Judgement

Consolidated Appeals (Nos. 35 and 36 of 1926) from two decrees of the High Court (December 5, 1924) affirming awards of the Tribunal constituted under the Calcutta Improvement Act (Ben. Act V. of 1911), s. 70.

Under the Act above mentioned the Improvement Trustees have power, with the sanction of the local Government, to acquire land in Calcutta, needed for the purposes of the Act, by proceedings under the Land Acquisition Act, 1894. Proceedings were taken as to land of which the respondents were tenants, and upon which there was certain machinery.

By s. 2 (q) of the Act of 1911 " land " in the Act has the same meaning as in the Land Acquisition Act, 1894, which defines it by s. 3 (a) as follows " The expression land includes benefits to arise

Law. Rep. 54 Ind. App. 187 ( 1926- 1927)

Secretary of State v. Tarak Chandra Sadhukhan 54

out of land, and things attached to the earth, or permanently fastened to anything attached to the earth."

The machinery constituted an oil-mill plant which had been installed in the premises by a previous tenant about twenty-five years previously. It consisted of a boiler, an engine with water heater, 112 ghannies, a forge, and a lathe. The boiler stood on masonry and was built round almost to the top with masonry walls, having flues at the top and sides. The engine was fixed to a masonry foundation by bolts, plates, and nuts. The heater was placed on a foundation without bolts, but was connected with the engine. Each ghanny consisted of a revolving mortar on an iron pedestal with a connected pestle; the pedestal was fixed by bolts to a foundation of wood embedded in masonry. The machinery could be removed for the purpose of repairs, or in the case of the boiler, for statutory inspection.

The President of the Tribunal by his award, from which the above statement of the facts is extracted, held that the machinery was "land" within the definition, as it was "permanently fastened to things attached to the earth." He said that the decisions in Indian cases were in favour of the claimants. Undoubtedly the machinery, other than the boiler, would be in English law fixtures removable by a tenant, but that question stood upon a different footing. He accordingly excluded the value of the machinery from his award.

Leave to appeal to the High Court was granted under s. 3 of the Calcutta Improvement (Appeals) Act, 1911; the appeals, which were heard by Chatterjea and Panton JJ., were dismissed.

The present appellant applied for a certificate, under s. 109 of the Code of Civil Procedure, that the case was a fit one for appeal to the Privy Council. The respondents opposed the application, contending that no appeal lay. The application was heard by Sanderson C.J and Walmsley J., and by a judgment delivered by the Chief Justice on May 29, 1925, was granted.

The present appeal originally came on for hearing by the Judicial Committee on February 17, 1927, when a preliminary point was taken on behalf of the respondents that ss. 1 and 2 of the Land Acquisition Amendment Act, 1921, were not applicable, and that no appeal lay to the Privy Council. Counsel were heard on both sides. Their Lordships reserved their judgment, but before judgment was delivered the appeal was heard on the merits.

1927. March 3. Dunne K.C., and Kenworthy Brown for the appellant. The true test whether the machinery was "permanently fastened" was not the nature of the fastening, but whether it was intended to make it part of the premises permanently. That view is supported by Macleod v. Kikabhoy (( 1901) I. L. R. 25 B. 659.), which dealt with a definition similarly worded. The evidence shows that the intention was that the machinery should be removable, and that it could be moved for repairs and inspection.

De Gruyther K.C. and Parikh for the respondents were not called upon.

The judgment of their Lordships was delivered by

VISCOUNT DUNEDIN. This is really a most hopeless case for appeal. Their Lordships do not think it necessary to add an