M.C.D v. Vardhman Properties

ORDER This appeal is dismissed in terms of the common judgment of 2nd July 2008 passed in LPA No. 319 of 2007 titled "Municipal Corporation of Delhi v. N.K. Gupta" and connected matters. Registry is directed to place on record a copy of the judgment passed in LPA No. 319 of 2007. July 02, 2008 dn CHIEF JUSTICE

S. MURALIDHAR, J. Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. m THE HIGHCOURTOFDELHI:NEW DELHI LPA No. 319 of 2007 Reservedon: 19"" May, 2008 Date ofjudgment:July 02, 2008 MUNICIPALCORPORATIONOF DELHI .....Appellant Through: Mf.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Mr. AlokSingh,Advocates N.K. GUPTA Respondent ThroughMr. SanjayGoswamyand Mr. AjayKumar, Advocatesfor the Respondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. With LPA No. 373/2007 MUNICIPALCORPOIUTIONOF DELHI Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Mr. AlokSingh,Advocates / / VARDHMANPROPERTIES Respondent ThroughMr. SanjayGoswamyand ^-Ir. AjayKumar, Advocatesfor the Respondents. Ms. Iram Majid andMs. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 374/2007 MUNICIPALCORPORATIONOF DELHI Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Mr. Alok Singh,Advocates . LPA No.319/2007 Page 1 of25 KEY POINT Respondent ThroughMr. SanjayGoswamyand Mr. Ajay Kumar, Advocatesfor the Respondents. Ms. IfafflMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 376/2007 MUNICIPALCOI^ORATIONOF DELHI Tlirough: Mr.H.S.Phoolka,SeniorAdvocate Mr. Sanjeev Sabharwal and Mr. AlokSingh,Advocates K.K. ENTERPRISES Respondent TliroughMl-. SanjayGoswamyand Mr. AjayKumar, Advocatesfor the l^espondents. Ms. Iram Majid andMs. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 377/2007 MUNICIPALCORPORATIONOF DELHI Tlirough: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Mr. Alok Singh,Advocates VARDHMANPROPERTIES Respondent ThroughMr, SanjayGoswamyandMr. AjayKumar, AdvocatesfortheRespondents. Ms. Iram Majidand Ms. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 378/2007 municipal corporation OF DELHI Tlirough: Mr.H.S.Phoolka, Senior Advocate Mr. Sanjeev Sabharwaland Mr. Alok Singh, Advocates Page2of25 K.K.enterprises o « . Respondent TlroughMr. SanjayGoswainyand Mr. AjayKumar Advocatesfor the Respondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 380/2007 municipalCORPORATIONOF DELHI pirough: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Mr. Alok Singh,Advocates GARIMAAGGRAWAL Respondent ThroughMr. SanjayGosv^^amyandMr. AjayKumar Advocatesfor the Respondents. Ms. IramMajidandMs. ZubedaBegum,Advocates for RespondentGNCTD. LPA No, 381/2007 municipalCOf?PORATIONOF DELHI Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Mr. AlokSingh,Advocates VARDHMANPROPERTIES Respondent TliroughMr. SanjayGoswamyandMr. AjayKumar, Advocatesforthe Respondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 382/2007 municipalCORPORATIONOF DELHI Tlirough: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Mr. AlokSingh,Advocates VARDHMANPROPERmS .....Respondent ThroughMr. SanjayGoswamyand Mr. AjayKumar, \fo Advocatesfor.theRespondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 383/2007 MUNICIPALCORPORATIONOF t>ELHl Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Mr. Alok Singh,Advocates VAM)HMAKPROPERTffiS Respondent ThroughMr. SanjayGoswamyandMr. AjayKumar, Advocatesfor the Respondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates for RespondentONCTD. LPA No. 384/2007 MUNICIPALCORPOIUTIONOF DELPH Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Mr. AlokSingh,Advocates VARDHMANPROPmiES _ .....Respondent TliroughMl". SanjayGoswamyand Mr. AjayKumar, Advocatesfor the Respondents. Ms. IraniMajidandMs. