R.R. Rastogi, J.
1. This is a reference under Section 57 of the Indian Stamp Act (hereinafter referred to as 'the Act'); the main question being whether the document under consideration is or is not liable to stamp duty under Article 35 (a) (ii) of Schedule I-B of the U.P. Stamp (Amendment) Act, 1962, as an agreement of lease.
2. The Municipal Board of Bareilly collects rubbish, manures etc. in trenches and pits at Nawab Nadi and Newada Sheikhan and after the rubbish and manures etc. get decomposed into manure the right of digging out and selling the same is granted to contractor in lieu of periodical payments. By means of an agreement entered on September, 6, 1963 between the Board on the one hand and Haji Sukhan Beg on the other, the right to take out by digging of manure and rubbish accumulated in trenches and drains within the municipal area of Bareiljy was granted for a period of three years ending on June 30, 1965 on payment of Rs. 60,501.00 annually. On taking possession of the trenches and drains the contractor found that in a number of trenches and drains there was mud instead of manure and that was of no use to the agriculturists. Hence in order to compensate him for that loss the period of the Theka was extended up to September 30, 1966 by an amendment made on 10th August, 1954: the terms and conditions were to remain the same and the contractor was to pay the same amount annually for the period from July 1, 1965 to September, 30, 1963 and the contract was to expire on 30th June, 1967.
3. That agreement was brought before the Collector, Bareilly for adjudication of stamp duty under Section 31 of the Act. The Collector made a reference to the Board of Revenue under Section 56(2) of the Act.
4. The Board of Revenue after hearing the contractor passed an order on 2-3-1967 holding that the instrument under consideration was a lease for one year and three months on payment of reserved rent of Rs. 60,501.00 and was chargeable, under Article 35 (a) (ii) of Schedule I-B of the U.P. Stamp (Amendment) Act, 1962, with a duty of Rs. 2,745/-. The view taken by the Board of Revenue was that the instrument under consideration was an agreement of lease. In view of the definition, of lease given in Section 2(16), of the Act, a lease could only be of an immovable property. The expression 'immovable property' is not defined in the Act and relying on the definition given in Section 3(26) of the General Clauses Act, which definition includes benefits to arise out of land, and things attached thereto, the Board held that the right to dig and remove manure from the trenches and drains is a benefit arising out of land and consequently it would be an immovable property. Thus, it held that all the ingredients of a lease were present in the case of instrument under consideration and hence it was an agreement of lease.
5. Haji Sukhan Beg filed a writ petition under Article 226 of the Constitution of India, being W.P. No. 1417 of 1967 (H. Sukhan Beg v. Board of Revenue, U.P.) challenging that order. That writ petition came up for hearing before a learned single Judge of this Court who dismissed it on 4-5-1968. A Special Appeal was preferred from that decision which as well was dismissed by a Division Bench on 24-2-1969. The Bench deciding the Special Appeal, however, took note of the fact that though the Board of Revenue had disposed of the Reference under Section 56 of the Act, there was no attempt to take up the matter before the High Court under Section 57 of the Act Since the appellant had an alternative remedy, the Court did not think it necessary to interfere in the matter in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. Accordingly, the contractor filed an application on 1-7-1969 before the Board of Revenue with a prayer for making a reference to this Court under Section 57 of the Act. Though, in the opinion of the Board the applicant was not entitled to agitate the matter, since this Court had expressed the view that an alternative remedy under Section 57 of the Act was open to the contractor, the Board has referred the instrumentfor decision of the following points of law:--
'1. In view of the fact that no prayer was made to the Board of Revenue for making a reference under Section 57, when they heard the reference under Section 56(2) of the Stamp Act, and that the Board not having found that an intricate or important point of law was involved in the case, whether the Board is still under an obligation to make a reference to the Hon'ble Court under Section 57(1) of the Act.
2. If the answer to the above question is in the affirmative whether the document Annex. I is an agreement of lease of immovable property as defined in Section 2(16) of the Stamp Act for a period of one year 3 months on an annual rent of Rs. 60,501/- and is chargeable under Article 35 (a) (ii) of Schedule IB of U.P. Stamp (Amendment) Act, 1962 with a duty of Rs. 2,745/-.
3. In case the document is not held to be a lease what would be its nature for purposes of Stamp Act and what stamp duty, if any, is payable on it'.
After hearing the learned Chief Standing Counsel we are of the opinion that in regard to the nature of the instrument under consideration the view taken by the Board of Revenue is absolutely correct. There is no dispute about the facts of the case and the same we have narrated above. The question for consideration is as to whether the right given to take out by digging manure, rubbish etc. from trenches and drains is a benefit arising out of land and is as such an immovable property. Section 2(16) of the Act defines lease as under:--
' 'lease' means a lease of immovable property and also includes:
(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 intending to signify that the application is granted'.
The expression 'immovable property' has not been defined in the Act. As defined in Section 3(26) of the General Clauses Act 'immovable property' includes benefits that arise out of the land. The nature of right to catch and carry away fish from specific portion of a lake came up for consideration before the Supreme Court in Ananda Behera v. State of Orissa (AIR 1956 SC 17) and theview taken was that the right to catch and carry away fish in specific portions of the lake over a specified future period amounts 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 immoveable property and for that reliance was placed on 11 Halsbury's Laws of England, page 387 (Hailsham Edition) (pp. 382 and 383). As regards the law in India it was observed:--
'In India it is regarded as a benefit that arises out of the land and as such is immoveable property.'
Reference was also made to S. 3(26) of the General Clauses Act for this purpose. The Transfer of Property Act does not define the term except to say that immoveable property does not include standing timber, growing crops or grass. As fish do not come in that category, the definition in the General Clauses Act applies and as a 'profit a prendre' is regarded as benefit arising out of land, it follows that it is immoveable property within the meaning of the Transfer of Property Act.
6. It would be seen, therefore, that a right to take out by digging manure and rubbish accumulated in specific trenches and drains and carrying away the same and sell it amounts to a benefit arising out of land and as such it is immoveable property within the meaning of Transfer of Property Act. The instrument under consideration, therefore, is an agreement of lease chargeable to stamp duty under Article 35 (a) (ii) of Schedule I-B of the U.P. Stamp (Amendment) Act, 1962 as held by the Board of Revenue.
7. Hence our answer to question No. 2 is that the instrument under consideration is an agreement of lease chargeable to stamp duty under Article 35 (a) (ii) of Schedule IB of U.P. Stamp (Amendment) Act, 1962.
8. In the circumstances of the case, question No. l need not be answered and question No. 3 does not arise.
9. The reference is thus accordingly answered with costs. Counsel's fee is assessed at Rs. 250/-.