Municipal Corporation of Greater
Bombay Vs. M/S Polychem Ltd. [1974] INSC 62 (20 March 1974)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION: 1974 AIR 1779 1974 SCR (3) 687 1974
SCC (2) 198
CITATOR INFO :
RF 1977 SC 302 (6,7)
ACT:
Bombay Municipal Corporation Act. 3 of
1888--S. 3(r) and S. 154--Scope of.
Principles for determining rateable value of
land on which a building is partly completed--Doctrine of sterilityDistinction
between English and Indian Law.
HEADNOTE:
The respondent company was owner of a large
area of land in Bombay, on a part of which there was a building under
construction. The bulk of the remaining part was lying vacant. The Assessor and
Collector of the Municipal Corporation determined the market value of the whole
land on a notional basis and fixed the hypothetical annual rental value of the
portion of land on which a building was being built as well as the vacant land.
The respondent's appeal to the Small Cause
Court was dismissed. Applying the doctrine of sterility the High Court held
that although a vacant plot of land was rateable underthe provisions of the
Bombay Municipal Corporation Act and so was land which bad been built upon,
yet, any part of land which was being actually built upon was not rateable
until the building was finished because no tenant could take it in that
condition.
In the appeal to this Court it was contended
on behalf of the appellant Corporation that the High Court erred in applying
the doctrine of sterility to land rateable under the provisions of the Act ;
that, the High Court overlooked the essential distinction between the Indian
and English law which was that the basis for determining the rateable value in
India was the value of the property to the owner and not to the occupier, and,
that, every kind of 'land' as defined by s.3(r) of the Act was rateable under
s. 1 54 of the Act simply because it had a value to the owner of it and not
because it was yielding any income or was usefully or beneficially occupied or
enjoyed by tenant or any other kind of occupant paying for the use of it.
Allowing the appeal.
HELD : The judgment under appeal is erroneous
as it was held there that land which was being rated as vacant ceased to be
subject to any rating at all simply because a building began to be made on it
by the owner. The rule of interpretation that, where two views are reasonably
or equally open,. the court should adopt the one which benefits the assessee
would enable it to do no more than to treat land which is actually being built
upon on the same footing as vacant land so long as no structure capable of
occupation and letting is completed on it. [702 D-E] Land which was being built
upon should not be rated like land on which a building has been actually
constructed unless and until the construction had reached a stage at which some
occupation of the constructed portion was also legally and actually possible so
that it could. be taken into account in determining the rateable value. [701 F]
The doctrine of sterility in the context of the provisions to be construed
could not apply in this case. In England, land which is in the process of being
built upon is equated with vacant land which is not yielding any profit, so
that it ceases to be "rateable" land. But, under the statute, all
'land' whether vacant or in the process of being built upon is rateable
according to well settled principles. [700 A] West Bromwich School Board v.
Overseers of West Bromwich, 13 Q.B.D. 929 @ 942, Mersey Docks & Harbour
Board v. Overseers of Llaneilian,14 Q.B.D. p. 770, The Metropolitan Board of
Works v. The Overseers of West Ham 688 (1870) L.R. 6 Q.B. 193, The Guardians of
the Poor of the Sculcoates Union in the Borough of KingstonUpon-Hull v.
Dock Company at Kingston-Upon-Hull, 1895 A.C.
136, the Church wardens & Overseers of Lambeth Parish v.The London County
Council, & 1897 A.C. 625 @ 630-31, London County Council v. Erith
(Churchwardens Overseers of Parish, 1893 A.C. 562.591, held inapplicable.
The principles upon which lands are rated in
this country have been practically settled by the decisions of this Court which
held that the mode of assessment in every case must be directed towards finding
out the annual letting value of land which is based on rating of land, and, by
definition, "land" includes land which is either being built upon or
has been built upon. A reference to the provisions of the Act shows that, after
a building has been completed, the letting value of the building which becomes
part of the land will be the primary or determining factor in fixing the annual
rent for which the land which has been built upon "might reasonably be
expected to be let from year to year". All that s 154 seems to contemplate
by mentioning "land or building" is that land which is vacant or
which has not been built upon may be treated, for the purposes of valuation. on
a different footing from land which has actually been built upon. The relevant
provisions of the Act do not mention and seem to take no account, for purposes
of rating, of any building which is only in the course of being constructed,
although s. 3(r) of the Act makes it clear that land which is being built upon
is also "land". Hence, so long as a building is not completed or
constructed to such an extent that, at least, a partial completion notice can
be given so that the completed portion can be occupied or let, the land can,
for purposes of rating, be equated with or treated as vacant land. It is only
when the building which is being put up is in such a state that it is actually
and legally capable of occupation that the letting value of the building can
enter into the computation for rating. Although the definition of land, which
is rateable covers three kinds of "land", yet, for the purposes of
rating s. 154 recognises only two categories. Therefore, all land must fall in
one of these two categories for purposes of rating and not outside. [699 D-G]
Corporation of Calcutta v. Sm. Padma Debi Ors., [1962] 3 S.C.R. 49, Bengal
Nagpur Railway Co. Ltd. v. Corporation of Calcutta, 74 Indian Appeals 1, Bengal
Nagpur Railway Co. Ltd. v. Corporation of Calcutta, A.I.R 1942 Cal. 455, Polar
Assessment Committee v. Roberts, [1922] 2 A.C. 93, Patel Gordhandas Hargovindas
v. Municipal Commissioner, Ahmedabad, [1964] 2 S.C.R. 608, Municipal
Corporation of Greater Bombay v. Royal Western lndia Turf Club, [1968] 1 S.C.R.
