{"id":111248,"date":"2003-07-11T00:00:00","date_gmt":"2003-07-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-greater-vs-kamla-mills-ltd-on-11-july-2003"},"modified":"2016-07-07T15:55:16","modified_gmt":"2016-07-07T10:25:16","slug":"municipal-corporation-of-greater-vs-kamla-mills-ltd-on-11-july-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-greater-vs-kamla-mills-ltd-on-11-july-2003","title":{"rendered":"Municipal Corporation Of Greater … vs Kamla Mills Ltd on 11 July, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Municipal Corporation Of Greater … vs Kamla Mills Ltd on 11 July, 2003<\/div>\n
Bench: Ruma Pal, B.N. Srikrishna<\/div>\n
           CASE NO.:\nAppeal (civil)  2452 of 2000\n\nPETITIONER:\nMUNICIPAL CORPORATION OF GREATER MUMBAI AND ANR.\n\nRESPONDENT:\nKAMLA MILLS LTD.\n\nDATE OF JUDGMENT: 11\/07\/2003\n\nBENCH:\nRUMA PAL & B.N. SRIKRISHNA\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003 Supp(1) SCR 500<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
SRIKR1SHNA, J. The central issue involved in both these appeals is: When a
\nbuilding constructed upon land previously assessed to Municipal lax is
\ndemolished for construction of new building, is it open to the Municipal
\nCorporation to assess the rateable value of the land till the construction
\nof the building by taking the market value of the land?\n<\/p>\n
Facts:\n<\/p>\n
The facts relevant for appreciating the controversy, shortly stated, are as
\nunder :\n<\/p>\n
The respondent is a company whose main business was running of a textile
\nmill known as M\/s Kamla Mills Limited in Mumbai. It owned a large area of
\nland comprising approximately 38,000 sq. mtrs. In the city of Mumbai on
\nwhich structures were standing. The entire property (i.e. land & buildings)
\nwas assessed under Ward No. G\/S 1955 (1) at rateable value of Rs. 370,505.\n<\/p>\n
The prolonged general strike of the textile workers in Bombay affected
\nfinancial position of all the textile mills in Mumbai and a policy decision
\nwas taken by the Government of Maharashtra to permit construction of
\nresidences in the industrial zone in the Bombay Metropolitan Region. As a
\nresult of the newly adopted policy, textile mills which had extensive land,
\nand were hitherto not permitted to build thereupon, were granted permission
\nto demolish old structures upon the land and construct residential
\nbuildings and sell them on condition that the finances thereby generated
\nwould be utilized for paying off the dues of the textile employees. Taking
\nadvantage of this liberalised industrial policy, the respondent company
\ndemolished some of the old structures standing on a part of its land in or
\nabout June, 1995 and got plans approved for construction of a new building
\ncomplex thereupon consisting of three wings A. B and C.\n<\/p>\n
On 31st January, 19%, the Investigating Officer of the appellant –
\nCorporation made a Tabulated Ward Report (TWR) No. 441 proposing a revision
\nof the assessable value of the respondent’s property. The appellant was of
\nthe view that the land under the demolished structures forms a suitable
\nbuildable plot of land whereupon construction work of the building in
\nphases had been started, and considering the building potential of the land
\nwhich had become available, the appellant bifurcated the entire plot of
\nland falling within Ward No. G\/S 1955 (1) into two plots. By another
\nTabulated Ward Report No. 442 of 31.1.1996 it was proposed that the land
\nunder the demolished structures formed from June, 1995 a buildable vacant
\nplot of 15014 sq. mtr. on which construction had commenced. It was proposed
\nto “treat the whole plot of land admeasuring 15014 sq. mtr. as plot of land
\nunder construction” and to revise its rateable value to Rs. 53, 50,990 by
\nadopting a rate of Rs. 3300 per sq. mtr. Consequently, the rateable value
\nof the residual plot was reduced from Rs. 3,70,505 to Rs. 2,36,130. The
\nrespondent filed complaints objecting to the proposed revision of the
\nrateable value in respect of both the plots. These complaints were heard by
\nthe appropriate officer. By an order made on 12.2.1998, the concerned
\nofficer reduced the rateable value by adopting the rate at Rs. 3,000 per
\nsq. mtr. He also assessed the property in two parts i.e., ‘A’ Wing “as plot
\nof land under construction” and ‘B’ & ‘C’ Wings “as plot of land”. He
\nadopted the uniform rate of Rs. 3,000 per sq. mtr. for both the plots and
\nassessed the rateable value at Rs. 31,1 1,595 w.e.f. 1.12.1995. By another
\norder made on 11.3.1998. the appropriate officer of the appellant –
\nCorporation fixed the rateable value w.e.f. 1.10.1996. The order made by
\nthe appropriate officer of the appellant – Corporation records that during
\nthe hearing of the complaints though the respondent suggested that the
\nvalue of the land be determined by taking the rate of Rs. 2500 per sq.
