- (1.) D. P. Mohapatra, C. J. On a reference made by a learned single Judge to place the matter before a larger Bench to decide the controversy, this case has been placed before us for deciding the questions formulated in the reference order. The following questions have been formulated for decision: " 1. Whether three Judges Special Bench decision in Board of Revenue v. Mulkhraj 1984 All LJ 321 (SB) has correctly construed the Supreme Court decisions, in Anand Bahera v. State of Orissa, AIR 1956 SC 17 and in Tarkeshwar Sio Thakur Jiu v. B. D. Dey and Company. AIR 1979 SC 1669?
(2.) WHETHER the right, created under the instrument in question, of catching the fish, in favour of the petitioner from Pachaura Tank reservoir for a period of five years on payment of premium is a lease within the meaning of Section 2 (16) of the Act, chargeable to stamp duty in accordance with Article 35 of Schedule 1-B of the Stamp Act in the light of the pronouncement of the Supreme Court referred to hereinbefore or it is a licence chargeable to stamp duty under Article 5 (c) of Schedule 1-B of the Act as held by the Three judge Special Bench of this Court in. Board of Revenue v. Mulakhraj (supra)? 2. The factual backdrop of the case necessary for appreciating the points raised may be stated thus: On the basis of an auction held on 21-9-1988 by the Irrigation Branch of the Public Works Department of the Government of Uttar Pradesh, the petitioner Smt. Guddi was given the right to catch and carry away fish from Pachaura Tank Reservoir during the period, 1- 10-1988 to 15-61993 for a consideration of Rs. 61,000/ -. When the instrument entered into between the petitioner and the State Government was presented for registration before the Sub Registrar. Man Ranipur. Jhansi on 9-3-1989 he referred the matter to the District Registrar/additional District Magistrate (Finance and Revenue) Jhansi under Section 33 of the Indian Stamp Act. 1899 (hereinafter referred to as the Act ). The Additional District Magistrate by his order dated 27-2-1989 held that the instrument was a lease within the meaning of Section 2 (16) of the Act and, therefore, liable to stamp duty in accordance with Article 35 (b) of Schedule I-B. On the basis of the said finding the Additional District Magistrate (Finance and Revenue ). Jhansi, found deficiency in the stamp duty to the extent of Rs. 8,502. 50p and levied a penalty of Rs. 700/ -. The petitioner assailed the order in revision before the Commissioner. Jhansi Division under Section 56 of the Act. The Commissioner by his order dated 27-9-1992 stayed recovery of penalty but declined to suspend recovery of deficiency in the stamp duty. Consequently, a citation for recovery of the said amount was issued on the 30th of May, 1992. Feeling aggrieved, the petitioner filed the present writ petition seeking a writ of mandamus directing the respondents to refrain from realising deficiency in stamp duty from her in pursuance of the aforementioned order. On the factual backdrop of the case as discussed above the core question that was raised before the learned single Judge was whether the instrument dated 2-2-1989 (Annexure 3 to the writ petition) whereunder the petitioner was given the right to catch and carry away fish from the Pachra Tank Reservoir was lease and therefore, chargeable to stamp duty under Article 35 (b) of Schedule 1-B of the Act or an agreement chargeable under Article 5 (c)of Schedule 1-B. As discussions in the reference order show the learned single Judge was of the view that the document in question was a lease inasmuch as it created a right to catch fish which, as held by the Supreme Court it the case of, Anand Behera v. State of Orissa, AIR 1956 SC 17, was a profit a prendre; but he was confronted with the decision of the Three Judge Bench of this Court in the case of Board of Revenue v Mulak Raj, 1984 AllLJ 331 (SB), in which a contrary view. was taken. Therefore, he formulated the questions set out earlier and made a reference to a larger Bench. Before taking up the merit of the case, it would be convenient to notice a few, statutory provisions relevant for decisions on the points. Section 2 (16) of the Act defines 'lease' as follows: 2 (16) 'lease' means a lease o immovable property, and include also- (a) a Patta: (b) a kabuliyat or other undertaking in writing. not being a counterpart of a lease to cultivate, occupy or pay or deliver rent, for immovable property: (c) any instrument by which tolls of any description are let: (d) any writing on an application for a lease intended to signify that the application is granted: (e) any instrument by which mining lease is granted in respect of minor minerals as defined in clause (e) of Section 3 of the