JAFCO TRADERS AGRA Vs. STATE OF U P

JUDGEMENT

(1.) A firm, named the - Indian Leather Board, Industries, carried on the business of manufacturing leather Board in a factory. On January 15, 1973 it executed a lease of the factory for a period of 11 months in favour of the petitioner. The lease deed provided for renewal for1 five years Accordingly, the petitioner renewed the lease in Novem ber, 1973 for another period of 11 months and we are informed that it was further renewed in November, 1974 for a further period of 11 months In the result the petitioner has an existing lease of the fac tory in his favour.

(2.) IT appears that the Indian Leather Industries had incurred some sales tax liability which they had to clear. The Sales Tax Depart ment lauched recovery proceedings against the defaulter. In the course of these proceedings three machines fixed in this factory were attached and were placed in the custody of a Supurdar. On April 5, 1964, the tax recovery officer directed the Supurdar to bring the at tached machines at the appointed time and date to the place of auc tion. In consequence, the Supurdar wanted to take away the ma chines. Aggrieved, the petitioner filed the present writ petition. His case is that these machines are permanently fixed on a deeply set foundation and cannot be removed or moved easily. They would have to be disentitled. The petitioner's case further that he is the lessee of the machines. He not having defaulted any payment of any dues, his rights, title and interest in the machines cannot be at tached of sold. At the most the Department can sell the title right or interest of the lessors who are defaulters in order to recovery the sale dues from them. In our opinioin the petitioner's grievance against the attempt of the respondents to remove the machines so as to sell them outright, is justified. It is apparent that the petitioner is a lessee, whose lease is still in force. He is entitled, under the lease, to be in exclusive possession of the machines and use them for his business purposes. The machines were attached after the petitioner had acquired lease-hold rights in the machines. The attach ment and sale proceedings will be subject to the petitioner's right, title and interest in them. Petitioner's case is that the attached machines are permanently fixed on solid foundations which are 8' to 10' deep. This fact is disputed in the counter-affidavit. But a peru sal of the description of the machines shows that they cannot be just removed. One of the machines is of 40 H.P., the other of 15 H.P. and the third is of 5 H.P. These machines cannot be treated as ordi narily moveable article, but the fact whether the machines are easily removeable or not is hardly material. So long as the petitioner has his lease-hold rights intact in the machines they cannot be sold out right and their possession cannot be given to the purchaser. The order passed by the recovery authority, directing the Supurdar to produce the machines at the appointed time and date for auction is clearly wrong and deserves to be quashed.