\nmtr., the respondent did not adduce any evidence or reasons for reducing
\nthe market rate of the buildable vacant land from Rs. 3000 per sq. mtr. to
\nRs. 2500 per sq. mtr. Consequently, this suggestion of the respondent was
\nnot accepted and the concerned officer fixed the rateable value of both the
\nplots of land at Rs. 31,11,595 w.e.f. 1.6.1995 by adopting the market rate
\nof land at Rs. 3000 per sq. mtr.\n<\/p>\n
The respondent filed two appeals before the Small Causes Court. Municipal
\nAppeal No. 367 of 1998 was directed against the order of the Investigating
\nOfficer dated 11.3.1998 passed in Complaint No. 140 of 1996\/97 fixing the
\nrateable value w.e.f 1.10.1996. Municipal Appeal No. 370 of 1998 was
\ndirected against the order of the Investigating Officer dated 12.2 1998.
\nThe Small Causes Court heard the appeals and by a common judgment In Id
\nthat the appellant – Corporation was not entitled to revise the rateable
\nvalue by adopting the market rate. It was also held that the Investigating
\nOfficer had failed to follow the principle laid down by this Court in the
\ncase of the Municipal Corporation of Greater Bombay v. M\/s. Polychem Ltd.,<\/a>
\n[ I974] 2 SCC 198, that the rate adopted by the Investigating Officer was
\nexcessive and exorbitant, and that the proper rate of assessment should be
\nRs. 654 per sq. mtr.\n<\/p>\n
After setting aside the order of the Investigating Officer dated 11.3 1998,
\nthe Small Causes Court determined the rateable value of wing ‘A’ at Rs.
\n26,96,355 w.e.f. 1.10.1996, and for wing’B’&’C'(as vacant land) at Rs.
\n89,396, w.e.f. the same date. The appellants were directed to issue fresh
\nbills accordingly with a direction to refund the excess amount paid alter
\nadjusting against taxes due.\n<\/p>\n
The appellant – Corporation challenged the judgments of the Small Causes
\nCourt before the High Court by filing two appeals. First Appeal No. 660\/99
\nagainst the judgment in Municipal Appeal No. 370\/98 was summarily rejected
\non the ground that no interference was called for. First Appeal No. 659\/99
\ndirected against the judgment of the Small Causes Court in Municipal Appeal
\nNo. 367\/98 was also rejected by taking the view that in Dewan Daulat Raj
\nKapoor v. New Delhi Municipality, AIR (1980) SC 541 this Court has laid
\ndown that the annual value at which the building can reasonably be experted
\nto let must be limited to the measure of standard rent determined under the
\nRent Act and cannot be determined on the basis of the higher rent actually
\nreceived by the landlord from the tenant.\n<\/p>\n
Being aggrieved by the said two judgments of the High Court the appellant
\nis before this Court. The appellant filed an application for producing
\ncertain additional documents before this Court vide I.A. No. 2 of 2000. It
\nwas pointed out that in response to notices issued by the appellant –
\nCorporation under Section 155 of the Bombay Municipal Corporation Act, the
\nletters dated 16.12.1999 and 24.12.1999 were received from National Stock
\nExchange of India Limited and National Securities Depository Ltd.,
\nrespectively, indicating the actual amounts paid by them for occupation of
\ncertain portions of the building known as “Trade World” which had been
\nconstructed by the respondent after demolition. Since these documents
\nbecame available after the High Court had delivered its judgment, the
\nappellants craved leave to rely upon them. This application was allowed by
\nan order dated 3.4.2000 made by this Court.\n<\/p>\n
Contentions:\n<\/p>\n
The appeals pertain to two different aspects. One pertains to the completed
\nbuilding ‘A’ wing and the other pertain to the vacant land. With regard to
\nthe completed building ‘A’ wing, learned counsel for the appellant contends
\nthat the assessee deliberately failed to furnish the particulars of leave
\nand license \/ rent at which the premises had been given to the occupants.
\nIt is only after the notice issued under Section 155 that the appellant was
\nable to gather information that at the material time National Stock
\nExchange of India Limited was paying Rs. 53,92,049.46 to the respondent for
\noccupation of basement and three upper floors and similarly National
\nSecurity Depository Ltd. was using and occupying 4th and 5th floors of ‘A’
\nwing on ownership basis. The learned counsel contends that the judgment of
\nthis Court in Polychem (supra) merely holds that when a building on land,
\npreviously rated, is demolished, and new construction is commenced, the
\nland upon which the construction is being made, should continue to be rated
\nas vacant land. However, this Court has not laid down that its rateable
\nvalue should be the same as prior to the demolition of the building. It is
\ncontended that even if the rateable value of a building is to be held
\nlimited to the standard rent, and the assessment of the rateable value has
\nto be done on the said basis, the evidence on record clearly shows that the
\nbuilding was being assessed for the first time and, therefore, the actual
\nletting value of the premises has to be taken as the basis for working out
\nthe rateable value irrespective of the fact that it was styled as ‘leave
\nand license compensation’. The actual amount paid by the National Stock
\nExchange India Limited and National Securities Depository Limited must be
\ntaken as the basis for working out the rateable value of the land under
\nconstruction from 1.10.1996 onwards.\n<\/p>\n
With regard to the assessment for rating of the vacant land, the learned
\ncounsel for the appellant contends that, after demolition of the structures
\non the land, the character of the land changed inasmuch as its building
\npotential increased tremendously. Since the land as such had not been
\nassessed previously, it had to be assessed for rateable value on the basis
\nof “Contractor’s Method” by taking a suitable percentage of the market
\nvalue, which was one of the known methods of assessing the rateable value.
