ALLENBURRY ENGINEERS PRIVATE LTD . versus RAMAKRISHNA DALMIA & ORS.

ALLENBURRY. ENGINEERS PRIVATE LTD .

RAMAKRISHNA DALMIA & ORS.

· : September 15, 1972 SHELAT, D. G. PALEKAR, K. K. . AND Y. v: CHANDRACHUD, JJ.]

[J. M. SHELAT, D. G. PALEKAR, K. K. MATHEW, S. N. DwIVEDI

Transfer of Property Act-S. 106 and 101-Meaning of the word "1\Janufacturer-Whether lease for reconditioning and repairing vehicles is ntc.nufaclure within s. 106.

. ln 1953, an open piece of land in the city of Bombay belonging to Sir Sapurji Bharucha Mills Co. Ltd., was"purchased by Bharat Insurance Co. Ltd. In 1947, the said piece of land was leased to Allenberry & Co. on monthly rent of Rs. 1800/-. In 1950, the appellant Company was in-corporated for the specific purpose of taking over the business of A!len-berry & Co. In 1954, the appellant Company occupied the said leased land as tenant together with certain vehicles belonging to· the said Allen-berry & Co. at an agreed rent of Rs. 1800/- per mensem. document of lease _was executed by the -parties for ten_ years. The document \Vas -not, however, registered with the result that it could not be tendered in evidence as one creating lease. ·

On January ·20, 1960, the Bharat ·Insurance Co. served notice upon the appellant Company terminating the· tenancy and called upon the Company to hand over quiet and vacant possession of the said land or part of it .. Later, suit was filed in the Court of Small Causes at Bombay, and after nationalisation, the L.l.C. was substituted for that of the Bharat Insurance Co. as the plaintiff in the said suit. It was con-tended by the appellant that since the tenancy was for manufacturing pUrpo-ieS, one month's- notice terminating the: telnancy was an invalid notice under s. I 06 of the Transfer of Property Act. All. the three Courts bclrnv, however, concurrently held that the tenancy was not satisfactorily proved com~any to and in the absenbe for manufacturing 1ce of any proof purposes as alleged by the appellant as to the terms for \vhich it Wai made; the notice terminating the tenancy,' although it was 'month's notice, was valid notice and on that footing, decreed the- suit. TYoo · questions were raised before this Court: (I) That the tenancv being for manufacturing purposes, the presumption laid down in S. 106, Trans-fer -Of Property .Act under which .such tenancy has_ to be, regarded as tenancy -from year ·to year, terminable b}r a• six· months'· noticft and not by month's notice,. must. apply. (2) The second question Wa3 that in any event, the lease · w$ for manufacturing purposes, 'and therefore, . the saiJ notice .. was not valid., Dismissing the appeal.

. ' ' • . ~ -• ' ' ' ' I .-' ' ' , ' , ' : '. • : ' HELD : ( 1) The expression "manufacturing purposes"' in S. 106 of the Transfer of Property. Act is used in its popular and dictionary mean- . ing. · ThC' burden 'of proving that the lease \\'as for manufacturing pur· posco lie on the appellant company who claims it to be so. That burden i3 to establish ,that· the exclusive or the dominant purpose _of the lease '!fa• the manufacturing purpose. [2610]

C. Mack;rtich,v. Stuart & Co. Ltd.,"A.l.R. 1970 .S.C. 889,..referred to.

: ·(iii ~Th~ :Wofd "~~~Ura'~tur~··,. ~ccording: i~ the dictio~ary . meaning, is the making of articles or material by· physical labour or mechanical power: "Manufacture"' implies 'change, but every change is not manu-18-L348Sup.C.I./73

[1973] 2 S.C.R.

facture. a'nd · c\·ery · change' • :-1 . . , : ·1•: in'· ,J' an · · .. ' article ' : .. '·!· 1s' 'the ·result o'f' treatnient, labour and manipulation. But something more i'i necessary and th,re ·must be transform1tion; new and d;fferent article must emerge ha.ving: .a distinctive name; character' 3.nd use.· [261FJ ·: . . / ,;