525, Motichand Hirachand Ors. v. Bombay Municipal Corporation, [1968] 1 S.C.R.
546, Century Spg. Mfg. Co. Ltd., v. District Municipality of Ulhasnagar, [1968]
2 S.C.R. 211, Bombay Municipal Corporation v. L.LC. of India Bombay, [1971] 1
S.C.R. 335, Guntur Municipal Council v. Guntur Town Rate Payers' Association,
[1971] 2 S.C.R. 423, referred to.
In the instant case the land which was being
assessed as reteable so long as it was vacant land had been treated as entirely
outside the scope or sphere of rateability just because a building was being
erected upon it. As there is no provision in the Act which has the effect of
conferring such an immunity or exemption upon land which is being built upon, it
is not possible to uphold the conclusion which produces such a startling
result. [700C] (The case was sent back to the Assessor and Collector with a
direction that the whole land will be valued for the purpose of rating in the
relevant year as vacant land.)
CIVIL APPELLATE JURISDICTION : CiVil Appeal
No. 1828 of 1969.
From the Judgment and Order dated the 4th
November 1968 of the Bombay High Court in Letters Patent Appeal No. 130 of
1964.
Niren De, Y.S. Chitale, S.K. Kadam, P.C.
Bhartari and J.B.
Dada chanji for the appellant.
A.B.Divan and LN. Shroff for the respondent.
M.C. Bhandare, B.R. Agarwala Gagrat and Co.,
Vinay Bhasin and Janedra Lal for Intervener No. 1.
689 Anil B. Divan A.J. Rana and Ashok Grover
for Intervener No.2 The Judgment of the Court was delivered by BEG, J. This
appeal, by certification under Article 133(1) (c) of the Constitution, is
directed against the Judgment of a Division Bench of the Bombay High Court
holding that although a vacant plot of land is rateable under the provisions of
the Bombay Municipal Corporation Act 3 of 1888 (hereinafter referred to as 'the
Act'). and so is land which has been built upon, yet, any part of land which is
being actually built upon is not rateable until the building is finished
because no tenant could take it in that condition.
In other words the Division Bench upheld what
may be called the doctrine of sterility with which the land was said to have
been struck during the period when a building was being actually put upon it.
The appellant Corporation questions the applicability of this doctrine to
rating of land in this country.
Before proceeding further we may briefly give
the facts and circumstances in which the question mentioned above arises.
The respondent Company is the Owner of 6652 sq.
yds. of land out of which 450 sq. yds. were deducted for having, fallen within
"the set back line". Out of the remaining area of 6202 sq. yds, 1060
sq. yds. was being built upon at the relevant time whilst the remaining 5142
sq. yds, was lying vacant during the period under consideration. As the
respondent Company did not lead any evidence about the hypothetical rent of any
part of land the Assessor & Collector of Bombay Municipal Corporation
determined the market value of the whole land as Rs. 62020/at Rs. 10/per sq.
yd. He then calculated the hypothetical rent by taking a rate of interest of 31
% per annum as the reasonable return on this value so that the hypothetical
annual rental value came to Rs. 2170/From 1-1-1962 the Assessor divided the
plot notionally into two parts one ,of 1060 sq. yds.
which was being built upon and the other of
5142 sq. yds.
which was lying vacant. He then assessed the
probable market value of the plot which was being built upon as Rs 10,600/at
Rs. 10/per sq. yd. but as he considered it better developed the fixed 5 % per
annum interest As a reasonable return on it for determining its hypothetical
rent which came to Rs. 530/-. For the vacant land also valued at the same rate
the market value was found to be Rs., 51,420/-, but the annual rate of interest
to determine reasonable return was taken as 31 % only, as was done previously
for the whole land, so, that its hypothetical annual rent came to Rs. 1800/-.
Thus, the total hypothetical annual rental value of the-land for the period
under consideration came to Rs. 2330/for both parts according to what is known
as "the contractor's test".
