Madras High Court
Sri Velayuthaswamy Spinning Mills (P) ... vs The Inspector General Of Registration on 1 March, 2013
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.03.2013 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.Nos.4434, 4435, 13652 & 13653 of 2009 1. SRI VELAYUTHASWAMY SPINNING MILLS (P) LTD., NO.207, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPUR-641 604 REP. BY ITS DIRECTOR MR.P.S.VELUSWAMY. .. Petitioner in W.P.No.4434/2009 2. SIVARAJ SPINNING MILLS (P) LTD., NO.207, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPUR-641 604 REP. BY ITS DIRECTOR MR.P.S.VELUSWAMY. .. Petitioner in W.P.No.4435/2009 3. SRI SHANMUGAVEL MILLS (P) LTD., NO.207, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPUR-641 604 REP. BY ITS MANAGING DIRECTOR MR.P.S.VELUSAMY. .. Petitioner in W.P.No.13652/2009 4. SRI SHANMUGAVEL MILLS (P) LTD., NO.207, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPUR-641 604 REP. BY MANAGING DIRECTOR MR.P.S.VELUSAMY. .. Petitioner in W.P.No.13653/2009 -Vs- 1. THE INSPECTOR GENERAL OF REGISTRATION, SANTHOME HIGH ROAD, CHENNAI-28. 2. THE SUB REGISTRAR SUB REGISTRAR'S OFFICE GOMANGALAM, TIRUPUR DISTRICT .. Respondents Prayer in W.P.No.4434/2009: Writ petition is filed under Article 226 of Constitution of India for issuance of a writ in the nature of Certiorari, calling for the proceedings of the first respondent made in No.367/E3/2009 dated 23.1.2009 and quash the said proceedings of the first respondent dated 23.1.2009 and consequently direct the respondents to refund the stamp duty of Rs.43,20,000/- and also registration charges of Rs.5,40,000/- paid by the petitioner under protest towards the value of the windmills. Prayer in W.P.No.4435/2009: Writ petition is filed under Article 226 of Constitution of India for issuance of a writ in the nature of Certiorari, calling for the proceedings of the first respondent made in No.368/C.3/2009 dated 23.1.2009 and quash the said proceedings of the first respondent dated 23.1.2009 and consequently direct the respondents to refund the stamp duty of Rs.32,40,000/- and also registration charges of Rs.4,05,000/- paid by the petitioner under protest towards the value of the windmills. Prayer in W.P.No.13652/2009: Writ petition is filed under Article 226 of Constitution of India for issuance of a writ in the nature of Certiorari, calling for the proceedings of the first respondent made in No.369/C.3/2009 dated 18.03.2009 and quash the said proceedings of the first respondent dated 18.03.2009 and consequently direct the respondents to refund the stamp duty Rs.11 60 000/- and also registration charges of Rs.1 45 000/- (totalling to Rs.13,05,000) paid by the petitioner under protest towards the value of the windmill. Prayer in W.P.No.13653/2009: Writ petition is filed under Article 226 of Constitution of India for issuance of a writ in the nature of Certiorari, calling for the proceedings of the first respondent made in No.366/C.3/2009 dated 20.03.2009 and quash the said proceedings of the first respondent dated 20.03.2009 and consequently direct the respondents to refund the stamp duty Rs.21,60,000/- and also registration charges of Rs.2,70,000/- (totalling to Rs.24,30,000/-) paid by the petitioner under protest towards the value of the windmill. For Petitioners : Mr.A.Jenasenan For Respondents : Mr.R.Ravichandran Addl. Govt. Pleader ***** C O M M O N O R D E R
This judgment shall dispose of W.P.Nos.4434, 4435, 13652 and 13653 of 2009, as common question of law and facts are involved in all these writ petitions. However, for the sake of brevity, the facts are being taken from W.P.No.4434 of 2009.
2. Sri Velayuthaswamy Spinning Mills Pvt. Ltd., a company registered under the Companies Act, has approached this Court with prayer for issuance of a writ in the nature of Certiorari to quash the order No.367/E3/2009 dated 23.1.2009, declining the request of petitioner for refund of excess stamp duty and registration charges paid by the petitioner under protest.
