Allahabad High Court
State Of U.P. vs Krishna Lal And Others on 25 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:118991 Court No. - 36 Case :- SECOND APPEAL No. - 809 of 1980 Appellant :- State of U.P. Respondent :- Krishna Lal And Others Counsel for Appellant :- S.C. Hon'ble Kshitij Shailendra,J.
1. Heard Shri Vinod Kumar Sahu, learned Additional Chief Standing Counsel for the appellant-State of U.P.
2. The order-sheet of this appeal reveals that plaintiff-respondent No.1 was served through publication in daily newspapers however, even thereafter, this Court proceeded to direct Civil Judge, Senior Division, Deoria to hold an inquiry to know the whereabouts of the plaintiff-respondent, keeping in view the matter being four decades old. Order to this effect was passed on 03.01.2024, which was communicated to the Civil Judge, Senior Division, Deoria. A report sent by the said officer is on record, according to which steps were taken to serve respondent No. 1 by special process server and due inquiry was held but ultimately his whereabouts were not known for want of ward number, house number etc. In view of the above, the service of notice upon the plaintiff-respondent No.1 is deemed to be sufficient.
3. The Court now proceeds to decide the appeal on merits. The appellant herein was one of the defendants in a suit filed by the plaintiff-respondent No.1 claiming a decree that a notice dated 23.11.1974 be declared as illegal void and not binding upon him.
4. The facts of the case are that certain land belonged to Municipal Board, Deoria which proceeded to hold a public auction inviting bids for entrusting the work of growing vegetables thereon. Auction was held in the year 1971 in which plaintiff-respondent No.1, being the highest auction bidder, was granted permission to grow vegetables. As far as deed/agreement entered into between the parties is concerned, paper No. 49(C) on original record is a bilateral document executed between plaintiff and Municipal Board, Deoria which records the terms under which the work was to be done on the land of the Municipal Board.
5. It appears that when the said document came to the knowledge of the State Authorities, the notice dated 23.11.1974 was issued to the plaintiff, saddling him with stamp duty, treating the agreement between the plaintiff and the Municipal Board as a document of lease. Consequently, a sum of Rs. 14,645/- was sought to be imposed as stamp duty.
6. The case of the plaintiff was that imposition/levy of stamp duty treating the document as a lease was not according to law as no lease ever came to existence but only right to grow vegetables was conferred upon the plaintiff based upon his participation in the auction proceedings. Whereas the defence of the State was that from the perusal of the document itself it was a document of lease and, therefore, the defendants justified the impugned levy.
7. Both the courts below have decreed the suit and have held that the document executed between the Municipal Board and plaintiff did not fall within the parameters of "lease" but it can be treated only as a "licensee".
8. The second appeal was admitted by a co-ordinate bench of this Court by the order dated 17.09.1981 on the substantial questions of law contained in grounds no. 1 and 2, which are reproduced as under:
"i. Because the document dated 06.10.1972 creating an interest in favour of the auction purchaser in the property to cultivate and produce from the said land given under the said lease for a period of four years.
ii. Because under the terms of the deed dated 6th October, 1972 an interest in the property for a period of four years was created in favour of the purchaser."
9. Learned Additional Chief Standing Counsel has vehemently argued that, in view of the provisions of Section 105 of the Transfer of Property Act, 1882 read with Section 52 of the Indian Easements Act, 1882, the document should have been treated as a lease and not a license. It is submitted that once the plaintiff was given a right to enjoy the property for a certain period of time, in consideration of money and period of enjoyment granted was four years, the document would fall within the definition under Section 105 of the Transfer of Property Act. He further submits that, in order to term a document as license, the existence of circumstances defined under Section 52 of the Indian Easements Act should be there but the same being absent in the present case, the courts below were not justified in treating the agreement as a license.
10. For a ready reference, Section 105 of the Transfer of Property Act, 1882 and Section 52 of the Indian Easements Act, 1882, are reproduced here under:
"Section 105. Lease defined.? A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.?
The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.
Section 52. License defined.? Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the right is called a license."
11. The Court has perused the original record on which the agreement finds place as paper No. 49. The second paragraph of the agreement clearly mentions that it is not a document of lease but simply a memorandum of the terms agreed upon between the parties. Further terms speak about grant of contract based upon the highest bid in a public auction, payment of a sum of Rs 52,500/- by the plaintiff to the Municipal Board for holding of possession over the land for a period of 4 years and vacating the land thereafter, after carrying out the cultivation activities. It further says that if any constructions are raised on the land, the same would be treated as temporary and would be removed at the time of vacating the land.
12. From bare perusal of the agreement, it is clear that the intention of the parties was not to enter into a transaction of lease. An affidavit of plaintiff is on record in which it is stated that the permission was granted to him pursuant to the public auction and no specific interest in the immovable property was transferred to him, nor were any formalities undertaken by the Municipal Board for creation of lease and, therefore, for all factual and practical purposes, it was a document of license only. Insofar as definition of lease is concerned, as per Section 105 of the Transfer of Property Act as argued by the learned Additional Chief Standing Counsel, there has to be a transfer of right to enjoy property for a certain period of time. As per Section 52 of the Easement Act, when one person grants to another a right to do or continue to do in or upon the immovable property of the granter, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the right would be called a license.
13. In the present case, there is no dispute about the fact that the land belongs to the Municipal Board. The plaintiff-respondent No.1 was not a lessee. No lease rent was fixed, though a period of four years was prescribed. The consideration amount stipulated in the agreement was an amount connected with the right to do or continue to do upon the immovable property of the granter. The work to be performed under the agreement was to grow vegetables. The status of the plaintiff was just as a farmer or a labour engaged by the Municipal Board for growing vegetables. It was limited right for a period of four years, whereafter activity entrusted upon the plaintiff was to discontinue as per the stipulations of the agreement itself.
14. Both the courts below have discussed the oral and documentary evidence and have arrived at a conclusion that there was no intention to let out the property by the Municipal Board to the plaintiff. Even otherwise, all the documents on record, right from issuance of public notice till holding of public auction and, thereafter, granting right to the plaintiff lead this Court to reach to only one conclusion that the intention of the parties was to confer upon the plaintiff a right to grow vegetables which, in absence of such grant, would become illegal and unlawful.
15. Therefore, for all the aforesaid reasons, it was a clear-cut case where definition of "license" covered by Section 52 of the Indian Easements Act would apply and, hence, the State was not justified in saddling the plaintiff with liability to pay stamp duty treating document/agreement as a document of lease.
16. Both the courts below have rightly interpreted the document paper No. 49 on record. The findings recorded are not found to be perverse or based upon erroneous interpretation of the provisions of law or misreading of document.
17. In view of the above discussion, both the questions of law framed by this Court are answered in favour of the plaintiff-respondent no. 1 and against the State of UP, holding that the agreement would fall in the category of "license" under Section 52 of the Indian Easements Act and not a "lease" under Section 105 of the Transfer of Property Act.
18. The second appeal has no force and is, accordingly, dismissed.
19. Office is directed to return the original record to the District Judge, Deoria for being preserved in accordance with the provisions of General Rules (Civil).
Order Date :- 25.7.2024 K.K.Tiwari