N.H. Bhatt, J.
1. All these are the appeals under Section 411 of the Bombay Provincial Municipal Corporations Act, 1949 brought to this Court by three different appellants, challenging the orders in the Municipal Valuation Appeals decided by the Judge of the Small Causes Court, Ahmedabad before whom the proceedings had arisen under Section 406 of the Act. A schedule is appended to this judgment, showing which appeal has arisen from which Municipal Valuation Appeal in the Small Causes Court, what property is involved and for which year the respective first Appeal is. All these appeals can be conveniently dealt with together and disposed of by this common judgment, of course with the concurrence of the learned advocates appearing for the Corporation as well as Mr. P.V. Nanavati, who is the advocate for the appellants in all these seven appeals.
2. The question that arises in these seven appeals is whether a parking place which is required to be compulsorily kept by the owner of a commercial building can be made liable to general tax which is leviable under Section 132 of the Act. It is common ground in all these appeals and the learned advocates appearing for the Corporation also did not dispute this proposition, that the parking place are compulsorily required to be provided for in such commercial buildings meant for office rooms and/or professional consulting rooms as per the municipal bylaws. As per the said by-laws, in case of such commercial buildings, known as office rooms and professional consulting rooms, a provision for parking place is a matter of obligation and the permission to construct is given subject to those conditions. It is equally an admitted fact that if such a parking place is used for the purpose other than that of parking, it would be the breach of the municipal by-law, which breach would visit the occupier or the owner with penal consequences. The building concerning the First Appeal no. 205/80 is known as the Relief Shopping Centre situated on the Salapose Road, Ahmedabad. The Building, which is the subject matter of the First Appeal nos. 1122/79, 1125/79 and 653/80 is a shopping centre known as the Vrandavan Shopping Centre. The building that concerns itself with the First Appeals nos. 1123/79, 1124/79 and 604/80 is known as Anand Shopping Centre. The Relief Shopping Centre was constructed by the appellant company of the First Appeal no. 205 of 1980. After constructing those various offices and consulting rooms, the appellant-company sold away those premises to different persons, but retained its ownership, possession and control of and over the parking space. In two other matters also, the owners who constructed those shopping centres, did likewise. It is, however, the common ground, which is not controverted, that these owners of parking places, allow their assignees or tenants the free use of this parking place. Even the visitors to those offices avail themselves of this facility, without paying any charges. For the years 1977-78, 1978-79 and 1979-80, the Municipal Corporation treated these parking places as buildings, worked out their annual letting value and levied the general tax. The objections were lodged, but they were turned down by the Appellate Officer and the matter had gone to the Small Causes Court and ultimately the matters are before this Court.
3. Mr. Nanavati, the learned advocate appearing for all the appellants in these seven appeals, urged that as per the municipal compulsion, these parking places were required to be used as such and under the peril of prosecution, the appellants could not put these parking places to any other use. Mr. Nanavati's submission, therefore, was that these properties, which were required to be set apart compulsorily for the use of buildings in question, could not be separately conceivably let and the question of arriving at the real or hypothetical annual letting value would not at all arise. He, therefore, as a consequence pleaded that as these properties were not susceptible of being attached any annual letting value as defined in Section 2(1A) of the Act the very bottom of assessment under Section 132 of the Act, was knocked out and the properties, therefore, were not liable to pay the general taxes under Section 132 of the Act. On the other hand Mr. G.N. Desai and Mr. S.N. Shelat appearing for the Corporation in some of these matters, urged that these parking places were independent units of buildings and by resort to Section 3(1A) of the Act, annual letting value could be fixed with respect to them and as they were buildings, they were liable to pay the general tax, which were levied in their respect. It is this controversy resting on the interpretation of the various provisions of the Act, that is to be resolved in these appeals.
4. Though Mr. Nanavati urged that parking places were not buildings, we find ourselves unable to agree with him because of the wide definition of the word 'building' given in the Act. Section 2(5) of the Act defines 'building' as under:
(5) 'Building' includes a house, outhouse, 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;
Even a bare look at the said definition is sufficient to convince one that it is a definition of very wide amplitude. As a matter of fact, it is an inclusive definition, covering any constructed portion on the land. It is, therefore, difficult, nay impossible, for us to accept the contention of Mr. Nanavati that these parking places in these seven appeals, which are constructed at considerably high cost, are not buildings. In the case of all these office buildings that relate to these seven appeals, it is the basement or cellar portion, that is being shown and recognised as the parking places connected with the building. It is obvious that without undertaking extensive constructional work, such a basement cannot be prepared. It is in this light that we have stated that these basements, which are common parking places, are buildings and not land.