R. v. Wheeler, 2 R. ALD .. 349 rderred 10-:·'

. f; .- r

. : _; / . .I . i . i . I

. . . , , (iii) The disputed pr_cmises, \Vere used mostly for Storing the Jispo-sal vehicles together ·with spare parts' etc., acquired along with th.em or purchased from the market, for. repairing and. reconditioning and making the said vehicle fit for resale. There is .. no evidenc(f except the bare word of one witness that parts such as chassis and bodie:i. etc., \verc actually manufactured and replaced .for the old. No books of accourit or log books showing· the work ·carried on the premises or other docu-inents were produced. which would throw' light!_ on the activities carried on the premises., Even· if the evid·ence of 'the Said witness· \Vere accept-· ed. in toto, and ~t ·is. held that _som'e·spare·parts were being manufactured for repairing.· or reconditioning' the vehicles,' the' dominant' purpoge of ·the ifz..-ie would still· haVC' tO be~regarded as; one' for stOrage 'and resale :o_f _the ·vehicles and not 'for manufacturing purpose. l\fanufacturing . or spare· parts wOuld then~ be rrierely incidental to-the main :purpOie- of dis;-posal of these vehicles.·· Therefore, the appellants have failed to ·establish that the domioant purpose Of the lease was manufacturing purpose and therefore, the appellants could not have challenged the legality of the . notice. That being the position, it is not necessary to go into the question whether S,. 107 has an impact ori, _S. 106 of .the Tra.nsfer of Property Act. ·. · .· .... ·: .:. ~--:. _ .. ,.,,. [265-D]

C1~1L ·APPELLAT~:JURISDICTION: .Civil Appeal No. 1072 of · 197 L.. ·' " · " · . ,. ,. '· .l

.Civil Appeal No. 1072 of · 197 L.. ·' " · " · . ,. ,. '· .l '. . · : Appeal by: special leave ·froffi" i!ie judgment and order dated . . June 16, 1971 of the Bombay High Court in Special Civil Applica-tion No. 1604 of 1969. · M. C. Chagla, R .. R. · Zaiwal~, P. C; Bhariari and Ravintler NRrain, for the appellant. · · 'V. M. Tarkuride, Madan Gopal Gupta, n;·s. Slwrma, R'unesh-,.Jl'ar,,'Dial, P. N. Chadha and B. D. Sharma, for respondent No. 1. . . . The J udgmenl of the Court was delivered by '' Shelat, J. This · appeal, by special !_eave, is against th.: judgment of th~ High Court of Bombay. When the special leave was granted, it was confined to the question whether the tenancy in favour of the appellant-company was one for' ' manufacturing purpose, and if it was so, whether the notice terminating the tenancy wa~ inadequate ? ·' · · · ·

' The appeal fi~st reached h~ring before 'a Division Be~'ch of this Court. At that tune, the partir..s were agreed. that the re-. lationship between them was that of· landlord and tenant. But

.ALLENBURRY v. DALMIA (Shelat; J.)

the case N the appellant-company was that the kase in its favour was for·a period of ten years,_that such lease was for manufac-turing purposes, and therefore, could not be validly terminated by month's notice. The respondents, on tfie other hand, contended that the lease was by an unregistered document, and iliat it was not a. valid lease by reason of the provisions of ss; 106 and 107 of the Transfer of Property. Act. . The Division Bench did not go into·· the question whether::t]Je lease was for manufacturing purpose9. or not: However, · the Division -Bench felt that the appeal raised important· questions as to the impact of s. 107 upon s. 106 of-the Act, and there being so far no decision of.o this Court upon such question. referred th.~ appeal to -a larger Bench. That is now the matter has come up before . .. , . _us. '

.The premises . with which we are presently concerned consist of an open piece of land adjoining Haines Road in the. city of Bombay. Prior to 1963, the said piece of land belonged to company called' Sir Shapurji Bharucha Mi,Jls Co. Ltd. 'fn 1953, the said piece of land was· purchased by Bharn:t Insurance o, Co. Ltd. It appears that in, 19.47' the said piece of land was leased. to Allenbury & Co. on monthly rent of Rs. 1800/-where· the Jessee kept number _of American vehicles used by the army during 'the Second. World. War and purchased by· that company from the Disposal Department of the Government of India. In or about .1950, the appellant-company· was incorpo-rated .for the-sp.~cific pllrpose of talcing over .the · business of Allenbury & Co ... together with all its assets and properties in-cluding the said vehicles.. In 1954, the appellant-company occupied the said leased land as tenant together with such of the said vehicles remaining undisposed of till then at an agreed rent of Rs.' 1800/- month: · It is not in dispute that at that time document of lease was executed .bY the. parties; which according to the appellant-company. provided for lease . for .. ten ·years. _ Tre document was, however, ,not re)tistered with the result that it could not be tendered in evidence as one, creating lease. .There .was, however, no dispute.between the . parties that . the , appellant-G · company paid and the respondents- acc..."Pted all throughout rent from the appellant-company at the aforesaid agreed r:rte of Rs. 1800/- month. On January 20; 1960, the Bharat Insu-rance Co. Ltd. served notice upon the appellant-company thereby ·terminating the tenancy and called upon it to hand over quiet and vacant possession of the said premises on -the ground that the. app~llant-company had· sub-let the said· land or part of it. The appellant-company having failed to abide by that demand, suit was filed in the Court of Small Causes at Bombay. On the nationalisation of the Life Insurance Companies and on the

Life Insurance Corporation of India being set up, the name of that Corporation was substituted for 'that of the Bharat Insurance Co. as the Plaintiff in the said suit The suit was henceforth continu.ed by the Corporation.

