M.Y.EQBAL, J. - (1.) THE petitioner is aggrieved by the letter dated 17.4.2001 issued under the signature of Assistant Mining Officer, Pakur, whereby he has directed the petitioner to put the valuation of the mining lease on the basis of 1/10th of the total royalty paid during the past 10 years.
(2.) THE petitioner, a partnership firm, applied for renewal of its mining lease in relation to Block 2 -A, 3 situated in Malpahari in the district of Pakur measuring an area of 8.05 acres. The application for renewal of the lease of the petitioner was processed on the basis of certain terms and conditions which was communicated vide impugned letter dated 7.4.2001. The respondent No. 4 while communicating the order of Dy. Commissioner for renewal of the lease directed the petitioner to deposit stamp duty calculated on the basis of value of assets at 1/10th of paid up royalty paid during the last 10 years is wholly, illegal and without jurisdiction. Mr. P.K. Prasad, learned counsel appearing on behalf of the petitioner assailed the impugned demand as being contrary to provisions of the Stamp Act. Learned counsel submitted that nowhere in the Stamp Act there is any provision of calculation of stamp duty on the basis of value of 1/10th of paid up royalty paid for the past 10 years. Learned counsel drawn my attention to Annexure -3 which is a copy of circular dated 11.11.1996, issued by Department of Mines and Geology, Government of Bihar, clarifying that the valuation of stamp duty will be calculated on the basis of average of the royalty received in one year or Pead Rent whichever is higher.
(3.) THE Indian Stamp Act, 1899 deals with the stamp duty payable on the instrument. Section 3 is enabling provision which deals with ascertainment of stamp duty. Section 26 which is the relevant provision for the instant case reads as under : - - "26. Stamp where value of subject -matter is indeterminate. - -When the amount or value of the subject - matter of any instrument chargeable with ad valorem duty cannot be, or (in the case of an instrument executed before the commencement of this Act) could not have been, ascertained at the date of its execution or first execution, nothing shall be claimable under such instrument more than the highest amount or value for which, if stated in an instrument of the same description, the stamp actually used would, at the date of such execution, have been sufficient : Provided that, in the case of the lease of a mine in which royalty or a share of the produce is received as the rent or part of the rent, it shall be sufficient to have estimated such royalty or the value of such share, for the purpose of stamp duty, - - (a) when the lease has been granted by or on behalf of the Government at such amount or value as the Collector may, having regard to all the circumstances of the case, have estimated as likely to payable by way of royalty or share to the Government under the lease, or, (b) when the lease has been granted by any other person, at twenty thousand rupees a year; and the whole amount of such royalty or share, whatever it may be, shall be claimable under such lease : Provided also that, where proceedings have been taken in respect of an instrument under Section 31 or 41, the amount certified by the Collector shall be deemed to be the stamp actually used at the date of execution.";