Arun Mishra, J.

( 1. ) In these writ petitions, question involved is 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 and Transfer (BOT) scheme amounts to a "lease" as contemplated under Section 105 of the Transfer of Property Act, 1882 (hereinafter referred to as "T.P.Act") and Section 2(16) of the Indian Stamp Act, 1899.

( 2. ) The constitutional validity of the amendment made in proviso to third clause of Article 33 of the Schedule 1-A as amended by Indian Stamp (M.P.) Act,2002 has also been challenged. Further prayer has been made to declare Section 48 and 48-B as amended by M.P.Act 24 of 1990 as ultra vires.

( 3. ) Facts are being referred from WP No.3041/2004 (RV Infrastructure Engineers Pvt. Ltd. Vs. State of M.P. and others). The petitioner is a Company engaged in construction of roads, etc. Respondent No.3/M.P. Rajya Setu Nirman Nigam Ltd. (hereinafter referred to as "MPRSNN") is a company incorporated and registered under the Companies Act. State Government has authorized MPRSNN for reconstruction, strengthening, widening and rehabilitation on Badnawar-Badnagar-Ujjain-Dewas Road project of approximately length of about 106kms. on Build, Operate and Transfer basis vide Order dated 1.2.2001. NIT was issued by MPRSNN inviting the bids, letter of acceptance was issued on 25.4.03 requiring execution of Concession Agreement within 30 days. Concession agreement dated 31.7.03 was executed. A show cause notice was served upon the petitioner by Revenue Officer, Collector (Stamps), Ujjain which required to produce original copy of the agreement. Petitioner had submitted that notice is vague. In order to point out the correct position, petitioner at his own submitted reply- cum- representation (P.4).Collector thereafter passed the impugned order against the petitioner on 31.3.2004 purporting to exercise power under Section 48-B of Indian Stamp Act directing recovery of deficit stamp duty of Rs.98,60,000 and fine of Rs.5,00,000, total Rs. 1,03,60,000. Petitioner has submitted that the transaction is not "lease". The Concession Agreement has two parts (a) it offers for use and development of the highway site to the Concessionaire to repair, construction and maintenance of roads under a Bond BOT Scheme; and (b) it entitles concessionair Qudar Qudarat Ullah vs. Municipal Board, Bareilly, AIR 1974 SC 3 96 after completion of the project and during the agreed toll period to levy, collect and appropriate the fees (toll) for the user of project highway by the travelling public pursuant to and in accordance with the fee notified. Petitioner has submitted that right to collect toll as per the Concession Agreement arises only after completion of project. The right is dependent on various contingencies and fulfillment of conditions enumerated in the Agreement. Benefit of the toll will accrue only when the project is successfully completed. The property (road) is yet to be created. The agreement may be terminated even before completion of the project. The transaction does not amount to "lease" within Section 2(16)(c) of the Indian Stamp Act. It is a "licence" not a "lease". Government is providing subsidies to promote and complete the project. No machinery of adjudication has been provided under Section 48-B of nian Stamp Act as amended in M.P. Under Section 48 the Collector has power to recover the duty and penalty by coercive method. Section 48-B suffers with the same flaw. Both the provisions 48 and 48-B are unconstitutional. Petitioner has also submitted that Article 33 of Schedule 1-A as amended by Indian Stamp (MP) Act,2002 is ultra vires due to lack of legislative competence. Schedule 1-A levies stamp duty on instrument properly and legally characterized as lease. From the amended provision, it is clear that though instrument is not a "lease", it is sought to be made liable to bear stamp duty. Thu