Rampini and Mookerjee, JJ.
1. This is an appeal under Section 50 of the Land Acquisition Act, 1894, against an award of the Special Land Acquisition Judge of 24-Pergunnahs, made under Section 26 in modification of the award of the Collector under Section 11 of the Act. The property, which is the subject-matter of the acquisition, is situated within the municipal limits of Calcutta, and has been acquired by the Government of Bengal, at the expense and for the benefit of the Corporation. At the time of the declaration under Section 6, it was admittedly bustee land, that is, land let out for the building of huts under an arrangement by which each tenant of the land is the owner of his hut. The Collector awarded Rs. 22,572 for the land and Rs. 5,168 for the huts; the latter amount has been accepted by the tenant?, and there is no dispute with regard to it. As regards the amount awarded for the land, however, the claimant refused to accept it, and upon his application the matter was referred to the Civil Court under Section 18 of Act I of 1894. The learned Special Judge has found upon the evidence that the gross monthly income from the property is Rs. 350, that a deduction of 40 per cent. ought to be allowed for taxes, repairs, and other charges, that the net monthly income is Rs. 210, and that consequently, the market value of the property, at 20 years' purchase of the net annual income, is Rs. 50,400. But the learned' Special Judge has held that Section 557, Clause (d) of the Calcutta Municipal Act is applicable to this case, and, on this basis, has found that the market value must be taken to be 25 times the annual value as entered in the assessment book of the Corporation, that is, Rs. 2,129 x 25=53,225. From this sum he has deducted Rs. 5,168, the value of the huts, and awarded to the respondent the balance, Rs. 48,057, together with the statutory allowance, as the value of the land. The Secretary of State has appealed against this award, and, on his behalf, the decision of the learned Special Judge has been assailed substantially on two grounds, namely, first, that Section 557, Clause (d) of the Calcutta Municipal Act has no application to this case, and the claimant is not entitled to any sum beyond what may be determined to be the market value without any reference to the presumption mentioned therein, and, secondly, that the determination of the market value is vitiated by two errors, inasmuch as
(a) only 40 per cent. has been deducted from the gross annual income for taxes and repairs, whereas the allowance ought to have been at least 50 per cent., and
(b) the property has been valued as a whole and the value of the land has been ascertained by taking the difference between the value of the entire property and the value of the huts, whereas the land ought to have been valued independently of the huts.
2. In our opinion, the first of these contentions ought to prevail, but the second cannot be sustained.
3. In support of his first contention, namely, that the provisions of Section 557, Clause (d) of the Calcutta Municipal Act have no application to this case, the learned Advocate-General has advanced three reasons, namely--
(1) that Section 557, Clause (d) ought to be interpreted as limited in its application strictly to cases where the Calcutta Municipal Authorities acquire land or buildings for themselves, and that it ought not to be extended to a case like the present where the acquisition is made for them by the Local Government;
(2) that Section 557, Clause (d) applies only to lands other than bustee lands; and
(3) that a re-assessment has not been made within the meaning of the proviso to the clause, after the commencement of the Calcutta Municipal Act, 1899, for the district in which the land acquired is situated.
4. In support of the first of these reasons, the learned Advocate-General has argued that Section 557 ought to be taken as a whole and that as Clause (a) of the section authorizes the Chairman of the Corporation of Calcutta to perform the duties of a Collector under the Land Acquisition Act, unless, in the matter of the acquisition, he acts as Collector, the remaining provisions of the section have no application. After a careful examination of this argument, we are not prepared to accept it as sound. Section 557 of the Calcutta Municipal Act, after providing that 'any land or buildings which any Municipal authority is authorized by this Act to acquire may be acquired under the provisions of the Land Acquisition Act, 1894,' lays down that for that purpose, namely, for the purpose of acquisition of land or buildings by a Municipal authority under the Land Acquisition Act, that Act shall be subject to certain specified amendments. The first of these amendments is that the expression 'Collector' means also the Chairman of the Corporation of Calcutta. As we understand the scope of Clause (a), which contains this amendment, the object is merely to give an extended definition of the term 'Collector' [which is defined in Section 3, Clause (c) of the Land Acquisition Act], and not to lay down that in the case of acquisition by a Municipal authority, the Chairman of the Corporation is the only person competent to discharge the functions of a Collector. In other words, in the event of an acquisition of land or buildings by a Municipal authority under the Land Acquisition Act, it is open to the Chairman of the Corporation to perform the duties of the Collector, but it is not obligatory upon him to do so. But whether the Chairman of the Corporation or any of the other persons mentioned in Section 3, Clause (c) of Act I of 1894, acts as the Collector, the acquisition must take place under the Land Acquisition Act, and it cannot be made until the Local Government is satisfied, under Section 4, Clause (1). that the land is needed