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Concession Agreements as Leases: Supreme Court Affirms Key Interpretation in Rewa Tollway Case

Summary of the Judgment


  • Case Name: M/S Rewa Tollway P. Ltd. v. The State of Madhya Pradesh & Ors.


  • Date: 19th July 2024


  • Judges: Honorable Justice Vikram Nath, Honorable Justice Ahsanuddin Amanullah


  • Advocates:  Shri Dushyant Dave (Senior Counsel for the appellants), Shri Saurabh Mishra (Additional Advocate General for the State of Madhya Pradesh)


  • Acts and Sections:  Transfer of Property Act, 1882 (Section 105), Indian Stamp Act, 1899 (Section 2(16), Section 48, Section 48(B)), Indian Stamp (M.P.) Act, 2002, Indian Tolls (MP) Amendment Act, 1972

  • Cited Judgements: Navjyoti Co-op. Group Housing Society Vs. Union of India (1992) Food Corporation of India Vs. Kamdhenu Cattle Feed Industries (1992)

    The State of Jharkhand and Ors. Vs. Brahmputra Metallies Ltd. Ranchi and Anr (2020)

    State of Bihar and Ors. Vs. Shyama Nandan Mishra (2022)

    M/S Hero Moto Corp Ltd. Vs. Union of India and Ors. (2022)

    Associated Hotels of India Ltd. Vs. R.N. Kapoor (1959)

    State of Uttarakhand and Ors. Vs. Harpal Singh Rawat (2011)

    Nasiruddin and another Vs. State of Uttar Pradesh Thr. Secretary and Ors. (2018)


Introduction


The Supreme Court of India's judgement in the case of M/S Rewa Tollway P. Ltd. v. The State of Madhya Pradesh & Ors. addresses several complex issues surrounding the legal interpretation of concession agreements under the Build, Operate, and Transfer (BOT) scheme. This case revolves around whether such agreements constitute a "lease" under the Transfer of Property Act, 1882, and the Indian Stamp Act, 1899, and the applicability of stamp duty on these agreements. The judgement also touches upon the doctrines of legitimate expectation and promissory estoppel in the context of legislative changes affecting these agreements.


Background and Context


Facts of the Case:

  • The Madhya Pradesh Rajya Setu Nirman Nigam Ltd. (MPRSNN) was authorised to undertake a road project under the BOT scheme.

  • M/S Rewa Tollway P. Ltd. (the appellant) was awarded the project through a tender process and entered into a Concession Agreement with MPRSNN.

  • The Indian Stamp Act was amended by the Madhya Pradesh government, imposing a 2% stamp duty on the amount likely to be spent on the project.

  • A dispute arose regarding whether the Concession Agreement was a lease, subject to stamp duty under the amended provisions.


Legal Questions:

  1. Does the right to collect tolls under a BOT scheme amount to a "lease" under Section 105 of the Transfer of Property Act, 1882, and Section 2(16) of the Indian Stamp Act, 1899?

  2. Are the amendments to the Indian Stamp Act by the Madhya Pradesh government valid and applicable?

  3. Can the doctrines of legitimate expectation and promissory estoppel be invoked against the state in this context?

Judgement Analysis


Lease vs. License:

The Supreme Court upheld the view that the Concession Agreement constituted a lease. It cited the following reasons:

  • The agreement transferred the right to collect tolls, which fits the definition of a lease under both the Transfer of Property Act and the Indian Stamp Act.

  • The agreement included all essential elements of a lease: transfer of a right to enjoy property, a fixed period, and consideration.

Stamp Duty Applicability


The Court found that the 2002 amendment imposing a 2% stamp duty on BOT agreements was valid. It noted:

  • The amendment did not redefine the term "lease" but merely set a specific stamp duty rate for certain types of leases.

  • The imposition of this duty was within the legislative competence of the state.

Doctrines of Legitimate Expectation and Promissory Estoppel


The appellants argued that previous state communications and practices led them to expect no or minimal stamp duty, invoking the doctrines of legitimate expectation and promissory estoppel. However, the Court rejected these arguments:

  • Legitimate Expectation: The Court reiterated that legitimate expectation does not create enforceable rights and must yield to overriding public interest. It cited previous judgements, such as Union of India v. Hindustan Development Corporation, to support this view.

  • Promissory Estoppel: The Court held that promissory estoppel cannot be used to prevent the state from exercising its legislative powers. It referred to the decision in Hero Moto Corp Ltd. v. Union of India, which emphasized that estoppel does not apply against legislative functions.

Interpretation of the Concession Agreement as a Lease


"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 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."


Stamp Duty Calculation and Reassessment


"Once, the stamp duty is payable on the amount spent by the lessee, the demand raised on the whole 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."


Conclusion


The Supreme Court's decision in this case underscores the importance of clear statutory interpretation and the limits of doctrines like legitimate expectation and promissory estoppel in the face of legislative authority. For legal professionals in India, this judgement highlights the need to carefully consider legislative amendments and their implications on contractual agreements, especially in the context of public-private partnerships.

The Court's ruling affirms that:

  1. Concession agreements under the BOT scheme can be considered leases, subject to stamp duty.

  2. Legislative amendments imposing such duties are valid and enforceable.

  3. Doctrines like legitimate expectation and promissory estoppel do not override legislative powers and public interest considerations.

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