M.G. Mukherji, CJ.

1. M/s. Bajaj Hindustan Ltd. transferred its factory and other properties situated in the District of Udaipur to M/s. JK Udaipur Udyog Ltd. in the year 1993. M/s. JK Udaipur Udyog the transferee-Company submitted an application u/S. 31 of the Stamp Act before the Collector, Stamps, Udaipur along with documents for adjudication of the stamp duty which might be payable for such transfer. The Collector, Stamps on receipt of the application for adjudication made site inspection of the properties on 17-9-1993 and looking to the bulk magnitude of different properties he gave a notice dated 18-9-1993 to M/s. JK Udaipur Udyog Ltd. to submit necessary information for determining the market value of the properties which were transferred under various deeds. M/s. JK Udaipur Udyog Ltd. instead of complying with the requirements of the notice dated 18-9-1993 went on requesting for adjournment of hearing from time to time and finally filed an application dated 3-11-1993 by which the adjudication proceedings were sought to be withdrawn. Thereafter, three documents were presented for registration at the office of the Sub-Registrar, Mavli on 1-12-1993 :-

1. Indenture of conveyance dated 1 -12- 1993 in respect of building of lease-hold land measuring 400 acres in Tehsil Mavli (valuation declared was Rs. 8,89,28,000/-).

2. Indenture of conveyance dated 1-12-1993 in respect of 14 bighas and 11 biswas of land and building therein in Tehsil Mavli (valuation declared was Rs. 84,49,340/- ).

On the aforesaid conveyance the petitioner deposited a sum of Rs. 88,92,800/- and Rupees 8,44,939/-, total Rs. 97,37,739/- through treasury challan.

3. Endorsement by the Collector, Udaipur dated 1-12-93 on certified copy of the lease-deed for 400 acres of land in Tehsil Mavli sent by the Collector, Udaipur for registration (Annual rental value Rs. 9,000/-)

2. On receipt of the above documents, the SubRegistrar, Mavli addressed a letter dated 12-1293 to the Inspector General, Registration and Stamps, Rajasthan seeking his guidance in determining the market value of the properties as the Sub-Registrar felt that the valuation of the properties involved required technical expertise. It was also stated by the Sub-Registrar that he never had such a case in which the valuation and stamp duty to such a large extent was involved. The Sub-Registrar on 17-12-93 also issued a notice to the parties requiring them to furnish information whether any consideration passed between the parties for transfer of the lease-hold rights. The Sub-Registrar further, issued a notice dated 21-12-93 requiring the parties to furnish certain information as to whether there was any agreement of sale executed between the parties and also asked for the balance-sheet of M/s. Bajaj Hindustan Ltd. It was also mentioned that the valuation of the plant and machinery had not been mentioned by any valuer, therefore, itemwise information might be furnished to determine which property would be immovable and which would be treated as movable. The information was required to be furnished by 31-12-1993.

3. M/s. JK Udaipur Udyog Ltd. by its letter dated 17-12-93 informed the Sub-Registrar, Mavli that no consideration passed for the transfer of the lease-hold rights and submitted an affidavit in support of its contention.

4. M/s. JK Udaipur Udyog Ltd. addressed another letter to the Sub-Registrar in reply to the letter dated 21-12-93 in which it was given out that no specific agreement was drawn up in between M/s. Bajaj Hindustan Ltd. and M/s. JK Udaipur Udyog Ltd. for sale of the aforesaid buildings and the terms and conditions and consideration thereof were duly recorded in the indenture of conveyance submitted for .registration on 1-12-93.

5. It is the stance taken by the State respondents that the said statement made by JK Udaipur Udyog Ltd. was not borne out to be true, inasmuch as, by its own documents which it submitted later on, it was proved to be otherwise and that the factum of agreement dated 10-6-93 for a sum of Rs. 147.50 crores was clearly mentioned in the balance-sheet which was later on admitted by M/s. JK Udaipur Udyog Ltd. Copies of balance-sheet were filed which went to show by way of further supplementary statement that the plant and machinery have been transferred by delivery of possession of such plant and machinery.

6. As the Sub-Registrar referred the matter to the Inspector General of Registration and Stamps for guidance and direction, the latter considered it proper to appoint a Committee headed by the Additional Inspector General of Registration and Stamps, Ajmer so as to assist the Sub-Registrar and the Committee visited the site on 7-1-94 and asked for certain information from the parties concerned. By a letter dated 8-1-94 M/s. JK Udaipur Udyog Ltd. requested for three weeks time for furnishing the said required information.

