2024 INSC 539 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8985 OF 2013

M/S REWA TOLLWAY P. LTD. …APPELLANT(S)

VERSUS

THE STATE OF MADHYA

PRADESH & ORS. …RESPONDENT(S)

WITH

CIVIL APPEAL NO.8989 OF 2013

CIVIL APPEAL NO.8986 OF 2013

CIVIL APPEAL NO.8990 OF 2013

CIVIL APPEAL NO.8988 OF 2013

CIVIL APPEAL NO.8987 OF 2013

CIVIL APPEAL NO.8991 OF 2013

CIVIL APPEAL NO.8992 OF 2013

CIVIL APPEAL NO.8993 OF 2013

CIVIL APPEAL NO.8995 OF 2013

CIVIL APPEAL NO.8996 OF 2013

CIVIL APPEAL NO.8994 OF 2013

2

J U D G M E N T

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, 1882

1 and

Section 2(16) of the Indian Stamp Act, 1899

2. 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.

1

TP Act

2

IS Act

3

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, (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 8

th 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

3

MPRSNN

4

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 agr eement 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

5

amount within seven days of the receipt of the said

recovery notice.

(v) On 6

th 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 matters and upheld the demand raised by the

Collector of Stamps by the order dated 30.04.2004.

(vi) Aggrieved by the impugned judgment of the

High Court, the appellant preferred the instant

appeal with connected matters before this Court on

3

rd May, 2010, in which notices were issued on 14

th

May, 2010 and, thereafter, interim order was passed

on 7

th January, 2011. Later on, vide order dated

13.09.2013, this Court granted leave and further

directed the interim stay granted earlier to continue.

4. We have heard Shri Dushyant Dave, learned Senior

Counsel appearing for the appellants in nine (9) appeals

and other learned counsels appearing for the appellants

in the other three (3) appeals and Shri Saurabh Mishra,

learned Additional Advocate General for the State of

6

Madhya Pradesh on behalf of the respondents.

5. Before we proceed further with the submissions, it

would be relevant to refer to three other dates which have

been referred to by Shri Dave in support of his

submissions on legitimate expectation and promissory

estoppel. According to Shri Dave, after the tender was

invited vide Advertisement dated 22

nd April, 2002, the

Chief Secretary issued a Clarification dated 01.07.2002

with respect to the agreements executed under BOT

Scheme stating that stamp duty would not be payable on

such agreements in the State of Madhya Pradesh also and

further reiterating that in order to avoid any doubts to be

raised in future, it is necessary to clarify that no stamp

duty shall be payable on the agreements being executed

under BOT Scheme. A further clarification was issued

vide letter dated 21.07.2002 by the Chief Secretary of the

State with respect to the Resolution dated 01.07.2002,

that no stamp duty would be levied on BOT Projects in

future and such agreements would be signed on stamp

paper of Rs.100/-. Shri Dave further referred to the

Notification of the State Government dated 10

th March,

2008 whereby the stamp duty on toll was reduced from 2%

to Rs.100 i.e. the position which existed prior to the

Amendment of 2002 and as clarified in the notification

and the letters of 1

st July of 2002 and 21

st July, 2002. It

was, thus, submitted that the charge of 2% stamp duty

7

was only applicable in the State of Madhya Pradesh

between August, 2002 till March, 2008 and, thereafter,

again all such Concession Agreements under BOT

Scheme are to be executed on stamp paper of Rs.100. It

was throughout the intention of the State of Mad hya

Pradesh to not charge stamp duty @ 2% and treat the

Concession Agreement under BOT Scheme to be a license

but unfortunately for the period referred to above, it was

treated as a lease and the appellants are the victims of

this period, whereas all subse quent Concession

Agreements under BOT Scheme executed after 10

th March,

2008 are exempt from such stamp duty.

6. Further continuing his submissions Mr. Dave,

learned Senior Counsel submitted that in view of the

Clarification dated 01.07.2002 and subsequent

circulation vide letter dated 21.07.2002 throughout the

State, once it was clarified that the Concession

Agreements under the BOT Projects would be executed on

stamp paper of Rs.100/-, the appellants entered into the

agreement with the same impression and having

calculated their project cost and also their tenders

without factoring in 2% stamp duty, had legitimate

expectation that the agreement would not require stamp

duty @ 2% of the value, but was to be executed only on

stamp paper of Rs.100/-. The subsequent demand was

contrary to the legitimate expectations of the appellants

8

and, therefore, liable to be set aside.