3. The petitioner company identified four windmills situated in Sinjuvadi and Koolanaickenpatti Villages, Pollachi Taluk, owned by M/s.Vishal Exports Overseas Limited. The petitioner accordingly negotiated with the aforesaid company for purchase of their windmills as also the land in which the mills were erected.
4. The windmills were agreed to be sold for the sale consideration of Rs.1,00,00,000/- (Rupees One Crore only) per windmill. This sale stood concluded on receipt of sale consideration and giving of possession of windmill, by taking it to be movable property.
5. It was agreed, that after purchase of the windmill, the petitioner could also purchase the land on which the windmills were installed for sale consideration of Rs.30,38,000/- (Rupees Thirty Lakhs and Thirty Eight Thousand only).
6. In pursuance to the agreement entered into between the parties, the petitioner paid the sale consideration for the windmill and sale invoices for the windmills along with receipts for the consideration was passed on to the petitioner on 01.08.2008. M/s.Vishal Exports Overseas Limited issued a letter dated 01.08.2008, confirming the sale of four windmills in favour of petitioner and also acknowledged the delivery of windmills with the full description of the movables sold to the petitioner.
7. With the completion of this transaction, the petitioner became the sole and absolute owner of the four windmills with effect from 01.08.2008. The consideration for the purchase of windmills was paid to the State Bank of India, Ahmedabad with whom the windmills were hypothecated. The receipts for having received the money were issued by the State Bank of India on 05.08.2008. It was also confirmed, that from 31.07.2008 onwards, the electricity generated from the four windmills will be to the account and credit of the petitioner.
8. The petitioner thereafter got the sale deed executed on 13.08.2008 conveying 7 separate pieces of land measuring 8.68 acres for a total consideration of Rs.30,38,000/- (Rupees Thirty Lakhs and Thirty Eight Thousand only). In the schedule to the sale deed, all the 7 items of land were shown in the description, it was also recorded that four windmills were installed thereon.
9. The 2nd respondent insisted to include the value of all the windmills in the sale deed for its registration. The petitioner having left with no alternative, agreed to such proposal under protest, and paid the demanded stamp duty and got the sale deed registered on 19.08.2008 (Doc.No.1939).
10. It is the case of petitioner, that action of the 2nd respondent in treating the document as one conveying the land and the windmills, requiring stamp duty for the windmills, was wholly irregular, as the petitioner had already become the owner of windmills prior to 13.08.2008, the date of purchase of land.
11. The petitioner accordingly preferred appeal to the 2nd respondent, pointing out that collection of stamp duty on the value of windmills, including additional duty demanded and collected was wholly without jurisdiction, and requested the first respondent to direct the refund of the stamp duty paid on the value of the windmills. It was pointed out that the sale deed related only to the immovable property, i.e., the land, therefore, the stamp duty was to be paid only for the value of the land and not windmills, being movable property.
12. The request of petitioner was rejected by respondent no.1. Though the petitioner has termed the request as appeal, in fact it was an application for refund of excess stamp duty and registration charges under Section 45 of the Indian Stamp Act.
13. The impugned orders have been challenged, on the ground that charging of stamp duty and registration charges on the value of windmills was totally erroneous, as the petitioner had become the owner of windmills on 31.07.2008. Therefore, sale of windmills could not be treated as part of sale deed.
14. That the action of respondent no.1 in rejecting the request of petitioner for refund of stamp duty, though termed as appeal, to be bad in law, as no opportunity of hearing was given to the petitioner before passing the impugned orders rejecting the request of petitioners for refund of additional stamp duty and registration charges.
15. That the impugned orders are also challenged, being outcome of non application of mind, as the respondents failed to follow the circular dated 19.11.2008, issued by the 1st respondent, laying down that windmill was movable property, which could be sold by receiving consideration and by delivery.
16. It is the case of petitioner, that there was proof on record, i.e., letter issued by the State Bank of India, showing completion of sale much prior to registration of sale of land, which proved, that the ownership of windmills had passed on to the petitioner before presentation of sale deed for registration.
17. It is thus submitted, that the petitioner is entitled to refund of amount and additional stamp duty paid under protest on the demand by respondent no.2.
