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The City of Nagpur Corporation Vs. Bhalchandra Ramrao Sonone - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Civil Revision Application Nos. 57, 58, 93, 193, 194, 195, 199, 202, 210, 221, 222, 237 and 242 of
Judge
Reported in(1961)63BOMLR765
AppellantThe City of Nagpur Corporation
RespondentBhalchandra Ramrao Sonone
Excerpt:
city of nagpur corporation act (ii of 1950), sections 114(1)(a), 119(b), 124(1), 127, 130 -- central provinces and berar letting of houses and rent control order, 1949--gross annual rent for purposes of section 119(b) how to be determined-whether such rent can be determined on basis of actual rent paid by tenant-revision application whether lies to high court against order of district court under section 130.;under section 119(b) of the city of nagpur corporation act, 1948, in determining the gross annual rent at which a tenement is reasonably expected to be let several factors may have to be taken into consideration; the locality of the premises, the type of construction, the advantages and amenities offered to the occupant, the point of time when the premises were constructed, the.....abhyankar, j.1. this judgment will also dispose of civil revision applications nos. 57, 58, 93, 194, 195, 199, 202, 210, 221, 222, 237, 238 and 242, all of 1960. all these revision applications are filed by the corporation of the city of nagpur through the municipal commissioner, against the opponents in each case who are landlords and owners of certain premises within the corporation area of the city of nagpur. the revision application in each case is directed against the appellate order of the extra assistant judge, nagpur, by which the appellate judge set aside the orders of the objection officer in respect of assessment of property tax leviable under section 114(1) (a) of the city of nagpur corporation act, 1948. , the objection officer in each case determined the objections of the.....
Judgment:

Abhyankar, J.

1. This judgment will also dispose of Civil Revision Applications Nos. 57, 58, 93, 194, 195, 199, 202, 210, 221, 222, 237, 238 and 242, all of 1960. All these revision applications are filed by the Corporation of the City of Nagpur through the Municipal Commissioner, against the opponents in each case who are landlords and owners of certain premises within the Corporation area of the City of Nagpur. The revision application in each case is directed against the appellate order of the Extra Assistant Judge, Nagpur, by which the appellate Judge set aside the orders of the Objection Officer in respect of assessment of property tax leviable under Section 114(1) (a) of the City of Nagpur Corporation Act, 1948. , The Objection Officer in each case determined the objections of the opponents and passed orders on such objection in exercise of the powers under Section 129(3) of the Corporation Act. Against such orders an appeal is provided under Section 130 of the Act and such appeals were filed by the house-owners, The appeals were allowed in each case, which are the subject-matter of these revision petitions. In most of these cases the appellate authority held that the annual value of the building for the purpose of imposition of the property tax payable by owners of the buildings should be the actual amount of rent paid by the tenants and received by the house-owners or landlords in respect of tenements occupied by the tenants. The Corporation has challenged the orders of the appellate authority by filing these revision applications under Section 388 of the City of Nagpur Corporation Act.

2. At the outset a preliminary objection was raised by the counsel appearing for the opponents, challenging the competency of the revision applications. Now Section 388 of the City of Nagpur Corporation Act is as follows:-

Save as otherwise expressly provided, every filial order passed by the District Court, Nagpur, or a Magistrate in exercise of original jurisdiction under the provisions of this Act shall be subject to appeal, and every final order passed by such Judge or Magistrate in exercise of appellate jurisdiction shall be subject to revision at the instance of either party, by the Court to which appeals or, as the case may be, revision from the Court which gave such decision, ordinarily lie.

Thus, there is no doubt that the revisions will lie to this Court unless the opponents are able to show an express provision to the contrary. The learned Counsel for the opponents has invited my attention to Sub-section (1) of Section 130 which creates the right of appeal. Now that provision is as follows:-

If any dispute arises as to the liability of any land or building to assessment or as to the basis or principles of assessment, an appeal shall lie from the decision of the Chief Executive Officer to the District Court, Nagpur, whose decision shall be final.