7. It was next submitted that the Circular of the Chief

Secretary dated 1

st July, 2002 and its subsequent

circulation vide letter dated 21

st July, 2002, estopped the

State Government from amending the IS Act and, further

raising the demand @ 2% treating the Concession

Agreement to be a lease, the same would be hit by

principle of promissory estoppel. The State was estopped

from demanding such stamp duty by treating the

Concession Agreement to be a lease.

8. In support of his submissions, Shri Dave has placed

reliance upon the following judgments:

(1) Navjyoti Co-op. Group Housing Society

Vs. Union of India;

4

(2) Food Corporation of India Vs.

Kamdhenu Cattle Feed Industries

5

;

(3) The State of Jharkhand and Ors. Vs.

Brahmputra Metallies Ltd. Ranchi and

Anr

6

.;

(4) State of Bihar and Ors. Vs. Shyama

Nandan Mishra

7

;

(5) M/S Hero Moto Corp Ltd. Vs. Union of

4

(1992) Supp.1 SCR 709

5

(1992) Supp.2 SCR 322

6

(2020) 14 SCR 45

7

(2022) 11 SCR 1136

9

India and Ors.

8

;

9. Shri Dave, learned Senior Counsel next submitted

that the insertion of proviso (c) to Clause(C) under Article

33 of Schedule 1-A by the 2002 Amendment Act was ultra

vires as it violates the mandate of Article 14 of the

Constitution of India. It was submitted that the said

amendment was illegal, arbitrary and bad in law as it

nullified the promise made by the Chief Secretary, vide

Circular dated 01.07.2002, and has taken aw ay the

vested right of the appellants of not factoring in 2% stamp

duty and ultimately resulting into a demand of a huge

amount of Rs.1,08,00,000/- (Rupees one crore eight

lakhs) approximately. In support of his submission, he

has relied upon the following two judgments:

(1) State of Gujarat and another Vs. Raman

Lal Keshav Lal Soni and Ors.

9

;

(2) B.S. Yadav and Ors. etc. Vs. State of

Haryana and Ors. Etc.

10

;

10. The next point raised by Shri Dave is that the

aforesaid amendment was ultra vires, inasmuch as, the

State had no legislative competence to bring in this

amendment. Further, it was submitted that it was a

colourable and excessive legislation and was a fraud on

8

(2022) 13 SCR 592

9

(1983) 2 SCR 287

10

(1981) 1 SCR 1024

10

the Constitution of India, inasmuch as, the State itself in

2008 withdrew the Amendment of 2002. In support of his

submission, he has relied upon the following judgment:

(1) Kunnathat Thathunni Moopil Nair Vs.

The State of Kerala and another

11

;

11. The next submission of Shri Dave is that the

Concession Agreement dated 15.09.2002 is not an

instrument of lease and, as such, the demand of 2%

stamp duty was totally uncalled for and illegal. According

to him, the ownership of the project land has not been

transferred by the State to the MPRSNN and, as such,

MPRSNN could not transfer any ownership or interest to

the appellants. The Concession Agreement was on the

concept of public, profit, partnership (PPP mode). He has

further elaborated his submissions by referring to Section

105 of the TP Act. According to him, in a lease, the

following three ingredients must pre-exist:

(1) There is a transfer of a right to enjoy such property.

(2) It is made for a fixed time, express or implied or in

perpetuity.

(3) There has to be consideration of a price paid or

promised.

12. According to Shri Dave, learned Senior Counsel for

11

(1961) 3 SCR 77

11

the appellants, lease means transfer of interest in the

property to enjoy the property whereas, license means

transfer of property but no interest in the property.

According to him, in the present case, there was no

transfer of interest in the property, as such, it would not

fall within the definition of lease. He has further referred

to various clauses of the Concession Agreement in

support of his submission.