for a public car-pose and a declaration of the intended acquisition is made as required by Section 6, clause(l) under the signature of a Secretary to the Local Government or of a duly authorized officer. The only difference introduced by Section 557, Clause (a) of the Calcutta Municipal Act appears to be that the Chairman of the Corporation is authorized to perform the duties, which would be ordinarily performed by the Collector, for instance, those imposed on the Collector by Sections 4, 5,7--17 of the Land Acquisition Act. It appears to us to be obvious that, if the Chairman of the Corporation Acts as the Collector, that fact alone does not in any way affect the nature and scope of the proceedings. We are inclined to adopt the view that a performance by the Chairman of the Corporation of the duties of a Collector under Clause (a) of Section 557 of the Calcutta Municipal Act, is not a condition precedent to the applicability of the provisions of the other clauses of the section. Indeed if any other view were adopted, the result would be that the application of the presumption embodied in Clause (d) might be evaded by the device of the Corporation asking the Local Government to acquire the land for them and employing the Collector instead of the Chairman for the purpose of the acquisition. We are not prepared to hold that this was the intention of the Legislature. The distinction suggested on behalf of the appellant does not appear to be justified by a fair interpretation of the section and manifestly cannot be supported on principle. In our opinion, the first reason assigned for the exclusion of the operation of Section 557 has not been established; but it is not necessary to proceed further with the examination of this particular point, as the third reason, with which we shall presently deal, appears to be unanswerable.
5. In support of the second of the three reasons for excluding the operation of Section 557, namely, that Clause (d) of the section applies only to lands other than bustee lands, the learned Advocate-General has invited our attention to Sections 151 and 152 of the Calcutta Municipal Act. These sections, however, as we read them, appear to negative rather than to support the contention, for they show that the term 'land' is used therein as including both building land and bustee land, and, when the latter is sought to be excluded from the operation of any particular rule, the exception is stated expressly. For instance, the general rule laid down in Section 151, Clause (a) would be applicable to all lands, including bustee lands, but for the proviso Clause (1) and the rule, embodied in Section 152, Clause (1) would affect bustee lands, but for the special provision made in Clause (b) of the proviso. We feel no doubt that the term 'land' as used in Section 557, Clause (d) includes bustee lands, and no good reason has been assigned why the word should not have its ordinary meaning and why it should be restricted in its application to building lands. The second reason, therefore, does not appear to be sound and cannot be accepted.
6. The third reason, upon which the learned Advocate-General seeks to exclude the operation of Section 557, Clause (d) is that no re-assessment has been made, after the commencement of Act III of 1899, for the district in which the land acquired is situated. The question raised is apparently one of first impression, but of great importance and not wholly free from difficulty; it must depend for its solution upon the construction of Section 557, Clause (d) taken along with the provisions of Chapter XII regarding the assessment of land to which we shall presently refer. But before we do so, it is necessary to state the facts as to which we do not think there can be any reasonable doubt upon the evidence on the record. The land, which has been acquired, is situated in ward X, a ward being one of the divisions of the town of Calcutta under the Municipal Act (IE of 1888) now repealed. The annual value of the property, including the land and the hut, was entered in the Municipal books at Rs. 2,129 when the Act of 1888 was in force. The bustees in this ward were revalued some time in 1898 and the revaluation came into effect on the 1st October 1898; the buildings were revalued in March 1900 and the revaluation came into force on the 1st April 1900. As a matter of fact the valuation in force under the old Act was continued under the new Act, and under Schedule VII such valuation is to remain in force till the 31st March 1906. Upon these facts the learned Advocate-General contends that no re-assessment has been made after the commencement of the Act of 1899, that is, after the 1st April 1900, for the district, in which the land acquired is situated, and that consequently the presumption referred to in Section 557, Clause (d) is not applicable. In order to test the correctness of the argument, it is necessary in the first place to determine the meaning of (he two terms, 'district' and 're-assessment' which occur in the proviso to Section 557, Clause (d), and as to the interpretation of which there was considerable discussion at the Bar. As regards the term 'district' as used in this proviso, we feel no doubt that it is equivalent to the term 'ward'; this is made quite clear by Schedule VII, which fixes the dates up to which valuations made before the commencement of the Act are to remain in force and shows in the first column the different districts, each of which is called a ward, indicating .that the two terms are synonymous. The respondent, however, contends that since the Act came into force, the town of Calcutta has been divided into four districts by the order of the Chairman of the Corporation; this however appears to us to be immaterial, and the meaning of the term 'district' as used in the Act