ORDER
1. Since the issue involved in all these appeals is one and the same, the appeals are taken up for joint disposal.
2. In S.A.Nos. 95 and 96 of 1998 notice of motion was ordered on 28.1.98. In S.A.No. 159 of 98 notice of motion was ordered on 2.3.98 and directed to be posted alongwith S.A.Nos. 95 and 96 of 1998. When S.A.No. 702 of 1998 was listed for admission on 2.7.98 I was not inclined to admit the second appeal. Then the counsel for the appellants represented that there are other connected appeals in which notice of motion was ordered. Hence I directed those appeals to be posted together in order to dispose of all the appeals. In S.A.Nos. 95,96 and 159 of 1998 the Tamil Nadu Electricity Board is the appellant. The respondents are various Fish Farms. In S.A.No. 702 of 1998 the appellants are the owners of the land who are having a fish farm and the respondent is Tamil Nadu Electricity Board.
3. The respondents in S.A.Nos.95,96 and 159 of 1998 filed the suits O.S. No. 585 of 1991, O.S. No. 276 of 1991, and O.S.No. 1143 of 1993 respectively on the file of the District Munsif Court. Myladuthurai and the appellants in S.A.No. 702 of 1998 filed the suit O.S.No. 429 of 1996 on the file of the District Munsif Court. Mannargudi for declaration that fish farming is ‘agriculture’. The District Munsif Mayiladuthurai dismissed the suits filed by the respondents in S.A.Nos. 95,96 and 159 of 1998. The respondents preferred appeals in S.A.No. 19 of 1992, A.S.No. 18 of 1992 and A.S.No. 36 of 1997 respectively on the file of the Sub-Court, Mayiladuthurai. The learned subordinate judges have allowed the appeals filed by the respondents and consequently decreed the suits. Hence the Electricity Board has preferred these appeals. So far as the appellants in the S.A.No.702 of 1998 is concerned, both the courts below have dismissed the suit and hence the land owners have preferred the appeal.
4. The only question involved in these appeals is whether the fish farming is ‘agriculture’.
5. Mr.S. Sethuratnam, the learned senior counsel on behalf of the owners of the land and the owners of the fish farm viz., appellants in S.A.No. 702 of 1998 and respondents in S.A.Nos. 95,96 and 159 of 1998 contended that the Indian Electricity Act do not define ‘agriculture’ and hence this court has to consider the question as to whether the fish farming is ‘agriculture’ or not only from the dictionary meaning and the interpretation given by the courts for the word ‘agriculture’ and ‘agricultural products’ in respect of the other statutes.
6. The learned senior counsel relied upon the following extract from the Halsbury Law of England – 4th Edition – Volume 18 – Page 254:-
Corporeal and incorporeal fisheries. The general principle is that fisheries are in their nature more profits of the soil over which the water flows, and that the title to a fishery arises from the right to the soil.
7. He also relied upon the following extract from Halsbury Law of England – 4th Edition – Volume I – Page 959:-
1797. Definition of agricultural products. The term “agricultural products” means the products of the soil of stock farming and of fisheries and products of first stage processing directly related thereto, More specifically, the products to which the agricultural provisions of the EEC treaty apply are listed in the treaty and in the secondary legislation made under it”.
8. Yet another portion relied upon by him is Halsbury Law of England – 4th Edition – Volume I – Page 541:-
Wherein ‘agriculture’ had been explained as follows:
1002. Agriculture. The phrase “aggregate of agricultural land” in the definition of an agricultural holding refers to the aggregate of the lands put to different uses, being uses for agriculture. The expression “agriculture”includes horticulture,fruit growing, seed growing, dairy farming and livestock breeding and keeping, the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where use is ancillary to the farming of land for other agricultural purposes. See Howkins v. Jardine (1951) KB 614 at 621, 1951 (I) All ER 320 at 324, CA. per Somervell L.J. “Livestock” includes any creature kept for the production of food, wool, skins or for or for the purpose of its use in the farming of land or the carrying on in relation to land of any agricultural activity. Agricultural Holdings Act 1948 S. 94(1)”.
