P. Ramakrishnan, J.
1. These writ petitions are dealt with together as certain common questions arise for decision. I will take up first the three writ petitions of the year 1965. They relate to the demand of property tax by the respondent, President, Panchayat, Perungalathur, Chingleput District, against the petitioner, Standard Motor Products of India Limited, for the half years ending 31st March, 1964, 30th September, 1964 and 31st March, 1965. The petitioner, according to its affidavit, is a manufacturer of motor cars and their parts, and it has got its factory at Perungalathur, within the limits of the respondent panchayat. The levy of property tax on factory buildings is governed by the Madras Panchayats Act, 1958 (XXXV of 1958) (hereinafter called the Act). The factory building is a house as defined in Section 2(13) of the Act. That definition reads:
'house' means a building fit for human occupation, whether as a residence or otherwise...and includes any shop, workshop or warehouse or any building used for garaging or parking buses or as a bus-stand.
Rule 2 of the rules framed in Notification No. 40, by the Madras Government under the Act lays down the manner of ascertaining the annual or capital value of houses for the purposes of assessment to house tax Rule 2(a) states:
The annual value of a house shall be deemed to be the gross annual rent at which the house may reasonably be expected to let from month to month, or from year to year, less a deduction of ten per centum of such annual rent and the said deduction shall be in lieu of all allowances for repairs or on any other account whatever.
Rule 2 (b)(ii) states:
In the case of any building falling within the definition aforesaid, of a class not ordinarily let, the gross annual rent of which cannot, in the opinion of the executive authority, be estimated, the annual value shall be deemed to be six per cent, of its capital value.
These rules were framed under Section 120 (4) of the Act which enables the Government to make rules providing for the manner of ascertaining the annual or capital value of houses or the categories into which they fall for the purpose of taxation It is clear from Rules 2(a) and 2(6)(ii) extracted above, that buildings, for the purpose of levy of house-tax, fall broadly into two categories (1) buildings which may reasonably be expected to let from month to month or from year to year, in which event the annual value of the building on which the property tax is assessed, will be the gross annual rent at which it may reasonably be expected to let, less a deduction of ten per cent, of such annual rent, the deduction being in lieu of all allowances for repairs or on any other account whatever; and (2) buildings of a class not ordinarily let, the gross annual rent of which cannot, in the opinion of the executive authority, be estimated, in which event the annual value shall be deemed to be six per cent, of its capital value.
2. In the case of the petitioner, the assessing authority reached the opinion that the building fell under the second category, that is, not capable of being ordinarily let, and levied property tax at six per cent, on the capital value. Relying upon the provision in Rule 19 in Notification No. 3 isued by the Government and published in the Fort St. George Gazette dated 31st July, 1963, the petitioner filed an appeal to the Panchayat Board against the above order of assessment, urging that the building in question was capable of being ordinarily let, though it was not actually let, and that therefore the proper rule for fixing the annual value should be Rule 2(a) mentioned above and not Rule 2(b)(ii). The Panchayat Board appears to have referred the matter for the opinion of one Mr. M.R. Sundaramani, B.A., B.L., Advocate, Tambaram. This Advocate stated in his opinion, a copy of which was supplied to me, that in coming to a conclusion regarding the point in controversy, namely, whether a building is ordinarily capable of being let or not, it should be taken into account that the petitioner is one of the three factories producing small cars in India with the Government of India licence and foreign collaboration, and that the plan of the factory showed that the factory at Perungalathur was built to enable a continuous process of production and assembly of cars. The Advocate stated in his opinion that the factory belonged to a class of buildings not ordinarily let and therefore the annual value should be assessed under Rule 2(b)(ii) of Notification No. 40 above mentioned. When this opinion of the Advocate was received, the Panchayat Board disposed of the appeal of the petitioner by observing thus:
The said appeal was referred to the Advocate, who advised that the tax could not be reduced. Based on this, it is resolved unanimously to reject the appeal, and to collect the tax based on the original notice.
This order was passed on 21st September, 1964. Thereafter the petitioner filed the three writ petitions mentioned above in connection with the demands for property tax for the three half-years mentioned therein, questioning the propriety of the finding of the Panchayat Board in the appeal that the buildings of the petitioner fell under Rule 2(b)(ii) of Notification No. 40. It is alleged in the affidavit filed in support of the petitions by one Ganesh Rao, the Secretary of the petitioner-company that the structure of the building would indubitably establish that it can be let put for factory purposes. It is also alleged that the respondent-Panchayat Board, in passing the impugned order, had surrendered its judgment to the opinion of the Advocate instead of discharging its duty of coming to its own independent conclusion. When notices of these petitions were served on the respondent a counter--affidavit was filed by the President and Executive authority of the Panchayat Board, asserting the contrary position that the construction of these buildings had been planned only with the sole idea of accommodating a particular type of the machinery in the manufacture of cars and spare parts of a particular design, and that the buildings cannot be let out to any other factory or business or for any other purposes. There was a further allegation in the counter-affidavit of the respondent, that on 17th December, 1963 the petitioner-company appealed to the Government under Section 158 of the Madras Village Panchayat Act, against the demand notices issued by the Panchayat, that the Government by its order, dated 20th May, 1965 directed that the assessment on the factory buildings of the petitioner should be revised taking the annual rental value at six per cent, of the capital value of Rs. 21,74,020, and allowing for a depreciation of not less than ten per cent, of the capital value. The respondent alleged that the order of the Panchayat had become merged in the above order of the Government and that therefore the petitioner ought to have sought for the quashing of the order of the Government and on this preliminary ground alone the writ petitions ought to be dismissed.
