S. NAGAMUTHU, J.

Introductory

1. Whether a wind mill sold as a running out along with the immovable property, where the Wind Electric Generators were erected and shown as an item of property in the registered sale deed would fall within the definition "Immovable Property" for assessing the stamp duty, treating it as a "Conveyance" under Entry 23 of Schedule I of the Indian Stamp Act 1899 is the substantial issue raised in the intra court appeals, filed by the Inspector General of Registration, Government of Tamil Nadu.

Factual Background to the Litigation

The respondent in the respective appeals (hereinafter referred to as "the respondents") are sister concerns based at Tirupur. The respondents purchased 4 Windmills erected by M/s. Vishal Export Overseas in various villages in Udumalpet Taluk, Coimbatore District. The respondents purchased the windmills along with the immovable property. The respondents made payment to the windmills and obtained receipt. The respondents prepared Sale Deeds relating to the respective immovable property indicating the land value. However, in the Schedule to the documents, windmills were also shown as the transferred property. Similarly, in the signed statement given under the Stamp Act, the respondents have indicated the value of windmills. The Sub-Registrar therefore directed the respondents to pay the Stamp Duty taking into account the total value of the transfer. The respondents paid the Stamp Duty and got the documents registered. Thereafter, the respondents submitted petitions for refund of the excess amount on the ground that windmill is only a movable property and therefore, there is no liability to pay Stamp duty for the value shown for the windmills. The petitions were rejected. The related writ petitions were allowed by the learned single Judge by giving a finding that the windmill is a movable property and therefore, Stamp Duty is not payable on its value. The common order passed by the Writ Court is the subject matter of the appeals.

Submissions

2a. The learned Advocate General by placing reliance on Section 2(6) of the Registration Act, 1908, Section 3(4) of the Transfer of Property Act, Entry 23 of the Schedule 2 to the Stamp Act and Section 3 of the said Act, contended that windmill is permanently embedded in the earth and therefore, Stamp Duty is leviable on its sale value. It was contended that the windmill and immovable property were sold together. The fact that two agreements were executed, one for windmill alone and another for immovable property does not matter much. Since the value of the mill is included in the document, and windmill was shown as a transferred item, stamp duty was correctly levied by the Sub-Registrar.

b. The learned Senior Counsel for the respondents contended that windmill is only a movable property. It is not permanently attached to the property for the beneficial enjoyment of the immovable property. The respondents initially cleared the loan taken by the vendor for establishing the windmills. Thereafter, the lands were purchased. The two transactions were altogether different. According to the learned Senior Counsel, the fact that the windmills were shown in the Schedule to the Sale Deeds relating to the land would not make it an immovable property.

Discussion

3. There were four writ petitions before the Writ Court challenging the order passed by the Inspector General of Registration. The vendor was one and the same in all the documents of sale executed in favour of the respondents. The purchasers are also the sister concerns. The learned single Judge, taking into account the common facts involved in all the writ petitions took W.P. No. 4434 of 2009 as the lead case. We are also taking the facts of W.P. No. 4434 of 2009 corresponding to W.A. No. 1310 of 2013.

The Lead Case

W.A. No. 1310 of 2013

4. The respondents in this appeal purchased the windmills erected and operated by M/s. Vishal Exports Overseas Limited, Ahmedabad. The value of the windmill was p