JUDGMENT Rampini, C.J. - The questions submitted by the Referring Bench for our consideration are:-(1) Whether the profits of a mela can be lawfully assessed with Road and Public Works cesses, when the land on which such mela is held, is not being used for agricultural purposes, but is so used during the rest of the year ? (2) Whether the case of Umed Rasul Shaha Fakir v. Anath Bandhu Chowdhuri I. L. R. 38 Cal. 637 (1901) has been correctly decided ? The facts of the case are set forth in the order of the Referring Judges. 2. The case of Umed Rasul Shaha Fakir v. Anath Bandhu Chowdhuri I. L. R. 38 Cal. 637 (1901) proceeded on the admission made by the pleader for the Respondents that the Defendants had to pay income tax on the profits of the mela, and that they ought not to be held liable for both income tax and road-cess. It was held that they were liable to pay income tax, and consequently, according to the admission of the pleader for the Respondents, not road-cess. It was subsequently pointed out in Manindra Chandra Nandi v. The Secretary of State I. L. R. 34 Cal. 257 : s. c. 5 C. L. J. 148 (1907), that the decision in this case was no authority for the general proposition of law that no property is liable to be assessed with both Road and Public Works cesses and income tax. 3. I would answer the first question put to us in the affirmative. When the profits of a mela come within the definition of " rent " paid for the actual use and occupation of land by persons other than cultivators, or of immoveable property, as defined in sec. 4 of the Act, as they may well do, then they may be assessed with Road-cess and Public Works cess, because they are undoubtedly to be taken into consideration in calculating the "annual value" of the lands on which the mela is held, on which annual value, under sec. 6 of the Act, the cesses are to be assessed. 4 of the Act, as they may well do, then they may be assessed with Road-cess and Public Works cess, because they are undoubtedly to be taken into consideration in calculating the "annual value" of the lands on which the mela is held, on which annual value, under sec. 6 of the Act, the cesses are to be assessed. Further, the definition of tenure-holder in the Act, viz., the holder of a tenure, i.e., an interest in land other than an estate or the interest of a cultivating raiyat, is a very wide one, and may include persons who are in the enjoyment of the profits of a mela. But the question whether in each particular instance, the profits of a mela are derived from land, or other immoveable property and whether the persons in enjoyment of them are tenure-holders within the meaning of the Act or not depends on the terms of each particular lease. 4. The second question remains to be considered. It would seem to me that so far as it decides that the profits of the particular mela in question have been wrongly assessed, the case of Timed Rasul Shaha Fakir v. Anath Bandhu Chowdhuri I. L. R. 28 Cal. 637 (1901) has been rightly decided. The facts are that a mela is held annually for 20 days from the 5th to the 25th Falgun on the lands cultivated during other days of the year by cultivating raiyats. So far as the lands of the estate are used for agricultural purposes, they have been rightly assessed with road-cess. No question arises in this appeal as to this. The question is, have they been rightly assessed with road-cess calculated on the profits of the mela. Now, the mela is held on the lands of two estates. The Defendants are tenure-holders and hold the lands under the zemindars to whom they pay rent of Its. 12-8 and Rs. 15 annually for these lands. They have been assessed with road-cess on these rents. Then, they let out 16 bishas of the land to ijardars, from whom they derive a rental of Its. 3,000. They retain in their possession 4 bishas, the estimated annual value of which is Rs. 200. The ijardars in their turn derive profits from the mela. 15 annually for these lands. They have been assessed with road-cess on these rents. Then, they let out 16 bishas of the land to ijardars, from whom they derive a rental of Its. 3,000. They retain in their possession 4 bishas, the estimated annual value of which is Rs. 200. The ijardars in their turn derive profits from the mela. They levy fees or tolls on the persons selling cattle, horses and camels at the mela, at so much per animal, and on the prostitutes frequenting it at 4 annas a head, and from certain stall-keepers at so much per stall. The road-cess assessment has been made by Government on these profits, which amount to Rs. 3,748 for the two estates or, including the annual value of the 4 bishas of land held by the Defendants, to Rs. 3,948. The assessment made on one mehal has accordingly been calculated on a sum of Rs. 1,731-13 and on the other (the one with which in this case we are concerned), on a sum of Rs. 2,216-3. 