M.M. Dutt, J.
1. The appellants M/s. United Investment Corporation a partnership firm and its partner Smt. Bandana Suraiya have, in this appeal, challenged the propriety of the order of D.K. Sen, J., whereby the learned Judge discharged the Rule Nisi issued on the application of the appellants under Article 226 of the Constitution.
2. By an indenture of lease dt. July 56, 1962 Mehta Suraiya (P) Ltd., granted a lease of a piece of land measuring 10 cottahs 2 chittacks 28 sq. ft. comprised in premises No. 14/1B, Ezra Street, Calcutta to the appellant firm for a period of 33 years. It is provided in the lease that the rent for the first three years would be Rs. 100/- per month and thereafter, for the remaining thirty years the rent would be at the rate of Rs. 2.500/- per month. Under the lease, the lessee was to use the demised premises for the construction of a building thereon for office and/or residential purposes according to the map or plan duly signed by the parties and for letting out the same. It was enjoined that the lessee was to erect and complete the building within a period of three years from the data of the lease, Clause (n) of para 1 of the lease provides that the lessee shall deliver up his full possession of the demised premises and the messuages and buildings to be erected thereon at the expiration or sooner determination of the lease, Clause (d) of para 3 of the lease is a renewal clause under which the lessee would be entitled to have the lease renewed for a further term of 33 years and on the expiry of the said term for another term of 33 years by serving before the expiry of each term three months' notice on the lessor. The rate of rent, however, would remain the same, namely, Rs. 2,500/- per month, Clause (e) of para 1 of the lease provides as follows :
'To bear pay and discharge all such Government and Municipal rates andtaxes and/or assessments which are now imposed or charged or may hereafter be imposed or charged by the Municipality or competent authority on the demised premises and the messuages and buildings to be erected thereon whether payable by the owner or occupier and also to bear and pay all other outgoings and demands whatsoever now imposed or charged or hereafter to be imposed or charged for or in respect of the demised premises and the messuages and buildings to be erected thereon as aforesaid ........'
3. It thus appears that the lessee was to pay both shares of the municipal taxes in respect of the building that would be constructed by it upon the demised land. Indeed the lessee, that is, the appellant firm has since constructed a building and let out the same. The appellant firm has been realising rents from the sub-tenants.
4. From time to time, the annual value of the building was assessed by the Calcutta Corporation. In 1966-67 the annual value that was assessed by the Calcutta Corporation was Rs. 5,30,874/-. The appellants preferred an appeal before the Presidency Small Cause Court, Calcutta and, on such appeal, the annual value was reduced to Rs. 5,06,874/-, Thereafter, the appellant did not prefer any further appeal to this Court. In other words, the said valuation which was to take effect from the third quarter of 1966-67 became final. In the writ petition, however, the appellants have challenged the said valuation as determined by the Presidency Small Cause Court, Calcutta.
5. Thereafter, in 1968-69 there was a general revaluation and a notice under Section 180 of the Calcutta Municipal Act 1861 was served upon the appellant firm.
6. By the said notice it was proposedto increase the annual value of the saidpremises to Rs. 7,07,726/- with effectfrom 4th quarter 1968-69, The appellantspreferred an objection against the enhancement of valuation. Upon suchobjection, the' Special Officer of the Calcutta Corporation reduced the annualvalue to Rs. 5,30,469 with effect from4th quarter 1968-69, The appellants havealso challenged this valuation of the premises.
7. It was contended on behalf of the appellants before the learned Trial Judge at the hearing of the writ petition that the appellant firm was illegally treated as the owner of the said premises No. 14/1B, Ejra Street, Calcutta, for the purpose of assessment of annual value of thepremises. In other words, the contention of the appellants was that the Calcutta Corporation was not entitled to take into consideration the rents realised by the appellant firm from its sub-lessees treating it as the owner of the said premises comprising the building which was erected by it at its own costs. The learned Judge, after considering the facts and circumstances of the case and the submissions made on behalf of either party, overruled the said contention and, as stated already, discharged the Rule Nisi, Hence this appeal.
8. The principal point that is involved in this appeal is whether the appellant firm can be treated as the owner of the building being premises No. 14/1B, Ejra Street, Calcutta. Mr. N.H. Chatterjea, learned counsel, appearing on behalf of the appellants submits that the appellant firm being a lessee cannot be treated as the owner of the building and the rents realised by the appellant firm cannot be taken into consideration for the assessment of the annual value of the building. In support of his contention much reliance has been placed by the learned counsel on the decision of the Supreme Court in the case of Corporation of Calcutta v. Life Insurance Corporation of India, : 1SCR249 . In that case, the Supreme Court observed that in determining the assessment of the annual value the assessing authority was not concerned with the rent which the tenant might receive from his sub-tenant and that it was the gross rent which the owner might realise by letting the land or building under a bargain uninfluenced by 'extraneous considerations' which determined the annual value.
9. On the other hand, it has been contended by Mr. Ghosh, learned counsel appearing on behalf of the Corporation of Calcutta that the appellant firm can be treated as the owner in view of Section 5 (53) of the Calcutta Municipal Act, 1951. Section 5 (53) of the Act defines the term 'owner' as follows :--
(53) 'Owner' includes the person for the time being receiving the rent of any land or building or of any part of any land or building, whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose, or as a receiver or who would so receive such rent if the land, building or part thereof were let to a tenant.
10. Admittedly, the appellant firm has been realising rents from its sub-lesseesof the building in question. The firm, therefore, comes within the definition of the term 'owner'. It is true that in the decision of the Supreme Court in the case of the Corporation of Calcutta v. Life Insurance Corporation of India, : 1SCR249 (supra) it has been laid clown that the rent which the owner may realise by letting the land or building can only be taken into consideration for the purpose of assessment of the annual value and not the rent realised by the tenant from its sub-tenant. In that case, the tenants M/s. Firpo Ltd., did not construct the building in question. The building was constructed by the landlord. Admittedly, the landlord was the owner of the building. The building was not, for the first time, let out by the tenants M/s, Firpo Ltd., to their sub-tenant, but it was let out by the landlord to M/s. Firpo Ltd. In the instant casa, however, the building in question was admittedly constructed by the appellant firm and the firm for the first time let out the same after if was constructed. In the circumstances, the above decision of the Supreme Court is distinguishable on facts from the instant case where, the building has been constructed by the lessee and the lessee lets out the building for the first time to its tenants, The assessing authority will, therefore, be entitled to take into consideration the rents realised by the lessee from its sublessees. In that sense, the lessee may be treated as the owner of the premises in view of Section 5 (53) of the Calcutta Municipal Act.
11. We do not think that any writ petition is maintainable for quashing the annual value of the premises that was ultimately fixed by the Presidency Small Cause Court, Calcutta on an appeal preferred by the appellants to that court. A further appeal lay to this Court against the order of the Presidency Small Cause Court, Calcutta fixing the annual value of the building in question. As stated already, no appeal was preferred by the appellants to this Court. In the circumstances, that order became final. So far as the assessment of annual value of the building which was to take effect from the 4th quarter of 1968-69 is concerned, we are of the view that the assessment has been done in accordance with law treating the appellant firm as the owner of the building in question. No other point has been urged in this appeal.
12. For the reasons aforesaid, this appeal Is dismissed. In view of the factsand circumstanees of this case, there will be no order as to costs.
13. Mr. Chatterjee prays for a certificate for appeal to the Supreme Court under Article 134A of the Constitution. In our opinion, no substantial question of law of general importance is involved in this appeal. The oral prayer for a certificate is disallowed.
Monoj Kumar Mukherjee, J.
14. I agree.