Kunj Bihari Lal Charitable Trust ... vs State Of U.P.

And Others on 10 August, 2010

Allahabad High Court

Kunj Bihari Lal Charitable Trust ... vs State Of U.P. And Others on 10 August, 2010
Reserved

Case :- WRIT - C No. - 47441 of 2009

Petitioner :- Kunj Bihari Lal Charitable Trust Thru' Its Secry.

Respondent :- State Of U.P. And Others
Petitioner Counsel :- M.K. Gupta
Respondent Counsel :- C.S.C.

Hon'ble Pankaj Mithal, J.

Uttar Pradesh State Industrial Development Corporation (in short "UPSIDC") is the owner of plot
no.46/1, Site - IV, Industrial Area, Sahibabad, Ghaziabad. UPSIDC on 28.4.2001 on the request of
the petitioner, a charitable trust, granted it a license to construct and run a school over the aforesaid
plot. Petitioner in accordance with the map sanctioned by the Ghaziabad Development Authority
constructed a building and started running a school over the aforesaid land. Subsequently, UPSIDC
executed a registered deed dated 18.2.2003 transferring the aforesaid land on lease in favour of the
petitioner. On the said lease deed petitioner duly paid stamp duty in accordance with the provisions
of the Indian Stamp Act (in short 'Act').

The aforesaid lease was subjected to determination of market value for the purposes of levying
proper stamp duty and accordingly proceedings were drawn under the Act whereupon an order was
passed on 15.6.2004 by the Additional Collector (Land Acquisition), Irrigation, Ghaziabad
determining the market value of the property by adding the value of the building also to the value of
the land and accordingly direction for payment of deficient stamp duty so determined with interest
at the rate of 1.5% per month was issued. Petitioner's revision against the aforesaid order was
dismissed by the Chief Controlling Revenue Authority U.P., Allahabad vide order dated 18.8.2009.
Hence, petitioner has invoked writ jurisdiction of this Court assailing the above two orders.

I have heard Sri M.K. Gupta, learned counsel for the petitioner and Sri Nimai Das, learned Standing
Counsel. The affidavits exchanged between the parties have also been perused by me and with the
consent of the parties the matter has been heard finally.

Impugning the above orders, Sri M.K. Gupta, learned counsel for the petitioner submitted that only
land was leased out under the lease dated 18.2.2003. The building belongs to the petitioner and, as
such, it was not part of the lease and therefore its value cannot be included in the value of the land
leased out while determining the market value of the leased property.

The Standing Counsel has defended the impugned order by saying that the lease is in respect of both
the land and the building and even if the lease is in respect of the only land, as the building is
permanently attached to it it will be deemed to have been leased out along with the land.

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 Kunj Bihari Lal Charitable Trust ... vs State Of U.P. And Others on 10 August, 2010

Admittedly, the land was acquired by the State of U.P. for the public purpose for the benefit of
UPSIDC. On due acquisition, UPSIDC developed the aforesaid acquired land and the plot in
disputed was carved out. The said plot was initially allotted and then leased out by UPSIDC in
favour of M/s Orient Paper and Industries Ltd. vide lease deed dated 19.2.1997 but the said lease
was determined on 6.3.2001 whereupon, on the request of the petitioner UPSIDC agreed to lease
out the same for the purpose of a school in favour of the petitioner. However, as the execution of the
lease was likely to take some time, the petitioner under the agreement dated 28.4.2001 was
permitted to use the said land and to start construction of the school building. It is in furtherance
thereof, when the school building was constructed, the lease in dispute was executed.

The agreement dated 28.4.2001 under which the aforesaid plot of land was permitted to be used by
the petitioner for the purposes of constructing and running a school as well as the lease deed dated
18,.2.2003 are on record. I have gone through both the above documents. The lease deed specifically
states that pursuant to the agreement petitioner completed the building to the satisfaction of the
UPSIDC on the plot. It further provides that the petitioner shall be at liberty to remove and
appropriate to himself all his buildings, erections and structures made by him and all his materials
thereof within three months of the date of expiration or determination of the lease, as the case may
be.

The terms and conditions of the lease which are not in dispute, it is apparent that the lease has been
executed for running the school in respect of which the petitioner had previously constructed the
building under a prior agreement. So the building was in existence at the time of execution of lease
deed and since it was erected and completed by the petitioner it belonged to the petitioner and not
to the UPSIDC. The ownership of the said building has not been claimed by the UPSIDC and it has
impliedly accepted the ownership of the petitioner over the said building.

The petitioner in paragraph 7 of the writ petition has clearly stated that a three storied school
building spread over an area of 4100 square meters was constructed by it as per the map sanctioned
by the Ghaziabad Development Authority on 20.11.2001 and the entire money in the construction
was invested by the petitioner. This averment in paragraph 7 of the writ petition has not been
specifically denied by the respondents in the counter affidavit. In other words, the respondents also
admit that the building so constructed belongs to the petitioner.

Thus, eventually the petitioner is the owner of the building whereas UPSIDC is the owner of the land
only.

It is true that generally anything which is permanently attached or embedded to the earth is part of
the land and goes with it but it may not be true always. The building/super structure undoubtedly
may be an immovable property but issue is whether it has been transferred by way of lease
aforesaid. Transfer of property ordinarily contemplates conveying of any property by one or more
persons to one or more other persons. The transfer of property is generally inter vivous between two
set of parties. To put it simply, owner cannot transfer a property to himself. 'Lease' is one of the
recognised modes of transfer of property. Thus, the building owned by the petitioner can not be
transferred by lease in favour of the petitioner itself. It may also be noted that UPSIDC cannot

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 Kunj Bihari Lal Charitable Trust ... vs State Of U.P. And Others on 10 August, 2010

legally transfer a thing which is not owned by it. In such a situation, the lease in question only seeks
to transfer the land and there is no express or implied transfer of the building by way of lease even
though it may have become part of the land but a part which can be severed from it, if the occasion
arises.

Accordingly, I am of the opinion that the lease in question is only in respect of the land and not the
building which actually belongs to the petitioner. Therefore, the value of the building cannot be
added in the value of the land for the purposes of levying the stamp duty on the lease in question.

In view of above, the authorities below manifestly erred in law in including the value of the building
in the market value of the leased property for levying stamp duty.

The petition as such succeeds and is allowed and the orders dated 18.8.2009 (Annexure - 9) passed
by Chief Controlling Revenue Authority, U.P. Allahabad and dated 15.6.2004 (Annexure

- 6) passed by Additional Collector (Land Acquisition), Irrigation, Ghaziabad are quashed.

Dt: 10.8. 2010 BK/

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