1. These are two Municipal Assessment Appeals, arising out of the same judgment of the learned Judge, Second Bench, Court of Small Causes, Calcutta. Appeal No. 324 is by the assessee Messrs. General Electric Company of India Limited, to be hereinafter referred to as the Company, and Appeal No. 325 is by the Corporation of Calcutta, The premises under assessment are No. 6, Chittaranian Avenue, Calcutta, which contain 33 cottahs-12 chittacks and 23 sq. ft, of land and a building which is not used for letting purposes. At the sexennial general re-valuation, which was effective from the 1st of April, 1948, the premises were valued under Section 127(b) of the Calcutta Municipal Act of 1923, which will hereinafter be referred to as the Act. The land of the premises was valued at Rs. 4,72,947/- at the rate of Rs. 14,000/- per cottah and the old building, existing thereon, was valued at Rs. 12,42,168/-. There had been some new constructions made after the earlier re-valuation of 1942-43 which were valued at Rs. 51,420/- at the above 1948 general re-valuation. The total valuation was thus made at Rs. 17,66,535/-. The Company objected to this valuation under Section 139 of the Act and, thereupon, the Deputy Commissioner (No. 1), Calcutta Corporation, by his order, dated 22-6-1953, reduced the value of the land to Rs. 11,000/-per cottah and that of the old building to Rs. 11,51,886/-, the valuation of the new constructions being kept intact. The total valuation, thus arrived at, was Rs. 15,74,907/- and the annual value was assessed, after the allowable deduction, at Rs. 72,495/-.
2. Against this assessment the Company appealed to the Court of Small Causes, Calcutta, on 12-8-1953, and claimed that the land should have been valued at Rs. 8,500/- per cottah and the building including the new constructions at Rs. 7,90,500/-. The learned Small Cause Court Judge accepted the valuation of the land at the rate of Rs. 11,000/- per cottah, as fixed by the Deputy Commissioner of the Corporation of Calcutta, but he reduced the value of the building to Rs. 9,44,5807- and, after allowing the deduction, granted by the Corporation on account of cost of repairs and maintenance of lifts, he assessed the annual value of the premises at Rs. 59,560/-.
3. The Company, in its appeal, has accepted the valuation of the building, as made by the learned Small Cause Court Judge, but it has objected to the valuation of the land. The Corporation, in its appeal, has objected to his valuation of the building.
4. On behalf of the respondent Corporation, a preliminary objection was taken before the learned Small Cause Court Judge that the company's appeal before him was time-barred, but the learned Judge decided the point against the Corporation and held that the said appeal was within time. The same objection has been taken before us by Mr. Krishnalal Banerjee, appearing for the Corporation? of Calcutta.
5. The appeal before the Small Cause Court was filed on 12-8-1953, but the order of the Deputy Commissioner, sought to be impugned therein, had been passed on 22-6-1953. The Calcutta Municipal Act of 1951. (which repealed the Act of 1923) had come into force on 14-2-1952, and it is common ground in this case that the above appeal to the Court of Small Causes was preferred under Section 183(1) of that Act. The period, prescribed for such appeals, was 30 days under the Act of 1923, but this period was extended by Sub-section (2) of Section 183 of the Act of 1951, under which such an appeal is required to be preferred within 45 days from the date of the order, disposing of the objection. The appeal, in the present case, was not preferred within 45 days from the date of the order and hence it is contended that the appeal was out of time.
6. Sub-section (3) of Section 182 of the Calcutta Municipal Act of 1951, however, provides that 'when the objection has been determined' by the Corporation Authorities, 'a copy of the order' passed 'shall be sent by registered post within seven days from the date thereof to every owner and occupier of the land or building who is affected by it' and Sub-section (2) of Section 183 requires that an appeal under Sub-section (1) of that section 'shall be accompanied by a copy of the order', appealed from. A letter, containing a copy of the order, elated 22-6-1953 was addressed by the 'Assessor to the Corporation' to the Company. It bears the date 27-6-1953, but it appears to have been actually signed by the Assessor on the 29th June and it reacted the Company's office on 1-7-1953, as would appear from Ext. 1.