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 385/2007 MUNICIPALCORPOIUTIONOF DELHI Tlirough: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Mr.Alok Singh,Advocates HARISINGHBUILDER&PROMOTRS Respondent ThroughMr. SanjayGoswamyand Mr. AjayKumar, <x AdvocatesfortheRespondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 386/2007 MUNICIPALCOI^ORATIONOF DELHI Tlirough: Mr.H.S.Phoolka, Senior Advocate Mr. SanjeevSabharwaland Mr. AlokSingh,Advocates ICAMALlaSHORE AGGIUWAL Respondent ThroughMr. SanjayGoswamyand Mr. Ajay Kumar, Advocatesfor the Respondents. Ms. IramMajidandMs. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 387/2007 MUNICIPALCORPORATIONOF DELffl Through: Mr.H.S.Phoolka, SeniorAdvocate Mr. Sanjeev Sabharwal and Mr. Alok Singh, Advocates VARDHMANPROPERTIES Respondent ThroughMr. SanjayGoswamyand Mr. AjayKumar, Advocatesfor theRespondents. Ms. Iram Majid andMs. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 388/2007 MUNICIPALCORPORATIONOF DELHI Through: Mr.H.S.Phoolka, Senior Advocate Ml-. Sanjeev Sabharwal and Mr. Alok Singh, Advocates BASANTPROJECTSLTD Respondent ThroughMr. SanjayGoswamyand Mr. AjayKumar, I Advocatesfor the Respondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 389/2007 MUNICIPALCORPORATIONOF DELffl Tlirough: Mr.H.S.Phoolka,SeniorAdvocate Mr. Sanjeev Sabharwaland Ml'. AlokSingh,Advocates VARDHMANPROPERTIES Respondent ThroughMr. SanjayGoswamyand Mr. Ajay Kumar, Advocatesfor theRespondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 391/2007 MUNICIPALCORPORATIONOF DELHI Through: Mr.H.S. Phoolka, Senior Advocate Mr. SanjeevSabharwaland Ml-. Alok Singh,Advocates VARDHMANPROPERTIES Respondent TliroughMr. SanjayGoswamyand Mr. Ajay Kumar, AdvocatesfortheRespondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 394/2007 MUNICIPALCORPORATIONOF DELHI Through: Mr.H.S.Phoolka, SeniorAdvocate Mr. Sanjeev Sabharwal and Mr. Alok Singh, Advocates LPA No.319/2007 Page 6of25 S'i -J. ; n Y VARDHkANproperties ^ RespondeM ihroughMr. SanjayGoswamyand Mr. AjayKumar, Advocatesfor the j^espondents. Ms. IraniMajidandMs. ZubedaBegum,Advocates for RespondentGNCTt). LPA No. 395/2007 municipalCORPORATIONOF DELHI Tlirough: Mr.H.S.Plioolka,SeniorAdvocate Mr. SanjeevSabliarwaland Mr. Alok Singh,Advocates VARDHMANPROPERTIES _ Respondent ThroughMi-. SanjayGoswamyand Mr. AjayKumar, Advocatesforthe Respondents. Ms. IraniMajidandMs. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 396/2007 MUNICIPALCORPORATIONOF DELHI Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Ml*. Alok Singh,Advocates MANISHAGGRAWAL Respondent ThroughMr. SanjayGoswamyand Mr. AjayKumar, Advocatesfor the Respondents, Ms. IraniMajidand Ms. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 400/2007 MUNICIPALCORPORATIONOF DELHI Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Ml'. Alok Singh,Advocates LPA No.319/2007 Page 7 of25 ' VARDHMANproperties Respondent TliroughMr. SanjayGoswamyandMr. AjayKumar, Advocatesfor the Respondents. Ms. Irani Majid andMs. ZubedaBegum,Advocates j for RespondentGNCTD. LPA No. 401/2007 MUNICIPAL CORPOIUTION OF DELHI Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. Sanjeev Sabharwaland Ml-. Alok Singh, Advocates J VARDHMAN PROPERTIES Respondent ThroughMr. SanjayGoswamyand Mr. Ajay Kumar, AdvocatesfortheRespondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 402/2007 MUNICIPAL CORPORATION OF DELHI Tlirough: Mr.H.S.Phoolka,SeniorAdvocate Ml'. SanjeevSabharwaland Mr. Alok Singh, Advocates VARDHMANPROPERTIES Respondent ThroughMr. SanjayGoswamyandMr. Ajay Kumar, AdvocatesfortheRespondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 403/2007 MUNICIPAL CORPORATION OF