Court No.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No.1311 of 2007 (Old No.34595 of 1997) Jagdish Prasad ………… Petitioner Versus State of U.P. through the Collector, Pauri Garhwal and others. ………... Respondents ……………….. Sri R.K.Shah, learned counsel for the petitioner. Sri H.M.Raturi, learned Standing Counsel for the State /respondents Date: Aug. 14,2008. Hon’ble P.C.Verma,J. This writ petition has been filed by the petitioner challenging the order dated 05.08.1997 passed by the Commissioner, Garhwal Division, Pauri in Stamp Revision No.2/96-97, Jagdish Prasad versus State of U.P., whereby the Commissioner has affirmed the order of the Collector Stamp, Lansdowne (District- Pauri Garhwal) passed under Section 33 of the Indian Stamp Act in Original suit No. 1/95-96. 2. The Collector Stamp in exercise of powers under Section 47 of the Indian Stamp Act, 1899 (hereinafter referred to as the Act) required the petitioner to pay stamp duty as per provisions contained in Article 35 Schedule I-B of the Act. A lease right for collection of minor minerals was granted to the petitioner and lease 2 deed was executed on which the petitioner has paid stamp duty as per provisions contained in Article 5 (c) of Schedule I-B of the Act. The question which was under consideration before the revisional court as to whether the stamp duty was payable on the lease granted for collection of minor minerals in the rivers or streams is liable to be subjected to pay the stamp duty in accordance with the provisions of Clause (c) of Article 5 of Schedule I-B or the stamp duty was payable according to Article 35 of Schedule I-B of the Act. 3. The lease has been defined under sub Section (16) of Section 2 of the Act. Clause (e) of sub Section (16) of Section 2 was inserted by U.P. Act No.11 of 1992 w.e.f. 01.11.1991 and according to this insertion of mining lease in the clauses of leases contained in sub Section (16) of Section 2 became subject to payment of stamp duty according to Article 35 of Schedule I-B of the Act. The court below applied the aforesaid provision and held that the petitioner was liable to pay the stamp duty as per provision of Article 35 of Schedule 1-B of the Act. 4. The learned counsel for the petitioner relied on the Government Order No.1745/18-12-95-392/85, dated 16th May, 1995 contained in Annexure No.1 to the writ petition. This Government Order has been issued in continuation of the G.O. issued on the same date bearing No. T-043/10-12-93-392/85. Clarification has been made by this Government Order No. T-043/10-12-93- 392/85 in respect of mining lease by which the right of collection of minor minerals as applied by the petitioner is granted which are found independently in the streams etc. The mines are sand, boulder, bajri etc. It has been 3 further provided that if the lease is for five years or less then that, then on such leases the stamp duty shall be payable as per provisions of Article 5 (c) of Schedule I-B of the Act. Since the State Government has issued this clarification in respect of lease and has clarified the position in respect of payability of stamp duty thereon, the authorities below were bound by this Government Order and fell into error in levying the additional stamp duty. It is clear that according to this Government Order dated 16th May, 1995, which is contained in Annexure No.1 to the writ petition, stamp duty was only payable to Schedule I-B and which was paid by the petitioner, the proceedings under Section 47 of the Act could not have been initiated by the Collector Stamp ignoring the Government Order dated 16th May, 1995. Therefore, both the orders are set aside. Petitioner is not liable to pay stamp duty as he has already paid according to the provisions of Article 5(c) of Schedule I-B of the Indian Stamp Act. 5. The writ petition is allowed. No order as to costs. (P.C.Verma,J.) 14.08.2008 P.Singh