7. The Additional Inspector General of Registration and Stamps issued a notice dated 18l-94 asking M/s. J K Udaipur Udyog to furnish the required information upon which the latter sought time of 6/8 weeks by its letter dated 22-1-94 and at the same time Submitted copy of the balancesheet. Again, printed balance-sheet was agreed to be produced along with site plans, sectionwise plan and photographs etc. by 28-2-94. M/s. JK Udaipur Udyog Ltd. again sent telegrams asking for one months time to furnish the information and the time was allowed up to 31-3-94. While this process was continuing, the Government of Rajasthan, Department of Finance enclosed a copy of the question raised by a Member of the Legislative Assembly alleging that stamp duty worth Rs. 17 crores was being evaded. The State Government accordingly asked the Inspector General of Registration and Stamps to give a suitable reply on the question which might be placed on the floor of the Assembly. A reply was sent by the Inspector General of Registration and Stamps on 24-3-94.

8. M/s. JK Udaipur Udyog went on asking for more and more time to furnish the required information and delayed the matter on one pretext or the other and ultimately on 16-4-94 it addressed a letter requesting the Additional Inspector General, Registration and Stamps that it should be personally heard before the market value of the property was finalised.

9. Since it had come to the knowledge of the parties through the balance-sheet submitted by M/s. JK Udaipur Udyog Ltd. that there was an agreement of sale dated 10-6-93 and the consideration was declared to be Rs. 147.5 Crores, the Additional Inspector General of Registration and Stamps addressed a letter asked M/s. JK Udaipur Udyog to furnish a copy of the agreement dated 10-6-93. The stand taken by the State Government is that both Bajaj Hindustan Ltd. and M/s. JK Udaipur Udyog Ltd. are trying to suppress the said agreement in this context from the competent authorities. In the first instance by its letter dated 30-12-93 M/s. JK Udaipur Udyog Ltd. completely denied the existence of any agreement but when the authorities on a perusal of the balance-sheet came to know of such an agreement and perused the Directors report, then both the companies tried to suppress the agreement dated 10-6-93 and it has not yet been produced.

10. After the matter was discussed on the floor of the Assembly the State Government directed the Inspector General of Registration and Stamps to constitute a Committee for which he was made the Chairman with two technical persons, namely, Additional Chief Engineer, P.W.D. and the Chief Architect, P.W.D. Accordingly, the Inspector General, Registration and Stamps constituted a Committee headed by himself as the Chairman to which the Additional Chief Engineer, P.W.D., Udaipur and the Chief Architect, P.W.D. or his nominee, Senior Accounts Officer, Ajmer and the Additional Inspector General, Registration and Stamps were taken as members of the said Committee. The Additional Inspector General issued a notice dated 7-5-94 fixing a meeting in which he also asked M/s. Bajaj Hindustan Ltd. to furnish information with regard to Rs. 85 Crores which was shown as capital gains" on the sale made to M/s. JK Udaipur Udyog Ltd. The Additional Inspector General further issued a notice dated 25-5-94 requiring information on the basis of the site plan and valuation report. The Sub-Registrar issued a notice dated 25-5-94 to the Directors to appear before him on 31-5-94 be- cause of their initial failure to furnish correct datas and appropriate valuation of the properties under transfer and they were asked to give statements as provided under Section 63 of the Registration Act. The aforesaid statements were finally recorded on 27-6-94.

11. The company went on evading to furnish required information and sought time over and over again. The Sub-Registrar ultimately issued another notice dated 5-7-94 to the Company requiring it to furnish a copy of the agreement of sale dated 10-6-93 and list of plants and machinery which were alleged to be the subjectmatter of transfer by way of handing over possession. Instead of furnishing such information the petitioners approached this Court by filing a writ application. M/s. Bajaj Hindustan Ltd. and its Managing Director and M/s. JK Udaipur Udyog Ltd. and its Director filed on 20-7-1994 a writ application before the Division Bench seeking the following directions from this Court :

"1. allow the above writ petition of the petitioners;

2. issue a writ of and/or in the nature of mandamus commanding the respondents to register the two conveyances and one endorsement for the transfer of Government leasehold land, all dated 1st December, 1993 presented before the respondent No. 5 and two lease deeds, both dated 25-10-93 before the respondent No. 6 on 3-12-93 and issue necessary certificate of registration in respect thereof;

3. issue a writ of and/or in the nature of mandamus commanding the respondents to forbear from including and/or taking into consideration the value of any property including the plant and machinery other than what are mentioned in the deeds of conveyance presented by the petitioner for registration while determining the value of the property sought to be conveyed by such deeds of conveyance dated 1-12-93 endorsement for transfer of government leashold land and two mining lease deeds presented for registration on 1-12-93 and 3-12-93 before the respondents Nos. 5 and 6 herein;

4. issue a writ of and/or in the nature of prohibition prohibiting the respondents concerned from taking any steps or further steps or continuing with any proceedings against the petitioners on the basis of or pursuant to the orders dated 15- 1293 and 5-5-94 issued by the respondent no. 3 and communicated vide letter dated 5-7-94 of the respondent No. 5, being in any manner whatsoever and further forbidding the respondent No. 3 from interfering with the assessment of stamp duty in respect of deeds of conveyance and endorsement dated 1-12-93 and two mining leases both dated 25-12-1993;