\nHence, from 1.10.1996 the appellant had rightly proposed the rateable value
\non the basis of the market value of the land at Rs. 3300 per sq mtr. while
\nthe respondent had made a counter suggestion that it should be 2500 sq.
\nmtr. as fair and reasonable value without producing any evidence in
\nsupport. In the circumstances, the appellant’s orders that the rateable
\nvalue should be worked out by taking market value of land at Rs. 3,000 per
\nsq. mtr. was not liable to be disturbed. The learned counsel contends that
\nboth the Small Causes Court and the High Court have misunderstood the
\njudgment of this Court in Polychem (supra). In Polychem (supra) this Court
\nhas merely laid down that once the building is demolished, the land does
\nnot cease to have rateable value (as the doctrine of sterility does not
\nhold good in India), but continues to be rateable as “vacant land”. This
\nCourt has nowhere laid down that the land should be rated only at the rate
\nprevalent prior to the demolition of the structures Since “contractor’s
\nmethod” is a known method of assessing the rateable value of land, no fault
\ncould be found with the rateable value arrived at by the appellant –
\nCorporation.\n<\/p>\n
The learned counsel for respondent urged the following propositions of law
\nto support the judgments of the courts below:\n<\/p>\n
(i) The rateable value of land and building is limited by the measure of
\nstandard rent arrived at by the assessing authority by applying the
\nprinciples laid down in the Bombay Rent Act and cannot exceed the figure of
\nthe standard rent so arrived at by the assessing authority.\n<\/p>\n
(ii) The standard rent of premises (land or land & building) is based on
\nallowing the landlord a reasonable return on his investment. It is linked
\nto the capital investment of the landlord and not linked to the market
\nvalue of the premises. Under the Bombay Rent Act the standard rent of
\npremises always remains fixed<\/p>\n
(iii) As the standard rent (of premises land or building) remains fixed
\nunder the Bombay Rent Act, the Corporation could not have revised the
\nrateable value of land under construction, even if” it is treated as vacant
\nland under the ratio of the judgment in Polychem case, on the basis of the
\ncurrent market value of the land or the current market value of the
\nbuilding.\n<\/p>\n
“to-\n<\/p>\n
According to the learned counsel for the respondent, Polychem holds that
\nonce the building is demolished and reconstruction is commenced on the
\nland, the land must be treated as vacant land for the purpose of rateable
\nvalue and its rating has to remain frozen at what it was earlier unless
\nthere has been additional investment or improvement therein. In the instant
\ncase, what was being assessed for rateable value was subject to the limit
\nof standard rent applicable under the Bombay Rent Act and merely because
\nthe land had building potential, The Corporation was not entitled to revise
\nthe rateable value.\n<\/p>\n
Both sides cited a large number of authorities in support of their
\nrespective cases which we shall presently notice.\n<\/p>\n
Law:\n<\/p>\n
Under Section 139 of the Bombay Municipal Corporation Act, the Corporation
\nis inter alia empowered and obligated to impose property taxes. The
\nproperty taxes comprise general tax, water tax, sewage tax and so on. All
\nthese taxes are leviable at such percentage of the rateable value as
\ndetermined by the Municipal Corporation. The manner of determination of
\nrateable value, therefore, becomes crucial to the debate before us. The
\nmaterial portion of Section 154 of the Mumbai Municipal Corporation Act
\nrelevant for our discussion reads as under:\n<\/p>\n
“Section 154(1) – In order to fix the rateable value of any building or
\nland assessable to a property tax, there shall be deducted from the amount
\nof the annual rent for which such land or building might reasonably be
\nexpected to let from year to year a sum equal to ten per centum of the said
\nannual rent and the said deduction shall be in lieu of all allowances for
\nrepairs or on any other account whatever.”\n<\/p>\n
The key words of Section 154( 1) are “the amount of the annual rent for
\nwhich such land or building might reasonably by expected to let from year
\nto year” (emphasis added). Considerable forensic skill and judicial talent
\nhave been expended to ascertain the meaning of these words. Depending upon
\nwhether the area in question is subject to Rent Restriction Legislation or
\nnot, the Courts have answered the question differently.\n<\/p>\n
Counsel placed reliance on the following judgments in support of the
\nproposition that the rateable value of a premises is limited by the
\nstandard rent determined or determinable under the provisions of the Rent
\nRestriction Legislation.\n<\/p>\n
1.      [1998] 6 SCC 381. Govt. Servant Coop. House Building Society Ltd.
