Skip to content


Poona Municipal Corporation Vs. Shankar Ramkrishna Jabade - Court Judgment

LegalCrystal Citation
Subjectproperty
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 218, 219 and 220 of 1957
Judge
Reported in(1958)60BOMLR25
AppellantPoona Municipal Corporation
RespondentShankar Ramkrishna Jabade
Excerpt:
.....application raises a rather interesting question as to the assessment of property on the rateable value. 'building' is defined in section 2(5) as including a house, out-house, stable, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing, and the like. it was suggested at the bar that in construing these two sub-sections we must not overlook the well known canon of construction that in a taxing statute, the statute must be construed strictly in favour of the assessee. 'whatever meaning we may give to these two expressions, that meaning must ordinarily hold good..........of the opponents. now, 'rateable value' is denned in section 2(54) as the value of any building or land fixed in accordance with the provisions of the act, and the rules for the purpose of assessment to property taxes, and it is not disputed that what has got to be considered is the annual letting value of this property. 'building' is defined in section 2(5) as including a house, out-house, stable, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing, and the like. 'land' is defined in section 2(30) as including land which is built upon or is built upon or covered with.....
Judgment:

M.C. Chagla, C.J.

1. This revision application raises a rather interesting question as to the assessment of property on the rateable value. It appears that a cinema theatre was let out by the opponents on a rental oil Rs. 883-8-0 a month. The cinema theatre also contained articles of furniture and among them mostly chairs intended to be used for the purpose of the theatre by the audience which visited the theatre, and in the lease the rental of this furniture was valued at Rs. 225 per month. The Collector and Assessor of Taxes assessed the annual letting value of this property at Rs. 9,540 and in arriving at this figure he took into consideration the total rent including the rent of the furniture. The assessee appealed to the Small Causes Court, and the Court confirmed the assessment. There was a second appeal to the District Court at Poona, and the learned Assistant Judge came to the conclusion that in fixing the annual letting value, the value of the furniture should be excluded, and he fixed the annual letting value at Rs. 7,110, and the Poona Municipal Corporation has come in revision against the order of the learned Assistant Judge.

2. Under Section 127 of the Bombay Provincial Municipal Corporations Act, the Corporation is authorised to impose various taxes and one of them is the property tax. Section 129 deals with the property tax and it provides that property taxes shall comprise the following taxes which shall, subject to the exceptions, limitations and conditions hereinafter provided, be levied on buildings and lands in the city, and Clause (c) provides : 'a general tax of not less than twelve per cent of their rateable value, which may be levied, if the Corporation so determines, on a graduated scale;' and this is the tax which was sought to be levied by the Corporation on the building and land of the opponents. Now, 'rateable value' is denned in Section 2(54) as the value of any building or land fixed in accordance with the provisions of the Act, and the rules for the purpose of assessment to property taxes, and it is not disputed that what has got to be considered is the annual letting value of this property. 'Building' is defined in Section 2(5) as including a house, out-house, stable, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing, and the like. 'Land' is defined in Section 2(30) as including land which is built upon or is built upon or covered with water, benefits 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. The real question that we have to consider and decide in this civil revision application is whether the furniture in the theatre falls either within the definition of 'building' or within the definition of 'land', because if it falls under either definition, then it would be competent to the municipality to levy a tax upon the value of this furniture as constituting either part of the building or of the land.

3. Now, it will be noticed that neither of these two definitions of 'building' or 'land' is an exhaustive definition. It was suggested at the Bar that in construing these two sub-sections we must not overlook the well known canon of construction that in a taxing statute, the statute must be construed strictly in favour of the assessee. In our opinion that canon cannot apply in this case, because we are not construing a taxing statute. The expressions 'building' and 'land' do not only occur in those sections which empower the municipality to impose a tax. They occur in other sections also, and it would not be proper for the Court to construe these expressions in one way when they occur in a taxing section and in another way when they appear in a section which does not deal with taxation. 'Whatever meaning we may give to these two expressions, that meaning must ordinarily hold good wherever these expressions occur in the statute.

