JUDGMENT :

A. S. Chandurkar, J.

The challenge raised in this writ petition is to the order dated 28/02/2006 passed by the Chief Controlling Revenue Authority, Maharashtra State, Pune thereby confirming the order dated 11/11/2005 passed by the Collector of Stamps in proceedings under the Maharashtra Stamps Act, 1958 (for short, the said Act). By the said order, the agreement between the parties has been adjudicated as a “lease” falling under Article 36(b) of Schedule-I to the said Act.

2. The facts in brief are that an advertisement was issued by the State of Maharashtra for constructing a bridge across Vainganga river. That work was to be done on “Build, Operate and Transfer” (BOT) basis. The offer made by the petitioner came to be accepted. A Concession Agreement was accordingly entered into between the petitioner and the State of Maharashtra through the Secretary, Public Works Department on 16/11/1998. The Collector of Stamps initiated proceedings for adjudication of proper stamp duty payable on the said agreement. After considering the agreement entered into by the petitioner on 05/07/2005 a communication was issued to the petitioner in which it was stated that the agreement was in the nature of lease as per provisions of Section 2(n)(iii) of the said Act. The petitioner was called upon to show cause as to why stamp duty should not be recovered in terms of Section 39(1)(b) of the said Act. According to the petitioner the Concession Agreement could not be treated as “lease” as defined by Section 2(n) of the said Act. The petitioner submitted its explanation on 19/07/2005 and after exchange of communications, the Joint District Registrar and Collector of Stamps called upon the petitioner to pay deficit stamp duty of Rs.7,84,76,540/-. However on 11/11/2005 an order came to be passed by the Joint District Registrar and Collector of Stamps under Section 39(1)(b) of the said Act and the petitioner was called upon to pay the deficit stamp duty within a period of thirty days. Being aggrieved by that order the petitioner filed an appeal under Section 53(1A) of the said Act. Though the petitioner filed an application under Section 54 of the said Act seeking a reference of the question of law to this Court no orders were passed on that application. Ultimately by the impugned order the appeal preferred by the petitioner came to be rejected by the respondent No.2. Being aggrieved the said order has been challenged in this writ petition.

3. After the writ petition was entertained and admitted by the learned Single Judge, by virtue of administrative directions issued, the writ petition was directed to be placed before the Division Bench. Accordingly we have heard the learned counsel for the parties.

4. In support of the challenges raised to the impugned order Shri D. V. Chauvan, learned counsel for the petitioner submitted that on complete reading of the Concession Agreement which was not a registered document it was clear that the same could not be termed to be a “lease” as defined by Section 2(n) of the said act. The subject matter of the Concession Agreement was the construction of a bridge over Vainganga river and the agreement was to be executed on “BOT” basis. With a view to enable the petitioner to recover the cost of construction it was permitted to collected toll for a period of eighteen years and nine months which included the construction period of two years and six months. Referring to Clause-1.13 of the Concession Agreement it was submitted that the petitioner was entitled to collect fees as notified by the Government of India under the National Highways Act and the fees were to be retained by the petitioner collected from the vehicles using the facility. Referring to Clause 3.14 it was submitted that exclusive possession of any immovable property was never handed over to the petitioner and it was merely required to undertak