It is contended that the decision of the District Court in appeal having been made final, this should be interpreted as an express provision to the contrary, thus debarring a further challenge to the appellate order of the District Court by way of revision to the High Court. It is not possible for me to accept this contention. The learned Counsel for the applicant has relied on a decision of the Nagpur High Court reported in Vishnu v. Corporation of the City of Nagpur [1956] N.L.J. 621, in which a Division Bench of the Nagpur High Court presided over by Chief Justice Hidayatullah (as he then was) and Kotval J., held that a revision application lies to the High Court against an order of the District Court under Section 130 of the City of Nagpur Corporation Act and that the words 'whose decision shall be final' in Section 130 of the Act do not amount to an express provision barring the revision. I respectfully agree with this interpretation and hold that the Corporation had a right to file these revision applications. Moreover, it cannot be disputed that the appellate order being of the District Court, is always subject to revision by the High Court in exercise of the powers under Section 115 of the Code of Civil Procedure. The preliminary objection is, therefore, not tenable.

3. As regards the merits of the contentions raised by the Corporation, it is to be noted that the tax is being levied in exercise of the powers under Section 114(1) of the Corporation Act. Levy of this tax is a compulsory levy which the Corporation must levy and collect under Section 114(1) (a) of the Act, Section 114(1) (a) is as follows:-

For the purposes of this Act, the Corporation shall impose-(a) a tax payable by the owners of buildings or lands situated within the City with reference to the gross annual letting value of the building or land, called property tax;

Thus, the tax, called the property tax, has to be levied with reference to 'the gross annual letting value of the building'. Section 116 enumerates the types of buildings exempted from payment of property tax, which are of three categories, that is, (1) buildings or lands exclusively occupied for public worship or for charitable purposes, or public burial or burning, or disposal of the dead; (2) buildings and lands vested in Government, used solely for public purposes, or vested in the Corporation, in respect of which the said tax, if levied, would under the provisions contained in the Act be primarily leviable from the Government or the Corporation; and (3) buildings or lands of a rental value of not more than Rs. 24 per annum where such building or land is occupied by the owner and the owner does not possess any other building or land in the Corporation area. In respect of lands and buildings vested in the State Government, a special provision for fixation of the property tax is made in Section 117 of the Act. Then a certain concession is provided for prompt payment of the tax on or before the date fixed by the Corporation by making provision for a discount on the amount of the property tax payable. Then follows Section 119 which provides the basis for fixation of annual value of the building or land. Clause (&) of Section 119, which is the material clause with which we are concerned, is as follows:-

the annual value of any building shall be deemed to be the gross annual rent at which such building, together with its appurtenances and any furniture that may be let for use or enjoyment therewith, might reasonably at the time of assessment be expected to be 1st from year to year, less an allowance of ten per cent for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross annual rent.

In Sub-clause (c) of Section 119 provision is made for fixing the annual value of a building, the gross annual rent of which cannot be determined under Clause (b) and that annual value is to be deemed to be 5 per cent. on the sum obtained by adding the estimated present cost of erecting the building, less any amount which the Chief Executive Officer may deem it reasonable to deduct for depreciation, to the estimated market value of the land valued with building as part of the same premises.

4. Thus, it will be seen that the annual value of any building on which a property-tax is leviable, is to be fixed at a figure to be arrived at by finding the gross annual rent at which such building might reasonably be expected to be let at the time of the assessment. It is (dear that a fiction is introduced in finding out the annual value of the building, because even though the building may be tenanted or occupied by the tenant or owner, it is to be imagined that the building is available for letting at the time when the assessment is to be made and the assessing officer has to find out what is the reasonable amount of rent or gross annual rent for which the building might be let at that point of time, namely, at the time when he is assessing the building or finding out the annual value of the building for the purposes of the property tax. It is also to be noted that the basis for calculation of annual value with reference to gross annual rent the building is reasonably expected to fetch at the time of assessment is the same, whether the building is occupied by the owner or by the tenant. Again, it is also to be noted that the liability for payment of the property tax is that of the owner of the building and not of the tenant under the Act.