9. The treatise in Freshwater Fish Pond Culture and Management illustred by John Koster the nature of the soli has been described. The soil itself contains a lot of fresh food in the following words:-
Ability of soil to provide Nutrients. Soil also contributes to the pond’s fertility. Fertility is a measure of the nutrients in the pond and it simply refers to how much food there is available in the pond for the fish to eat. A very fertile pond is one which contains a lot of fish food
10. A similar view has been expressed in yet another treatise ‘Freshwater Acquaculture’ by Dr. Rajendra Kumar Rath as follows:-
To keep the aquatic habitat favourable for existence, physical and chemical factors like temperature, turbidity, colour odour. PH, dissolved gases like O2, CO2, and also reducing gases like H2S and CH4 working lethal fish life, will exercise their influence individually or synergetically, while the nutrient status of water and soil play the most important role in governing the production of plankton organisms or primary production in fish ponds. The soil, besides retaining water; depending on the texture, the bottom soil governs the storage and release of nutrients to the overlying water through various chemical and biochemical processes for biological production in the environment. On the otherhand, water in contact with bottom soil acquires
nutrients from the soil, atmospheric gases and absorbs solar energy in the form of radiation essential for the activities of aquatic animals. This interdependence between the soil, and water maintain a chemical equilibrium in the environmental conditions detrimental to aquatic life and thereby influences the production, decomposition and consumption processes in the system.
11. In the book ‘fish and fisheries of India’ by V.G. Jhingran – 1991 Edition, the author has dealt with the topic – ‘Integrated Acquaculture’ wherein the author discussed about the fish culture in rice fields as follows:
In case where paddy fields retain water for 3 to 8 months in a year, paddy-cum-fish culture can provide an additional supply of fish crop. The culture of fish in fields, which remain flooded even after the paddy is harvested might also serve as an off-season occupation for fanners. In recent years, however, with the advent of high yielding varieties of paddy, the use of insecticides, pesticides, weedicides and fungicides, many of which even in minute quantities are highly toxic to aquatic life, has become widely prevalent. Fish culture, therefore, is no more compatible with paddy farming wherever the latest high yielding varieties of paddy are cultivated. These developments have substantially curtailed fish culture in rice fields in Japan, where a greater crop of rice alone is by far preferred over a supplementary crop of fish with a lower rice crop. Nevertheless, wherever paddy continuous to be cultivated on traditional lines, fish culture in paddy fields is common. e.g. in parts of Italy, Japan, Taiwan, Malaysia, several African countries, in Arkansas (U.S.A.) and
to some extent in India.
12. The learned senior counsel also relied upon the discussions in a workshop on the topic Fresh Water Acquaculture in India, participated by M\s. U.K. Srivastava, B.H. Dholakia, S. Sreenivas Rao and S. Vathsala. Session II of the workshop deals with the diversification of agriculture through Acquaculture, wherein one of the arguments advanced is that Acquaculture is nothing but agriculture and all that it involves is change from paddy to fish, and fish pays more and therefore, it was recommended that fisheries should be made an agricultural programme for all castes and classes of people. Merely because the fisheries should be made as an agricultural programme, I am of the view that it cannot be considered as ‘agriculture’. From the discussion it could be seen that in West Bengal the paddy and fish culture go together. So far as Tamil Nadu is concerned, no incident has been brought to the notice of the court where agriculture and fish farming go together.
13. The learned senior counsel relied upon a passage from the text book of Fish culture – Breeding and cultivation of Fish – 2nd Edition – by Mercell Huet – wherein the principle methods of rearing the fish in rice fields has been illustrated as follows.
To succeed in the production of fish in rice fields several conditions must be met. These must be topographically favourable; there must be a regular and sufficient water supply; the fish must be adaptable to local conditions; the fish farmer must be well trained in the necessary techniques and there must also be a market capable of absorbing the saleable product (Coche.1967).
A-Production methods of fish in rice fields.
