- (1.) THREE questions have been agitated during the course of arguments in this writ petition. It will be proper to state those questions at the very outset. They are as under: - (i) If at the time of renewal of mining lease the area of mining lease is reduced, whether the dead rent should be proportionately reduced or not? (ii) Whether the stamp duty for the registration of the mining lease is also to be charged on the component of security amount, and (iii) Whether the Circular No. F. 7 (281) Gen/r&s/ 177932-18227 dated June 10, 1985 of the respondent No. 3 Sub-Registrar, Stamps and Registration, Tehsil Karauli, District Sawai Madhopur, or for that matter the order of the State Government Finance Department under which the said circular appears to have been issued deserves to be struck down and what should be the stamp duty on the registration of mining lease?.
(2.) FIRST the facts, which are these. The petitioner took a lease for sandstone from the Government of Rajasthan under the then Mineral Concession Rules, 1959 in respect of Group No. 10 comprising of village Langra Bugder, Tehsil Karauli Distt. Sawai Madhopur for an area of 19. 4 sq. kms. There were first and second renewals and the third renewal of the mining lease was w. e. f. September 19, 1972 to September 18, 1977 for a period of five years which was the maximum period of renewal under the then mineral concession rules. After the expiry of five years' period of renewal the fourth renewal of the mining lease became due on September 19, 1977 but by that time the Minor Mineral Concession Rules, 1977 came into force which made a provision for renewal of mining lease for 10 years and the area for which the mining lease could' be granted was reduced to 15 kms. The renewal of mining lease therefore could be for a period of 10 years and the dead rent during the period of third renewal was Rs. 64,400/- p. a. While granting fourth renewal for a period of 10 years the Dead Rent was revised to Rs. 1,25, 704. 25 pais per year. The petitioner challenged the aforesaid revision of Dead Rent by filing a writ petition No. 476/1978 and also obtained an interim order of stay under which he was allowed to continue to pay dead rent at the rate of Rs. 64,400/- per year instead of revised dead rent as aforesaid. The petitioner also gave an undertaking (Anr. 2) to the Mining Engineer under the orders of this Court. It will be necessary to refer to the aforesaid undertaking at the later stage of this order and therefore it is proper to extract clauses (i) and (ii) of the aforesaid undertaking which are as under:- " (i) That the dead rent with effect from 19. 9. 1977 to 18. 9. 1982 was fixed at Rs. 1,25, 704. 25, which is sub-judice before the Hon'ble High Court of Rajasthan and necessary stay is operative in this behalf. (ii) That, if ultimately the Hon'ble High Court confirm the dead rent fixed by the Govt. for the above period or any other modification is made therein, the consequence enhancement as per rules for the period w. e. f. 19. 9. 1982 to 19. 9. 1987, which is stated to be at Rs. 2,43,193. 83 and from 19. 9. 1987 onwards at Rs. 5,04,635. 04 by the Mining Department, whatever, applicable according to the law and the Rules finally settled by competent Court or authority would be acceptable and payable by me. " The aforesaid undertaking was executed on January 21, 1988. There is no dispute between the parties that the aforesaid writ petition was dismissed on August 24, 1988 and consequently, so far as validity of the Dead Rent having been fixed at Rs. 1,25,704. 25 per year during the first five years of fourth renewal is beyond challenge. It may also be said that the Dead Rent was subject to revision after a period of 5 years and therefore the revision of dead rent became due w. e. f. September 19, 1982. According to the formula for revision of dead rent, the dead rent for a period from September 19, 1982 onwards will come to Rs. 2,4393. 83. Upto this stage, the fixation of dead rent cannot be said to be against the provisions of the rules, moreso, before the area was 15 sq. kms. The Minor Mineral Concession Rules, 1977 were repealed vide rule 2 of the Rajasthan Minor Mineral Concession Rules, 1986 (for short, MMCR, 1986) which came into force on March 4, 1986 when they were published in the Rajasthan Gazette, Extra-ordinary Part IV-C at page 465 (1 to 112 ). Under rule 17 of the MMCR 1986, moreso, its third proviso, the area of the mining lease was in no case to exceed 10 sq. kms except in the case of mineral saltpetre. Therefore, the fifth renewal could not have been for the area exceeding 10 sq. kms. Thus, whereas the fourth renewal was for the area 15 sq. kms. the fifth renewal was and could only be for an area of 10 sq. kms. It has already been said that for the period w. e. f. 1982, the dead rent had been revised to Rs. 2,43,193. 