\nv. Union of India<\/a><\/p>\n
2.      [ 1998] 4 SCC 368, East India Commercial Co. (?) Ltd. v. Corpn. of
\nCalcutta.\n<\/p>\n
3.      [1995] 4 SCC 696, Asstt. G.M., Central Bank of India v. Commr. ,
\nMunicipal Corpn. For the City of Ahmedabad.\n<\/p>\n
4.      [1995] 4 SCC 96, Indian Oil Corpn. Ltd. v. Municipal Corpn<\/p>\n
5.      [ 1994] 6 SCC 572, Srikant Kashinath Jituri v. Corpn. of the<\/a>– City
\nof Belgaum.\n<\/p>\n
6.      [1985] 1 SCC 167, Balbir Singh (Dr.) v. MCD.\n<\/p>\n
7.      [1980] 1 SCC 685, Dewan Daulat Rai Kapoor v. New Delhi Municipal
\nCommittee<\/a><\/p>\n
8.      [1976] 4 SCC 622, Municipal Corpn., Indore v. Ratnaprabha<\/p>\n
9.      [1970] 2 SCC 803, Guntur Municipal Council v. Guntur  Town Rate
\nPayers’ Assn.<\/a><\/p>\n
10.  [1970] 2 SCC 44, Corpn, of Calcutta v. L1C of India.\n<\/p>\n
11. AIR (1962) SC 151, Corpn. of Calcutta v. Padma Debi.\n<\/p>\n
We are, fortunately, spared the effort of having to analyse these judgments
\nin detail and ascertain their ratios, as two judgments of this Court have
\nalready anticipated and carried out this task for us.\n<\/p>\n
In East India Commercial Co. (P) Ltd. v. Corpn of Calcutta, [ 1998] 4 SCC
\n368 all these judgments were analysed by this Court and the position in law
\nwas neatly summed up as under:\n<\/p>\n
“From the aforesaid decisions, the principle which is deducible is that
\nwhen the Municipal Act requires the determination of the annual value, that
\nAct has to be read along with Rent Restriction Act which provides for the
\ndetermination of fair rent or standard rent. Reading the two Acts together
\nthe rateable value cannot be more than the lair or standard rent which can
\nbe fixed under the Rent Control Act. I he exception to this rule is that
\nwhenever any Municipal Act itself provides the mode of determination of the
\nannual letting value like the Central Bank of India case relating to
\nAhmedabad or contains a non obstante clause as in Ratnaprabha case then the
\ndetermination of the annual letting value has to be according to the terms
\nof the Municipal Act. In the present case, Section 168 of the Municipal Act
\ndocs not contain any non obstante clause so as to make the Tenancy Act
\ninapplicable and nor does the Act itself provide the method or basis for
\ndetermining the annual value. This Act has, therefore, to be read along
\nwith Tenancy Act of 1956 and it is the fair rent determinate under Section
\n8 (1) (d) which alone can be the annual value for the purpose of property
\ntax.” (Vide paragraph 17).\n<\/p>\n
Since that was a case pertaining to the Calcutta Municipal legislation, the
\nreference therein is thus to Section 8(1) (d) of the West Bengal Tenancy
\nAct, 1956.\n<\/p>\n
Despite the law having been thus clearly laid down in East India Commercial
\nCo, (P) Ltd. (Supra), thanks to ingenuity of counsel, the issue was
\nreagitated before this Court in India Automobiles (I960) Ltd \\. Calcutta
\nMunicipal Corpn., [2002] 3 SCC 308. This Court once again carried out a
\nsurvey of the judgments and culled out the law as under (vide paragraph\n<\/p>\n
21):\n<\/p>\n
“A perusal of various judgments, relied upon by the learned counsel for the
\nparties, clearly shows that this Court has taken a consistent view
\nregarding the determination of annual value of land or building for the
\npurposes of determination of taxes under the Municipal Acts. On the basis
\nof various statutes relating to the determination of the annual value for
\nthe purposes of the Municipal Acts, this Court has devised two distinct
\ngroups. One such group deals with the municipal laws of some States which
\ndo not expressly exclude application of the Rent Restrictions Acts in the
\nmatter of determination of annual value of a building for the purposes of
\nlevying municipal taxes and the other group deals with the municipal laws
\nwhich expressly exclude application of the rent Restriction Acts in the
\nmatter of determination of annual value of land or building on rental
\nmethod. Whereas in the first category of cases the determination of annual
\nvalue has to be made on the basis of fair or standard rent notwithstanding
\nthe actual rent, even if it exceeds the statutory limits. In the other
\ngroup where the restriction in the rent Acts has been excluded, the
\ndetermination of annual value of the building on rental method is referable
\nto the method provided under the relevant Municipal Act. Whereas Padma Debi
\ncase, LIC case, Guntur Town Rate Payers case and Dewan Daulat Rai case deal
\nwith the first group of municipal laws, the cases in Ratnaprabha case, AGM,
\nCentral Bank of India case. East India Commercial Co. case, Balbir Singh
\ncase, Indian Oil Corpn. Case and Srikant case deal with the second group.