5. Now, Babu Ram Charan Mitter for the Secretary of State contends that under sec. 4 of the Road Cess Act this assessment has been properly made, because the profits derived from the sale of cattle, &c., which form much the greater part for the sum of Rs. 2,615-5 are rent, paid by " other persons in actual use and occupation of the lands," within the meaning of sec. 4 of the Act, and accordingly are to be taken into consideration in estimating the annual value of the land. I cannot agree to this. There is no definition of rent in the Road Cess Act. Rent according to its definition in the Bengal Tenancy Act, is what is payable by a tenant to his landlord for the use and occupation of land. The sums payable by the stall-keepers may come within this definition, though levied from them, not for the land on which they erect their stalls, but at so much per stall. But the fees paid to the Defendants' sub-lessees (i.e., the ijardars) and which form the greater part of the sum of Rs. 2,616 per annum, can, in my opinion by no straining of language, be regarded as "rent." They are fees paid at the rate of so much per animal. They are not paid by a tenant to the landlord. But the fees paid to the Defendants' sub-lessees (i.e., the ijardars) and which form the greater part of the sum of Rs. 2,616 per annum, can, in my opinion by no straining of language, be regarded as "rent." They are fees paid at the rate of so much per animal. They are not paid by a tenant to the landlord. They are not paid for the use and occupation of land or with reference to any land. Hence, in my opinion, the assessment of road-cess has been made by Government on a wrong basis and cannot be recovered from the Defendants. 6. I therefore consider that the second question put to us by the Referring Bench should also be answered in the affirmative, and that the appeal should be dismissed with costs. Brett, J. 7. The first question which has been referred for our decision is whether the profits of a mela can be lawfully assessed with Road and Public Works cesses when the land on which such mela is held is not being used for agricultural purposes, but is so used during the rest of the year. 8. The Plaintiff-Respondent is the zemindar of Chakla Kasirhat which includes Taluk Kanialkhata Gard Barakhata. In this latter village a mela or fair is held yearly for 20 days, from the 5th to the 25th Falgun, on lands which are included on the jotes or holdings of agricultural tenants, but on which no crops are standing at the time when the fair is held. On the 26th Chaitra 1295 Umed Ali Shaha and Umed Rasul Shaha Fakir and others executed what is described in the document itself as a kaimi chamdina jama mukurari kabuliyat by which they agreed to pay to the Plaintiff a " sayary chandina jama " of Rs. 16 yearly for the right or privilege to hold the fair yearly on the lands of the tenants. This document which has been translated and laid before us, does not attempt to specify the area or boundaries of the lands on which the fair may be held, the only description being " the jote land of tenants." The Fakirs in their turn have given to certain persons, who are described as ijardars, what is called an ijara of the right to hold the fair at a yearly rental of Rs. 3,000. 3,000. The fair is in fact held partly on lands included in Plaintiff's estate and partly on lands included in the neighbouring estate. 9. The Collector of Rungpur, holding that the zemindars and those holding under them were liable to pay Road-cess and Public Works cess on account of the profits of the mela, obtained from the ijardars, Babul Jamadar, Mahomed Saha, and Ainuddin Saidar, a return of the profits of the fair, and, distributing these between the two estates, he fixed the profits liable to assessment in respect of the estate of the Plaintiff at Rs. 2,216 and assessed on it cesses amounting to Rs. 138-8. This sum was realised by the Collector from the Plaintiff, but in consequence of the decision of this Court in the case of Umed Rasul Shaha. Fakir v. Anath Bandhu Chowdhuri I. L. R. 28 Cal. 637 (1901) the Plaintiff failed to recover the sum from the Fakirs or ijardars and therefore brought his suit against the Right Hon'ble the Secretary of State for India to recover the amount which he alleges had been wrongfully realised from him by the Collector. 10. Sec. 5 of the Cess Act IX, B. C., of 1880, provides that "from and after the commencement of this Act in any district or part of a district all immoveable property situated therein except etc. shall be liable to the payment of a Road-cess and Public Work cess"; and sec. 6 provides that " the Road-cess and Public Works cess shall be assessed on the annual value of lands ascertained respectively as in this Act prescribed." Chap. -II of the Act provides for the valuation of the land and the submission of returns for the purposes of making the assessment. 