S. Obul Reddi, C.J.
1. Two questions have been raised in this petition, namely: (1) that the structures put up in the premises in question are not 'buildings' within the meaning of Section 2(5) of the Bombay Provincial Municipal Corporations Act, 1949; (hereinafter referred to as 'the Act') and (2) that the respondent No. 2, Corporation, had not followed the procedure laid down in Rule 11 of the Taxation Rules made under the Act and as such the tax levied on the structures is illegal and not permissible under the provisions of the Act and the Rules made there under.
2. The facts necessary for determining the questions involved are these. The petitioner carries on business of advertisement and publicity in Ahmedabad. In the course of his business, he enters into agreements of licence with the owners of various properties in Ahmedabad for putting up advertisement boards either on the ground or on a portion of the plot on which the building is situate or on the terrace of any existing building or on the compound wall or side wall of an existing building. For the purpose of putting up the advertisement boards, he had obtained the necessary licence from the Corporation. It is his case that he is not a tenant of the various owners in respect of any portion of the land or the terrace or wall on which the sign-boards are put up. He has no exclusive possession or otherwise of any particular portion of the plot or the building nor is there any transfer of interest by the owners to the petitioner. He is only a licencee permitted to put up the sign-boards at his own costs in consideration of making certain payments as provided under the agreements entered into with the owners. It is his case that the sign-boards put up in the manner referred to above do not amount to erection or construction of a building and as such the respondents are not entitled to levy property taxes on the sign-boards treating them as superstructures coming within the definition of 'building'. It is also his case that the plot in which the sign-boards are put up were already subjected to property tax and, therefore, he cannot be asked to pay tax in respect of properties which have already suffered tax. He also complains that there is breach of the requirements of Rule 11 of the Taxation Rules inasmuch as there is no consent of the owner in writing when any building or land or premises is let to two or more persons, when they are proposed to be taxed separately.
3. The petition is resisted by the respondents on the ground that the structures put up for advertisement are on land and the premises in respect of which no 'separate property tax has been levied. It is also the case of the respondents that Rule 11 of the Taxation Rules is not appli cable to the facts of the case. It is not a case where the owner is sought to be taxed but a case where a person who is not a tenant but a person who occupied the space on which there is no construction is being taxed in respect of the sign-boards put up by him.
4. Mr. Kaji, learned Counsel appearing for the petitioner, invited our attention to an earlier judgment of a Single Judge of this Court in Harivadan Ratnanlal and Am. v. M.A. Panchal and Am. (Special Civil Application No. 292 of 1964 decided on June 16, 1969) to contend that notwithstanding the decision of this Court in that petition quashing the levy of property tax on the structures in question, the Cor poration has once again chosen to tax the petitioner on the same struct ures, namely, the advertisement boards. That writ petition was filed in respect of the tax levied for the financial years 1962-63 and 1963-64 in all amounting to Rs. 2,263-25 ps. It may be stated at the outset that that decision does not operate as res judicata for the subsequent years. What was quashed was only the demand made by the Corporation in respect of those two financial years. We have, therefore, to examine whether the Corporation has acted within the bounds of the provisions of the Act and the Rules made there under in issuing the demand notices in respect of the subsequent years.
5. The relevant provisions to be noticed are the following. Section 2(5) defines 'building'. 'Building' includes 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 plin the, doorsteps, walls including compound walls and fencing and the like. It should be remembered that at the date when the earlier petition came up for hearing, the decision was rendered solely on the basis of the definition of the expression 'building'. The other provisions of the Act were not noticed nor could the counsel for the petitioner or the respondents possibly refer to the decision of the Supreme Court in Anant Mills v. State of Gujarat : 3SCR220 , which was rendered subsequently. The other definitions which require to be noticed are of 'land' and 'premises'. 'Land' includes land which is being 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. 'Premises' includes messages, buildings and lands of any tenure whether open or enclosed, whether built on or not and whether public or private. It is with reference to the meanings given to the expression 'land' and 'premises' that we will have to determine whether the Corporation acted within the limits of law in levying property tax on the sign-boards put up by the petitioner for advertisement purposes.
6. Final Plot No. 496 has been given Municipal Census Number 496, 496/1 to 496/7 in respect of various portions of the building in occupation of various tenants and the owner. The petitioner has been putting up the sign-boards on two pillars in a portion of the said plot. He has put up two sign-boards on the ground and one board on the terrace of the building. Similarly, in Final Plot No. 1064, the petitioner put up two sign-boards on a portion of the ground on two pillars as was done by him in Municipal Census No. 496. The petitioner, under another agreement entered into with the owner of a flat in Palace Co-operative Housing Society, put up a sign-board on the terrace of the flat erecting two pillars. He entered into another agreement with another owner and put up a sign-board on the compound wall of his building but the said board is said to have been removed on April 1, 1974 after his agreement came to an end.