The respondent company, aggrieved by the
assessor's fixation of rateable value, had appealed to the Small Cause Court of
Bombay which dismissed the appeal. The respondent company then appealed to the
Bombay High Court under Section 218(D) of the Act. The appeal was summarily
rejected by a learned Single Judge of that Court. On a further appeal, a
Division Bench of the High Court, after repelling a preliminary objection to
the maintainability of the appeal to it by adopting the view that it was not a
second appeal for the purpose of the Letters Patent, held that the part of the
land which was being built upon was not rateable at all as no tenant could or
would take the property in that condition. Thus, the Division Bench had applied
what may be called the "doctrine of sterility". It observed
"....if there is no tenant who would be prepared to take the property from
year to year in its then condition, evidently there can be no tax on the
same".
As this doctrine could not apply to the
vacant land, the order of the Assessing authority and the principle applied by
it for rating that portion of the land were upheld by the Division Bench. No
argument was addressed to as on the question whether an appeal lay to the
Division Bench, in the circumstances of the case. We, therefore, refrain from
considering this question.
Learned Attorney General submitted, on behalf
of the appellant Corporation, that the Division Bench had erred in applying the
English doctrine of sterility to land rateable under the provisions of the Act.
It was contended that the essential distinction between the Indian and the
English law, overlooked by the Division Bench, was that the basis for
determining rateable value in this country was the value of the property to the
owner and not to the occupier.
Hence, it was urged, every kind of 'land, as
defined by Sectoin 3(r) of the Act, was rateable under Section 154 of the Act simply
because it had a value to the owner of it and not because it was yielding any
income or was usefully or beneficially occupied or enjoyed by a tenant or any
other kind of occupant paying for the use of it. It was contended that, in so
far as the rent paid by an actual tenant or that which a hypothetical tenant
would presumably pay for the land, in the condition it actually was (i.e.
"rebus sic stantibus"), is to be taken into account, this could be
done only for the purpose of determining the value of the land to the owner and
not, as it had been done in England, to its occupant. This distinction, it was
pointed out, logically flows from the essentially different bases of
rateability adopted in India, where even vacant land was rateable, and, in
England, where vacant land was not rateable at all.
Another contention advanced was that in any
case when there is no evidence about the nature or the extent of the
construction on the land treated as occupied by a building in the course of
construction, it was not possible to apply the principle that it was withdrawn
from the sphere of rateable land merely because a building was being constructed
over it. The effective reply to this argument was that it was a matter of
admission between the parties that 1060 sq. yds. of the area was covered by a
building in the course of construction. Our attention was drawn to the
statement of facts on behalf of the appellant and also to the finding of fact
that this was the area which could be treated as land which was actually being
built upon. We, therefore, do not think that there is any point in remanding
the case for any further finding 691 upon this question. We will proceed on the
assumption that the finding. that 1060 sq. yds of land is covered by what is an
incomplete building in the course of construction for the relevant period is
correct.
Learned Counsel for the respondent urged that
whatever may be the other differences the basic principles of rating are the
same both in India and in England as the annual rent which would be paid by a
hypothetical tenant has necessarily to be determined in order to arrive at the
rateable value of land. According to the respondent, it followed logically from
this principle that land which could not have a hypothetical tenant could have
no rateable value. The submission was that the "contractor's test"
was only one of the three modes of determining. the annual rateable value.
This method was, it was urged not available
at all as a substitute for determination of the annual hypothetical rent. It
was, according to the respondent and the Intervener,only a means adopted for
determination of the annual hypothetical rent. The means could not, the
argument proceeds, displace the object or the end itself and converted into an
independent mode of assesing rateable value.
The learned Counsel relied upon various
provisions of the Act in an attempt to correlate property taxes of which rates
were the primary class to beneficial occupation or in other words to income
yielding capacity as it existed at the time when the taxes were levied, that is
to say, "rebus sic stantibus".
Section 3(r) of the Act says "3(r)
"Land" includes land which is being built upon or is built upon or
covered with water banefits to arise out 'of land, things attached to the earth
or permanently fastened to anything attached to the earth and rights created by
legislative enactment over any street";
and Section 3(s) says 3(s)
"building" includes a house, out-house stable shed, hut and every
other such structure, whether of masonry, bricks, wood, mud, metal or any other
material whatever;" But, section 143 of the Act seems to make a
distinction between "buildings and land" when it says that the
general tax shall be levied "in respect of all buildings and land",
and, thereafter, it continues to mention both, Similarly, Section 144 mentions
"buildings" and "land" as though they were separate.
