NIRMAL MALIK Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This writ petition has been filed by petitioner Smt. Nirmal Malik against order dated 17.08.1998 of the Collector (Stamps) Ajmer in Case No.564/1998, whereby the Collector (Stamps, Ajmer, accepted reference made by Sub Registrar, Ajmer, and held that the document of transfer deed in favour of petitioner involved transfer of physical possession and exchange of rights and came within definition of conveyance, and held the value of the lease to be Rs.2,25,01,500/- and found stamp duty of Rs.22,50,150/-, registration fee of Rs.25,000/- and penalty of Rs.1,00,0000/- payable by petitioner and after deducting already paid stamp duty and registration fee by petitioner, a sum of Rs.22,46,800/- was found due to be paid by petitioner towards stamps duty, Rs.24,665/- towards registration fee and penalty of Rs.1,00,000/-; thus, a total sum of Rs.23,71,465/- was found recoverable from petitioner.

(2.) Briefly stated facts of the case are that a mining lease for minerals i.e. mica, feldspar and quartz near village Nareli, Tehsil and District Ajmer for an area of 45.58 hectares was granted by mining department of the Government of Rajasthan in favour of one Arvind Kumar Garg, proprietor of Arvind Minerals, Ajmer, for a period of 20 years commencing from registration of lease-deed. A lease-deed dated 04.08.1983 also came to be executed between the Government of Rajasthan and said Shri Arvind Kumar Garg. On payment of stamp duty of Rs.293/-, the mining lease was registered in the model form prescribed under the Mineral Concession Rules, 1960, before the Sub Registrar, Ajmer. Said Shri Arvind Kumar Garg, on account of his illness and inability to supervise the mining operations, submitted an application as per provisions of the Rules of 1960 for transfer of aforesaid mining lease in favour of petitioner for remaining term of lease. Thereafter, petitioner was called upon by the Mining Engineer, Ajmer to submit stamps of Rs.3350/- for the purpose of registration of aforesaid deed. Stamps were duly submitted by petitioner to Mining Engineer, Ajmer, who, vide letter dated 02.03.1998, forwarded the transfer deed dated 27.01.1998 along-with stamps of Rs.3350/- and called upon the petitioner to submit supplementary agreement for registration. According to petitioner, yearly dead rent of mining lease granted in favour of original lessee was Rs.8740.80 and lease was granted/transferred in favour of petitioner on payment of same yearly dead rent along-with security amount of Rs.2000/- for remaining term of lease of twenty years commencing with effect from 01.10.1983. According to petitioner, the stamp duty payable on the aforesaid document was required to be calculated on yearly dead rent of two years and security amount paid by petitioner coupled with any amount paid by him to transferor Arvind Kumar Garg towards preliminary expenses/improvements. A sum of Rs.13000/- was said to have been paid by petitioner to Arvind Kumar Gard towards expenditure incurred by him on development of the area and the Mining Engineer had calculated the stamp duty payable by petitioner with reference to yearly dead rent, security amount and expenditure of Rs.13,000/-. Thus, the transfer deed was to be registered on valuation of Rs.32,481/- and payable stamp duty at the rate of 10% was Rs.3,248/-, as against which the stamp duty of Rs.3350/- was actually paid by the petitioner. The transfer-deed was earlier registered with the Sub Registrar. The Collector (Stamps), Ajmer City, however, valuing the mining lease at Rs.1,20,31,125/-, called upon petitioner to pay stamp duty of Rs.12,03,125/-. Aggrieved thereby, petitioner submitted a detailed representation to Inspector General, Registration & Stamps Department, Ajmer, on whose behalf the Collector (Stamps), Ajmer, was acting and a request was made to Collector (Stamps) Ajmer to treat said representation as reply to notice given in present case. The Collector (Stamps) Ajmer, vide order dated 17.08.1998, accepted reference made by Sub Registrar, Ajmer, and held that document of transfer deed in favour of petitioner involved transfer of physical possession and exchange of rights and such transaction came within the definition of conveyance. It further held that value of lease is Rs.2,25,01,500/- and found stamp duty of Rs.2,25,050/-, registration fee Rs.25,000/- and penalty Rs.1,00,000/- payable, and after deducting already paid amount of stamp duty and registration fee, a sum of Rs.22,46,800/- towards stamp duty, Rs.24,665/- towards registration fee and Rs.1,00,000/- towards penalty, total amounting to Rs.23,71,465/- was found recoverable from petitioner. Aggrieved thereby, petitioner has preferred this writ petition.

(3.) Shri Ajeet Kumar Sharma, learned Senior Advocate for petitioner, has argued that order dated 17.08.1998 of the Collector (Stamps), Ajmer, is wholly arbitrary, illegal and unreasonable as well as contrary to the provisions of the Indian Stamps Act and the Rajasthan Stamp Law (Adaptation) Act, 1952. The Collector (Stamps) has seriously erred in determining the stamp duty on the basis of market value of total area in respect of which the mining lease had been transferred from original lessee Arvind Kumar Garg to petitioner by the Mines Department. All minerals vest in the State Government and by granting a mining lease, State Government only confers a right upon lessee to mine and excavate minerals on payment of dead rent and royalty, whichever is greater, in terms of Sections 9 and 9A of the Mines & Minerals (Regulation & Development) Act, 1957. The basis of calculation of stamp duty for registration of the mining lease deed is the amount of dead rent or royalty, whichever is greater, payable for a period of two years plus (+) the amount of security and the respondents originally calculated the stamp duty on this basis only. In the case of transfer of mining lease from original lessee/transferor (herein Arvind Kumar Garg) to transferee, the value of leased property and the basis of calculation of stamp duty for the purpose of registration, cannot be different and cannot be changed as is sought to be done by the Collector (Stamps) in this case. At the best, value of improvements/ expenditure incurred by original lessee, can also be added to the value determined and even this amount had been taken into consideration by the Mining Department and petitioner, while submitting transfer of deed for registration and for the purpose of calculation of stamp duty. It is contended that grant of mining lease or its transfer to petitioner by Mining Department of the State Government, petitioner is neither put in actual physical possession of leased area nor he is allowed to carry on mining operations over the entire area, which comprised of roads, building, enclosed court or garden attached to a dwelling house etc., over which no mining operations, in any manner, can be undertaken. Grant of mining lease does not destroy the surface rights of the tenants for the purpose of mining except after payment of compensation.