cannot be ascertained by reference to an order issued subsequently for administrative purposes. On the other hand the order of Mr. Bright made on the 18th May 1900 shows that the division of the town into 25 districts for the purpose of valuing buildings and lauds, corresponding to the 25 wards, which existed before the passing of Act III of 1899, was retained and continued for the purposes of assessment under Chapter XII of the Act. Next as regards the meaning of the term re-assessment' as used in Section 557, Clause (d), it is contended by the learned Advocate-General that it is equivalent to re-valuation, whereas it is argued by the learned Counsel for the respondent that it means the re imposition of a particular figure as the rate or tax payable for the holding and bearing a certain proportion to the valuation. In our opinion the construction, which the learned Advocate-General asks us to adopt, is clearly, right. No doubt the term assessment may mean the determination or adjustment of the amount of taxation payable or the amount of the taxation so adjusted; but as is stated in the Oxford Dictionary, Vol. I, p. 506, column 3, the word 'assessment' may also mean the official valuation of property for the purpose of taxation or the value assigned to the property for this purpose. That the word is used in Section 557, Clause (d) in the second sense is obvious from an examination of the provisions of Chap. XII of the Act. Sections 151 and 152 show that 'assessment' and '.annual value' are used as convertible terms, and in the latter section land is said to be revalued and the consolidated rate is directed to be levied on the 'assessment', when a holding is subdivided into separate shares: Section 152, Sub-section 2, Clause (g). In addition, to this, Section 164 makes it quite clear that in the assessment hook the amount of the valuation is to be entered as also the amount of rate payable; this indicates that whore the Legislature refers to the amount of tax payable the word used is 'rate' and where reference is made to the 'valuation' it is indis' criminately described as 'assessment' or 'valuation'; this, however, is not always strictly observed, for instance, is Section 170 reference is made to assessment calculated on the valuation, the former term being used as equivalent to 'rate' or 'tax.' Having regard, however, to the fact that the annual value as assessed under Section 151 is to continue for a period of six years under Section 152, Clause (1), whereas the amount of rate varies from year to year according to the discretion of the Corporation under Section 124, Clause (1), and considering further that in Section 557, Clause (d), a presumption is introduced with, a view to ascertain the market value of land or building, we feel no doubt that when reference is made in Section 557, Clause (d) to 're-assessment' the term signifies revaluation and not the re-imposition of 'rate' or 'tax.' If, then, the terms 'district' and 're-assessment' have the meanings we have assigned to them, the question arises whether a re-assessment has been made after the commencement of the Act for the District No. X within which the land acquired is situated. The learned Advocate-General contends that the revaluation was made before the commencement of the Act, though it came into force on the day of the commencement of the Act and under Schedule VII is to remain in force till the 31st March 1906. The learned Counsel for the respondent on the other hand argues that the re-assessment ought to be taken to have been made after the commencement of the Act on three grounds. He suggests in the first place that, as the land acquired is bustee land, under Section 251, Sub-section 2, Clause (b) it must be taken to be revalued from year to year. In our opinion there is no force in this contention. The clause referred to provides that bustee lands may be valued annually at the discretion of the Chairman and shall be so valued on the application of the owner, and when such lands are not revalued, the former valuation shall remain in force from year to year, until a revaluation is made. It is impossible to hold that this implies a revaluation by operation of law from year to year. As we understand the clause, the valuation is to remain in force under Sub-section 1 for a period of six years, subject to this qualification that it is liable to be altered upon a revaluation made within that period at the discretion of the Chairman or on the application of the owner: but such revaluation can take effect only from the beginning of a year, as the valuation remains in force from year to year during the six years. We are consequently unable to uphold the contention that the revaluation of bustee land must be imagined to take place by operation of law from year to year and that there has been in this case a re-assessment within the meaning of the proviso to Clause (d) of Section 557 after the commencement of the Act. But even if the contention of the respondent upon this point were adopted it would not avail him, because the proviso contemplates a re-assessment for the whole district in which the land acquired is situated, and admittedly there is no re-assessment of building lands by operation of law from year to year. In the second place, it was argued on behalf of the respondent that after the new Act came into force rates could be levied under it only on the basis of a Valuation made under the Act, and that therefore by operation of law all the lands must be taken to have undergone a revaluation upon the commencement of the Act. That there is no foundation for this argument is shown by Section 152, Clause (1), which provides that valuations made before the commencement of the Act and in force at that time are to remain in force for the periods specified in Schedule VII. There