Ernest Fletcher, J.
1. This appeal comes before us under the provisions of Clause 15 of the Letters Patent owing to a difference of opinion between Chatterjea, J., and Walmsley, J.
2. The Corporation of Calcutta instituted the suit for the declaration that the valuation and assessment made by the Cossipore Chit-pore Municipality of a holding owned and occupied by the Calcutta Corporation at an annual value of Rs. 25,000 was ultra vires and illegal.
3. The Calcutta Corporation own a holding No. 1, Khelat Babu's Lane, containing 16 bighas odd at Tallah within the limits of the Cossipore-Chitpore Municipality on which there has been erected an overhead steel tank supported by steel columns and girders. The tank was constructed in connection with the supply and distribution of filtered water to Calcutta.
4. The pumping house is situate at No. 71, Barraokpore Road, adjoining the holding No. 1, Khelat Babu's Lane. Under the terms of the proviso to Section 6, Sub - section '3, the two holdings ought to have bean assessed as one holding. Before the erection of the tank the holding No. 1, Khelat Babu's Lane, was assessed by the Cossipore-Chitpore Municipality at Rs. 1053. The annual value of the holding has now been raised to Rs. 25,000. I have had the opportunity of reading the judgment about to be delivered by Greaves, J. He has in the course of his judgment summarised the evidence as to the purposes for which the tank was erected and I do not intend to repeat it here.
5. The first question we have to decide is whether the tank is 'machinery'' within the meaning of Section 101 of the Bengal Municipal Act.
6. The learned Subordinate Judge was of opinion that it was. Chatterjea, J,, thought it was not--Walmsley, J., agreed with the Subordinate Judge. I am of the same opinion as the learned Subordinate Judge. On the evidence I think the overhead tank is a mechanical contrivance used in connection with the pumps for the attainment of a particular end and that it forms an integral part of the machinery for the distribution of the filtered water supply to Calcutta. This, I think, brings the overhead tank within the definition of 'machinery' given by Davey, L.J. in Chamberlayne v. Collins (1894) 70 L.T. (N.S.) 217 : 9 R. 811.
7. I agree, therefore, with the conclusion of the learned Subordinate Judge that the tank is not liable to be taken into consideration for the purpose of valuing the holding.
8. The second contention was that even if the tank is machinery' within the meaning of Section 101 of the Bengal Municipal Act the existence of machinery on the holding should not be left out of consideration. This view was adopted by Chatterjea, J., and in the course of his judgment he has referred to certain English authorities in support of his view. But those cases were decided on a totally different Statute and it is, I think, misleading to refer to those cases for the purpose of the construction of Section 101 of the Bengal Municipal Act. Section 101 of the Bengal Municipal Act, I think, excludes machinery from the valuation of the holding for all purposes.
9. The next question is whether the appellant Municipality has taken the value of the machinery into consideration. I think quite clearly they have. The correspondence and resolutions establish this without doubt, and there can be no other reason for the enormous increase in the valuation.
10. Lastly it was, faintly suggested that if the valuation was made contrary to the terms of the Act, the Civil Courts had no power to interfere. The authorities show quite clearly that the Civil Court in such circumstances has power to interfere.
11. In the result I agree with the judgment of Walmsley, J , and the present appeal ought, I think, to be dismissed.
12. As my learned colleagues are of a different opinion, according to the opinion of the majority of the Bench, the appeal will be allowed with costs both in this Court and in the Court below.
13. The principal point which we have to decide in this appeal is whether the overhead tank comes within the term 'machinery' used in Section 101 of the Bengal Municipal Act.
14. To judge whether it does or not, it is un-necessary to ascertain exactly what part it plays in the scheme for the supply of water to Calcutta. The water is brought from the river to underground reservoirs at the pumping station. There it is pumped up into the main pipe supplying Calcutta. The demand for water is not constant throughout the day in Calcutta and when the water pumped up exceeds the idemand, the excess passes into the overhead tank through a valve operated by hand, which is opened to let the water through. When the water pumped up is insufficient to meet the demand, the water in the tank runs out again by the same pipe by which it was pumped into the tank, the valve being opened again to let it out. There is also a valve at the centre of the tank, which is used for shutting off the water from any of the 4 compartments, into which it is divided, for cleaning purposes. The engines are intended to pump up about 2 1/2 million gallons per hour, and a Diesel engine has been added which will pump perhaps 1/4 million gallons, but as one of the pumps is generally undergoing repair or being cleaned, the amount usually pumped is about 2 million gallons per hour. The demand in the early hours of the day, i.e., from 6 to 10 a.m., is about 4 million gallons and during those hours water is running out of the tank.
