Case: Municipal Corporation Of Greaterbombay And Anr Vs. Indian Oil Corporation Ltd

movable property or immovable property within the meaning of Section 3, Expl. 1 of the Transfer of Property Act. It was held in determining whether or not a transfer relating to an engine is a " transaction relating to immovable property regard must be had not merely to the nature of the attachment by which the engine is fixed on the ground but also to the circumstances in which it came to be fixed, the title of the person fixing it in immovable property and the object of the transaction by which the engine is transferred or bound. In that case the tenant himself fixed the machine. It was held that it was not an immovable property. Equally the ratio in Perumal Naicker v. T. Ramaswamy Kone and Anr., (1969) Mad. 346, also is not of much assistance to the respondent. The question there was whether the engine attached to the earth is immovable property. The engine fixed to the land was attach­ed to recover the arrears of the loan taken for its purchase. In that context it was held that it is a mixed question of fact and law and has to be decided in the light of particular facts in each case and no particular test could be formulaes but it must be considered in the context in which the question had arisen. The literal construction may not yield a proper and correct result. It must be decided in the light of the specific facts, the decision on the question should depend upon how the court, looking at the facts as a whole, feels on the matter. The degree, the manner and the strength of attachment of the chattel to the earth or the building, are the main features to be regarded. Attachment must 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 an attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached. In view of the fact that the engine, was fixed 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 so long as the engine is used and it would be detached and shifted to some other place. In that view of the matter it was held, it is not an immovable property. In Chaturbhui Morarji v. Thomas J. Bannett and Ors., (1905 (29) ILR. Bom. 323, the new shed, the fixture whether part of the lease was in question. It was held that the new shed as provided was not attached to the land and, therefore, it was not a part of the fixture. In J.H. Sinha v. Govindrao Bhiwaji and Ors., 1953(4) AIR Nagpur 224 the machinery belonged to (A) was erected on the land belonged to (B). The question was whether the machinery formed part of the land of (B). The Division Bench laid down two tests to determine whether it was attached to the land and thereby became immovable property, namely, the degree or mode of annexation and the object of annexation. Of the two tests the latter is the more important, and it is a question of fact to be determined upon the particular facts and circumstances of each case. In that case it was held that the (A) did not intend to annex the machinery to the land as a permanent attachment. Therefore, it was held that it is not an immovable property. This ratio in these cases is also not of any assistance to the respondent. 31. The tanks, though, are resting on earth on their own weight without being fixed with nuts and bolts, they have permanently been erected without being, shifted from place to place. Permanency is the test. The chattel whether is moveable to another place of use in the same position or liable to be dismantled and reelected at the later place? If the answer is yes to the former it must be a movable property and thereby it must be held that it is not attached to the earth. If the answer is yes to the latter it is attached to the earth. For instance a shop for sale of merchandise or eata­bles is a structure. The same could be sold by keeping in a push cart which has its mobility from place to place. Merely it is stationed at a particular place and business was carried on, it cannot be said that push court is a shop. The fact that no nuts and bolts were used to imbed the tank to the earth by itself is not con­clusive. Though the witness stated that the tank is capable of being shifted, as a fact the tanks were never shifted from the places of erection. By scientific process, the tanks stand on their own weight on the earth at the place of erection as a permanent structure.32. The petroleum products are being stored through pipes and are taken out by mechanical process. The operational mechanisation also though relevant, is not conclusive. The rateable is based on the rent, which the building or land is capable to fetch. Due to erection of the tanks whether the value of the demised property had appreciated or not, is also yet another consideration. Undoubtedly, when the tanks are erected and used for commercial purposes, the value of the demised property would get appreciated. The annual letting value is capable of increase. However, the rate of increase is a question of fact but the fact remains that the value of the land gets increased by virtue of erection of the storage tanks. Considering from this perspective we have no hesitation to hold that the petroleum storage tanks are structures or things attached to the land within the definition of Sections 3(s) and 3(r) of the Act. Thereby they are exigible to property tax.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]31. The tanks, though, are resting on earth on their own weight without being fixed with nuts and bolts, they have permanently been erected without being, shifted from place to place. Permanency is the test. The chattel whether is moveable to another place of use in the same position or liable to be dismantled and reelected at the later place? If the answer is yes to the former it must be a movable property and thereby it must be held that it is not attached to the earth. If the answer is yes to the latter it is attached to the earth. For instance a shop for sale of merchandise oris a structure. The same could be sold by keeping in a push cart which has its mobility from place to place. Merely it is stationed at a particular place and business was carried on, it cannot be said that push court is a shop. The fact that no nuts and bolts were used to imbed the tank to the earth by itself is notThough the witness stated that the tank is capable of being shifted, as a fact the tanks were never shifted from the places of erection. By scientific process, the tanks stand on their own weight on the earth at the place of erection as a permanent structure.32. The petroleum products are being stored through pipes and are taken out by mechanical process. The operational mechanisation also though relevant, is not conclusive. The rateable is based on the rent, which the building or land is capable to fetch. Due to erection of the tanks whether the value of the demised property had appreciated or not, is also yet another consideration. Undoubtedly, when the tanks are erected and used for commercial purposes, the value of the demised property would get appreciated. The annual letting value is capable of increase. However, the rate of increase is a question of fact but the fact remains that the value of the land gets increased by virtue of erection of the storage tanks. Considering from this perspective we have no hesitation to hold that the petroleum storage tanks are structures or things attached to the land within the definition of Sections 3(s) and 3(r) of the Act. Thereby they are exigible to property tax.