DELHI Through: Mr.H.S.Phoolka, SeniorAdvocate Mr. Sanjeev Sabharwal and Mr. Alok Singh, Advocates LPA No.319/2007 VARDHMANPROPERTIES Respondent ThroughMr. SanjayGoswamyandMr. AjayKumar, Advocatesfor the Respondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPANo. 405/2007 MUNICIPALCORPORATIONOF DELHI Tlirough: Mr.H.S.Phoolka,SeniorAdvocate Mr. Sanjeev Sabharvvaland Ml'. Alok Singh,Advocates UMTYPROJECTSLIMITED Respondent TliroughMr. SanjayGoswamyand Mr. AjayKumar, Advocatesfor the Respondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 406/2007 MUNICIPALCORPORATIONOF DELHI Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. Sanjeev Sabharvvaland Mr. Alok Singh, Advocates KEY POINT Respondent ThroughMi*. SanjayGoswamyand Mr. Ajay Kumar, Advocatesfor theRespondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 407/2007 MUNICIPALCORPORATIONOF DELHI Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. Sanjeev Sabharwal and Mr. Alok Singli,Advocates Page9of25 ,'V VARDHMANPROPERTIES Respondent ThroughMi*. SanjayGoswamyand Mr. AjayKumar, Advocatesfor the Respondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTt). LPANo. 408/2007 MUNICIPALCORPOIUTIONOF DELHI Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. Sanjeev Sabharwaland Mr. Alok Smgh,Advocates M.M. DEVELOPERS Respondent TliroughMl-. SanjayGoswamyand Mr. Ajay Kumar, AdvocatesfortheRespondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 1051/2007 MUNICIPALCORPORATIONOF DELHI Tlirough: Mr.H.S.Phoolka, SeniorAdvocate Mr. SanjeevSabharwaland Mr. Alok Singh,Advocates VARDHMANPROPERTIES Respondent TliroughMr. SanjayGoswamyand Mr. Ajay Kumar, Advocatesfor the Respondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 1057/2007 MUNICIPALCORPORATIONOF DELHI Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. Sanjeev Sabharwal and Mr. Alok Singh,Advocates LPA No.319/2007 VARDHMANPROPERTIES _ Respondent ThroughMr. SanjayGoswamyand Mr. AjayKumar, Advocatesfor the Respondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No, 1058/2007 MUNICIPALCORPORATIONOF DELffl Tlirough: Mr.H.S.Phoolka,SeniorAdvocate Mr. SanjeevSabharwaland Ml*. Alok Singh,Advocates VARDHMANPROPERTIES , Respondent TliroughMr. SanjayGoswamyand Mr. Ajay Kumar, AdvocatesfortheRespondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 1059/2007 MUNICIPALCORPORATIONOF DELHI Tlirough: Mr.H.S.Phoolka, SeniorAdvocate Mr. Sanjeev Sabharwal and Mr. Alok Singh,Advocates SUNDERCONSTRUCTIONCO. Respondent ThroughMr. SanjayGoswamyand Mr. Ajay Kumar, Advocatesforthe Respondents. Ms. IraniMajidand Ms. ZubedaBegum,Advocates for RespondentGNCTD. LPA No. 1060/2007 MUMCIPALCORPORATIONOF DELHI Through: Mr.H.S.Phoolka, SeniorAdvocate Mr. Sanjeev Sabharwal and LPA No.319/2007 Page 11 of25 Mr. AlokSingh,Advocates \x 7> •• VARDHMANPROPERTIES Respondent ThroughMr. SanjayGoswamyand Mi*. AjayKumar, Advocatesfor the Respondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates forRespondentGNCTD. LPA No. 1061/2007 MUNICIPALCORPORATIONOF DELHI Through; Mr.H.S.Phoolka,SeniorAdvocate Mr. Sanjeev Sabharvvaland Mr. Alok Singh,Advocates VARDHMANPROPERTIES Respondent ThroughMr. SanjayGoswamyand Mr. Ajay Kumar, AdvocatesfortheRespondents. Ms. IramMajidand Ms. ZubedaBegum,Advocates forReslDondentGNCTD. AND LPA No. 1285/2007 MUNICIPALCORPORATIONOF DELffl ..... Appellant Through: Mr.H.S.Phoolka,SeniorAdvocate Mr. Sanjeev Sabharwal and Mr. Alok Singh, Advocates SURYABUILDWELLLIMITED Respondent Through SanjayGoswamyand Mr. Ajay Kumar, Advocatesfor the Respondents. Ms. Iram Majid andMs. ZubedaBegum,Advocates forRespondentGNCTD. Coram: HON'BLfi THE CHIEF JUSTICE LPA No.319/2007 Page 12 of25 HON'BLEDR. JUSTICES. MUMLIDHAR

