefore, the writ court ought not to have issued a direction to enforce the order which had no sanctity in law. He, thus, prayed that the judgment and order of the learned Single Judge being not legally sustainable be set aside. In the alternative, it was urged by him that if the petitioner had suffered any loss on account of the conduct of GNIDA it could proceed against it, as per law, but claim for refund against the State is not sustainable.
6. In support of his submissions, Sri Goswami cited following authorities:
(i) (2009) 13 SCC 301 : S N Mathur Vs. Board of Revenue and others -- In this decision, the apex court with respect to the scheme of the Stamp Act observed as follows: (a) that the object of the Stamp Act is generation of revenue, it is therefore a fiscal enactment and has to be interpreted accordingly; (b) that stamp duty is levied with reference to the instrument and not in regard to the transaction, unless otherwise specifically provided in the Act; (c) that stamp duty is determined with reference to the substance of the transaction as embodied in the instrument and not with reference to the title, caption or nomenclature of the instrument; (d) that for classification of an instrument, that is to determine whether an instrument comes within a particular description in an article in the Schedule to the Act, the instrument should be read and construed as whole; (e) where an instrument falls under two or more descriptions in the Schedule to the Act, instrument shall be chargeable with only one duty, that is the highest of the duties applicable to different description. But where an instrument relates to several distinct matters, it shall be chargeable with the aggregate amount of duties to which separate instruments would be chargeable.
(ii) AIR 1959 Allahabad 583 (SB): Mohd. Mustafa Ali Khan Vs. Raj Rajeshwari Devi -- In this decision, a Special Bench of this Court, comprising three judges, inter alia, reiterated the legal principle that the stamp duty payable upon an instrument must be determined by referring to the terms of the instrument, and that the Court is not entitled to take into consideration evidence de hors the instrument itself.
(iii) AIR 1961 Supreme Court 1047, Commissioner of Sales Tax, U.P. Vs. Modi Sugar Mills Limited. -- In this case a Constitution Bench of the Apex Court, comprising five judges, inter alia, held that: in interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency.
(iv) (2011) 7 SCC 493 : ITC LTD. Vs. State of U.P. and others. -- In this case, the Apex Court upon finding that NOIDA had charged less towards premium for lease, to save the demise, even after execution and registration of the lease instrument, gave opportunity to the allottee (lessee) to make good the deficiency within a specified period. In the alternative, it was directed that if the allottee was not interested in retaining the lease by making good the deficient amount, it was entitled to receive back the money already paid by it, including stamp duty paid on the instrument of lease, from NOIDA. This decision has been cited to demonstrate that the court had not fastened liability on the State, but on NOIDA, to refund the stamp duty.
9. Before we dwell on the issues framed by us, it would be apposite to examine the nature of the Stamp Act and the rules of interpretation that would apply to have a clear understanding of its provisions. With regard to the nature of the Stamp Act, there is no shadow of doubt that it is a fiscal / taxing statute framed under Entry 44 of List III (Concurrent List) of the Seventh Schedule of the Constitution of India {vide S.N. Mathur versus Board of Revenue & others, (supra)}. Stamp Duty is nothing but a form of tax, the object of which is to generate revenue. In Government of Andhra Pradesh & Others versus P. Laxmi Devi (Smt)., (2008) 4 SCC 720, the Apex Court in paragraph 19 of its judgment observed: "It is well settled that stamp duty is a tax, and hardship is not relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide CIT v. V.M R P Firm Muar , AIR 1965 SC 1216. If the words used in a taxing statute are clear, one cannot try to find out the intention and the object of the statute. Hence, the High Court fell in error in trying to go by the supposed object and intendment of the Stamp Act, and by seeking to find out the hardship which will be caused to a party by the impugned amendment of 1998."
10. When a statute levies a tax it does so by inserting a charging section by which liability is created or fixed and then proceeds to provide the machinery to make liability effective. It, therefore, provides the machinery for assessment of the liability already fixed by the charging section, and then provides the mode for the recovery and collection of tax, including penal provisions meant to deal with defaulters. The components which enter into the concept of a tax are: (1) the character of the imposition known by its nature which prescribes the taxable event attracting the levy; (2) a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax; (3) the rate at which the tax is imposed; ((4) the measure or value to which the rate will be applied for computing the tax liability (vide Govind Saran Ganga Saran V. CST, 1985 Supp SCC 205, para 6). In the context of the Stamp Act (vide charging Section 3), the taxable event is the execution of an instrument specified in the Schedules. Stamp duty is levied with reference to the instrument and not the transaction, unless otherwise specifically provided. The stamp duty is levied at the rate specified in the Schedules and the person who is liable to pay the stamp duty is specified in Section 29 of the Stamp Act.