Section 144(A) goes on to provide :
"144A. (1) Notwithstanding anything
contained in Section 140, the general tax leviable in respect of any building
used for residential purposes(a) completed, or first let out or occupied on or
after the 1st day of April, 1956 ; and (b) consisting exclusively of tenements
the annual rent of each of which tenements determined as provided in sub692
section (1) of Section 154, does not exceeding Rs.12 hundered or such lower sum
as may be generally determined by the Corporation, shall, where an application
is made to the Commissioner in that behalf and for the period specified in
sub-section (2), be(i) if such building is owned by or belongs to a cooperative
society registered or deemed to be registered under the Bombay Co-operative
Societies Act, 1925, seven-tenths of the amount leviable, under Section 140 in
respect of any other building excepting those referred to in Section 143 ;
(ii) if such building is owned by or belongs
to any other person, eight-tenths of such amount, (2) (a) if any such building
was completed, or first let out or occupied on or before the date of
commencement of the Bombay Municipal Corporation (Amendment) Act, 1957,
concession in general tax under this Section shall be available for the period
counted from the said date of commencement upto the 1st day of April 1956.
(b) in all other cases, concession in general
tax under this section shall be available for the period of ten years counted
from the' date on which any such building shall be completed, first let out or
occupied, whichever shall be the earliest.
Explanation-For the purposes of this section,
a building shall be deemed to be com pleted on the date on which the permission
for its occupation or use is given or is deemed to be given under Section
353-A".
Section 353A provides for a notice and
completion certificate to be sent by the builder within one month after the completion
of the building and the procedure for obtaining the permission by the
commissioner for occupying such building or for the use of it after he is
satisfied that the provisions of the Act and the bye-laws have been ,Complied
with. Section 353A.(2) lays down:
"(2) No person shall occupy or permit to
be occupied any such building, or use or permit to be used the building or part
thereof affected by any such work, until(a) the permission referred to in
proviso (b) to sub-section(1) has been received, or (b) the Commissioner has
failed for twenty-one days after receipt of the notice of completion to
intimate as aforesaid his refusal of the said permission".
693 Section 472 gives a list of continuing
offences with specified daily fines.. It indicates that a violation of Section
353A involves a fine of Rs. 100/-per day. Hence, it was contended on behalf of
the respondent, there can be no hypothetical tenant of a building of which the
law prohibits. any use or occupation. A building which is in the course of
construction would be, it was urged, a building in an incomplete state of
which. no occupation was possible by an actual or hypothetical tenant of it.,
There is no doubt that rates belong to the category of property taxes mentioned
in Section 139(1) of the Act.
Section 146 makes, fresh taxes "Leviable
primarily from the actual occupier of the premises upon which the said taxes
are assessed, if such occupier holds the said'. premises immediately from the
Government or from the corporations or from a fazendar". Section 146(2)
makes it clear that in other cases they are leviable as follows :
"(a)if the premises are let, from the
lessor;
(b) if the premises are sub-let, from the
superior lessor;
and (c) if the premises are unlet, from the
person in whom the right to let the same vests".
Section 146(3) lays down that :
"if any land has been let for any term
exceeding one year to a tenant, and such tenant or any person deriving title
howsoever from such tenant has built upon the land, the property taxes assessed
upon the said land and upon the building erected thereon shall be leviable
primarily from the said tenant or such person, whether or not the pre mises be
in the occupation of the said tenant or such person".
Section 147 of the Act provides that, in a
case in which the rateable value exceeds the amount of rent actually payable in
respect of land' occupied, the lessor is entitled to receive the difference
between the rent which would otherwise be payable and what is actually
payable.Similar provision is made in case of sub-tenants.The actual method of
valuation is provided by Section 154(1), which runs :
" 154(1) in order to fix the rateable
value of any building or land assessable to a propertytax, 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
centum of the said annual rent and the said deduction shall be in lieu of all
allowances for repairs or on any other account whatever".
Section 155 provides "155(1). To enable
him to determine the rate able value of any building or land and the person
primarily liable for the payment of any property tax leviable in respect
thereof the Commissioner may require the owner or occupier of such building.
694 or land, or of any portion thereof, to
furnish him, within such reasonable period as the Commissioner prescribes in
this behalf with information or with a written return signed by such owner or
occupier(a) as to the name and place of abode of the owner or occupier, or of
both the owner and occupier of such building or land; and (b) as to the
dimensions of such building or land, or of any portion thereof, and the rent,
if any, obtained for such building, or land, or any portion thereof.
(2) Every owner or occupier on whom any such requisition,
is made shall be bound to comply with the same and to give true information or
to make a true return to the best of his knowledge or belief.
(3) The Commissioner may also for the purpose
aforesaid make an inspection of any such building of any such building or
land".
Section 156 requires the maintenance of an
assessment book.