\nAs already noticed, this Court in LIC case dealt with the first category as
\nin Section 168 of the Calcutta Municipal Corporation Act, there existed no
\nnon obstante clause. The observations of the Bench of this Court which
\ndealt with the case on 10.10.2001 cannot be taken in isolation.”\n<\/p>\n
It was further observed (vide paragraph 23):\n<\/p>\n
“As already noticed even without specific determination, the standard rent
\nwas held to have been statutorily determined under Section 2(10) (b) of the
\nRent Act. Upon analysis of the various municipal laws and the judgments of
\nthis Court it is held that in cases where the municipal laws exclude the
\napplicability of the Rent Acts by incorporating non obstante clause in the
\ntaxing statute, the powers of the authorities under the Municipal Acts are
\nnot circumscribed by the limits indicated in Padma Debi case and followed
\nin that group of cases. In cases where the fair rent payable by the tenant
\nhas been determined and there is no justification for refusing to accept
\nthat fair rent as rental value of the premises, the municipal authorities
\nshould generally accept the standard rent fixed, notwithstanding the non-
\napplicability of the Rent Acts because such a view would be a reasonable
\nguideline to determine the rate of rent at which such land or building
\nmight, at the time of assessment, be reasonably expected to let from year
\nto year. The rent which the tenant is receiving from his subtenant is also
\nan important statutory consideration for determining the rent at the time
\nof assessment to which the property might reasonably be expected to be let
\nfrom year to year. Such a consideration is also justified on the principles
\nof reasonableness. We cannot agree that in all cases, notwithstanding the
\nnon obstante clause the annual rental value cannot be fixed beyond the
\nstandard rent determined or determinable under the rent statute. We also
\nfind it difficult to hold that in all cases the rent actually paid by the
\nsub-tenant to the tenant be taken as a sole criterion for determining the
\nannual value on the assumption that such land or building might, at the
\ntime of assessment, is reasonably expected to get the aforesaid amount of
\nrent if let from year to year.”\n<\/p>\n
Now that the law has been culled out to the exercise of applying it.\n<\/p>\n
The case before us is governed by the provisions of a Rent Restrictions
\nLegislation viz. The Bombay Rent Act. The Bombay Municipal Corporal ion Act
\nneither contains a statutory definition of ‘rateable value’, nor does it
\nlay down the manner in which the rateable value has to be computed, as
\ndistinguished from the situation in Commissioner v Griha Yajmanule Samkya
\nand Ors., [2001] 5 SCC 561. The Bombay Municipal Corporal on Act neither
\ncontains a defining clause, nor a non-obstante clause, which would hold the
\nfield, notwithstanding the definition of ‘standard rent’ in the Bombay Rent
\nAct. Therefore, prima facie, this would be a case which would all within
\nthe general principle laid down by the series of judgments commencing Padma
\nDevi (supra) and ending with Srikant Kashinath Jituri (supra).\n<\/p>\n
The contention of the learned counsel for the respondent that the rateable
\nvalue to be fixed under Section 154(1) of the Bombay Municipal Corporation
\nAct is limited by the measure of the standard rent within the meaning of
\nSection 5 (10) of the Bombay Rent Act appears to be justified, particularly
\nin view of the fact that Section 7 of the Bombay Rent Act makes it illegal
\nto claim of any rent or any licence fee in excess of the standard rent.
\nThus, in determining what would be the “amount of the annual rent for which
\nsuch land or building might reasonably be expected to let from ‘ear to
\nyear” for the premises, meaning thereby land or building, since both are
\nincluded in the definition of the premises in Section 2 (3) (g), one has to
\nI eep in mind that determining anything contrary to law could not be
\n“reasonable” as a hypothetical tenant would hardly be inclined to pay a
\nrent in excess of the standard rent, though, on account of circumstances
\nwhich may be peculiar to the property, the reasonable rent which may be
\noffered by the hypothetical tenant could even be less than the standard
\nrent.\n<\/p>\n
Mr. Singhvi, learned counsel for the appellant, urged that this contention
\ncannot be accepted for several reasons. First, he urged that such a
\ncontention was never raised at any stage of the proceedings either before
\nthe Investigating Officer, Small Causes Court, or even before the High
\nCourt. He contends that ‘standard rent’ is a pure question of fact, or, at
\nany nite, a mixed question of law and fact, and ought not to be permitted
\nto raise before this Court first time. He, therefore, urged upon us to
\ndecline permission for this ground to be raised. Though, as a normal rule,
\nthis Court does nut permit in appeal the raising of a totally new ground,
\nparticularly when wider r; mifications may arise, we are inclined to permit
\nraising this ground for more than one reason. First, that the proposition
\nof law that rateable value is limited by the amount of the standard rent,
\nper se does not require actual invesigation. as it appears to be well
\nsettled by catena of decisions of this Court Secondly, we find that the
\nHigh Court and the courts below focused the r attention merely on the ratio
\nlaid down in the judgment by this court in Polychem (supra) without
\nadverting to this proposition of law which appears to be well established.
\nThirdly, substantive justice requires over-looking of the rigid rule,
\nparticularly when the contention, if permitted to be urged, does not cause
\nprejudice to the opposite party.\n<\/p>\n
Mr. Singhvi then contended that under Part-II of the Mumbai Rent Act, which
\ncontains the provisions with regard to the standard rent, the restrictions
\nimposed under Section 7 would apply in respect of the premises only if they
\nare let. He contended that entire Part – II of the Rent Act would not apply
\nto the premises of Kamla Mills since the premises was never let out at any
\ntime earlier and, therefore, the restrictions under Section 7 of the Mumbai
\nRent Act would not apply. In our view, the argument is untenable. What we
\nare required to consider is what would a hypothetical tenant be willing to
\noffer as reasonable rent for the premises in question. Upon the premises
\nbeing offered to be let, there would be hypothetical tenant; that
\nhypothetical tenant would look at the restrictions applicable under the
\nrent legislation and make a reasonable offer. Section 6 in Part-II of the
\nMumbai Rent Act, therefore, is hardly of relevance. We may examine the
\nquestion from another angle. It surely cannot be contended that no rateable
\nvalue can be fixed in respect of the premises occupied by the owner
\nhimself. In fact, Section 154 (I) of Mumbai Municipal Corporation Act would
\napply equally to such premises. Even in such a situation, the reteable
\nvalue has to be ascertained on the basis of what a hypothetical tenant
\nwould offer for it as reasonable rent. If Mr. Singhvi’s argument that
\nSection 6(1) of the Mumbai Rent Act makes the provisions of Part-II
\ninapplicable to such premises is accepted, then no taxes would be payable
\nby any owner for self-occupied property. We, therefore, reject this
\ncontention.\n<\/p>\n
It is next contended by Mr. Singhvi that Bombay Municipal Corporation Act,
\n1888 is a complete code for determination of the rateable value and is not
\nsubject to the provisions in the Bombay Rent Act, 1947. Our attention was
\ndrawn to the fasciculus of Sections 139, 140, 146, 147, 154, 155. 156 to
\n167 and 217 of Bombay Municipal Corporation Act in support of the
\ncontention. In our view, the contention is unsustainable. No doubt the
\nBombay Municipal Corporation Act is a legislation for fixing of the
\nrateable value and imposing of property tax, but it nowhere defines what
\n‘rateable value’ is, except in general terms under Section 154 (1). If the
\nstatute had defined ‘rateable value’ in specific terms, then the argument
\nmay have been sustainable, as sustained in Griha Yajmanule Samkhya and Ors.