12. From the law noticed above, the legal position that emerges is as follows: (i) Stamp Act is a taxing statute; (ii) in construing taxing statutes equity and hardship are not relevant, one has to strictly look at the words/ language used and there is no room for searching intendment or of drawing any presumption while construing the provisions of a taxing statute; (iii) in case of ambiguity in charging provisions, the benefit must necessarily go in favour of subject / assessee, but in case of ambiguity in an exemption provision, the benefit of ambiguity must be strictly interpreted in favour of the Revenue/ State. However, if, by a strict construction of the exemption clause, the ambiguity is resolved and the subject falls within the exemption clause then to give full play to the exemption clause a liberal construction may be made.
15. A plain reading of the extracted charging provision would reflect that the stamp duty is payable as per the value of the premium or advance set forth in the lease instrument. There is no dispute inter se parties that the stamp duty paid on the lease instrument is as per the value of the premium set forth in the lease instrument. Importantly, the correction deed, dated 7th February 2013, which has been brought on record as Annexure 5 to the writ petition, though reduces the area of land leased out, also does not make any indication with regard to reduction of the premium payable. Rather, at page 179 of the paper-book of the appeal, the correction deed, after making a declaration with regard to reduction in the area of land leased out, declares that "except as hereinafter varied/ modified the original lease deed dated 15.11.2010 which was duly registered in the office of Sub-Registrar Gautam Budh Nagar registered on 16.11.2010 Bahi No.1, Gild No.7558 Page No.77 to 110 on Sl No.23383 shall continue to have full force and effect. Plot number, location and boundaries are same. Consequently credibility of stamp duty is remains unaffected." Once this is the position, the submission of Sri Goswami that the stamp duty paid on the lease instrument read with the deed of correction was as per the provisions of the Stamp Act, and it was not over paid, appears correct, particularly, when, according to the charging provision, stamp duty is payable on value of premium set forth in the lease instrument. Under these circumstances, even if by a subsequent letter GNIDA had reduced the premium, as is the case of the first respondent, there would be no impact on the stamp duty leviable as that would be on the premium set forth in the lease instrument, which remained unchanged. It is thus held that the stamp duty paid by the writ petitioner was not in excess than what was payable on the lease instrument as per the charging section. That takes us to issue no.(ii) formulated above.
16. While addressing issue no. (ii), we have to determine whether in view of reduction of the demised area and the developments that took place after execution of the lease instrument, by virtue of the provisions of the Stamp Act contained in Section 49 (d) (1) (2) and (5), the first respondent is entitled to refund of the stamp duty which it had paid for lease of that portion of the land which it had to surrender. As we have already noticed that in a taxing statute equity has no place, the Court has to find out whether upon construction of the provisions of the Stamp Act a case for making allowance for impressed stamps spoiled in making the lease instrument of that excess area is made out or not.
18. Further, the Division Bench of this Court in M/s Logix Infomedia (P) Ltd. Vs. State of U.P. & Others [Writ C No. 18969/2021, decided on 01.09.2021] has held as under:-
8. Countering this, the learned counsel for the petitioner has urged that in the impugned notice, dated 27.5.2021, given by the respondent-Authority, the time period of one year has been counted from 28.7.2020, that is from the date on which the U.P. Act No. 25 of 2020 came into force. It is contended that that action of the NOIDA Authority is patently arbitrary and is in the teeth of the second part of the proviso to Section 7 of the 1976 Act. He contends that the second part of the proviso to Section 7 clearly provides that where the period provided in first part for utilization of the land has already lapsed before the commencement of the amending Act, the Authority is to give a notice to the allottee to use the land for the purpose it was allotted within a period of one year and if within the above period of one year the allottee does not use the land, it is then that the allotment and lease deed would stand automatically cancelled. In support of the above contention, the petitioner has relied upon a judgement of this Court dated 2.2.2021 passed in Writ-C No. 2238 of 2021 (M/s. J.M. Housing Limited Vs. State of U.P. and others), copy of which has been enclosed as Annexure- 37 to this petition.