4. Mr. Tarkunde in the first place urged that whatever may be said about furniture falling within the meaning of the expression 'building', it clearly falls within the definition of land, and what was urged was that if anything was attached to the earth and something was fastened to that thing, then that thing clearly became land looking to the language used by the Legislature, and it was said that if the building was attached to the earth and if the furniture was fastened to that building, then the furniture became land. In our opinion, that contention is not tenable. If that interpretation were to be accepted, then the expression 'building' would become completely superfluous in the Act. Every structure and everything in that structure fastened to it would constitute land. But the very fact that the Legislature has separately defined 'building' and 'land' goes to show that different connotations were intended to be given to these two expressions. It is clear, therefore,-and in that, respect we agree with the learned Assistant Judge-that when you are dealing with a structure you must turn to the definition of 'building' in order to find out whether that structure or anything in that structure falls within the definition of building. When there is no building or no structure, then undoubtedly you turn to the definition of 'land', and even when you have a building and land, the Legislature has distinguished between a structure standing on the land and the land under the structure. For various purposes of the Act these distinctions are material and therefore the taxing authority cannot turn to the definition of 'land' if it fails to bring the case within the definition of 'building' when it is dealing with a structure, and what is contained in the structure. Here we are not dealing strictly with land which lies under a structure and on which this structure stands. We are dealing with the structure itself, and what is contained in the structure, and therefore we have to be satisfied that the furniture in the theatre falls within the definition of 'building'.

5. Turning to that definition, as we have already said, it is an inclusive definition and inclusive as it is, it is fairly exhaustive. The first part of that definition refers to various kinds of structures-a house, out-house, stable, shed, hut and other enclosure or structure-and then the definition goes on to point out that the structure may be built of any material-masonry, bricks, wood, mud, metal or any other material whatever. Then it emphasises the fact that the structure may be used for any purpose, whether as a human dwelling or otherwise, and then it goes on to say : 'and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing, and the like.'' This clearly shows that these are species of the genus which is constituted by things becoming permanent part of the structure, some things attached to the structure, things which by their attachment become part and parcel of the building itself. Take a verandah or a fixed platform or a compound wall or a fencing, they all are species of that genus, and the concluding words 'and the like' are used ejusdem generis so that other species in this genus can be included, and the narrow question before us is whether furniture under certain circumstances would fall within this genus. Now, you may have furniture in a building which may not be permanently attached to the building, which may-if we might use that expression-not be structural furniture, furniture which has become part of the structure. We may have furniture which, to use an English legal expression, may be only chattels and which may be kept in the building for the enjoyment of the chattels themselves. On the other hand, you may have furniture which, again to use an English legal expression, may become fixtures, which may be in the building not for the purpose of enjoyment of the furniture as such but which would be there in order that the use of the building should be better enjoyed. Therefore, in deciding whether furniture falls in one category or the other, we agree with Mr. Kotwal-and that is what the decisions lay down as we shall presently point out-that the two tests that we have to apply are, one, the nature and extent or degree of annexation to the property, and the other is the object, intention or purpose of the annexation.

6. Turning to the first test, what has got to be considered is how permanent is the annexation. Is the furniture solidly fixed to the building? Has it become a part of the structure itself? Turning to the second test, the purpose or object or intention of the annexation, what has got to be considered, as we have already pointed out, is whether the furniture is for the permanent enjoyment of the furniture itself or for the permanent enjoyment of that to which it is attached. Therefore, in this particular case the way these two tests would be applied would be to inquire whether the chairs, for instance, are permanently fixed to the building; also how they are fixed; are they solidly fixed, or are they fixed in such a manner that it could be said of these chairs that they have become part of the structure? The chairs may be of masonry, they may be of wood, they may be of steel. The question would be, how they have been fixed to the building. And again, the question would have to be asked : Were these chairs fixed in order that these chairs themselves should be better enjoyed, or were they fixed so that the structure itself should be better enjoyed? If in a theatre the answer to the question was that the chairs were kept in the theatre because the theatre could be better used with the chairs than without them, then it seems to us that the purpose would be clearly that the chairs were used so that the owner should better enjoy the use of the building as a theatre. It may be pointed out that in each case it would depend upon the circumstances as to whether the two tests were satisfied or not. No hard and fast rule can be laid down. It would depend upon the evidence, upon the facts, upon the intention of the parties and other factors which a Court takes into consideration in deciding a question of fact.