5. issue a writ of and/or in the nature of certiorari commanding the respondents to certify and produce before this Honble Court all letters, papers, documents and relevant records forming the basis of the purported withholding of registration of two conveyance, are endorsement for transfer of Government lease-hold land and mining lease deeds presented for registration on 1st December, 1993 and 3rd December, 1993 before the respondents Nos. 5 and 6 and the same being so produced, the same may be set aside and quashed;

6. declare section 27, Sec. 33(5) and Section 40(1)(b) of the Indian Stamp Act accepted in Rajasthan as well as section 71 and section 60 of the Indian Registration, Act, 1908 as applicable in the State of Rajasthan, as unconstitutional and ultra vires the Constitution of India and also consequently quash the impugned sections of the respondents;

7. issue rule Nisi in terms of prayers (i), (ii), (iii) and (iv) as above;

8. grant such other further relief/reliefs as may be deemed just, proper and necessary for doing complete justice to the petitioners in the circumstances of this case; and

9. allow the cost of this writ petition to the petitioner from the respondents."

12. On 27-7-1994 and 24-8-1994 orders were passed by this Court inter alia providing that the assessment orders passed by the respondents in the matter on valuation would be subject to the orders of this Court. The State of Rajasthan moved the Supreme Court in Special Leave and by an interim order, the Supreme Court stayed the operations of the orders dated 27-7-1994 and 248-1994 passed by this Court. Ultimately, on 30th September, 1994, the Supreme Court passed an order disposing of the Special Leave Application directing inter alia adjudication by the appropriate authorities within four weeks. It further observed :

"The matter, it would appear has gone on for 15 months and that the respondents have had to make 18 visits to various authorities. In the meanwhile, the authorities seem to be insisting upon appearance of the Directors of the purchaser-company before them for testifying. Shri Salve contends, that the authorities are pennywise and pound-foolish and that by delaying Registration upon which would depend purchasers further activities which involved a further investment of Rs. 200 Crores of revenue each by way of taxes and duties is being lost to the State."

13. The Government of Rajasthan purported to constitute a so-called High Power Committee to determine the valuation of the properties mentioned in the five documents presented for registration. The writ petitioners submit that the said so-called High Power Committee of which the respondents Nos. 5 and 6 were not members had no lawful authority or jurisdiction to determine the valuation of the properties mentioned in the five documents so presented. The formation of such Committee was also contrary to the stay order dated 1-9-1994 passed by the Supreme Court. Thus, there was an usurpation of statutory powers of the respondents Nos. 5 and 6 by the High Power Committee.

14. On 28-10-1994, the purported High Power Committee determined an alleged valuation amounting to Rs. 173.70 crores and the respondents filed the valuation report before the Supreme Court on 28-10-1994 along with an application to make payment of purported balance stamp duty amounting to Rs. 16. 15 crores purportedly adjudicated by the respondents on account of such purported valuation. The application of the respondents for payment of alleged stamp duty came up for hearing before the Honble Court and after hearing the submissions made on behalf of the parties, the Supreme Court passed orders to register the documents subject to the payment of Rs. 1.11 crores which has already been paid and the writ petitioner No. 3 funished an undertaking asdirected by the Honble Court. The Supreme Court also made it clear that it did not propose to express any opinion on the validity of the constitution of the High Power Committee for the purpose of valuation of the property in question or on the valuation made by it. It was made clear that the said matter might be agitated before the High Court in the pending writ application or before the appropriate forum.

15. On 4-11-1995, the respondents No. 5 and 6 registered the five documents lodged for registration and handed over the same to the writ petitioners. The documents, however, contained endorsement in terms of the Courts order interalia to the effect that the dispute regarding payment of stamp duty was pending before the SubRegistrar and the Honble Court and that the present writ petitioners have given an undertaking to pay whatever additional stamp duty in respect of the above documents as may be found payable by the High Court.

16. On 18-12-1995, the application for taking on record the valuation and assessment orders dated 24-11-1994 passed by the respondents on the basis of the High Power Committees valuation reports and the reply of the writ petitioners thereto were taken up by a Division Bench of this Court comprised of N. K. Jain and G. L. Gupta, JJ. The Division Bench passed an order as follows :---

"We are, therefore, of the view that the Valuation Report is not proper and cannot be given effect to. In the interest of justice we direct the Sub-Registrars to have their own assessment/ valuation as per instruments afresh within 3 months from this date as per order dated 24-8-94 after hearing the petitioners. The application stands disposed of."

17. Five notices were issued thereafter by the respondents Nos. 5 and 6 inter alia directing the writ petitioners to give their comments in respect of the earlier valuation made by the High Power Technical Committee and in absence of which orders were directed to be passed by the respondents Nos. 5 and 6 by assessing the stamp duty on such valuation reports.

