NEW MANEK CHOWK SPINNING AND WEAVING MILLS CO. LTD. AND ORS. versus MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD AND ORS.

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NEW MANEK CHOWK SPINNING AND WEAVING

MILLS CO. LTD. AND ORS.

v. MUNICIPAL CORPORATION OF THE CITY OF

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AHMEDABAD AND ORS. February 21, 1967

[K. SuBBA RAO C. J., J. C. SHAH, J. M. SHELAT, V. BHARGAVA

AND G. K. MITTER, JJ.]

Bombay Provincial Municipal Corporation Act ( 49 of 1949)-Levy of pr()[Jerty tax on textile rate per 100 sq. ft. of floor areas-Method whether permissible under Act-Whether violative of Constitution of India, Art. 14-Machinery specified by Commissioner to be included in the term 'land' for the purpose of taxation-Rules 7(2) and (3) giving power to Commissioner to specify such machinery without giv ing guidance-Rules whether suffer from excessive delegation.

factories a~ fl.at

The petitioners were certain textile mills of Ahmedabad. They

filed writ petitions under Art. 32 of the Constitution against assessment to property tax by the Corporation of the City of Ahmedabad under the provisions of the Bombay Provincial Municipal Corporation A~t, 1949. ( i) The method of The following contentions fell for consideration : adopting a flat rate for a floor area for determining the annual value adopted by the Corporation was against the provisions of the Act, as well as against all recognised principles of valuation for the purpose of rating; it was also violative of Art. 14; (ii) Rules 7(2) and (3) made under the Act gave unguided power to the Commissioner to specify machinery to be treated as part of the 'land' for the purpose of taxat:on and therefore were bad due to excessive delegation. They also fell beyond the ambit of Entry 49 of List II of the Seventh Schedule.

HELD : (i) The method of levy of tax on the basis of tloor area was against the provisions of the Act and the Rules made thereunder. lbe latter clearly laid down that the rateable value of the property must be annual rental value in assessed after determining the rack rent or the respect of each premises which is to be computed on the basis of the annual rent for which the property might reasonably be expected to let from year to year. It did not lie in the mouth of the municipality to say that the irregularity was open to correction. [693 G-H; 694 A-B; 684 G-H]

(ii) It had not been established that condition prerequisite for deter mination of annual value of textile factories at Ahmedabad on the basis of the rental value per foot super of floor area existed at the relevant time, nor had it been shown that the so-called contractor's method was adopted by the Municipal authorities of Abmedabad. The method was also not one which is generally recognised by authorities on rating. [693E]

(iii) Applied indiscriminately-as it appeared to have been done in ihe present case-the method of taxation on the basis of tloor area was sure to give rise to inequalities as there had been no classification of fac· tories on any rational basis. Further there did not· seem to be any basis for diving the factories and the buildings thereof under two general classes as buildings for processing and buildings for non-processing pur poses Article 14 was therefore clearly violated. [693 F-G]

680

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(1967] 2 S.C.R.

Lokmanya Mills v. The Barsi Borough Municipality, [1962] 1 S.C.R. A

306, relied OD.

Bhuvaneswarlah v. Stale, A.I.R. 1950 Mys. 170 aod N. Kunha/i Hail

v. State of Kerala, AI.R. 1966 Ker. 14, referred to.

(iv) Rules 7(2) and (3) were invalid OD account of excessive delega tion of powers by the Legislature. UDder these rules the specifica1ion of the classes of machinery for the purpose of taxation is doDe by the Com- mi..;sioner with the approval of lhe Corporation irrespective of the ques· It therefore depends on the arbi. tion as to where they arc to be found. tr.ary will of the Commissioner as to what machinery he would specify :-n<l what he would not. Moreover. he is the. only person who can e<dmine this question as there is no right of appeal. [701 D-F]

(v) Entry 49 in List II of !he Seventh Schedule only perm;ttcd levy It did not permit the levy of tax on machi- of tax on land and buildings. though the machinery nery contained in or situate on the building even was there for the use of the building for a particular ~rrpose. Ru! .. 7(2) which levied such a tax was therefore bevond the legislative compe tence of the State. [70 I A-CJ

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In re. The Central Provinces and Berar Act No. XIV of 1938, [1939) F.C.R. IR. Diamond Sugar Mill< Ltd. & An,. v. State of Uttar Pradesh & Anr. [1961) 3 S.C.R. 242, Ra/la Ram v. The Province of East Puniab, D [ 1948) F.C.R. 207. R. v. St. Nicholas, Gloucester. l.T.R. 723, Kirhy v. Huns/et Union [1906) A.C. 43 and Smith v. Wi/lesd•n Unwn, [1919) 89 L.J.K.B. 137, considered.

(1783)

ORIGINAL JURISDICTION: Writ Petitions Nos. 133, 156 &

157, 159-171, 178, 184, 206-210 and 234 of 1966.

Writ Petitions under Art. 32 of the Constitution of India f"r E

enforcement of fundamental rights.

S. T. Desai, K. M. Desai, and Ravinder Narain,

for

the

petitioners (in all the petitions).

M. C. Setalvad, Purshottam Trikamdas, Vithal Bhai B. Patel aud I. N. Shroff, for respondents Nos. I and 2 (in W.P. No. 133 F of 1966.

Purshottam Trikamdas . Vitlralbhai B. Patel and /. N. Shroff, correspondents Nos. I and 2 (in W. Ps. Nos. 156 and 206 of 1966).

Vitlralbhai B. Patel nnd I.N . Shroff, for respondents Nos. I and 2 (in W.P. Nos. 157, 159-171, 178, 184, 207-210 a11d 234 of 1966.

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B. Sen and R. H. Dhebar, for respondent No 3 (:n all

the

petitions).

The Judgment of the Court was delivered by Mitt-.r, J. This is a group of Wr't Petitions under Art. 32 of the Constitution challenging the validity of the assessment book relating to special Property section prepared and published by the Municipal Corporation of the City of Ahmedabad by which the

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NEW MANEK CHOWK MILLS V. MUNIC. CORP. (Mitter, I.) 681

Municipality seeks to impose or has imposed property tax on properties described as Special Properties like textile mills, factories, buildings of the universities, etc. on the basis of a flat rate per I 00 sq. ft. of the floor area of the property situate within the municipal limits uf the city. In Writ Petitions Nos. 133, 156-157, 159-171, 178, 184 and 234of1966, the challenge relates to the validity of the assessment book relating to the year 1966-67; in Writ Petitions No. 206 and 210 of 1966 the challenge relates to the years i964-65 and 1965-66 while in W.P. Nos. 207, 208 and 209 of 1966 the challenge relates only to the year 1965-66. The difference lies in this. So far as the assessments for the year 1966-67 are concerned, there has been no authentication of the assessment book after the dis posal of all complaints relating to the entries made in the book, while tiie challenge relating to the years 1964-65 and 1965-66 is made at a stage after such authentication an" in respect of which attachments of property belonging to the assessees have already been leviec;. In W. P. No. 234 of 1966 filed in October 1966, the issue of a distress warrant and the levy of attachment are also challenged. Several textile mills in the city of Ahmedabad are before this Court in these petitions and they have a common com plaint against the assessments.