15. It is not suggested that the tank by itself could be called machinery, but it is argued that it answers that description by reason of its connection with the pumps, the two, to use Mr. McCabe's words, being 'designed as one unit,' and the fact : that it is part of the system for supplying water to the city.
16. It does not seem to me that the tank can be said in any way to answer the definition of machinery suggested by Davey, L.J., in Chamberlayne v. Collins (1894) 70 L.T. (N.S.) 217 : 9 R. 811. Nor do I think that it can be properly said that every-thing which is contained in a system comes within the description of machinery merely because mechanical contrivances are employed in the working of some parts of that system. I think the test to be applied with reference to any particular part of the system is whether it is essential to, or assists in the working, of the mechanical contrivance. Does the tank answer that test P It is argued for the plaintiff Corporation that the tank increases the efficiency of the pumps, in that if the tank were not in existence, pumps of higher power would be required to meet the demand at the time of maximum demand and the working of the pumps would be intermittent, as less power would be required when the demand fell off. Now to my mind it is beside the point to consider whether some other system would have been less economical or less efficient. You have to take the system as it is and then apply the test. Mr. Pearce, who was examined before us to explain the working of the tank in connection with the pumps, tells us that the pumping plant could not deal with the maximum demand of 4 million gallons per hour. He says: 'the tank enables the pumps to be worked more or less constantly : we don't keep them absolutely constant. It tends to allow us to keep them constant. If we had not the reservoir, we should want more pumps.' He does not suggest that the tank actually assists the working of the pumps in any way. It seems to me that the function of the tank is simply this, to store water during those hours when the demand is comparatively small and to supplement the supply given by the pumps when the demand is large. In my opinion, the tank is not 'machinery.'
17. In some respects the tank answers the same purposes as a pipe for part of the day, viz, it contains the water during its passage from the pumps to the consumer. We are not concerned with the question whether the pipes carrying the water to the city come within the terms 'machinery,' but it seems to me that there must be some point at which we must stop short of the tap by the turning of which the house-holder gets his water.
18. It is conceded that if it be held that the tank is not machinery, no objection can be legally taken to the assessment, And it is obviously so, for the tank, being attached to the earth, is 'land' within the definition contained in Section 6(5) of the Act and, as such, liable to assessment.
19. I would allow the appeal and dismiss the suit with costs in both Courts.
20. This appeal comes before us by reason of a difference of opinion between Chatterjea, J., and Walmsley, J. The question that arises for decision is whether the Cossipore and Chitpore Municipality have acted ultra viras in assessing the Corpora-lion of Calcutta upon art annual value of Rs. 25,000 in respect of their holding of 16 bighas 18 cottas and five chittaks, No. 1, Khelat Babu's Lane, at Tallah in' the 42 Parganas, situate within the limits of the Cossipore and Chitpore Municipality, which has on a portion thereof a one-storied old masonry building measuring 30 feet by 20 feet used as an out-office and an overhead steel tank resting on and supported by steel columns and girders which stand upon a concrete cement foundation or plinth. The question involves deciding whether the steel tank is machinery within the third proviso to Section 101 of the Bengal Municipal Act, 1884 (Act III of 1884), and assuming that it is machinery, whether the Cossipore and Chitpore Municipality were entitled to take into account its existence on the holding in arriving at the annual value of the holding under Section 101. Up to 1913 and prior to the erection of the tank the holding was assessed upon an annual value of Rs. 8,000 approximately. There is no evidence on the record that apart altogether from the erection of the tank the holding has so appreciated in value that its annual value is now Rs. 25,000, and consequently I think that the inference is obvious that the tank has been taken into account in arriving at the present annual value of RS. 25,000 Chatterjea, J., has held that the tank is not machinery within the third proviso to Section 101 and that even assuming it is machinery, its existence upon the holding has been rightly taken into account in arriving at the annual value of the holding under Section 101, Walmsley, J., has held that the tank is machinery and that the third proviso is an absolute prohibition against taking the tank into account in arriving at the annual value.