7. It has been argued on behalf of the Company that, in computing the period of 45 days, allowed for the appeal, under Section 183(2) of the Act of 1951, the period, required for getting a copy of the order which must accompany the appeal, should be excluded under Section 12 of the Indian Limitation Act and that, if the period from the 22nd June 1953 to the 1st of July 1953 or even if the period of 7 days from the 22nd of June 1953 be deducted or excluded, the appeal would be well within time. It has further being pointed out that by Sub-section (4) of Section 183 of the Act of 1951, the provisions of Parts II and 111 of the Indian Limitation Act, relating to appeals, have been expressly made applicable to an appeal, preferred under that section.
8. Sub-section (2) of Section 12 of the Indian Limitation Act provides that, 'in computing the period of limitation, prescribed for an appeal, the date on which the judgment, complained of, was pronounced and the time, requisite for obtaining a copy of the decree or order, appealed from, shall be excluded'. It has been contended by Mr. Krishnalal Banerjee that this sub-section applies only where the law requires that a copy of the decree or order, appealed from, should be obtained by the appellant at his own cost before the filing of the appeal and that, since, in this case, there is no allegation by the Company that it applied for and obtained at its cost a copy of the order which, under Section 183(2) of the Act of 1951, was to accompany the memorandum of appeal and since the Company has, in fact, appended to the memorandum of appeal the copy of the order which was sent by the Corporation within seven days from the date of the order under Sub-section (3) of Section 182, the Company was not entitled to get any exclusion or deduction, under Sub-section (2) of Section 12 of the Indian Limitation Act, of the time, taken for obtaining the copy of the order, appealed from.
9. It is true that the company did not, in the present case, apply for any copy of the order but that was because there was a statutory duty, imposed on the Corporation, to send a copy of the order within seven days of the date thereof and the Company was, therefore, entitled to wait until it received such a copy. We are not prepared to hold that the words 'the time requisite for obtaining a copy' arc inapplicable in those cases where the appellant is not required to obtain a copy at his own expense by applying for it but is entitled by statute to get a copy from the authority or authorities concerned within a certain time and, in our opinion, in a case of this type, the time, taken by the authorities concerned to supply the copy, would legitimately be 'time required for obtaining the copy', so far as the appellant is concerned, and he will be entitled to its exclusion under Section 12(2) of the Indian Limitation Act in the matter of computation of the period of limitation. That seems to be plain enough and no other view appears to us to be correct.
10. We do not think that the above view of the law needs support from any decided case but, if reference be necessary, we may just mention, the decision of this Court in the matter of the Commissioner of Income-tax, Bengal v. M. Shaw Wallace and Co. : AIR1932Cal587 , where a question arose as to whether an application by a Commissioner of Income-tax for leave to appeal to the Privy Council was within, time. The appeal was preferred against the judgment of this Court and, under the provisions of the Indian Income-tax Act which was in force at the time, a copy of this Court's judgment had to be sent to the Commissioner under the seal of this Court. The judgment was pronounced on the 13th January, 1931, and the copy of the judgment, required to be sent to the Commissioner under the seal of the Court, was duly sent to him and was received by him 011 the 26th January, 1931. The application for leave to appeal to the Privy Council was within time, if the period between the 13th January and the 26th January, or even the 21st January was deducted or excluded, and Rankin C.L. sitting with Pearson, J. held, inter alia, that the Commissioner was entitled to a deduction or exclusion of this period under Section 12 of the Indian Limitation Act as the time required to obtain a copy of the judgment. This view plainly supports our interpretation of the statute.
11. We hold, accordingly, that the appeal was properly held by learned Small Cause Court Judge to be within time by reason of Sub-section (2) of Section 12 of the Indian Limitation Act.