To appreciate the points raised in these petitions, it is necessary to take a bird's eye view of the relevant provisions of the Bombay Provincial Municipal Corporations Act (LIX of 1949) under which. the assessments were purported tc be made. Section 127(1) of the Act makes it obligatory on the Corporation of the City of Ahmedabad to impose, among other taxes, a property tax. Sub-s. (3) of the section provides that municipal taxes shall be assessed and levied in accordance with the provisions of the Act and the rules and sub-s. (4) lays down that n.:.thing in this section shall authorise the imposi tion of any tax which the State Legislature has no power to impose in the State under the Constitution; (it is needless to add that the Act has been amended after tb.e Constitution came into force). Sec tion 128 empowers the Corporation to recover the tax by the processes laid down in the section in the manner prescribed b) rules. These are inter alia (I) by presenting a bill; (2) by serving a written notice of demand; (3) by distraint and sale of the defaulter's movable property; and (4) by the attachment and sale of a defaulter's immov able property. Section 129 lays down that for the purposes of sub-s. (I) of s. 127 property taxes shall comprise the taxes mentioned which shall, subject to the e'lceptions, limitations and conditions provided, be levied on buildings and lands in the city. One of these men tioned in cl. (c) is a general tax of not less than 12 per cent of their rateable value which may be levied, if the Corporation so deter mines, on a graduated scale. A building has been defined in s. 2 sub·s. (5) and land in s. 2 sub-s. (30). 'Land' under this definition includes land which is being built upon or is built upon or covered

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[1961) 2 S.C.R.

with water, benefits to arise out of land, things attached to the .:arth or permanently fastened to anything attached to the earth and rights created by legislative enactment over any street. Under s. 2 (49) 'property tax' means a tax on buildings and lands in the city. Section 2(53) defines 'rack rent' as t~.e amount of the annual rent for which the premises with reference to which the term is used might reasonably be expected to let from year to year as ascertained for the purpose of fixing the rateable value of such premises and under s. 2(54) 'rateable value' means the value c,f any building or land fixed ;n accordance with the provisions of the Act and the rules for the pcrpose of assessment to property taxes. Under s. 453 the rules in the Schedule as amended from time to time shall be deemed to be part of the Act. The relevant taxation rules are to be found in Chapter VIII of the rules. Rule 7(1) provides that

"111 order to fix the rateable value of any building or land assessable to a property tax there shall be deducted from the amount of the annual rent for which such land or building might reasonably be expected to let from year to year a sum equal to ten per cent of the said annual rent, and the said deduction shall be in lieu of all allowances for

repairs or on any other account whatever."

Under r. 7(2) all plant and machinery contained or situate in or upon any building or land and belonging to any of the claS>CS specified from time to time by public notice by the Commissioner, with the aoproval of the Corporation, shall be deemed to form part of such building or land for the purpose of fixing the rateable value thereof under sub-r. (I) but, save as afo•.:said, no account shall be taken of the value of any plant or machinery contained or situated in or upon any such building or land. Ruic 7(3) runs:

"A statement setting out clnrly the classes of plant and machinery specified from time to time by the Commissioner under sub-rule (2) and describing in detail what plant and machinery falls within each such class shall be prepared by the Cornmissic ner under the directions of the Standing C'om."Ilittee and shall be open to inspection at all reasonable hours by members of the public at the chief municipal office." Rule 9 provides inter a/ia:

"The Commissioner shall keep a book, to be called "the assessment-book", in which shall be entered every o~ciaJ year-

(a) a list of all buildings and lands in the city, distinguishing each either by name or number as fit, and containing such particulars he shall in regarding his opinion, be sufficient for identification;

the location or nature of each as will,

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NEW MANEK ;;HOWK MILLS v. MUNIC. CORP. (Mitter, /.) 683

(b) the rateable value of each such building and land determined in accordance with the provisions of this Act and the rules;

(c) the name of the person primarily liable for the payment of the property taxes, if any, !eviable on each such building or land;

(d) if any such building or land is not liable to be assessed to the general tax, the reason of such non liability;

(e) when the rates of the property-taxes to be levied for the year have been duly fixed by the Corporation and the period fixed by public notice, as hereinafter provided, or the receipt of complaints against the amount of rateable value entered in any portion of the assessment book has expired, and in the case of any such entry which is complained against, when such complaint has been disposed of in accordance with the provisions hereinafter contained, the amount at which each building or land ;:ntered in such portion of the assessment book is assessed to each of the property-taxes, if any, leviable thereon;

Rule I 0 provides for preparation of ward assessment books for each of the wards into which the city is for the time being divided for the purpose of election and the ward assessment books and their respective parts shall collectively constitute the assessment book. Under r. 13(1) when the entries required by els. (a), (b), (c) and (d) of rule 9 have been completed, as far as practicable, in any ward assessment book, the Commissioner shall give public notice thereof and of the place where the ward assessment book or a copy of it may be inspected. Under r. 15(1) the Commissioner must, at the time and in the manner prescribed in r. 13, give public notice of a day, not being less than 15 days from the publication of such notice, on or before which complaints against the amount of any rateable value entered in the ward assessment book -.;ill be received in his office. Rule 16 provides for the time and manner of filing com plaints against valuation. Rule 17 lays down that the Commissioner must gjve notice to each complainant of the time and place when his complaint will be investigated. Rule 18 prescribes for the investi gation and disposal of the complaint in the presence of the comp lainant by the Commissioner. Under r. 19(1) when all such comp laints, if any, have been disposed of and the entries required by cl. (e) of r. 9 have been completed in the ward assessment book the said book shall be authenticated by the Commissioner who shall

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(1967) 2 Le.a.

certify under his signature that except in the cases, if any, in which amendments have been made as shown therein, no valid objection had been made to the rateable value entered in the said book. Under sub-r. (2) of the said rule, the ward assessment book shall thereupon, subject to such alterations as may be made under the provisions of r. 20, be accepted as conclusive evidence of the amount of -:ach property tax leviable on each building r.nd land in the ward in the official year to which the book relates. Rule 21(1) lays down that it shall not be necessary to prepare a new assessment book every official year and that subject to the provi~ions of sub-r. (2) the Commissioner may adopt the entries in tl..~ last preceding year's book with such alterations as he thinks fit, as the entries for each new year. Under sub-r. (2) a new assessment book has to be pre pared at least once in every four years.