Although . the unregistered document could not go in evi-dence, the suit as well as the appeal arising therefrom before the., Appellate Bench of the Small Causes Court proceeded on 1the basis that the relationship between the parties w1ts that of landlord and tenant as there was no dispute that the occupation of the premises in question by the appellant-company was as tenant irrespective of wh~ the terms or the period of tha!t tenancy were, which terms could not be /proved as the· docu-:nent in respect thereof could not be brought on record by reason of its being an· unregistered document. The Special ·Civil Application under Art. 227 of the Constitution filed ·in the Hi'gh Court against the judgment of the Small Causes Court and confirmed by its Appellate Bench, also proceeded on the assumption that the relationship b.etween the parties was that of landlord and tenant. All the three courts concurrently held that the tenancy, whatever its terms were, was not satisfactorily proved to be .for manufacturing purposes ·as alleged by the appellant-<:ompany and in the absence of any proof as to the term for which it was made, whether it was for ten years or from year to year, the notice t~rminating the tenancy and calling upon the appellan'l-company to deliver vacant possession, al-though ;t was month's notice, was not an invalid notice and on that footing decreed the suit.In ithese circumstances, two questions were sought to be raised by Mr. Chagla. The first was that there being no dis-pute between the parties that the relationship between them was that of landlord and tenant and 'the respondents having accepted all along the said rent of Rs. 1800/-a month, the Cour't must proceed upon the basis that the occupation of the premises by the appellant-company was in the capacity as tenant. According to him, if the appellant-company. can estab-lish that. that (enancy was for manufacturing purposes, the. pre-sumption laid down in s. 106 of the Transfer of Property Act, under which such tenancy has to be regarded as tenancy from year to y,ear terminable by s!x months'. notice and not by month's notice, must apply. It 1s true, said he, that under s. 107 of the Act lease fron1 year to vear can be made only by registered instrument, but that provision in _no way co':1tro~s the presumption laid down in s. 106 u~~er wluch once 1t 1s proved that the parties were in the position o~ landlord an? tenant and the tenancy was for manufacturmg purpos~s. 1t has to be presumed to be one from year to year. Accordmg to him, the. two sections are independent of each other. the one

dealing with the user and notice, and the presumption arising from such user, and the other dealing with compulsory registra-tion for lease from year 'lo year, oi: for term exceeding one year. Mr. Tarkunde, appearing f.or the Corporation, on the other hand, disputed the construction of. these two sections sug-11;ested by Mr. Chagla. The second question raised by Mr. ChaJ!:)a was that in any event the lease was for manufacturing purposes, and therefore, the .said notice was not valid. Assuming that Mr. Chagla is right in the interpretation of ss. l 06 and 107 suggested by him, even then the appellant-company has first to establish that the lease in its favour was for manufacturing purposes and it is then only that it can take advantage of the rule of presump'tion laid down in s. 106.

•The expression 'manufacturing purposes' in s. 106 is used in its popular and dictionary meaning, the Transfer of Property Act not having supp~ied any dictionary of its own for that ex-pression. The burden of proving that the lease was for manu-facturing purposes, must for the purposes of s. 106 of the Trans-fer of Property Act, lie on the party who claims it to be so, in the present case the appellant-company. That burden is to estab-lish that the exclusive or at least the dominant purpose of the lease was the manufacturing purpose. [See C. Mockertic/1 v. Steuart & Co. Ltd.(')].