The production of fish in rice fields can be carried out with either captured or farmed fish; production can be simultaneous or alternate.
1. Simultaneous production of rice and fish or rice-fish cultivation.
Simultaneous productions rice and fish (Fig.311 and 312) has evident advantages. It uses perfectly the available ground; it is good for the rice because it helps weed control, and it creates an hygienic medium through the control of molluscs and harmful insects; it produces animal proteins cheaply because the fish are, practically, a complementary harvest which costs nothing. This is very important in regions suffering from a weak rural economy.
It has also been noticed frequently that the presence of fish increases rice production by between 5 and 15 per cent. This can be explained by examination, among others, certain factors. These includes the indirect fertilisation of the rice thanks to the fish excrement; and also, by the unutilized artificial food distributed. Also a better tillering of the rice seedings is due to the activity of the fish digging in the mud and this also helps mineralisation. Finally algae and weeds which compete with the rice are better controlled. However, some writers disagree and believe this action is unfavourable to rice production and that it actually reduces growth.
Simultaneous production, however, does present certain inconveniences. In the first place the water flow must be greater than would be necessary just for rice and this limits the spread of rice-fish cultivation. It also means having deeper water which all varieties of rice cannot tolerate. Dikes, draining ditches and capturing sumps take up space (estimated at around 5 to 7 percent in Taiwan) but this loss is compensated for by the value of the fish. Also certain soils cannot be kept under water for prolonged periods.
Apart from the need for a higher water level, the principal inconvenience is that rice-fish culture limits the use of modern agricultural techniques, notably mechanisation, chemical fertilizers, herbicides and insecticides. In progressing agricultural areas rice-fish cultivation is being slowly abandoned in favour of the rotation of rice and fish crops. Rice-fish production varies according to the regions. In Indonesia the following method is used.”
After the planting out of the rice, the depth of the water should be from 2 to 5 cm (3\4 to 2 in). The first weeding comes 3 weeks later and 2 weeks after that the second weeding. During that interval the water level is increased to from 6 to 10 cm, (2\2 to 4 in) and after the second weeding the depth is gradually increased to 20 cm (8 in) and kept at that level until the flowering of the paddy. The water is then drained off to help the ripening of the rice. Rearing of fish must be organised in connection with this type of rice cultivation. From the planting of the rice until the first or second weeding, about 5 weeks in all, the rice fields can be used for producing fingerlings. They are liberated 5 days after the planting out of the rice. During the first weeding the fields are drained and the fish take refuge in the ditches. The fry are harvested after the second weeding at about 3 to 5 cm (1.1/5 to 2 in) in length.
After the second weeding and until the flowering, that is over a period of 1.5 to 2 months, the rice field can be used to produce fish for eating up to a maximum weight of 100 gm.
At the time of harvesting the fingerlings and fish for eating, care must be taken not to damage the rice. Drying out must be done slowly and carefully.
2. Alternate production of rice and fish cultivation. Most of the advantages and also inconvenience of rice-fish cultivation disappear but the water requirements are still high.
Alternate production permits better care of both as well as the use of mechanical means, herbicides and insecticides for the rice. It also permits an increase in depth of the water during the production of the fish and this is favourable to both growth and reproduction.
Other advantages arising from this method have been given in United States as helping when uncultivated land is brought under cultivation and the conservation of soil already under cultivation. This has also been stated in western Bengal when salt marshes were exploited for agriculture.
After the rice has been harvested the field is transformed into a temporary pond. At the same time, outside ditches and dikes are constructed. The dikes are built with soil dug up from the ditches. New dikes must be errected with each new crop. After harvesting the rice, the bottom of the pond should be cleaned of stalks which are cut up and piled in heaps. They decompose slowly and have a manuring action.
The length of time the field is under water is more or less long according to the region and the methods used.
