Hon’ble Pankaj Mithal, J.—The two petitioners are brothers. They have purchased a piece of land from one Smt. Chandrakanta vide sale deed dated 19.12.2002 for consideration of Rs. 2.90 lacs but for the purposes of payment of stamp duty its market value was disclosed as Rs. 31,73,920/- and stamp duty paid accordingly.

2. On the said land there existed a six storied hotel building but the building was excluded from the sale as the vendor had no right in the building.

3. The Collector in exercise of his powers under Section 33/47A of the Indian Stamp Act, 1899 (hereinafter referred to as Stamp Act) held that the transfer of the land by the aforesaid sale deed included the transfer of the building and as such determined the market value by adding the value of the building to that of the land. Accordingly, deficiency in stamp duty was determined. The order of the Collector has been upheld by C.C.R.A. in appeal.

4. The petitioners have thus, invoked the writ jurisdiction of this Court, challenging the order of the Collector dated 25.6.2003 and that of the Chief Controlling Revenue Authority dated 20.1.2004 dismissing the appeal.

5. I have heard Sri V.C. Mishra, Senior Advocate, assisted by Sri Rajesh Mishra, learned counsel appearing for the petitioners and Sri Sanjay Goswami, learned Standing Counsel for the respondents.

6. Pleadings exchanged between the parties have also been examined by me.

7. The only submission of Sri Mishra, is that under the sale deed, the building was expressly excluded from the transfer. The vendor was not the owner of the building and as such she could not have transferred the same. Therefore, the market value of the building cannot be added in the value of the land for the purposes of determining the deficiency in stamp duty.

8. The contrary argument of Sri Goswami, learned Standing Counsel is that the sale deed seeks to transfer immovable property in the form of a land which necessarily includes all things permanently attached or embedded in the land. Thus, building is part of the transfer and therefore, its value has rightly been added in the value of the land in determining the market value of the property transferred under the sale deed. In support of his submission he has placed reliance upon a Single Judge decision of this Court in Abdul Wahid and others v. State of U.P., (2003) 94 RD 319.

9. It is not in dispute that the land in question Plot No. Nil measuring 308.1/3 sq. meters situate at Mohalla Pathanpura, Clock Tower, Dehradun Road, Saharanpur was the land of one Mool Raj Singh. He had purchased the same vide registered sale deed dated 24.2.71.

10. The aforesaid Mool Raj Singh, leased out the aforesaid plot of land on 22.9.1983 without any constructions to M/s Mool Raj Singh and sons (Hotel) Pvt. Ltd. a company incorporated under the Indian Companies Act for a period of 30 years with a renewal clause for further 10 years on an annual rent of Rs. 2,000/- per month. The lease permitted the lessees to erect a building for running a hotel industry. On the expiry of the lease the lessees were entitled to remove all constructions failing which all structures and superstructures would vest in the lessor without payment of any compensation.

11. In pursuance of the aforesaid lease deed the lessees M/s Mool Raj Singh and sons (Hotel) Pvt. Ltd. after obtaining loan of 15 lacs from the U.P.F.C. constructed a hotel building on the said plot of land. The lessor Mool Raj Singh had no concern with the said constructions. Subsequently, the name of the lessees was changed to Madur Milan Hotel Pvt. Ltd. with the permission of the Registrar of Companies, Kanpur, dated 21.11.2002 and a certificate of registration in the new name dated 30th December, 2002 was also issued by the Registrar of Companies, Kanpur.

12. Later on, the owner of the land Mool Raj Singh expired leaving a registered Will dated 6th July, 1994. By the said Will the aforesaid plot of land was bequeathed by him in favour of his second wife Smt. Chand