Wadsworth, J.
1. These two appeals arise from the same judgment in a suit preferred by a zamindar to recover a sum of money alleged to have been illegally collected by the Government by way of land cess from the plaintiff. S.A. No. 161 is preferred by the Government with reference to the decree granted in respect of the cess calculated on fishery rentals. S.A. No. 177 is an appeal by the plaintiff against the dismissal of his suit so far as it relates to the cess calculated on income from quarries, grazing fees and sale of grass. The land cess in question is levied under Section 78 of the Madras Local Boards Act (XIV of 1920 as amended by Act XI of 1930), being calculated on the annual rental value of all occupied lands on whatever tenure held in the manner laid down in Section 79. With reference to zamindari lands such as those covered by the present suit, sub-Section 3 is applicable and the basis of the cess is (1) in case of lands occupied by a tenant, the annual rent payable to the landholder together with water rate; (2) in case of lands occupied by the owner himself, the rental value calculated according to the rates of rent paid by an occupancy ryot for similar land in the neighbourhood. The cess-has been levied by the Collector on the footing of the second part of Clause 3 of Section 79, namely, on the ground that the lands in question are in the occupation of the zamindar; and the revenue officers have found that if the zamindar had been taxed on the basis of the rental value of similar lands held on ryotwari tenure, the amount payable would have been considerably more than that which has been actually levied, the levy having been restricted to a rental value calculated on the basis of income actually received from those lands. Now, whether land used for quarrying or for grazing or for cutting grass is occupied by tenants or not, it seems to me fairly clear that the rental value of such land is liable to be taxed. If it is considered as being in the occupation of the person who takes a lease with grazing or grass-cutting rights or pays royalty for quarrying, then to my mind quite clearly all these payments would come within the term 'rent' and land cess would be payable under the first part of Sub-clause 3. It has been argued that a royalty or seigniorage charge for quarrying cannot be rent because it is a payment for the removal of a portion of the land and not a contractual charge for the use of the land. This argument runs directly contrary to a line of English decisions summarised in Wood fall on 'Landlord and Tenant', 23rd Edn., page 491 and applied by a Bench of the Calcutta High Court in Manindra Chandra Nandi v. Secretary of State for India I.L.R. (1907) 34 Cal. 257 . The true way of regarding the matter really is that a royalty for minerals is not really the purchase price for the sale of the minerals, but a contractual payment for the use of land for a purpose which, involves the removal of the minerals and to that extent reduces the value of the land, but does not take away the land. If, owing to the unlocalised or unexclusive nature of the user granted in any of these cases, it were to be held there was no occupation by the tenant, then there would clearly be occupation by the landholder himself and the second part of Clause 3 of Section 79 would come into play. Whether the user is of such a character as to be reasonably described as occupation, must very largely be a question of fact. Since the plaintiff has taken upon himself the task of showing that a tax levied by the Collector, whose decision has been confirmed by the Board of Revenue under Section 86 of the Act, is unlawful, he cannot get any relief from the Court except by proving positively that the tax which has been imposed is unlawful; and for this purpose it is necessary for him to place before the Court facts which would justify the necessary inference. I have no hesitation in concluding that the lower appellate Court's decision is correct in so far as it relates to the cess based on grazing, grass cutting and quarrying income dealt with in S.A. No. 177 of 1935 which must be dismissed with costs.
2. Turning to the appeal of Government, S.A. No. 161, the position is not so clear. It has been argued that income derived from fisheries is not rent nor is it income derived from land in any sense of the word. I have been referred to English cases in which the lease of an exclusive right of fishery in a particular stretch of water has been held to be an incorporeal hereditament and I have been referred to cases under the Income-tax Act in India in which rent from fisheries has been held not to be agricultural income. It seems to me that neither of these classes of cases gives very much assistance in deciding the question before me. It is not a question whether the leasing of a right of fishery is an incorporeal hereditament but a question whether the income derived therefrom is rent for the occupation of land, which is really quite a different matter: nor is it a question whether a fishery rent is income from agriculture; for in my opinion the rental value which is the basis of assessment under Section 79 of the Local Boards Act is clearly not confined to agricultural land, but includes royalties for minerals and in fact rent in its widest form. I also doubt the applicability of English cases regarding fishery rights to Indian conditions. The leasing of a fishery in England normally implies the grant of a right to catch fish with rod and line or with net in a river, or a permanent sheet of water. The leasing of a fishery in a South Indian tank involves nothing of the kind. In the first place the tank, though it is land more or less covered by water for a portion of the year, is ordinarily dry land for another portion of the year and the fish though they are denizens of the water in the cold weather are denizens of the land and the mud in the hot weather, for they go down into the mud when the tank goes dry. The process of catching the fish is also decidedly different for normally it is a procedure whereby, when the water has almost completely gone the fisherman drives the fish into a shallow muddy depression and catches them with his hands. Looking at the question, therefore, without reference to decided cases, I am of opinion that a tank as known in South India is essentially land though to some extent covered with water for a considerable portion, of the year. If that land is in the occupation of the zamindar yielding him income in the nature of rent for the use thereof, then to my mind his occupation is taxable. If he leases the right of occupation to a tenant, so that the latter may enjoy the land and the water thereon by catching fish, then the payment made by the tenant is in my opinion a rent; so that, whether one brings this occupation under the first part or the second part of Clause (3) of Section 79, I am of opinion that the income derived by the landholder in the first case, or the rental value of the tank as calculated in the manner laid down in the second part in the latter case, would form the basis of a land cess. It has not been shown that the calculation based on actual receipts of fishery rent is in excess of what the rental value would be when calculated on the basis of the rent payable for similar lands in the neighbourhood. In, fact there is a finding by the revenue authorities that the strict method of calculation would have been disadvantageous to the landholder. In the result I allow S.A. No. 161 with costs and dismiss the plaintiff's suit.
3. Leave granted in S.A. No. 161.