This writ petition has been filed challenging the order No.CCRAI/4304/06, dated 19.2.2008 passed by the Chief Controlling Revenue Authority and Commissioner & Inspector General-3rd respondent confirming the order No.G1/2447/2004, dated 28.2.2006 passed by the Collector & District Registrar-4th respondent, whereby, the petitioner has been asked to pay the stamp duty on the aggregate amount of the agreement dated 31-3-2004.

2. Facts, in brief, are: -

The Government of Andhra Pradesh represented by its Executive Engineer (R & B) Division, Tenali, Guntur District-1st respondent issued notice in Feb/March 2004 inviting bids for the right to collect toll tax for the bridge across Kommamuru Canal at K.M 8/0 of Tenali-Narakoduru Road in Guntur District from 1.4.2004 to 31.3.2006. The petitioner became the successful bidder and respondents 1 and 2 accepted his bid. As per the terms of the agreement, the petitioner was required to pay an amount of Rs.14,58,452/- towards deposit, which shall be adjusted towards the last installment. The total amount the petitioner was required to pay for the period from 1.4.2004 to 31.3.2006 towards premium was Rs.87,50,700/-. The petitioner presented the agreement for registration in the office of the Sub-Registrar, Chebrole, Chebrole Mandal, Guntur District. An amount of Rs.2,91,591/- came to be collected towards stamp duty. The document came to be registered on 2-4-2004. The petitioner operated the toll gate pursuant to the agreement dated 31-3-2004. While so, the 2nd respondent issued Memo No.11966/T&P.3/TA.3/2004-06, dt.8.10.2005 to the 1st respondent instructing him to address the petitioner to remit an amount of Rs.2,18,884/- towards deficit stamp duty. Thereupon, the 1st respondent issued letter bearing No.Toll Gate/TNK Road/A3/03, dt.7.11.2005 calling upon him to pay deficit stamp duty and deficit registration fee to the Sub-Registrar.

2(b) The petitioner filed W.P.No.24577 of 2005 questioning the letter bearing No.Toll Gate/TNK Road/A3/03, dt.7.11.2005. The said writ petition came to be allowed setting aside the proceedings and leaving open to the 4th respondent to take necessary steps in terms of Section 41-A of the Indian Stamp Act, 1899 (hereinafter referred to as the Act). Thereupon, the 4th respondent issued Notice in G-1/2447/2004, dt.28.2.2006 calling upon the petitioner to pay Rs.2,18,784/- towards the alleged stamp duty and registration fee of Rs.14,640/- within a period of thirty days from the date of receipt of the said notice.

2(c) The petitioner filed revision before the Chief Controlling Revenue Authority and Commissioner & Inspector General-3rd respondent. The revision filed by the petitioner ended in dismissal on 19-2-2008. For better appreciation, I may refer the relevant portion of the order passed by the revisional authority, which reads as hereunder:-

Lease and licence: A lease is defined in Section 105 of Transfer of Property Act 1882 as a lease of immovable property is a transfer of right to enjoy such property made for a certain time expressed or implied or in perpetuity in consideration of price paid or promised or of money, a share of crops, service or any other thing of value to be rendered periodically or on occasions to be transferor is called lessor, the transferee is lessee. The price is called premium and the money share, service or other things so to be rendered are called the rent.

A licence is defined under Section 52 of the Indian Easements Act, 1882 as a right to do, to continue to do, or upon the immovable property of the grantor, some thing which would in the absence such right, be unlawful and such right does not amount to an easement or interest in the property.

In summary the distinction between a licence and lease is that a licence does not create any estate or interest in the property to which it relates while a lease does.

In view of the above statutory provision and the judgments rendered by the Honble High Court, the contention of the petitioner to treat the toll transactions as licences is not at all sustainable. Further Honble High Court in W.P.Nos.4136/05 (batch cases) in common judgment held that all instruments by which tolls of any description are let are leases within the meaning of Stamp Act. The law in this regard is judicially upheld treating the said class of documents as leases only.

Therefore, for the reasons discussed supra, it is mandatory clear that the leases for toll gates are chargeable as leases leviable with 5% of stamp duty on the bid amount as per Article 31(b) of Schedule I-A of Indian Stamp Act, 1899. So, the District Registrars action is within the purview of the Indian Stamp Act. As the Chief Controlling Revenue Authority finds no reason to interfere with the orders of the District Registrar, Guntur issued vide Proceedings No.G1/2447/2004, Dated 28.02.2006 and the same are hereby sustained.