18. The writ petitioner No. 3 filed its reply before the respondents Nos. 5 and 6. The reply in details assailed the valuation made by the High Power Committee on various grounds inter alia that the properties forming part of the instruments were only to be valued and the valuation is to be made as per the instruments. The reply was, however, without prejudice to the petitioners main contention that inviting objections to the earlier report of the High Power Committee was not permissible in law and the notices inviting objections to such report were in effect seeking to over-reach and/or circumvent the directions issued by the High Court vide its order dated 18l 2-1995.

19. The respondents filed their application for raking on record the various valuation orders dated 15-4-1996 inter alia demanding a deposit of balance of adjudicated purported stamp duty of Rs, 15.00 crores.

20. Five notices were issued by the respondents No. 5 and 6 purportedly, being notices under section 47D of the Stamps Act for deposit of deficit stamp duty. The said notices inter alia alleged that the valuation of the instruments has already been completed and the writ petitioners should deposit the stamp duty on the basis of such valuation as was mentioned in the respective notices. It was further alleged that in case the stamp duty is not deposited, a reference shall be made to the Collector for recovery of the stamp duty and for the imposition of penalty to the tune of 11 times of the duty assessed.

21. The writ petitioners in reply to the notices dated 30-4-1996 and 17-5-1996 issued by the respondents Nos. 5 and 6 demanding deficit stamp duty and claiming to impose 11 times penalty on default thereof, submitted their replies dated 143-1996 to the respondents wherein it was inter alia contended that the matter of valuation is still pending before the High Court and the notices seeking to compel the writ petitioners to pay the alleged stamp duty is contrary to the directions of the High Court and the same are invalid and untenable. It was further contended that on the one hand the respondents were seeking directions from the High Court on the valuation reports and at the same time they were taking the law in their own hands by issuing notices and such action was contumacious. The writ petitioners requested for immediate withdrawal of the notices.

22. On 15-7-1996, a reply to the application filed by the respondents as well as an application for setting aside the valuation orders dated 15-4l996 as made by the respondents Nos. 5 and 6 was filed on behalf of the writ petitioners. On 6-9l996, reply by the respondents was given to the application of the writ petitioners for setting aside the valuation report and on 9-12-1996, a rejoinder was filed by the writ petitioners to the application for setting aside the valuation orders dated 15-4-1996.

23. The main contention as sought to be made by the writ petitioners inter alia is that the plant and machinery and electrical and EDP of the cement undertaking were separately transferred by delivery of possession vide receipt dated 1-12l993 (Annex.VI). The respondents in their valuation orders dated 15-4-1996 have purported to value such plant and machinery and electrical and EDP at a total sum of Rs. 80,18 crows (Rs. 73.82 crores by respondent No. 5 and Rs. 6.36 crores by respondent No. 6). Such plant and machinery and electrical and EDP having been transferred separately by delivery of possession, no documents were presented and/or lodged by the writ petitioners for registration before the respondents. In other words, the said plant and machinery and electrical and EDP are extraneous to the five documents lodged for registration. The respondents while seeking to include the value of such assets in the value of the properties mentioned in the five documents lodged for registration, have gone beyond the documents presented for registration in complete disregard of the charging Section 3 of the Indian Stamp Act as adopted in the State of Rajasthan. List of assets which were transferred separately by delivery of possession on 1-12-1993 was made over to the respondents on or about 4th October, 1994. The respondents thus while seeking to value those properties which were extraneous to the five documents lodged for registration are in-fact seeking to re-write the documents presented for registration which is not permitted in law. The writ petitioners in this connection relied on the decision of the Honble Supreme Court in CIT v. Bhurangya Coal Co., reported in AIR 1959 SC 254 . The other decisions relied upon by the writ petitioners on this point give out the principle that the revenue have to look only into the documents lodged for registration and value the properties mentioned therein for the purpose of levying stamp duty thereof, are as follows :-

1. Bharpet Mohammad Hussain Sahib v. Distt. Registrar, AIR 1964 Andh Pra 43.

2. W. M. Cory and Sons Ltd. v. Inland Revenue Commissioner, (1965) 1 All ER 917.

3. Sakharam Shankar v. Rarichandra Babu Mohire, (1903) ILR 27 Bom 279

4. Ramin Chetty v. Mohomed Ghouse (1889) ILR. 16 Cal 432 .

Thus, a sum of Rs. 80.18 crores as mentioned hereinbefore is liable to be straightway deducted from the valuation as made by the respondents.

24. A number of other structures, foundations erected and/or constructed for the limited beneficial user of the plant and machinery and certain items which did not form part of any of the five documents presented for registration, were also purportedly valued by the respondents to the tune of Rs. 45.43 crores. It is contended that such valuation is also bad in law for the reasons/factors as indicated above. Thus, it is asserted that a sum of Rs. 125.61 crores (Rs. 80. 18 crores + Rs. 45.43 crores) is liable to be straightway deducted from the purported valuation as made by the respondents. It may be noted that the writ petitioners categorically stated that the High Power Committee purported to value a number of properties which were not even transferred by the concerned instruments and thus the said purported valuation fell beyond the scope and ambit of the charging Section 3 of thc Indian Stamp Act as adopted in the State of Rajasthan. No denial of such statement has been made by the respondents.