13. It was next submitted that MPRSNN is a 50%

partner in the construction of the project which indicates

that the Concession Agreement is a mutual contract and,

as such, would not levy 2% stamp duty as imposed by the

impugned orders. According to him, out of a total project

cost, 50% was to be paid by the MPRSNN. According to

him, respondent no.3, MPRSNN being a 50% partner in

the entire road project meant that the appellant and

respondent no.3 are equal stake holders and, as such, the

unilateral imposition of 2% stamp duty of the entire

project cost on the appellant was illegal and unwarranted.

He has further criticised the judgment of the Collector

(Stamps), Bhopal whereby he held that the total project

cost was Rs.110 crores whereas actually it was 54 crores,

out of which, MPRSNN (respondent no.3) had granted

subsidy and invested Rs.29.10 crores and the remaining

Rs.24.90 crores, was invested by the appellant. As such,

even if he was liable to pay 2% stamp duty, the amount

12

would be much less, approximately Rs.48 lakhs and odd

and not Rs.1.08 crores, which was 2% stamp duty on the

entire project cost.

14. The last argument raised is that once the IS Act had

been re-amended on 10th March, 2008, the earlier

Amendment of 2002 should be held to be illegal and

arbitrary. On such submissions, Shri Dave, learned

senior counsel urged the Court to allow the appeal and

set aside the impugned orders imposing deficiency in

stamp duty of Rs.1.08 crores.

15. On the other hand, Shri Saurabh Mishra, learned

Additional Advocate General for the State of Madhya

Pradesh representing all the three respondents including

'MPRSNN' submitted that the High Court had dealt with

all the above arguments in great detail and had rejected

them for good reasons based on statutory provisions as

also the law on the point. It did not suffer from any

infirmity, much less any perversity warranting

interference by this Court.

16. According to Shri Mishra, all the ingredients of a

document constituting a lease as defined under the TP Act

were existing in the Concession Agreements under the

BOT Scheme. He has also referred to various clauses of

the Concession Agreement to show that possession was

actually transferred to the appellants in order to recover

the toll, the period of such possession was defined to be

13

fifteen years. It was for a consideration which was also

mentioned in the agreement. Therefore, all the three

ingredients were fulfilled and, as such, the Collector

(Stamps), Bhopal and the High Court rightly held the

Concession Agreements to be a lease. He also referred to

definition of ‘lease’ under the IS Act, as laid down in

Section 2(16), which includes any instrument by which

tolls of any description are let. He also referred to the

definition of ‘immovable property’ as defined under

Section 3(26) of the General Clauses Act, 1897, which

would include land, benefits to arise out of land, and

things attached to the earth, or permanently fastened to

anything attached to the earth. He further referred to

various findings recorded by the High Court. He further

placed reliance upon three judgments of this Court:-

(1) Associated Hotels of India Ltd. Vs. R.N.

Kapoor

12

;

(2) State of Uttarakhand and Ors. Vs.

Harpal Singh Rawat

13

;

(3) Nasiruddin and another Vs. State of

Uttar Pradesh Thr. Secretary and Ors

14

.;

17. Shri Mishra, further referred to the various

provisions of the Indian Tolls (MP) Amendment Act, 1972.

Insofar as to the challenge of the amendments as being

12

AIR 1959 SC 1262

13

(2011) 4 SCC 575

14

(2018) 1 SCC 754

14

ultra vires is concerned, Shri Mishra submitted that the

insertion of proviso (c) to Clause(C) to Entry-33, is only for

determining the rate of charging stamp duty and, as such,

the challenge was totally irrelevant. The Concession

Agreement is a lease as defined under Section 105 of the

TP Act as also under Section 2(16) of the IS Act and,

therefore, would be chargeable to stamp duty, for which

rate is provided under Schedule 1-A. It was further

submitted that the submission relating to Promissory

Estoppel and Legitimate Expectation are unwarranted

and without any merit, inasmuch as, prior to the

execution of the concession agreement, the amendment

had been brought in. The communication by the Chief

Secretary cannot have any overriding effect over the

statutory amendments brought in by the State legislature.

It is also submitted that there can be no Legitimate

Expectation or application of Promissory Estoppel against

statute. It is also submitted that the State was fully

competent to carry out the amendments. It was next

submitted that as the 2002 amendment had been

reversed in 2008, cannot by itself draw any kind of

presumption that 2002 amendment was illegal. It was

submitted that the appeals lack merit and are liable to be

dismissed.