5. Mr. Nanavati's next and major submission before us, however, was that even if these parking places were, treated as buildings, they were not liable to be separately assessed. Section 132 of the Act, which refers to the general tax, reads as follows; before its amendment by Gujarat Act no. 1 of 1979:
132(1) The general tax shall be levied in respect of all buildings and lands in the city except.
xx xx xx
After the amendment brought about by Gujarat Act no. 1/79 the said Section 132(1) reads as follows:
132(1) The general tax shall be levied in respect of all buildings and lands in the city the rateable value of which exceeds three hundred rupees except xx xxx
For our purposes, this Legislative change effected by the Gujarat Act no. 1/79 bears no significance. It would, therefore, mean that all buildings and lands in the city, except those specified in Clauses (a), (b) and (c) of Sub-section (1) of Section 132 of the Act are liable for the general tax. If we hold that these parking places are buildings, then they should ordinarily be liable for the general tax. What is there then in these three parking places in these seven appeals that takes away the general taxability of theirs?
6. According to Mr. Nanavati, these properties under the provisions of the municipal law are such as cannot be let and, therefore, they cannot be the subject matter of assessment of annual letting value. According to him, these parking places are provided for the general beneficial use or by way of an amenity to the other offices and consulting rooms, which are assessed. It cannot be gainsaid that under the compulsion of law, these parking sites cannot be put to any other use. They are to be used under the municipal by-law only for the purpose of parking and if an owner or occupier of these parking places puts these parking places to any other use, he will be penally liable. Does this mean that these parking places cannot be subjected to fixation of annual letting value? Such parking places retaining their character as parking places can be let out or can be licensed out to the various different owners or occupier of those offices and consulting rooms. Even a licensee can be assigned the control and management of these parking places and some consideration can be charged from him against his right to collect the parking charges from those owners or occupiers of those offices and consulting rooms and their visitors. There is no by-law, which enjoins upon the keeper or owner or occupier of these parking places to extend the enjoyment of these parking places for the beneficial enjoyment of the various offices and consulting rooms. It is no doubt true that ordinarily it is expected that these parking places would be of beneficial use only to those who occupied those offices and consulting rooms or those who happen to go to these offices and consulting rooms. That, however, does not mean and cannot mean that those people are entitled to use these parking places as a matter of right, without any liability to pay for those amenities or facilities. There is no such compulsion in law for the owner or occupier of these parking places to do so.
7. Mr. Nanavati in this connection invited our attention to the judgment of the Supreme Court in the case of Corporation of Calcutta v. Sm. Padma Debi and Ors. : 3SCR49 . In that decision, the Supreme Court, while dealing with the question of annual letting value held that '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'. The said authority further lays down that 'the law of the land must necessarily be taken as one of the circumstances obtaining in the open market placing an upper limit on the rate of rent for which a building can reasonably be expected to let' The legal inhibitions surely to be taken into account while working out the annual letting value of such parking places. Such parking places cannot be treated at par with other open spaces or other similar places, which can be let out for the purpose of say, storage, or conducting any other operations, which it may be open to the owner, hirer or occupier to conduct at its sweet will, but we are not ready to subscribe to Mr. Nanavati's absolute proposition that such parking places are incapable of being put to any use by anybody else, except the occupiers of office rooms and consulting rooms and their visitors as of right without payment of any charges.
8. Even if we hold that these parking places are the buildings of a class not ordinarily let, proviso (c) appended to Section 2(1A) of the Act lays down that the annual rent shall be deemed to be six per cent of the total estimated market value at the time of assessment of the land on which such building or buildings stand or, as the case may be, of the land which is comprised in such premises, and the estimated cost at the time of the assessment of erecting the building or, as the case may be, the building or buildings comprised in such premises. This proviso (c) was the subject matter of challenge before the Division Bench of this Court in the case of Anant Mills Co. Ltd. and Ors. v. State of Gujarat and Ors. 14 G.L.R. 826. This question has been dealt with by the Division Bench in paragraph 37 to 43. After examining the pros and cons of the pleas advanced in that regard, the Division Bench ultimately concluded as follows:
This is clearly a valid basis of classification, because it is apparent that if there is no appropriate method by which the annual rent of the building-and when we speak here of the annual rent, we mean annual rent contemplated by sub-clause(ii), that is, hypothetical rent in a market controlled by rent restriction legislation-can be properly estimated, the Legislature would certainly be justified in prescribing a different method of valuation. Proviso (c) which prescribes a statutory method of valuation in respect of buildings covered by it cannot, therefore, be said to be violative of Article 14 of the Constitution.