18. Counter has been filed to oppose the writ petition, by taking a stand therein, that by the sale deed dated 13.08.2008, M/s.Vishal Exports Overseas Limited conveyed in favour of the petitioner, all that piece and pacel of land in Chinnapappanuthu Village in Udumalpet Taluk in 7 pieces having an extent of 8.68 Acres together with NEG MICON make 750 KW Wind electric Generator 4 Nos. installed thereon WPSC Nos.1004, 1005, 1013 and 1014 of Udumalpet Electricity Distribution Circle, pathway, usual to and fro rights, right for transportation movement of cranes and heavy mechanized vehicles with all and other usual easement rights thereon for a sale consideration of Rs.30,38,000/- (Rupees Thirty Lakhs and Thirty Eight Thousand only). The market value of the land, structures and Windmill and other machineries were valued by the petitioner and the Vendor at Rs.4,30,45,000/- (Rupees Four Crores Thirty Lakhs and Forty Five Thousand only).
19. The 2nd respondent registered the said sale deed as Doct.No.1939 of 2008 of Book 1 and referred to the Certified chartered valuer to assess the value if the windmill and other machineries. The Valuer assessed the Windmill and machineries at Rs.5,40,00,000/- (Rupees Five Crores and Forty Lakhs only) as against the value of Rs.4,00,00,000/- (Rupees Four Crores only) declared by the petitioner and the Vendor in the sale deed. The stamp duty and registration fees aggregating to Rs.12,60,000/- (Rupees Twelve Lakhs and Sixty Thousand only) was paid by the petitioner for the difference in value of the machineries on 19.08.2008.
20. Subsequently, the petitioner has preferred a petition dated 25.12.2008 to the 1st respondent requesting him to refund the stamp duty and registration fees paid on the value of the Windmill and other machineries since they were movable properties. The 1st Respondent rejected the claim of the petitioner in the order dated 23.01.2009 made in No.367/C3/2009.
21. The stand of the respondents is that the windmills were embedded in the earth, when the rights, interest, title etc were transferred to the petitioner, therefore the windmill was to be construed as immovable property and not movable property as defined under Section 2(6) of the Registration Act, 1908.
22. It is further stand of respondents, that in the schedule of the property besides description of land, the details of windmills are also given, which show that the intention of parties was that sale of land was along with windmills embedded thereon and the stand taken by petitioners now is an after thought.
23. The contention of learned counsel for the petitioners, that sale of windmills was completed prior to registration of sale deed, is denied on the ground, that in that event, there was no necessity to mention about windmills in the schedule to the sale deed.
24. The contention of petitioner, that no opportunity of hearing was given to petitioner, was denied, on the ground that sale deed in question was self explanatory, showing transfer of windmills under the sale deed, therefore, there was no necessity to give opportunity of hearing to the petitioner.
25. The grounds raised by the petitioners were denied and reliance was also placed on the Full Bench judgment of this Court in Chief Controlling Revenue Authority vs. Dr.Manjunatha Rao, (1976) 2 MLJ 279, to contend, that revenue authority cannot ignore the terms of document placed before them for adjudication. Reliance was also placed on the Full Bench judgment of this Court in the case of Chief Controlling Revenue Authority vs. Rustom Nusserwanji Patel (1968) 1 MLJ 165, laying down that what is decisive is the actual character of the transaction and the precise nature of the rights, created by means of the instrument, to contend that there no case is made out for refund of additional stamp duty or to challenge the impugned orders, on interpretation of sale deed.
26. Learned counsel for the petitioners vehemently contended, that the impugned orders cannot be sustained in law, as it ignores the circular issued by the respondent no.1, that windmill is a movable property and not immovable property so as to attract stamp duty.
27. It was also contended, that in this case, it was proved on record, that the sale with regard to windmills, by treating it to be movable property was concluded much before registration of sale deed, as was clear from the receipt of State Bank of India, in whose favour windmills were hypothecated. This fact further proved the windmill to be movable property, as in case it was to be treated to be immovable property, then only mortgage was to be created and not hypothecation.
28. It was also the contention of learned counsel for the petitioners, that merely because of the description in the property showing that windmills were installed thereon could not be treated to be part of sale of immovable property, as the reading of sale deed shows, that it was only the land, which was sold for sale consideration of Rs.30,38,000/- (Rupees Thirty Lakhs and Thirty Eight Thousand only).