25. The endorsement by the Collector, Udaipur on the existing lease lied was made for transfer of lease in respect of 400 acres of factory land in favour of the writ petitioner No. 3 on enhanced lease rental of Rs. 9,000/- per annum from the existing lease rental of Rs. 6,000/- per annum for the remaining period of lease and sent for registration by the Collector himself to the respondent No. 5. Such transfer of lease-hold rights in respect of 400 acres of land was made by the Government of Rajasthan vide letter dated 26th June, 1993 (Annex. 2).

26. The respondents have purported to value the said 400 acres of Government lease-hold factory land at Rs. 13.48 crores by treating the same as an absolute sale by including the same in the valuation of conveyance deed for transfer of structures on 400 acres of factory land. Though the fact remains that such land has been separately valued by them in other documents for transfer of such Government lease-hold land by endorsement, the purported determination as made by the respondents of the full market value of 400 acres of land and the levy of stamp duty thereon by treating the same as conveyance by way of an absolute sale of the land is had in law, inasmuch as, the lands in question are factory lands leased out to the writ petitioner No. 3 by the Government of Rajasthan for the specified purpose of setting up a cement factory on revised lease rental of Rs. 9,000/- p.a. as per the provisions of Rule 9 of the Rajasthan (Industrial Area) Allotment Rules, 1959. In the said 400 acres of land the writ petitioner No. 3 admittedly has no ownership right and there has not been any sale in respect of such lands and no consideration passcd in respect thereof. The respondents vide their letter dated 17- 12- 1993 ( Annex. 12 ) wanted to know from the writ petitioners how much consideration was paid for the transfer of the lease. It was made clear in the said letter that it no consideration was paid for the same, an affidavit may be filed to that effect. The writ petitioner No. 3 vide its letter dated 30-12-1993 stated that no specific consideration was paid to the writ petitioner No. 1 for the transfer of lease-hold, rights in its favour by the Government of Rajasthan, save and except enhancement of lease rentals from Rs. 6000/- p.a. to Rs. 9000/- p.a. Necessary affidavit as desired by the respondent was also filed by the writ petitioner No. 3.

27. Under section 3, proviso ( 1 ) of the Indian Stamp Act as adopted in the State of Rajasthan, the endorsement of the lease-deed dated 1-12l993 in respect of 400 acres of factory land as executed by the Government of Rajasthan in favour of the writ Petitioner No. 3 is exempted from the payment of stamp duty.

28. Curiously the order dated 15th April, 1996 of respondent No. 6 (Annex. R/1 ) mentions that the purported valuation is as per Article 23 of Schedule to the Indian Stamp Act as adopted in the State of Rajasthan. Reference to Article 23 of the Schedule as resorted to by the respondents for determining the market value of the 400 acres of land is wrong, inasmuch as, Articlc 23 does not apply to the facts and circumstances of the said transfer of lease. The valuation of the lease-hold interest is liable to be made as per Article 35 of Schedule of the Indian Stamp Act as adopted in the State of Rajasthan.

29. There is no assignment of such lease either, because there is no document executed by the erstwhile lessee in favour of the writ petitioner No. 3 It is submitted that the valuation of Rs. 13.48 crores made in respect of 400 acres of lease-hold land is liable to be straightway deducted from the purported valuation made by the respondent.

30. Two lease-deeds for transfer of mining lease in favour of the writ petitioner No. 3 were lodged for registration before the respondent No. 6 (Annex. 9). The respondents have purported to value the lease deed for transfer of mining lease in respect of 704,944 Hectares (Mining Lease No.1) along with purported 40 Bighas of land not belonging to the writ petitioners as admitted by the respondents in their reply to the writ petitioners application for setting aside the valuation reports at Rs. 3.31 crores. The purported determination of the full market value of lands mentioned in the documents pertaining to mining lease No, 1 leased out for specific purpose of mining only as per the provisions of Rule 37 of the Mineral Concession Rules, 1960 is had in law, inasmuch as, in the said lands the writ petitioner No. 3 has no ownership right and there has not been any sale in respect of such land and no consideration has passed in respect thereof, save and except the expenses incurred for developing such mining lands. Whatever development expenses were incurred by the writ petitioner No 1 in developing the mining lease area have already been quantified in the transfer deeds of the mining lease and stamp duty thereon has been paid on the same by the writ petitioner no 3. Other than the actual cost incurred in the development of the mining lease, the lessee namely writ petitioner No. 1 could not have charged anything else as per the applicable rule i.e. 3rd proviso to sub-clause (2) of Rule 37 of the Mineral Concession Rules, 1960. The charging of any premium in case of transfer of mining lease is prohibited. Accordingly, even otherwise, neither the transferor could have charged nor the transferee could have paid anything for the land of the mining lease beyond the actual cost of development of the mining lease area leased out by the transfer deeds. Therefore, the consideration for transfer of mining rights in mining lease cannot be anything other than the development expenses incurred in connection therewith. The field is covered by Rule 37 of the Mineral Concessions Rules, 1960. The purported valuation of the mining lease on the basis of alleged nondisclosure of consideration and, therefore, application of a mere departmental circular dated 17-11-1993 to value the mine leased land on the basis of double of royalty plus security charged for the assessment year 1993-94 is had in law, inasmuch as, neither a departmental circular could override the statutory provisions of the aforesaid Rule 37 nor the so-called royalty and security charged for the assessment year 1993-94 could be applicable for the transfer of mines as the correct consideration for transfer of mine was clearly disclosed as per the provisions of the Rule 37 of the Mineral Concession Rules, 1960 in the concerned document of mining lease presented for registration. Thus, according to the petitioners, the total valuation in respect of the area of mining lease No, I amounting to Rs. 3.31 crores as made by the respondents is liable to be straightway deducted from the purported valuation made by the respondents.