The writ petition of which the papers were placed in detail b~fore the Court is No. 133of1966 preferred by the New Manek Chowk Spinning and Weaving Mills Ltd. The respondents are: ( 1) the Municipal Corporation of the City of Ahmedabad, (2) the Deputy Municipal Commissioner of the same city and (3) the State of Gujarat. The challenge in thi; case relates to the validity of the assessment book for the year 1966-67. The complaint is that res pondent No. 1 by the said book imposed property tax on the peti tioner on the basis of a fiat rate per 100 sq. ft. of the floor area of the petitioners' property as also of all other textile mills, fac tories, university buildings etc. under r. 9 of the Taxation Rules. Annexure 'A' to the petition gives a synopsis of the entries relating to the year of assessment 1966-67. It is divided into three parts, the first being headed 'buildings', the second 'additional land' and :;" far as 'buildings' are conceL.•d, there Lhe third 'machinery'. are three columns, the first being the area of the building in square feet, th~ second monthly rental per 100 sq. ft. and the third the annual rental. The building is again divided into two classes, one for processing and the other non-processing. The mont~Jy rental for the proces•ing part of the building is taken at Rs. 6-10--0 per !00 sq. ft. while that for the non-processing portion ,s Rs. 5-4-0 per 100 sq. ft. With regard to the additional land, the valuation is on the basis of the market rate per sq. ft. nf land and as regards machinery the valuation is taken to be effective value of which the annual rental at 71 % is taken as the annual value. The petitioner's complaint i> that while under the provisions of the Act and the rules made thereunder it was clear that the rateable value c,f the property must be arrived at after determining the rack rent or the annual rental value :n respect of each premises which is to be com puted on the basis of the annual rent for which the property might reasonably be expected to let from year to year, the municipal corporation of Ahmedabad had adopted the method of determining the annual rent on a flat rate method according to the floor area.

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NEW MANBK CHOWK MILLS v. MUNIC. CORP. (Mitter, /.) 685

irrespective of the locality, quality, age and nature of the property which was not a recognised method and was not permissible in law. According to the petition, a formula on the flat rnte method of a fixed amount per 100 sq. ft. for arriving at the rental wa~ not only against the express provisions of the Act but was also against the recognised concepts of valuation in the Law of Rating. The method adopted by respondent No. 1 in this case was arbitrary and repugnant to the petitioner's right guaranteed under Art. 14 of It was said that the buildings of the textile mills the Constitution. were situate in different localities some of which were in the heart of the city and some on its outskirts. There was no uniformity in the floor area of the mills concerned nor was the age of the buil It was further ::omplained that buil dings in all cases the same. dings in respect of the properties covered by the special property section included textile mills taxed on the fixed rate method whereas buildings other than those of textile mills were taxed on the basis of annual rent for which such premises were reasonably expected to let from year to year. A further complaint was ~ade that respondent No. 1 had assessed the property tax apart from buildings and lands on the plant and machinery of the petitioner. It was submitted that the imposition of property tax on plant and machinery was beyond the legislative competence of the State. Sub-r. (3) of r. 7 was challenged as giving the Commissioner arbitrary and unguided power to set out the classes of plant and machin~ry and to describe what plai.t and machinery foll within each such class for the purpose of assessment of property tax. Moreover, such classification by the Commissioner was made final and binding and no right was given to any person affected thereby tc object to the same nor was any right of appea 1 against such decision of the Commis sioner provided. A complaint was also made that respondent No. I had not prepared any ward assessment books for the year 1966-67. It is the petitioner's case that the figures in the assessment book for the year 1966-67 were adopted from those of the previous year 1965-66, under r. 21 of the Taxati011 Rules. It was submitted that such adop tion was invalid and improper inasmuch as the assessment books for the previous years were bad in law. The asses:ment books for the previous years were also bad in law inasmuch as the same were authenticated under r. 19 by the Deputy Municipal Commissioner and not by the Commissioner as contemp!akd in the said rule. The complaints were not considered by the Munici pal Commissioner himself. It was said that the action of the Deputy Municipal Commissioner under a purported delegation of power by order dated November 20, 1964 was invalid as a quasi-judicial In this connection, reference was function could not be delegated. made to s. 49(1) of the Act. It was further contended that even in the year 1966-67 the power ;,f conducting proceedings under rr.13, 15, 16, 17, 18 and 19 of the Taxation Rules had been deputed by the Municipal Commissioner in favour of the Deputy Municipal

SUPREME COURT REPORTS

[1967] 2 s.c.R.

in

bad

deputation was

Commissioner and as such law. Finally, the petition proceeded on the basis that the imposition of property tax on the flat rate method on textile mills as under the special property section was u/rra 1·ires the Act and the rules made therein and was violative of the fundamental rights of the petitioner guaranteed under Arts. 14, 31(1) and 19 of the Consti tution and the procedure adoptt:d in pre~aring the assessment book was ultra vircs the procedure laid down by the Act and the rules. The grounds of challenge arc formulated in paragraph 35 of the petition. Among the prayers are a writ of mandamus or any similar writ directing respondent No. l to forbear from taking any steps for the imposition and re.Ilisation of the property tax pursuant to the preparation of 1he assessment book for the year 1966-67 relating to the Srecial Property section; a writ of certiorari or other similar writ to quash the assessment book for the said year; a writ of prohibition or other order restraining respondent No. 2, the Dep"ty Municiral Commissioner from acting under deputation under s. 49 (I) and other reliefs.

The roints raised in the counter affidavit are as follows :-{I) The tax being based on the amount of rent fo; which the property i~ or may he let from year to year, such rent has got to be ascertained from either the actual or the hyrothetical rer:t for which the propert} along with all the equipment like plant and machinery and amenities that it contains, is or may be let and such annual rent where the rropcrty i' let as a factory equirped as a factory would he the rent that it would fetch as a factory aud not as a bare building. (2) Rule 7(2) only gives power to the Corporation to include such plant and machinery as it may determine from time to time taking into consideration various factors like the situation of tr.~ city, its faci lities for transport to other parts of the State and the country, whether the industry is well established or is just being developed etc. (3) Although under r. 9(b) the amount of the rateah!e value of the property in the previous year is to be entered, it is open to the Corporation to take any fresh circumstances into rnnsideration be fore adopting the entry from the earlier year. Er.try in col. (b) is neither the imposition of the tax nor the final amount on the basis whereof the tax is leviable. It is in the nature of a proposal by the ·Corporation and is subject to objection by the assessce and the tax becomes leviable after the objections have been disposed of and the amount is entered in column (e). (4) After the t'.lX has become Jeviable under the Rules, the assessec is entitled, if he so desires, to file an appeal under s. 406 against either the rateable value or the tax fixed or charged under the Act. The Court of Small Causes can hear and determine the appeal. Under s. 410 there is a provision for a reference to the District Court ands. 411 provides for an appeal to it. The High Court would have the power of revision of the (5) The fixing of the rateable value on order of the District Judge.