It says "156. The Commissioner shall
keep a book, to be called "the assessment book" in which shall be
entered every official year(a) a list of all buildings and lands in greater
Bombay distinguishing each, either by name or number, as he shall think fit;
(b) the rateable value of each such building
and land determined in accordance with the foregoing provisions of this Act;
(C) the name of the person primarily liable
for the payment of the property-taxes, if any, leviable 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 year have been-duly fixed by the corporation and the period fixed
by public notice, as hereinafter provided, for 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 entered in such portion of the assessment-book is assessed to each of the
property-taxes, if any, leviable thereon;
(f) if, under Section 169 or 170, a charge is
made for water supplied to any building or land by measurement ,or the
water-tax or charged or water by measurement is 695 compounded for, or if,
under section 172, the halalkhortax for any building or land is fixed at a special
rate, the particulars and amount of such charge, composition rate;" It is
true that the "buildings" and" lands" are mentioned
separately in Sections 154 to 156 of the Act. Section 154(1) implies that the
rateable value of any building or land will be calculated-by determining
"the amount of the annual rent for which such land or building might
reasonably be expected to let from year to year". Section 156(d) shows
that there may be cases in which some building or land may not be liable to pay
any amount as a general tax. Hence, it was urged on behalf of the respondent,
the doctrine of sterility could be applied in this country just as it was applicable
in England.
The principles upon which lands are rated in
this country have been practically settled by the decisions of this Court. But,
no case was brought to our notice in which an application of these principles
to land upon which a building was being constructed was involved. in other
words, no case was cited by any. party in which the doctrine of sterility, as
indicated above, was invoked. We will, however, glance at the cases cited
before deciding the question raised before us.
The Corporation of Calcutta vs. S.M. Padma
Debi & Ors., (1) involved an interpretation of the provisions of Section
127(a) of the Calcutta Municipal Act, 1923, in the course of which it was
observed that the criterion for determining the annual value of land for purposes
of rating is : "the rent realisable by the landlord and not the value of
the holdings in the hands of the tenant". A reference was made there to
the decision of the Privy Council in Bengal Nagpur Railway Co. Ltd. vs.
Corporation of Calcutta (2) affirming a decision of the Calcutta High Court in
Bengal Nagpur Railway Co. Ltd. vs. Corporation of Calcutta(3) on the
construction of Section 127 of the Calcutta Act. The Privy Council had
indicated the distinction between law in India and in England as follows "The
owner of land in England is not chargeable with rates, as owner, at all. If he
leaves land vacant and unoccupied, he pays no rates. Under the Calcutta Act
mere ownership carries with it a liability to pay one-half of the rate assessed
on the annual value of the land".
In the Calcutta case which went to the Privy
Council, a golf club was making use of some land with a few holes made in it
for occasional practice by persons aspiring to become golfars. The Club used to
pay a nominal amount for the use of the land. This Court also referred to the
decision of the House of Lords in Polar Assessment Committee vs.
Roberts.(4) to indicate : "The
distinction between occupier and owner, in this connection, is of primary
importance.
The occupation value of property may be, and
often is, distinct from (1) [1962] 3 S.C.R. 49.
(2) 74 Indian Appeals 1.
(3) AIR 1942 Cal. 455 (4) (1922) 2A.C. 93.
696 its value to the owner". This Court
then cited the "weighty observations of Atkin, L.J., as he then was, which
were approved by Lord Carson in his dissenting judgment" (at page 58) :
" How then is the annual rent to be
ascertained? It is obvious that the definition presupposes that the premises
are deemed to be vacant and are deemed to be capable of being let".
The respondent, however relies upon the
following passage in the judgment of this Court(l) (at page 56) :
"A law of the land with its penal
consequences cannot be ignored in ascertaining the reasonable expectations of a
landlord in the matter of rent".
It was urged on behalf of the respondent that
the test adopted by this Court was to find out the annual rent a hypothetical
tenant would pay so as to determine rateable value from the point of view of
the landlord, It did not matter, according to the respondent, from which angle
the rateable value was looked at so long as the method of determining it was
really the same as was adopted in England. If that was so, it was submitted,
the views expressed by this Court in the Calcutta Corporation case (supra) did
not militate with an application of the doctrine of sterility where facts
warranted it. We think that this submission overlooks an infirmity in the
doctrine of sterility itself; the assumption that what is not actually yielding
rent has no annual rental value.
The next case cited was patel Gordhandas
Hargovindas V. Municipal Commissioner, Ahmadabad (2), where, after references
to legislative history of rating in England and in India, this Court said : (at
page 628) :
"It would, therefore, be right to say
that the word 'rate' had acquired a special meaning in English legislative
history and practice and also in Indian legislation where that word was used
and it meant a tax for local purposes imposed by local authorities and the
basis of the tax was the annual value of the lands or buildings on or in
connection with which it was imposed, arrived at in one of the three ways which
we have already indicated".