12. We proceed now to consider on the merits the Company's appeal, regarding the valuation of the land.
13. The premises are situate on and at the junction of two roads, namely, Chittaranjan Avenue and Sooterkin Street, as would appear from the plan (Ext. B), filed in the case, Chittaranjan Avenue being on the north of the premises and Sooterkin Street on the south and east. The land has a frontage of 115 ft. on Chittaranjan Avenue and of 220 ft. on Sooterkin Street. It is an L-shaped land and the depth of the land with frontage on Chittaranjan Avenue is 205 ft. and the depth on Sooterkin Street is about 70 ft. This street is 30 ft. wide. In the previous general re-valuation of 1942-43, the land of the premises was valued at Rs. 7,000/- per cottah. The Company examined a Chartered Engineer and Valuer who stated that land value had increased in this locality by 20 per cent between 1942 and 1948 and he valued the land at Rs. 8,500/- per cottah by the method of belting. The first belt land (up to a depth of 80 ft.) on Chittaranjan Avenue was valued at Rs. 14,000/- per cottah which he took to be the average value of first belt land on Chittaranjan Avenue in this locality. The second belt land was two-thirds of the first belt land and them was some recess of the second belt which was valued at three fourths of the value of the second belt. He also made a deduction of 15 per cent for the bigness of the size of the premises. So far as the value of the first belt land on Chittaranjan Avenue is concerned, the valuer admitted that he had no comparable unit on this road or any other material for assessing the said value, but he stated that he had arrived at the above figure from his experience as a valuer in different localities of Calcutta.
14. Premises No. 4, Chittaranjan Avenue belong to the Hindusthan Co-operative Insurance Society Limited and the building therein which is popularly known as the 'Hindusthan Building' is situate on the same side of Chittaranjan Avenue as the disputed premises, separated from it by Sooterkin Street and Madan Street. The land of the said premises was originally valued at Rs. 16,000/- per cottah by the Calcutta Corporation in this very sexennial re-valuation. On objection by the assessee society, the land value was reduced to Rs. 15,000/- per cottah and, according to the record of the Corporation, which has been produced in this case, this valuation was accepted by the Society. The Corporation, however, did not examine the Assessor or adduce any evidence to show on what materials the land of the said premises No. 4 had been valued at Rs. 16,000/-or Rs. 15,000/- per cottah. The Sub-Assessor, examined by the Corporation, said that he had made some enquiries and submitted his report to the Assessor who made the assessment on his report and after personal inspection. He did not disclose, however, what materials were obtained by him with regard to the value of the land as a result of his enquiries. He proved certain entries in a register, maintained by the Corporation, known as the Sale Register, to prove sale prices of lands in the neighbourhood, but the learned Small Cause Court Judge rightly refused to rely upon such entries. The learned Judge, however, accepted the land value of the said premises (Hindusthan Building) as assessed by the Corporation and relied upon the same in coming to his decision that the land value of the disputed premises had been properly assessed by the Corporation.
14a. It has been argued on behalf of the Company that the evidence, regarding the land value of the Hindusthan Building, as assessed by the Corporation, is inadmissible and should not have been accepted or relied upon by the learned Judge in the court below. In this connection, reference has been made to Faraday on Rating (Fourth Edition), Vol. I, page 91 and particularly to the following passage:
'The assessment of another hereditament is no more than the opinion of the Rating Authority or its valuer ..... and the general rule would apply that such an opinion is not admissible in evidence, unless the holder of it is present for cross-examination or unless he is a party to the proceedings so that his opinion can be treated as an admission and given in evidence against him.'
15. This passage is, however, immediately followed by another passage to the following effect:
'In the case of assessments of comparable hereditaments these can only be even admissible in evidence, if they are situate in the area of an authority which is a party to the appeal. Such evidence, whether of rents or assessments, could amount to no more than this, that the Court should take it into consideration as some guide to actual value of the hereditament under appeal; if, as is sometimes the case, it is the only class of evidence procurable, then it will be very important; but, if there is direct evidence of the value of that hereditament, then it will be very unimportant'
which, at least, shows that the evidence of com-parable hereditaments is not altogether inadmissible.
16. It is to be remembered further that the above observations were made by the learned author while discussing the effect of the decisions in Norwich Assessment Committee v. Pointer. 1922-2 KB 47 and Pointer v. Norwich Assessment Committee, 1922-2 KB 471. The effect of that decision, however, as the learned author himself points out in an earlier passage, is not that the assessment of another hereditament is inadmissible in law in considering the value of a comparable hereditament. Such evidence, as the learned author himself says, is admissible in law, though the value of such evidence or the weight, to be attached to it, would depend upon the circumstances of each case and, when there is direct evidence of the value of the particular hereditament, the evidence of value, furnished by a comparable hereditament, would be very unimportant and this latter evidence would be important only where there is no such direct evidence on the point. In support of his view, the learned author quoted a passage from Scrutton L. J., in the Ladies' Hosiery and Underwear Ltd. v. West Middlesex Assessment Committee (1932) 2 KB 679 at p. 690.
