Judgement

Appeal (No. 4 of 1938), by special leave, from a decree of the High Court (March 13, 1936), affirming an order of the Chief Judge of the Court of Small Causes, Calcutta (March 23, 1934).

The respondents were the owners of premises, No. 82 Nalini Sett Road, Calcutta, and they had erected a building thereon. The appellants, the Corporation of Calcutta, in discharge of their statutory duties, caused those premises, including the building, to be valued as provided by s. 131 of the Calcutta Municipal Act, 1923, for the purpose of assessing them to the consolidated rate which the appellants were empowered by s. 124 of the Act to impose on all lands and buildings in

Law. Rep. 66 Ind. App. 42 ( 1938- 1939) C orporation of C alcutta V. Moti C hand C howdhury

176

Calcutta. Part of the building was in the occupation of the respondents, part was vacant, and part again was occupied by tenants of the respondents.

The question for decision in this appeal was what in those circumstances was the correct mode of assessment. The appellants, through their assessor, proceeded under s. 127 (b) of the Calcutta Municipal Act, and, estimating the present value of the land to be Rs. 64,983, and the present cost of erecting the building thereon to be Rs. 24,230; determined the annual value of the premises to be five per cent, of the sum of those figures—namely, Rs. 4460. The appellants gave special notice to the respondents of the assessment so made, as required by s. 138 of the Act. Respondent No. 1, Moti Chand Chowdhury, then delivered a written notice of objection under s. 139, objecting on general grounds to the assessment that " it is very high and unjust." The Second Deputy Executive Officer of the appellants heard the objection, and by order, dated September 15, 1933, reduced the assessment to Rs. 4025, on the basis that the value of the land was Rs. 58,020, and the cost of erecting the building Rs. 22,496.

Thereupon, on October 23, 1933, the respondents instituted the suit out of which this appeal arose in the Court of the Chief Judge, Court of Small Causes, Calcutta, against the appellants, setting out that they had erected the building for letting purposes, that in fact almost the entire building had been let out to tenants, and claiming that the premises fell to be assessed to the consolidated rate under s. 127 (a) instead of under s. 127 (b) of the Act.

The terms of s. 127 (a) and (b) appear from the judgment of the Judicial Committee.

The Chief Judge found on the facts that roughly half the building was in actual occupation of the respondents and half was used for letting purposes. He therefore assessed half the building under s. 127 (b) of the Act, and half under s. 127 (a), and in the result he fixed the annual value at Rs. 3168.

On appeal by the appellants, the High Court (S. K. Ghose and Guha JJ.) were of opinion that the construction of s. 127 depended on the facts of each particular case ; that for the purpose of s. 127 building must include part of a building, and that it was possible for one part of a building to come under s. 127 (a) and another part under s. 127 (b). They therefore dismissed the appeal.

1938. Nov. 11. Dunne K.C. and J. M. Pringle for the appellants. The whole question turns on the proper con struction of s. 127 of the Calcutta Municipal Act, 1923, [It was read.] Sect. 127 (a) deals with buildings " erected for "letting purposes or ordinarily let,” and s. 127 (b) with those "not erected for letting purposes and not ordinarily let." It is submitted that the latter is a residuary clause, and that any case which does not come under (a) comes practically and definitely under (b). The Assessment Officer assessed it under (b). The High Court divided the building into two, and made a sort of assessment applying the principles in (a) and (b) to each part, and not treating the building as a unit. It is submitted that the " building " in the section means a building as a whole ; that in the present case it obviousl