11. In determining the question which has been referred to us, the first point for our consideration is whether a mela or fair is covered by the definition of immoveable property which is by the Act declared to be liable to pay the cess. Immoveable property is defined in sec. 11. In determining the question which has been referred to us, the first point for our consideration is whether a mela or fair is covered by the definition of immoveable property which is by the Act declared to be liable to pay the cess. Immoveable property is defined in sec. 3 of the Act to include lands and all benefits to arise out of land and things attached to the earth or permanently fastened to anything which is attached to the earth but does not include crops of any kind, or houses, shops, or other buildings." The words in the definition " but does not include shops " seem to me to exclude fairs from the definition of immoveable property. A fair is partly a collection of shops for the sale of goods, partly a mart for the sale of live-stock. Moreover, the benefits accruing from a fair can hardly be described as benefits arising out of the land. They arise out of the sales made at the fair, and depend not on the area or character of the land but on the number of purchasers who come to the fair. 12. Nor can in my opinion the profits derived from a fair be included in the definition of the " annual value of land " as given in sec. 4 of the Act. Annual value of any land, estate or tenure is defined to mean " the total revenue or rent which is payable or, if no revenue of rent is actually payable, would, on a reasonable assessment, be payable during the year by all the cultivating raiyats of such land, estate or tenure, or by other persons in actual use and occupation thereof." The definition clearly contemplates that the rent shall be payable by persona in occupation during the year, not by persons occupying the land for 20 days only during each year. 13. But in the case before us the all-important point on the decision of which the determination of the questions referred to us depends, is whether the sums on which the assessment has been made by the Collector in this case can be regarded as " rent," however widely the definition of rent be interpreted. In my opinion they cannot. 13. But in the case before us the all-important point on the decision of which the determination of the questions referred to us depends, is whether the sums on which the assessment has been made by the Collector in this case can be regarded as " rent," however widely the definition of rent be interpreted. In my opinion they cannot. I am unable to agree with the learned Government pleader who appears for the Appellant that the assessment has been made on ground rents paid by persons in actual use of particular pieces of land covered by the fair. Certainly the tolls levied on the sales of cattle cannot be so regarded and the sums levied from the different shopkeepers and others do not appear to have been realised on account of stationary shops but for the right merely to sell their goods in the fair. It seems more than doubtful whether each shop-keeper occupied the same shop for the sale of his goods every day during the fair. The basis, therefore, on which the assessment has been made by the Collector in the present instance is not supported by the provisions of the Act and cannot be held to bind the Plaintiff. 14. The question, however, remains whether the profits of the fair are otherwise liable to pay the cesses. In my opinion they are not. It has been argued that the Fakirs and under them the ijardars, are tenure-holders, within the definition given in the Act. No doubt the definition of a tenure is very wide, including as it does " every interest in land," but the question arises-whether the Fakirs or their ijardars have such an interest in land as falls within the definition. Certainly they have no permanent or exclusive interest in the land on which the fair is held, the land being admittedly included in holdings of the occupancy raiyats. Further, it does not appear that the Fakirs under the terms of the kabuliyat which they executed have any right or interest which they could enforce against the raiyats who are in possession of the holdings. The kabuliyat, as I have already observed, does not attempt to specify the area of the land covered by it nor to give any boundaries by which the land could be ascertained. The kabuliyat, as I have already observed, does not attempt to specify the area of the land covered by it nor to give any boundaries by which the land could be ascertained. Such a right as the document confers on the Fakirs, indefinite in extent as regards the land and apparently incapable of enforcement in the event off opposition by the tenants, cannot be regarded as creating such an interest in land as would constitute the holder of it a tenure-holder. The document given by the Fakirs was in my opinion nothing more than an agreement to pay a certain sum yearly for a license to hold annually a fair for 20 days in Falgun on the lands of the tenants, provided the tenants raised no objection. The title given to the contract or agreement in the document itself can hardly be taken as sufficient to constitute it a lease of agricultural lands. Terms usually applicable to agricultural leases arc not unfrequently used to describe contracts of a different nature for which the Bengali language contains no exact equivalent. 