17. The question of admissibility of the evidence of value, afforded by comparable premises, also arose for decision in the case of Corporation of Calcutta v. Province of Bengal : AIR1940Cal47 and the two English decisions mentioned above, were considered in that case. In : AIR1940Cal47 the assessment of the Writers' Buildings was in question and, in order to show that the assessment was proper, the Corporation had adduced evidence regarding the assessment of a neighbouring premises, namely the office of the East Indian Railway, and produced the return, submitted by the said Railway Administration in respect of the premises in pursuance of a notice under Section 136 of the Act of 1923 and also the accepted assessment of that premises. The assessment of the said premises had been made on the basis of the land value, mentioned in the return and had been accepted by the assessee. Milter and Akrara, JJ., relied upon the said accepted assessment and observed as follows:
'We do not consider that the evidence, afforded by the aforesaid return or by the accepted assessment of the neighbouring premises on which we have relied, are inadmissible tvidence. Those, in our judgment, are relevant facts and admissible under Section 9 of the Indian Evidence Act.'
18. A similar view was also taken in the case of Lal Chand v. Corporation of Calcutta : AIR1953Cal428 .
19. In the present case, there is no reliable direct evidence of the land value of the disputed premises, but there is the accepted assessment of the comparable neighbouring premises, namely the Hindusthan Building. That the said assessment was accepted by the owner, the Hindusthan Co-operative Insurance Society Ltd., has not been disputed before us. That assessment is therefore, admissible as a relevant piece of evidence when it is found that there is no dispute that the premises of the Hindusthan Building is comparable to the disputed premises. This latter fact has been admitted even by the valuer, examined by the Company,--and that again in his examination-in-chief,--though according to him, the Hindusthan plot is much better situate. He has stated that, as he did not get the Corporation valuation of the land of the Hindusthan Building he could not take that into consideration in assessing the land value of the disputed premises, It is clear from this statement that the premises of the Hindusthan Building are not only comparable to the disputed premises, but also that the assessment of the land value of the said premises by the Corporation would have been taken into consideration by the Company's valuer, if the same had been available to him. In these circumstances, we do not think that the learned Small Cause Court Judge has committed any error in determining the land value of the disputed premises on the evidence of the land value of the Hindusthan Building.
20. The next point, raised on behalf of the Company, is that the learned Judge misplaced the onus on the Company to prove that the assessment of the disputed premises was wrong instead of placing it on the Corporation to justify the enhanced assessment. Reference has been made in this connection to the decisions of this Court beginning with the case of Corporation of Calcutta v. Kearouddin : AIR1927Cal802 , and the Company has relied particularly on the following observations of Mookerjee, J., in the case of : AIR1953Cal428 :
'The real position, therefore, is that when an appeal is preferred by the assessee..... it is up to the assessee to show that the annual value, fixed by the Corporation, was not a proper one. But if the annual value had been raised by the Corporation on the ground that there had been since the last general re-valuation a rise in the rental value of the premises or of land value, the Corporation is to lead evidence to show that there had really been such an increase from what was ruling at the time of the previous general re-valuation.'
But immediately after this passage occurs the following :
'The Court is not to proceed merely upon the abstract rule of onus. But, once it is shown that there had been an increase in value from what it was previously, it is up to the Court again to decide on the materials, placed before it, as to whether the value, fixed by the Chief Executive Officer, is a proper one or not.'