5. Having fixed the basis of assessment, namely, the gross annual rent at which the building may be reasonably expected to be let at the time of assessment, the Act provides in subsequent sections the method for assessment and levy. Under Sections 120 and 125, power is given to the Chief Executive Officer to call for information regarding a building as regards the name and address of the owner or occupier of such building, the measurements, the gross annual rent or revenue and other details which may be required, the cost of building, the amenities provided for occupation, the rent actually charged and such other details as were required for the purpose of assessing and determining the gross annual rent.

6. This Act came into force in the City of Nagpur in 1951 though the Act was passed in 1948. Special provision is, therefore, made in Section 124(1) of the Act giving a statutory recognition to the valuation of buildings already made and to other details under the municipal Act then in force, and this valuation is to be deemed to be the valuation for the assessment of property tax on such building under the Act until such time as the Chief Executive Officer makes a fresh valuation under the Act in each ward. Such valuation was previously made under the C, P. and Berar Municipalities Act, 1922, under Section 73 (a) for assessing the tax payable under Section 66(1) (a) of the C.P. and Berar Municipalities Act, 1922. Under the Municipal Act the property tax was payable under Section 66(1) (a) with reference to the gross annual letting value of the building and a provision was made under Section 73(a) of the Act for fixing the annual letting value of a building, not erected for letting purposes and not ordinarily let, at 5 per cent. on the aggregate sum resulting from the estimated present cost of erecting the building after allowing necessary depreciation, and estimated present value of the land valued as an occupied site. Thus a distinction seems to have been made in the Municipal Act between the buildings occupied by owners, not let and not expected to be let, and buildings actually let or expected to be let. That basis has been altered in the scheme for levy of property tax under the Corporation Act, but for the purposes of Section 124 the existing valuation of a building was statutorily fixed as the valuation for the assessment of the property tax, to begin with, for the purposes of Section 114 and Section 119 of the Corporation Act.

7. Now, this valuation which, according to the Corporation authorities, was made within the limits of the City of Nagpur in 1949, under the Municipal Act continues to remain in force till proceedings were taken for revaluation of buildings in exercise of the powers under Section 124 of the Corporation Act. Having provided for statutory fixation of valuation to begin with, with the coming into force of the City of Nagpur Corporation Act in the City of Nagpur under Sub-section (1) of Section 124, the Chief Executive Officer was required under sub-s (3) of Section 124 to arrange for a survey for the purpose of assessment of each part of of the city, at least once in five years. It is stated before me that no steps have been taken by the Corporation or the Chief Executive Officer to comply with this requirement of the law by making a survey for the purposes of assessment, which survey was to remain in force for five years. Thus, the position today is that the valuation of buildings which was previously made under the Municipal Act and was in force on the date of coming into force of the Corporation Act in the City of Nagpur, remains unchanged except for action that is taken in respect of tenements in exercise of the powers under Section 124. An option is also given to the Chief Executive Officer to adopt the existing assessment and mate such necessary alterations in assessment for each year after giving to the person affected a notice of the altered valuation and after giving him an opportunity to raise objections. Perhaps, the present proceedings arise out of such action taken for altering the assessment of buildings in respect of tenements owned by several opponents in these revision applications.

8. The Chief Executive Officer is required to give a notice to the owner or occupier under Section 125 to furnish details of information. From the records of the Corporation, which have been produced, I find at page 21 of the record of objection case that a notice under Section 125(1) was given to Bhalchandra Patil in Civil Revision Application No. 193 of 1960. By this noticee the notice is required to fill in information against several columns on the reverse of the notice. The information is with respect to the building and the area of the construction on the land, its present value, the names of tenants, their monthly rent and whether the rent is inclusive of taxes, the area in occupation of each tenant, the area in occupation of the owner, an estimated monthly rent for the same, the area of the portion which may be unoccupied, the name of the present owner and whether there is any dispute as to ownership, whether the premises have a pipe or a latrine and the nature of the sewer, and whether receipts are given for payment of rent. Then under Section 127 the Chief Executive Officer is required to give individual notice to every owner or occupier of the building when he proposes to increase the valuation, and the said notice must specify the grounds of the increase. On receipt of such a notice, if the owner is dissatisfied with the valuation proposed to be made, he is entitled to deliver a written notice stating grounds of his objection to such valuation under Section 128 of the Corporation Act. On receipt of such objections they are to be entered into a register to be maintained for the purpose and then the Chief Executive Officer is required to give a notice in writing to the objector of the time and place at which the objection is to be investigated. The Chief Executive Officer then has to hear the objections in the presence of the objector or his agent and after determining the objections the Chief Executive Officer is required to pass orders on the objections and then to determine the amount at which the -valuation should be made and amend the assessment list in accordance with the decisions on the objections. A person dissatisfied with the determination of the objections and the assessment of valuation by the Chief Executive Officer is entitled to file an appeal under Section 130(1) of the Corporation Act to the District Court.