¶1WhetherReportersoflocalpapersmay be /, allowed to see the judgment?

¶2To be referredto the Reporteror not?

¶3Whetherthejudgmentshouldbe reported h in Digest? JUDGMENT Dr. S. Muralidliar. J.

¶1These appeals are directed against the commonjudgmentdated 13^ March, 2007 passed by the learned Single Judge of this Court in Writ Petition(Civil) No. 8161 of 2005 and Batch. The writ petitions challengedthe validityofthe noticesissued by the CollectorofStamps under Section 40 of the Indian Stamp Act, 1899 ('Stainp Act') demanding transfer duty as well as deficient stamp duty and penalty equalto ten times of tlie deficientduty.

¶2The demand for transfer duty was made in respect of the conveyanceofplotsof land in favourofthe appellantswho successfully bid for them in auctions held by the Delhi DevelopmentAuthority ('DDA')/ Municipal Corporation of Delhi ('MCD'). Consequently, perpetuallease deeds were executedand registeredin their favour. The writ petitionershad also paid the appropriatestamp duty and transfer duty interms ofthe certificateissuedby the Collectorof Stampsin each of the cases.

¶3On 29''^ August2004 ageneralorderwas issuedby the Divisional Page 13 of25 Commissioner,Delhi stating that the Collectorsof Stamp of different districtshad adoptedvaryingmethodsofcalculationofduty in respectof perpetualleases which had resultedin the duty being short levied and collected.This conclusionwas reachedon an interpretationofArticle35 ofSchedule1(A) to the Stamp Act as applicableto Delhi and Section 147 to the Delhi Municipal Corporation Act, 1957 ('DMC Act'). Consequently,the impugnednotices were issued in February 2005 to eachofthe appellantscallinguponthem to pay the deficientduty as well as the penalty equaling ten times of the deficientduty. In respect of Vardliman Properties, for instance, the auction purchaser had paid Rs.12,42,215as stamp duty. This was now recomputedas Rs.13,30,604 being the aggregateof Rs.10,79,772as stamp duty and Rs.2,00,832as transfer duty. In re-working the duty, the total considerationfor the perpetuallease was taken as the aggregateof the premium amount of Rs.1,91,11,000and the annual rent calculatedas a percentageof the premiumamount.In additiona penaltyof Rs.8,88,389(being ten times of the deficient duty) was also demanded.

¶4Before the learned Single Judge the respondentscontendedthat they were not challengingthe re-workingof the stamp duty since the questionof interpretationof Article 35 of Schedule 1(A) of the Stamp Act was debatable. Their challenge was, therefore, confined to the penalty imposed under the Stamp Act as well as the DMC Act with regard to the stamp duty and transferduty respectivelyas well as the Page 14 of25 duesin thetransferdutyas demandedin the impugnednotices.