21. In a recent decision, Corporation of Calcutta v. Nanigopal, : AIR1956Cal269 , Cuba Ray, J., (with whom Sen, J. concurred), after reviewing the relevant provisions of the Indian Evidence Act on the above question of onus and the previous decisions, bearing upon the same, pointed out that, in the above case 57 Cal. W.N. 259--Mookerjee, J. did not really express any dissent from the previous decisions and that the appeal there : AIR1953Cal428 was actually decided on the evidence on record and not on any question of onus, and he came to the conclusion that, since 'the right of filing an objection and that of filing appeals are evidently intended to provide opportunities to the assessee of proving the assessment to be wrong or excessive', where the assessee fails to show that the assessment is prima facie wrong, the Corporation is really under no obligation to prove that it is justified, for the assessee is bound to fail in his objection and his appeals, if he fails to make out his point.' As at present advised, we are not inclined to disagree with the above view of the law, and, in any event, we are of opinion that there is no ground for complaint in the facts of this case that the onus was misplaced by the learned Judge. The learned Judge has actually found on the evidence that there had been a general rise in land value in the locality since the last assessment, and, although, upon that finding, the onus would be on the assessee, even according to Lal Chand's case : AIR1953Cal428 , the learned Judge did not actually decide the case, relying upon the law of onus, but he decided it upon the evidence of valuation, actually before him. In our opinion also, no question of onus really arises in this case and, as we have shown above and as shall show later on, the land value, as found by the learned Judge of the court below, is well supported by the evidence on record.
22. The assessment has been made in this case under Section 127(b) of the Act which provides that
'the annual value of any building not erected for letting purposes and not ordinarily let shall be deemed to be five per cent on the sum obtained by adding the estimated present cost of erecting the building, less a reasonable amount to be deducted on account of depreciation (if any), to the estimated present value of the land valued with the building as part of the same premises'
and the Corporation has, accordingly, valued the land and the building of the premises separately and then added up the values to arrive at the total value of the premises. The same method has also been followed by the Company's valuer but it has been contended on behalf of the Company that since the land is to be valued 'with the building as part of the same premises', as laid, down in this clause, the value of the land should not have been ascertained as if it was an open site, unoccupied by any building, but that its value should have been considered by taking into account the nature of the building occupying it. It is not clear what was really meant by this contention. If it was meant that this land was burdened with the building upon it and that the existence of the building had lowered its value, then it is sufficient to say that the valuer, examined by the Company, did not raise or support any such objection. He did not consider the land of the premises to be land burdened with a building. He explained that a piece of land could be said to be burdened with a building when that building was old or dilapidated, but that such was not the condition of this building. He was of the opinion that the land should be valued as built-up land or land crowned with building, as he expressed it, and he valued the land as such. There is nothing to show that the Corporation authorities valued the land otherwise or that they placed a higher value on the land, taking it to be an open site. This particular area is a built-up locality and, as is well known, lands on both sides of Chittaranjan Avenue are covered by big buildings. There was, therefore, little scope for valuing lands here as open sites. The company's present objection, therefore is without substance.
23. The land of the disputed premises was valued at Rs. 7,000/- per cottah in the general valuation of 1942-43 and it has, therefore, been contended that the Corporation should justify an increase in the land value to the extent of Rs. 4,500/-bctween 1942-43 and 1948-49. But an increase in the land value in this locality has been admitted by the Company's valuer. He no doubt stated that the rise in this locality was to the extent of 20 per cent only, but he produced no evidence in support of it. He admitted that the rise in the land value was higher in important areas of Calcutta like this locality than in unimportant areas. We may refer in this connection to the evidence of the Sub-Assessor of the Corporation that the land of premises No. 41, Chittaranjan Avenue which had been assessed at Rs. 8,000/- per cottah in the previous revaluation of 1942-43 was assessed at Rs. 14,000/- per cottah at the present revaluation and that the land of premises No. 4, Chowringhee Square, The Statesman Building, which had been assessed at Rs 7200/-per cottah in 1942-43. was assessed at Rs. 11,500/-in the present revaluation. These are neighbouring premises as shown in the plan. These valuations were not objected to, though the rate of increase in land value was assessed at 60 to 70 per cent.