21. We thought it necessary to take additional evidence upon the hearing of the appeal and accordingly Mr. Arthur Pearoe, a member of the Institute of Civil Engineers and the Executive Engineer of the Waterworks of the Calcutta Corporation, who has been in the service of the Corporation for 22 years, was called and explained to us the working of the tank in connection with the rest of the waterworks undertaking and produced five plans, Exhibits X-1-5. It appears from his evidence that the steel tank is 330 feet from the engine house, that it is connected with the pumps by a steel pipe, which is 5 feet in diameter extending from valve A in the tank as shown on X-l to the valve marked B on X-l, and that after that the pipe is 6 feet in diameter, at which diameter it is shown as conveying the water to Calcutta.
22. It appears that the water for the use of Calcutta is conveyed by two pipes, shown by dotted lines on X-l, from] Falter to the underground reservoir shown on X-I and that from this reservoir it is pumped into the 6 feet pipe or main, the engine house connecting with the pipe between valves B and 0 shown on X-1.
23. Mr. Pearce stated that the works at Tallah were the main station for distributing water throughout Calcutta, that, prior to the erection of the steel tank there was a distributing station at Tallah and three sub stations in the town of Calcutta with underground reservoirs at Bhowanipur, Wellington Square and Halliday Streets, that the water received from Falta went into the main Tallah reservoir and that from thence part was pumped direct into the town and part into the three underground reservoirs mentioned above, the distribution to the town being completed from these sub stations, that under this system the town supply was given daily from 6 a. m. to 10 a. m. and from 3 p. m. to 6 P. m. the pumps at Tallah working more or less constantly and some all the time, more pumping, however, being done in the day time than at night, the sub-stations pumping only in the day time. He stated that after the steel tank was built and the new-system instituted, the sub-stations in the town were done away with altogether, that some of the old pumps at Tallah were done away with and replaced by others, but that some of the old pumps were retained, that the new system was devised to give a constant supply to Calcutta, the idea of the scheme being to increase the supply of water and give a constant supply to Calcutta and maintain a constant pressure by pumping from the underground reservoir and by using a raised reservoir, which would automatically govern the pressure to the town by keeping it constant. He stated that the steel tank was called a balancing tank, as it halanced inequality between supply and demand, as the demand varied and the supply from Falta was continuous, and that the pumps and the tank constituted one unit. He told us that 36 million gallons a day were received from Falta, If million gallons flowing into the reservoir in one hour, that the demand in Calcutta from 6 a. m. to 10 A. m. was 4 million gallons an hour, that the pumps could not raise so much, as the engines were not powerful enough and were only intended to pump 2 1/2 million gallons an hour and usually pumped about 2 million gallons an hour, the difference between this amount and the 4 million gallons demand between 6 a. M. and 10 A. m. being obtained from the steel tank. He added that the pumps were connoted with the steel tank as stated above and that when the demand was less than the 2 million gallons pumped, the excess was put into the steel tank from which it was drawn when the demand was greater than the pumps could supply. He stated that the working of the pumps was not necessarily constant or continuous but that they worked at a mare or less constant rate, the system tending to allow the working of the pumps to be kept constant. In cross-examination he stated that valves A, B and C on X 1 were worked by hand and that they did not work automatically and that the height of the tank was to get the pressure and that during part of the day, that is from 10--3 and during the night, the tank was purely a reservoir as there was no need of the pressure. He stated that the pumps did not draw water from the tank and that the tank would serve its purpose equally well if it was some miles away.
24. In the lower Court three witnesses were called, two on behalf of the Calcutta Corporation, namely, Mr. G.B. Williams and Mr. W.S. McCabe, and one Mr. Henry Firth on behalf of the Cossipore and Chitpur Municipality.
25. Mr. Williams is a Sanitary Engineer under the Government of Bengal and a member of the Institute of Civil Engineers and of the Institute of Mechanical Engineers, and he stated that he had carried out a number of schemes of waterworks in India. He stated that be considered the tank to be a part and parcel of the pumping machinery and that the tank must be sailed machinery, and that it was as much a part of the machinery as the boiler and that it could not be designed or constructed without the pumps and that it helped the pumps.
26. Mr. MacCabe is a Civil Engineer of 28 years' standing and a member of the Institute of Civil Engineers and was formerly Chief Engineer of the Calcutta Corporation. He stated that as Chief Engineer he supervised the water supply of Calcutta and designed the scheme for supplying water in Calcutta by means of a balancing tank and that the tank and the pumps combined were designed as one unit, the tank being designed to meet automatically the demand of water which varied from moment to moment in Calcutta, the tank and pumps combined being a mechanical contrivance for putting pressure on the water and for meeting the fluctuating demand, and he stated that he called the tank a part of the machinery for the supply of water in the town and that it was so designed. In cross-examination he stated that he could not dissociate the pumps from the tank any more than he could dissociate the boiler from the pumps.