14. The learned senior counsel further relied upon the judgment reported in Commissioner of Income Tax v. Benoy Kumar Sahas Roy, 1957 (II) MLJ 145 as well as The Commissioner of Income Tax v. Sundara Mudaliar, 1950 (I) M.L.J 736. Both the cases arising out of the Income Tax Act. The question arises for consideration before the courts is what is ‘agricultural income’. The earlier judgment reported in Commissioner of Income Tax v. Benoy Kumar Sahas Roy, 1957 (II) M.L.J 145 : 32 ITR 466 the Supreme Court considered the question as to whether the income derived by the assesses from sales of tree, from the forest would fall within ‘agricultural income’. After elaborate discussion with regard to the term ‘agriculture’ the Apex Court has held as follows:
We have, therefore, to consider when it can be said that the land is used for agricultural purposes or agricultural operations are performed on it. Agriculture is the basic idea underlying the expressions ‘agricultural purposes’ and “agricultural operations” and it is pertinent therefore to enquire what is the connotation of the term “agriculture”. As we have noted above, the primary sense in which the term agriculture is understood is agar-field and cultra-cultivation, i.e., the cultivation of the field and if the term is understood only in that sense, agriculture would be restricted only to cultivation of the land in the strict sense of the term meaning thereby, tilling of the land, sowing of the seeds, planting and similar operations on the land. They would be the basic operations and would require the expenditure of human skill and labour upon
the land itself. There are, however, other operations which have got to be resorted to by the agriculturist and which are absolutely necessary for the purpose of effectively raising the produce from the land. They are operations to be performed after the produces sprouts from the land, etc., weeding, digging the soil around the growth, removal of undesirable under-growths and all operations which foster the growth and preserve the same not only from insects and pests but also from depredation from outside, tending, pruning, cutting, harvesting, and rendering the produce fit for the market. The latter would all be agricultural operations when taken in conjunction with the basic operations above described, and it would be futile to urge that they are not agricultural operations at all. But even though these subsequent operations may be assimilated to agricultural operations, when they are in conjunction with these basic operations, could it be said that even though they are divorced from these basic operations they would nevertheless enjoy the characteristic of agricultural operations? Can one eliminate these basic operations altogether and say that even if these basic operations are not performed in a given case the mere performance of these subsequent operations would be tantamount to the performance of agricultural operations on the land so as to constitute the income derived by the assessee therefrom agricultural income within the definition of that term?
We are of opinion that the mere performance of these subsequent
operations on the products of the land, where such products have not been
raised on the land by the performance of the basic operations which we have
described above would not be enough to characterise them as agricultural
operations. In order to invest them with the character of agricultural operations,
these subsequent operations must necessarily be in conjunction with and a
continuation of the basic operations which are the effective cause of the
products being raised from the land. It is only if the products are raised from
the land by the performance of these basic operations that the subsequent
operations attach themselves to the products of the land and acquire the
characteristic of agricultural operations. The cultivation of the land does not
comprise merely of raising the products of the land in the narrower sense of the
term like tilling of the land, sowing of the seeds, planting, and similar work
done on the land but also includes the subsequent operations set out above all
of which operations, basic as well as subsequent, from the integrated activity of
the agriculturist and the term “agriculture” has got to be understood as
connoting this integrated activity of the agriculturist. One cannot dissociate the
basic operations from the subsequent operations, and say that the subsequent
operations, even though they are divorced from the basic operations can
constitute agricultural operations by themselves. If this integrated activity
which constitutes agriculture is undertaken and performed in regard to any land
that land can be said to have been used for “agricultural purposes” and the
income derived there from can be said to be “agricultural income” derived from
the land by agriculture.
