( 1. ) THIS order shall also dispose of Misc. Petition Nos. 1418/81, 2076/83, 2077/83, 2078/83 and 2949/84.

( 2. ) THE short question for decision relates to the mode of computation of stamp duty on the instruments of mining lease in Form K prescribed in accordance with Rule 31 of the Mineral Concession Rules, 1960. Article 35 in Schedule 1-A of the Indian stamp Act, 1899, as amended in its application to the State of Madhya Pradesh, prescribes the stamp duty payable on a lease and clause (a) therein provides for the lease deeds "whereby such leasee the rent is. fixed and no premium is paid or delivered," section 26 of the Stamp Act applies where value of the subject-matter is inderminate. The question really is whether section 26 applies and has to be read along with Article 35 in these cases relating to payment of stamp duty on instruments renewing mining leases or not. The petitioners contention is that section 26 has no application whereas the respondents contend that it applies. Applicability of section 26 is, therefore, the real controversy between the parties.

( 3. ) ALL these cases relate to renewal of mining leases and the question is of the stamp duty payable on the instruments renewing the mining leases. For the purpose of computation of stamp duty on these instruments, the respondents have demanded duty on the amount of royalty paid during the last three years under the mining lease which is to be renewed in accordance with section 26 of the Stamp Act. The petitioners contend that section 26 has no application and by virtue of Article 35 alone stamp duty is payable only on the amount of annual dead rent fixed by the lease and the royalty required to be paid thereunder cannot be taken into account for the purpose of payment of stamp duty. The petitioners contention is that the annual dead rent fixed under the lease deed indicates that "rent is fixed" by the lease and therefore clause (a) of article 35 alone applies, whereas section 26 applies only to a case where the value of subject-matter is indeterminate. The question is whether this contention is correct.

( 4. ) SECTION 26 and the relevant part of Article 35 in Schedule-1 of the Stamp Act are as under :-"s. 26. Stamp where value of subject-matter is indeterminate. Where the amount or value of the subject-matter of any instrument chargeable with ad valorem duty cannot be, or (in the case of an instrumenl 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 slated in an instrument of the same description, the stamp actually used would, at (he date of such execution, have been sufficient: provided that, in the case of the lease of a mine in which royally 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 be 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 i ( 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.

Art. 35. Lease, including an under-lease or sub-lease and any agreement to let or sub-let ;- (a) where by such lease the rent is fixed and no premium is paid or delivered". The actual controversy between the parties is really to the applicability of (he proviso in section 26 relating