Sureswar Pandit and anr. Vs. Smt. Asma Khatoon and ors. (Legal Heirs of Sole Defendant) - Court Judgment

Excerpt:
- - 1 as well as other persons. j.n. sarma, j. 1. this second appeal has been filed by the defendant. the only question in this second appeal is whether the notice issued under section 106 is a valid one. the suit was filed for ejectment and in paragraph 2 of the plaint it has been stated as follows : 'that about 14/15 years ago, the defendant no. 1 came to occupy the suit land to do business of pottery, by paying monthly rental of rs. 40/- with assurance that he could construct 'kutcha' houses on the land at his own costs and shall remove the said structures at his own costs and shall give vacant possession thereof as and when required by the plaintiff. 2. in the notice which is ext. 1 it has been stated as follows: '.......where you have a katcha thatchedhouse constructed with bamboo posts and bamboo walls. you have run your pottery business there since many years, by payingmonthly rental of rs. 40/- per month.' 3. it is an adnuted position that pottery business is a manufacturing process. what is manufacturing process came up for consideration in air 1982 sc 127 (idandas v. anant ram chandra phadke), wherein the supreme court held as follows (at p. 129 of air): 'it is for determining whether a lease is granted for purposes of 'manufacturing process' are as follows: (i) that it must be proved that a certain commodity was produced; (ii) that the process of production must involve either labour or machinery;- (iii) that the product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. in other words, the commodity should be so transformed as to lose its original character.' 4. the supreme court in that case considered the decision of air 1973 sc 425 (allenburry engineers private ltd. v. ramakrishna dalmia), where the supreme court pointed out as follows (at p. 427 of air): 'the word 'manufacture' according to its dictionary meaning, is the meaning of articles or material (now on large scale) by physical labour or mechanical power. according to the permanent edition of words and phrases vol. 26 'manufacture' implies a 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 there must be transformation; a new and different article must emerge having a distinctive name character or use.' 5. the supreme court also considered other cases and laid down the law as follows : 'to manufacture, according to its dictionary meaning means 'to work up materials into forms suitable for use'. the word 'material' does not necessarily mean the original raw material for a finished article may have to go through several manufacturing processes before it is fit and made ready for the market. what is itself a manufactured commodity may constitute a 'material' for working it up into a different produce. thus, for example for the tanner, the material would be the raw hide, but the leather itself a manufactured article would constitute the material for the shoemaker's business, and we cannot say that the shoe-makers are not manufacturers because they do not work on raw hides'. 6. so, it cannot be denied that pottery business is a manufacturing process. admittedly the lease was for a manufacturing process and in that view of the matter there must be a notice under section 106 for 6 months and in the instant case the notice ext 1 is not a valid one. that being the position, the suit of the plaintiff is liable to be dismissed on this ground alone. accordingly, the second appeal is allowed and the suit is dismissed. 7. i have heard mr. d.c. mahanta, learned advocate for the appellant and mr. p.c. gayan, learned advocate for the respondent. 8. mr. gayan contends that the original tenant, i.e. defendant no. 1 is not in the site and has left for bihar and defendant no. 2 is his son and defendants nos. 3 and 4 are his brothers. mr. gayan further contends that these persons are not entitled to notice under section 106. these contentions of mr. gayan cannot be accepted as the suit was filed against defendant no. 1 as well as other persons. i leave the parties to bear their own costs.

Judgment:

J.N. Sarma, J.

1. This second appeal has been filed by the defendant. The only question in this second appeal is whether the notice issued under Section 106 is a valid one. The suit was filed for ejectment and in paragraph 2 of the plaint it has been stated as follows :

'That about 14/15 years ago, the defendant No. 1 came to occupy the suit land to do business of pottery, by paying monthly rental of Rs. 40/- with assurance that he could construct 'KUTCHA' houses on the land at his own costs and shall remove the said structures at his own costs and shall give vacant possession thereof as and when required by the plaintiff.

2. In the notice which is Ext. 1 it has been stated as follows:

'.......where you have a katcha thatched

house constructed with bamboo posts and bamboo walls. You have run your pottery business there since many years, by paying

monthly rental of Rs. 40/- per month.'

3. It is an adnuted position that pottery business is a manufacturing process. What is manufacturing process came up for consideration in AIR 1982 SC 127 (Idandas v. Anant Ram Chandra Phadke), wherein the Supreme Court held as follows (at p. 129 of AIR):

'It is for determining whether a lease is granted for purposes of 'manufacturing process' are as follows:

(i) That it must be proved that a certain commodity was produced;

(ii) That the process of production must involve either labour or machinery;-

(iii) That the product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words, the commodity should be so transformed as to lose its original character.'

4. The Supreme Court in that case considered the decision of AIR 1973 SC 425 (Allenburry Engineers Private Ltd. v. Ramakrishna Dalmia), where the Supreme Court pointed out as follows (at p. 427 of AIR):

'The word 'manufacture' according to its dictionary meaning, is the meaning of articles or material (now on large scale) by physical labour or mechanical power. According to the permanent Edition of Words and Phrases Vol. 26 'manufacture' implies a 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 there must be transformation; a new and different article must emerge having a distinctive name character or use.'

5. The Supreme Court also considered other cases and laid down the law as follows :

'To manufacture, according to its Dictionary meaning means 'to work up materials into forms suitable for use'. The word 'material' does not necessarily mean the original raw material for a finished article may have to go through several manufacturing processes before it is fit and made ready for the market. What is itself a manufactured commodity may constitute a 'material' for working it up into a different produce. Thus, for example for the tanner, the material would be the raw hide, but the leather itself a manufactured article would constitute the material for the shoemaker's business, and we cannot say that the shoe-makers are not manufacturers because they do not work on raw hides'.

6. So, it cannot be denied that pottery business is a manufacturing process. Admittedly the lease was for a manufacturing process and in that view of the matter there must be a notice under Section 106 for 6 months and in the instant case the notice Ext 1 is not a valid one. That being the position, the suit of the plaintiff is liable to be dismissed on this ground alone. Accordingly, the second appeal is allowed and the suit is dismissed.

7. I have heard Mr. D.C. Mahanta, learned Advocate for the appellant and Mr. P.C. Gayan, learned Advocate for the respondent.

8. Mr. Gayan contends that the original tenant, i.e. defendant No. 1 is not in the site and has left for Bihar and defendant No. 2 is his son and defendants Nos. 3 and 4 are his brothers. Mr. Gayan further contends that these persons are not entitled to notice under Section 106. These contentions of Mr. Gayan cannot be accepted as the suit was filed against defendant No. 1 as well as other persons. I leave the parties to bear their own costs.