15. In my opinion all that was granted to the Fakirs by the landlord was the right to hold a fair annually on immovable property within the limits of the estate of the landlord, which in the absence of the grant of such a right it would have been unlawful for them to do. That right, however, did not amount to an interest in the property and its exercise was subject to the condition that the tenants who held occupancy rights in the lands did not offer objection or opposition. Whether the landlord was within his rights in granting such a right to the Fakirs we have not to determine. The right granted was a license and the Fakirs were licensees only and were not lessees of agricultural lands. The view taken by the Court of first instance was in my opinion quite correct. The law relating to such a license and the English case law bearing on the subject are very fully and ably set out in Peacock's Law of Easements in India, Tagore Lectures, 1899. 16. The amount paid by the ijardars to the Fakir is in my opinion also not liable to assessment for road-cess. The law relating to such a license and the English case law bearing on the subject are very fully and ably set out in Peacock's Law of Easements in India, Tagore Lectures, 1899. 16. The amount paid by the ijardars to the Fakir is in my opinion also not liable to assessment for road-cess. The agreement between them and the Fakirs appears to have been that they agreed to pay to the Fakirs a certain portion of the probable profits of the fair, not as rent for the land on which the fair was held, but for the right to hold the fair and to realise out of it what profits they could to cover and exceed that sum. 17. I am also of opinion that the profits of the fair are not liable to assessment under Chap. V of the Act as other immoveable properties not included in Chap. II, as I hold that the fair and the profits realised at it do not fall within the definition of immoveable property at all. 18. The result, therefore, is that I would answer the first question referred to us in the negative, so far as the facts of the present case are concerned. 19. The second question referred is whether the case of Umed Rasul Shaha Fakir v. Anath Bandhu, Chowdhuri I. L. R. 28 Cal. 637 (1901) has been correctly decided. To this I would answer that on the facts of that case the decision is in my opinion correct, though one of the grounds on which it appears to be based is open to doubt. It seems doubtful whether the liability to pay income tax would carry with it as a necessary consequence exemption from road-cess and I am not prepared to adopt that reason. The decision can, however, be supported on other grounds. Mitra, J. 20. I am also of opinion that the decrees of the lower Courts allowing the Plaintiff's suit should be affirmed and this appeal dismissed with costs, but not on precisely the same ground as that relied on by the lower Courts. 21. The decision can, however, be supported on other grounds. Mitra, J. 20. I am also of opinion that the decrees of the lower Courts allowing the Plaintiff's suit should be affirmed and this appeal dismissed with costs, but not on precisely the same ground as that relied on by the lower Courts. 21. Two questions were discussed before the Division Bench of which I was a member, namely, (1) Is the same immoveable property liable to be assessed with both road and public-works cesses and income tax; and (2) can the profits of a mela be lawfully assessed with road and public works cesses when the land on which such mela is held is not being used for agricultural purposes, although the land is so used during the rest of the year by agricultural raiyats? The second question is the first question referred to the Full Bench and the second question referred to the Full Bench was intended to be merely ancillary to the first. 22. Caspersz, J., and I expressed our opinion to be that there was no bar in either the Bengal Cess Act (IX of 1880) or the Income Tax Act (II of 1886) to the assessment of the income or annual value of the same piece of land under both the Acts. We concurred in this respect with the opinion of the learned Judges who decided the case of Manindra Chandra Nandi v. The Secretary of State, for India I. L. R. 34 Cal. 257 : s. c. 5 C. L. J. 147 (1907). I had expressed the same opinion in an unreported case (Second Appeal No. 218 of 1904) on the 15th August 1904. The question may now be taken to be settled and has not been argued before this Bench. There is no bar to a double assessment. 