83 per year and at the time when the fifth renewal became due under the MMCR 1986 the existing dead rent was as aforesaid. The question is when the area of the mining lease was reduced from 15 sq. kms. to 10 sq. kms under the MMCR 1986 what should be taken the existing dead rent for the purpose of calculation of revised dead rent; whether it should be taken as was being paid for 15 sq. kms. or it should be proportionately reduced to that of 10 sq. kms. which was the areas, for which the mining lease was to be renewed? It was contended by the learned counsel for the petitioner that when the area of the mining lease was reduced from 15 sq. kms. to 10 sq. kms. the dead rent should have been proportionately reduced and thereafter, the dead rent should have been revised. In this connection learned counsel for the petitioner referred to a decision of this court in the case of Firm Roop Narain Pandey vs. State of Rajasthan and another (1 ). In the aforesaid case no reasoning appears to have been given even for the view that the dead rent should be proportionately reduced, but the learned Judge said - "however, it is made clear that the State Govt. may revise the dead rent, but the dead rent can only be charged for which the renewed lease is granted. " Learned counsel for the petitioner brought to my notice a letter of the State Government in the matter of Shiv Charan Lal Goyal son of Shri Sukkhi Lal Goyal, a contractor of Roopbas District Bharatpur vs. Mining Engineer Bharatpur. The order is dated June 11, 1986 and its Number is P. 10 (12) Khan/gr-2/86, wherein a reference has been made to the order No. P. 33 (38) Khan/gr.-2/59 dated December 14, 1973 Wherein the State Government has taken a decision for proportionate reduction of the dead rent in case of reduction of area of the mining lease. It was contended by the learned counsel for the petitioner that when the area of mining lease was reduced, the dead rent should have been proportionately reduced and according to the learned counsel the expression 'existing dead rent' within the meaning of second proviso to sub- rule (3) of rule 18 of the MMCR 1986 should be read as the dead rent proportionately so reduced. Learned counsel for the Mining Department on the other hand contends that the validity of sub-rule (3) of rule 18 of the MMCR 1986 has not been challenged and therefore the expression 'existing dead rent' can only mean the dead rent which was existing at the time of renewal and the dead rent could not have been proportionately reduced despite the fact that the area of the mining lease stood reduced. He therefore contends that for the purpose of determination of dead rent the existing dead rent, the existing dead rent cannot be proportionately reduced and according to him, it should be as it was at the time of renewal of the mining lease. We have to see what is meant by dead rent and whether the dead rent is fixed on the basis of area or any other considerations have to prevail. In this connection a look at the Schedule II of the MMCR 1986 is necessary. The caption of Schedule-II is 'dead rent on Minor Minerals'. It will be seen from the aforesaid Schedule that the Dead rent will depend on the extent of the area of the mining lease. Even the learned counsel for the Mining Department could not dispute that the dead rent, when it is fixed for the first time, it depends on the extent of the area of the mining lease, but it was contended by him that the Dead rent is nothing but the minimum guaranteed amount of royalty per year payable as per rules of agreement under a mining lease as defined under rule 3 (x) of MMCR 1986. It was also contended by the learned counsel that in the aforesaid definition not only the dead rent payable as per rule but even as per agreement it is included and because an undertaking was given to the Mining Engineer by the petitioner to which reference has already been made in the earlier part of this order, the petitioner is bound to pay the Dead Rent as per his undertaking and he cannot challenge it. In my opinion, there can hardly be any dispute that fixation of Dead Rent depends also on the extent of the mining area. Not only this, as and when the Dead Rent is revised as per sub-rule (3) of rule 18, one of the components is existing dead rent + 40% of the existing dead rent. Sub-rule (3) of rule 18 of the MMCR which is relevant for the present purpose may be extracted here and it reads as under: - The lease shall also pay for every such yearly dead rent as may be fixed by the Government in quarterly instalments in advance, and if the lease permits the working of more than one mineral, the State Government shall not charge separate dead rent in respect of each mineral : Provided that the yearly dead rent at the time of initial grant shall be according to the rates specified in Schedule II. The rates specified in Schedule II shall, however, not be applicable at the time of revision of dead rent: Provided further that the competent authority may revise dead rent after every 5 years from the date of initial grant or of renewal of the mining lease in accordance with the following formula : - Revised Dead rent = Existing dead rent + 40% of Existing dead rent + Average excess royalty of the first four years of each span of 5 years : Provided further also that the lessee shall be liable to pay either dead rent or royalty in respect of each mineral whichever is higher but not both. " A bare reading of aforesaid extracted sub-rule (3) of Rule 18 of MMCR 1986 will show that while revising dead