10. Dealing with the second submission of the learned counsel for the petitioner first, which is based on the so-called supplementary lease deed dated 7.1.2013, it is observed that it is not a supplementary lease deed but a correction deed that corrects the area of the plot mentioned in the original lease deed so as to be read as 8100 sq. meters in place of 5184 sq. meters. Similarly, it incorporates necessary corrections regarding the premium, lease rent, etc.. In this correction deed of 7.1.2013 it is specifically mentioned that all other terms and conditions of the original lease deed and allotment letter shall remain unchanged and applicable as well as binding upon the lessee. Therefore, no further benefit in respect of extension of time can enure to the petitioner on the basis of the deed executed on 7.1.2013.
11. As regards the first submission of the learned counsel for the petitioner regarding the impugned notice/order dated 27.5.2021 being arbitrary and in the teeth of the true import of the second part of the proviso to Section 7 of the 1976 Act, on perusal of the record and consideration of the submissions of the respective parties, it appears to us that this contention of the learned counsel for the petitioner has force. It be noticed that to Section 7 of the 1976 Act a proviso was inserted by U.P. Act No. 25 of 2020. The published Statement of Objects and Reasons of U.P. Act No.25 of 2020 is extracted below:
"The Uttar Pradesh Industrial Area Development Act, 1976 (U.P. Act No.6 of 1976) has been enacted to provide for the constitution of an Authority for the development of certain areas in the State into industrial and urban township and for the matters connected therewith. In order to accelerate industrialisation in the State, it was felt necessary to increase the land bank. Hence it was decided that if the industrial unit is not established within a period of five years from the date of possession, or within the period fixed for such utilisation, whichever is longer, the lease deed will stand automatically canceled and the land shall vest with the Industrial Development Authority. Where the aforesaid period has lapsed before the commencement of this Act, the Authority shall give notice to the allottee and if the allottee does not use the land within the period of one year mentioned above, the allotment and lease deed shall be deemed to have been automatically cancelled. In view of the above, it had been decided to amend aforesaid Act.
Since the State legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision, the Uttar Pradesh Industrial Area Development (Amendment) Ordinance, 2020 ( U.P. Ordinance No.16 of 2020) was promulgated by the Governor on July 28, 2020.
The Bill is introduced to replace the aforesaid Ordinance."
12. The amended Section 7 of 1976 Act, after insertion of the proviso by U.P. Act No.25 of 2020, reads as follows:
"7. Power to the Authority in respect of transfer of land. - The Authority may sell, lease or otherwise transfer whether by auction, allotment or otherwise any land or building belonging to the Authority in the industrial development area, on such terms and conditions as it may, subject to any rules that may be made under this Act, think fit to impose.
Provided that where any land so allotted is not utilised for the purpose for which it was allotted within the period of five years from the date of possession or within the period fixed for such utilisation in the conditions of allotment, whichever is longer, the lease deed will stand cancelled and the land shall vest with the Authority. Provided further where the aforesaid period has already lapsed before the commencement of this Act, the Authority shall give a notice to the allottee to use the land for the purpose for which it was allotted within a period of one year and if within the above period of one year the allottee does not use the land, then the allotment and lease deed shall stand automatically cancelled.".
13. A coordinate Bench of this Court in its judgment dated 2.2.2021 in M/s. J.M. Housing Limited (supra) has observed as follows:
"5. The 1st part of the proviso provides that where any land so allotted is not utilized for the purpose for which it was allotted within a period of 5 years from the date of possession or within the period fixed for such utilization in the conditions of allotment, whichever is longer, the lease deed will stand cancelled and the land shall vest with the Authority. The 2nd part of the proviso provides that where the aforesaid period has already lapsed i.e. where the allotted land is not utilized within 5 years from the date of possession or within the specified period in the terms of allotment and the said period has expired before the commencement of the Amending Act, the authority is obliged to give a notice to use the land for the purpose for which it was allotted within a period of one year and if within the above period of one year the allottee does not use the land, then the allotment and lease deed shall stand automatically cancelled.
6. Thus, the condition precedent for applicability of the 2nd part of the proviso is that the period for utilization should have expired before the commencement of the Amending Act i.e. 28.7.2020 and the Authority before cancelling the allotment / lease had given a notice to the allottee to utilize the land within a year. Sri Singh, on instructions, does not dispute that no notice as contemplated in the 2nd part of the proviso to Section 7 of the Act was ever issued to the petitioner which is also authenticated in the impugned order as the same does not refer to issuance of any such notice, rendering the order dated 7.1.2021 vulnerable in law."