In considering the connotation of the term”agriculture” we have so far thought of cultivation of land in the wider senses as comprising within its scope the basic as well as the subsequent operations described above, regardless of the nature of the products raised on the land. These products may be grain or vegetables or fruits which are necessary for the sustenance of human being including plantations and groves, or grass or pasture for consumption of beasts
or articles of luxury such as, betel, coffee, tea, spices, tobacco, etc., or commercial crops like, cotton, flax, jute, hemp, indigo, etc., All these are products raised from the land and the term “agriculture” cannot be confined merely to the production of grain and food products for human beings and beasts as was sought to be done by Bhashyam Ayyangar, J in Murugesa Chetti v. Chinnathambi Goundan and others, 1901 ILR (24) Mad. 421, 423 or Sadasiva Ayyar, J. in Rajah of Venkatagiri v. Ayyappa Reddi, 1913 25 MLJ 578 : ILR 38 Mad. 738 but must be understood as comprising all the products of the land which have some utility either for consumption or for trade and commerce and would also include forest products such as timber, sal and piyasal trees, casuarina plantations, tendu leaves, horranuts etc.,
The Apex Court in conclusion held that where in the forest area the trees have been planted by the assessee and care has been taken to nurse the trees planted by them the income derived from this part of the forest will be exempted from the income tax, since they constitute the ‘agricultural income’. But where there is a spontaneous growth and the trees have been grown without any effort on the part of the assesses and the income derived from those parts of the forest will not constitute the ‘agricultural income’ and they are not exempted from income tax. Ultimately the view of the Apex Court is that wherever the assessee puts his labour in the land and gets an income from out of such labour that income would be exempted from the income tax since the same would constitute ‘agricultural income’.
15. The other case reported in The Commissioner of Income Tax Madras v. Sundara Mudaliar, 1950 (I) MLJ 736 a Division Bench of this court had expressed the view as that of the apex court.
16. Yet another case relied upon by the learned senior counsel for the land owners is reported in Ananda Behera v. State of Orissa, . The learned Judges considered the question as to whether the right to catch and cany away fish in specific portions of the lake over a specified future period would amount to a license to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit which is regarded as a benefit that arises out of the land and as such is immovable. Virtually the primary question for consideration before the court was whether the licencee to catch fish would confer a right in the immovable property. The court has held that since that right goes with the land as the licence has to enter into the lake to catch and carry the fish that would confer a right in the immovable property. This may not be of any help to the land owners to consider the question involved herein.
17. The learned standing counsel for the Electricity Board also relied
upon a case reported in Emperor v. Probhat Chandra Barua, 51 ILR 504,
wherein the question for consideration is whether the income derived from
fisheries can be considered as ‘agricultural income’. The learned Judges have
held that the income derived from the fisheries cannot be said to be an income
derived from agriculture, however wide a meaning is given to the term
“agriculture” in the following terms:
It remains to consider the assessee’s claim to exemption as a claim to come within the provisions of section 2 of the Act. In my opinion, income derived from a fishery is not “rent or revenue derived from” land which is used for agricultural purposes. Learned counsel for the assesses has suggested that land used for agricultural purposes becomes at certain seasons flooded, and that in bails and dobas thus formed over such land there may be rights of fishing of some value. Any such case will require careful consideration on its own facts. If the argument is that the income in such a case is “derived from land which is used for agricultural purposes” although it is not derived from any such use, it may be observed that the decision in the mela case Umed Rasul Shaha Fakir v. Anath Sandhu Chaudhuri, 1901 ILR (28) Cal. 637,639 is some authority the other way. From the papers in the present case I do not collect that this is the special case made by the assesses, who claims to own extensive fisheries called jalkar mehals, which are leased out in consideration of the payment of rent called jalkar rent. In my opinion “fishery” is not “agriculture” nor an “agricultural purpose”, and income derived from fisheries is not exempt as such even when the fisheries are comprised in a permanently settled estate.
18. The learned counsel for the Electricity Board further relied upon the following portion from the Text Book “Law of Taxation”- 9th Edition by Sampath Iyengar – Page 194:-
Agriculture and ‘agricultural purposes’ meaning and scope – The meaning and import of the terms “agriculture” and ‘agricultural’ purposes have been the subject-matter of divergent views by Indian courts commencing from the expression of opinion by that great and learned Judge, Bashyam Iyengar, J. in Murugessa Chetty v. Chinnathambi Goundan, ILR (24) Mad. 421 in the year 1901 through the decision of Reilly, J in Chandra Bkhara Bharati Swamigal v. Doraiswamy Naidu, AIR 1931 Mad. 659 in the year 1931 and of the privy counsel in Raja Mustafa Ali Khan’s case, 1948 (16) ITR 330 (PC) in the year 1948 and culminating in the decision of the High Court of Orissa in Vikramdeo Varma v. CIT, 1956 (29) ITR 76 (Orissa) in the year 1956. The divergence centred principally around three problems.