This judgment in Anant Mills Case had gone to the Supreme Court and the decision is to be found reported at : 3SCR220 . The validity of proviso (c) was not disturbed even by the Supreme Court in that case. So the parking places even if they cannot ordinarily be let, can have their annual letting value. We, therefore, do not agree with Mr. Nanavati that because of the possibility of these parking places with the statutory burden on them being not liable ordinarily be let, are not subject to annual letting value. In fact, in the cases on hand and particularly in the First Appeal no. 205 of 1980, the contractors' test method has been alternatively employed by the learned Judge for the purpose of reaching on the annual letting value.
9. Mr. Nanavati, however, very vehemently contended before us that as these parking places were intended primarily, if not wholly, for the benefit of various offices and consulting rooms in those respective shopping centres and as those various offices and consulting rooms were assessed to the general and other taxes, it should be assumed as a matter of inevitable probability that these parking sites were annexed to those offices and consulting rooms, that these parking places had their value reflected in the value of those respective premises and that if these parcels of parking places are taken into account while fixing the annual letting value of these offices and consulting rooms, there cannot be second time or further assessment of those very parking places as independent units. Even Mr. G.N. Desai and Mr. S.N. Shelat appearing for the Corporation were fair enough to concede before us that if the value of these parking places are added to the value of the offices and consulting rooms at the time of assessing value of those offices, etc., there would be clearly be a case of double taxation and that in such a case, separate and independent assessment of these parking places would not be permissible. The question which he raised, however, was that there was no material on record in any of these cases to show that the value of these parking places brought to bear while fixing the value of those offices and consulting rooms. Mr. Nanavati in this connection urged that as these parking places were to all intents and purposes compulsorily provided for by the respective builder of those complexes of offices and consulting rooms it is natural and inevitable to assume that such additional value of parking spots must have got their reflection in the value of offices and consulting rooms. It is difficult for us to jump to such a factual inference, though we would say that if there is some material, such an inference can be logically possible. The very fact that the municipality, while assessing the values of offices and consulting rooms, independently assessed these parking places itself on the contrary will be an indication that the municipality did not take into account the value of the parking places while fixing the value of those offices and consulting rooms. It is, however, open to the contending parties to lead adequate material on the record of the case from which in inference could be deduced that such value of parking places is invariably associated with the value of those offices and consulting rooms. If this could be successfully shown, there would be a successful challenge to the separate and independent assessment of these parking places. For want of any definite material, it is difficult for us to subscribe to the view very vigorously canvassed by Mr. Nanavati before us.
10. In this connection, Mr. Nanavati invited our attention to the affidavits filed on the records of cases from which the appeals nos. 1122 to 1125 of 1979 and 604 and 653 of 1980 arise. An affidavit was filed in these cases by the Manager of Vrandavan Shopping Centre and Anand Shopping Centre. In the course of the affidavit, he stated as follows: (We translate paragraph 4 of the affidavit as faithfully as possible)
The gross annual rateable value of the shops and offices in above centre should be deemed to have been fixed after taking into account the market value of the property, along with the facility of car parking and cycle parking in the basement-cum-cellar of the property and it gets reflected in it:
Mr. Nanavati submitted that the above-quoted statement was at any rate an evidence in those appeals to show that the value of the respective parking places was reflected in the value of these properties. The above sentence excerpted from the affidavits is nothing but an opinion of the deponent. The deponent is not in a position to speak affirmatively that it was so. He only expressed his belief that it should be so calculated. In other words, the deponent's statement is nothing but the view expressed by Mr. Nanavati before us. It does not partake of the character of evidence before us.