23. The first question before this Bench, as an abstract question of law, is one of considerable difficulty. I was originally disposed to give an answer in the affirmative. There is, however, much to be said in favour of a contrary view which was taken in Umed Rasul Shaha Fakir v. Anath Bandhu Chowdhuri I. L. R. 28 Cal. 637 (1901). Can sairat dues such as profits from a mela are, be called rent payable by persons other than cultivating raiyats in the actual use and occupation of land, estate or tenure? 24. 637 (1901). Can sairat dues such as profits from a mela are, be called rent payable by persons other than cultivating raiyats in the actual use and occupation of land, estate or tenure? 24. But a perusal of the kabuliyat executed by the Fakirs and the "cess returns filed by them and the ijardars Under them, documents which were not before the Division Bench, has given a new aspect to the case. The abstract question of law raised by the reference irrespective of the facts of the case, as they now appear, is in ray opinion not necessary to be answered. Woodroffe, J. 25. I agree with Mr. Justice Brett. Mookerjee, J. 26. The questions which have been referred for decision to a Full Bench are as follows: (1) Whether the profits of a mela can be lawfully assessed with Road and Public Works cesses, when the land on which such mela is held is not being used for agricultural purposes, but is so used during the rest of the year; (2) whether the case of Umed Rasul Shaha Fakir v. Anath Bandhu Chowdhuri I. L. R. 28 Cal. 637 (1901) has been correctly decided. 27. The circumstances which gave rise to the litigation, out of which the appeal now before this Court arises, are by no means complicated, and may be briefly outlined. The Plaintiff-Respondent is the proprietor of an estate, Mehal Chotte Kajir Hat, which bears Towzi No. 36 on the Revenue Roll of the Collector of the District of Rungpur. Within the zamindari are situated some lands which form the holdings of certain agricultural tenants who pay rent to the Plaintiff. On the 7th April 1889, two persons, Umed Rasul Shah Fakir and Umed Ali Shah Fakir, executed a kabuliyat in favour of the Plaintiff, by which they agreed to pay him an annual rent of Rs. 16 and acquire the right to hold a fair, known as Durwani mela, on the land comprised within the holdings of the tenants, from the 5th to the 25th Falgun of every year. The kabuliyat was described as a permanent kaimi mokurari saira chundina jama kabuliyat, and the conditions were to remain binding upon the parties and their representatives so long as the mela continued to be held or gathered on the spot. The kabuliyat was described as a permanent kaimi mokurari saira chundina jama kabuliyat, and the conditions were to remain binding upon the parties and their representatives so long as the mela continued to be held or gathered on the spot. The Fakirs subsequently let out the profits realisable from the mela, to certain ijardars, who agreed to pay them annually the sum of Rs. 3,000 and thus acquired the right to collect whatever might be levied from the persons who attended the fair. The Collector of the District of Rungpur called for a return of the income of the mela from the Fakirs, purporting to act under the provisions of the Road Cess Act. The Fakirs appear to have protested that they were not liable to submit any return. The objection, however, was overruled, and a return was duly filed by the ijardars, which showed that the annual profits of the mela amounted to Rs. 2,216-5 in so far as the mela was held on Mehal Kaliankhata. The Collector, on the basis of this return, determined Rs. 138-8 as the amount of cesses annually payable, and levied the cesses, instalment by instalment, from the Plaintiff zemindar under sec. 41 of the Cess Act of 1890. The Plaintiff thereupon sued the Fakirs for the recovery of the sums which he had been compelled by the Collector to pay in the shape of cesses. The suit, however, was dismissed upon the authority of the decision of this Court in the case of Umed Rasul Shaha Fakir v. Anath Bandhu Chowdhuri I. L. R. 28 Cal. 637 (1901), in which it had been ruled that the profits of a mela cannot be regarded as income from agriculture and are not exempt from income tax, and that consequently, such profits are exempt from the payment of cesses. The Plaintiff thereupon commenced the present action against the Secretary of State, for declaration that the assessment of cesses upon the profits of the mela was ultra, vires, and for recovery of the sums which had been compulsorily levied from him oil the basis of this illegal assessment. 28. The Courts below have concurrently held that the assessment in question was illegal and ultra vires, and have made a decree in favour of the Plaintiff for amendment of the Cess Valuation Roll and for recovery of the sums illegally levied. 