The market value of the unexpired period of leasehold interest, in the absence of a prescribed methodology in the Stamp Act, should be determined akin to the procedure under Section 23 of the Land Acquisition Act, 1894.

K. J. SENGUPTA, J. :- I have had the benefit of going through a draft judgment of my learned Brother. While agreeing with His Lordship’s findings and decision I want to add few words of my own which are as follows :-

In this case what should be the stamp duty payable on a conveyance for a transfer of unexpired period of leasehold interest is to be adjudged. Here, is a case of assignment and not by way of underlease. Under the provision of the amended provision of the Act, the market value of the property, as rightly submitted by Mr. Sakti Nath Mukherjee, learned Amicus Curiae in this case, should be the value of the right to enjoy unexpired period of leasehold interest, as opposed to absolute ownership of the property. It would be unfair to equate the proprietary interest of a property with a right to enjoy unexpired period of leasehold interest for imposition of the stamp duty. It should be adjudged on the market valuation of unexpired period of leasehold interest acquired by the assignee lessee meaning thereby, the Collector has to adopt the methodology akin to the procedure of Section 23 of the Land Acquisition Act, 1894 for valuation, because no prescribed methodology is to be found in the Act.

ARUN KUMAR BHATTACHARYA, J. :- The sole common question involved in the present appeals against the judgment and order dated 8-7-2003 passed by the learned Single Judge in W. P. 8360 (W) of 2003, W. P. 8377 (W) of 2003 and W. P. 8378 (W) of 2003 is whether the appellants/petitioners are liable to pay stamp duty on the basis of market value of the leasehold property at Kalyani, Nadia for assignment of the lease to them by the original lessees.

2. The facts leading to the writ petitions are that the lease was originally granted by the Government of West Bengal in 1953 in favour of the lessees for a period of 999 years at a fixed rent per year on some terms and conditions viz. (i) there will be no transfer without permission, (ii) construction on the leasehold land is to be completed within the specified period, (iii) forfeiture clause will be application etc. The lessees transferred their leasehold interest for the unexpired period in favour of the petitioners who paid stamp duty along with fees on the basis of consideration amount as mentioned in the deed of transfer.

3. Being aggrieved by the inaction of and/or withholding release of the deed of transfer by the registering authority on the plea of payment of stamp duty on the basis of market value, the petitioners moved before this Court, and the learned Single Judge by the impugned judgment and orders disposed of the writ petitions with a direction to the registering authority not to demand stamp duty on the basis of market price of the property and to register the same on the basis of stamp duty paid according to the consideration amount for such transfer as mentioned in the deed.

4. Being dissatisfied with the said order, the appellant/petitioners have come up before this Court.

5. Mr. Chakraborty, learned advocate for the State, on referring to Articles 63 and 23 of Schedule IA, definition of "market value" as embodied in Section 2(16B) of the Indian Stamp Act, 1899, as amended and Rule 3(2) of the West Bengal Stamp (Prevention of Undervaluation of Instruments) Rules, 2001 assailed the impugned judgment and order contending that the case of Sunil Kumar Dey v. State of West Bengal reported in 2002 (2) CHN 160, relying upon which the judgment was passed by the learned Single Judge, was delivered on 19-5-2000 which is long before the West Bengal Amendment Act, 1998 amending Article 63 of Schedule IA and some other provisions, coming into force from 15-3-2001, and as such on the face of the specific provision of Art. 63, as amended, there is no scope for registration of the document unless proper stamp duty as found due after ascertainment of the market value is paid. In support of his contention Mr. Chakraborty relied upon an unreported Single Bench decision of this Court in W.