Accordingly, the appeal is dismissed.

Hence this writ petition by the petitioner assailing the order passed by the revisional authority.

3. Rule nisi came to be issued on 21-07-2008. Respondents 1 and 3 filed separate counter affidavits.

4. It is stated in the counter affidavit of the 1st respondent that the petitioner is liable to pay stamp duty under Article 31(B) of Schedule I-A of the Indian Stamp Act as the entire amount has been taken in advance. The 3rd respondent stated in the counter affidavit that this Court in W.P.No.4136 of 1995 held that all instruments by which tolls of any description are let are Leases within the meaning of the Stamp Act. It is also stated in the counter affidavit that the petitioner is liable to pay the stamp duty on the agreement under Article 31(vi)(b) of Schedule I-A of the Act.

5. Heard learned counsel appearing for the petitioner, learned Government Pleader for R & B appearing for respondents 1 and 2 and learned Government Pleader for Revenue appearing for respondents 3 to 5.

6. It is contended by the learned counsel appearing for the petitioner that though the word premium has been used in the agreement, it is nothing but a rent in which case, the stamp duty is required to be paid under Article 31(a)(ii) and not under Article 31(vi)(b) of the Act. According to the learned counsel, though the total amount has been indicated at Rs.87,50,700/- for two years, but the amount is required to be paid in instalments and the very fact of the amount being paid in instalments attains the character of rent irrespective of the word premium used in the agreement. It is also contended by the learned counsel that in the event of failure to pay the instalments, the 2nd respondent is entitled to determine the period. Learned counsel refers clause (8) of the agreement dated 31-3-2004, which reads as hereunder:-

If the sum of money hereby observed or any part thereof respectively remains in arrears for the span of 15 days next after the same have become due and payable whether lawfully demanded or not or in case default is made by the licensee the performance or observance of any or covenants on his part to be performed or observed than and in either of the said case it shall be lawful for the Department in addition to and without prejudice to the other rights and reminles consequent on the same day by giving 15 days notice in writing sent to the Licensee at his last known place or residence either by Registered post or left there on to determine these presents the licensee hereby granted shall immediately cases and determined but without prejudice to any right or action or remedy of the Department in respect of the breach of any covenants on the part of the licensee therein contained and the Licensee shall be responsible all loss or damage sustained by the Department by reasons of such determination. By reason of such determination the licensee will not be entitled participate in any benefit that may accrue thereafter and without prejudice to any of the foregoing provision and the Department shall have the power to take the toll station in to Departmental management and or order resale of the same and in either from deposit and or from the Licensee personally all or any loss damage or expenses that the Department may suffer or be put to by the action aforesaid in witness whereof, Executive Engineer, Roads & Buildings, Tenali for and on behalf of any be order and direction of his excellency the Governor of Andhra Pradesh Licensee have her unto set their hand seals today, month and year first above written of the schedule above referred to.

Learned counsel appearing for the petitioner further contends that the agreement to realize toll is not a lease but it is an agreement simplicitor which is not otherwise provided for in the Schedule. Even otherwise, the agreement stipulates payment of premium in instalments and as the instalments are to be treated as rents in which case, stamp duty is to be paid in accordance with Article 31(a)(ii) of Schedule I-A of the Act. In support of his contentions, learned counsel placed reliance on the judgment of Allahabad High Court in Munindra Nath Upadhyaya v. State of U.P (1995-TLALL-0-854).

7. Learned Assistant Government Pleader for Revenue submits that under Section 2(16)(c) of the Stamp Act, any instrument by which tolls of any description are let; come within the meaning of Lease and therefore, the agreement dated 31.3.2004 is a lease and the aggregate premium amount is to be considered for the purpose of stamp duty under Article 31(vi)(b) of the Stamp Act. In support of his contention, reliance has been placed on the judgment of Supreme Court in Commissioner of Income-tax, Assam v. The Panbari Tea Co. Ltd. (AIR 1965 SUPREME COURT 1871), wherein the Supreme Court held that mere fact that the premium was made payable in instalments cannot be obviously be decisive of the question, for that might have been to accommodate the lessee.

8. It is no more res integra, in view of the Division Bench judgment of this Court in Uppalapati Durga Prasad v. Executive Engineer and others (W.P.No.4136 of 1995 and batch decided on 22-02-2001) that the agreement under which the licensee is permitted to collect tollgate for a premium; is a lease. Therefore, the agreement dated 30-3-2004 under which the petitioner has been permitted to collect toll tax is a lease deed.