31. To summarise, from the total purported valuation of Rs. 161.43 crores made by the respondents Nos. 5 and 6, a sum of Rs. 142.40 crores is liable to he straightway disallowed and/ or discarded as detailed above. On account of such disallowance, a sum of Rs. 14.24 crores from the purported claim of stamp duty of Rs. 14.98 crores is liable to be straightway disallowed by this Honble Court being patently illegal, contrary to the provisions of charging Section 3 of the Stamp Act and judgments of various Courts and being totally contrary to the directions of this Honble Court as contained in the order dated 18-12-1995 inter alia to make the valuation as per instruments afresh.

32. The main contention of Mr. Ghosh, the learned Senior Advocate appearing for the petitioners is that according to the Stamp Act the valuation for stamp duty can be made only for the properties covered by the instruments presented for registration. Any property not covered by such instrument cannot be valued. It is thus clear from the statutory provisions and also from the decided cases that the plant and machinery which were not included in any of the instruments presented for valuation cannot be the subjectmatter of any stamp duty on the basis of an assessment being made and payable on the same. In the valuation report plant and machinery have been put under the head List of Plant and Machinery not included in the document." Taking into consideration the earlier order of the Division Bench dated 18-12-95 a decision has to be taken by Sub-Registrars to have their own assessment as per instruments following the earlier order dated 24-8-94. The order dated 18-12-95 was never challenged or appealed to by any of the parties and it has thus become final. Mr. Ghosh cited before us the decision in Himalaya House Co. Ltd. v. Chief Controlling Revenue Authority, AIR 1972 SC 899 , for the proposition that mere reference to some earlier transaction in a document does not amount to an incorporation in that document of the terms and conditions relating thereto. Before the terms and conditions of an agreement can be said to have been incorporated into another document, the same must clearly show that the parties thereto intended to incorporate them. It is true that Section 27 of the Stamp Act requires the parties to a document to set forth in the document fully and truly the consideration, if any, and all other facts and circumstances affecting the chargeability of that document with the duty or the amount of the duty with which it is chargeable. But failure to comply with the requirements of that section is merely punishable under Section 64. When the reported decision was made there was no provision in the Stamp Act empowering the Revenue to make an independent inquiry of the value of the property conveyed for determining the duty chargeable. But the said statute has undergone a change in the transfer structure where there is indeed a provision for an independent inquiry as regards valuation of the property. It was also reiterated in the decision that for the purpose of Article 23 the value of consideration must be taken to be one as set forth in the conveyance deed. It would, however, be not safe to rely upon this decision in the present context of statutory provisions of law. In Bharpet Mohammad Hussain Saheb v. District Registrar, Karnool, AIR 1964 Andh Pra 43, a three-Judges Special Bench of the Andhra Pradesh High Court held that in deciding the proper stamp duty that is chargeable on an instrument presented for registration, the following principles deserve to be taken into consideration by the Revenue Authorities, namely, (1) In revenue cases it is the letter of the law that should be taken into account and it is not the spirit or substance of it that should decide whether a document would fall under one category or another. It is the form adopted by the parties that is relevant and not the substance of the matter; (2) It is only the instrument that is presented for registration that should be charged with stamp duty. The authorities cannot look into the various documents that are connected with it with a view to judge the nature of the transaction that is covered by this document read in conjection with several others.

33. In Commr. of Income-tax v. Bhurangya Coal Co., AIR 1959 SC 254 , it was held that so far as the immovables are concerned, the title to them pass to the transferee only when the sale-deed was executed and not when the agreement was concluded. The transaction, therefore, fell directly within the operation of Section 12-B of the Income tax Act, 1922. So far as the movable properties were concerned, the title to them pass when they were delivered to the transferee and that was on the date the agreement was concluded and their sale fell outside the section. Therefore, on the terms of the agreement and the sale-deed, the position was that while the assessee would be liable for tax in respect of properties made with reference to immovables covered by the saledeed, it would not be liable to tax in respect of the profits attributable to the sale of movables of which delivery was given to them on the date of the agreement. On a consideration of the two documents, it was held by the Supreme Court that what was intended to be sold and what was actually sold under the sale-deed were only properties mentioned in part 1 of the Schedule as immovable properties and not of the items included in part 2 and the intention was to sell the fixtures of movables. In this view the question whether the movables have been validly sold did not really arise for determination because if the sale was invalid there was no sale so far as they were concerned and section 12-B would be inapplicable. Therefore, it was held that it was only the profits in respect of the sale of the properties described in part 1 that were liable to tax under Section 12B.