9. Now, it will be seen that the Chief Executive Officer is required to determine the gross annual rent at which the building might reasonably be expected to be let at the time of assessment on a hypothetical basis. The gross annual rent is not to be the actual rent that is paid by the tenant, as this test will not apply in the case of premises occupied by owners or occupied without payment of rent. Inasmuch as a single test is made the basis of fixing the annual value, it necessarily follows that several factors have to be taken into consideration in determining the rent which a hypothetical tenant may pay in respect, of a hypothetical tenement, at the time when the assessment is being made and this rent has to be the figure at which the tenement may be reasonably expected to be let. Thus the test that has to be satisfied in arriving at the figure of the annual value or the figure of gross annual rent is the test of the rent which may be reasonably expected to be fetched by the landlord and paid by a tenant. Now, the Corporation has been empowered to make bye-laws for carrying out the provisions and intentions of the Act, and in particular, power has been expressly given to make bye-laws under Section 415(14) (e) of the Corporation Act. Under this sub-clause, the Corporation is required to make bye-laws for determining the manner in which the annual values of buildings or lands shall be determined for the purpose of assessment. The mode in which the bye-laws are to be made and the conditions for making the bye-laws are provided! in Section 417. Draft bye-laws have to be published for such time as has been prescribed and they are to be kept in municipal office for public inspection, and every person is entitled to peruse the same free of charge. Printed copies of the draft bye-laws are to be made available. The bye-laws are then considered by the Corporation and become valid bye-laws after they are sanctioned by the State Government. All bye-laws are to be published in the Gazette and only after publication they have the effect as if they are enacted in the Act. One should have, therefore, expected the Corporation to make the necessary bye-laws, to furnish the guiding principle for determining the annual value with reference to the gross annual rent for purposes of assessment and levy of the property tax. Unfortunately, the Corporation of the City of Nagpur has not so far taken any steps to make such bye-laws. Thus, so far as the Corporation is concerned, it was not able to point to any instructions or rules or bye-laws on the basis of which its Chief Executive Officer is able to proceed to determine the gross annual rent at which the building may be reasonably expected to be let at the time of assessment.

10. The Corporation has been given a power under Section 123 of the Corporation Act to employ a person to be called an 'assessor', to determine the annual value of the lands and buildings in accordance with the principles laid down in Section 119. Power has been given to this assessor to enter a building at all reasonable times after giving notice, or to require production of any information, or to value any land or building, in Sub-section (2) of Section 123. The Corporation of the City of Nagpur has appointed an officer as an assessor in exercise of its powers under Section 123 of the Corporation Act; but, in my opinion, such an appointment does not dispense with the duties imposed on the Chief Executive Officer or on the Corporation to lay down by bye-laws the manner in which the annual value of a building or land is to be determined for the purpose of assessment. Unless guidance is furnished in bye-laws, the Chief Executive Officer is not in a position to do his duty properly. It will be seen that the very basis of fixing the gross annual rent of a building is hypothetical rent at which the premises are reasonably expected to be let at the time of assessment. For arriving at such a figure of gross rent several factors may have to be taken into consideration; the locality of the premises, the type of construction, the advantages and amenities offered to the occupant, the point of time when the premises were constructed, the present condition of the premises, advantage of locality, free access of light and air, or open space available, the areas in which the premises were situate, whether locality are congested areas or select localities such as Civil lines, or areas on the outskirts of the city, the neighbourhood, the amenities, the safety and security of the habitation, the prevailing rents for similar houses and constructions in the neighbourhood, the rent actually paid or fixed for payment either by contract or by law are all relevant facts to be borne in mind in fixing the gross annual rent under Section 119(b) of the Act.

