The main legal point established in the judgment is the classification of the Concession Agreement as a lease under the TP Act and IS Act, and the determination of stamp duty payable on the amount spent by the lessee.

JUDGMENT :

Vikram Nath, J.

1. By the impugned judgment and order dated 11.02.2010, the High Court of Madhya Pradesh at Jabalpur decided a group of twelve petitions wherein the question involved was whether a transaction where the right to collect tolls is given in lieu of the amount spent by the Concessionaire in the construction of roads, bridges etc. under the Build, Operate & Transfer (BOT) Scheme amounts to a “lease” as contemplated under Section 105 of the Transfer of Property Act, 1882¹ [TP Act] and Section 2(16) of the Indian Stamp Act, 1899²[IS Act]. Further challenge made in the said writ petitions was with regard to the validity of the amendment made in proviso (c) to Clause (C) of Article 33 of Schedule 1(A) as amended by the Indian Stamp (M.P.) Act, 2002, and a further prayer was made to declare Section 48 and 48(B) of IS Act, 1899, as amended by M.P. Act 24 of 1990 as ultra vires.

2. The Division Bench of the High Court, after considering the submissions and the material on record came to the conclusion that the writ petitions were without any merit and accordingly dismissed the same. Aggrieved by the same, these twelve appeals have been preferred.

3. For the sake of convenience, we are referring to the facts of Civil Appeal No.8985 of 2013, which are briefly stated hereunder:

(i) Madhya Pradesh Rajya Setu Nirman Nigam Ltd.³[MPRSNN], (respondent no.3) is a Company incorporated and registered under the Companies Act, 1956. The State of Madhya Pradesh, vide order dated 01.02.2001, authorized MPRSNN for reconstruction, strengthening, widening and rehabilitation of a section of road on Satna-Maihar-Parasimod-Umaria Road Project to be executed through Concession on Build, Operate and Transfer Scheme.

(ii) MPRSNN, vide Advertisement dated 22.04.2002, invited tenders against the aforesaid project pursuant to which the bid of the appellant was accepted. On 8th August, 2002, Letter of Acceptance was issued by the MPRSNN to the appellant for execution of the Concession Agreement within 30 days.

(iii) The IS Act was amended in the State of Madhya Pradesh vide Amendment Act No.12 of 2002 and proviso (c) to Clause(C) was inserted to Entry No.33 of Schedule-1(A), which provided that there shall be levy of stamp duty @ 2% on the amount likely to be spent on the project, on the agreement to lease and right to collect the toll is given. The State of Madhya Pradesh notified the said amendment on 12.08.2002.

(iv) A Concession Agreement was signed on 15.09.2002 on a stamp paper of Rs.100 between MPRSNN and the appellant. A show cause notice dated 26.03.2004 was issued to the appellant intimating that the matter between State of M.P. and the Rewa Tollway Private Ltd. would be listed for hearing on 29.03.2004 before the Collector of Stamps, Bhopal and the appellant was required to produce the original copy of the agreement dated 15.09.2002. The appellant filed a detailed reply dated 25.04.2004 stating that the agreement executed was a Concession Agreement and, as such, it cannot be treated as a lease but as a license at best. The Collector (Stamps), Bhopal vide order dated 30.04.2004 passed an order exercising power under Section 48-B of the IS Act directing recovery of deficit stamp duty amounting to Rs.1,08,00,000/-(Rupees one crore eight lakhs) said to be payable on the Concession Agreement dated 15.09.2002. Thereafter, a recovery notice was issued on 29.05.2004 by the Collector (Stamps), Bhopal to deposit the aforesaid amount within seven days of the receipt of the said recovery notice.

(v) On 6th June, 2004, the appellant challenged the order dated 30.04.2004 by way of a writ petition under Article 226 of the Constitution which was registered as Writ Petition No.2219 of 2004. The High Court vide order dated 03.08.2004 granted interim stay of recovery of any amount pursuant to the impugned order dated 30.04.2004. The High Court, vide judgment and order dated 11.02.2010, dismissed the said writ petition along with eleven other matter