29. It was also vehemently contended, that under Section 45 of the Indian Stamp Act, it is the duty of respondent no.1 to refund the excess amount, but respondent no.1 has failed to exercise the statutory duty by refusing the refund of money, that too without following principle of natural justice.
30. Learned Additional Government Pleader on the other hand vehemently contended, that no case is made out for interference by this Court, as the respondents were bound to collect stamp duty and registration charges, by taking into consideration the document as drafted. The contention of learned Additional Government Pleader was that in this case, the reading of sale deed shows, that parties agreed to sell the schedule property attached to the sale deed, which included windmills, therefore, windmills being part of sale and having been sold under the sale deed, the stamp duty was rightly claimed and paid by petitioner. The application of petitioners were therefore rightly rejected.
31. In support of this contention, learned Additional Government Pleader placed reliance on the Full Bench judgment of this Court in The Chief Controlling Revenue Authority, Board of Revenue, Madras vs. Dr.K.Manjunatha (supra), wherein it was held as under:
"14. For holding that the document in question is a conveyance the Board of Revenue did not rely so much on the recitals which that document contained. The Board embarked, instead, on an examination of the original sale deed, dated 14th March, 1947 under which the respondent purchased the whole extent of 27 grounds in Mount Road. According to the Board, this document, dated 14th March, 1947 did not say that the consideration for the purchase of the property was, in part, provided by the wife. The Board expected that such a recital ought to have been put in the purchase document, if the intention had been that the purchase was to be for the joint benefit of both husband and wife. From this the Board purported to draw the inference that the respondent alone was the sole purchaser of the entire extent of the property of 27 grounds. From this it was but a short hop for the Board's conclusion that what the respondent did under the document, dated 29th April, 1970 was only to part with, or transfer, a portion of his own property in favour of his wife. We do not subscribe to the method of adjudication of stamp duty which the Board had followed in this case. It is true that what name the parties choose to give to an instrument cannot be decisive, or even indicative of the true nature of the instrument for purposes of stamp duty. But this rule does not mean that the revenue is empowered to go behind the recitals and terms of the document before it and hold that the object of the transaction was something different from what the document discloses and therefore the document should be deemed to be that which it is not. We do not think that the revenue authorities can ignore the terms of the document which is before them for adjudication and base their decision on the terms of some other collateral instrument. At all events, even according to the Board, the purchase document, dated 14th March, 1947 was silent as to how and where the purchaser farmed the consideration which he passed to the vendor. In this situation, the release deed dated 29th April, 1970 was the only instrument to which the Board should have riveted its attention. It was not open to the Board to question the recitals in the release deed in the absence of any materials to the contrary. The same remark must apply to the Board's observation that the assignment by the Government of the adjacent property in favour of the respondent did not show that it was obtained for the benefit of the respondent and his wife jointly. We do not also subscribe to the view that the respondent's wife was merely in the position of a lender of moneys with reference to a portion of the consideration that went in for purchase of the property. We hold that the respondent's wife had acquired a joint interest along with him in the property, and the appropriate method by which the respondent could renounce his claim over the interest of his wife was by execution in her favour of a release, as had been done under the document, dated 29th April, 1970.
32. On consideration, I find that the stand of respondents cannot be accepted. The reading of sale deed shows, that the land was agreed to be sold for total sale consideration of Rs.30,38,000/- (Rupees Thirty Lakhs and Thirty Eight Thousand only) and mention of windmills was merely description of the land sold and the windmills could not be said to have been sold under the sale deed, specially in view of proved facts on record, that sale with regard to windmills was completed on 01.08.2008. Whereas the sale deed for land was presented for registration only on 13.08.2008 and was actually registered on 19.08.2008. The stand of petitioners could not be an after thought, as the sale consideration for purchase of windmills was paid to State Bank of India, with whom the windmills were hypothecated by taking it to be movable property.
33. Furthermore, windmills were to be treated as movable property and not immovable property in view of circular dated 19.11.2008 of the 1st respondent, clearly stipulating that windmills have to be treated as movable property. This circular was binding on respondent no.1.