27. Mr. Firth stated that he was in the employ of Messrs. Burn and Company of Howrah one of the principal firms of structural engineers in India, that he was a practical engineer and had designed tanks on trestles. He stated that he did not consider the tank machinery, which he would define and describe as a combination of complicated mechanical parts causing motion : in cross examination he stated that he knew that the tank and pumps were designed in relation to each, other, bat that the pumps could work independently of the tanks but could not alone perform the same function as the combination of the two which served combined to distribute the water, that they were together and could not be separated. He further described the tank and the trestles as the non-mechanical parts of a mechanical 'contrivance, which with the pipes he described as plant, and he stated that the tank did no work at all but stored water, which was not work. This is all the evidence. The Bengal Municipal Act contains no definition of machinery, but the dictionary definition of machinery as appearing in Murray's New English Dictionary, Volume VI. published by the Clarendon Press at Oxford in 1908, is as follows: machines or the constituent parts of a machine taken collectively : the mechanism or works of a machine or machine,' and in the same dictionary a machine is defined as (1) a structure of any kind. material or immaterial : a fabric or erection,' although this meaning is said to be now rare, and (4) in a narrower sense, 'an apparatus for applying mechanical power, consisting of a number of inter-related parts, each having a definite function,' and I think that it is in this sense that the word is used in Section 101 of the Bengal Municipal Act.
28. In Chamberlayne v. Collins (1894) 70 L.T. (N.S.) 217 : 9 R. 811 we find this definition, 'machinery implies the application of mechanical means to the attainment of some particular end by the help of natural forces.'
29. And Nutley and Finn, In re (1891) W.N. 61, on a contract for the sale of a freehold brewery which provided that its fixed plant and machinery should be paid for by valuation, Kekewich, J., held that speaking generally machinery included everything which by its action produced or assisted in production and that plant might be regarded as that without which production could not go on and included such things as brewer's pipes, vats and the like.
30. I am not unmindful that we are in the present case called on to construe the meaning of machinery' in a clause in a Statute imposing a rate and to construe the word in respect of an exemption from liability in respect of the rate imposed (start) but even so I am not prepared to hold that the steel tank falls within the meaning of machinery in the third proviso to Section 101. Upon the evidence it appears to me that the tank in question is nothing more than a building for the storage of water, the water so stored being used when the need arises to supplement the amount of water pumped into the mains from the underground reservoir. It, no doubt, forms part of the system for supplying Calcutta with water and is filled from the same pumps which pump the supply of water into the mains but that, in my opinion, does not make it machinery within the third proviso to Section 101. Prima facie the tank is not a machine and I do not see that it becomes a machine by reason of its connection with the pumps and engine by means of the steel pipe.
31. In this view the other question, namely, whether if the tank is machinery it should be taken into account in arriving at a valuation of the holding, does not arise but assuming that I am wrong in the eon elusion at which I have arrived, and that the tank is machinery, then I do not think that the Cossipore and Chitpore Municipality were justified in Hiring its existence into account in valuing the holding. The third proviso to Section (sic) expressly prohibits the taking into consideration of the value of any machinery in estimating the annual value of a holding under Section 10 . It is said, however, in reliance upon the English cases of Kirby v. Hunslet Union Assessment Committee (1906) App. Cas. 43 75 L.J.K.B. 129 : 94 L.T. 36 : 79 J.P. 50 :4 L.G.R. 144 : 22 T.L.R. 167 and Mersey Docks and Harbour Board v. Birkenhead Assessment Committee (1901) App. Cas. 175 : 70 L.J.K.B. 584 : 84 L.T. 542 : 49 W.R. 610 : 65 J.P. 579 to which we were referred, that although the tank may not be rateable per se, yet in valuing the holding its existence thereon must be taken into account in arriving at the annual value for the purposes of Section 101. I do not think that this is so. The third proviso is express in its terms and if the tank is considered at all, it seems to me that this must involve taking into consideration its value in some form, which is what the third proviso forbids and which I think in effect means that it must be taken as non existent for the purpose of arriving at the annual value under Section 101. The English cases, to my mInd. have no application, for our decision must rest upon the construction of the third proviso to Section 101.
32. But for the reasons already given I think the appeal should succeed upon the other ground.