\n(supra). It must be remembered that the principle of ‘standard rent’ has
\nnot been invoked by reason of any requirement or declaration under the
\nMunicipal Corporation Act. but by reason of the fact that if the rateable
\nvalue is the reasonable annual rent at which the property may be expected
\nto be let, then we must consider what a hypothetical tenant would be
\nwilling to offer as rent for the oroperty let. As has been pointed earlier,
\nthe concept of reasonableness would necessarily include the concept of an
\nowner and a tenant who are both law abiding and do not indulge in “black
\nmarketing”. If there is a rent restriction legislation which imposes a
\nlimit on the rent which can be charged, then the concept of
\n“reasonableness” would include that restriction also. This is the reason
\nwhy in a series of judgments of this Court it has been laid down that the
\nrateable value is limited by the standard rent determined or determinable
\nunder the provisions of the Rent Restriction Legislation. The only
\nexception made was in a situation like Griha Yajmanule Samkya and Ors.
\n(supra), where the Municipal Corporation Act has a detailed method to fix
\nthe rateab e value. As already noticed by the judgments of this Court,
\nbarring the two exceptional cases of Municipal Legislation containing non-
\nobstante clause or deeming clause with regard to the rateable value, it
\nmust necessarily be held to be limited by the standard rent determined or
\ndeterminable under the applicable rent control legislation.\n<\/p>\n
We are unable to accept the contention of Shri Singhvi that this case falls
\nwithin the ratio of Griha Yajmanule Samkya and Ors. (supra). In that case
\nthe municipal legislation in Hyderabad specifically contained detailed
\nprovisions for fixation of monthly or yearly rent. Examining the statute
\nbefore it, this Court took the view that the statutory provisions required
\nthe tax to be levied on the basis of rateable value as fixed by the
\nCorporation and there was further provision in the Act as to the method or
\nmanner of determination of the rateable value. Hence, this Court observed
\n(vide paragraph 35), “the act mandates that the Commissioner shall
\ndetermine the tax to be p lid by the person concerned in the manner
\nprescribed under the statue and the rules. It is our view that the Act and
\nthe Rules provide a complete code for assessment of the property tax to be
\nlevied upon buildings within the Municipal Corporation. There is no
\nprovision in the statute that the fair rent determined under the Rent
\nControl Act in respect of a property is binding on the Commissioner. The
\nlegislature has wisely not made such a provision because determination of
\nannual rent depends on several criteria”. We are, therefore. unable to
\naccept the contention of Shri Singhvi in this regard.\n<\/p>\n
It is next contended by Shri Singhvi that Section 5 (10) (b) and Section 11
\nof the Mumbai Rent Act, 1947 have been declared to be ultra vires Article
\n14 of the Constitution by this Court in Malpe vishwanath Acharya and Ors.
\nv. State of Maharashtra and Anr., [1998] 2 SCC 1. It is undoubtedly true
\nthat this Court held the aforesaid provisions of the Bombay Rent Act to he
\nunreasonable and liable to be struck down as unreasonable and arbitrary.
