ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner-Company aggrieved against the action of the respondents in not returning the registered instrument/document, order dated 12.3.1997 (Annex.18) passed by the Collector (Stamps), Circle Bhilwara and Demand Notice dated 13-3-1997 (Annex. 19) issued pursuant to the order dated 12.3.1997. 2. The writ petition was initially filed by GKW Limited, a Company incorporated under the provisions of the Companies Act with the averments that another company Graphite India Limited was having a mining lease for lime stone for the area of 9.98 Sq.Kms. near village Sitaram Ji Ka Kheda, District Chittorgarh; the said company partially surrendered some portion of the leased area i.e. 3.96 Sq.Kms. to the Government of Rajasthan and where after submitted an application for permission to transfer the retained area of 6.02 Sq.Kms. to the petitioner-Company, which application was accepted by the State Government and a sanction for transfer of mining lease was issued. 3. Pursuant to the said sanction, the statutory deed in accordance with law was executed on 22.6.1996 by Graphite India Limited, GKW Limited and on behalf of the Governor of Rajasthan was duly signed by the Mining Engineer. The deed was presented before the Sub-Registrar, Tehsil Nimbahera for registration. The Sub-Registrar issued notice dated 25.6.1996 under Section 47D of the Rajasthan Stamp Law (Adaptation) Act, 1952 ('the Adaptation Act') inter alia valuing the instrument at Rs. 13,90,000/-and demanded stamp duty of Rs. 1,39,000/- along with registration charges of Rs. 4,500/-. The petitioner deposited demanded deficient stamp duty of Rs. 1,35,000/- along with registration charges of Rs. 4,500/- on 26.6.1996 itself, however, despite payment of demanded duty, the registered document was not returned to the petitioner. 4. The petition was initially filed, on account of the Sub-Registrar not returning the duly registered document and submissions were made that the Stamp duty initially paid by the petitioner under Article 35 of the Second Schedule was sufficient. Further submissions were made questioning the legality and validity of certain circulars directing the authorities under the Stamp Act to determine the value of the lease deeds in a particular manner. 5. This Court by interim order dated 21.8.1996 stayed the operation of the circulars under challenge. In the meanwhile, it appears that the Sub-Registrar referred the matter under Section 47A(1) of the Adaptation Act to the Collector (Stamps), Circle Bhilwara by his communication dated 24.7.1996. 5. This Court by interim order dated 21.8.1996 stayed the operation of the circulars under challenge. In the meanwhile, it appears that the Sub-Registrar referred the matter under Section 47A(1) of the Adaptation Act to the Collector (Stamps), Circle Bhilwara by his communication dated 24.7.1996. The Collector (Stamps) issued notice under Section 47A(2) of the Adaptation Act to the petitioner calling upon the petitioner to appear for determination of correct market value of the instrument. The petitioner appeared before the Collector (Stamps) and filed applications inter alia indicating that as the duty paid was already in excess of the stamp duty applicable and circulars have been stayed by this Court, the proceedings be dropped. Another notice dated 6.3.1997 was issued to the petitioner, which was again answered. 6. Where after, in absence of the petitioner, the Collector (Stamps) by order dated 12.3.1997 (Annex. 18) valued the document as 'conveyance' and also taking the value of the land comprised in the lease deed at Rs. 26,500/- per bigha valued the same at Rs. 6,30,14,350/- and determined the stamp duty at Rs. 63,01,435/- and after deducting the already paid duty, imposed penalty of Rs. 37,565/- and raised the demand of Rs. 62 lacs. 7. After passing of the order dated 12.3.1997 (Annex.18), demand notice dated 13.3.1997 (Annex.19) was issued. The petitioner amended the writ petition and challenged the validity of the order dated 12.3.1997 (Annex.18) and demand notice dated 13.3.1997 (Annex.19). This Court by an interim order dated 7.4.1997 passed on second stay application stayed the operation of (he orders Annex. 18 & Annex.19. 8. During the pendency of the writ petition, the Cement Division of petitioner-GKW Limited was converted into a separate new company GKW Cement Limited as per scheme of arrangement sanctioned by Calcutta High Court. Where after, said GKW Cement Limited became 100% subsidiary of M/s. Lalarge India, another company incorporated under the provisions of the Companies Act, 1956 and thereafter, the name of the company - GKW Cement Limited was changed to 1 .afarge Rajasthan Cement Limited and where after, an application was filed for bringing on record said aspect and amendment in the cause title for Lafarge Rajasthan Cement I united to prosecute the present writ petition. 9. 9. It is submitted by learned counsel for the petitioner that the action of the respondents first in referring the document to Collector (Stamps) under Section 47A of the Adaptation Act is wholly without jurisdiction and thereafter the determination made by the Collector (Stamps) is ex-facie illegal and therefore, the same deserves to be quashed and set-aside. 