34. There was no justification with the respondent no.1 to refuse refund of stamp duty by ignoring its own circular.
35. The view, that no stamp duty would be payable on the windmills, finds support from the judgment of this Court in P.S.Chelladurai and another vs. Canara Bank, Gudalore, Uthamapalayam Taluk, Madurai District, 1993-1-L.W.80, wherein the Hon'ble Single Judge of this Court, took note of the settled law of this Court for determining whether the machinery is permanently attached to the earth to be treated as movable property or immovable property. The judgment reads as under:
"8. Now let me consider the rival submissions. The Full Bench judgment deals directly with the cinema projector belonging to touring cinema. The Full Bench in that case, has held that the projector would fall within the category of movable only by observing that in the true nature of things, property of that nature cannot be immovable property. This Full Bench judgment was sought to be distinguished by the learned counsel for the petitioners by stating that the theatre in question is a permanent one. However learned counsel for the respondent-Bank pointed out that the theatre in question is also a touring cinema, and the Full Bench judgment directly applies to the fact of this case. From the records, it is not possible to find out whether the theatre in question is a permanent one or a touring cinema.
9. The next decision is 1968 II M.L.J.596=81 L.W.570 (supra). In that case, the Division Bench was considering whether pumping installation was not immovable property. The Division Bench, after distinguishing the Full Bench judgment above mentioned, observed as follows:
We do not think that the Collector was correct in his view that the pumping installation could not have been acquired under the Act as it was not immovable property. Immovable property, both under the Transfer of Property Act and the General Clause Act, would include anything imbedded in the earth or attached to what is so imbedded. The fact it is capable of being removed does not render it any the less immovable property when it is fastened to earth in the manner in which high-power motors and a pumping installation as a whole are imbedded. It may, however, be that the competent authority acting under the provisions of the Requisitioning and Acquisition of Immovable Property Act, proceeded to acquire only the land, buildings, trees, wells etc., for, both the agreement with regard to the compensation and the award passed by the enquiring officer only covered these items. That does not mean that there could not have been a separate agreement with regard to the purchase of the pumping installation. The Division Bench further observed as follows:
A pumping installation necessarily involves a more permanent fixture to the earth, than a touring cinema does.
10. In A.I.R.1969 Madras 346 = 81 L.W.19 (S.N.) (supra), another Division Bench had occasion to consider whether the oil engine attached to the earth would be movable or immovable property. The Division Bench, after considering various earlier decisions including the Full Bench judgment, observed as follows:
The question whether when a chattel is attached to the earth or a building, it is immovable property, is a mixed question of law and fact, and has to be decided in the light of particular facts in each case. Obvious cases may not call for tests. Where doubt arises, certain tests have been formulated in particular contexts, which, if literally applied, may not yield always a proper and correct result. While general tests pointed out by judicial decisions in the light of specific facts, may be borne in mind, eventually the decision on the question should depend upon how the Court, looking at the facts as a whole, feels on the matter.
Immovable property is defined at least in three Indian enactments, the General Clauses Act, the Registration Act and the Transfer of Property Act. The first two are not of much assistance, for, they merely say that immovable property includes things attached to the earth, or permanently fastened to anything attached to earth. They give no guidance as to what is meant by attached or permanently fasted, the third enactment, by S.3 describes what is meant by attached to the earth to wit, (a) rooted in the earth, as in the case of trees and shrubs, (b) imbedded in the earth, as in the case of walls, or buildings, (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached. Broadly speaking, the degree, manner, extent and strength of attachment of the chattel to the earth or building, are the main features to be regarded. All the three aspects in the description show that the attachment should be such as to partake of the character of the attachment of the trees or shrubs rooted to the earth or walls or buildings imbedded; in that sense, the further test is whether, such attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached. Even here, although there may be an attachment by the earth, as contemplated by the first two aspects in the description of attached, still if the attachment is a necessary requisite and that is the manner by which the immovable property is or can be enjoyed or worked, it may be open to question whether because of its fixture, though permanently, in the qualified sense, it can ipso facto or ipso jure he regarded as immovable property.
Board of Revenue Chepauk, Madras v. Venkataswami (1955-2M.L.J.215=AIR 1955 Mad 620 = 68 L.W.527 (F.B.) illustrates this. In that case which was under the Stamp Act, a lease of properties relating to a touring cinema (tent and machines), though collapsible and capable of being removed, but permanently fastened to the earth when in use, was held to be not chargeable to stamp duty under S.30(a)(4) of Schedule 1A of that Act, as in the nature of things such properties could not be immovable property. The learned Chief Justice, who spoke for the court, further observed that the poles of the tent and machinery were imbedded in the earth only temporarily and not permanently. It may be seen that a touring cinema, which is located in a place, is not shifted from place to place but continues to function for fairly a long period. Permanence of the fixture, in the context is, therefore, of a relative character.