¶5On the questionof penalty,the learnedSingleJudge came to the conclusionthat in tenns of Section40 of the Stamp Act, the power to impose a penalty was consequential upon the Collector of Stamps impoundingan instrument.Sinceno instrumenthad yet been impounded by the Collector,the questionofimpositionofany penaltydid not arise. To the extent, therefore, that the impugned notices sought to levy penalty, they were held to be unsustainablein law.

¶6The next questionbeforethe learned Single Judge concernedthe interpretationofthe relevantentry in Section 147 (2) (b) (v) DMC Act. Afterreferringto tlie decisionofthe learnedSingleJudge ofthis Court in NiagaraHotels&Builders(P) Ltd. v. Union ofIndia65 (1997)DLT 826, the learned Single Judge concluded that the words 'amount' and 'value'in Section147 (2) (b) (v) DMC Act did not referto the premium collectedfor the grantofthe lease.The learnedSingleJudgerejectedthe contentionof the MCD that the word 'amount'referredto premiumand theword 'value' referredto the rent. It was held thatthey referredtothe quantum of the rent for the first fifty years of the lease. Consequently, transferduty would be leviableon one-sixthof the rent for the first fifty years of the lease. Althouglithe lease referredto only the first thirty years, the learned Single Judge held tliat "the transfer duty has to be computedon the basis of1/6^ ofthe rent payableat presentfor the first Page 15 of25 30 year period but comf)utedfor tliefirst fiftyyears".

¶7The petitions were accordingly partly allowed holding that no penalty could be imposed in respect of the transfer duty under the DMC Act since that was a debatable issue. A direction was issued to re-work the transfer duty in terms of the judgment of the learned Single Judge. It was fiirther held that no further stamp duty in addition to the amounts already paid was payable nor was any penalty chargeable.

¶8Aggrieved by the judgment of the learned Single Judge, the MCD has filed the present appeals.

¶9It is contended by Mr. H.S. Phoolka, the learned senior counsel appearingfor the MCD that in the sense and in the contextin which the word 'rent' is used in Section147 (2) (b) (v) DMC Act, it hadto connote the total consideration payable under the lease deed. His submission was that unless the total consideration as shown on the lease deed was paid by the lessee, the executionof the peipetual lease deed could not have takenplace. Therefore,the word 'rent' wouldincludethe premium .paid by the auctionpurchaserfor obtainingthe lease. In otherwords,the expression 'rent' meant 'rent + premium' and not the rent alone. Referencewas made to the definitionofthe word 'premium'in Black's Law Dictionary,6^^ Edition (page 1181). Mr. Phoolka then submitted that every word occurringin Section147 (2) (b) (v)DMC Act had to be Page 16 of25 ..w given full effect to keeping in view the cx)ntext in which the word occurs. Thereforethe disjunctive'or' had to be read as a conjunctive 'and'. Since the lease could not have been executed without the premium beingpaid,the legislativeintentwas to le\'ytransferduty on the amount equal to one-sixthof the entire considerationpayablein respectof the lease which, in any event, has been set forth in the instrument. Mr.Phoolkacontendedthat since the annual rent payable is calculatedas a percentageof the premiumpaid, it is a measureofthe premiumitself Consequently,thereit was logicalto includethe premiumamountaspart of the rent for the purposesof computingthetransferduty.

¶10In supportof liis contentionthat all w^ords in the statutehave to be given full effect Mr.Phoolkareferredto tlie judgments of the Supreme Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. (2005) 7 see 234, Manohar Lai v/ Vinesh Anand (2001) 5 SCC 407, Noorie Manure Mill v. Commissioner Trade Tax (2007) 10 SCC 478, Associated Cement Co. Ltd. v. State of MP (2004) 9 SCC 727 and Indcon Structurals (P) Ltd. v. Commissioner of Central Excise (2006) 6 SCC 786..

