23. In this appeal we have agreed to differ on a point of law which may be stated in these words for the purposes, of the proviso to Section 98 of the Civil Procedure Code:
24. Whether the Corporation of Calcutta in assessing certain premises under Section 131, Sub-section (1) of the Calcutta Municipal Act in 1924 when the Calcutta Rent Act, 1920, was in force, were competent to increase the assessment above the rent at which the premises were let on the 1st November 1918 and which under Section 2, Sub-section (f), Clause (i) of the Calcutta Rent Act, 1920, was the standard rent of those premises.
25. The papers will be laid before the Hon'bie the Chief Justice.
26. (His' Lordship after stating the facts continued). On one point the two learned Judges were in agreement. That point is not before us and it is no part of om intention to express any opinion whatsoever upon it. On another point they were in disagreement and accordingly they took action under the proviso to Sub-section (2) of Section 98 Civil P.C., and stated the point of law upon which they differed for the opinion of this Court. That point of law so stated is as follows:
Whether the Corporation of Calcutta, in assessing certain premises under Section 131, Sub-section (1) of the Calcutta Municipal Act in 1924 when the Calcutta Rent Act, 1920, was in force, were competent to increase the assessment above the rent at which the premises were let on the 1st November 1918 and which under Section 2 Sub-section (f), Clause (i) of the Calcutta Rent Act, 1920, was the standard rent of those premises.
28. Now the terms of Section 26 of the Calcutta Rent Act are these:
Daring the continuance of this Act, the Corporation of Calcutta, or any other local authority, shall not raise its assessment of any premises above the standard rent on the ground of the increase of value.
29. In order to apply that section in any particular case or to decide upon its applicability it is necessary to bear in mind the terms of Section 127 of the Calcutta Municipal Act of 1923. The clause of Section 127 which applies to this case is Clause (a) and the section provides:
For the purpose of assessing land and buildings to the consolidated rate the annual value of land and the aunual value of any building erected for letting purposes or ordinarily let shall be deemed to be the gross annual rent at which the land or building might at the time of assessment reasonably be expected to let from year to year, less, in the casa of a building, an allowance of ten per cent. for the cost of repairs and for all other expanses necessary to maintain the building in state to command such gross rent.
30. Under that section what has to be determined is the annual value and what the section says is that you are to put a figure upon the premises as being their annual value by finding out what would be the gross annual rent at which the building might reasonably be expected to let from year to year; in other words, there is one way and only one way in which under this Act the annual value can be computed. It is to be computed on the basis of what the building can reasonably be expected to let at from year to year. It is quite true that when one is enquiring at what figure if can reasonably be expected that the building should be let out from year to year, it is very good evidence, in most cases probably the best evidence, to show what, in fast, tenants-presumably reasonable people are paying and are willing to pay. If you find the tenant of a house paying a certain rent and that this arrangement is an ordinary business arrangement with which he is content then, at all events it is reasonably clear that the building can be expected reasonably to fetch that amount of rent per year. Now, in this case what has happened is shortly this: Under the previous valuation which obtained until 1924 if was decided that the annual value was Rs. 30 a month. That was the rent which it was then decided might reasonably be expected to be got from tenants. Under the proposed valuation Rs. 51-4-0 was to be the basis of the validation, and unless violence is to be done to the statute that can only be upon the footing that this building can reasonably be expected to be let at Rs. 51-4-0 per month. If would seem, therefore, difficult to resist the conclusion that this is an increase of assessment on the ground of increase of value as that word is used in Section 127 of the Calcutta Municipal Act. However it be put, the assessing officer is necessarily in the position of saying that whereas in 1918 it was decided that you could reasonably expect to get no more than Rs. 30 per month, now you can reasonably expect to let it for Rs. 51-4-0. No doubt it would be different if the increase of assessment had been on the ground that the premises had been much altered and improved. No doubt it would be different if the increase of assessment had been due to some different method of calculating the allowances. But nothing of this sort is suggested in this case.
31. What is said on behalf of the Corporation is this : that the old assessment based on a valuation of Rs. 30 was no doubt calculated upon the actual rents obtained from the actual occupiers of the building in 1918, that in 1924 the actual rents obtained from the actual occupiers of the building plus a fair rent from Giribala herself amounted to Rs. 51-4-0 and that this increase of assessment is not because of increase of value at all, but it is because of an increase in the actual receipts known to be obtained not by the owner but by the tenant Giribala from the property. In my judgment for the reasons which Mr. Justice Mukerji has very clearly given that contention must be rejected altogether. Whatever light is thrown upon the amount of rent that can reasonably be expected to be obtained for this property by looking to what tenants or sub-tenants in fact are willing to pay, the only reason which under the statute justifies the assessment of the property at a particular figure is the reason which Clause (a) of Section 127 sets forth:
The annual value of any building erected for letting purposes or ordinarily let shall be deemed to be the gross annual rent at which the land or building might at the time of assessment reasonably be expected to let from year to year.
32. I would refer in particular to the following passage in the judgment of Mr. Justice Mukerji in which I agree. He says:
It has been contended on behalf of the appellants that the assessment of 1924 was not an assessment on the ground of the increase of value such as is contemplated by Section 26. I confess I do not understand this argument. The assessment no doubt is made on the basis of actual occupation, but the assessment is raised only because the value has increased, in my opinion the words 'on the ground of the increase of value' in Section 26 save only such assessments as are made on alterations and improvements and the like.
33. It has been suggested that Section 7 of the Act of 1920 militates against this construction. That is a section which is taken from the English Act of 1920, at all events, in its general idea. It is quite clear that in view of Section 26 the only way in which Section 7 can well come into play is in a case where there has been an increase in the percentage or in the number of annas in the rupee which have to be paid by way of rate upon the figure of the assessment. In such a case as that Section 7 may well have application but there is nothing in Section 7 which would justify any different construction of Section 26.
34. In these circumstances we have to answer the single question which I have already stated. In my opinion the answer to that question is in the negative-the Corporation of Calcutta are not competent to increase the assessment above the rent at which the premises were let on the 1st of November 1918. By the terms of Section 98 of the Code of Civil Procedure, where
the Judges composing the Bench differ in opinion on a point of law, they may state the point of Jaw upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.
35. Accordingly in this case the appeal falls to be determined in accordance with a negative answer to the question which has been put to us. It may be that the result of this is the result which Mr. Justice Mukerji indicated at the end of his judgment, because it was agreed before the Division Bench and it was agreed before us that if one takes the figure of the rental which the Small Cause Court Chief Judge took, then the correct figure of assessment is Rs. 295-10-5. But that question is for the Division Bench.
36. This case will go back to the Division Bench who heard it in order that they might; finally record an order upon the basis of the answer which we give to the question propounded to us.
37. The Corporation of Calcutta will pay to the assessee his costs of this hearing. We assess the hearing fee at ten gold mohurs. The costs before the learned Judges will be dealt with when the case finally goes before them.
38. I agree.
40. I agree.
41. (The case then went back to the Division Bench and that Bench fixed Rs. 295-10-5 as the annual value of the premises.)