9. The next question is whether the stamp duty on the agreement in question is payable under Article 31(a)(ii) or Article 31(vi)(b). For better appreciation, I may refer Article 31, which reads as hereunder:-

Description of instrumentProper stamp duty

(1)(2)

31. Lease, including an under lease or sub-lease and any agreement to let or sublet (a) whereby such lease, the rent is fixed and no premium is paid or delivered

Two rupees for every one hundred rupees or part thereof for the first Rs.1000/- and every Rs.500/- or part thereof in excess of Rs.1,000/- ten rupees, for the whole amount payable or deliverable under such lease;

(ii) where the lease purports to be for a term of not less than one year, but not more than five years;Two rupees for every one hundred rupees or part thereof for the first Rs.1000/- and every Rs.500/- or part thereof in excess of Rs.1,000/- ten rupees, for the amount or value of the average annual rent reserved;

(iii) where the lease purports to be for a term exceeding five years, but not exceeding ten years;Five percent for a market value equal to the amount or value of one and half times of the average annual rent reserved;

(iv) where the least purports to be for a term exceeding ten years, but not exceeding twenty years;Five percent for a market value equal to the amount of value of three times of the average annual rent reserved;

(v) where the lease purports to be for a term exceeding twenty years, but not exceeding thirty years;Five percent for a market value equal to the amount or value of five times of the average annual rent reserved;

(vi) (a) where the lease purports to be for a period in excess of thirty years or in perpetuity or does not purports to be for a definite period;Five percent on the market value of the property or value of ten times of the average annual rent reserved whichever is higher;

(b)where the lease is granted for a fine or premium or for money advanced or to be advanced and where no rent is reserved;Five percent on the market value of the property or the amount or value of such fine or premium or advanced as set forth in the lease, whichever is higher;

(c) where the lease is granted for a fine or premium or for money advanced in addition to rent reservedFive percent on the market value of the property or the amount or value of such fine or premium or advanced as set forth in the lease, whichever is higher in addition to the duty which would have been payable on such lease, if no fine or premium or advance had been paid or delivered;Provided that, in any case when an agreement to lease is stamped with the advolrem stamp required for a lease and a lease in pursuance of such agreement is subsequently executed, the duty on such lease shall not exceed one hundred rupees;

Exemption:-Lease, executed in case of a cultivator and for the purpose of cultivation (including a lease of trees for the production of food or drink) without the payment or delivery of any fine or premium, when a definite term is expressed and such term does not exceed one year, or when the average annual rent reserved does not exceed one thousand rupees.

Explanation:- When a lessee undertakes to pay any recurring charge, such as Government revenue, the landlords share of cesses, or the owners share of municipal rates or taxes, which is by law recoverable from the lessor, the amount so agreed to be paid by the lessee shall be deemed to be part of the rent;

(d) Where the lessee undertakes to effect improvement in the leased property and agrees to make the same to the lessor at the time of termination of lease falling under clauses (a), (b) or (c) :

Five percent on the value of the improvements contemplated to be made by the lessee as set forth in the deed in addition to the duty chargeable under clauses (a),(b) or (c).

10. To decide whether the agreement in question falls under Article 31(a)(ii) or Article 31(vi)(b) of the Stamp Act, the contents of the document are required to be noted. The entire premium amount has been stated in the agreement. The petitioner has been allowed to pay premium amount in instalments. There is a distinction between premium and rent. This distinction has been pointed out by the Supreme Court in Commissioner of Income-tax, Assam v. The Panbari Tea Co. Ltd (2nd supra). It has been held in the cited case that premium and rent are two expressions to connote two different payments. Coming to the agreement in question, the total premium payable has been specified and the facility allowed to the petitioner is payment of the premium in instalments. The instalment amount cannot be termed as a rent. Therefore, in my considered view, total premium payable under the said agreement is required to be taken for payment of stamp duty and registration. The primary authority as well as revisional authority has rightly considered the contents of the said agreement and came to the conclusion that the stamp duty and the registration fee are liable to be paid on the aggregate of premium. I do not see any flaw in Proceedings No.G1/2447/ 2004, dated. 28.2.2006 issued by the Collector & District Registrar-4th respondent as confirmed by the Chief Controlling Revenue Authority and Commissioner & Inspector General-3rd respondent.

11. The writ petition is devoid of merits and accordingly, the same is hereby dismissed. No costs.