Increased duty under Section 39 of the U. P. Urban Planning and Development Act, 1973 is not leviable on a lease deed for the collection of toll tax, as it does not involve a transfer of immovable property situated within a development area.

( 1 ) PETITIONER, a firm, which took a Theka from the Public Works Department for collection of toll tax in respect of the bridge, situate on Pilibhit Bharatpur Marg near Nadrai by-pass in Kasganj, district Etah, seeks quashing of the order dated 8-7-1982 passed by the respondent No. 3 holding that stamp duty under the Indian Stamp Act, 1899 (briefly, the Act, 1899) and an increased duty, of 2 per cent under Section 39 of the U. P. Urban Planning and Development Act, 1973 (for short, the Act, 1973) aggregating to Rs. 1,33,812. 50 P is payable on the lease deed, for collecting the toll tax and also seeks quashing of the resultant communication dated 3-8-1982 (Annexure 7 to the writ petition) sent by the Executive Engineer, respondent No. 4, to the petitioner calling upon it to deposit the aforesaid amount of Rs. 1,33,812. 50 P by challan towards the stamp duty payable on the lease deed.

( 2 ) IT is averred that pursuant to the news item dated 25-8-1981 published in Newspaper a public auction for the Theka for collection of toll tax was held on 25-9-1981 and the petitioners highest bid of Rs. 50. 78 lacs was accepted and then the petitioner was asked to deposit a sum of Rs. 2. 34 lacs as security, which was furnished by depositing rupees one lac in cash and fixed deposit receipts of Rs. 1. 34 lac. The petitioner was then asked by the respondent No. 4, pursuant to the order dated 8-7-1982 (Annexure 5-A to the petition) passed by the respondent No. 3, to deposit stamp duty to the tune of Rs. 1,33,812. 50 P for the purpose of registration of the lease deed. Admittedly, the petitioner carried on Theka for full period, without getting a registered lease executed.

( 3 ) THE contention of the petitioner is that the Public Works Department (P. W. D) is exempt from stamp duty and lease deed executed on a stamp paper of Rs. 5. 00- would suffice. The petitioner, therefore, prays that the respondents Nos. 1, 2 and 4 be directed to execute the lease deed in the petitioners favour without forcing it to deposit Rs. 1,33,812. 50 towards the stamp duty.

( 4 ) REILEF for quashing the notification dated 14-1-1982 (Annexure 6 to the writ petition) was not pressed and that was expressly given up by the Counsel for the petitioner at the time of hearing. 4a. Counter-affidavit was filed on behalf of the respondents denying the contention of the petitioner. It is averred by the learned Standing Counsel that the agreement for collection of toll tax is a lease within the meaning of Section 2 (16) (c) of the Act, 1899, and, therefore, stamp duty at Rs. 86,657. 50 is leviable thereon in view of Schedule I-B Art. 35, read with Art. 23 appended to the Act, 1899, and besides that the petitioner is liable to pay 2 per cent increased stamp duty in view of Section 39 of the Act, 1973 amounting to Rs. 20,384 / -. It is also urged by him that the petitioner was required to furnish security equal to three months rent for due fulfilment of the contract, which was furnished and that on that amount the petitioner is liable to pay stamp duty under Schedule I / B Art. 35 (c) Explanation (3) to the extent of Rs. 21,675 / - and that further on this amount the petitioner is liable to pay increased stamp duty of Rs. 5,096 / - under Section 39 of the Act, 1973. Such liability is denied by the petitioner in entirety.

( 5 ) SHORT question for consideration, therefore, is whether the petitioner is liable to pay aforesaid stamp duty, which it was called upon to pay by the respondent No. 4 by letter dated 3-8-1982 (Annexure 7 to the writ petition ). It is not disputed by Sri R. K. Jain, learned counsel for the petitioner, that agreement for toll tax is an instrument within the meaning of Section 2 (16) (c) of the Act, 1899. If that is so, then the said instrument is a lease as defined by Section 2 (16) of the Act, 1899. Stamp duty is leviable on lease and the quantum is prescribed under Schedule I-B Art. 35 (iii), read with Art. 23. There is no dispute about the com