TaxTMI 
TaxTMI 
1979 (7) TMI 260
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....le I-B, ibid? 4. If the document is neither a lease nor a conveyance then whether it is a mere agreement chargeable with duty under Article 5 (c) Schedule I-B ibid ? 5. If the document does not fall in any of the categories aforesaid, then, what is the correct nature of the deed and what stamp duty is payable thereon ? 2. The statement of the case submitted by the Board of Revenue shows that the document under reference was executed by 1. The Governor of Uttar Pradesh and 2. Indian Drugs and Pharmaceuticals Limited (a Government of India Undertaking). By this agreement the State Government agreed to allow the Company to draw 11 cusecs of water from river Ganga at Rishikesh annually for a period of 25 years in consideration of yearly payment of Rs. 6,000/- per cusec, i. e. Rs. 66,000/- per annum. When this document was submitted to the Collector, a doubt arose about its true nature. Thereupon, the matter came up before the Board of Revenue. Having found that important questions of law were involved, the case was referred to the High Court under Section 57 of the Stamp Act for decision of the questions already mentioned, 3. A look at the agreement reveals, the....
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.... "Water is neither land nor tenement nor susceptible of absolute ownership. It is a movable thing and must of necessity continue common by the law of nature. It admits only of a transient usufructuary property and if it escapes for a moment, the right to it is gone for ever, the qualified owner having no legal power of reclamation. It is not capable of being sued for by the name of 'water' nor by the calculation of its cubical or superficial measure, but the suit must be brought for the land which lies at the bottom covered with water. As water is not land, neither is it a tenement, because it is not of a permanent nature, nor the subject of absolute property. It is not in any possible sense real estate and hence is not embraced in a covenant of general warranty. Mitchell v. Warner 5 Com 518." It could be seen that water is neither land nor a tenement. Accordingly, water could be considered only as movable property, AS the instrument does not create any right over any immovable property, the same could not be considered as a lease, 7. In Alamsher v. Ram Chand, 1898 Pun Re 11 the Court held that "Water .........though it can be made into movable by severance or ....
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.... the vendee. If, therefore, there is no transfer, the requirement of conveyance or sale could not be said to be satisfied. A perusal of the various clauses of the instrument would show that no transfer of water took place under it. Parties had simply agreed to sell and purchase water in the future. Even the amount which was payable by the Company was not stated in this document. The quantum of the liability depended on a future contingency. Clause (1) of the Agreement provided : -- "The Company will pay at the rate of Rs. 6,000/- per cusec per annum clear of all deductions for the maximum quantity of water drawn by them at any time during the year after deduction for water returned............" This shows that the payment of the amount depended on certain circumstances which had to take place in the future, No transfer was made to a purchaser under this document. The fact that there was a hope or the expectation or the strong probability of a sale serves merely to emphasise that there was no sale. A complete title in water since did not vest under the document, the same could at the most be said to be an agreement. As such, it falls under Article 5 (c) of Schedule I-B, ....
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....as followed in Jibananda Chakrabarti v. Kalidas Mullick. Patna High Court in Thakurji Shri Jugul Sarkar v. Rajmangal Prasad held that Section 17 of the Easements Act is intended to apply not to right of irrigation in natural streams but to rights in nature of profits a prendre, which did not include a right to water. This would show that the Patna High Court held that right to take water was not a profits a prendre. 14. The discussions made above would show that in order to be a profits a prendre two things are necessary. Firstly, the person claiming must have interest in the land and secondly, it must be in respect of a produce or profit of the soil. In the instant case, both the requirements are wanting. Under the instrument the Company neither was given any interest in the land nor the water is a product of soil. Accordingly, the submission of the State's counsel cannot be accepted. 15. The controversy involved for decision in Ananda Behera v. State of Orissa [1955] 2 SCR 919, was different. In that case, the dispute was about fishery rights. The Supreme Court held that the right was in the nature of a profits a prendre and as a profits a prendre is an immovable proper....