10. It is submitted that the applicable article for payment of stamp duty is Article 35 of the Second Schedule to the Adaptation Act. which deals with 'lease' and the duty indicated therein w.e.f. 16.11.1992 has been the same duty as on a conveyance for a consideration equal to the amount or value of the rent which be paid or delivered for the total period of lease subject to a maximum period of two years. The stamp duty was accordingly calculated and paid in terms of the said entry. However, the Sub-Registrar apparently demanded the stamp duty in terms of Article 63 of the Second Schedule, which pertains to 'transfer of lease by way of assignment and not by way of under lease', wherein the duty prescribed was the same duty as on a conveyance for a consideration equal to the amount of the consideration for the transfer, which duty though not applicable, was paid by the petitioner. 11. It is submitted that the determination now made by the Collector (Stamps) based on the market value of the property by treating the same as conveyance under Article 23 is ex-facie baseless, inasmuch as, the definition of conveyance as contained under Section 2(10) of the Indian Stamp Act, 1899 ('the Act of 1899'), by its very language excludes instruments which are otherwise specifically provided for by Schedule-I and as lease is specifically provided for in the Schedule, the duty could not have been determined by treating the instrument as a conveyance and therefore, the determination made is ex-facie illegal. 12. It was further submitted that the provisions of Section 47A of the Adaptation Act itself are not applicable and on that count also, the determination being without jurisdiction, deserves to be quashed and set-aside. It was prayed that the writ petition be allowed. The impugned order and demand notice (Annex.18 & Annex.19) respectively be quashed and set-aside and the respondents be directed to return the registered document forthwith. 13. It was prayed that the writ petition be allowed. The impugned order and demand notice (Annex.18 & Annex.19) respectively be quashed and set-aside and the respondents be directed to return the registered document forthwith. 13. Vehemently opposing the submissions made by learned counsel for the petitioner, learned counsel for the respondents submitted that the writ petition has no substance and the same, therefore, deserves to be dismissed. 14. It was submitted that the document in question clearly falls within the definition of conveyance as indicated in Section 2(10) of the Act of 1899 as the present is a case of transfer of immovable property inter vivos as defined under the Act. Once, the instrument falls within the definition of conveyance, Article 23 of the Second Schedule to the Adaptation Act apply and as the duty chargeable therein is based on market value, the provision of Section 47A were applicable and the Sub-Registrar were justified in referring the matter to the Collector (Stamps) and the Collector (Stamps) in-turn was justified in determining the market value of the property in terms of Rule 59(B) of the Rajasthan Stamps Rules, 1955 and no interference, therefore, is called for in the order impugned. 15. It was further submitted that the submissions made with respect to the definition of conveyance seeking exclusion from the definition is baseless, inasmuch as, the definition excludes the instruments, which are otherwise specifically provided for by Schedule-I, whereas even as per the submissions made by learned counsel for the petitioner, the article pertaining to lease and transfer of lease by way of assignment falls in Second Schedule of the Adaptation Act and therefore, are not excluded. Further submissions were made that in terms of Section 6 of the Adaptation Act, even if instrument in question falls in more than one category, the same is required to be stamped at the highest duty and therefore, in terms of the said provision as the duty on conveyance is higher than duty of transfer of lease by way of assignment, the petitioner is liable to pay duty on the instrument as conveyance and therefore, the writ petition deserves to be dismissed. 16. Reliance was placed on Veena Hasmukh Jain & Anr. v. State of Maharashtra & Ors.: (1999) 5 SCC 725 : ( AIR 1999 SC 807 ) and State of Rajasthan v. Bhilwara Spinners Ltd. & Ors. : AIR 2001 Rajasthan 184. 16. Reliance was placed on Veena Hasmukh Jain & Anr. v. State of Maharashtra & Ors.: (1999) 5 SCC 725 : ( AIR 1999 SC 807 ) and State of Rajasthan v. Bhilwara Spinners Ltd. & Ors. : AIR 2001 Rajasthan 184. 17. I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record. 18. It is not in dispute that the document/instrument dated 22.6.1996 (Annex.2) was executed among Graphite India Limited, GKW Limited and the Governor of Rajasthan in Form 'O' under Rule 37A of the Mineral Concession Rules, 1960. The original lease which was executed on 10.6.1993 and registered on 8.7.1993 was for a period up to 20 years; the rights and obligations under the said lease were transferred w.e.f. the date of registration of the deed for the unexpired period of the lease i.e. up to 7.7.2013 and the consideration indicated therein was Rs. 13.50 lacs. 19. A further look at the said document clearly indicates that the lease, which was existing in favour of Graphite India Limited was transferred to the petitioner based on certain special conditions, which were imposed by the Mining Department. The document in question and the stipulation indicated therein, clearly indicates the transfer of lease hold rights by transferor Graphite India Limited to GKW Limited with the sanction and consent of the State Government, which was also a party to the document. 