The word 'manufacture', according to its dictionary meaning, is the making of articles or material (now on large scale) bf physical labour or niechanical power. (Shorter Oxford English Dictio11ai·;'. Vol. I, 1203) According to the Permanent Edition of Words and Phrases. Vol. 26, 'manufacture' implies change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary and 1there must be transforma-tion; new and different article must emerge having ·a distinc-tive name. character or use. "The word 'manufacture' " said Abbott, C.J., in R. v. Wheeler(') "has been generally under-stood to denote, either thing made which is useful for its own sake and vendible as such. as medicine, stove. telescope, and many others; or to mean an engine or instrument, or some part of an engine or instrument, to be employed either in the making of some previously known ar'ticle, or in >Jme other use-fr l ourpos-e. as stocking frame, or steam engine for raising water from mines; or, it may perhaps extend also to new process to be carried on by known implements or elements ·acting

(1) A.I.R. 1970 S.C. 839.

upon known substances, and ultimately producing some other .~nown substance bu't producing it in cheaper or more expechtio1;1s manner, or of better or more useful kind. No more philosophical or abstract principle can answer to the word 'manufactures'. Something of corporeal and substan-tial nature-something that can be made by man ·from the matters subjected to his art and skill, er at the least some new mode of employing practically his art and skill,. is required to satisfy the word". In South Bihar Sugar Mills v. Union of India,(') the Act with which the Court was concerned was the Central Excise and Salt Act, 1944, which furnished no special definition of the word 'manufacture'. The question can canvassed there was whether carbon dioxide, one of the constituents of kiln gas produced as one of the processes necessary for refining sugar, could be said to. have been manufactured, quite apart from the manufacture of sugar itself. This Court held that what was produced was kiln gas, compound of different gases and not carbon dioxide, 'though it was one of the different gases which made up kiln gas and therefore did not attract item 14-H in the Schedule to the Act. Since the Excise durty was Ieviable under the Act on manufacture of goods, the Court explained the connotation of the word 'manufacture'. In so aoing, the Court said _that the word 'manufacture' implied change, but that mere change in the material was no't manufacture. There must be such transformation that new and different article must emerge having distinctive name, character or use. This was also the meaning given to the word 'manufacture' in Union of India v. Delhi Cloth & General Mills(2). notification issued by the G0vernment of U.P. under s. 3A of the U.I>. Sales Tax Act, 1948 declared that the turnover in respect of medicine and phannaceuticai preparations would not be liable to tax except (a) in the case of medicine and pharmaceutical preparations imported into U.P., and (b) in the case of medi-cines and pharmaceutical preparations manufactured in U.P. The question was whether, when in dispensary medicines and pharmaceutical. preparations,, as prescribed by doctor, are mixed, the process of mixing results in manufact~re of medi-cines. The question was answered in the negative on the ground that when mixture of di~erent dr1;1~s, as pres_cribed by doctor, is prepared by med1~al p;actlt10ner or hts em-ployee, especially for the uSe of patient m the .treatment. ?f an ailment or discomfort diagnosed bv such medical praCltttioner by his professional skill, and which mixture is normally: incapa-ble of being passed· from hand to han~ as com~~rcial com-modity, the medical practitioner supo.1".mg the med1c!ne cannot be said to be manufacturer of med1cme and the mr!l:lure can--(1) [19 6 8] 3 SCR . . . 21 . (2) [1961] Sup\>. 1 S.C.R. 586.

not be said tQ. be manufactured within the meaning of the noti-fication.. In all these cases the statute or fae notification con-cerned did not furnish any artificial meaning to the expression 'manufacture' and the Court applied, therefore, the ordinary meaning· as commonly understood to that expression. The ex-pression 'manufacturing purposes' in s. 106, thus, means pur-II poses for maldng or fabricating articles or materials by physical labour, or skill, or by mechanical power, vendible and useful as such. Such making or fabricating does not mean merely chan11e in an already existing article or material, but transform-in.2 it into different article or material havini!. distinctive name. character or use or fabricating previously known article by novel process. The two cases cited by Mr. Chagla, viz., Sedgwick v. Wat11ey, Combe, Reid and Co. ( [1]) and Action Borough Coun-cil v. West Middlesex Assessment Committee('). would not be of assistance as the question there discussed was not as to the meaning of the word 'manufacture', but whether the premises in question were industrial hereditaments within the meaning of s. 3 c[ the Rating and Valuation (Apportionment) Act, 1928. Likewise, decisions given by courts on the word 'manufacture' occurring in different statutes would not be of assistance where the siatute concerned gives an artificial meaning or special definition.