11. Mr. Nanavati in this connection had also invited our attention to two more authorities of the Supreme Court in order to support his submission that all relevant factors should be taken into account before the annual letting value is reached. He also urged that higgling tenant is the hypothetical tenant, who should be brought into the picture by the authorities that decided the annual letting value. The case cited by Mr. Nanavati are (1) the case of Motichand Hirachand and Ors. v. Bombay Municipal Corporation : 1SCR546 and (2) the case of the Municipal Corporation of Greater Bombay v. Polychem Ltd. : 3SCR687 . It cannot be gainsaid that all such factors are to be taken into account while fixing the market value. This proposition, however, is different from the basic question whether the property by its very nature is incapable of being valued in terms of annual letting value. Ryde on Rating, 13th Edition, has in this connection expressed the following opinion:
Rateability can only be avoided by abandoning use of hereditament altogether.... The same principle was applied by the Lands Tribunal in City of London Real Property Co. Ltd v. Stewart (Valuation Officer) where the rateability of a car park in the forecourt of a block of offices in the City of London was considered. It was held that the landlords of the office block were in actual occupation of the car park and that their occupation was of benefit because although they did not charge for the use of the parking space, they could have done so if they chose. And in two subsequent cases the Lands Tribunal held that local authorities were in beneficial occupation of public car parks, notwithstanding that the authorities chose to make no charges....
The above-quotation resting on judicial pronouncements of English courts, therefore, lays down that profitability or income-producing capacity should be the criteria and that in order to have annual letting value, a property need not necessarily fetch actual income. As a matter of fact, fetching of actual income would depend upon the volitional factor of the occupier or owner. As said by us above, it is perfectly open to the owners-cum-occupiers of these buildings of these seven appeals to have their licence fees or charges for allowing the occupiers of offices and consulting rooms and their customers against the extended benefit of car parking and other parking in these parking places which admittedly are under the exclusive possession and control of the respective appellants.
12. Mr. Nanavati in this connection, however, urged that there might be cases in which the various parcels of a block of car parking might be annexed to the individual offices. For example a specified car parking plot might be earmarked exclusively say for a particular number of office in that complex, Mr. Nanavati therefore, urged that in cases like this, the spot earmarked for a particular office would be an adjunct of the office itself and would invariably be associated with the office, when the office in question is subjected to evaluation in terms of annual letting value. As said by us above, such a possibility cannot be ruled out and in such cases, if that particular spot of car parking is taken into account for the purpose of working out the annual letting value of a particular office, it can be said that it is also subjected to annual letting value and even the advocates for the Corporation conceded that if once such car parking spots are subjected to annual letting value, they cannot and would not be subjected to second time evaluation in terms of annual letting value. As the cases on hand are not of the type of such a possible case, the argument advanced by Mr. Nanavati is to be treated only as a hypothetical one and we are not strictly required to deal with such possible cases.
13. Mr. Nanavati further urged that when under the municipal law, such car parkings are required to be set apart as a matter of statutory compulsion, the court should interpret this obligation in a broader perspective and should hold that this car parking is directed or ordained to be open to use free of charges for parking. We have no objection to accepting the broader principle that interpretation of a particular statute in the absence of anything contrary suggested should take into account all the attendant circumstances. However, despite accepting this principle, we are unable to hold that a compulsorily required car parking must of necessity be free of charge. It will be militating against the conceivable charging of fees in the form of licence fees by those who are in charge of such parking places.
14. In the course of his submission, Mr. G.N. Desai, the learned advocate for the Corporation, had made one proposition which we would like to call astounding. We refer to it only for rejection. Mr. Desai urged that though under law a car parking is required to be compulsorily set apart, it may or may not be put to any such use, depending upon the volition of the man, who had put up that complex of office rooms and consulting rooms. When the local authority makes a compulsory provision for such car parking, it is reasonable to assume that such car parking is intended to be used by those who happen to occupy or go to those offices and consulting rooms. Whether it should be allowed to be done by charging some fees or not would depend upon the circumstances of the case. Neither in law nor in logic there is any thing to prohibit the owner or occupier of such car parking place from charging the necessary fees.
15. In above view of the matter, we find no substance in these appeals, which are dismissed with no order as to costs.
At this stage, Mr. Nanavati, the learned advocate for all the appellants in these seven appeals prayed for a certificate under Article 133 of the Constitution of India. As we have decided these appeals on the basis of the well-recognised principles, we do not think that there is any substantial question of law of general importance which in our opinion would require the decision of the Supreme Court. The oral application is therefore, rejected.