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NEW MANEK CHOWK MILLS v. MUNIC. CORP. (Mitter, /.) 687

floor area basis is in accordance with the accepted principles and methods in the Law of Rating. In various cities it is common to let out premises on the basis of the floor area. The computation of rateable value by this means depends on the estimate of the annual rent at which the property may be reasonably expected to let from year to year. The situation of the building, the age of the building, th<: material used for the building are not relevant for, if the mill containing all plant and ma~hinery and other equipment is let, it is let as a factory for carrying on a business of manufacture of textiles. The grievance of the petitioner is open to redress under s. 406 and the other sections mentioned. (6) It is not incumbent on respondent No. I to maintain any ward asses~ment books, and (7) under s. 49(1) the power to dispose of complaints against the fixing of rateable value was duly deputed to the Deputy Commissioner and there was nothing illegal about it.

The points formulated by Mr. S. T. Desai are as follows:-(!) The method of adopting a fiat rate for a floor area for determining the annual value adopted bythe Municipal Corporation of Ahmeda bad was against the express provisions of the Act. (2) The method was also in violation of all recognised concepts and principles of (3) The imposition of tax on valuation for the purpose of rating. a fiat rate method was violative of Art. 14 of the Constitution. (4) Rule 7(2) and r. 7(3) were ultra vires the Constitution a, beyond the legislative competence and entry 49 of List II. (5) The delegation of powers of the Commissioner to the Deputy Commissioner was bad as it involved the delegation of quasi-judicial power, and (6) Rule 7(3) suffered from excessive delegation and was violative of Art. 14 of the Constitution.

The first,

second and third points may be taken together. In the forefront of his argument Mr. Desai relied on a decision of this Court in The Lokmanya Mills v. The Barsi Borough Munici pality.(1) There the common question in the appeals related to the validity of r. 2C framed under the Bombay Municipal Boroughs Act, 1925. Under s. 73 of the Act the Municipality was entitled to levy a rate on lands and buildings. In 1947 new rules were made after obtaining the approval of the Government of Bombay for the purpose of enhancing the assessment of lands and buildings within the area of the Municipality. Rule 2C of the new rules provided that:

"As regards Mills, factories and buildings relating thereto, the annual letting value shall be fixed at Rs. 40/ per 100 square feet or part thereof for every floor, ground floor or cellar and the tax shall be asse~<ed on the said annual letting value, at the ordinary rate.

"

(ll (1962] I S.C.R. 306.

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(1967) 2 S.C.11..

The Municipality prepared an assessment list under the new scheme A of taxation in respect of factories and buildings relating thereto and issued notices of demand calling upon the appellants to pay house tax and water tax so assessed. The question before this Court was whether rule 2C was ultra vires. This Court examined th~ provisions of the Act under which the rate could he levied on lands and buildings assessed on the valuation thereof based on B .annual letting value.

It was said:

"If the rate is to be levied on the basis of capital value, the building to be taxed must be valued according to if the rate is to be some recognised method of valuation: levied on the basis of the annual letting value, the building must be valued at the an:.Jal rental which a hyrothctical tenant may pay in respect of the building. The Munici pality ignored both the methods of valuation and adopted a method not sanctioned by the Act. By prescribing valua- tion cumputed on the area of the factory building, the Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a tenant may reasonably pay, but rendered the statutory right of the tax-payer to challenge the valuation illusory. An assessment lis; prepared under s. 78, before it is authen ticated and finalised, must be published and the tax payers must be given an opportunity to object to the valua tion. By the assessment list in which the valuation is not based upon the capital value of the building or the rental which the building may fetch, but on the floor area, the objection which the tax-payers may raise is in substance restricted to the area and not to the valuation."

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lt was further observed that if the Municipality had adopted any <lf the recognised methods of valuation for assessing the annual Jetting value, the tax would not be open to challenge. The Court further noted:

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"In any event, there is no evidence on the record of this case that the factories and "buildings relating thereto" such as warehouses, godowns and shops of the Mills situate in the compound of the mills, may be separately let at the uniform rate prescribed by the Municipality. The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, may reasonably. fetch if let out to tenants and in the virtual deprivation to the rate-payer of his statutory right to object to the valuation."

It may be interesting to note that an Act was passed to vali date the said imposition. On a Writ Petition No. 1476 of 1966 the Bombay High Court held the Validating Act to be ultra 1·ires. The

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contention put forward before the Bombay High Court was inter alia that the levy of a tax on buildings and lands on the basis of floor area was necessarily arbitrary and capricious in that the valua tion of buildings and lands so arrived at could have no relation to their actual value, for the value of buildings depended, among other things, upon location, age, mode of construction, material used etc. A uniform rate on buildings and lands of widely differing values was clearly discriminatory because of lack of classification leading to inequality. It was further argued that there was violat;.on of Art. 14 in that the owners of mills and factories were discriminated against as compared to the o•vners of other buildings and lands. These grounds were upheld by the Bombay High Court.

Reierence was made by Mr. Desai to decisim1s of other High Courts wherein similar observations were made. In Bhuvanes . wariah v. State('), the Mysore Buildings Tax Act, 1963 and Schedule It was II thereto were challenged before the High Court of Mysore. pointed out that under the scheme of the Act a cow-shed and an ultra modem cinema house in the best locality would be charged with the same amount of tax if the extent of fioorage of both were the same. The High Court held that the Act suffered from lack of rational classification because:

"The fioorage basis is not only unscientific, it is some It does not conform to thing arbitrary and mechanical. In the very any of the known principles of taxation. nature of things, under that basis the incidence of tax must fall unevenly on things similar."

N. Kunhali Haji v. State of Kerala(2) was a case where under the Kerala Buildings Tax Act, 1961 (19 of 1961) tax was sought to be imposed not on the basis of letting value but on the floor area of buildings. It was held that the lack of classification had resulted in inequality with the rr1ult that the pr<'visions of the Act were held to be invalid. Reiying on the above decisions, Mr. Desai argued that the method adopted by the Municipal Corporation of Ahrneda bad was against all known principles of rating and was violative of Art. 14 of the Constitution. He submitted that there were a number of textile mills situated in different parts of the city some of which were old and some were of fairly recent origin. Their method of construction was not the same, some being more perma nent in the nature of things than others. Apart from the question of the valuation of plant and machinery, Mr. Desai argued, it was impossible to suggest that a hyj'lothetical tenant would be agreeable to take on rent the building of a mill which was well-built and of recent origin as another which was fairly old and not constructed with the same kind of material. Mr. Desai further argued that the situation of t~e mill was another factor which any tenant would

(1) A.I.ii.. 1965 Mysoro page 170.

