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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.

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 22nd 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 10th 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 1st July of 2002 and 21st July, 2002. It was, thus, submitted that the charge of 2% stamp duty 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 Madhya 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 subsequent Concession Agreements under BOT Scheme executed after 10th 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 and, therefore, liable to be set aside.

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 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:-