The three modes were indicated in the
following passage (at page 622) "It will thus be clear from the various statutes
to which we have referred and the various books on rating in England that the
rate always had the meaning of a tax on the annual value or rateable value of
lands or buildings and this annual value or rateable value is arrived at by one
of three modes, namely, (i) actual rent fetched by land or building where it
(1) [1962] 3 S.C.R 49.
(2) [1964] 2 S.C.R. 608.
697 is actually let, (ii) where it is not
let, rent based on hypothetical tenancy, particularly in the case of buildings,
and (iii) where either of these two modes is not available, by valuation based
on capital value from which annual value has to be found by applying a suitable
percentage which may not be the same for lands and buildings, and it was this
position which was finally brought out in bold relief by the Rating and
Valuation Act, 1925. It is clear further that it is not the Rating and
Valuation Act of 1925 which for the first time applied the concept of net
annual value and rateable value as the basis for levying a rate for purposes of
local taxation; that basis was always there for centuries before the Act of
1925 was passed".
Here, it was held by a majority of five
Judges of this Court, that a rule imposing a tax called a "rate",
"directly as a percentage of the capital value", is ultra vires the
Act and "the assessment based on this manner must be struck down".
The reasoning adopted was :(at pages633-34):
"If the law enjoins that the rate should
be fixed on the annual value of lands and buildings, the municipality cannot
fix it on the capital value, and then justify it on the ground that the same
result could be arrived at by fixing a higher percentage as the rate in case it
was fixed in the right way on the annual value. Further by, fixing the rate as
a percentage of the capital value directly, the real incidence of the levy is
camouflaged".
This case links the nature of the property
tax called a rate levied for local Govt. purposes with the mode adopted for its
levy. Each mode had necessarily to be directed to finding out the annual rentel
value of land as that was what was taxed and not either the capital or the
potential value of land.
Municipal Corporation of Greater Bombay vs.
Royal Western India Turf Club (l) was cited to show that the profit from the
actual user, in that particular case of same land used as a race course, was
taken into account. This Court said (at page 533) :
"The measure in arriving at the net
rateable value under S. 154(i) is what a hypothetical tenant would pay as rent
and that would depend upon the amount of profits earned from racemeetings held
on the race-course. To arrive at the correct amount of such profits all
expense,. reasonably and properly incurred which go to the making of the
receipts have to be deducted from the gross-receipts".
In Motichand Hirachand & Ors. vs .Bombay
Municipal Corporation(2) where, as in the Royal Western India Turf Club case
(supra), the provisions of the Act with which we are concerned had come up for
consideration, this Court said (at page 548) (1) [1968] 1 S.C.R. 525.
(2) [1968] 1 S.C.R. 546.
698 "The assessing authority for the
purpose of fixing the rateable value has therefore to determine the annual
rent, that is, the annual rent for which such building might reasonably be
expected to let from year to year and to deduct the 10 per cent statutory
allowance therefrom and arrive at the net rateable value which would be
equivalent to the net annual rent. The rateable value is thus taken to be the
same as the net annual rent of the proPerty. It is a well recognised principle
in rating that both gross value and net annual value are estimated by reference
to the rent at which the property might reasonably be expected to let from year
to year. Various methods of valuation are applied in order to arrive at such
hypothetical rent. for instance by reference to the actual rent paid for the
property or for others comparable to it or where there are no rents by
reference to the assessments of comparable properties or to the profits earned
from the property or to the cost of construction. The expression "gross
value" means the rent at which a hereditament might reasonably be expected
to let from year to year. The rent which a tenant could afford to give is
calculated rebus sic stantibus that is to say, with reference to the property
in its existing physical condition and to the mode in which it is actually
used. The hypothetical tenant includes all persons who might possibly take the
property including the person actually in occupation, even though he happens to
be the owner of the property. The rent is that which he will pay in the
"higgling of the market", taking into account all existing
circumstances and any relevant future trends. if the Property affords the
opportunity for the carrying on of a gainful trade, that fact also must be
taken into account. The property is assumed to be vacant and to let and the
material date for the valuation is that of the proposal which gives rise to the
proceedings. The actual rent paid for the property is not conclusive evidence
of value, though such actual rent may serve as an indication as to what a
hypothetical tenant can afford to pay. However, if the actual rent is paid on
terms which differ from those of the hypothetical tenancy it must be adjusted,
if possible, to the terms of the hypothetical tenancy before it affords evidence
of value. (See Halsbury's Laws of England, (3rd ed.) Vol. 32, P. 60 and
onwards). It is also well recognised that while valuing the property in
question every intrinsic quality and every intrinsic circumstance which tends
to push the rental value up or down must be taken into consideration".
The Century Spg. & Mfg. Co. Ltd. vs.