\nHowever, this Court refrained from striking down the same in view of the
\nfact that the existing Act was to lapse on 31.3.1998. Hence, this Court
\nmade the following directions:\n<\/p>\n
“We however refrain from striking down the said provisions as the existing
\nAct elapses on 31.3.1998 and we hope that a new Rent Control Act will be
\nenacted with effect from 1.4.1998 keeping in view the observations made in
\nthis judgment insofar as fixation of standard rent is concerned. It is,
\nhowever, made clear that any further extension of the existing provisions
\nwithout bringing them in line with the views expressed in this judgment,
\nwould be invalid as being arbitrary and violative of article 14 of the
\nConstitution and therefore of no consequence. The respondents will pay the
\ncosts.”\n<\/p>\n
This judgment need not detain for another reason. We are concerned with the
\nperiod prior to 31st March, 1998, at which time, admittedly, the concerned
\nsections were not held to be bad, by this Court despite noticing the
\ninfirmity in the sections. For this reason also, we are unable to accept
\nthe contention.\n<\/p>\n
Shri Singhvi then contended that the appeals must fail for failure to place
\nthe requisite evidence on record. He contends that there is no warrant for
\nthe assumption and assertion of the respondent that the rateable value for
\nthe property of the respondent for the years 1994-95 and 1995-96 was based
\non “standard rent”, nor is there any warrant for the assertion that the
\nland had been separately valued as contended. There appears to be merit in
\nthis contention. While the material on record shows that prior to 1994-95
\nthe rateable value of the entire property before the demolition was fixed
\nat Rs. 3,70,505, there is no evidence on record to show either that this
\nwas based on standard rent or that there was any assessment of the land and
\nstructures separately. Learned counsel relied on the judgment of this Court
\nin National and Grindlays Bank Ltd. v. The Municipal Corporation of Greater
\nBombay,<\/a> [1969] 1 SCC 541, a case arising under the Bombay Municipal
\nCorporation Act, 1888 itself, in which the court observed that the Act was
\npassed in the year 1888 and Municipal Corporation had a practice for a very
\nlong time of treating the land and the building constructed upon it as
\nsingle unit and charging the property tax upon the owner of the land in a
\ncase where the land is let for a period of less than one year to a tenant
\nwho has constructed a building thereupon, approving the observations made
\nby the Division Bench of the Bombay High Court in Ramji Keshavji v.
\nMunicipal Corporation for Greater Bombay, [56 Bom. LR 1132]. Relying on
\nthis judgment the learned counsel for the appellant contended that, far
\nfrom there being material to suggest that rateable values were fixed
\nseparately for land and building, judicial notice has been taken of the
\nfact that the land and buildings were rated as a composite unit by the
\nBombay Municipal Corporation is matter of practice. Placing reliance on the
\njudgment of this Court in AGM, Central Bank of India v. Commr. Municipal
\nCorporation, [1995] 4 SCC 696 it is urged that once the Commissioner of the
\nCorporation has fixed the rateable value, the burden is upon the tenant to
\nshow as to what should be the correct rateable value. In the present case
\nthe respondent failed to lead any evidence to show why Rs. 3,000 per sq.
\nmtr. was not a reasonable market value, nor did it adduce any evidence to
\nshow that Rs. 2500 per sq. mtr. was the reasonable market value. In the
\ncircumstances, Shri Singhvi contends that taking the market value at Rs.
\n3,000 per sq. mtr. was perfectly justified for assessing the rateable
\nvalue.\n<\/p>\n
It is next contended by the appellant that even if we assume that the
\nprovisions of Bombay Rent Act apply, ‘standard rent’ is different y defined
\nby the Bombay Rent Act. Section 5(10) (b) defines standard rent as under:\n<\/p>\n
“Section 5 (10) (b) – When the standard rent is not so fixed – subject to
\nthe provisions of Section 11,<\/p>\n
(i) the rent at which the premises were let on the first day of September,
\n1940 or<\/p>\n
(ii) where they were not let on the first day of September, 1940, the rent
\nat which they were last let before that day, or<\/p>\n
(iii) where they were first let after the first day of September, 1940, the
\nrent at which they were first let, or<\/p>\n
[(iii-a) notwithstanding anything contained in paragraph (iii) the rent of
\nthe premises referred to in sub-section (1-A) of Section 4 shall, on expiry
\nof the period of five years mentioned in that sub-section, not exceed the
\namount equivalent to the amount of net return of fifteen per cent, on the
\ninvestment in the land and building and all the outgoings in respect of
\nsuch premises; or]<\/p>\n
(iv) on any of the cases specified in section 11, the rent fixed  by the
\ncourt; Section II contemplates that the Court may fix the ‘standard rent’
\nin certain cases which are indicated by clauses (a) to (e) of sub-section)
\n(I) and sub-section (2), when an application for fixing the standard rent
\nis made Section 11 reads as under:\n<\/p>\n
“Section 11(1) – [Subject to the provisions of Section IIA in any of the
\nfollowing] cases the Court may, upon an application made to it for that
\npurpose, or in any suit or proceedings, fix the standard rent .at such
\namount as, having regard to the provisions of this Act and circumstances of
\nthe case, the Court deems just –\n<\/p>\n
(a)    where any premises are first let after the first day of September,
\n1940 and the rent at which they are so let is in the opinion of the Court
\nexcessive; or<\/p>\n
(b)    where the Court is satisfied that there is not sufficient evidence
\nto ascertain the rent at which the premises were let in any one of the
\ncases mentioned in [paragraph (i) to (iii) of sub-clause (b) of clause
\n(10)] of section 5; or<\/p>\n
(c)    where by reason of the premises having been let at one time as a
\nwhole or in parts and at another time in parts or as a whole, or for any
\nother reason, any difficulty arises in giving effect to this Part; or<\/p>\n
(d)    where any premises have been or are let rent free or at a nominal
\nrent or for some consideration in addition to rent; or<\/p>\n
(d-1) without prejudice to the provisions of sub-section (A) of Section 4
\nand paragraph (iii-a) of sub-clause (b) of clause (10) of Section 5, where
\nthe Court is satisfied that the rent in respect of the premises referred to
\ntherein exceeds the limit of standard rent laid down in the said paragraph
\n(iii-a); or]<\/p>\n
(e)  where there is any dispute between the landlord and the tenant
\nregarding the amount of standard rent.”\n<\/p>\n
“Section – 11(2) – If there is any dispute between the landlord and the
\ntenant regarding the amount of standard rent.”\n<\/p>\n
Section 11 read with Section 5(10) (b) of the Bombay Municipal Act, 1947
\nmakes it clear that where premises were let before, on or after the first
\nSeptember, 1940 the first letting rate shall be the standard rent subject
\nto the provisions of Section 11. In the present case, as to whether the
\npremises in question were let before first September, 1940, or thereafter,
\nand, if so, what was the first letting rate, is not ascertainable from the
\nrecord. In the circumstances, Shri Singhvi submits that the other
\nalternative method of finding out the standard rent is “contractor’s
\nmethod” which has been judicially approved. Under this method the market
\nvalue of the land has to be ascertained and reasonable return fixed
\nthereupon to determine the standard rent. This is precisely what was done
\nby the assessor and Collector by taking the market value Rs. 3,000 per sq.
