An Agreement to Lease which does not create a present demise is classified as a license, not subject to stamp duty as a lease under relevant statutory provisions.

JUDGMENT :

Abhay Ahuja, J.

1. This Petition filed under Article 227 of the Constitution of India seeks direction to set-aside the Order dated 22^nd June 2005 passed by the Chief Controlling Revenue Authority in Appeal No. 127 of 1998 whereby the Chief Controlling Revenue Authority had dismissed the appeal preferred by the Petitioner under Section 53 of the Bombay Stamp Act, 1958 now Maharashtra Stamp Act, 1958 (the “Stamp Act”) thereby confirming the Order dated 1^st July 1998 passed by the Collector of Stamps which confirmed the Order dated 31^st March 1998 whereby the Collector of Stamps has held that the Agreement dated 13^th October 1995 executed between the Respondent No.3 City and Industrial Development Corporation of Maharashtra Limited (the “CIDCO”) and the Petitioner is liable to be treated as ‘lease’ for the purpose of assessment of stamp duty under the Stamp Act.

2. The background facts are that in and around 1991, Respondent No. 3 CIDCO published a scheme for the benefit of the industries and corporate offices established in Navi Mumbai for meeting its staff housing needs. The scheme provided for lease of developed residential plots for construction of staff housing in different townships in Navi Mumbai and accordingly Respondent No. 3 CIDCO invited tenders in respect of plots.

3. The Petitioner successfully bid for Plot No. 4 in Sector 9E at Kalamboli, Navi Mumbai admeasuring an area of 29,881.16 sq. mtrs. (the “said land”).

4. On or about 24^th September, 1992 the Petitioner paid a sum of Rs. 3,73,51,450 (Rupees Three Crore Seventy Three Lakh Fifty One Thousand Four Hundred Fifty Only) to CIDCO being the full premium agreed to be paid by the Petitioner to the Respondent No. 3 CIDCO.

5. The Respondent No.3 CIDCO executed an agreement titled ‘Agreement To Lease’ dated 13^th October 1995 (the “said Agreement”) in favour of the Petitioner. The said Agreement was executed on a stamp paper of Rs.20/- under Article 5(h) of Schedule I to the Stamp Act.

6. The Respondent No. 2 objected to the said Agreement vide Section 33 of the Stamp Act and by its notice dated 21^st February, 1998 called upon the Petitioner to show cause as to why the stamp duty of Rs.26,14,695/- was not paid on the said Agreement as is payable as per Article 36(a)(4) and (C) of Schedule I of the Stamp Act and why the aforesaid amount should not be recovered from the Petitioner with 2% interest on the said stamp duty charge from the date of executing of the document. The Respondent No.2 also sent a copy to the Respondent No. 3 CIDCO with a request to not grant any ‘no objection certificate’ or ‘building completion certificate’ until the said amount was paid by the Petitioner to the Respondent No.2.

7. The Petitioner replied to the said Notice by its letter dated 09^th March 1998 stating that as per the said Agreement the Petitioner was a bare licensee in respect of the said land and sought four weeks time to send its detailed submissions.

8. On 10^th March 1998, the Respondent No.2, passed an Order under Section 39 (1) (b) of the Stamp Act and ordered that the Petitioner should deposit the difference of amount of Rs, 26,14,695/- of the stamp duty and interest at the rate of 2 % per month on the said amount from 13^th October 1995 till the said amount is deposited.

9. The Petitioner sent its Advocates’ detailed submissions to the Respondent No.2 under cover of its letter dated 31^st March, 1998 and referred to the various clauses of th