(1) Whether the human labour and skill, involved in agricultural operation should be spent on the land, or they could be spent on the plant or the tree or the crop after it has sprouted.
(ii) Whether the concept of “agriculture” carried it in the nature of the product raised, viz., of its being fit for consumption by man or by beast; and
(iii) whether such operation would include pasturing of animals on the land
and the allied pursuits of rearing, feeding and management of livestock
and also include husbandry, farming, horticulture etc., and making of
butter and cheese which are all included in the dictionary meaning of the
word “agriculture”.
The controversy was settled by the Supreme Court in CIT v. Raja Benoy Kumar Sahas Roy, 1957 (32) ITR 466 (SC) which was heard and decided alongwith two other appeals in Kameshwar Singh (SIR) v. CIT, 1957 (32) ITR 587 (SC) and CIT v. Jyotikana Chowdhurani, 1957 (32) ITR 705. This decision was followed by the Supreme Court in CIT v. Ramakrishna Deo,
1959 (35) ITR 312. The pronouncement in the first of the above cases may be regarded as the locus classicus on the topic of agriculture.
The primary sense in which the term “agriculture” should be understood, is its root meaning ‘ager’ = field + ‘cultra’ = cultivation; that is to say, field cultivation or cultivation of the ground, in the sense of tilling of the land, sowing of the seeds, planting and similar operations on the land. These are basic operations and demand the expenditure of human labour and skill upon the land itself and further they are all directed to make the crop sprout out of the land. …
Activities remotely connected with land not covered – The term ‘agriculture’ does not extend to choose activities which have some remote relation to the land, or are in some remote way connected with land, such as, breeding and rearing of livestock, dairy farming, butter and cheese making or poultry farming. These are entirely dissociated from the primary significance of the word “agriculture” which is that of cultivation on the land. Agricultural income related to the vegetable kingdom and not to the animal kingdom. Thus, income earned from a lease for fishing in tanks and streams was not to be agricultural income”. (Italics Supplied)
19. He also relied upon a Full Bench judgment of this court reported in Commissioner of Income Tax v. Sevuga Pandia Thevar, 1933 ITR 78. The court has considered the question as to whether the income derived from lease of right to fish in tanks and channels situated in zamindaries can be exempted from taxation on the ground that the same is “agricultural income”. All the three judges, in separate judgments have held that the income derived from the lease of the right to fish cannot be said to be an income from the land and as such the same is not exempted from the income tax.
20. The learned counsel further relied upon the Government Order G.O.Ms.No.519 (Public Works Department) dated 27.3.91 wherein the Government has decided to charge the power supply to prawn farming under Low Tension Tariff – IV (Power Loads).
21. In short, the contention of the learned Senior Counsel is that the activities such as removing weeds, keeping the water level at a particular height, feeding the fish like manuring the crops, removing the rubbish from the water, maintaining the dikes, changing the water and adding chemicals to keep the water clean all these activities in the fish farm are like that of the activities in agriculture except the tilling of the land. The other activities are similar and identical to that of ‘agricultural operations’ and hence the fish farming is to be considered as only ‘agriculture and nothingelse. I have already extracted the contention of the counsel for the respondents and also the materials relied upon.
22. Considering the arguments of the counsel for the land owners, the question is whether the fish farming can be decided as ‘agriculture’.