18. Having considered the submissions advanced and

having perused the material on record, we have no

15

hesitation in holding that the judgment of the High Court

impugned in these appeals does not require any

interference. We do not find any infirmity, much less any

perversity warranting any interference by this Court. The

High Court has dealt with all aspects of the matter

considering not only the stipulations in the Concession

Agreement but has also dealt with in detail with the

respective arguments advanced by the petitioners before

the High Court (the appellants herein) at the same time

referring to the statutory provisions, the constitutional

provisions as also the case-laws relied upon by the

counsel for the parties. However, there is one aspect of

the matter which requires clarification which we shall

deal with at the end of this judgment.

19. The arguments made on behalf of the appellants

relating to the vires of inserting the proviso (c) to Clause

(C) to Entry 33 of Schedule 1-A of the IS Act, 1899 by the

M.P. Amendment of 2002 have no merits as it neither

defines the word 'lease' nor does it in any way interfere

with the definition of 'lease' in any manner, either by

expanding or restricting its interpretation. It is only a

statutory provision as to what would be the rate of stamp

duty payable on lease deeds of a particular type. But for

the insertion of the proviso which is sought to be

challenged, the stamp duty payable on the lease would be

8% of the market value as provided to be charged on the

16

conveyance under Entry-22 of Schedule 1-A. By inserting

the proviso, the stamp duty chargeable on a lease under

BOT Project for tolls/bridges, construction of roads etc.

would be 2% of the amount spent by the lessee. In fact,

insertion of this proviso reduced the rate of stamp duty to

be charged to 2% instead of 8% and that too on the

amount to be spent by the lessee.

20. The doctrine of legitimate expectation has been

discussed and elucidated upon in several judgment by

this Court. The doctrine provides a framework for judicial

review of executive actions, policy changes, and legislative

decisions. In Union of India & Ors. v. Hindustan

Development Corporation & Ors.

15

, this Court

emphasized that legitimate expectation primarily grants

an applicant the right to a fair hearing before a decision

that negates a promise or withdraws an undertaking from

which an expectation of certain outcome or treatment

arises. It does not, however, create an absolute right to

the expected outcome. The protection of legitimate

expectation is subject to overriding public interest, which

means that even if an individual’s expectation is

reasonable and based on a past practice or representation

by the executive or legislature, it can be denied if justified

by a significant public necessity. The Court also

highlighted that in matters of policy change, the judiciary

15

(1993) 3 SCC 499

17

typically refrains from interfering, unless the decision is

arbitrary, unreasonable, or not in public interest.

21. The judgment in Ram Pravesh Singh & Ors. v.

State of Bihar & Ors

16

. defines legitimate expectation as

an expectation of a benefit, relief, or remedy that arises

from a promise or established practice through

administrative, executive or legislative action. This

expectation must be reasonable, logical, and valid; but it

in no way vests any enforceable legal right. The doctrine

does not elevate legitimate expectation to the level of a

right enforceable by law. Instead, it is a procedural

concept that demands fairness in administrative action.

When an expectation is deemed legitimate, it may entitle

the individual to a chance to show cause before the

expectation is denied or to receive an explanation for the

denial. However, legitimate expectation does not always

result in relief, particularly when public interest, policy

changes, or other valid reasons justify the deviation from

the expected course of action.

22. The decision in P.T.R. Exports (Madras) Pvt. Ltd.

v. Union of India & Ors .

17

further clarifies the limited

role of legitimate expectation in the context of policy

changes and legislative actions. This Court observed that

the government retains the authority to revise policies in

16

(2006) 8 SCC 381

17

(1996) 5 SCC 268

18

response to changing circumstances, such as potential

foreign markets and the need to earn foreign exchange.

Thus, the doctrine of legitimate expectation does not

constrain the government from altering its policies,

provided the changes are made in public interest and not

through an abuse of power. The judiciary affords

considerable leeway to the executive and legislature in

matters of economic policy, recognizing their prerogative

to prioritize different economic factors. Consequently,

previous policies do not bind the government indefinitely;

new policies can be adopted, if deemed necessary, for the

public good. This underscores the principle that while

legitimate expectation warrants fair treatment, it does not

preclude the government’s flexibility in policy-making.

