GUDDI Vs. STATE OF U P

JUDGEMENT

(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.

(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.