11. It is not disputed that the corporation of the City of Nagpur issued instructions for re-valuation of buildings in exercise of the powers under Section 124, sometime in 1957 or 1958. The work seems to have been entrusted to the officer who was appointed as assessor under Section 123 of the Corporation Act. That officer compiled his own instructions and a copy of those instructions was made available at the hearing. It appears that the assessor divided several types of buildings into five broad categories for the whole city and again divided the five categories of constructions into different areas within the Corporation limits. In respect of each category of the building a certain figure of hypothetical rent per 100 square feet of the plinth area was fixed ranging between Re. 1 per 100 square feet to Rs. 6 for residential purposes and from Rs. 12 to Rs. 35 for business purposes. This blanket rate was liable to be enhanced by a fixed rate wherever latrines, water taps or electricity was provided as additional amenity. It is not necessary to go into details of these instructions as they have no statutory basis and have not the status of bye-law or rules made by the Corporation. Suffice it to say that the element of arbitrariness that must necessarily enter into fixation of these rates is patent ill the very process of fixing these rates. They do not take into consideration the fact that certain buildings are constructed after 1951 and even though they have the same type of constructions they are distinct from those constructed prior to that date. This may have significance in this city because of the operation of the C.P. and Berar Letting of Houses and Rent Control Order, 1949. Under that Order residential houses constructed after 1951 are outside the ambit of Rent Control legislation. The Rent Control legislation, however, applies to all buildings constructed prior to 1951 and used for residential purposes and to other buildings whenever constructed, used for non-residential occupation. The Rent Control Order itself makes a distinction between buildings constructed prior to and after 1940 and provides for fixation of fair rent of buildings on a certain defined basis according to the provisions of the Rent Control Order. The instructions also do not seem to take notice of the fact that rents actually paid for premises have material bearing in determining the rent expected to be paid or, as it is put, the hypothetical rent which a tenant may reasonably be expected to pay. Similarly, the instructions ignore the fact that in respect of certain premises fair rents have been actually fixed in this city, and once the fair rent is fixed, it may not reasonably be expected that anything higher than the rent fixed by the Rent Controller would be offered or may reasonably be expected to be offered for those premises. In my opinion, all these factors have necessarily to be taken into consideration in fixing the annual value of the building with reference to gross annual rent at which the building is reasonably expected to be let. It is, therefore, necessary for the Corporation authorities to make bye-laws and determine the guiding principles as to the manner in which the annual value of a building is to be determined.

12. Now, in each of these cases which are before me, the action commenced upon a report submitted by an assessment Inspector. That report was forwarded under the endorsement of the Additional Assessor to the Assessor appointed under Section 123. The report then came to be approved by the Assessor in each case. The report indicated that the annual value of premises was liable to be enhanced considerably thus resulting in enhancement in the assessment of the property tax. Notice was then issued under Section 127 of the Corporation Act to the owner of the building, intimating that assessments have been re-valued and that enhanced tax as indicated in the notice would be levied from April 1, 1959. The reason required to be given under Section 127 of the Corporation Act, is stated in stereotyped facsimile block letters as follows:-

**?kjkps okf'kZd HkkMkar loZlk/kkj.k ok

kY;keqGsa**

(on account of a general rise in annual rent of houses). This stereotyped reason has been given in the notice under Section 127 in the case of all these buildings which are the subject-matter of the several revisions. In my opinion, this is not a due compliance with the requirement of Section 127, and the case of each building has to be individually dealt with. It will be apparent from the method followed by the Assessor in his instructions that the idea was not to value each building separately and individually but to fix on an overall basis the expected rents for different types of tenements divided into five categories of constructions, treat that as a norm or a standard and then to increase the valuation of gross annual rent in the case of a building of each of these tenants on an ad hoc basis. In my opinion, this method of fixing gross annual rent at which the tenement is reasonably expected to be let at the time of assessment, is wholly unwarranted under the Act. The Corporation must fix gross annual rent in respect of each house, even though it may be in a sense a hypothetical rent. It is not permissible to determine annual value of buildings on the basis of gross annual rent without taking the individual circumstances of each building, the rent; at which it is lot, the amenities provided, the type of structure of that building and several other factors into consideration in respect of that building and then determine the gross annual rent at which the building may be reasonably expected to be let. The method followed by the assessor and his staff in these cases is not warranted by the provisions of the Act and was thus wholly unsatisfactory.

