A. Banerji, J. - (1.) THIS is a reference made by the Chief Controlling Revenue Authority, Board of Revenue, U. P. Allahabad under Section 57 of the Stamp Act. The following question has been referred to us : "Whether the documents in question termed as mining lease in accordance with the Minor Minerals (Concession) Rules, 1963, are lease deeds within the meaning of section 2 (16) (c) of the Stamp Act or sale deeds of immovable property chargeable under Article 35 (b) or Article 23 of Schedule I-B of the Act or mere licences chargeable under Article 5 (c) of the said Schedule."
(2.) TWO matters, one from Kanpur and another from Hamirpur, came up before the Board of Revenue raising identical question about the amount of stamp duty leviable on an instrument granting of right to opposite party no. 1, Mulakh Raj to remove sand from the bed of the river Ganga in Kanpur and an instrument granting a right for the removal of sand and morum in Hamirpur Tahsil by Mahendra Singh. In each case the question before the Collector was as to whether the instrument in question was to be treated as a lease deed or as a licence. The stand taken by the opposite parties was that the instruments were not lease deeds but licences. The plea of the Revenue was that the instruments were lease deeds and not licences. When the matter came up before the Board of revenue, a further plea was taken by the Revenue that in case the instruments were not held to be lease then the instruments were sale deeds of immovable property. It would be relevant to mention the facts in detail. First the Kanpur matter. It was stated that on 7th January, 1972 a lease deed was executed in accordance with the Minor Minerals (Concession) Rules, 1963 by Mulakh Raj, the lessee. Although the deed was required to be executed by the District Magistrate for and on behalf of the Governor of U. P., it was yet to be executed. The grant was for one year for a consideration amounting to Rs. 63000/. This amount was liable to be paid in four instalments. It was also stipulated that this right had been given in respect of a specific area. The right to hold the mines, beds/veins seams of the river Ganges was granted and dmised for a term of one year. The lessee was also required to pay the royalty subject to handing over physical possession of the plots referred to in part I of the Schedule of the document. It was also stipulated that the liability would commence from the date of handing over physical possession. It is not in dispute that Mulakh Raj was put in possession and he removed sand during the period of one year from the date of his taking possession. The stipulated amount had also been deposited. Sri Mulakh Raj had been served with a notice requiring him to execute a deed in respect of the auction for the collection and removal of sand from the plots mentioned in the instrument. He filed a duly executed document on a stamp paper of Rs. 2.25 along with an application under section 31 of the Stamp Act for adjudication of the stamp duty on the said document. Appended to the above application was a written argument in support of the lessee's contention that the instrument was a licence and not a lease deed. The Collector, Kanpur having some doubt as to the amount of stamp duty referred the same to the Chief Controlling Revenue Authority under Sec. 56 (2) of the Stamp Act vide his letter dated May 12, 1972.
(3.) THE second document was executed on 24th of March, 1976 by the District Magistrate, Hamirpur for and on behalf of the Governor of U. P. and Shri Mahendra Singh, opposite party no. 2. Mahendra Singh had applied to the State Government under the provisions of Minor Minerals (Concession) Rules, 1963 for a mining lease for morum and sand of the entire Tahsil of Hamirpur. This had been accepted by the State Government under Rule 68 of the said rules for a yearly consideration of Rs. 2,50,000/. In the Schedule the yearly consideation has been described as the "Royalty reserved by this lease". THE period during which the morum and sand could be removed was two years commencing from 21st of February, 1976. THE opposite party no. 2, Mahendra Singh, deposited a sum of Rs. 62, 500/ by way of security. A similar amount was deposited on 22-12-1975 as the first instalment. Reference may be made to the operative part of the document in the case of Mahendra Singh wherein the instrument has been termed as lease and the opposite party no. 2 as lessee. The opposite party no. 2, Mahendra Singh had also been served with an order dated 4th of February, 1976 by the District Magistrate requiring him to execute a deed in respect of the contract to win and remove morum and sand in Tahsil Hamirpur granted to him under Rule 68 of the Rules. He had submitted a duly executed deed in amended form MM 3 along with an application under Sec. 31 of the Stamp Act on 13-2-1976 for adjudication of stamp duty. He also filed another application purporting to be written argument in support of his contention that the document was a licence and not a lease. The Collector feeling some doubt as to the amount of duty referred the matter under section 56 (2) for the decision of the Chief Controlling Revenue Authority vide letter dated 25th of March, 1976.;