rent, not only the existing dead rent but 40% of the existing dead rent is also taken into consideration. Therefore, the dead rent, as said earlier, depends on the extent of area of the mining lease and in my opinion in the expression "dead rent' in case of reduction of area of mining lease, it should be taken the dead rent proportionately reduced and any other interpretation will be illogical and if the area of mining lease is reduced the amount of dead rent for big area cannot be charged. Take an example, if the area of mining lease was earlier 20 sq. kms. and now under the rules the maximum area of mining lease could not exceed 10 sq. kms. , could it be argued that the dead rent which was payable for 20 sq. kms. has to be paid now. 1 am of the opinion that while revising the Dead Rent under Rule 18 (3) and while taking the component of existing dead rent, the Dead Rent proportionately reduced has to be taken into consideration. (5) In this case the mining area has been reduced from 15 sq. kms. to 10 kms. and therefore the dead rent should have been proportionately reduced i. e. it should have been reduced by l/3rd. At the time of fifth renewal the dead rent was Rs. 2,43,193. 83 P. per year. It was for 15 sq. kms. area and the area of mining lease is now 10 sq. kms. Therefore, the aforesaid amount would be reduced by l/3rd of the same and thus it will stand reduced by the amount of Rs. 81, 064. 61 p. In other words, the amount of existing dead rent will have to be taken as Rs. 1,62,129. 22 p. Therefore, while revising the dead rent it shall be re-computed as follows - "rs. 1,62, 129. 22 + 40% of Rs. 1,62,129. 22 + average excess royalty of the first four years of each span of 5 years. " It may be made clear that so far as excess royalty of first four years is concerned, this part of the component will not be charged while revising the dead rent. Whether or not the dead rent as said earlier is to be proportionately reduced, this component would have been the same. Consequently, I am of the opinion that in a case of reduction of the mining area, the dead rent for the purpose of determination of revised dead rent under rule 18 has to be proportionately reduced and thereafter the dead rent should be revised in accordance with the formula provided under rule 18 (3) of MMCR 1986. There can hardly be any dispute that the circular which has been extracted by the petitioner at page 10 of the writ petition is without any authority of law. It will be seen from the aforesaid circular that it had been issued no doubt to meet out the difficulties which were faced by the mine-holders. It appears that the said circular had been issued under order No. P. 8 (Vitta) Gr. 4/75/part-2 dated May 31, 1985 of the State Government, but that circular in my opinion is likely to be struck down. Under the Indian Stamp Act, 1899, as adapted to Rajasthan by the Rajasthan Stamp Law (Adaption) Act, 1952, it is the Collector who having regard to the facts and circumstances of the case is to decide the question of royalty and the matter of grant has to be referred to the Collector, who alone is competent to decide the question in each case. There can hardly be any dispute that so far as the circular, clause (1) thereof, which provides that the security amount shall be added for the purpose of stamp duty, is illegal. The Delhi High Court in the case of Chief Controlling Revenue Authority Delhi vs. Marshall Produce Brukers Co. Pvt. Ltd. Delhi, (2) has said that the duty is not chargeable under Article 35 (c) of Sch. 1-A of the Indian Stamp Act, 1899 on the amount of security/deposit/advance, which is refundable on determination of the lease, in addition to the duty paid on the rent reserved under Art. 35 (a) of the Schedule. I am of the opinion that the said circular is without any authority of law and the aforesaid circular is held to be without authority of law.
(3.) SO far as the question (iii) stated above is concerned, the first of the same has been dealt with in the earlier part of this order and the aforesaid circular has been quashed and coming to the later part of this question it is not for this court to decide the same and it is for the Sub-Registrar to say what stamp duty is to be paid and it is the Collector who is to estimate the duty payable as aforesaid. It will be open for the petitioner to apply to the Collector to estimate the amount of duty and royalty for registration of lease deed. The petitioner will be free to move the Collector within a period of 15 days and the Collector is directed to decide the matter as early as possible but in no case later than six weeks thereafter. I would not like to decide what stamp duty is payable and it is for the Registrar to deal with this controversy. Consequently, the writ petition is partly allowed only to the extent that on the reduction of the area of mining lease from 15 sq. kms. to 10 sq. kms. the existing dead rent shall stand proportionately reduced as aforesaid. It will be revised in the light of the observations made above. The circular No. F. 7 (281) Gen/r&s/177932-18227 dated June 10,1985 is hereby quashed. The petitioner is directed to move the Collector as aforesaid. Costs made easy. . ;