14. The inter play of the two parts of the proviso inserted to Section 7 of the 1976 Act by the amending Act (U.P. Act No.25 of 2020), as interpreted by a coordinate Bench of this Court (noticed above), is in sync with the statement of objects and reasons of the amending Act and, therefore, we are in respectful agreement with the view taken therein. To put it simply, under the first part of the proviso the lease deed stands cancelled where the land allotted is not utilized for the purpose for which it was allotted within the period of five years from the date of possession or within the period fixed for such utilisation in the conditions of allotment, whichever is longer. But where that period has expired before the commencement of the amending Act, that is before 28.07.2020, the second part of the proviso comes into play. Under which, the Authority is to give a notice to the allottee to use the land for the purpose for which it was allotted within a period of one year and if within the above period of one year the allottee does not use the land, then the allotment and lease deed stand automatically cancelled.
19. Similar view has been taken by the Apex Court in Srihari (Dead) Vs. Syed Maqdoom Shah & Others [(2015) 1 SCC 607] and Jayalakshmi Coelho Vs. Oswald Joseph Coelho [(2001) 4 SCC 181].
20. The registration of the correction deed was compulsory as per section 17 of the Registration Act, 1908 and the property in question could not be used and enjoyed by the petitioner on account of the inadvertent mistake on the part of the Noida in the first place and takes on account of non-registration of the correction deed are undisputable.
21. Further, a mistake is apparent on the face of record as it is a purely clerical error in the instrument. Since inadvertent mistake has been committed by the Noida, the same can be rectified in view of the judgement of the Apex Court in Smt. Sooraj Devi Vs. Pyare Lal & Another [(1981) 1 SCC 500].
22. In Smt. Sooraj Devi Vs. Pyare Lal & Another [(1981) 1 SCC 500], the Apex Court has held as under:-
"4. The sole question before us is whether the High Court was right in refusing to entertain Criminal Miscellaneous Application No. 5127 of 1978 on the ground that it had no power to review its order dated Ist September, 1970. Section 362 of the Code of Criminal Procedure declares : "Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error". It is apparent that what the appellant seeks by the application is not the correction of a clerical or arithmetical error. What she desires is a declaration that the High Court order dated Ist September, 1970 does not affect her rights in the house property and that the direction to restore possession to Pyare Lal is confined to that portion only of the house property respecting which the offence of trespass was committed so that she is not evicted from the portion in her possession. The appellant, in fact, asks for an adjudication that the right to possession alleged by her remains unaffected by the order dated Ist September, 1970. Pyare Lal disputes that the order is not binding on her and that she is entitled to the right in the property claimed by her. Having considered the matter, we are not satisfied that the controversy can be brought within the description "clerical or arithmetical error". A clerical or arithmetical error is an error occasioned by an accidental slip or omission of the court. It represents that which the court never intended to say. It is an error apparent on the face of the record and does not depend for its discovery on argument or disputation. An arithmetical error is a mistake of calculation, and a clerical error is a mistake in writing or typing. Master Construction Co. (P) Ltd. v. State of Orissa and Another."
23. Record further shows that an unintentional mistake of Noida, which occurred due to accidental slip, can be rectified. The Noida, at the first instance, executed the lease deed not in favour of the Special Purpose Company, i.e., the petitioner no. 1, but in favour of the petitioner no. 2, and realizing the said mistake, which crept up due to accidental slip, has now corrected its mistake by way of executing a correction deed dated 15.07.2015.
24. The Apex Court in the case of Jayalakshmi Coelho Vs. Oswald Joseph Coelho [(2001) 4 SCC 181] has held as under:-
"14. As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under Section 152 C.P.C. may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits some thing which was intended to be otherwise that is to say while passing the decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed.. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Courts inherent powers as contained under Section 152 C.P.C. It is to be confined to something initially intended but left out or added against such intention.
15. So far the legal proposition relied upon by the learned Single Judge and the Honble Division Bench deciding the matter in its LPA jurisdiction, we are totally in agreement with the same i.e. an unintentional mistake which occurred due to accidental slip has to be rectified. The question however which requires consideration is as to whether on the facts of the present case and the principles indicated above, it could be said that there was any clerical or arithmetical error or accidental slip on the part of the Court or not."
25. The case in hand is a clear example of an accidental omission, which crept up on account of Noida, which has been rectified by executing the correction deed 15.07.2015. The brochure of the Noida clearly provides that after allotment of land, the lease is to be executed in favour of the Special Purpose Company. In the case in hand, the petitioner no. 1 is undoubtedly a Special Purpose Company incorporated after allotment of plot, to which a land was allotted and therefore, the lease deed was required to be registered in the name of the petitioner no. 1. Therefore, the correction has rightly been made by executing the correction deed dated 15.07.2015 in favour of petitioner no. 1. The correction also includes clerical, arithmetical or accidental omission.