23. Therefore, the doctrine of legitimate expectation

serves only as a procedural safeguard ensuring fairness

in administrative decisions and policy changes. It grants

the expectant party the right to a fair hearing and an

explanation but does not guarantee the realization of the

expected benefit. The government’s authority to revise

policies in public interest remains paramount, with the

judiciary intervening only in cases of arbitrariness,

unreasonableness, or lack of public interest. This

balanced approach ensures that while individuals can

expect consistent treatment based on past practices or

promises, the government retains the flexibility to

19

respond to evolving needs and priorities.

24. On the doctrine of promissory estoppel, since it is an

equitable doctrine, it only comes into play when equity

requires a party be estopped from withdrawing its

promise. It has been well settled by this Court in several

judgments that the principle of prom issory estoppel

cannot be invoked against the exercise of legislative power.

In order to avoid burden on the present judgment, we are

relying on the observations made by this Court in a recent

judgment dealing with the doctrine of promissory estoppel.

The Bench in Hero Motocorp Ltd vs Union of India ,

18

while relying upon other judgments of this Court in this

regard, observed thus (SCC pp. 414-415, para 68)

“68. A common thread in all these judgments that

could be noticed is that all these judgments

consistently hold that there can be no estoppel against

the legislature in the exercise of its legislative

functions. The Constitution Bench in the case of M.

Ramanatha Pillai (supra) has approved the view in

American Jurisprudence that the doctrine of estoppel

will not be applied against the State in its

governmental, public or sovereign capacity. It further

held that the only exception with regard to

applicability of the doctrine of estoppel is where it is

necessary to prevent fraud or manifest injustice. The

analysis of all the judgments of this Court on the issue

18

(2023) 1 SCC 386

20

would reveal that it is a consistent view of this Court,

reiterated again in Godfrey Philips India Ltd. (supra),

that there can be no promissory estoppel against the

legislature in the exercise of its legislative functions.”

25. In light of the observations made by this Court in the

above cited judgments and several others, it is an evident

position of law that a prior executive decision does not bar

the State legislature from enacting a law or framing any

policy contrary to or in conflict with the previous executive

decision in furtherance of larger public interest. Nor can

it be canvassed that the law laid down by the legislature

would be hit by principle of promissory estoppel or

legitimate expectation because earlier the executive had

expressed its view differently.

26. Promissory estoppel or legitimate expectation can be

dealt with on the same status of the executive decision

when the prior as well as the subsequent decisions are

both taken by the same or similarly placed authorities.

Where the executive takes a decision based upon which a

party acts and, later on, the executive withdraws that

decision to the detriment of the party acting upon the

earlier decision, it can be said to be estopped from

withdrawing its promise or depriving the party from its

legitimate expectation of what had been promised.

27. In situations, such as the one before us, if the

previous executive decision is withdrawn, modified or

21

amended in any manner in exercise of legislative power in

larger public interest, then the earlier promise upon

which the party acts, cannot be enforced as a right and

neither can the authorities be estopped from withdrawing

its promise, as such an expectation does not give any

enforceable right to the party. Applying the above

discussion to the present facts, it is evident that the

principles of legitimate expectation and promissory

estoppel would not apply here, as the appellants cannot

be said to have any enforceable legal right in light of the

previous law or policy and executive action, which was

subsequently changed by the state legislature in light of

larger public interest. Thus, the submissions advanced on

behalf of the appellants relating to the challenge to the

M.P. Act No.12 of 2002 inserting the proviso (c) to

Clause(C) to Entry 33 of Schedule 1-A of the IS Act has to

be rejected. None of the case-laws relied upon on behalf

of the appellants come to the rescue of the appellants and

have no application in the facts and circumstances of the

present case.

28. Now coming to the next submission on behalf of the

appellants with regard to the question as to whether the

Concession Agreement is a lease or a bond or a license.

The definition of lease as given under the IS Act clearly

covers any instrument by which tolls of any description

are let and also under Section 105 of the TP Act, all the

22

ingredients of a lease are fulfilled. In the present case, we

need not reiterate and repeat the same reasoning and

findings as given by the High Court in great detail after

considering the various clauses of the Concession

Agreement. We uphold the finding of the High Court to be

clearly justified and based upon a clear understanding of

the terms of the concession agreement. We do not find

any perversity at all in the reasoning given by the High

Court to uphold the Concession Agreement to be a lease.