For a chattel to become part of immovable property and to be regarded as such property, we should think it must become attached to the immovable property as permanently as building or a tree is attached to the earth. If, in the nature of things, the property is a movable property and for its beneficial use or enjoyment, it is necessary to imbed it or fix it on earth though permanently that is, when it is in use, it should not be regarded as immovable property for that reason. That, as we understand, is the ratio of 1955-2-M.L.J.215=AIR 1955 Mad 620 = 68 L.W.527) (F.B) Subramanian Firm v. Chidambaram Servai resembles the principles of 1955-2-M.L.J.215 AIR 1955 Mad 620 FB = 68 L.W.527). Certain tenants installed an oil engine as part of a cinema in a certain leasehold land, with the object of utilizing the machinery for their profit. Wadsworth, J., held that a security bond pledging the oil engine could not be deemed to be a transaction relating to immovable property. The learned Judge approached the question in the following manner:
If a thing is imbedded is the earth or attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached, then it is part of the immovable property. If the attachment is made for the beneficial enjoyment of the chattel itself, then it remains a chattel, even though fixed for the time being so that it may be enjoyed. We find ourselves in agreement with the second part of these observations, which is opposite to the instant case. In the case before us, the attachment of the oil engine to earth, though it is undoubtedly a fixture, it for the beneficial enjoyment of the engine itself and in order to use the engine, it has to be attached to the earth and the attachment lasts only as long as the engine is used. When it is not used, it can be detached and shifted to some other place. The attachment, in such a case, does not make the engine part of the land and as the second part of these observations, which is opposite to the instant case. In the case before us, the attachment of the oil engine to earth, though it is undoubtedly a fixture, it for the beneficial enjoyment of the engine itself and in order to use the engine, it has to be attached to the earth and the attachment lasts only as long as the engine is used. When it is not used, it can be detached and shifted to some other place. The attachment, in such a case, does not make the engine part of the land and as immovable property. Mohammed Ibrahim v. N.C.F.Trading Company Coconado (AIR 1944 Mad 492 = 27 L.W.438) was decided by a Division Bench of this Court under the provisions of the Registration Act, that was a case of machinery of a mill fixed to a cement platform and attached to ironpillars fixed in the ground. It was held that the movable property so attached should be regarded as immovable property. It seems to us that this case turned on the special facts and the nature of the fixture, including the intention derived from the physical features of the fixture, that the mill was to be a permanent attachment to the earth. A potter oil engine, as in this case, stands on a different footing and from the very nature of this type of machinery.
We do not think that any useful purpose would be served by a reference to English Cases, because they have proceeded on basis of fixtures to realities, under the English law. Different considerations have been applied by English Courts in deciding whether given things amounted to fixtures in the sense in which the term is understood in the law relating to real property. Nevertheless, reference may be made to two of those English cases. In Leigh v. Taylor (1902 A.C.157), the House of Lords held that valuable tapestries affixed by a tenant for life to the walls of a house for the purpose of ornament and the better enjoyment of them, were not fixtures and therefore, did not pass with the freehold to the remainderman. The House of Lords thought that the tapstries formed part of the personal estate of the tenant for life. The speech of Lord Halsbury shows that questions like this cannot always be answered, in the nature of things, with arithmetical accuracy, but certain discernible tests, as aids in deciding the question, are well established, as for instance, if something is made part of the house, it must necessarily go to the heir, because the house goes to the heir and it is part of the house. So, where something is attached in some form to the walls of a house, nevertheless, having regard to the nature of the thing itself, and the purpose of its being placed there, it is not intended to form part of the reality, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment. Though those observations were in the context of fixtures, and we are conscious that English law relating to fixtures cannot be bodily applied to conditions in this country the observations of Lor Halsbury certainly are of weight and point to the correct approach to question of this kind.