(2) A.l.R. 1966 Kcrala 14.

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take into consideration and even if the buildings _of the two mills A were otherwise similar, a tenant would not agree to pay for one situated on the outskirts of the city the same rent as he would be willing to pay for the one in the heart of it. In these circumstances. he argued it was wholly unreasonable to think that a tenant would be willing to pay Rs. 6-10-0 per 100 sq. ft. of the floor area whether it was in the heart of the city or in the outskirts of it, whether the B building was old or whether it was new and whether it was well constructed or ill-constructed.

Mr. Sctalvad tried to argue that such a method of valuation was not unknown and in any event a person who wanted to take on rent a textile factory would only be concerned with what profits he could make out of it and that it did not matter to him as to where it C was situate in the city, whether the building was old or whether it was new or whether it was constructed properly with first class material or not. According to Mr. Sctalvad. the tenant would only go by the use to which the building could be put. So far as the methods of valuation arc concerned, we may refer to certain well known textbooks on the subject. Halsbury in Vol. 32 (page 76, D Art. 106::-Third Edition) points out:

"Except in the case of public utility undertakings which, in the absence of special circumstances, must as a matter oflaw be valued on the profits basis, there is no rule of law as to the method of valuation to be adopted for rating."

This does not however mean that it is open to municipal authorities E to fix upon any scale and say that they will adopt it. They must show, if challenged, that the sca.e adopted by them allows the fixing of an annual value and provides a basis for determination of the same as that which a hypothetical tenant might be expected to pay for the building. All th<; textbooks lay down certain methods of valuation. As Halsbury points out at page 77, Art. 108: the "In the absence of rental evidence of value, accounts, receipts or profits of the occupier of the hercdita ment may be relevant. The profits themselves are not rateable but they may serve to indicate the rent at which the hereditament might reasonably be expected to let, particularly whether profit is the motive of the hypothetical lenant in taking the hercditament, or where the trade can only be carried on upon that hereditamenl."

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In Article 109, the learned author points out :

"Where neither actual rents nor the profits of trade afford evidence of annual rental value, a percentage of the cost of construction of structural value of the hereditament, or CJf a suitable hereditament, is sometimes taken as evidence."

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NEW MANEK CHOWK MILLS V. MUNIC. CORP. (Mitter, J.) 691

A This is referred to loosely as "the contractor's method". The value taken is sometimes called the "effective" capital value, that is to say, the capital value leaving out of account expenditure on unnecessary ornamentation, or accommodation surplus to require ments and after allowing, if necessary, for age and obsolescence. The percentage to be applied to capital value is that prevailing in the market, and not necessarily that at which the actual occupier can borrow or obtain money. Mr. Setalvad placed reliance on Faraday on Rating (5th Edition) where the learned author gives four recognised methods of arriving at the annual value of a heredita ment at page 24 of the book, these being-

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!. The "competitive or comparative method" i.e. by finding out rents actually paid for the hereditament in question and/or others of a similar kind, adjusting them to bring into line with the statutory conditions, and thus arriving directly at an estimate of the rent ......... .

2. The "profits basis," or calculation by reference to receipts and expenditure, which is now required to be applied to certain public utility undertakings, and may properly be applied to any other hereditament on which a business is carried on which enjoys privileges in the nature of a monopoly. . . . . . . . . . . .

•

3. The "contractor's method," by which it is assumed, in the absence of any other better way of estimating the rent, that the tenant would arrive at it by finding the figure for which a contractor would provide him with premises neither more nor less suitable for his purrose, and the rate of interest on that cost which the contractor would charge him as rent.

4. The "unit method" by which schools may be valued at so much a place, hospitals at so much a bed, or certain industrial premises at so much a furnace, or other unit of output.

Mr. Setalvad laid particular stress on a passage at page 164 read ing :

"Modern factories are frequently found in groups due to Town Planning or in some cases because Trading Estates have been developed. Under these conditions it is often possible to arrive at the rental value per foot super of floor area by applying the contractor's basis to typical factories or because there are sufficient rents or by a combi nation of the two methods."

This is followed by an illustration of a bakery and warehouse which goes to show that different portions of the building which were of different nature were measured and valued differently and then M2Sup.Ci/67-15

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on the valuation of the total the floor area method was adootcd for the purpose of similar buildings. As the learned author him self points out at page 165:

"The floor area method of valuation is usuallv used where there arc numerous factories in an area, mostly simi lar and used for the same trade. In the North mills arc frequently valued on this method."

The learned author also stresses that great care must be taken in applying the price per square foot which will vary according to the character of the factory or mill. Lower down in the same page, the learned author points out that a factory put u;:> years ago May contain machinery which has become old fashioned and modern machines for the same purpose might occupy far more or less space, and therefore, require larger or smaller buildings, and probably reduce the wages bill and effect other ccoi1omies whilst at the same time giving more output than the old cumbersome undertaking. According to the author, the value of the old factory. from a rental point of view, would be less than that of a new one with the same power of production, since it would be impossible to find a tenant who would give the same rent for h•.>th concerns inasmuch as he could obviously operate in the new buildings more economi cally than in the old one.

There is nothing in the counter affidavit to show that conditions in the City of Ahmedabad with regard to textiles mills are such as would make the method laid down at p. 164 of Faraday's book applicable. The affidavit docs not purpcirt to show that the factories were constructed at or about the same time or in groups or were so similar in their operation that their rental value wuld be deter mined at per foot super of floor area applying the contractor's basis. There is nothing to show that ar1y textile factory was valued on the contractor's basis and that from the figures of valuation so worked out, the rental value per foot super of floor area was deter mined. On the other hand, the affidavit suggests that because in various cities it was common to let out premises on the basis of floor area, the municipal authorities of Ahmcdabad had resorted to this method for fixing the rateable value. We can take judicial notice of the fact that sometimes god owns or buildings constructed for office purposes are let out on the basis of floor area; but even then. the rate would vary according to the nature of the building It would also anu according to the site of the building in the city. depend upon the age of the building and the amenities provided therein. It would be impossible to say that in the City of Ahmcda bad a tenant would be willing to pay at the same rate of rent for factory accommodation, no matter where the building was situate or when it was put up or hew it was constructed.

