Hon'ble Surendra Kumar,J.
The present Writ Petition has filed by the petitioners under Articles 226/227 of the Constitution of India, interalia, making the following prayers:
"A. issue a writ, order or direction in the nature of certiorari quashing the order dated 21.2.2002 passed by Vice-Chairman Kanpur Development Authority Kanur Nagar (annexure-9 to the writ petition).
B. issue a writ, order or direction in the nature of mandamus commanding the respondents not to demand arbitrary stamp duty on the security deposit for the performance of the contract for which the agreement is to be executed between the petitioners and respondents.
III. issue a writ, order or direction in the nature of mandamus commanding the respondents not to realise the stamp duty on the security deposit, only in accordance with the provision of Article 57 of Schedule 1B of the Indian Stamp Act.
IV. issue any other writ order or direction which this Hon'ble Court may deem fit and proper in the facts of the case.
V. cost of the petition may be awarded to the petitioners."
It is, interalia, averred in the Writ Petition that the petitioners were Proprietorship Firms dealing with the business of plantation of trees and work of preservation, and the petitioners were approved contractors of the Kanpur Development Authority, Kanpur Nagar. The petitioners submitted various tenders for the plantation of trees to the Kanpur Development Authority, Kanpur Nagar, and various orders, as detailed in paragraph 3 of the Writ Petition, were granted for various amounts, as mentioned in the said paragraph of the Writ Petition. Copies of the orders have also been filed as Annexures -1 to 8 to the Writ Petition.
It is, interalia, further averred in the Writ Petition that in the aforesaid orders, the Kanpur Development Authority directed for deposit of the security amount and the Stamp Duty payable on the security amount at the time of the execution of agreement. A general order dated 21.2.2002 (Annexure-9 to the Writ Petition) was issued by the Vice-Chairman, Kanpur Development Authority, Kanpur Nagar, interalia, stating that in case of cash security, the Stamp Duty on the agreement document would be payable under Article 5(c) and Article 40(a) of Schedule-1B to the Indian Stamp Act, 1899, which would be Rs. 125/- per thousand.
The petitioners have thereupon filed the present Writ Petition seeking the reliefs, as mentioned above.
We have heard Shri Vineet Kumar Singh holding brief for Shri H.N. Singh, learned counsel for the petitioners, the learned Standing Counsel appearing for the respondent no.1 and Shri M.C. Tripathi, learned counsel for the respondent nos. 2,3 and 4, and perused the record.
It is submitted by Shri Vineet Kumar Singh holding brief for Shri H.N. Singh, learned counsel for the petitioners that on the facts and in the circumstances of the case, the Stamp Duty could be charged only in accordance with the provisions contained in Article 57 of Schedule-1B to the Indian Stamp Act, 1899, and the order dated 21.2.2002 (Annexure-9 to the Writ Petition) issued by the Vice-Chairman, Kanpur Development Authority, Kanpur Nagar, was not correct in law.
Shri Vineet Kumar Singh has placed reliance on a Division Bench decision of this Court in Tajveer Singh and others Vs. State of U.P. and others, 1997 (2) AWC 1029. He has also relied upon a Division Bench decision of this Court in Civil Misc. Writ Petition No. 31069 of 2003, M/s Rajesh Construction Co. and others Vs. State of U.P. and others, decided on 9.8.2011, wherein the said Division Bench decision in Tajveer Singh case (supra) has been followed.
Learned Standing Counsel appearing for the respondent no.1 and Shri M.C. Tripathi, learned counsel for the respondent nos. 2,3 and 4 have fairly stated that the controversy involved in the present case is covered by the said decisions.
In Tajveer Singh case (supra), a Division Bench of this Court laid down as under (paragraphs 3 and 4 of the said AWC:
"3. A special Bench of this Court in M/s. Hindustan Sugar Mills Ltd. v. State of U.P. and others, AIR 1972 All 8, has laid down that a security bond is chargeable with a duty under Article 57 Schedule of the Stamp Act. A special Bench of Delhi High Court in Chief Controlling Revenue Authority v. Marshall Produce Brokers Pvt. Ltd., AIR 1980 Del 249, has held that "the amount of security deposit paid for due performance of the contract of lease is chargeable under Article 57, Schedule 1-B." Recently a Division Bench of this Court in Sripal Goel v. Deputy Director, Construction, Civil Misc. Writ Petition No. 30837 of 1995, decided on 18.3.1996 has reiterated the same principle, holding that stamp duty on such an agreement is to be paid under Article 57, Schedule 1B of the Stamp Act. The position is thus settled that a security deed is chargeable with duty under Article 57 of Schedule 1B.
4. The Supreme Court in Board of Revenue v. A.M. Ansari, AIR 1976 SC 1813, has laid down that the sum, which is offered as security is not a mortgage, and, therefore, is not liable to stamp duty under Article 35(c) of the Stamp Act. In this case a full Bench decision of this Court in Rishideo Sondhi v. Dhampur Sugar Mills, AIR 1947 All 190, wherein it was held that an instrument in which specific amount is offered as security is not a mortgage deed, was cited with approval."
In M/s Rajesh Construction Co. case (supra), a Division Bench of this Court held as under:
".........................Submission is that the Stamp Duty is chargeable under the provision of Article 57 of Schedule 1-B of the Indian Stamp Act and not according to Article 40(a) of Schedule 1-B of the Indian Stamp Act. Reliance has been placed on Division Bench Judgement of this Court in the case of Tajveer Singh and others Vs. State of U.P. and others, reported in 1997 (2) AWC 1029, in which this Court has held that Stamp Duty on Security deposit is payable under Article 57 of Schedule 1-B of the Indian Stamp Act.
Learned Standing Counsel has neither been able to show anything contrary nor has been able to distinguish the aforesaid decision of the Division Bench which is binding upon us.
Respectfully following the aforesaid decision, we allow the writ petition and direct the authorities to charge the Stamp Duty on security deposit given by the petitioner under Article 57 of Schedule 1-B of the Indian Stamp Act.
The writ petition succeeds and is hereby allowed."
In view of the above decisions, it is evident that the petitioners in the present case could be required to deposit Stamp Duty under Article 57 of Schedule 1B to the Indian Stamp Act, 1899 in respect of the security deposit made by them as per the orders granted in their favour. The general order dated 21.2.2002 (Annexure-9 to the Writ Petition) was contrary to the correct legal position, and the petitioners could not be required to pay Stamp Duty according to the said general order.
Hence, the Writ Petition filed by the petitioners deserves to be allowed, and the same is accordingly allowed.
The respondents are directed to realize the Stamp Duty from the petitioners in regard to the security deposit made by them in respect of the orders placed on the petitioners in accordance with Article 57 of Schedule 1B to the Indian Stamp Act, 1899, and not in accordance with the general order dated 21.2.2002 (Annexure-9 to the Writ Petition).
However, on the facts and in the circumstances of the case, there will be no order as to costs.
Order Date :- 18.1.2012 safi