3. In view of the above stand taken by the respondent-Panchayat, the petitioner filed W.P. No. 2208 of 1967 impleading the State of Madras as the third respondent and seeking for the quashing of the order of the Government, dated 20th May, 1965 by a writ of certiorari. It may be mentioned that this order of the Government, dated 20th May, 1965 was passed subsequent to the filing of the three writ petitions in 1965 and not earlier. In their counter-affidavit filed in W.P. No. 2208 of 1967, the Government took a different stand altogether from that of the Panchayat Board. The petitioner had approached the Government in several communications for relief against the assessment fixed of the Panchayat Board and praying the Government to exercise their power under Section 158 of the Act on a reasonable annual value basis under Rule 2(a). The Government studied the facts and circumstances of the case and thereafter gave the direction above mentioned in the counter-affidavit of the Panchayat Board. But the Government was careful to state in their counter-affidavit, that they did not issue that direction within the forum of a statutory revision petition under Section 158, but it was a direction issued by the Government under Section 158 to the Panchayat Board. Therefore, for issuing such a direction; the Government was not obliged to hear the petitioner or to communicate the decision to the petitioner. However, the Government informed the petitioner that the Panchayat Board had been given necessary instructions in the matter. The Government also concluded their counter-affidavit by saying that on a question of fact the petitioner's buildings fell under Rule 2(b)(ii) of Notification No. 40.
4. At the time of the hearing of the writ petitions, learned Counsel for the petitioner submitted that in the circumstances of these cases, there has been no proper adjudication of the conflicting stands taken by the petitioner on the one hand and the Panchayat Board on the other regarding the factual nature of the building, whether it falls under Rule 2(a) or Rule 2(b)(ii) of Notification No. 40 for the purpose of assessment to property tax. In this connection reference was made to a decision of this Court reported in General Committee, Madras Club v. City Municipal Council (1954) 1 M.L.J. 671, where it is observed that the buildings which are contemplated as belonging to that class (not ordinarily let) are buildings like temples, memorial; buildings, etc. But a building which could be let out both for residential and business purposes would not fall under Section 100(2)(a)(ii) of the District Municipalities Act which corresponds to Rule 2(b)(ii), but would fall under Section 100(2) of the District Municipalities Act which corresponds, to Rule 2(a) of the rules under the Madras Panchayats Act. This decision was followed in a later decision reported in Addison Paints and Chemicals (Private) Ltd., Madras v. Commissioner, Corporation of Madras : (1962)2MLJ440 , which also arose under the District Municipalities Act, where it was observed that the proviso to Section 100(2) of the District Municipalities Act has to be applied in lieu of Section 100 (2), if the buildings are 'of a class not ordinarily let' and that stress is laid on the class or type of the buildings, as ordinarily not suitable for letting out. It is urged by the learned Counsel for the petitioner that there has been no determination in this case, by the Panchayat Board in the appeal before it, as to whether the petitioner's factory squarely falls within the above requirements justifying the assessment either on the basis of the capital value or on the basis of the rental value, as the case may be, depending on the structure of the building and its capacity for being let or not let ordinarily. The order of the Government admittedly is not an order passed in the exercise of the statutory power of revision under Section 158 of the Madras Panchayats Act. The Government themselves say that they did not give notice to the petitioner, affording an opportunity to make its representations before passing the order. They merely interfered on the request made by the petitioner for such interference, and granted some relief and communicated their decision to the Panchayat Board. In fact, it is pointed out by the learned Counsel for the petitioner that what the Government had done is to adopt in part the principle in Rule 2(b)(ii) by fixing the annual value at six per cent, of the capital value and in part the principle in Rule 2(a) to give a deduction of ten per cent. In other words, in adopting a via media between Rules 2(a) and 2(6)(ii), the order of the Government must be viewed as an order passed more or less in its discretion, granting ex gratia some relief to reduce the impact of the burden of the property tax on the petitioner. But it is not claimed to be a statutory order. In fact, the petitioner is not satisfied with the Government's orders in the above circumstances, and would like to have a proper adjudication in the light of the relevant data available, as to whether the building is really capable of being let out as contended by it or cannot be so let out.
5. The attack made by the petitioner against the stand of the Panchayat Board appears to be sustainable. I have extracted the terms of the appellate order as well as the opinion given by the Advocate whom the Panchayat Board consulted. It is clear from the terms of the order that the Panchayat Board has not come to an independent conclusion on the merits of the rival contentions, but was content with adopting automatically the opinion of the Advocate whom the Panchayat Board consulted. The Advocate can give an opinion only about a point of law. But the Panchayat Board ought to have given a finding on the facts, and then applied the law to those facts. Whether it be a finding on the facts or whether it be a finding on the law applicable to the facts found, the ultimate opinion must be that of the Panchayat in its independent judgment. The Panchayat Board appears to have mechanically accepted the opinion of the lawyer whom it consulted, and did not form its own opinion. Consequently it appears to me that neither the Panchayat Board nor the Government have given a conclusive decision on the matter after considering the facts of the case and failed to act in conformity with the statutory provision for appeal in the case of the Panchayat Board, and the statutory provision for revision in the case of the Government. Therefore, the orders of the Panchayat Board making a demand for property tax, which is the subject-matter of the three writ petitions of the year 1965, and the order of the Government making more or less a direction ex gratia for reducing the demand the subject-matter in W.P. No. 2208 of 1967 are quashed. The matter may be considered by the Panchayat Board afresh and dealt with in the light of the law and in the light of the foregoing observations. There will be no order as to costs.