District Municipality of Ulhasnagar(l), points out that Section 60 of the
Bombay District Municipal Act 3 of 1901, with which we are not concerned here,
has left open a determination of the basis for each class of valuation to the
municipality after defining annual letting value in Section 3(11) as the rent
for which any land or building might reasonably be expected to be let from year
to year. In this case, the imposition of a flat rate (1) [1968] 2 S.C.R. 211.
699 on carpet area was held to be within the
provisions of the Act. It was, however, observed that the assessees could
challenge, each on the facts of his particular case, the application of this
method if it results in a rate not corresponding to "the annual letting
value". Apart from emphasising that it is the annual letting value which
has to be determined under the rating enactments, this case does not help us in
deciding the question now before us.
Bombay Municipal Corporation v. L.LC. of
India, Bombay,(,) repeats that the criterion for fixing the rate is "the
rent realisable by the landlord and not the valuation of the holdings in the
hands of the tenant".
Guntur Municipal Council v. Guntur Town Rate
Payers' Association(2), relates to the interpretation of the provisions of the
Madras District Municipalities Act 5 of 1920, where it was held that the
assessment must take into account the measure of "fair rent" as determined
under the Act.
The above mentioned authorities of this
Court, which were cited before us, enable us to hold that the mode of
assessment in every case must be directed towards finding out the annual
letting value of land which is the basis of rating of land, and, by definition,
"land" includes land which is either being built upon or has been
built upon.
Nevertheless, reference to the provisions of
the Act shows that, after a building has been completed, the letting value of
the building, which becomes part of land, will be the primary or determining
factor in fixing the annual rent for which the land which has been built upon
"might reasonably be expected to be let from year to year". All that
Section 154 seems to contemplate, by mentioning "land or building", is
that land which is vacant or which has not been built upon may be treated, for
purposes of valuation, on a different footing from land which has actually been
built upon.But, relevant provisions of the Act do not mention and seem to take
no account, for purposes of rating, of any building which is only in the course
of being constructed although Section 3 (r) of the Act makes it clear that land
which is being built upon is also "land". Hence, so long as a
building is not completed or constructed to such an extent that atleast a
partial completion notice can be given so that the completed portion can be
occupied and let, the land can, for purposes of rating, be equated with or
treated as vacant land. It is only when the building which is being put up is in
such a state that it is actually and legally capable of occupation that the
letting value of the building can enter into the computation for rating
"rebus sic stantibus". Although, the definition of land, which is
rateable, covers three kinds of "land", yet, for the purposes of
rating Sec. 154 recognises only two categories.
Therefore,. all "land" must fall in
one of these two categories for purposes of rating and not outside.
The doctrine of sterility, in the context of
the provisions we have to construe, cannot apply here. In England, what happens
is that (1) [1971] (1) S.C.R. 335.
(2) [1971] (2) S.C.R. 423.
700 when land, which is in the process of
being built upon, is equated with vacant land, which is not yielding any
profit, it ceases to be rateable land. But, under the statute we have before
us, all "land", whether vacant, or in the process of being built
upon, or built upon, is rateable according to the well settled principles. All
that can. be said is that, so long as a building being constructed on some land
is not in a state fit for occupation, its rateable value should not be more or
less than that of land which is vacant. That, however, is not the object of the
respondent in invoking the doctrine of sterility. What has happened in the case
before us is that the land which was being assessed as rateable so long as it
was vacant land has been treated as entirely outside the scope or sphere of
rateability just because a building is being erected upon it. As we find no
statutory provision which has the effect of conferring such an immunity or
exemption upon land which is being built upon, we cannot uphold a conclusion
which produces such a startling result.
The English authorities where the doctrine of
"sterility" was where : West Bromwich School Board v. Overseers of
West Bromwich;(1) Mersey Docks & Harbour Board v. Overseers of L
laneilian;(2) The Metropolitan Board of works v. The Overseers of West Ham; (3)
The Guardians of the Poor of the Sculcoates Union in the Borough of
Kingston-Upon-Hull v.
Dock Company at Kingston-Upon-HUlI;(4) and,
the Church wardens & Overseers of Lambeth Parish v. The London County
Council.(5) In the last mentioned case of The London County Council relating to
a park maintained by a County Council for public benefit, Lord Herschell, L.C.,
after holding that the public was not a rateable "occupier", said;
"Once it has been found, as in this
case, that the occupation cannot as a matter of law be a beneficial occupation,
there is an end of the question. I say as matter of law, because that it does
not give a beneficial occupation as matter of fact is nothing to the purpose.
Here there is no possibility of beneficial
occupation to the county council; they are incapable by law of using it for any
profitable purpose; they must allow the public the free and unrestricted use of
it".
These cases are not helpful or really
applicable at all because they are based upon the concept of rating exclusively
by reference to the beneficial occupation or of the income enjoyed by an occupier.