34. In W.M. Cory and Sons Ltd. v. Inland Revenue Commissioners, (1965) 1 All ER 917, it was held that stamp duty is payable on the instruments and not on transactions and secondly, the liability of a instrument to stamp duty depends on the circumstances which exist when the instrument is executed. The Court can have regard to what is said and done. Thereafter in order to discover the true position when the instrument was executed but in the said case the true position at that time was not in doubt. The agreement was a genuine agreement and the transfers were executed in order that they should be used in the manner contemplated by the agreement. Mr. Ghosh also relied upon Sakharam Shanker v. Ram Chandra Babu Mhire, (1903) ILR 27 Bombay 279 and Ramin Chetty v. Mohd. Ghouse, (1889) ILR 16 Cal 432, in support of his contentions.

35. 400 Acres of land were leasehold land and, therefore, no sale took place or could take place in respect thereof. Though the High Power Committee erroneously considered it to be a sale, subsequently the Sub-Registrar in his valuation report valued the market value of the leasehold land by observing "The correct and reasonable basis for ascertaining the present market value of the land can only be rate of said land for industrial purposes. In this way the total cost of the said land of 400 Acres was determined at Rupees 13,47,95,960/-."

36. Lease hold land cannot be sold. In para 8(1) of the reply filed by the State of Rajasthan to the application of the petitioners to set aside the valuation it was stated as follows :-

"(1) Lease-deed of 400 Acres of land which was originally allotted to Bajaj Hindustan Ltd. for establishment of Cement Factory for a period of 99 years commencing from 26th October, 1968, the State Government by their letter dated 26-693 permitted the transfer of the lease in favour of JK Udaipur Udyog Ltd. and the Collector on behalf of the State made an endorsement on the original lease-deed substituting the name of JK Udaipur Udyog Ltd. as original lessee for remaining period of the lease on certain terms and conditions which are recorded in the original lease deed and deed of endorsement. The Sub-Registrar has treated this lease document as endorsement made on the lease-deed and has registered the same on payment of Rs. 45/-." Transfer of leasehold rights were made as per Rule 9 of Rajasthan (Industrial Area Allotment) Rules, 1959 and the lease rent was increased from Rs. 6,000/- to Rs. 9,000/- per annum.

37. Section 3, proviso (1) of the Indian Stamp Act as adopted in the State of Rajasthan provides that where the lease-deed is executed by the State Government, then the same is exempted from payment of stamp duty.

38. With regard to mining lease the chart filed by the petitioners showed that with regard to Mine No. 1 it was covering 704.944 Hectares of mining land. According to the State of Rajasthan an additional duty of Rs. 2,42,666/- has to be paid, though, according to the petitioners such stamp duty has not been paid, without prejudice to its rights, the petitioner is willing to pay the same and the matter is treated as closed on these issues.

38A. The Rajasthan Land Revenue (Industrial Area Allotment) Rules, 1959 in Rule 9 provides that the lessees are debarred from selling the land. The said rule 9 states that the lessee shall have the limited ownership on the land till the lease subsists.................. The lessee shall have no right to sell the land.

39. Rule 30 of Mineral Concession Rules, 1960 provides that the lessee shall have the right to work the mines. Rule 37 (2) of the Mineral Concession Rules, 1960 provides that the lessee may transfer his lease or any right, title or interest therein to a person on certain conditions. Rule 37(2) also provides that "the lessee shall not charge or accept from the transferee any premium in addition to the sum spent by him in obtaining the lease, and for conducting all or any of the operations referred to in Rule 30 in or over land leased to him."

40. The petitioners have disclosed the consideration being the development expenses as per provisions of Mineral Concession Rules. The applicable provision of stamp duty was payable on the consideration disclosed in the deed of assignment and the applicable stamp duty was 10% of the disclosed consideration which has been paid by the petitioners.

41. It was reiterated by the petitioners that the plant and machinery which are not covered by the documents presented for registration were not subject to stamp duty. That apart there was no sale of leasehold land and further the assignment by the Government on such leasehold land was exempted from stamp duty and there was no sale as regards the mining leases.