is therefore no room for the introduction of a fictitious revaluation by operation of law as suggested by the learned Counsel for the respondent. In the third place, it was contended on behalf of the respondent that in order to determine whether a re-assessment has been made after the commencement of the Act within the meaning of the proviso, we have to ascertain whether a revaluation has become final and has come into operation after the date specified. It was suggested that as Sections 160, 161 and 162 allow objections to be preferred to a revaluation made by the Chairman and contemplate the disposal of such objections and possible appeals to a Court of Small Causes, a re-assessment cannot be said to have been made, till the valuation has become final under Section 163, Clause (1). In our opinion this contention is not well-founded. As was pointed out by Maclean C.J., in the case of Corporation of Calcutta v. Bhupati Roy Chowdhry (1898) I.L.R. 26 Calc. 74, 77 'valuation' does not mean merely the amount of the valuation, but covers the whole process or act of valuation. When, therefore, as in the case before us, a substantial part of the act of assessment or valuation was completed before the commencement of the Act, it cannot be reasonably maintained that there was a re-assessment after the commencement of the Act, because some objections to the re-assessment or revaluation might have been preferred or disposed of after that date. That this view is undoubtedly right appears conclusively when we remember the reason for the proviso to Section 557, Clause (d). This clause introduced into the Statute book a new presumption regarding the market value of lands and buildings. That presumption determines the market value from the annual value, which under Act II of 1888, was made for an entirely different purpose, namely, exclusively for the assessment of municipal rates. If the presumption had been made applicable to valuation made under the repealed Act, it might obviously lead to injustice in many cases because such valuation might have been fixed too high at the instance of the Corporation in some cases and too low at the instance of the ratepayers in others. It was therefore manifestly fair that the new presumption should be made applicable only to valuation made after the new Act had come into force, when both the parties might be supposed to keep a possible application of this presumption in view at the time of the valuation of the property. We must consequently hold that there has been no reassessment made after the commencement of Act III of 1899 for Ward No. X, in which the land acquired is situated, and that therefore the learned Special Judge ought not to have applied to the case before us, the presumption laid down in Clause (d) of Section 557. The first contention advanced on behalf of the appellant must accordingly prevail.
7. As regards the second contention of the appellant, the facts' as disclosed by the evidence and found by the learned Judge in the Court below appear to be as follows: The gross monthly income of the properly is Rs. 350; making an allowance of 40 per cent. for taxes, repairs and other charges the net monthly income is Rs. 210; taking therefore 20 years' purchase of the net annual income, the market value of the property is Rs. 50,400; deducting the value of the huts Rs. 5,168, as to which there is no dispute, the market value of the land is Rs. 45,232. To this calculation) two objections are urged by the learned Advocate-General. It is-contended in the first place that to ascertain the net income, the deduction from the gross rental ought to have been at least 50 per cent. We are unable to accept this argument. In our opinion the deduction allowed by the learned Judge in the Court below is fair, namely, 20 per cent. for taxes and 20 per cent for repairs-and other charges. It is conceded that the evidence does not show that the deduction of 40 per cent. is unfair and there are no materials to justify an increase from 40 to 50 per cent. On the other hand, we find that Section 151, proviso, Clause (1) allows a deduction of only 10 per cent for the cost of repairs and for all other expenses for maintenance, in the determination of the annual value. We must therefor hold that a deduction of 20 per cent for taxes and 20 per cent. for repairs, vacancies, collection charges and other contingencies, is quite adequate. It is contended in the second place that the land ought to have been valued separately from the huts. In our opinion the method adopted by the learned Judge is perfectly sound. The property cannot be divided into fragments; it must be taken as a whole and its income ascertained on the assumption that the huts, which stood on the land, were let out to tenants. The tenants admittedly were tenants at will and so far as we can make out, their tenancy had practically no market value. When-therefore the entire property has been valued it is only fair to give to the owner of the land whatever remains after deducting the value of the huts, which were erected by the tenant and to the price of which they were entitled. We must accordingly hold that the respondents are entitled to Rs. 45,232 as the value of the land.
8. The result therefore is that the appeal must be allowed in part and the decree made by the learned Special Judge modified. The market value of the laud is declared to be Rs. 50,400 and the respondent is entitled to Rs. 45,112-10, [which is the amount obtained by deducting from the market Value the value of the huts Rs. 5,168-10 and the capitalised value of the Government revenue Rs. 118-12. The statutory allowance and the interest on the sum decreed will be calculated as usual. The appellant and the respondent are each entitled to the costs of this appeal in proportion to the extent of his success.