20. Section 2(10) of the Act of 1899 reads as under :- "Sec. 2. Definitions.- In this Act, unless there is something repugnant in the subject or context,- (10) "Conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I." 21. A bare reading of the above definition clearly indicates that conveyance includes the instrument, by which a sale has taken place and every instrument, by which property whether movable or immovable, is transferred inter vivos and the definition further stipulates rather excludes those transferor's, which are otherwise specifically provided for by Schedule-1 of the Act of 1899. 22. The term 'transfer' has to be read in the context of Section 5 of the Transfer of Property Act, 1882, which defines 'transfer' and include lease, mortgage, exchange, gift, release etc. 23. 22. The term 'transfer' has to be read in the context of Section 5 of the Transfer of Property Act, 1882, which defines 'transfer' and include lease, mortgage, exchange, gift, release etc. 23. The plain reading of the definition be that if any of the transferor's are specifically provided for by Schedule-I, the same not be termed as conveyance and the same, therefore, be governed by their respective entries in the schedule and not as conveyance. 24. The submission made by learned counsel for the respondents that the document in question fall within definition of conveyance in view of the fact that Articles pertaining to 'lease' and 'transfer of lease by way of assignment' are indicated in Second Schedule of the Adaptation Act and the definition only excludes the instruments indicated in Schedule-I, is baseless. 25. The Adaptation Act which was enacted to consolidate and amend the law relating to stamps in Rajasthan provides under Section 2 that the Act of 1899 as amended from time to time shall apply to the whole of State of Rajasthan. 26. Section 3 provided for adaptation and so far as relevant to the present controversy, its sub-clause (vi) provides as under :- "Sec. 3. Adaptations. - For the purposes of section 2,- (i) to (v)................................... (vi) reference in the Indian Act to Schedule 1 shall be construed as references to the Second Schedule of the Rajasthan Stamp Law (Adaptation) Act, 1952 (Rajasthan Act VII of 1952)." 27. A perusal of the said provision clearly indicates that in the definition of conveyance in the Act of 1899 instead of Schedule-I, Second Schedule of the Adaptation Act has to be read and therefore, if the instrument in question falls in any of the specific entries in Schedule II of the Adaptation Act, the same cannot be termed as conveyance. 28. The above aspect also find support from the observations made in the case of Bhilwara Spinners Ltd. (AIR 2001 Raj 184 ) (supra), which reads as under:- (18) We have carefully considered the rival contentions and perused the record. 28. The above aspect also find support from the observations made in the case of Bhilwara Spinners Ltd. (AIR 2001 Raj 184 ) (supra), which reads as under:- (18) We have carefully considered the rival contentions and perused the record. At the outset we invite our attention to definition of conveyance as given in the Indian Stamps Act, 1899 and adopted in the State of Rajasthan, which reads as under:- (10) "Conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule 1." (19) An analysis of the aforesaid provision makes it clear; (1) it applies to transfer to properties whether movable or immovable; (2) that such transfer has to be made inter-vivos and not by operation of law; (3) it expressly includes conveyance of transfer of properly sale or other transfer of property and excludes such transfer which are specifically provided for by Schedule I. (20) If we have a glance at it, the Schedule-1 refers to many modes of transfer like transfer by way of exchange, gift, lease, mortgagee, release, surrender of lease under different specified articles. All those modes of transfer are, therefore, excluded from the expression 'conveyance' for the purpose of act and an instrument of such other modes of transfer is to be governed by such specific article and not by general category of 'conveyance' under Article 23 read with Section 2(10). The question in the present case posed is whether the instrument is an instalment of property mentioned in the document of Tease' or assignment of lease or 'conveyance' by way of transfer of property from RSWM to BSL, as referred to above envisaged in Resolution of RSWM dated 24-1-1938. Suffice it to state that instrument of lease is provided for under Article 35 and an instrument of assignment of lease under Article 66. Both cannot be construed as 'conveyance' for the purpose of the Act of 1899 as adopted by State of Rajasthan. Apart from it, it has to be further noticed here that sub-section (10) of Section 2 refers to 'transfer inter-vivos' i.e. to say instrument of conveyance can only be such instrument which refers lo any transfer inter vivos. Both cannot be construed as 'conveyance' for the purpose of the Act of 1899 as adopted by State of Rajasthan. Apart from it, it has to be further noticed here that