24. The Company's Valuer actually valued the first belt land of the disputed premises at Rs.14,000/- per cottah and admitted that that was the value in the locality in 1948. There is very little difference between this value and the land value of the Hindusthan Building, as assessed by the Corporation, it being Rs. 15,000/- per cottah. It is true that the Hindusthan Building occupies a larger area than the disputed premises inasmuch as its area is 3 bighas, 8 cottahs and 4 chittacks, but it is certainly more advantageously situate than the disputed premises and, in consequence of its extensive frontage on Chittaranjan Avenue and its peculiar shape most of its land has fallen in the first belt. This will he clear from a look at the map. It has got frontages on all the four sides and is bounded on two sides by Madan Street which is a much wider street than Sooterkin Street. Its size is, 'therefore, no disadvantage in view of its peculiar shape and situation. From all these considerations, its land value assessed at Rs. 15,000/- per cottah by the Corporation, should not be considered improper and, as we have stated above, the learned Judge was entitled, in law, to rely upon this valuation and he did nothing wrong in valuing the land of the disputed premises on its basis.
25. The valuer of the Company has valued the disputed premises by applying the belting method. His evidence, however, did not contain the details of the areas, included by him in the first and second belts and in the recess, and then respective values. On behalf of the Company that evidence was explained before us by placing in some detail the underlying calculations, from which it would appear that the valuer did not add anything for the second frontages of the belts, taken by him as the units. Even the recess area in the second belt has got a frontage on Sooterkin Street which, as we have already stated, is 30 ft. wide. The second belt has got frontages on two sides on Sooterkin Street. No allowance has been made for these second frontages. Besides, the deduction of 15 per cent for the size of the premises appears to be improper and unjustified, considering the average sizes of the plots in the neighbourhood, as shown in the map. The total valuation of the land, even according to the Company's valuer, in the light of the details furnished by the Company's learned Advocate, is Rs. 3,31,214/- without deducting 15 per cent for size and this is only Rs. 40,387/- less than the Corporation valuation of Rs. 3,71,601/- at the rate of Rs. 11,0000/- per cottah. If allowance for the additional frontages be given at 10 per cent, the valuation would be nearly equal to the Corporation valuation. In these circumstances, we agree with the learned Judge that the land was properly valued by the Corppration.
26. The Company's appeal (F. M. A. No. 324 of 1954) must, therefore, fail.
27. Appeal No. 325, preferred by the Corporation of Calcutta, relates to the valuation of the building. The learned Judge in the court below. relying upon the Company's valuer, has estimated the cost of construction of the old building without the additions, made since 1942, at Rs 110,10,935-8-0, calculated at the rates of the year in which the valuer deposed, namely, the year 1954. He has, however, made a deduction of 5 per cent from this figure in order to arrive at the cost of construction of the building in the year 1948-49 that is, the year of commencement of the relevant period of re-valuation, because, according to the Company's valuer, the rates of 1948 were 5 per cent less than the 1954 rates. Objection has been raised by the Corporation to this deduction of 5 per cent and it has been argued by Mr. Banerjee that the words 'estimated present cost of erecting the building' occurring in Section 127(b), should be interpreted to mean the cost of construction of the building, not in the year 1948-49, but at the date when the Corporation authorities disposed of the Company's objection to the assessment, namely, the 22nd June, 1953. He referred in this connection to the words 'at the time of assessment', occurring in Section 127(a) of the Act, and relied upon the recent decision of Lahiri, J., in the case of Corporation of Calcutta v. Padma Debi, : AIR1957Cal466 , in which 'the time of assessment' has been held to commence with the making of the valuation under Section 131 of the Act and to end with the determination of the objection under Section 140 of the Act.
28. Section 127 (a) of the Act relates to valuation of buildings, erected for letting purposes, and the method of valuation, prescribed therein is to ascertain the gross annual rent, at which the building 'might at the time of assessment reasonably be expected to let from year to year.' In the case, : AIR1957Cal466 , the Corporation had started proceedings for the general revaluation of the building in question with effect from the second quarter of 1950-51 and valued the building under Section 127(a) of the Act. The general notice of the valuation under Section 137 of the Act had been published on the 28th June ,1950 and the special notice of the increase of valuation under Section 138 of the Act had been served on the owner on the 20th June 1950. The owner filed an objection to the valuation, whereupon a fresh enquiry was ordered as to the rents, and, on the 10th August 1951, the Special Officer who heard the objection confirmed the valuation. Before this date, as a result of certain proceedings for standardization of rent, the rent of the building had been reduced, but the order of the Rent Controller, passed on the 16th May 1951, had not been produced before the Special Officer. During the hearing of the appeal by the Small Cause Court Judge, the order of the Rent Controller was produced and the said learned Judge decided that the standard rent, fixed by the Rent Controller, should be taken to be the monthly rent for calculating the gross annual rent at which the building might at the time of assessment reasonably be expected to let. On appeal to this Court, Guha Ray and Sen, JJ., who heard the appeal differed on two questions namely (i) whether the standard rent, fixed as above, could be taken into consideration in determining the valuation of the building and (ii) as to the meaning of the expression 'at the-time of assessment' occurring in Section 127(a). The case was thereupon referred to Lahiri, J., under Clause 30 of the Letters Patent.