Mines and Minerals (Regulation and Development) Act, 18957. The Indian Stamp Act does bit define the term immovable property. In Section 3 of the General Clauses Act, 1897 it is laid down that in this Act and in all Central Act and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context'immovable property' shall include land benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. In Section 3 of the Transfer of Property Act. 1892 (T. P Act for short) it is laid down that in this Act. unless their is something repugnant in the subject or context. Immovable property' does not include standing timber growing crops or grass. Section 105 of the T. P. Act, which defines lease provides that a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time express or implied, or perpetuity, in consideration of a price paid or promised or of money share of crops service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Sections 107 of the T. P. Act makes provision how leases are to be made. It is laid down herein that a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument. All other lease of immovable property may be made either by a registered agreement or by oral agreement accompanied by delivery of possession. Section 107 of the T. P. Act as amended in the State U. P. reads as follows: "107, Lease how made-- A lease of immovable property from year to year or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or, by an agreement oral or accompanied by delivery of possession. "
(3.) THE Supreme Court in the case of, Anand Behera v. State or Orissa, AIR 1956 SC 17 ruled that the sale of a right to catch and carry away fish in specific portions of the lake over a specified future period amount to a licence to enter on the land coupled with a grant to catch and carry away the fish that is to say it is a profit a prendre, which is regarded in India as a benefit that arises out of the land and as such is immovable property. It was further held that a sale of a profit a prendre (a right to catch fish in a lake) which is immovable property, of the value of more that hundred rupees requires writing and registration under Section 54 of the T. P. Act. An oral sale in such a case does not pass any title or interest in the vendee. Referring to 11 Halsbury's Laws of England (Hailsham Edition) pages 382 and 383, the Court observed. In England this is regarded as an interest in land (11 Halsbury's Laws of England page 387) because it is a right to take some profit of the soil for the use of the owner of the right (page 382 ). In India it is regarded as a profit that arises out of the land and as such is immovable property. Construing the definition of 'immovable property in Section 3 (26) of the General Clauses Act, the court held that as fish do not come under that category the definition in the General Clauses Act applies and as a profit a prendre' is regarded as a benefit arising out of land it follows that it is immovable property within the meaning of the] T. P. Act. The above decision was noticed with approval by the Supreme Court in the case of State of West Bengal v. Shebaits of Iswar Shri Saradiya Thakurani, AIR 1971 SC 2097. In paragraph 9 of judgment the Court considering the facts of the case observed that in the absence of any registered deed there can be no valid lease of the lank for a period of 9 years as was the case for the appellant State and no right, either in the sub-soil of the tank or its embankments, was acquired by the Sahas: that the only interest, therefore, they could have acquired was in the fish in the tank: that the materials on record show that their interest was confined to the fish they would catch from the tank in consideration of which they had agreed to pay Rs. 60/- per year and in addition they were under the obligation to cleanse the tank and keep it cleansed. The Court took the view that such an arrangement would not mean a lease within the meaning of the proviso to Section 6 (2) of the West Bengal Estates Acquisition Act, 1954, but only constitutes a licence under which, for the consideration above stated, they become entitled to fish yielded by and caught by them from the tank. Referring to the case of, Ananda Behera, (AIR 1956 SC 17), (supra) it was observed in paragraph 10 of the judgment that in the case in hand there was no legally enforceable lease of the tank in favour of the Sahas immediately before the date of vesting, so as to attract the proviso to Section 6 (2) and, therefore, it was the deity through the respondent who was entitled under Section 6 (2) read with Section 6 (1) to become the tenant of the State and not the said Sahas. It is relevant to mention here that in that case no document was produced before the Court.;