Janardan Sahai, J. - (1.) There were certain electricity dues against respondent No. 5 M/s S.K. Glass works. The dues were recovered as arrears of land revenue. Certain plant and machinery of S.K. Glass were brought to sale in an auction held on 29.5.2004. The petitioner India Casting & Krishi Udyog was the purchaser. The auction sale was confirmed on 23.6.2004. It appears that objections under Rule 285-I of the U.P. Z.A. & L. R. Rules were filed by the respondent M/s. S.K. Glass Works on 13.8.2004. The objections were allowed by the Commissioner, Varanasi Division by his impugned order dated 16.10.2004. The auction sale was set aside and it was directed that fresh auction sale be held. The Commissioner held that there was material irregularity in the publication and sale. He found that 30 days clear notice between the dates of the proclamation of sale and the sale itself was not given. This constitutes breach of Rule 285-A of the U.P.Z.A. & L.R. Rules. It was also found that the sale proclamation was published in an evening newspaper "Kashi Varta", which has scant circulation and that the valuation of the property was made by the P.W.D., which is not authorized to value plant and machinery. It was also found that the sale price was reduced on account arbitrary fixation of the price of a portion of the ; machinery released from the sale. Further the properties were mortgaged with the Canara Bank and no notice had been given to it. "I have heard Sri S.N. Singh on behalf of the petitioner and Sri Pankaj Mittal on behalf of respondent No. 5 and the learned Standing Counsel on behalf of respondents 1 to 4.
(2.) It appears that before the Commissioner an objection was raised by the petitioner auction purchaser that the objections under Rule 285-I of the U.P.Z. A. & L.R. Rules were not maintainable as the properties were moveable properties. The Commissioner has ret erred to this objection in his order but no finding has been given in this regard. The other submission raised by the petitioner's counsel is that the order passed by the Commissioner is an ex parte order and no opportunity was given to the petitioner. Learned counsel for the petitioner placed before me the release certificate dated.24.6.2004 issued by the Tehsildar in which reference is made to the property sold, which are described as moveable property. In the letter of the Tehsildar dated 1.7.2004 reference is made to an earlier letter dated 29.6.2004 directing that the moveable property be not removed. Reliance is also placed upon the admission made by the respondent No. 5 in paragraph 4 of the counter affidavit in which it is stated that movable property, plant and machinery were attached on 29.12.2003. In paragraph 30 of the counter affidavit the property has been described as plant and machinery. On this basis it is submitted by Sri S.N. Singh that there was ample material on the record to indicate that the properties, which were the subject matter of sale were moveable property. On the other hand it is submitted by Sri Pankaj Mittal, learned counsel for the respondent that the plant and machinery were embedded in the earth and was therefore immovable property. He relied upon the averments made in paragraph 4 of the application filed on 11.4.2005. which is quoted below; "The plant and machinery was installed on a concrete platform and was fixing to the earth by means of steel nuts and bolts, which were embedded to the earth about 8'-10' deep. "
(3.) The reply to this paragraph has been given in the rejoinder affidavit in paragraph 5 that it is moveable property, which was sold. The question as to whether the plant and machinery can be treated as immovable property was considered by the Apex Court in 1997 Vol. 10 page 82 Star Paper Mills Ltd. v. The Collector of Central Excise. It was held; "Apart from this finding of fact made by the Tribunal, the point advanced on behalf of the appellant, that whatever is embedded in earth must be treated as immovable property is basically not sound. For example, a factory owner or a householder may purchase a water pump and fix it on a cement base for operational efficiency and also for security. That will not make the water pump an item of immovable property. Some of the components of water pump may even be assembled on site. That too will not make any difference to the principle. The test is whether the papermaking machine can be sold in the market. The Tribunal has found as a fact that it can be sold. In view of that finding, we are unable to uphold the contention of the appellant that the machine must be treated as a part of the immovable property of the company just because a plant and machinery are fixed in the earth for better functioning, it does not automatically become an immovable property.";