7. In this connection we may perhaps point out the interesting circumstances to which Mr. Tarkunde has drawn our attention, and that is the legislative history of this part of the law. The Provincial Municipal Corporations Act was enacted in order to constitute Municipal Corporations in two of the important cities of our State, Poona and Ahmedabad. Before this Act was passed these municipalities were governed by the Municipal Boroughs Act, and turning to that Act, 'annual letting value' was defined in Section 3(2) as the annual rent for which any building or land, exclusive of furniture or machinery contained or situate therein or thereon, might reasonably be expected to let from year to year. Therefore that Act expressly excluded furniture and machinery from the annual rent of a building or land. We take it that is a sign of advancing civilization that in 1949 the power of taxation conferred upon the Poona Municipality was increased, and now in the view that we have taken power has been given to the Poona Municipality in levying the property tax to levy the tax not only upon the building in the strict sense of the term, but also upon the furniture contained in it. 'We might also look at the Bombay Municipal Corporations Act, and Section 154 expressly excludes from the rateable value of a property the value of any machinery contained or situated in or upon any building. We might also in this connection look at the scheme of the Transfer of Property Act. Section 3 defines immoveable property negatively as not including standing timber, growing crops or grass, and as is well known the Act does not contain any definition of immoveable property. But when we turn to Section 8 which deals with the operation of a transfer of immoveable property, we find that the operation of transfer is separately dealt with when the property is land and when the property is a house, and when the property is a house what is transferred is the easements annexed thereto, the rent thereof accruing after the transfer and the locks, keys, bars, doors, windows and all other things provided for permanent use therein. Therefore, whatever is provided in a house for its permanent use is transferred when a house is transferred by one of the modes laid down in the Transfer of Property Act.

8. Turning to the authorities, it is sufficient to deal with the English case which was referred to at the Bar reported in Vaudeville Electric Cinema, Ld. v. Muriset [1923] 2 Ch. 74, because it clearly enunciates the principle which we have earlier stated. The question that the English Court was considering was what passed under a deed of mortgage. A cinema hall with its fixtures and appurtenances was mortgaged to secure a certain loan and the Court was considering four items and the one with which we are concerned was 477 plush tip-up seats in blocks of four or eight attached to the floor between the seats by iron standards with iron feet, and the Court held that this item was a fixture and constituted a security under the mortgage deed. At p. 82 Mr. Justice Sargant says of these chairs:.They have iron standards with iron feet, and the standards and feet occur not only at either end of each block of seats, but also between the seats; and those are firmly secured to the floor of the building.

At p. 87 the learned Judge says:.There can be no doubt that in the present case, when the seats were placed in the cinema hall they were placed there for the purposes of the permanent use of the cinema, as a cinema : they were intended to be used as part of the permanent equipment of the building.

At p. 83 the learned Judge cites the judgment of Lord Blackburn in Holland v. Hodgson (1872) 7 C.P. 328..There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation.

Sir Dinshaw Mulla in his commentary on the Transfer of Property Act (4th edn.) at p. 24 says:.If a thing is embedded in the earth or attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached, then it is part of the immoveable property. If the attachment is merely for the beneficial enjoyment of the chattel itself, then it remains a chattel, even though fixed for the time being so that it may be enjoyed.

So we have here both the tests which we have suggested earlier as the proper tests to apply to determine whether a particular article or chattel in a building constitutes part of a building.