29. Lahiri, J. formulated three questions for decision, namely, (i) 'whether in determining the annual value of a building under Section 127(a) of the Calcutta Municipal Act of 1923, the Corporation of Calcutta is bound by the standard rent fixed by a Rent Controller under the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950;'
(ii) 'What is the meaning of the expression' at the time of the assessment 'occurring in Section 127 (a) of the Calcutta Municipal Act of 1923?' and:
(iii) 'Whether in this particular case it can be said that a standard rent was in existence at the time of the assessment;' and held on the first question that, in determining the annual value of a building under Section 127(a), the Corporation was bound by the standard rent, fixed by the Rent Controller under the provisions of the West Bengal Premises Rent Control Act of 1950. On the question whether a standard rent was in existence in the case before him at 'the time of assessment', he held, after construing the relevant provisions* of the Rent Control Act of 1950 and on the authority of the decision in the case of P. C. Mallick v. Bhabatosh Das, 59 Gal. W.N. 491, that the standard rent, though subsequently fixed, should be deemed to have come into existence from the date, on which the Rent Control Act of 1950 had come into operation, namely, the 30th March, 1950, and that, as such, the said rent was in existence at 'the time of assessment' which, on the particular facts before him, could, in no view, have ended before 20th June, 1950, on which date the special notice under Section 138 of the Calcutta Municipal Act (which, in that case, preceded the publication of the valuation list under Section 137 of the Act) was served on the owner. As to the precise meaning of the expression 'at the time of assessment', occurring in Section 127(a) of the Act, he held, upon a construction of Sections 131 and 136 to 142 of the Act, that 'the time of assessment' covered the entire period from the making of the valuation under Section 131 up to the determination of the objection by the Corporation authorities under Section 140, or, to Quote his own language, that 'the time commences with the making of the valuation under Section 131 and ends with the determination of the objection under Section 140 and any event which took place during this period may be relied upon for assessing the annual value under Section 127(a).'
30. This decision : AIR1957Cal466 does not directly touch the question, with which we are hen: concerned, as it was a decision under Section 127(a) of the Act. The valuations under Sections 127(a) and 127(b) of the Act have to be made on different principles under different parts of the statute which are differently worded. While under Section 127(b), the 'present cost' of construction of the building has to he estimated in a case under Section 127(a), the basis of valuation is rent, to wit, the gross annual rent, at which the 'building may reasonably be expected to let at the time of assessment.
31. In determining this reasonable rent of the building, the standard rent, fixed for the building by the Rent Controller, would certainly be a relevant factor, it not the sole determining factor, and what the above decision lays down is that such standard rent should be taken into consideration, even though it might have been fixed by the Rent Controller after the date of assessment of valuation by the Corporation department (which was in June, 1950, in the particular rase before Lahiri, J.) because, under the Rent Control Act of 1950, the said rent should be deemed to have come into existence and to have been in existence at the time of commencement of the said Act, namely, 30th March, 1950. In this view, with which, if we may say so with respect, we entirely agree, it was not strictly necessary for Lahiri, J. to consider the other question about the meaning of the expression 'at the time of assessment', occurring in Section 127(a) of the Act. This was recognised by Lahiri, J. himself (vide p. 149 of CWN): (at p. 475 of AIR). Strictly speaking, then, Lahiri, J.'s interpretation of the words 'the time of assessment' was more or less by way of obiter and, in any event, it is hardly of any relevance or importance in the present case and we are not really called upon to examine its propriety or correctness. As, however, the point was argued before us in some detail and as particular reliance was placed upon the view of Lahiri, J. in support of the Corporation's appeal (F.M.A. No. 325 of 1954), we would just say a few words on it and give in brief our view on the subject.