¶11IVIr.SanjayGoswamy,leariiedcounsel appearingon behalfof the respondents submitted that a taxing statute admits of only strict interpretation. If the intentionof the legislaturewas to tax the premium paid for the obtainingof a perpetuallease, then certainlythe wordingof Page 17 of25 the provisionshouldexpresslyindicateit. Relianceis placedon Section 105 ofthe TransferofPropertyAct, 1882 ('TP Act') where the words 'premium' and 'rent' have been separatelydefined. Relying on the judgmentof the Supreme Court in Commissionerof Income Tax v. Panbari Tea Company Alk 1965 SC 1871, it is submitted that the expression'premium' and 'rent' have to be separatelyunderstoodand one cannot include the other in the context in which it is used in the deed ofperpetuallease in the instantcase. The word 'rent' can only refer to the actual rent indicated in the lease deed and not the premium. Reference is also made to the decisions in Govind Ram v. Rajphul SinghAIR 1973, Punjab &Haiyana 94 and S. VenkataramanSwami V. S. Abdul Wahab AIR 1969 Madras 473.

¶12In orderto appreciatethe respectivecontentions,a referencemay be made firstto Section147 (2) (b)(v) oftheDMC Act whichreads: "147. Duty on transfer of property and method of assessment thereto.-(1) Save as otherwiseprovidedin this Act, the Coiporation shall levy a duty on transfersof immovablepropertysituatedwithin the limitsof Delhi in accordancewith the provisionshereafterin this section contained.

(2)The saidduty shallbelevied-

(a) in the fomi of a surchargeon the duty imposedby the Indian Stamp Act, 1899 (2 of 1899) as in force for the time being in the Union Territory of Delhi, on every instrument of the description specified below, and

(b) at such rate as may be detennined by the Corporation not exceeding.five per cent, on the amount specifiedbelow againstsuch instruments - Pagel8of25 Description of instrument Amount on which duty should levied

(i) Sale of immovableproperty The amount or value of consideration for the sale, as set forth in instrument.

(ii) Exchangeof immovable property The value of the propertyof the greats value, as set forth in the instrument.

(iii) Giftof immovablepropert; Thevalueofthe property,as setforth the instrument.

(iv) Mortgage with possession immovable property The amount secured by the mortgage ; set forth in the instrument.

(v) Lease in perpetuity immovable property The amountequalto one-sixthof the whole amount or value of the rent which would be paid or deliveredin respectof the first fifty years of the le; as set forth in the instrument, (emphasis supplied)

(v) Contract for transfer of immovable property Ninety per cent of the value of the consideration for the transfer as set out in the contract."

¶13In Niagara Hotels & Builders (P) Limiteda learnedSingleJudge of this Court held that the word 'or' in Section 147 (2) (b) (v) DMC Act could not be read in a manner so as to enable MCD to levy the transfer duty on an aggregateboth the premiumamount as well as the rent. In the impugned order in the instant cases, the learned Single Judge has heldthatthe expression"amount' or 'value' bothqualified"rentand rent alone" and, therefore, the rent,(and not the premium) could alone form the basis for calculatingthe transfer duty.

¶14Dependingon the context,the word 'premium' can have both a broad as well as a narrow meaning. The definition of premium in the Law Lexiconby P. RamanathaAiyar,SecondEditionreads asunder: Pf'^VtmrnmrntiSa sum of money paid as consid^ionfor grantoflease.It represents -caiiteliz^ rent which in fact is the differencebeftveen tiie actual rent and the ^e^t^whi^at otherwisebe obtainedby thele^or. ''PremrnmOrMherLike Sums'\ "are sums paid^ ifi eixcess of the agreed rent in consideration of grant, continuance or renewaloMe tenancy" In Black's Law Dictionmy, Sixth Edition, premium is defined as capitalizedrent"paidinlumpsumat thetimeofleaseis granted,"

¶15The question whether the 'rent' payable under the deeds of perpetuallease in the instant cases includes the 'premium'paid will depend on the contmin which the word is used. This distinctionis acknowledgedin the definitionsof the terms 'premium'and 'rent' in Section105 ofthe TP Act as well.

