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TMI Blog2007 (9) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. A.K. Bhattacharya, J. 2. 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. 3. 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 transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r promised and since the documents created only leasehold right in favour of new lessees for the remaining period of lease out of 999 years, it is purely and simply a sub-lease for a limited period with option of transfer with the permission of Government, and as there is no transfer of ownership but only a transfer of right or enjoyment of leasehold property, it is covered under Article 35(vii) of the Stamp Act and not under Article 63, as amended. 7. Mr. Mukherjee, learned senior advocate who was invited as an amicus curiae, submitted that since it is a case of transfer by way of assignment of the balance period of leasehold interest and not transfer of ownership and all the incidents of lease are applicable and that tenancy is a property within the meaning of Article 300A of the Constitution, such leasehold interest for the unexpired period can be valued, the procedure for such valuation being the same as applicable in case of assessment of compensation under the Land Acquisition Act. 8. The provisions relating to Articles. 63 and 23 of Schedule IA of the Indian Stamp Act, 1899, as amended, are reproduced below: 9. The object of the said provision of Article 63 is to make the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., undervalued, how to be dealt with.--(1) Where the registering officer appointed under the Registration Act, 1908 (16 of 1908), has, while registering any instrument of- (a) agreement or memorandum of an agreement relating to a sale or lease-cum-sale of immovable property, (b) Conveyance, (c) Exchange of property (d) Gift, (e) Partition, (f) Power-of-attorney (i) when given for consideration to sell any immovable property, or (ii) in such other cases referred to in Article 48 of Schedule IA. Where proper stamp duty is payable on the basis of market value, (g) settlement, (h) transfer of lease by way of assignment, reason to believe that the market value of the property which is the subject-matter of any such instrument has not been truly set forth in the instrument presented for registration, he may, after receiving such instrument, ascertain the market value of the property which is the subject-matter of such instrument in the manner presented and compute the proper stamp duty chargeable on the market value so ascertained and thereafter he shall, notwithstanding anything to the contrary contained in the Registration Act, 1908, insofar as it relates to registration, keep registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whichever is greater. (2) Any person executing an instrument of agreement of memorandum of an agreement relating to a sale or lease-cum-sale of immovable property, conveyance, exchange of property, gift, partition, power-of-attorney where proper stamp duty is payable on the basis of market value, settlement, transfer of lease by way of assignment, shall furnish to the registering officer, in addition to the particulars referred to in Sub-section (1) and Sub-section (2) of Section 27, such particulars in respect of the property as may be applicable to that property and as specified in a statement in Form 1, in case of land with building is situated in an urban area, in Form II, in case the land with building is situated in a rural area, in Form III, in case the land is situated in urban area, and in Form IV, in case the land is situated in rural area. 15. Here, since the leasehold interest of the lessees for the unexpired period was transferred by assignment, the market value of such transfer as applicable to conveyance in terms of Article 23 of Schedule IA is to be assessed. Though there is no indication in the said rules as to how the market value is to be assessed, some guidelin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchaser may in the prevailing conditions pay to a willing vendor in that situation. In determining the disposition, the purchaser would normally take into consideration the advantage of the situation and the potentialities of the land for the market value of land which depend upon its situation, special adaptability, advantages and inherent potentiality in the light of demand for land. In assessing the market value recent instances of sale in the same or adjacent areas, the average rental of the land and of similar adjacent lands are relevant for valuation. In this connection, reference may be made to the case of Mathura Prasad Rajgharia v. State of West Bengal reported in AIR1971SC465 . 17. The facts and circumstances of the case of Raghuram Rao (supra) which speaks of perpetual lease being quite different, the ratio has no application here, so also the case of M/s. Bhilwara Spinners Ltd. (supra). The case of Hunsraj (supra) deals with sublease which is not, as discussed earlier, involved in the present case. Similar is the fate in respect of Bajaj Hindustan Ltd. (supra) where there was no assignment of lease nor any document was executed by the erstwhile lessee in favour of the w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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