32. With the greatest respect to Lahiri, J., we are unable to agree with him that 'the time of assessment', mentioned in Section 127(a) of the Act, covers or connotes any period subsequent to the commencement of the relevant period of re-valuation or assessment. The assessment is imposed and the assessee's liability to pay it starts from the very commencement of this period or the beginning of the quarter, immediately following the assessment (vide Sections 131 and 147; see also Section 164). Normally then, such assessment should be made on materials, existing at or before this date and not subsequently corning into existence, and there is nothing in the Act to justify a departure from this normal rule. In the section 'the time of assessment' is mentioned just to indicate the point of time, at which the reason able rent is to be ascertained for determining the annual value. It should not, therefore, in view of what we have stated hereinbefore to be the normal rule, be subsequent, to the above date.
33. The time of assessment, mentioned in Section 127(a) refers, in our opinion, to the time when the Executive Officer makes his assessment under Section 131(1). That assessment undoubtedly precedes the date of its taking effect which, as the two sections (Sections 131 and 147) show, corresponds to the beginning of the quarter, immediately following the Executive Officer's above assessment. This assessment is no doubt subject to alteration or revision, but the date of its taking effect, as mentioned above, remains unaffected (vide Section 147; see also Section 164). As 'the time of assessment', mentioned in Section 127 (a), should not be subsequent to this crucial date, it must refer to the time when the Executive Officer makes his above assessment. The interval between, the date of this assessment and the above crucial date cannot exceed a quarter or a period of three months and this period is too short to permit any other assessment intervening. Normally also this! period will be too short for any appreciable change in the value of the land or building or any change in the materials, on which the said value is to be determined. On the above interpretation, therefore, the assessment would be on materials which would practically be the same as exist at the date when the liability is imposed and that would be in perfect consonance with justice and fairness to both sides. It is unnecessary to pursue this matter further as the present case is not one under Section 127 (a), in which the phrase 'the time of assessment' occurs. We would, therefore, rest content with the above indication of our view on the true meaning of the expression 'the time of assessment' in Section 127(f) and close this brief discussion.
34. We return now to the facts before us.
35. We are concerned in this appeal with a valuation under Section 127(b) of the Act and we have to determine the 'estimated present cost' of erecting the building in question. Prima facie, the word 'present' signifies that the cost of the building as at the date of commencement of the period of revaluation (for which the assessment is to be made) will have to be determined. There is no reason why this prima facie meaning of the word should be discarded. Moreover, as the imposition of the consolidated rate and the liability to pay the same would start from the date of commencement of the period of re-valuation, the cost of erecting the building on any previous or subsequent date would not strictly or directly be relevant. For ascertaining again the cost of construction of a building in the year 1948-49, the cost of construction in any subsequent year would not be of much help, unless the rates are proved to be the same for such years. The disposal of an objection under Section 139 by the Corporation authorities may take years and it would be most unreasonable to hold that the 'present cost of construction' (which, for determining the annual value, as we have said above, ought to have reference to the commencement of the relative period of re-valuation) should be ascertained at rates, existing or prevailing at the time of the disposal of such objection which must be subsequent, and may be long subsequent,--to the commencement of the Said period of revaluation. The present case is an instance in point, justifying the above comment. The objection here (which was filed on 28th February, 1948) was disposed of only in June 1953, that is, more than five years after the commencement of the relevant period of re-valuation and just about a year, or even less, before the expiry of such period. We do not think that it would at all be reasonable to ascertain the cost of construction for determining the annual value (which would have effect from the commencement of the relative period of re-valuation) at rates, prevailing more than five years later and almost on the eve of expiry of the said period of re-valuation, for which the same is to remain in force. We cannot, therefore, agree that the words 'present cost', occurring in Section 127(b), should be interpreted as having reference to any I point of time other than the commencement of the particular period of re-valuation.
36. In the above view, we hold that the building has been correctly valued by the learned Judge and this appeal should also fail.
37. Hence ordered that both the appeals be dismissed. We, however, direct that, in the circumstances of this case, each party shall bear its own costs in this Court.