RAMBAD PATILA SHRAMIK SAHYOG Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE controversy for determination in both these applications is whether the agreement for winning of sand is a 'lease ' or a 'licence '. If it is a licence, Stamp Duty on the agreement shall be payable under Item 5 of Schedule IA of the Stamp Act. If it be a lease, Stamp Duty shall be payable in accordance with item 35(a)(1).

(2.) LEARNED Counsels for the petitioners submitted that the rights settled to them were a licence and not a lease. Reliance was placed on - (Board of Revenue V/s. A.M. Ansari), to submit that then was no creation of an interest in immovable property or a right to possess or enjoy it. This was a necessary concomitant of a lease. The petitioners were only entitled to collect sand from the surface of the lands without any right to the lands or to even put up structure on the lands. The right to only take away the fructus naturals could not be construed as lease. Relying upon - , Corporation of Kalicut V/s. K. Shriniwashan, it was submitted that a 'lease ' as defined under Sec.105 of the Transfer of Property Act contemplated transfer of a right to enjoy immovable property. The words 'licence ' under Sec. 52 of the Indian Easement Act, 1882, was a grant of a right to do or continue to do in or upon in movable properly which in absence of such right will be unlawful but did not create an interest in the property.

(3.) SHRI Ashok Singh appearing for the Department of Mines submitted that the sand had a connection with the soil and therefore the nomenclature of being attached to the soil and therefore the judgement in A.M. Ansari (Supra) relied upon by the petitioners had no application. Rule 11A by use of the words "notwithstanding" did not set at naught Rule 4 read with Rule 21 and Form D. Rule 11A itself contemplated applicability of Rule 9 in cases where Rule 12(1) be applicable. He thus submitted that whether in a given case the rights settled for winning sand was a lease or licence could vary depending on the duration of the settlement, etc.