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TMI Blog2019 (11) TMI 1645X X X X Extracts X X X X X X X X Extracts X X X X ..... e reason two writ petitions have been decided in favour of Respondent No.1 by the learned Single Judge vide impugned decision dated 14th December, 2011. 3. Learned Counsel for the parties concede that in view of fussiness in the concluding paragraph of the impugned decision, meaning thereto has to be found from the factual backdrop which led to the filing of two writ petitions by the respondent No.1 in each appeal. 4. Two Indentures, identically worded both dated 2nd November, 1995, executed by CIDCO in fvour of the two writ petitioners titled as `Agreement to Sell ' were executed on a stamp paper charged to stamp duty in sum of 20/-. Rs. This is the stamp duty payable on agreements under the Bombay Stamp Act, 1958 as in force on the date of the execution of the Indentures i.e. 2nd November, 1995. For reasons which we need not record, the Indentures came to be noticed by the Collector of Stamps who proceeded to issue a notice to the respondent No.1 on 7th March, 1998 calling upon them to show cause as to why stamp duty not be paid on the Indentures treating the same to be exigible to stamp duty under Article 36 of the Bombay Stamp Act, 1958. 5. The respondent No.1 questioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a term not exceeding 3 years. (ii) where the lease purports to be for a period in excess of 3 years but not more than 10 years. (iii) where the lease purports to be in excess of 10 years but not more than 29 years without a renewal clause contingent or otherwise. (iv) where the lease purports to be for a period in excess of 29 years, or in perpetuity, or does not purport to be for any definite period, or for leases for a period in excess of 10 years, with a renewal clause contingent or otherwise. (b) where the lease is granted for fine or premium or money advanced or to be advanced and where no rent is fixed; (c) where the lease is granted for a fine or premium or money advanced or to be advanced in addition to rent fixed. Explanation I.- Rent paid in advance shall be deemed to be premium or money advanced within the meaning of this article even if there is provision to set it off towards any instalment or instalments of rent. Explanation II.- When a lessee undertakes to pay any recurring charge such as Government revenue, landlord's share of cesses, of the owner's share of municipal rates or taxes, which is by law recoverable from the lessor, the amount so a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for development and disposal. The recital further records that by an application dated 5th July, 1995 the Licensee has requested the Corporation to grant a lease of a piece or parcel of land so acquired and vested in the Corporation by the State Government and that the Corporation has consented to grant to the Licensee a lease of the parcel of land ad-measuring 2456.20 Sq.mtrs. or thereabout for the purpose of constructing building or buildings to be used for residential-cum-commercial use having bank, offices, hotels, shops etc. It is further recorded in the recital that the Licensee has paid to the Corporation the sum mentioned in the recital. (The sums are different in the two Indentures). 17. After recording aforesaid recitals, the covenant under which the interest is proposed to be transferred under the Indentures are set out. The first covenant records that for a period of four years commencing from the execution of the Indenture the Licensee has a license and authority to enter upon the said land for erecting a building or buildings. It is recorded that `until the grant of lease as provided hereinafter, the Licensee shall be deemed to be mere Licensee of the land at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... press or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms." 22. As held in the decision reported as AIR 2012 SC 3325 Mangal Amusement Park Ltd. vs. State of Madhya Pradesh & Ors ., a lease is not a mere contract but envisages and transfers possessory interest in the demised property by creating a right in favour of lessee in rem. 23. The Indian Easements Act, 1882 defines a license vide Section 52 thereof as under:- "52. "License" defined.- Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the right is called a license." 24. Thus, a license only makes an action lawful which without it would be unlawful but does not transfer any interest in favour of the Licensee in respect of the property. A license is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of the fact that the writing or an application for a lease intended to signify that the application is granted would apply to a situation where through a series of documents a transfer of interest takes place. For example, "A" writes to "B" a letter containing terms on which "A" is willing to convey leasehold interest in his property to "B" and by a letter in response "B" signifies the acceptance of the offer. The two letters read together would amount to a lease. This would be in conformity with Section 4 of the Indian Stamp Act, 1899 which envisages sale, mortgage or settlements fructifying where several instruments are employed for completing the transaction, requiring the principal instrument only to be chargeable for stamp duty. 31. The second arrow in the quiver of the Appellants shot at the respondent No.1 is by referring to the provisions of the New Bombay Disposal of Land Regulations, 1975 which state the manner in which the Corporation can dispose of property placed at its disposal by the Government of Maharashtra and envisages lease to be the only manner under which the Corporation can transfer its interest in the land placed at its disposal by the State of Ma ..... 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