THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Writ Petition (M/B) No. 589 of 2004 Niyaz Ahamad S/O Late Sabir Ahmad, R/O Ward No. 5 Kichcha., District Udham Singh Nagar. ... Petitioner. Versus 1. Additional Commissioner of Stamp Kumaun Region Nainital. 2. District Magistrate, Udham Singh Nagar. 3. Tehsildar Kittcha District Udham Singh Nagar. 4. Executive Officer, Nagar Panchayat Lalkuan District Nainital. ... Respondents. Sri Z.U.Siddiqui & Sri Dinesh Chauhan, learned counsel for petitioner. Learned Standing Counsel for the State-respondents. Sri I.S.Mehra, learned counsel for the respondent No. 4. Coram: Hon’ble P.C. Verma, J. Hon’ble B.S. Verma, J. Dated July 13, 2006. Heard learned counsel for the rival parties and perused the entire material on record. This writ petition has been filed by the petitioner for issue a writ order or direction in the nature of certiorari to quash the order dated 05-09-2003 (Annexure No.3 to the writ petition) passed by respondent no.1, whereby the Assistant Commissioner Stamps, Kumaun Division has imposed deficit stamp duty of Rs. 31,775/- and penalty of Rs. 1000/- on the petitioner holding that the case was covered under Section 2(16) of the Stamps Act and accordingly stamp duty by the petitioner was payable on the contract amount of Rs. 2,55,000/- in accordance with the provisions of the said Act. It was further held by the Assistant Commissioner that the stamp duty was payable by the petitioner on the agreement executed between Nagar Palika Kichcha and the petitioner for collection of Tah-bazari in the years 1995-96 for Rs. 2,55,000/-. The agreement between the parties is Annexure No.1 to the writ petition. The Assistant Commissioner Stamps has said that the agreement was executed on the stamps of Rs. 100/-. On scrutiny, it was found that 2 this agreement falls within the definition of an agreement for lease by which the right to collect Tah Bazari has been transferred by the Nagar Palika to the petitioner, therefore, such agreement falls within the meaning of ‘agreement’ as defined under Section 2(16) of the Stamps Act and the petitioner was liable to pay stamp duty as valued under Article 35B of Schedule 1B of the Act and he accordingly assessed the stamp duty to be payable Rs. 31,875/- by the petitioner and also imposed penalty of Rs. 1,000/-. In compliance of the said order, steps were taken to recover the said amount and citation was issued by the Tahsildar under the provisions of U.P.Z.A. and L.R.Act, 1950 under Rules 2, 3 and 6 on 17-5-2004. It is not in dispute that the agreement was executed between the parties as mentioned earlier. Clause (c) of Section 2 (16) defines ‘lease’ as under:- ‘Lease’- ‘Lease’ means a lease of immovable property and includes also- (a) a patta’ (b) a kabuliyat or other undertaking in writing, not being a 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 lease intended to signify that the application is granted; (e) any instrument by which mining lease is granted in respect of minor minerals as defined in Clause (e) of Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957.” This, it is clear that ‘lease’ includes a patta by which tolls of any description are let. Therefore, stamp duty on lease is chargeable under Article 35 of Schedule 1B of Stamp Act on such 3 instruments. Collection of Tah Bazari therefore falls under clause (c) of Section 2(16) of the said Act being an instrument for collection of Toll, which is in the nature of Tah Bazari. Relevant extract of Article 35 of Schedule 1 B is also reproduced as under:- Description of instrument Proper stamp duty 35. Lease-including and under lease and an agreement to let or sub-let- (a) whereby by such lease, rent is fixed and no premium is paid or delivered- xxx xxx xxx (b) where the lease is granted for a fine or premium, or for money advanced and where no rent is reserved.” By the agreement, sum of Rs. 2,55,000/- was to be paid by the petitioner to the Nagar Palika, therefore, it was an advance due to Nagar Palika against the petitioner for which instalments were fixed. Learned counsel for the petitioner has relied upon the case of Tejveer Singh V. State of U.P. and others ( 1997 (29), A.L.R., Page 687). We have perused the judgment, which is on the point of ‘Security’ and on an agreement for security, the samp duty is payable under Article 57 of Schedule IB of the Stamps Act, therefore, the facts of the said case are entirely different than that of the case at hand. The ratio of the Tejveer Singh case (supra) is not applicable. Thus, the instrument in question falls under Clause (c) of Section 2(16) of the Stamp Act for the payment of stamp duty and on such instrument the stamp duty is payable as provided under Article 23 of Schedule IB for a consideration equal to the amount or 4 value of such fine or premium or advance, therefore, the order passed by the Assistant Commissioner Stamps, Kumaun Division dated 5-9-2003 is in accordance with the provisions of the Stamps Act and the Schedule there-under. Accordingly, the order impugned is upheld. Since we have upheld the order impugned, therefore, we are not inclined to interfere with the proceedings. The writ petition has no force. In the result, the petition is dismissed with no order as to costs. (B.S. Verma, J.) (P.C. Verma, J.) RCP