42. It was further reiterated that in respect of residential colony on 14 bighas 11 biswas of land the stamp authorities were claiming additional stamp duty of Rs. 1,20,285/- and in respect of mining lease No. 1 the stamp authorities were claiming additional duty of Rs. 2,42,666/- and in respect of conveyance of structures and buildings on 400 Acres of land the Stamp Authorities were claiming Rs. 71,l0,900/- as additional stamp duty. The petitioner No. 3 without prejudice to its rights is willing to pay two additional sums of (i) Rs. 1,20,287/- in respect of the residential colony comprised in 14 bighas and 11 biswas of land, and (ii) Rs.2,42,666/- in respect of mining lease No. 1. As regards the conveyance of structures and buildings on 400 Acres of land in respect of which the stamp authorities are claiming Rs. 71,10,900/- as additional stamp duty the petitioners have expressed their willingness to pay Rs. 25,00,000/- as additional stamp duty provided the State effect a consent order on this score. But unfortunately the State did not agree and the negotiation failed. In so far as the conveyance deed dated 1-12-93 is concerned, the same transfers various hereditaments mentioned in Schedule 2. The properties covered by Schedule 2 have been valued by the Stamp Authorities. The Stamp Authorities have purported to value " List of Hereditaments not included in the list" for a larger sum. We do not think that we can assess what is really permissible or what is not, even though there may be some force in the arguments of the petitioners in this regard that the authorities have described the appurtenances as being "not included in the document" and such valuation may not be permissible in law because of the following reasons :

(i) The said conveyance deed shows that what was transferred the properties described in the Second Schedule have been referred to as " the said hereditaments".

(ii) At page 11of the said conveyance deed it is again mentioned that what was sold were the said hereditaments "along with appurtenances whatsoever to the said hereditaments".

(iii) The hebendum clause at page 12 states that the transferor would have and hold "the said hereditaments" which are covered by the said document.

(iv) Schedule 2 of the said Conveyance Deed in Sl. No. 55 (at page 19) mentioned "Miscellaneous buildings and sheds not accounted above. In the valuation report at page 65A in Sl. No. 50 which is at page 65C of Volume I of the Paper Book, the said Miscellaneous buildings and sheds have been valued at Rs. 1,00,000/-.

Appurtenances are things which are connected with or subsidiary to the hereditaments as will be clear from the judgment of the Supreme Court in Maharaj Singh v. State of U.P., reported in (1977) 1 SCC 155 :(AIR 1976 SC 2602 ). Accordingly, the appurtenances could be valued only under the said heading of "Miscellaneous Buildings and Sheds not accounted for .

43. We would in the state of affairs not venture to make any assessment of our own on the face of such disputed contentions in between the petitioners on the one hand and the respondents-State Authorities on the other. We are quite conscious of the submissions made by the petitioners in view of the various decisions of the Supreme Court in Calcutta Discount Co. v. Income-tax Officer, AIR 1961 SC 372 , A. V. Venkateshwaran v. R. S. Wadhwani, AIR 1961 SC 1506 ,Collector of Customs v. A. S. Bava, AIR 1968 SC 13 , Ram and Shyam Co. v. State of Haryana, AIR 1985 SC 1147 , and Commr. of Sales Tax v. M/s. Filterco, AIR 1986 SC 626 that even though there is an alternative remedy for ends of justice if a proper case is made out the High Court in its writ jurisdiction can interfere for efficacious and speedy relief. However, we would direct the respondents Nos. 5 and 6 to accept the additional stamp duty of Rs. 1,20,287/- in respect of residential colony on 14 bighas and 11 biswas of land and Rs. 2,42,666/- in respect of mining lease No. 1. With regard to endorsement made on the existing lease we have already indicated our mind that there is no possibility of any ad valorem stamp duty on mere assignment of the lease-deed in the manner it was so executed by the Collector. With regard to the other items of the property we would direct the respondents Nos. 5 and 6 to make a proper evaluation on the basis of our directions to the effect that what was really sought to be conveyed through the deeds are to be only looked into and no fishing exploration is to be made as to what other articles/items were sought to be conveyed without there being any specific mentioning of the same in the documents. In case the petitioners are aggrieved by any fresh assessment made in this regard by the respondents Nos. 5 and 6 they would be free to approach the Collector in this regard and the other authorities envisaged in the statute as the final determining authorities in accordance with law. We make it clear that none of the findings and/or observations as made by the High Power Committee would influence the decision of either respondents Nos. 5 and 6 or of the Collector, if there be any ultimate reference to him in this regard. We would accordingly direct the respondents Nos. 5 and 6 to apply their minds with regard to the documents presented for registration before each one of them and take decision afresh. Since the existing guarantees pursuant to the undertakings given by the petitioners subsist, there will be no question of impounding of the documents or any coercive steps taken by the respondents till a final decision is arrived at in accordance with law. Except what have been mentioned above, the normal procedure as delineated in law will follow.

44. No question of constitutional vires having been urged before us with any force except that it was urged that they confer arbitrary powers on the Stamp Duty Assessing Authority we make it clear that we do not find Sections 27, 33(5), 40(1)(b) of the Indian Stamps Act and Sections 60 and 71 of the Indian Registration Act as ultra vires.

45. With these observations, the writ application stands disposed of.