26. The Apex Court in the case of Srihari (Dead) Vs. Syed Maqdoom Shah & Others [(2015) SCC 607] has held as under:-
"14. Now we have to examine whether by the impugned order, the High Court has only corrected the clerical, arithmetical or accidental omission in the decree passed or not. To appreciate the same, first we think it necessary to mention as to what the word "expression accidental omission" means. In Master Construction Co. (P) Ltd. Vs. State of Orissa and Another AIR 1966 SC 1047, expression - accidental slip or omission has been explained as an error due to a careless mistake or omission unintentionally made. It is further observed in the said case that there is another qualification, namely, such an error shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, elaborate arguments on questions of fact or law."
27. The record further shows that the terms of the lease are intact and the petitioner will have to only enjoy the property for the remaining period of lease. Therefore, it cannot be said to be a fresh deed liable for full stamp duty.
28. The case in hand is a clear example of error, which is not dependent upon any elaborate argument on questions of fact. As record shows that the land was allotted to the consortium, which was required to be registered in the name of Special Purpose Company, i.e., the petitioner no. 1, but by mistake of Noida, got registered in the name of petitioner no. 2. By correction deed dated 15.07.2015, the same was rectified.
29. Further, this Court in Jang Bahadur Vs. State of U.P. & 2 Others [Writ C No. 14472/2021, decided on 27.09.2024] has held as under:-
"10. By the correction deed, no fresh stamp duty can be levied treating it to be a new conveyance or instrument liable for stamp duty. The authorities below have failed to bring on record any cogent material or documents showing otherwise, i.e., by the correction deed the area or the boundaries or any right has been created over the land in question. In absence thereof, the impugned orders cannot be sustained in the eyes of law.
11. The Division Bench of this Court in Basdeo Singh Vs. State of U.P. & Others [2004 (96) RD 612] had an occasion to consider the controversy with respect to correction of a clerical or arithmetical error, where the Division Bench held that where there is a mistake requiring elaborate arguments on question of fact or law cannot be categorized as clerical or arithmetical mistake, but if the new right is created, then it cannot be said to be an error as error cannot be attributed as clerical or arithmetical error. Similarly, in the case of Vineeta Agarwal Vs. Additional Commissioner (Administration) & Others [2013 (119) RD 745], the Division Bench of this Court has held that a clerical mistake in the sale deed already registered would not liable for payment of stamp duty as fresh sale deed and would be stamped only as a correction deed. Similarly, in the case of Ilam Chand Vs. State of U.P. & Others [Writ C No. 5797 of 2006), it has been held that where there is change of road number and no plot number is changed, then also it has to be stamped only as a correction deed.
12. This Court, in the case of Smt. Meetu Pathak Vs. the Revisional Authority/Dy. Commissioner Stamp & Others [Writ C No. 6879 of 2017, decided on 17.04.2017], has held that correction deed cannot be treated as a fresh deed, if there is no transfer of right. Recently, this Court, in the case of Sushila Verma Vs. State of U.P. & Others [Writ C No. 18410 of 2019, decided on 29.07.2024], has held that if no right is created, then it has to be stamped as correction deed and not a fresh deed.
12. In view of the aforesaid facts & circumstances of the case as well as the law laid down by this Court as above, the impugned order dated 06.04.2021 passed by the respondent no. 2 in Stamp Appeal No. 128/2016 as well as the impugned order dated 10.03.2016 passed in Review Application of the petitioner by the respondent no. 3 cannot be sustained. The same are hereby quashed."
30. The record shows that the correction deed dated 15.07.2015 is an instrument, which cannot be read in isolation and is to be jointly read with the lease deed dated 31.03.2010.
31. The record further shows that the respondents, nowhere, disputed that the correction deed was executed due to an inadvertent error on account of the Noida.
32. Since the Noida as well as the stamp authorities are the instrumentality of the State, they have to speak in one voice and not in two voices. In other words, the State instrumentality cannot speak in two voices. More precisely, the Noida, admitting its mistake in lease deed dated 31.03.2010 and therefore, executed a correction deed on 15.07.2015 correctly mentioning the name of the petitioner no. 1, but on the contrary, a different view has been taken by the stamp authorities treating it as a fresh conveyance.