It was, however, pointed out by the
respondent that in London County Council v. Erith (Churchwardens &
Overseers of Parish), (6) Lord Herschell, L.C., expressed some dissatisfaction
with the rather wide application of the doctrine of sterility in some cases in
England and explained it as follows (at page 591) (1)13 Q.B.D. 929 @ 942.
(2)14 Q.B.D. p. 770.
(3)(1870) L.R. 6 Q.B. 193.
(4)1895 A.C. 136.
(5)1897 A.C. 625 @ 630-631.
(6)1893 A.C. 562 @ 591.
701 Now, if land is "struck with
sterility in any and everybody's hands", whether by law or by its inherent
condition, so that its occupation is, and would be, of no value to any one, I
should quite agree that it cannot be rated to the relief of the poor. But I
must demur to the view that the question whether profit (by which I understand
is meant pecuniary profit) can be derived from the occupation by the occupier
is a criterion which determines whether the premises are rateable, and at what
amount they should be assessed; and I do not think that a building in the hands
of a school board is incapable of being beneficially occupied by them and is
not so occupied because they are prohibited from deriving pecuniary profit from
its use. Fry L.J., in the case of Reg. v. School Board for London (I 7 Q.B.D. 738)
said : "The term 'sterility' has been introduced into the cases because,
as a general rule, a profit is produced; but it does not by any means follow
that because there is no profit there is no value. There could be no better
illustration of this than in the present case", I think the learned Judge
here points to the true test; whether the occupation be such as to be of value.
This is the language used by Lord Blackburn, and I have already said that the
possibility of making a pecuniary profit is not in my opinion the test whether
the occupation is of value".
We do not think, for reasons already given,
that it is necessary to examine English cases or authorities on the application
of doctrine of sterility in England to land which is being built upon, because,
after examining the relevant provisions of the enactment before us, we have
reached the conclusion that land on which a building is being constructed does
not cease to be rateable simply because a construction is going on upon it. The
difference between English law and the position which emerges from the statute
before us is vital for deciding the question beforeus. The most that can be
said is that land which is being built upon should not be rated like land on
which a building has been actually constructed unless and until the
construction has reached a stage at which some occupation of the constructed
portion is also legally and actually possible so that it could be taken into
account in determining the rateable value. On this aspect, we have not found
any material to indicate the state of the building on land on which it was
being constructed. Evidence would, no doubt have been there if the building had
reached a stage at which any part of it was completed so as to be permitted to
be occupied. Therefore, we think that the land upon which a building was under
construction could and should be rated in the same way as vacant land. No
appeal has been preferred against the rating of the vacant land. We, therefore,
assume that the rental value reached, even by employing "the contractor's
test", correctly determines what a hypothetical tenant would be reasonably
expected to pay from year to year for the vacant land. The question whether the
owner himself or a tenant is actually occupying the land is not relevant for
the purpose of determining the rateable value by a reference to the
hypothetical tenant. Here, the basis of rating is not the actual income from beneficial
occupation, as it may be in England (even there a tendency to shift 702 the
former or traditional base is discernable), but of ownership of land which is
capable of beneficial occupation.
In other words, the concept of annual value
of the land to the owner, though obviously linked up with its utility or annual
letting value, is more comprehensive than and different from the test of the
actual income yielded which has been applied in England in a number of cases.
Where,the landlord is in actual occupation
the land does not cease to have, rateable value. In such a case, rateable value
would be determined by asking the question : What would or could be reasonably
expected to pay from year to year if he was not the owner but wanted to take it
on rent? The standard of reasonable expectation from a hypothetical tenant,
applied by contemplating a hypothetical bidding or higgling in a market,
however difficult and unsatisfactory as a method of valuation, has to be
resorted to in a case beset with such difficulties as the one before us. In no
case, however, could the rental value of land being built upon be less than
that of the same land when it was vacant.
We find the judgment under appeal to be
erroneous as it held land which was being rated as vacant to have ceased to be
subject to any rating at all simply because a building began to be made on it
in 1961 by its owner. The rule of interpretation, that, where two views are
reasonably or equally open, we should adopt the one which benefits the
assessee, would enable us to do no more than to treat land which is actually
being built upon on the same footing as vacant land as long as no structure
capable of occupation and letting is completed on The result is that we allow
this appeal, and we set aside the judgment and order of the Division Bench. We
also set aside the assessment order with regard to 1060 sq. yds., which was
being built upon, and the orders of the Small Cause Court and a learned Judge
of the High Court dismissing appeals with regard to this area of land. We send
back the case to the assessor and Collector of Bombay Municipal Corporation and
direct that the whole land will be valued, for purposes of rating in the
relevant year, as vacant land just as it was being done in the period
immediately preceding 1962. In the circumstances of the case, which is not free
from difficulties, the parties will bear their own costs.
P. B. R. Appeal allowed.
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