- (1.)JANARDAN Sahai, J. The petitioner was granted a licence under Section 4 (2) of the Indian Telegraph Act, 1885 to establish, maintain and operate fixed and mobile telephone services. In connection with this business the peti tioner installs radio based station also known as cell sites and Telecom towers at suitable locations usually on empty roof top spaces of buildings. The petitioner has entered into various identical agreements each described as a licence in respect of a number of sites in Ghaziabad for installing cell site and other related equipments on the terrace or ground space of the property of the 'licensor'. The dispute in the present writ petition relates to 17 such licence deeds each of which was executed on a stamp paper of Rs. 100 in accordance with Entry 5-C of Schedule 1-B of the Indian Stamp Act.
(2.)A circular letter dated 5. 2. 2003 was issued by the Commissioner (Stamps) to the various Assistant Commissioners and Collectors of Stamp in UP. that telephone companies were executing agreements with private persons for taking on rent their roofs for installation of tower and these documents were neither being registered nor stamped and the Additional Collectors were directed to visit the offices of the companies and to examine the agreements and ensure the recovery of proper stamp duty and registration of such agreement. In pursuance of the circular the District Magistrate Ghaziabad issued notice dated 9. 11. 2004 to the petitioner stating that the petitioner was not paying the requisite stamp duty under Article 35 of Schedule 1-B of the Stamp Act, which is applicable to a lease and was thereby violating the provisions of Section 17 of the Act. The petitioner was called upon to appear before the District Magistrate on 19. 11. 2004. The notice was followed by another notice dated 10. 12. 2004. The notice dated 9. 11. 2004, which according to the petitioner was served upon the petitioner on 20. 12. 2004 after the date of the meeting was accompanied by a format in which the petitioner was required to provide information regarding the rent per month payable and the period of the agreement. The petitioner gave reply dated 27. 1. 2005 and furnished the details of the aforesaid agreements disclosing the monthly charges being paid by the petitioner as compensation to the licensor/guarantor and the period of the licence, namely 20 years. The copy of the letter dated 27. 1. 2005 of the petitioner has been filed by it as Annexure P-8.
The petitioner was given another notice dated 17. 2. 2005 to the effect that it had violated the provisions of the Indian Stamp Act. The petitioner's reply to the notice was that the agreement it had entered into was a licence and not a lease. The respondent No. 2 Assistant Commissioner of Stamp, Ghaziabad passed a composite order dated 14. 3. 2005 holding that the 17 licence deeds executed by the petitioner are in fact lease deeds for a period of more than one year and hence liable to stamp duty under Article 35 of Schedule (1-B) of the Indian Stamp Act and a deficiency of Rs. 13,13,300/- was assessed together with penalty of four times the alleged deficiency. The Commissioner by his order dated 25. 4. 2006 dismissed the appeal of the petitioner. The petitioner has challenged the order of the Commissioner dated 25. 4. 2006 as well as that of the Assistant Commis sioner dated 14. 3. 2005 and the circular dated 5. 2. 2003 as well as the notices and letters dated 9. 11. 2004,10. 12. 2004 and 17. 2. 2005.

It is not in dispute that the deficiency in stamp duty was noticed from a copy of the agreement furnished by the petitioner in the circumstances set out above and the original agreement was never produced. Under sub-sections (4) and (5) of Section 33 of the Indian Stamp Act introduced by the U. P. Amendment, if deficiency of duty is noticed from a copy of the instrument the Collector can call for the original instrument for the purposes of satisfying himself about the ad equacy of duty paid and if the original instrument is not produced the Collector can require payment of deficient stamp duty on the copy of the instrument. The petitioner has also prayed for a declaration that the provisions of Section 33 (4) and (5) and Section 56 (1-A) inserted by U. P. Amendment are ultra vires the Constitution of India.

(3.)I have heard Sri Sunil Gupta, learned senior Advocate who appeared for the petitioner and the learned Advocate General who defended the validity of the U. P. Amendment. I have also heard the learned Standing Counsel. Written arguments have been filed on behalf of the petitioner and also by the State. The petitioner's case is that in its very nature stamp duty is a duty levied on an original instrument and not upon the transaction nor upon a copy of the instrument. The duty it is submitted is leviable only upon the voluntary production of the instrument. It is in this sense that stamp duty has been used in the Stamp Act and accepted by Courts. Entry 44 of List III of the Vllth Schedule of the Constitution of India is as follows: "stamp duty other than duties and fees calculated by means of judicial stamps but not including the rates of stamp duty. "
According to the petitioner the Constitution framers have 'used stamp' duty in Entry 44 in the same sense in which it was always recognized in the Stamp Act and consistently in the judicial decisions at the time the Constitution was framed and so understood no stamp duty is leviable upon a copy of an instrument; but by sub-sections (4) and (5) of Section 33 introduced by the U. P. Amendment a copy of the instrument is being charged, sub-sections (4) and (5) are also repugnant to the other essential characteristic of stamp duty that it can be charged only upon a voluntary production of the instrument. Under sub-sec tions (4) and (5) of Section 33 however the Collector can call upon a party to produce the original instrument and if he does not do so, the Collector can charge duty upon the copy. These provisions therefore empower the Collector to charge duty even though the instrument or its copy is not voluntarily produced. The levy therefore is not in the nature of stamp duty envisaged in Entry 44. These provi sions are therefore beyond the competence of the legislature. The fact that the U. P. Amendment incorporating sub-sections (4) and (5) has received the assent of the President would not confer any validity upon the amendment as the duty imposed by sub-sections (4) and (5) is not stamp duty at all and levy of such duty is beyond the competence of the State legislature.