THE ACTING SECRETARY, BOARD OF REVENUE, SEPARATE REVENUE Vs. THE AGENT, SOUTH INDIAN RAILWAY COMPANY LTD

JUDGEMENT

(1.) This is a reference made to us by the Board of Revenue under Section 57 of the Stamp Act, and the question we are called upon to decide is whether certain documents entered into between the South Indian Railway Company and certain coal merchants, by which the latter are given leave to stack coal on small plots of land measuring 100 feet by 25 feet in station yards, are required to be stamped as leases under Article 80 of Schedule I-A, or whether they are mere licences which fall within the description of agreements not otherwise provided for under Article 4(c).

(2.) Ordinarily a lease is a grant of property for a time by one who has a greater interest in the property, the consideration being usually the payment of rent. A. licence, on the other hand, is a permission to do some act which, without such permission, it would be unlawful to do. All the cases to which we have been referred make the distinction between a lease and a licence to depend upon whether sole and exclusive occupation is given.

(3.) Now, the document in its terms contains a number of restrictions which might be consistent with the grant of a, lease but which collectively indicate in my opinion that what was granted was a licence. The drawer of the document was evidently anxious to avoid giving a lease so as not to contravene the instructions of the Government of India that Railway Companies have no permission to lease lands in their possession without the concurrence of the Secretary of State. Throughout the document the person who is given possession is called a "licensee," and in Clause 12 there is an express provision that "nothing herein contained shall be construed to create a tenancy in favour of the licensee." The fact that certain clauses of the agreement impose conditions which would be ordinarily implied by the grant of a licence but would be exceptions to the grant of a lease, does not necessarily indicate that it is a lease. These Clauses were probably inserted eai abundante cautela; for instance, under Clause 4.