23. Merely because the operations and activities to maintain the fish farm is more or less similar to that of agriculture do not mean the fish farming has to be treated as ‘agriculture’. The purpose for which the suits have been filed is also to be taken into consideration. In our state, ‘agriculture’ has been
exempted from the payment of electricity charges. The State Government, as a policy, in order to benefit those farmers who are exclusively earning their livelihood from out of the agricultural operations and are meeting out certain difficulties in marketing their products and unable to get the reasonable price for their products has granted exemption from the electricity charges. When the agricultural are not able to get reasonable price for their products, the intermediaries are getting a reasonable profit by marketing the agricultural products. Perhaps this may also necessitated the State Government to give the benefit to the agriculturists. The plaintiffs in all these suits are admitting that they are having the fish farm and the same should be considered as agricultural operations for the purpose of getting the benefit of the exemption from the payment of electricity charges.
24. The various texts relied upon by the learned senior counsel for the appellants are all dealing with ‘agriculture’ and the fisheries. From those texts, it may be noted that what are the basic requirements for the agricultural operations and for maintaining fish farm. As already stated merely because the basic requirements except tilling of the land are almost similar, the fish farming cannot be considered as ‘agriculture’ especially when taking into consideration the purpose for which the declaration is sought for.
25. Both the counsel referred to the judgments already extracted above are arising out of the Income-Tax Act. Section 2(1-A) of the Income Tax Act, 1961 defines ‘agricultural income’ as follows:
Agricultural income means-
(a) any rent or revenue derived from land which is situated in India and is used for agricultural purposes;
(b) any income derived from such land by—
(ii) the performance by a cultivator or receiver of rent-in-kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market; or
(iii) the sales by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in paragraph (ii) of this sub-clause;
(c) any income derived from any building owned and occupied by the receiver of the rent or revenue of any such land, or occupied by the cultivator or the receiver of rent-in-kind, of any land with respect to which, or the produce of which, any process mentioned in paragraphs (ii) and (iii) of sub-clause (b) is carried on;
provided that–
(i) the building is on or in the immediate vicinity of the land, and is a building which the receiver of the rent or revenue or the cultivator, or the receiver of rents-in-kind, by reason of his connection with the land, requires as a dwelling house, or as a store-house, or other out-building, and
(ii) the land is either assessed to land revenue in India or is subject to a local rate assessed and collected by officers of the Government as such or where the land is not so assessed to land revenue or subject to a local rate, it is not situated- (A) in any area which is comprised within the jurisdiction of a municipality (whether know as a municipality, munici-pal corporation, notified area committee, town area committee, town committee or by any other name) or a cantonment board and which has a population of not less than ten thousand according to the last preceding a census of which the relevant figures have been published before the first day of the previous year; or (B) in any area within such distance, not being more than eight kilometres, from the local limits or any municipality or cantonment board referred to in item (A) as the Central Government may having regard to the extent of, and scope for, urbani-sation of that area and other relevant considerations, specify in this behalf by notification in the Official Gazette”.
In interpreting this section under the earlier Act which is inparimateria to the present one the Apex Court has held that the income derived from fisheries cannot be considered to as ‘agricultural income’ so as to get exemption from the Income-tax Act.
26. In the judgment reported in Commissioner of Income Tax v. Sevuga (SE), AIR 1932 Mad. 757 it has been held as follows:
I am unable to agree with Mr.Srinivasa Ayyangar’s contention that this is revenue derived from land which is used for agricultural purposes. The fact that some of the water in the tanks or channels is used for agricultural purposes does not make this income revenue derived from land which is used for agricultural purposes. The land upon which the water is not being used for agricultural purposes and whilst the water is there, cannot be used for agricultural purposes and there is no evidence here to show that the land is ever or has ever been used for agricultural purposes; nor do I think that any assistance to the petitioner is to be derived from the use of the word”revenue” in sub-section (a) of section 2(1). It is argued that, as both ‘rent’ and revenue’ are used in that subsection,’revenue’ means something different from the rent derived by the land owner from land used for agricultural purposes and must be taken to include all other sources of income derivable in different ways to that by which the rent is derived; that is to say, to include all income which is got from anything of value which may be upon land used for agricultural purposes. It is even contended that, if valuable stones are to be found on the surface of land being used for agricultural purposes, the income derived from the sale of them would be agricultural income. I think that the petitioners arguments must extend to that length and I cannot agree with it.