29. After the judgment of the High Court which is of the

year 2010, two further judgments have been delivered by

this Court regarding interpretation of a lease, which have

been relied upon by Shri Mishra on behalf of the

respondents. Out of the three judgments relied upon by

Shri Mishra, the judgment in the case of Associated

Hotels of India Ltd. (supra) has already been considered

by the High Court. Further, the judgments in the case of

State of Uttarakhand and others (supra) and in the case

of Nasiruddin and another (supra) further reiterated the

view taken by Associated Hotel of India Ltd. (supra).

Paragraph 17 in the case of Nasiruddin and another

(supra) is reproduced hereunder:

“17. The expression “lease” under the Stamp Act

has a wider meaning as compared to its original

meaning contained in Section 105 of the Transfer of

Property Act (for short “the TP Act”). If “lease” under

23

Section 2(16) of the Stamp Act includes therein four

specified categories of documents set out in sub-

clauses (a) to (d), we do not find any such inclusion

in Section 105 of the Transfer of Property Act. It is

for this reason, we are of the view that the definition

of “lease” for the purpose of the Stamp Act is

extensive in nature. It is also clear from the use of

the expression and includes also “in Section 2(16) of

the Stamp Act. So by fiction, “any instrument by

which tolls of any description are let “is considered

as “lease” for the purpose of payment of stamp duty

under the Stamp Act.”

30. Thus, the view taken by the High Court further

stands fortified by the above two judgments and the view

that we are taking.

31. The only issue which requires to be considered

afresh is with respect to determination of the amount

spent under the agreement by the lessee. For the said

purpose, we reproduce proviso(c) to Clause(C) of the

proviso inserted in 2002:

“(c) an agreement to lease where the right to

collect tolls is given in lieu of the amount

spent by the lessee in construction of roads,

bridge etc. under the Build, Operate and

Transfer (B.O.T.) scheme, shall be chargeable at

the rate of two percent on the amount likely

24

to be spent under the agreement by the

lessee.”

32. From a clear reading of the above proviso (c) to

Clause(C), the stamp duty would be chargeable @ 2% on

the amount likely to be spent under the agreement by the

lessee. Thus, the lessee has no liability to pay any stamp

duty on the amount not spent by the lessee but by the

lessor or any other stake-holder. The amount spent by the

lessee as per the agreement generally was 50% of the total

cost of the project.

33. In the case of Rewa Tollway

19

, the total cost of the

project was Rs.54 crores, out of which, approximately 50 %

would be that of the lessee and 50% to be funded by the

lessor i.e. MPRSNN, respondent no.3. However, further

reading of the Concession Agreement reflects that the

amount to be spent by the lessee was not exactly 50% but

is slightly different figure. At some places, it is mentioned

as Rs.24.10 crores and in other places a different amount

is mentioned. We are not entering into this issue of what

is the amount spent but we re quire that this be

determined by the Collector (Stamps) / Revenue Officer of

the concerned district.

34. Once, the stamp duty is payable on the amount

spent by the lessee, the demand raised on the whole

19

Civil Appeal No.8985 of 2013

25

amount would be unjustified, as such, to the above extent,

the demand needs to be set aside with a further direction

to the Revenue Officer/Collector (Stamps) of the district

concerned to re-calculate the same as observed above and,

accordingly, raise the demand. In case, the appellants

have deposited the demand raised on the entire project

cost then the amount lying in excess with the State would

be refunded to them. However, in case of any deficit in

stamp duty having not been deposited, the appellants

would deposit the same within two months of the fresh

demand being raised by the Revenue Officer/Collector

(Stamps) of the district concerned. The Collector

(Stamps)/Revenue Officer is further directed to calculate

the said amount in each of the cases individually and

communicate the same to the appellants within a period

of two months from today and where the amount is lying

in excess with the State, the same shall be refunded

within a period of two months of such determination.

35. The appeals stand partly allowed as above. No costs.

……………………………………J.

(VIKRAM NATH)

……………………………………J.

(AHSANUDDIN AMANULLAH)

NEW DELHI

JULY 19, 2024