13. After receipt of the notice objections seem to have been made by several owners of buildings. But it does not appear that any evidence was recorded or any material on which the assessor fixed the valuation tentatively was made available to the objector at the time of investigation. It is complained before me by some of the opponents that they had requested the assessor and the Objection Officer to make available the material and information or the calculation of the area in occupation of several tenants on the basis of which the primary report regarding re-valuation was made. Such material, it is alleged, was not made available to the opponents and they have made a grievance that they could not properly substantiate their objection for want of material. If and when the bye-laws are made by the Corporation, as they ought to be made for this purpose, this difficulty will have to be borne in mind and provided against in fixing the procedure for investigation of the objections.

14. In most of the cases the Objection Officer and the Assessor have stuck to their own valuation and rejected the contentious of the opponents that the valuation should have been made on the basis of actual rents received by the owners of the buildings. When the matter was taken to the District Court, the District Judge has uniformly held that the basis of valuation should be the actual rent received from the tenants and not any imaginary or hypothetical rent. On this view, the learned District Judge has set aside the orders of the Objection Officer and has fixed the annual value at the gross actual rent received by the owner of the building from the tenants.

15. In all these cases the initial valuation as well as the determination of objection and the final determination of assessment has been made by the assessor, namely, the Officer who has been appointed under Section 123 of the Corporation Act. Now, under Sections 124, 127, and 129 of the Corporation Act the power in respect of assessment and determination of annual valuation and investigation of objections to the valuation proposed to be made is to be done by the Chief Executive Officer. In none of these cases, it is an admitted position, has the Chief Executive Officer of the Corporation of the City of Nagpur passed any orders. Section 59 of the Corporation Act gives power to the Chief Executive Officer to delegate his functions under the Act to any municipal officer, subject, of course, to the control and superintendence of the Chief Executive Officer, and subject to such conditions and limitations as may be prescribed by the Chief Executive Officer either generally or in respect of specific powers. This delegation has to be in writing. When the power of the assessor to determine the objections and finally fix the annual values was questioned, Mr. Nandedkar, learned Counsel for the Corporation, stated that at the relevant time when the valuation proceedings commenced or ended in the final assessment order, the assessor or any of his subordinates was not duly empowered by the Chief Executive Officer to exercise any of the powers under the Act. Thus, it is clear on the admission of the Corporation authorities that each of the orders of the Objection. Officer in these revisions is void and of no effect as it was passed by an officer who had no authority from the Chief Executive Officer to exercise any of these powers. The result, therefore, is that all valuations made by the assessor or his subordinates, on the basis of which the assessment lists were corrected are illegal and ineffective to alter the original valuation of the buildings, which must be held to continue in force as provided in Section 124(1) of the Corporation Act. Any enhancement of the tax based on the altered valuation, therefore, falls to the ground, and the Corporation will not be entitled to realize enhanced taxes on the basis of such new valuation. This position is admitted by the learned Counsel appearing for the Corporation. In fact, Mr. Nandedkar has placed on record an order dated March 8, 1960, passed by the Chief Executive Officer, that is, the Municipal Commissioner, which for the first time empowered the assessor to exercise the powers under Sections 124(1), 124(2), 125(7), 125(5), 127, 129(7), 129(2), 129(5) and 129(4) of the Corporation Act, Inasmuch as none of the authorities, namely the assessor or his assistant, had any power to exercise the powers of the Chief Executive Officer under any of these sections, prior to March 3, 1960, the original assessments made in all these cases are of no effect and must be declared as without authority. . Normally, this finding should be enough to dispose of these petitions. But arguments were heard for a considerable time on the issue principally raised in the lower Court and also in the High Court, namely, the effect of the operation of Rent Control legislation in the City of Nagpur on fixation or determination of gross annual rent at which the premises are reasonably expected to be let. It is contended on the one hand by the owners of the buildings that the gross annual value at which the premises can be reasonably expected to be let at the time of assessment can in no case exceed the fair rent if fair rent has been determined in a given case; and even where fair rent has not been determined in finding the gross annual rent at which the premises may be reasonably expected to be let, regard must be had to the provisions of the Rent Control Order and the operation of that Order in this city. On the other hand, it is claimed by the Corporation that what is to be determined under S. 119(b) is the figure of a hypothetical rent, or, if I may say so, the figure of an imaginary rent that an imaginary tenant may be expected to give or may reasonably be expected to offer at the time of -the assessment. It is urged that whether or not a house is within or without the protection of the Rent Control Order is irrelevant so far as the determination of the gross annual rent at which the premises may be reasonably expected to be let is concerned. It is stated that the operation of the Rent Control Order is not a permanent phenomenon and it. could not be said that it is a permanent feature of our statute book; it is a temporary device to give relief against charging exorbitant rents when there, was acute shortage of housing accommodation, on account of War and after-effects of the War. That fact itself should not enter into consideration as a factor in determining the gross annual rent which a tenant may be reasonably expected to offer for the premises. It is no doubt true that the basis for determination of annual value is not the actual rent paid by the tenant. If that were so, one should have found some indication of such an intention on the part of the Legislature in the several provisions of the Corporation Act. I, therefore, do not accept the contention of the owners of the buildings that in determining the, gross annual rent at which the premises may be reasonably expected to be let what is to be taken into consideration is only the actual rent paid by the tenant. It can be seen that there may be no actual rent in the eases of premises which are occupied by owners. On the other hand, actual rent may be paid at an exorbitant rate by a tenant who may be in distressed circumstances and at the mercy of the landlord. Rack-renting is not unknown oven in these days. On the other hand, the artificial figure at which rent may be fixed for different reasons and paid by a tenant cannot again furnish the true basis for determining the gross annual rent at which a tenement may be reasonably expected to be let. What is to be determined is the gross annual rent after taking all relevant factors into consideration. If all relevant factors have to he taken into consideration, I do not find it possible to accept the extreme contention on behalf of the Corporation that the effect of the Rent Control legislation or determination of fair rents in exercise of the powers under the Rent Control Order in respect of tenements cannot be taken into consideration. This matter once came up before this Court and the decision is reported in City of Nagpur Corporation v. Ramchandra (1960) 63 Bom. L.R. 64. It has been held in that case that the gross annual rent cannot be determined only on the basis of actual rent paid by a tenant. I respectfully agree with the decision.