28. The Courts below have concurrently held that the assessment in question was illegal and ultra vires, and have made a decree in favour of the Plaintiff for amendment of the Cess Valuation Roll and for recovery of the sums illegally levied. The Secretary of State has appealed to this Court, and the learned Judges before whom the appeal, came to be heard in the first instance have referred the questions already mentioned to a Full Bench, on the ground that they were not prepared to accept the decision in the case of Umed Rasul Shah a Fakir v. Anath Bandhu Chowdhuri I. L. R. 28 Cal. 637 (1901) as well-founded on a correct interpretation of the provisions of the Cess Act. The determination of the questions referred to this Bench must depend primarily upon the construction to be placed on the provisions of that Act. 29. Sec. 5 of the Cess Act provides that all immoveable property, except as otherwise provided in secs. 2 and 8, shall be liable to payment of road-cess and public works cess. ' Immoveable property,' as defined in sec. 4, includes land and all that arises out of land and things attached to the earth or permanently fastened to anything which is attached to the earth but does not include crops of any kind or houses, shops, or other buildings. ' Land ' means land which is cultivated, uncultivated or covered with water, and does not include houses or buildings. Sec. 6 lays down that road-cess and public-works cess shall be assessed on the annual value of land and on the annual net profits from mines, tramways, railways or other immoveable property, ascertained, respectively, as is prescribed in the Act. The term ' annual net profit' is nowhere defined, but the omission is not of any consequence for our present purpose, as we have nothing to do with the annual net profits for the classes of property mentioned in sec. 6. To my mind, it is reasonably plain that the provisions of Chap. V of the Cess Act, which comprises secs. 72-84, have not the remotest application to the matter now in controversy. We are concerned only with the meaning and effect of the term ' annual value of land.' This is defined in sec. 6. To my mind, it is reasonably plain that the provisions of Chap. V of the Cess Act, which comprises secs. 72-84, have not the remotest application to the matter now in controversy. We are concerned only with the meaning and effect of the term ' annual value of land.' This is defined in sec. 4 to be the total revenue or rent payable, or, if no revenue or rent is actually payable, what would oh a reasonable assessment be payable during the year by all the cultivating raiyats of the land, estate or tenure, the annual value of which has to be determined, or, by other persons in the actual use or occupation thereof. It is obvious from this definition, that to determine the annual value of any land upon which cesses have to be assessed, one has to determine, first, the rent which is payable or is reasonably assessable as payable by all the cultivating raiyats for the land or by other persons who have the actual use or occupation of the land. In the case before us, there is no controversy that the annual value of the disputed lands does include the amount of annual rent paid by all the agricultural tenants. It may also be conceded that if there are two sets of agricultural tenants in respect of the same land, one of which occupies lands during a specified portion of the year, and the other occupies during the remainder of the year, the annual value of land would include the rent payable by both sets of tenants. The question, however, which requires examination in this case is, whether the profits of a mela which have been assessed by the Collector, do fall within the description of annual value of land. The question would require an answer in the affirmative, if it is established that the profits constitute rent, either actually payable, or assessed as reasonably payable by the tenants. The question would, however, require an answer in the negative, if the profits are not rent payable by either cultivating raiyats or by other persons in the actual use or occupation of the land. The decisive test, therefore, which has to be applied, is whether the profits of the mela are rent payable by tenants to their landlord. The question would, however, require an answer in the negative, if the profits are not rent payable by either cultivating raiyats or by other persons in the actual use or occupation of the land. The decisive test, therefore, which has to be applied, is whether the profits of the mela are rent payable by tenants to their landlord. It has been strenuously argued by the learned Government pleader, that the profits of the mela do constitute rent payable by a tenant to his landlord. This contention is based on the assumption that the persons who sell goods or animals or who keep stalls or booths, at the fair, are tenants, and that what they pay to the ijardars of the Fakirs, is rent. In my opinion, there is no solid foundation for this broad contention. So far as the materials on the record go, they appear to indicate that these persons from