sub-section (10) of Section 2 refers to 'transfer inter-vivos' i.e. to say instrument of conveyance can only be such instrument which refers lo any transfer inter vivos. Thus, it makes clear that in order that an instrument falls within the definition, it is necessary that it must effect a present transfer of property, it purports to convey. It must be an instrument between two living persons purporting to transfer the property which is the subject-matter of instrument from one party to another. It cannot relate to a transfer of property which is not a subject-matter to the instrument. Nor it can relate to transfer of an interest of a person who is not a party to such an instrument. That is to say, an instrument of conveyance liable to duty under Article 23 of the Schedule-I of the Act is confined to the transfer of immovable properties between the parties to the instrument and the properties to which it relates. Within that precincts only, an enquiry as to the construction of the instrument for the purposes of stamp duty could be undertaken under the provisions of the Act to the extent permissible. However, it cannot traverse beyond the parties who have executed or on whose behalf the instrument has been executed by authorised agents and property mentioned in the instrument to find out the intention of the person who is not party to the instrument in respect of transfer of the property which is not subject-matter to the instrument." 29. The Collector (Stamps) by the impugned order dated 12.3.1997 (Annex. 18) after noticing the submissions made by the parties held as under:- (Emphasis supplied) 30. A perusal of the findings reveal that the Collector (Stamps) accepted the submissions of the Government Advocate that the document in question fell in the category of conveyance as well as transfer of lease by way of assignment and relying on provisions of Section 6 sought to impose higher duty. While determining the duty payable under both the entries, he found that the duty payable for transfer of lease by way of assignment be Rs. 1,35,000/-. 31. While determining the duty payable under both the entries, he found that the duty payable for transfer of lease by way of assignment be Rs. 1,35,000/-. 31. The very fact that the Collector (Stamps) came to the conclusion that the document in question fell in both the categories i.e. 'conveyance' and 'transfer of lease by way of assignment' in view of expression definition of conveyance as contained in Section 2(10) of the Act of 1899 read with Section 3(vi) of the Adaptation Act, as the instrument in question was specifically provided for by Second Schedule of the Adaptation Act, the same gets excluded from the definition of conveyance and consequently, even as per the finding recorded by the Collector (Stamps), the instrument could not have been charged otherwise than as transfer of lease by way of assignment. 32. In view of ignorance of definition of conveyance as contained in Section 2(10) of the Act of 1899, the finding recorded by the Collector (Stamps) is vitiated and based on the finding itself, the order impugned cannot be sustained and deserves to be set-aside on this count alone. 33. Further in view of the fact that even as per Collector's own determination, the stamp duty payable on transfer of lease by way of assignment has already been paid by the petitioner, no further amount remains outstanding from the petitioner. 34. The Judgments cited by learned Additional Advocate General does support the case of the State as the Judgment In the case of Veena Hasmukh Jain (supra) deals with deemed conveyance, which has no relation to the present case and the judgment In the case of Bhilwara Spinners (supra), as noticed herein-before supports the case of the petitioner. 35. So far as the submissions made by learned counsel for the petitioner regarding applicability of provisions of Article 35 and payment of stamp duty based on the said entry are concerned, the petitioner having voluntarily paid the stamp duty on receipt of notice under Section 47D of the Adaptation Act without any protest and f or reserving its right to question the validity of the said demand, the said aspect cannot now be agitated by the petitioner. 36. 36. In so far as, the further submissions about jurisdiction of the Collector (Stamps) under Section 47A of the Adaptation Act in determining the market value of the property are concerned, in view of the fact that though section 47A of the Adaptation Act is confined to determination of an ad valorem duty on the market value of the property and the Collector (Stamps) after holding an enquiry, can determine the market value and it is sine quo non that the duty payable should be on the market value of the property, as the claim of the respondents had been that the stamp duty was required to be paid as conveyance on the market value of the property, though the said assumption has been found to be incorrect, it cannot be said that the issuance of notice by the respondents was without jurisdiction. 37. In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 12.3.1997 (Annex.18) passed by the Collector (Stamps), Circle Bhilwara and demand notice dated 13.3.1997 (Annex. 19) are quashed and set-aside. The respondents are directed to return the duly registered document dated 22.6.1997 to the petitioner forthwith. No order as to costs.