¶16The decisionof the SupremeCourt in Panbart Tea Company supportsthe contentionof the respondentthat, given the context, the word 'rent'mSection 147 (2) (b) (v)DMC Act has to have anarrow •meaning. The questionthat arose in the said case was "whetherthe premium collected as alump sum (althoughpayable in instalmentsi couldalso be consideredto be a revenuereceiptin the same manneras the rent collected"? In fe said case aregisteredlease deed had been executedbytheAssesseeCompanyby whichtwo teaestateswereleased out to afinn. The considerationfor the lease was acombinationof Page 20 tiV"" ^. t k ] premiumin the sum ofRs.2,25,000ofthe annualrent ofRs.54,000. The premium was to be paid in the following manner: Rs.45,000 as lump sum at the time of execution of the lease deed and the balance of K.s.1,18,000in sixteenhalfyearly instalmentsof Rs.11,250before the 31®' January and 31'^ July of each year. The annual rent of Rs.54,000 was payablein the followingmanner:Rs.1,000per monthto be paid on or beforelastdate ofeach month,thus, makingin all Rs.12,000per year and the balanceofRs.42,000to be paid on or before 31'' Decemberof each year. In the assessmentyear for 1952-53,the income tax officer treatedthe instalmentofRs. 11,250paid towardspremiumas a revenue receipt. This assessment was upheld by the Appellant Assistant Commissioneras well as the Tribunal. The High Court reversed the Tribunaland heldthatthe sum ofRs.l1,250was acapitalreceiptand not a revenue receipt. The Departmentthen appealedthe Supreme Court. The Supreme Court referred to the decisions in Kamakshya Narain Singh V. CommissionerofIncomeTax (1943)IIITR 513, Memberfor the Board of Agriculturev. Commissionerof Income Tax (1957) 32 ITR 169 and ChintamaniSaranNath Sah v. CommissionerofIncome Tax AIR 1961 SC 732 to underscore the distinction between the premiumand rent. It pointedout that a one-timepaymentofpremium for the grant of a leasewas Iciiovmas 'salami' whichis in the natureof a capital receipt in the hands of the lessor. The Supreme Court then referred to Section 105 TP Act and observed as under: "The section, therefore, brings out the distinction Page21 of25 betweenapricepaid for atransferofarightto enjoy tlie propertyand the rent to be paidperiodicallyto the lessor. When the interestofthe lessoris partedwith for aprice, the price paid is premium or salami. But the periodical payments made for the continuous enjoyment of the benefits under the lease are in the nature of rent. The foniier is a capital income and the latter a revenue receipt. There may be circumstanceswhere the parties may camouflage tlie real nature of the transactionby using clever pliraseology. In some cases, the so-called premium is in fact advance rent and in others rent is defeiTedprice. It is not the form but the substanceof the transactionthatmatters. The nomenclatureused may not be decisive or conclusivebut it helps the Court, having regard to the other circumstances, to ascertain the intentionof the parties." On an analysisof the relevantclausesin the lease deed, it was held that the amount paid as premium could not be construedas rent and, such premiumwasa capitalreceiptinthehandsof the lessor.

¶17InHotelKings v. Sara Farhan Liikmani(2007) 1 SCC202, the SupremeCourtemphasizedthe importanceofacontextualinterpretation and heldthatwhilethe permittedincreasein rentcan serveas ayardstick for the landlord to increase the rents it did not make such pemiitted increase"apartofthe rentthoughit may be aconsiderationfor the grant of lease."