16. As already stated, the liability for payment, of the tax is of the house owner. Thus, the value that may have to be determined is the value which the house owner may be expected reasonably to get as rent in respect of the premises which are let or are expected to be let. In considering what rent may reasonably be expected for certain premises, I fail to see how the operation of the rent restriction legislation in the locality, or where fair rent has been fixed under the rent restriction legislation, such fair rent is a factor which is to be ignored altogether. It is true that the statutory method of fixing fair rent under the rent restriction legislation does not necessarily lead to the conclusion that the rent that was determined is the gross annual rent at which the tenement may be reasonably expected to be let and cannot be equated to it, but all the same, the factor of rent restriction legislation in the area and where rent has been fixed under such law, the fact of fixation of such rent is a factor which will have to he taken into consideration in determining the annual value with reference to the gross annual rent at which the tenement is reasonably expected to be let, for the purpose of levying the property tax. This question does not directly fall for consideration in these revisions as orders which were challenged in the lower appellate Court are found to he void and of no effect. But I have considered the arguments on either side so that the position may be kept in view in framing the bye-laws under Section 415 (14) (e) of the Corporation Act.

17. Thus, the result is that the orders of the Additional District Judge, as well as the order of the Assessor and the Objection Officer arc set aside and the parties are relegated to the position at which they were as if there has been no alteration in valuation by a valid or authentic order in respect of any of the premises which are the subject-matter of assessment proceedings in these cases. The revision applications are disposed of accordingly. The Corporation will pay the costs of opponents in each of these cases in this Court and the Court below.


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