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NEW MANEK CHOWK MILLS v. MUNIC. CORP. (Mitter, J.) 693

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Our attention was also drawn to other well known books on Rating like Ryde on Rating, Bean and Lockwood on Rating. and Graham Eyre on Rating: Incidentally, we may refer to W1tton Booth on Valuations for Rating (Fourth Edition) at page 125 where in the learned author states :

"Reductions of floor areas to units, as already des cribed, are necessary to effect reliable comparisons, but it is merely a mechanical process used in preparing material for the valuation, the actual valuation being the decision and ~oplication of the appropriate rate or rental value per unit of area. This may be exactly to a standa~d, and, indeed, it probably will be to the majority of properties where these are so nearly alike in character as to be regarded for rating purposes as identical. Where, however, rates or rental values per unit of area are applied indiscriminately, it were without discernment-on the wholesale, as inequalities are certain to arise, and these give rise to the whole method being caustically referred to as "valuations by the foot-rule." The above comment is sufficient to show that this method can only be applied where the majority of properties are so nearly alike in character as to be regarded identical for rating purposes. There is no such statement in the affidavit.

We are therefore not satisfied that conditions prerequisite for determination of annual value of textiles factories in Ahmedabad on the basis of rental value per foot super of floor area existed at the relevant time nor has it been shown to us that the so-called contractor's basis was adopted by the municipal authorities of Ahmedabad. The method is not also one which is generally recognised by authorities on rating. Applied indiscriminately as it appears to have been done in this case-it is sure to give rise to inequalities, as there has been no classification of the factories on any rational basis. Further, there does not seem to be any basis for dividing the factories and the buildings thereof under two general classes as buildings used for processing and buildings for non-processing purposes. What was said by this Court in The Lokmanya Mills' case(') applies with equal force to what has been done here and we must hold that the municipality did not observe the law and failed in its duty to determine the rateable value of each building and land comprised in each of the textile factories in tenns of r. 9(b) of the rules under the Bombay Provin cial Municipal Corporation> Act, 1949 so far as the assessment book for the year 1966-67 is concerned.

Mr. Setalvad argued that at that stage there is only a proposal and even if the municipality had acted arbitrarily it was open to the

(I) [1962) I S. C. R. 306.

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assessees to take objection thereto and havr proper valuations made A and the assessment book prepared properly. We cannot accept If the municipality fails in its initial duty to act this argument. in terms of r. 9(b) it does not lie in its mouth to say that any irregula rity, however patent on the face of it, is open to correction. More over, the methods of correction in this regard are really illusory. The Small Causes Court cannot decide the applicability of Art. 14 of the Constitution and according to the judgment of the Bombay High Court in Balkrishna v. Poona Municipal Corporation(') (by which the District Judge would be bound):

111

" .... the words used ins. 406(1) of the Act, .... do not cover the vires of the tax or the legality of the tax which is sought to be levied."

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Earlier, the learned Judges had pointed out after noting ss. 406 to 413 that :

"the decision of Judge aforesaid upon any appeal against any such value or tax if no appeal is made therefrom under s. 411 and if such appeal is made the decision of the District Court in such appeal shall be final."

From this it follows that it would be useless for the assessee to take objections or file appeals against the decisions on rateable value to the authorities prescribed by the Act if he was challenging the determination of the rateable value as being violative of Art. 14 It is no answer to such a charge to say that of the Constitution. the rateable value could be determined properly by the municipal authorities acting under the Act and the rules thereunder when they do not resort to any of the well known methods of valuation and cannot justify their arbitrary method.

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With regard to the writ petitions questioning the annual values appearing in the assessment books for the years 1964-65 and 1965-66 which were similarly prepared. a point of res judicala was taken in tbat some of these mills which have tiled writ petitions before this court had challenged the assessment book in writ petitions under Art. 226 of the Constitution before the Gujarat High Court and our attention was drawn to the judgment of the Gujarat High Court in W.P. No. 1365 of 1965 decided by that court very recently. The decision in that case cannot operate as res judicata for the simple reason that the learned Judges pointed out at page 141 of the trans cript of the judgment made over to us that there were not sufficient averments with regard to the plea of discrimination and violation of Art. 14 and the submission based on these grounds was therefore rejected and not gone into. To quote from the judgment:

"In the absence of any specific averment to the afore said effect. it is quite clear that the aforesaid plea cannot be

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(t) ~SB. L. R. 119.

NEW MANBK CHOWK MU.LS v. MUNJC. CORP. (Mitter, J.) 695

said to have been properly pleaded. Therefore, we reject that submission on that ground."

Moreover, it appears to '.!S that the right' of appeal in a case where the rateable value is challenged on the ground of Art. 14 is hardly of any use to the assessee. As already noted, s. I 2i of the Act shows that a municipal tax may be recovered by presenting a bill or by serving· a written notice.of demand or by attachment and sale of the defaulter's immovable property etc. As the Commissioner is not likely to pay heed to any complaint against the determination of any rateable value based on Art. 14 of the Constitution, he is bound to authenticate the assessment book under r. 19 and can undc~ .r. 39 cause to be presented to the assessee a bill for the amount of the tax due. Under r. 41 he can serve upon the person liable for the payment of the tax a notice of demand in form G if the amount of the tax has not been paid into the municipal office or deposited with him as required by sub-s. (2) of s. 406 within 15 days from the service of the bill. Rule 42(1) lays down that if the person to whom the notice of demand has been served un-ler r. 41 does not within 15 days from the said service pay the sum demanded or show sufficient cause for non-payment of the same to the satisfaction of the Commi$Sioner and if no appeal is preferred against the said tax, such sum with costs of recovery may be levied under a warrant in fonn H to be issued by the Commissioner by distress and sale of movable property of the defaulter or the attachment and sale of immovable property of the defaulter etc. Section 406(1) provides for appeals against any rateable value or tax fixed or charged under the Act. Section 406(2) provides inter alia as follows:-

"No such appeal shaV be heard unless- (a) it is brought within fifteen days after the accrual

of the cause of complaint;

(b) in the case of an appeal against a rateable value a complaint has previously been made to the Commissioner as provided under this Act and such complaint has been disposed of;

(e) in the case of an appeal against a tax, or in the case of an appeal made against a rateable value after a bill for any property tax assessed upon su :t value has been pre sented to the appellant, the amount claimed from the ap pellant has been deposited by him with the Commissioner."