¶18The lease deedin the instantcases a makesreferenceto the annual rentthat wouldbe payablein future. This is not a pre-determinedfigure but is to be workedout as a percentageofthe premiumamount. This is set out in the lease deed. For instance in tlie lease deed dated 1^' Page 22 of25 December,2003 in favour of M/s N.K. Gupta, the fourth paragraphof the preamble reads: "NOW THIS INDENTURE WITNESSETH that, in consideration of the amount of Rs. 1,31,04,000/-(RupeesOne CroreThirtyOne lacs and Four thousandonly) paid towards premium before the execution of these presents (the receipt where of the Lessor hereby aclcnowledges) and of the rent hereinafter reserved and of the covenants on the part of the lessee hereinafter contained, the Lessor doth hereby demise « ; unto the Lessee, all that plot of land being the Commercial Plot No. 09 Block No. X in the lay out plan of New Friends Colony District Centre"

¶19In the later portion of the same paragraphof the lease deed, the annual rent is statedas being two and a halfper cent of Rs.1,31,04,000 and the first annual rent instalmentis to be paid on 15"' January,2008. The relevantportionreadsasunder: "TO HOLD the premisesunto the lessee in perpetuity from 24^ day of January two thousand and three YIELDING AND PAYING thereforeyearly rent payable in advance of Rs. 5/- (Rupees Five only) up to the 23'^'^ day of January two thousand and Eight and thereafter at the rate of two and a half per cent of the premium (the sums already paid and such other sum or sums hereafter to be paid towards premium under the covenants and conditions hereinafter contained) or such other enhancedrent as may hereafter be assessed under the covenants and conditions hereinafter contained clear of all deductions by equal half yearly payments on the 15^^ day ofJanuaiyand 15^'' day ofJuly in each year at the Reserve Bank of Inia, New Delhi." Page23of25

¶20A reading of the aforementioned portions of the perpetual lease deed brings out the distinctionbetween 'premium' on the one hand and 'rent' on the other. The word 'premium' carries more than one definition; it has to be understood in the context in which it is used in a lease deed. The question whetherthe word 'premium' is also subsumed in the words "whole amount or value of the renf occurringin Section 147 (2) (b) (v) DMC Act has to be answered with reference to the context in which the word is used in the lease deeds in question. A careful examination of the above clauses of the lease deed, leads to the conclusionthat the 'premium' paid for the lease is distinct from the 'rent' payablethereunder.In other words, 'rent' in Section 147 (2) (b)

(v) t)MC Act cannotbe saidto includethe premiumpaid for the lease.

¶21It is also not possibleto construethe premium paid as advance rent since the annualrent in is not indicatedas a pre-determinedsum in the lease deed. It is a percentageof the premium paid. The premium amount serves as a yardstick for determiningthe rent payable. It is thereforenot possibleto interpretthe word 'rent' in the lease deeds in the instantcasesas includingthe premiumpaid.

¶22This Court is inclinedto acceptthe contentionof the respondent that since what is sought to be collectedis a transferduty, which is an involuntary exaction of revenue, the statute admits of a strict Page24 of25 jb-interpretation.The"principleenunciatedin the decisionsrelied upon by the appellantsthat everyword in a statutemustbe givenits full meaning is unexceptionable.However, the meaning so given must be in the context of the statute in general and the provisionin particular.In the context of the lease deeds in questionin the instantcases,the word 'rent' cannot possibly be interpretedto includethe premium paid for the grant of the lease. As rightly contended by the respondents, if the legislature intended to make the premium paid for the lease as includible for the purposes of determining transfer duty then the statute should have been expresslyworded to reflect that intention.

¶23Accordingly,this Court concurswith the conclusionarrived at by the by the learned Single Judge. The appeals are dismissed with no orders as to costs. July 02,2008 sb

S. MURALIDHAR, J. CHIEF JUSTICE

IN THE HIGH COURT OF DELHI AT NEW DELHI Reservedon: 19^^May, 2008 Dateoforder: 2^"^ July,2008 LPA No. 384/2007 MUNICIPAL CORPORATION OF DELHI Through: Mr.H.S. Phoolka, Senior Advocate Mr. Sanjeev Sabharwal & Mr. Alok Singh, Advocates VARDHMAN PROPERTIES .Respondent Through Mr. Sanjay Goswamy and Mr. Ajay Kumar, Advocates for the Respondents. Ms. Iram Majid and Ms. Zubeda Begum, Advocates for Respondent GNCTD. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S. MURALIDHAR