Though the three learned Judges gave individual judgments, but all agree on the principle.
27. Similarly in the judgment reported in Commissioner of Income Tax v. Benoy Kumar Sahas Roy, 32 ITR 466 the apex court while interpreting the word ‘agriculture’ and ‘agricultural purpose’ for the purpose of Income Tax Act, 1922 has elaborately discussed the question which has already been extracted in paragraph 14 supra.
28. In fact the learned senior counsel advanced an argument on the basis of the above judgment that whatever the product produced on earth necessary for the subsistence of human beings or animals will be agricultural products. In this case also the fish being produced from out of the water stagnated on earth resorting to same operations, the fish farm is nothing but ‘agriculture’. I am unable to agree with the learned senior counsel for the simple reason that in the same judgment, the learned judges of the Supreme Court had observed as follows:
“There is no warrant at all for extending the term,’agriculture’ to all activities which have some relation to the land or are in any way connected with the land, for the term agriculture cannot be dissociated from the primary significance thereof, which is that of cultivation of the land. The extension of the term ‘agriculture’ to denote such activities as breeding and rearing livestock, dairy farming, butter and cheese-making, and poultry farming, is an unwarranted distortion of the term,
From this it is very clear that the apex court categorically held that the breeding will not amount to ‘agricultural operation’. It is unnecessary to repeat here the judgments already referred to by the counsels which have been extracted while discussing their arguments.
29. From the judgments of this Court as Well as Apex Court, there is no doubt that all the courts have uniformly held that the income received from the fisheries is not the ‘agricultural income’ and as such the same not exempted from the purview of the levy of Income-tax.
30. Even if the learned senior counsel’s argument is accepted, still there is some lacuna. Because except the tilling the other works are similar to that of agriculture for agricultural purposes,the tilling of the land is the main operation. Because only by tilling the land the earth is converted for the utilisation of the agricultural purpose. Even if agricultural produce is raised after every harvest the tilling of the land is absolutely necessary to regenerate the same for fresh cultivation in order to raise the fresh crops. In order to raise fresh crops after such tilling of the land once again the manure will be put on earth and thereafter the earth will be tilled in order to give sufficient manure for the future crop. For the fish farming this is not necessary and as such the main activity of agriculture missing for the fish farming.
31. In fact in the judgment reported in Commissioner of Income Tax v. Benoy Kumar Sahas Roy, 32 ITR 466 referred to in paragraph 14, the judges of the Supreme Court has categorically held as follows:
As we have noted above, the primary sense in which the term agriculture is understood is agar-field and cultra-cultivation i.e., the cultivation of the field and if the term is understood only in that sense, agriculture would be restricted only to cultivation of the land in the strict sense of the term meaning thereby, tilling of the land, sowing of the seeds, planting and similar operations of the land. They would be the basic operations and would require the expenditure of human skill and labour upon the land itself.
32. As already pointed in paragraph 12 supra, that so far as Tamil Nadu is concerned there is no question of using the land simultaneously for raising
of paddy as well as fish farm are carried out. It is not the case of the fish farm owners that the fish farming is adopted as intermediatory cultivation. Except that the agricultural land is being used for fish farming, I do not find any similarity in the agricultural food products and the fish farming. The owners of the fish farm have mainly shifted to fish farming, leaving out the agricultural operations and in such circumstances, it cannot be said that the owners of the land are using the land for the same agricultural purpose.
33. For the reasons stated above, I am of the view that the fish farming cannot be declared as ‘agriculture’ and I answer the question involved in these in the negative.
34. In the result, second Appeal Nos. 95,96 and 159 of 1998 are allowed and the suit O.S.No. 585 of 1991, O.S.No. 276of 1991 and O.S.No. 1143 of 1993 on the file of the District Munsif, Mayiladuthurai shall stand dismissed. Second Appeal No.702 of 1998 is dismissed. However, there will be no order as to costs.