9. Now, the learned Assistant Judge, with respect to him, has taken the view that inasmuch as the seats were fixed in the theatre subsequent to its construction, they cannot constitute part of the building. That is obviously erroneous, because when we turn to the definition of 'building', there is no suggestion that a verandah or a fixed platform or a plinth or a doorstep or a compound wall or a fencing can only become part of the building if it was constructed along with the building. Indisputably any of these things mentioned, whenever they were constructed, would form part of the building. If that be so, there is no reason why if chairs are fixed to the building after its construction and they become part of the building in the manner we have suggested, they should be any the less a part of the building than a verandah or a fixed platform etc. In our opinion, both the Small Causes Court Judge and the Assistant Judge were in error, the first because he assumed without proper inquiry that all the furniture in the theatre must necessarily be considered to be part of the building and valued, and the latter because he assumed that all of it must be excluded because the furniture came into the building after its construction.

10. We will, therefore, set aside the order of the learned Assistant Judge and remand the matter back to the Collector and Assessor of Taxes to determine what furniture, if any, in the theatre forms part of the building for the purpose of determining the rateable value of the building in the light of the judgment we have delivered and in the light of the tests we have laid down. No order as to costs.

11. The same point is raised in Civil Revision Application No. 219 of 1957. In that case the learned Assistant Judge made a remand order for a limited purpose. That remand order will be set aside and there will be a remand to the Collector and Assessor of taxes for the same purpose as in Civil Revision Application No. 218 of 1957.

12. In Civil Revision Application No. 220 of 1957 there is an additional point and that is with regard to certain furniture which has been brought into the theatre by the tenant. The learned Assistant Judge held that it was not possible to take such furniture into account in trying to assess the rateable value of the building. Now, on the remand, with regard to this furniture, of course, the first question would be whether it is part of the building according to the tests we have laid down. But the further question would arise in this case and that is whether the owner as the lessor is primarilv liable to pay assessment in respect of what we might call this part of the building. The Indian Law with regard to fixtures of the tenant is different from the English Law. Under Section 108(h) the lessee is entitled to remove all things which he has attached to the earth provided he leaves the property in the state in which he received it, and what Mr. Sheikh urges is that his client is not the owner of this furniture, that when the lease comes to an end this furniture will not revert to him and, therefore, he is not liable to pay assessment in respect of this furniture. It is true, as Mr. Tarkunde points out, that under the scheme of the Municipal Act the tax is on property and, therefore, the tax would be on land or building. But what we have to consider is who is liable to pay the tax and for that purpose we have got to turn to Section 139(1)(b) which provides that tax shall be leviable from the lessor if the premises are let, from the superior lessor if the premises are sub-let, and from the person in whom the right to let the premises vests if they are unlet. Therefore, although it is true that the lessor would be liable even though lie did not receive any rent in respect of this furniture because under Rule 7 of the Taxation Rules the rateable value is arrived at not by considering the actual rent received by the landlord but on the basis of the amount of the annual rent for which such land or building might be reasonably expected to let from year to year. Yet before a person can be made liable for the payment of tax he must be the lessor, he must be the person who must have the right to let the premises, and he must be the person to whom the premises would revert at the end of the tenancy. If this furniture does not revert to the lessor, then in relation to this furniture it cannot be said that the owner of the theatre is liable. 'We are not impressed by Mr. Tarkunde's contention that the building should be assessed as a unit. There may be cases where more than one person is the owner of the building, in which case it cannot be suggested that only one person can be made liable for the payment of the tax. So here we have a case where not only the owner but the tenant is also interested in the building if we look upon the furniture as part of the building. Therefore part of the building is owned by the assessee and the other part is for the present limited purpose owned by the tenant. If that be the true position in law, then quae the part owned by the tenant, the tenant alone is primarily liable to pay the tax. But Mr. Tarkunde says that under the lease the landlord is entitled to the fixtures on the determination of the tenancy. That is a question of fact. Therefore the taxing authority will decide as a fact as to whether the furniture in question is owned by the tenant and whether the lessor has any right to that furniture on the determination of the tenancy. If the lessor has no right to the furniture on the determination of the tenancy, then the learned Assistant Judge is right in the view that he has taken.

13. Mr. Tarkunde does not press the point with regard to insurance.

14. No order as to costs in C.B.A. Nos. 219 and 220.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //