Petitioners are aggrieved by the insistence by the respondent Panchayat to execute an agreement on stamp paper by calculating the amount of stamp duly at five per cent of the total amount of rent for the period of three years. Case of the petitioners is that they are conducting business for several years and they have been called upon as part of renewal of the licences, to execute agreement on stamp paper at live percent for the entire period of the licence. According to them, they are licensees and. therefore, they contend that they need not execute agreement for the exorbitant amount demanded by the Panchayat. Instead, they would contend that the stamp paper need only he for Rs.50/-. Alternatively, it is their case that even if it is a lease, the demand made by the Panchayat is unsustainable, in view of Art.33 of the Schedule to the Kerala Stamp Act. Art.33 of the Schedule in so far as it is pertinent, is extracted below:

2. Learned counsel for the petitioners would point out that proceeding on the basis that It is a lease, as the lease is for a period of less than live years, the provision which is applicable is Cl.(2) already extracted. He would submit that the petitioners are liable to pay only duty at five per cent for the amount or the value of the average annual rent received. Per contra, it is the case of the respondent Panchayat that as the lease is for a period of three years, five per cent is to be calculated on the rent payable for the entire period of three years and it is not sufficient if the annual rent alone is reckoned for computation of the stamp duty payable.

3. Cl.(1) of S.33 deals with the lease which is for a term of less than one year. Roth, in respect of Cls.(1) and (2), the duty payable is as in the case of a bottomry bond.

4. In Anandan v. Dv. Director of Panchayats (2000 (1) KLT 1), a Division Bench of this Court proceeded to hold that the right to collect and remove sand is a profit a prendre. It attracts duty at five per cent as it is to be regarded as a right created in the immovable property. In Abdulrahiman v. Tirur Municipality (2001 (2) KLT 716), a learned Single Judge of this Court held as follows:

"A reading of Ext.P1 clearly shows that even though the word 'licence' is used in the agreement, possession of the rooms in question is transferred to the petitioners for the period of the agreement exclusively, even though Municipality can enter into the rooms with notice periodically for inspection and carrying out the repairs. It is not a case where the petitioners were given right to enter and do something for a particular time. It is also not an agreement to collect and remove something. Here the rooms were given to the petitioners on monthly rent and they are in exclusive possession and even though the word licence is used, it is actually a lease. Nomenclature in the agreement may not be decisive in all respects when the agreement is construed as a whole."

5. Of course in Sulaiman v. State of Kerala (2003 (3) KLT SN 133 (Case No. 169). a learned Single Judge of this Court distinguished the aforesaid two decisions and held as follows:

"Both of those decisions deal with the collection of river sand and also lease of shop rooms. In other words, they relate to transfer of right in immovable property. Therefore, they cannot have any application to the facts of the present case."

That was a case where the Panchayat farmed out the right to collect fee from the users of its public market and the question was whether in respect of such an agreement, the agreement should he in stamp paper worth Rs.50/- or at five per cent of the amount.

6. Learned counsel for the respondent Panchayat invited my attention to Circular dated 17.10.2000 wherein it is directed that agreement have to be executed on stamp paper having a value of five per cent of the amount of the annual rent. It is contended on their behalf that in the facts of this case, as the period of the lease is three years, five per cent must he