R. R. RASTOGI, J. :- This is a reference under Section 57 of the Indian Stamp Act (hereinafter referred to as the Act); the main question being whether the document under consideration is or as not liable to stamp duty under Article 35(a)(ii) of Schedule I-B of the U.P. Stamp (Amendment) Act, 1962, as an agreement of lease.

2. The Municipal Board of Bareilly collects rubbish, manures etc. in trenches and pits at Nawab Nadi and Newada Sheikhan and after the rubbish and manures etc. get decomposed into manure the right of digging out and selling the same is granted to contractor in lieu of periodical payments. By means of an agreement entered on September, 6, 1963 between the Board on the one hand and Haji Sukhan Beg on the other, the right to take out by digging of manure and rubbish accumulated in trenches and drains within the municipal area of Bareilly was granted for a period of three years ending on June 30, 1965 on payment of Rs. 60,501.00 annually. On taking possession of the trenches and drains the contractor found that in a number of trenches and drains there was mud instead of manure and that was of no use to the agriculturists. Hence in order to compensate him for that loss the period of the Theka was extended up to September 30, 1966 by an amendment made on 10th August, 1964; the terms and conditions were to remain the same and the contractor was to pay the same amount annually for the period from July 1, 1965 to September, 30, 1965 and the contract was to expire on 30th June, 1967.

3. That agreement was brought before the Collector, Bareilly for adjudication of stamp duty under Section 31 of the Act. The Collector made a reference to the Board of Revenue under Section 56(2) of the Act.

4. The Board of Revenue after hearing the contractor passed an order on 2-3-1967 holding that the instrument under consideration was a lease for one year and three months on payment of reserved rent of Rs. 60,501.00 and was chargeable, under Article 35(a)(ii) of Schedule I-B of the U.P. Stamp (Amendment) Act, 1962, with a duty of Rs. 2,745/-. The view taken by the Board of Revenue was that the instrument under consideration as an agreement of lease. In view of the definition, of lease given in Section 2(16), of the Act, a lease could only be of an immovable property. The expression immovable property is not defined in the Act and relying on the definition given in Section 3(26) of the General Clauses Act, which definition includes benefits to arise out of land, and things attached thereto, the Board held that the right to dig and remove manure from the trenches and drains is a benefit arising out of land and consequently it would be an immovable property. This as, it held that all the ingredients of a lease were present in the case of instrument under consideration and hence it was an agreement of lease.

5. Haji Sukhan Beg filed a writ petition under Article 226 of the Constitution of India, being W.P. No. 1417 of 1967 (H. Sukhan Beg v. Board of Revenue, U.P.) challenging that order. That writ petition came up for hearing before a learned single Judge of this Court who dismissed it on 4-5-1968. A Special Appeal was preferred from that decision which as well was dismissed by a Division Bench on 24-2-1969. The Bench deciding the Special Appeal, however, took note of the fact that though the Hoard of Revenue had disposed of the Reference under Section 56 of the Act, there was no attempt to take up the matter before the High Court under Section 57 of the Act. Since the appellant had an alternative remedy, the Court did not think it necessary to interfere in the matter in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. Accordingly, the contractor filed an application on 1-7-1969 before the Board of Revenue with a prayer for making a reference to this Court under S.57 of the Act. Though, in the opinion of the Board the applicant was not entitled to agitate the matter, since this Court had expressed t