The net result of all this is that unless the assessee pays the amount of tax demanded, his appeal cannot be heard so that if he questions the rateable value or the levy of the tax, he must in any event, depQsit the amount demanded. In effect, the Act and the appeal rules do not make any provision for relief to an assessee

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who complains that the assessment book has been prepared in violation of the law. This may be illustrated from what happened in the case of the Ahmedabad Laxmi Cotton Mills Co. Ltd. who have preferred Writ Peiition No. 207 of 1966. In this case, the municipality prepared the assessment book for the year 1965-66 adopting the figure from the previous year under r. 21. The Mills finally complained on July 3, 1965 raising various objections re garding the jurisdiction and the validity of the imposition of property tax on the floor area method. These were over-ruled and the assess ment was finalised hy an order dated September 15, 1965. On September 17, 1965 the municipality issued a bill in respect of the assessment. The Mills filed a tax appeal on September 27, 1965. On October 7, 1965 a notice of demand under r. 41 (I) of the Taxation Rules was made on the Mills. A Writ Petition was filed in the Guja rat High Court being Special Civil Application No. 1155of1965 on October 16, 1965. This petition along with various other petitions filed by other textile mills was Jismissc-d by a common judgment in Application No. 1365 of 1966 on May 5, 1966. On May 7, 1966 the municipality issued an order of attacluncnt under r. 45(1) of the rules. The Mills filed another Writ Petitior. in the Gujarat . High Court against the issue of the order of attachment, but this was dismissed in /imi11e on July 18, 1966. It may be noted that the Mills in common with other Mills had preferred an application for grant of a certificate under ArLs. 132 and 133 of the Constitution against the dismissal of the Writ Petition on May 5, 1966 and such certificate was granted on June 20, 1966.

Mr. Desai's next challenge was directed against su!J.:rr. (2) and (3) of r. 7. According to him, it was beyond the legislative competence of the State to levy a pre!IJerty tax on plant and machinery The relevant entry in List II of the 7th Schedule is item 49, namely, 'Taxes on land and buildings'. The corresponding entry in List II under the Government of India Act, 1935 was taxes on "lands, buildings, hearths and windows." Mr. Desai contended that the legislature was not competent by the definition of 'land' in s. 213) of the Act to include plant and machinery even if.they were attached to the earth or permanently fasteneri to anything attached to the earth. Mr. Desai argued that it may be that the definition of 'land' in certain Acts embraces plant and machinery but when the legislatur& tries to impose a tax on plant and machinery in the garb of land, it travels beyond its powers. He argued that apart from the definition in certain Acts and deeming provisions contained therein, rlant and machinery can never be said to form part of the land or included in land or building. Counsel conceded that entries in legislative lists were certainly to be construed very widely but even then no artificial meaning or arbitrary extension of the meaning of the words in an entry could be allowed.

In this connection, our attention was drawn to the observations

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NEW MANEK CHOWK MILLS v. MUNIC. CORP. (Mitter, J.) 697

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of Gwyer, C. J. in re. The Central Provinces and Berar Act No. XIV of 1938(1) that

" .... a broad and liberal spirit should inspire those whose duty it is to il'terpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errors."

In Diamond Sugar Mills Ltd. & Anr. v. The State of Uttar Pradesh & Anr.(2) the question was, whether entry 52 of List II of the Seventh Schedule which empowered State Legislatures to make a law re lating to "taxes on the entry of goods into a local area for consump tion, use or sale therein," sanctioned the passing of the U.P. Sugar cane Cess Act, 1960 authorising the State Government to impose a cess on the entry of sugarcane in the premises of a .factory for use, consumption or sale therein. It was contended by the appel lant that the premises of a factory was not a "local area" within the meaning of the said Entry. The majority of Judres in that case held the impugned legislation to be beyond the COh1petence of the State Legislature and observed:

"In considering the meaning of the words "local area., in entry 52 we have, on the one hand to bear in mind the salutary rule that the words conferring the right of legislation should be interpreted liberally and the powers conferred should be given the widest amplitude; on the other hand we have to guard ourselves against extending the meaning of the words beyond their reasonable connotation, in an anxiety to preserve the power of the legislature."

In this case, counsel argued the language was clear and unambigu ous and tilerefore it was not open to resort to any artificial definition. He also referred to Legislative Practice in India on this point and contended that the same was against giving an extended meaning to the expression 'land and buildings' so a~ to include plant and machinery. In re. The Central Provinces and Berar Act No. XIV of 1938(3 the question was whether a tax on retail sales of motor spirit and lubricants was ultra vires the Provincial Legislature being a duty of excise within the meaning of entry No. 45 in List I of the 7th Schedule to the Government of India Act, 1935 and not within entry No. 48 .of List II of that Sc •• edule. There Gwyer, C. J. referred to the legislative practice preceding the Constitution Act and said at p. 53 :

),

"Lastly. I am entitled to look at the manner in which Indian Legislation preceding the Constitution Act had

(l} [1939] F. C.R. 18 at 37.

(2) [1961] 3 S. C.R. 242@ 248.

(3) [1939] F. C.R. 18.

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been accuslomed to provide for the collection of excise duties; ............ In all the Acts by which th..se duties were imposed it is provided (and substantially by the same words) that the duty is to be paid by the manufacturer or producer, and on the issue of the excisable article from the place of manufacture or production."

In the same case, Sulaiman, J. observed:

"Our attention has not been drawn to any provincial enactment, which might have imposed any excise duty on the retail sale of motor spirit and lubricants, or for that matter on the r~tail sale of any other goods."

That courts can look into the legislative practice was again adverted to in Rolla Ram v. The Province of East Punjab(•) where the question related to the vires of a Punjab Act taxing the owner of buildin!,S and lands on their annual value. There the conten tion was that the tax was really one on income and as such beyond the competence of the Provincial Legislature. The Court referred to the Central Provinces and Berar Act's case and examined the legislative practice in India. Mr. Desai referred us to a large number of Municipal Acts passed by different Provincial and State Legis latures in India both before ard after 1935 to show that plant and machinery were expressly excluded from the purview of such taxes. We may refer to a few only of them which are : Punjab Municipal Act, 1911, s. 3(1); The Madras Act IV of 1884 s. 65(2); Madras District Municipalities Act, 1920 s. 82(2) proviso (b); The Patna Municipal Corporation Act, 1951, s. 130(3); The Bombay Dis trict Municipalities Act, 1911, s. 3(11); The Bombay Municipal Boroughs Acts. 3(1); The Bombay Municipal Corporations Act, 1888, s. 154{2); The Calcutta Municipal Act, 1899, s. 151 proviso (2); North West Province and Oudh Municipal Act, s. 3(1) proviso; The Central Provinces Municipalities Act of 1903 s. 36 proviso; and The Central Provinces and Berar Municipalities Act, 1922 s. 73 proviso. Mr. Desai also drew our attention to the English Rating and Valuation Act, 1925. Tnerein s. 2(1) gives the power to levy a consolidated rate and sub-s. (3) states that the rate shall be at a uniform amount per pound on the rateable value of each hereditament in that area. Section 24(1) of that Act provides that plant and machinery in or on the hereditament as belongs to any of the classes specified in the Third Schedule to the Act shall be deemed to be a part of the hereditament.