7. In Anant Mills case (supra) the Supreme Court explained in detail, after referring to several English decisions, the meaning of the expression 'land' in Section 2(30). That was a case where the Ahmedabad Electricity Company, a licensee under the Indian Electricity Act, had laid underground supply lines under most of the roads and public streets in the City of Ahmedabad. The Corporation assessed the Electricity Company to property tax and made it liable to pay the tax on the ground that the underground supply lines occupied space below the surface and the said space constitutes 'land'. Khanna J., observed.--
It may be stated that the word 'land' has also been defined in Clause (30) of Section 2 of the Corporations Act to includes land which is being built upon or is built upon or covered with water, benefits to arise out of land, things attached to the earth on permanently fastened to anything attached to the earth and rights created by legislative enactment over any street. This definition is of inclusive nature and does not exclude from its ambit the underground strata of the land.
Repelling the submission that the right to lay down supply lines under Section 12 of the Indian Electricity Act is in the nature of a statutory licence and is not a right in land, the learned Judge observed-
This submission is wholly misconceived because what is taxed under Corporations Act is land. Section 139, as already mentioned earlier, merely fastens the liability and states that the person primarily liable to pay the tax would be the actual occupier. It is not the case of the Corporation that the right of the petitioner-company of laying and placing electric supply lines constitutes land and as such the petitioner-company is liable to pay property tax. On the contrary, the liability is sought to be fastened on the petitioner-company because of the company being in occupation of the land wherein electric supply lines have been laid and placed.
The learned Judge also referred to the observations of Lord Macnaghten and Lord Davey which are as follows:
Now, putting aside for a moment the reservations contained in the deed of grant, can there be any doubt as to the position of the company for rating purposes as regards their authorized works? The numerous cases relating to gas companies, water companies, and gram-ways, place the matter beyond question and Lord Davey--
My Lords, I agree with the learned Judges in the Court of Appeal that the drainage company are not owner of the soil of the tunnels or water-course. But that does not seem to me conclusive on the question of their rateability in respect of their occupation. The right of the company may be an easement or incorporeal right; but the easement may be of such a character as requires the occupation of land for its exercise, and confers upon the company a right to occupy land during its continuance. According, to a long course of authority, the occupation of land under such circumstances is sufficient for rating purposes, though unaccompanied by ownership of any portion of 'the soil. The law was thus stated by Wightman J. in Reg v. West Middlesex Waterworks (1859) 1 E.I. and El 716 at p. 720: 'In this case,' says the learned Judge 'the first question is whether the company are rateable for their mains, which are laid under the surface of the highway, without any freehold or leasehold interest in the soil thereof being vested in the company. We think they are. These mains are fixed capital vested in land. The company is in possession of the mains buried in the soil, and so is de facto in possession of that space in the soil which the mains fill, for a purpose beneficial to itself. The decisions are uniform in holding gas companies to be rateable in respect of their mains, although the occupation of such mains may be de facto merely, and without any legal or equitable estate in the land where the mains lie, by force of some statute.
Approving these observations, the Supreme Court held that the petitioner-Company in that case was in occupation of the underground strata of the land through which their electric supply lines had been laid,
8. Therefore, following the decision of the Supreme Court in Anant Mills case (supra), we hold that the petitioner, by reason of his having occupied the space on the land and also on the terrace is liable to pay property tax. As pointed out by the Supreme Court--
The word 'land' includes not only the face of the earth, but everything under or over it, and has in its legal signification an indefinite extent upward and down ward, giving rise to the maxim, Caucus eat solum ejus est usque ad column According to Broom's Legal Maxima 10th Edn. p. 259, not only has land in its legal signification an indefinite extent upwards, but in law it extends also downwards, so that whatever is in a direct line between the surface and the centre of the earth by the common law belongs to the owner of the surface (not merely the surface, but all the land down to the center of the earth and up to the heavens) and hence the word land' which is omen generalissimo, includes, not only the face of the earth, but everything under it or over it.
Therefore, we have no hesitation in holding that the tax liability of the petitioner is attracted. It should be remembered that it is not a case of any property tax being levied once again on the owner of the building.
9. Rule 11 of the Taxation Rules which has been relied upon only speaks of treatment of property which is let to two or more persons in separate occupancies. This is not a case where the property has been let to two or more persons in separate occupancies. We, therefore, hold that there is no violation of the procedure laid down in Rule 11.
In view of the earlier decision of this Court in Special Civil Application No. 292 of 1964 in respect of the assessment made for the financial years 1962 to 1964 which has become final, the Corporation is precluded from demanding from the petitioner property tax in respect of those two years. In respect of the subsequent years, the right of the Corporation to levy property tax on the petitioner is upheld. The Corporation will therefore be entitled to demand and collect the property tax from the petitioner in respect of the financial years commencing from April 1, 1964 onwards.
10. The petition is allowed only to the extent of the two financial years 1962 to 1964 and dismissed in respect of the tax demanded for the subsequent financial years. Rule discharged with no order as to costs.