JUDGMENT

Manish Mathur, J.

Heard learned counsel for petitioner and learned State Counsel appearing on behalf of the opposite parties.

2. Petition has been filed challenging the order dated 13th of September, 2011 passed under Section 47A of Indian STAMP ACT , 1899 as well as the order dated 27th of July, 2012 passed in Appeal under Section 56 of the Act.

3. Learned counsel for petitioner submits that the property in question which is immovable in nature was leased out to one Smt. Neera Khanna W/o Sri. Mahendra Singh Khanna by means of registered lease deed dated 10th March, 1995 executed by the Uttar Pradesh Avash and Vikas Parisad, Lucknow for a period of 30 years. She transferred the lease hold rights by means of assignment in favour of one Pradeep Agarwal, who in turn transferred his lease hold rights to the petitioner by means of lease deed dated 15.02.2008 which was presented for registration and stamp duty thereupon was paid in terms of Article 63 of Schedule 1-B of the Act whereafter proceeding under Section 47-A(3) of the Act was referred, whereby the deed of assignment has been treated to be a deed of sale in view of the Clauses contained therein. Appeal filed there against under Section 56 of the Act has also been rejected.

4. Learned counsel for petitioner submits that the authorities have erred in law in treating the deed of assignment of lease to be deed of sale only on the basis that vacant possession of lease hold plot of land was being transferred to the assignee as well as the fact that the assignee was granted rights of mutation and for getting the said property freehold in her favour. It is submitted that the authorities have totally lost sight of the fact that no transfer of title of the property had taken place and only rights of possession over the property in terms of assignment of lease had been provided for a particular consideration and, as such, the authorities have erred in law in treating it as an instrument of transfer of title.

5. Learned counsel has placed reliance on the Division Bench judgment of this Court in the case of Sri. Ajay Shanker Dixit and Another v. State of U.P. and Others and other connected matters in Writ Petition No. 3056(MB) of 2003 in which this Court by means of judgment and order dated 09.08.2018 has held that the language of deed will not decide the nature of deed of transfer and if the transferer has been given only lease hold rights, then only lease hold rights can be transferred further and not absolute ownership. It has, therefore, been held that despite the language of deed, it is to be treated as a lease deed and not as a deed of absolute sale and, therefore, stamp duty cannot be directed to be paid as per market value considering such a deed to be deed of sale. Relevant portions of the judgment are as follows:

"The basic concept for deciding the stamp duty is based on principle that a person cannot transfer a better title than what he has.

Now, a person in whose favour lease deed has been executed is only entitled to transfer the lease hold rights and he can not transfer the absolute ownership in the property.

The language of deed will not decide the nature of deed of transfer and even if it has been written in the deed that transferor is having absolute right in regard to the property, it cannot be accepted as such. If transferor was given only lease hold rights, then he is entitled only to transfer the lease hold rights and not the absolute ownership.

Accordingly, the earlier contention of learned Additional Chief Standing Counsel that as per language of deed, it is to be treated as absolute sale or lease deed, cann