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This according to Mr. Desai went to show that even in England plants and machinery were not considered part of the heredita It was argued that mcnt and were made so by a sort of fiction.

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(I) [1948) F.C.R. 207.

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NEW MANEK CHOWK MILLS v. MUNIC. CORP. (Mitter, /.) 699

by a deeming provision the meaning of a word may be extended, but when the language was clear, no such extension by way of interpretation was possible.

Our attention was also drawn to a number of sections in the Bombay Act of 1949 which on the face of it, went to show that land in those sections was clearly not meant to include the plant and machinery situate therein.

On this question, Mr. Setalvad relied on the principles of rat ing of plant and machinery in England. We have already noted the provisions of the Rating and Valuation Act, 1925. It is pointed out in Ryde on Rating (Eleventh Edition) at p. 399 :

"From towards the end of the eighteenth century to the passing of the Rating and Valuation Act, 1925, · there has been controversy as to the inclusion in valuation of machinery and plant, and as to the extent to which (if machinery and plant were included) the valuation was to be affected. The series of judicial authorities on this subject extends from R. v. St. Nicholas, Gloucester, decided in 1783(1) to Kirby v. Huns/et Union (2) and Smith v. Wi/lesden Union(3), decided in 1906 and 1919. The effect of the decision of the House of Lords in Kirhy v. Huns/et Union(2) was to sweep away the principles on which a discrimination had previously been made between machinery and plant which was to be "taken into account" in valuation, and that which was not-such as physical annexation to the hereditament, or legal annexation in the sen~e that the thing in question would pass to the tenant at landlord's fixtures on a demise, ...... ; and practically to direct the rating authority to value the hereditament equipped with machinery and plant as it appears to ti:~ eye."

The matter is thus put in Witton Booth on Valuations for

Rating (Fourth Edition) at p. 575 :

"Tht rateability of plant and machinery under the law which applied universally before 1925, and which still applies to hereditair . .:nts valued by reference to the profits earned therein depends on legal decisions on what is comprehended by the term "land". These decisions were based on principles applicable to fixtures generally, of which rateable plant and machinery were one kind."

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It will therefore be noticed that the. rateability of plant and machinery depended on judicial decisions as to the meaning of the

ti) (17831 l.T.R. 723.

(2) [1906] A.C. 43.

(3) (1919] 89 L.J.K.B. 137.

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word "land". There is no reason why we should accept those decisions as to what was comprehended by the term "land" when we find in our statutes plant and machinery being excluded there from.

In Kirby v. Huns/er Union() Lord H~lsbury expressed hhn-

self thus at p. 49 :

insisting upon, namely,

" .... I decline myself to enter into what I may call the original equities which might have guided this matter. It is enough for me that a long series of decisions, for certainly half a century, have established the bald proposi tion. which is all I am that although the machinery may not be part of the freehold, it yet is to be taken into account, and in saying that, I do not want to muffie it in a phrase, but what I mean by that is, that to increase the amount of the rate which is e.xacted from the tenant you may enter into that question and form a judgment upon it, although, as a matter of fact, the machinery may not be attached to the free hold."

There, the Act in question "as Parochial Assessment Act, 1836 under which the assessment of hercditaments was regulated on the principle that the rateable value was the rent which might be expected to be given for the hereditament alone. The conten tion on behalf of the appellant before the House of Lords was that machinery affixed to the soil so as to become a part of the freehold must be taken into account in assessing the rateable value but no other machinery. Delivering judgment, Lord Halsbury pointed out that :

'The overseer had a comparatively simple problem to solve, although it is difficult enough sometimes; he sees the place being condU(:ted as a brewery, or an iron foundry, or what not; he looks at the premises, he looks at the furniture which is necessary for carrying on the business as a brewery or foundry; he does not in his own mind analyze, and to my mind he ought not to analyze, what would be likely to be the initial arrange ments between the intended brewer and the owner of the freehold, to see who shouk'. provide this or that engine, or what not, but he looks at the premises as they are, as they arc being occupied, and as they are being used, and he says to himself, "Well, looking at the whole of the place, such and such is the rent which would probably be paid by a tenant from year to year for such an establish ment as this."

(I) [19061 A.C. 43

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NEW MANEK CHOWK MILLS v. MUNIC. CORP. (Mitter, J.) 701

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The problem in our case is not quite the same. The hypothe tical tenant would certainly take inio aonsideration the machinery in the building if he was going to rent it for the purpose of run ning a textile factory. But if the State Legislature had power to levy a tax only on land and buildings, we do not see how the same could be levied on machinery contained in or situate on the build ing even though the machinery was there for the use of the building for a particular purpose.

this, Mr. Setalvad argued that

It therefore appears to us that r. 7(2) of the rules framed under the Bombay Act of 1949 was beyond the legislative competence of the State. The rule also suffers from another defect, namely, that it does not lay down any principle on which machinery is to. be specified by public notice by the Commissioner to be deemed to form part of such building for the purpose of fixing the rateable if the building value. To was equipped with machinery for the purpose of running a tex tile mill, whatever machinery was there for the purpose would be valued. According to him, the question would be, which of the machinery would help in the enjoyment of the property and there by add to its rateable value. Unfortunately, the specification of the classes is done from time to time by the Commissioner with the approval of the Corporation irrespective of the question as to where they are to be found. It therefore depends on the arbi trary will of the Commissioner as to what machinery he would specify and what he .vould not. Moreover, he is the only person who can examine this question. There is no right of appeal from any specification made under sub-r. (3) of r. 7 except that the Com missioner is to act under the directions of the Standing Com mittee. Rule 7(2) shows that all plant and machinery may not be taken into account for the purpose of valuation and any such plant or machinery which is not included in the classification may escape rateability however much they may be prized by the tenant who takes the premises on rent. It seem~ to us, therefore, that r. 7(2) is beyond the legislative competence of the State Legis]ature and sub-r. (3) of r. 7 is also invalid on account of excessive dele gation of powers by the Legislature.

Jn view of the above, it is not necessary to go into the ques tion as to whether the Deputy Municipal Commissioner could exercise quasi-judicial powers of the Commissioner as regards the determination of the rateable value under s. 49(1) of the Act and we express no opinion thereon.

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In the result, the petitions are allowed. A writ of mandamus will issue in each case directing the respondent No. 1, Munici pality, to treat the relevant entries in the assessment book for the years 1964-65. 1965-66 and 1966-67 relating to special property

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section questioned in these petitions as invalid and cancelled; and directing respondent No. I to prepare fresh assessment lists for the said years relating to the textile mills and other properties dealt within the said special properly section. The petitioners are entitled to costs of these ap!)lications. One sei of hearing fee.

G.C.

Pl'titions allowed.

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