The House of Lords, again, had to consider in Reynolds v.Ashby & Son (1904) A.C.466 whether machinery attached to freehold was a fixture. There the machines affixed to concrete beds in the floor of the factory of bolts and nuts, could have been removed without injury to the bilding of the beds. In this case too Lord Halsbury was one of the Law Lords who decided it, but with this difference, here the House considered that as the machines were part of a factory, which was the subject matter of a lease the attachment of the machines to the earth in that manner should be regarded as a fixture.
The last case cited at the Bar is 1975 II M.L.J.431=89 L.W.100 (supra). Here again, the Division Bench considered whether the machinery attached to the earth in movable or immovable property. The Division Bench observed as follows:
Mulla in his book on Transfer of Property Act, 1966 (Sixth Edition) quoted with approval a decision of the Calcutta High Court in Janchand v.Kishore (AIR 1960 Calcutta 301) and stated:
In a recent Calcutta case, it has been held, it is submitted, correctly, that the test is whether the annexation is with the object of the permanent beneficial enjoyment of the land or building: so machinery for metal-shaping and electroplating which was attached by bolts to special concrete bases and could not be easily moved, was held not to be a part of the structure housing it or the soil beneath it. The Court held that the machinery was not attached for the mere beneficial enjoyment of either the soil or the concrete; it was actually a case of the structure being built around the machinery to protect it.
Thus, therefore, the principles in the Calcutta decision, cited above, squarely applies to the facts of this case. The machineries are attached by bolts to special concrete bases or studs, or platforms and no one interested in saying so, would say that they are so attached to earth, so as to make it appear that such acticles have been so imbedded for the permanent beneficial enjoyment of the mill premises itself. We accept the evidence of P.W.2 in the absence of any contrary materials before us, to say that the imbedding is as urged by Mr.Venkatrama Iyter From the conduct of the borrowers and from the intrinsic value of the recitals in Exhibit A24 which is the hypothecation deed we are unable to resist the reasonable conclusion which flows from the surrounding circumstances and the facts of this case, that the parties intended that the machineries delineated in Exhibit A29 were to be understood and meant as movable property rather than as immovable property in the sense that they become imbedded to earth so permanently as without it, the mill premises cannot be beneficially enjoyed.
11. Bearing the principles laid down in the various cases citex above, I am of the view that except the observations in 1968 II M.L.J.596 = 81 L.W.570 (supra), the other cases strongly support the contention of the learned counsel for the respondent-Bank. In fact, the Division Bench in A.I.R.1969 Madras 346 81 L.W.19 S.N. (supra) has observed that cinema projector in touring cinema and permanent cinema are the same for the purpose of treating them as immovable properties. For, the Division Bench has observed as follows:-
It may be seen that a touring cinema, which is located in a place, is not shifted from place to place, but continues to function for fairly a long period. Performance of the fixture in the context, is, therefore, of a relevant character. The above observation clearly supports the case of the respondent Bank. We have already noticed that the cinema projector, in the case on hand, was only hypothecated and the assumption that the projector must be treated as an immovable property and, therefore, the hypothecation must be equated to mortgage, is baseless. In the circumstances, the view taken by the Court below is correct, and does not call for any interference. The Civil Revision Petition is, therefore, dismissed. However, there will be no order as to costs.
36. In view of settled proposition of law, windmills were installed on the cemented platform on the land for running of windmills and not for the benefit of the land.
37. By applying the principles laid down by this Court, it has to be held, that windmills are movable property, which stood sold to the petitioners prior to registration of sale deed.
38. Therefore, no stamp duty was payable on the value of windmills. The petitioners therefore were entitled to refund of stamp duty and additional registration charges.
39. Consequently, all these writ petitions are allowed. The writ in the nature of Certiorari is issued, quashing the impugned orders in all these writ petitions with the consequential relief of writ in the nature of Mandamus, directing the respondents to refund the excess stamp duty and registration charges paid by petitioners in registering sale deed for purchase of land, as prayed for in the writ petitions.
40. No costs. Connected miscellaneous petitions are closed.
ar To
1. THE INSPECTOR GENERAL OF REGISTRATION, SANTHOME HIGH ROAD, CHENNAI-28.
2. THE SUB REGISTRAR SUB REGISTRAR'S OFFICE GOMANGALAM, TIRUPUR DISTRICT