whom money is collected are licensees and not lessees. Before I deal with the distinction between the position of a lessee and of a mere licensee, it is desirable to mention the principal classes of persons from whom the profits of the mela are derived. The most substantial contribution is made by persons who sell cattle, and the return filed by the ijardars of the Fakirs shows that a toll is, under the name of rent, levied at the rate of 5 annas for each head of cattle sold. Similar amounts are levied from the dealers in horses and camels. A charge is also made from persons who set up temporary shops for the sale of sweetmeats, vegetables, cloths, books, fancy wares, and the like. It was seriously contended that the sums so levied must be treated as rent payable by persons in the actual use or occupation of land. To test the accuracy of this argument, it must be remembered, that a sum in order that it may fall within the description of annual value must be rent, that is, it must be something lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant. The question therefore narrows down to this. The question therefore narrows down to this. Are the persons, who attend the fair with a view to sell various articles of merchandise and who either occupy or set up stalls or booths in any sense tenants, and can the sums paid by them to the ijardars of the Fakirs be described as rent by any stretch of language ? In my opinion this question ought clearly to be answered in the negative. There is a well established distinction between lessee and license. The cardinal distinction is that in a lease there is a transfer of interest in land, whereas in the case of license there is no transfer of interest, although the licensee acquires a right to occupy the land. This distinction is well illustrated by the cases of Taylor v. Caldwell 3 B. and S. 826 (1863), Handcock v. Austin 14 C. B. N. S. 634 (1863) and Hill v. Tupper 9 Jurist (N. S.) 725; 2 H. and C. 121 (1863). In the first of these cases, A agreed with B to let him have the use of the Surrey Garden and music hall for 4 days at 100 per day for the purpose of giving series of concerts, and day and night fetes. The question arose, whether there was a license or a lease, it was held by Mr. Justice Blackburn that although the parties described the transaction as a letting and the money to be paid as rent, there was no tenancy as the agreement, taken as a whole, made it reasonably clear that there was no transfer of interest in the land, although the contract gave the licensee the use of the hall and garden for a specified time. 30. In the second case, A, the owner of some machines, paid 12S. a week to B, for permission to place the machines in a room in B's factory, and for free ingress and egress to the room for himself and workmen for the purpose of working and inspecting the machines. It was held that there was no tenancy and no disdainable rent, as no interest in laud had been transferred. 31. a week to B, for permission to place the machines in a room in B's factory, and for free ingress and egress to the room for himself and workmen for the purpose of working and inspecting the machines. It was held that there was no tenancy and no disdainable rent, as no interest in laud had been transferred. 31. In the third case, where a canal company had granted an exclusive right of putting or using pleasure boats on their canal, it was held that the grant did not create any interest or estate in the grantee, and therefore could not properly be described as a lease. 32. In the case of Rendal v. Roman 9 Times L. R. 192, the Defendants let a stall at an exhibition at a weekly rent, the stall to be used during certain hours. Lord Coleridge held that there was no lease but a mere license. That the line may sometimes be not easy to draw, is illustrated by the case of Selby v. Greaves L. R. 3 C. P. 594 (1868), in which the transaction was treated as a lease, because the grantee was entitled to possession at all times. The essence of the matter is whether the intention of the parties was to transfer any interest in land, for, as Parker, C. J., put it in Cooks v. Stream 11 Mass. 533, a license is an authority to do some act or series of acts on the land of another without passing any estate in the land. In determining whether a transaction was a lease or a mere license, the substance of the agreement must be considered, more than the words [Smith v. St. Michael E. and E. 383 at p. 390]. If we apply these principles to the facts of the case before us, what is the position of the parties? The lands on which the fair was held during 20 days in the years, were all comprised in the holdings of agricultural tenants. The legal possession was in them. The Fakirs could not acquire by any grant from the landlord, an interest in the lands in supersession or limitation of, or derogatory to, the interest of the cultivators. The zemindar granted them a right to hold the