\nmtr. as a fair value with a reasonable return of 12% thereupon, in fact,
\neven the respondent suggested only Rs. 2500 per sq. mtr. as the fair market
\nvalue and did not raise any dispute with regard to the fair return. The
\nBombay High Court in Harilal Parekh v. Jain Coop. Housing Society, AIR
\n(1957) Bom. 207 and Saipansaheb Wd. Dawoodsaheb v. Laxman Venkatesh Naik,
\n57 BLR 413, pointed out that under Section 5 (10) (b) (1) the first letting
\non first September, 1940 becomes the standard rent subject to the provision
\nof Section 11 of the Act and, when the occasion arises, the Court has the
\njurisdiction to re-determine it under Section 5 (10) (b) (1), where the
\ncase falls under Section 11 (1) (e) of the Bombay Rent Act. It was also
\npointed in Harlal Parekh (supra) that the premises were first let after
\nfirst September, 1940 and the rent shall be equivalent to 6% on the
\nvaluation of land and 8.2\/3% on the valuation of building.\n<\/p>\n
It is true that Section 11 of the Rent Act provides that even standard rent
\ncan be altered and re-fixed if there is any structural alteration or change
\nin the amenities. It is urged by Shri Singhvi that demolition of tre
\nbuilding and increasing the building potential of the land is one such
\nchange contemplated by Section 11 (a). This contention, we are unable to
\naccept. Section 11 (a) is intended to enable the Court, upon an application
\nn any suit or proceeding, to modify the standard rent as a result of
\nstructural alteration or change in the amenities involving further capital
\ninvestment of I he owner. We do not think that demolition of a building is
\none such contingency contemplated by Section 11 (a) of the Act.\n<\/p>\n
In the result, though we accept the proposition urged by the respondent
\nthat in the facts of the present case the standard rent would be the limit
\nof the rateable value, we find that there was no material produced on
\nrecord at any stage by the respondent to show what the standard rent was
\neither in respect of the vacant land or in respect of the land on which the
\nbuilding was constructed and demolished, or in respect of the building
\nafter it was constructed. We accept the contention of the appellant that
\nthe hurden of proving this fact, while objecting to the rateable value
\nfixed by the Commissioner, is always on the respondent-assessee. We also
\naccept the contention of the appellant that the respondent was less than
\nfair to the appellant in not disclosing that its property had been occupied
\nby National Stock Exchange of India Ltd. and National Security Depository
\nLtd. and in not disclosing the amounts paid by them. The respondent ought
\nto have disclosed the fact, fairly and fully, and urged the legal
\ncontentions open to it based thereupon. These facts would have justified
\nour allowing the appeal fully and restoring the assessment orders made by
\nthe appellant officers. However, we are not inclined to do so for the
\nreason that the attention of the parties has not been focused on the core
\nissue, as a result of which, perhaps, there was failure to produce relevant
\nmaterial before the assessor to show what was the standard rent. The
\ninterests of justice would require that the issue be reconsidered after
\ngiving an opportunity to the respondent to discharge the burden placed upon
\nit under law.\n<\/p>\n
In the result, we allow the appeals and set aside the judgments of the High
\nCourt and Small Causes Court. The concerned proceedings are restored before
\nthe Assessor and Collector who shall hear and dispose the complaints after
\ngiving an opportunity to the respondent to produce such material as they
\nmay desired in support of their objections to the assessments made by the
\nappellant.\n<\/p>\n
In the circumstances of the case, the appeals are thus allowed with costs
\nquantified at Rs. 50,000.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Municipal Corporation Of Greater … vs Kamla Mills Ltd on 11 July, 2003 Bench: Ruma Pal, B.N. Srikrishna CASE NO.: Appeal (civil) 2452 of 2000 PETITIONER: MUNICIPAL CORPORATION OF GREATER MUMBAI AND ANR. RESPONDENT: KAMLA MILLS LTD. DATE OF JUDGMENT: 11\/07\/2003 BENCH: RUMA PAL & B.N. SRIKRISHNA JUDGMENT: JUDGMENT 2003 Supp(1) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-111248","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMunicipal Corporation Of Greater ... vs Kamla Mills Ltd on 11 July, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-greater-vs-kamla-mills-ltd-on-11-july-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Municipal Corporation Of Greater ... vs Kamla Mills Ltd on 11 July, 2003 - 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