Bearing in mind the connotation of the word 'manufac-ture· as understood in the decisions above-cited, we have to a!lCertain whether the appellant-company could be said to be cam·ing on qperations in the premises in question which could properly be called manufacturing operations. On this QUl'.-stion, the evidence on record is general character and almost meagre in quantum. Wit. Choradia, who was the managing director of the Bharat Insurance Co. between 1950 to 1954 and who used to reside in Delhi where the company had its headquarters. but occasionallv used to visit its branch in Bombay. deposed that after the ····cmises in question were purchased in 1953 by his company ; rom. Sir Shapurji Bharucha Mills, he visited them and found them to comprise an open land with sheds and godown. There were lying there army automobiles, jeeps etc., but he did not notice at that time any manufaClturing process going on. He a.gain visited the premises in 1954 when also he found no manufacturing operations going on Wit. V. G. Kannan was an accountant in Allenbury & Co. Ltd. He used to go to the premises in 1950 and 1951 to pay wages to the workmen engag_ed there by his cqmpany. The premises had workshop, godownand small office and the rest was open land. The company wound up its business in 1950, but there were lying in the pre-mises steel racks belonging 'to his company, to inspect which he had to go there on several occasions. He also said that he did not see any manufacturing pror.esses going on except that the workshop was used for repairing [1]the disposal vehicles lying stored there. This was the position till July-August 1954 and till then there was no change in the user of the premise>. Wit. J. P. Jain examined by the appellant-company was the Central Manager of the Bombay oranch of Allenbury & Co. from 1946 to 1950. Thereafter he became the managing director -0f the appellant-company. According to him, Allenbury & Ce>. Ltd. had in 1948 purchaSl'..d disposal vehicles which were stored for :;ale in the premises in question. The vehicles were in damaged condition when they were purchased. In some cases chassis were missing or they w~re bent or broken; most of the parts were broken and missii1g. These used to be repaired and then sold. The company had put up workshop where these vehicles were repaired, recondition.:<! and painted before they were sold. The repairs, accordin.e: to him, involved in some cases mald!lA" oi new bodies and new parts. For that purpose, the appellant company had to have in the worshop lathes, drill machines, velders etc. and had employed some 200 to 250 workmen. Whe.1 the appellant-company took ovenhe t«isiness of Allenbury &:: Co. Ltd. ill 1950-51, there were in all 189 vehicles of different types in the suit premis.;s. The working. he said, of overhauling. reconditioning and repairing these vehicles went on until 1957 when recondition-ing of vehicles stopped presumably because the vehicles were sold out. The premises had on them servicing station also with trench in the centre for washing the vehicles and where spare part needed for repairs used to be stored. There was also an office and store room where spare parts, oils and other stores purchased locally were kept. He denied that the premises were used only for repailing lhe vehicles. Besides his oral testi111ony, there is one letter on record written by this witness to Allenbury & Co. Ltd .. dateu November 21, 1950 giving details of stocks lying on these premises when that company's business was t:ii(en over by the appellant-company·; The schedule to this letter gives particulars of these stocks. viz., 182 vehicles of different types. stores, accessories. spare parts purchased from the market or the Disposal Directorate. tools and other workshop equipment and three cars. under repairs. The schedule shows that the premises were used till then for storin)l; the Disposal vehicles, to)l;ether with snare· parts etc. acquired along with them or purchased from th6, market for repairing and reconditioning and making them lit for resale. There is no evidence except the bare word of ~t. Jain that parts such as chassis and bodies etc. were actuallv manufactured and replaced for 'the old. Nci books of accoun-t

or log books showing the work carried on on the pre-mises or other docl!ments were produced which would throw light on the activities carried on tt.e premises. Even if the evidence of Jain were accepted in toto, and we were to find _ that some spare parts were being manufactured for repairing or reconditioning the vehicles, the dominant purpose of the lease 8 would still have to be regarded as one for storage and resale of the vehicles and not for manufacturing purposes. Manufacturing of spare parts would then be merely incidental to the main pur-pose of disposal of these vehicles as without repairing or recondi-tioning them, such disposal could hardly have been possible. In our opinion, the appellants failed to establish that the dominant purpose of the lease was manufacturing purpose. In that view. the appellants could not have challenged the legality of the notice. The Hi~ Court, therefore. wa5 ri~t in 'the conclusion. it arrived at and no reason has been shown justifying ou1 interference witll it. That being the position, it is not necessary to go int.a the question whether s. 107 has any impact on s. 106 of the Transfer of Property Act, question which the Division Bench, while referring this appeal to larger Bench, though .the appeal raised. For the reasons stated above the appeal fails and is dismiss-ed with costs. Mr. Chagla appeal.~d to us that some time may be given to the appellant-company for vacating the premises in question as, according to him, there are some machines still lyin2 on the premises which will have to be removed. We give the company one month's time t'rom today for vacating and giving quiet possession to the respondent.

ppea/ dismissed.