fair. This right they could not exercise, if the agricultural tenants objected. The legal possession was in them. The Fakirs could not acquire by any grant from the landlord, an interest in the lands in supersession or limitation of, or derogatory to, the interest of the cultivators. The zemindar granted them a right to hold the fair. This right they could not exercise, if the agricultural tenants objected. Substantially, they did not and could not acquire any right to the possession of the land. They could hold the fair only by consent or acquiescence of the cultivators. It is, therefore, impossible to say that they acquired any interest in the lands. Much less can it be said that the persons who attended the fair and sold animals, goods or articles of merchandise, were in any sense tenants of the ijaradars. They had obviously no interest in the land. They occupied or erected stalls or booths to store their goods and to sell them, and paid what was nothing more or less than a toll to the ijaradars of the Fakirs and the amounts paid in respect of the shops could not fall within the description of annual value of land. Much reliance was placed by the learned Government pleader upon the case of Bungsho Dhur Biswas v. Mudhno Mohuldar 21 W. R. 383 (1874). In that case, the question arose as to the legality of a contract, under a farming lease from the owner of a hat to collect a portion of the proceeds of sale from persons exposing their goods for sale in the hat under temporary sheds or in open places. It was ruled by this Court that the dues which were let in farm, were not in the nature of internal duties and that there was nothing illegal in the contract which Plaintiff sought to enforce. No doubt, the learned Judges described the amount paid by the sellers of goods as rent, but clearly it was not rent in the strict sense of the term, because it was not money payable by a tenant to his landlord for the use of the land held by the tenant. No doubt, the learned Judges described the amount paid by the sellers of goods as rent, but clearly it was not rent in the strict sense of the term, because it was not money payable by a tenant to his landlord for the use of the land held by the tenant. On this ground, I think it must be held that the amount of the profit of the mela, upon which the Collector has assessed cesses, does not fall within the description of ' annual value of land' as defined in the Cess Act, because it is not rent payable either by cultivating raiyats of land or by persons in the actual use or occupation of land. In this view of the matter and upon the facts of this particular case I would answer the first question referred to the Full Bench as follows:-The profits of the mela cannot be lawfully assessed with Road and Public Work cesses when the land on which such mela is held is not used for agricultural purposes but is so used during the rest of the year. 33. As regards the second question, namely, whether the case of Timed Rasul Shaha Fakir v. Anath Bandhu Chowduri I. L. R. 28 Cal. 637 (1901) has been correctly decided, my answer is that it was correctly decided in so far as it held that the profits of the mela were not assessable with cesses, but that the reasons assigned for the conclusion are open to criticism, specially the reason that " because these profits are liable to be assessed with income tax, therefore they are not liable to be assessed with cesses." As was pointed out in the judgment of this Court in the case Manindra Chandra Nandi v. The Secretary of State for India I. L. R. 34 Cal. 257: s. c. 5 C L. J. 148 (1907), it cannot be affirmed as an absolute and unqualified rule of law that the same sum of money may, under no circumstances, be liable to be assessed with income tax and cesses. In each case, the answer muss depend upon the nature of the sum, and the applicability of the provisions of the Cess Act and the income tax Act in relation thereto. 34. In each case, the answer muss depend upon the nature of the sum, and the applicability of the provisions of the Cess Act and the income tax Act in relation thereto. 34. It is clear that in the view I take, the conclusion of the Courts below that the assessment which the Plaintiff challenges was illegal and ultra vires, is well-founded on reason and principle, and this appeal must consequently be dismissed with costs. I may add that it is unnecessary to consider whether cesses could have been legitimately assessed on the basis of the amount payable by the ijaradars to the Fakirs; if such assessment had been made, two questions would arise, namely, first, are the ijaradars the persons in the actual use and occupation of the land, and, secondly, is the amount payable by them, rent for land. I do not express any final opinion upon these questions, as I do not wish to prejudge matters; it is sufficient to say that the assessment now In question has not been made on a sound basis, is ultra vires, and cannot stand.