33. The Apex Court in Central Warehousing Corporation Vs. Adani Ports & Special Economic Zone Limited (APSEZL) & Others [(2022) 15 SCC 110] as held as under:
"57. We are of the considered view that it does not augur well for the Union of India to speak in two contradictory voices. The two departments of the Union of India cannot be permitted to take stands which are diagonally opposite. We may gainfully refer to the following observations made by a three-Judges Bench of this Court in the case of Lloyd Electric and Engineering Limited v. State of Himachal Pradesh and Others:
"14. The State Government cannot speak in two voices. Once the Cabinet takes a policy decision to extend its 2004 Industrial Policy in the matter of CST concession to the eligible units beyond 31-3-2009, up to 31-3-2013, and the Notification dated 29-5-2009, accordingly, having been issued by the Department concerned viz. Department of Industries, thereafter, the Excise and Taxation Department cannot take a different stand. What is given by the right hand cannot be taken by the left hand. The Government shall speak only in one voice. It has only one policy. The departments are to implement the government policy and not their own policy......"
34. The State, in its written submission, for the first time, has taken objection that Noida is an essential party, but the same has not been arrayed as respondent. There is no pleading in the counter affidavit, nor at the time of hearing the matter, the said plea was raised. The record shows that no relief has been claimed against the Noida in the present writ petition. The record further shows that no writ of mandamus is sought for registration of correction deed without any fresh copy of stamp duty. Therefore, plea raised in the written submission, for the first time about not making Noida as party in the present proceeding, cannot be accepted and the same is hereby rejected.
35. Therefore, the judgements cited in the written submissions are of no aid to the State in the peculiar facts and circumstances of the case in hand.
36. Section 4 of the Indian Stamp Act provides for completing the transactions, several instruments can be executed, to which the principal instrument only shall be charged with the duty prescribed in Schedule I-B of the Stamp Act and each other subsequent instrument shall be charged with a duty of Rs. 5/-, instead of full duty, if any, prescribed for it in that Schedule.
37. In the case in hand, the lease deed was executed on 31.03.2010. After realizing its mistake, a correction deed was executed by the Noida in favour of petitioner no. 1 on 15.07.2015, so as to complete the transaction between the parties. In view of the provisions contained in section 4 of the Stamp Act, the subsequent correction deed can, at best, be charged with a stamp of Rs. 5/- only in order to complete the transaction between the petitioners and the Noida.
38. This Court in the case of Anjali Sahkari Avas Samiti Limited Vs. State of U.P. & Others [2014 (6) ADJ 594] has held as under:-
"34. As is clear from the record that the principal sale deeds were executed by co-sharers of five plots having total area of 6 Bigha 10 Bishwa. There is no dispute with regard to two registered sale deeds dated 3.3.1989 and 6.2.1989 executed by two co-sharers namely Ram Chand and Smt. Ram Katori, who had transferred their share of five plots in favour of Rangji Sahkari Avas Samiti Ltd. So far as the present deed in question is concerned, the same is only with reference to the third sale deed executed on 6.2.1989 by the attorney Rajendra Singh for share of Goma Devi and her three sons. Thus in result, the principal sale deed was the deed dated 6.2.1989 and the document in question can at best be said to be a supplementary deed whereby the mistakes occurred in the principal deed were corrected so as to complete the transaction between the parties.
35. Considering the said aspect, Section 4 of the Act will come into play and the principal instrument i.e. sale deed dated 6.2.1989 only shall be chargeable with duty prescribed in Schedule I and the document in question i.e. the supplementary deed shall be chargeable as per the provision of Section 4 of the Act. This court does not find any Article in Schedule I of the Act which exactly covers the deed / document in question.
39. From the perusal of the aforesaid judgement, it clearly held that in order to complete the transaction between the parties, section 4 of the Stamp Act will come into play and subsequent correction deed will not be chargeable to stamp duty as a fresh deed, but only charged as per the provision of section 4 of the Stamp Act.
40. The record shows that the property in question could not be used or enjoyed by the petitioner on account of inadvertent mistake on the part of the Noida.
41. Once the mistake has been admitted by the Noida in executing the correction deed dated 15.07.2015 in favour of the petitioner no. 1, the said correction deed, at best, can be treated as completion of the transaction between the parties.
42. Keeping in view, the peculiar facts and circumstances of the present case as noted above, after perusal of the available records and considering the points of law, the writ petition is allowed. A writ of mandamus is issued to the respondents to register the correction deed upon presentation by the parties within 10 days as per Article 34-A of Schedule 1-B of the Indian Stamp Act, 1899.
Order Date:-09/12/2024 Amit Mishra