- (1.) THE subject matter of challenge in this application are certain assessments by the Corporation of Calcutta. The assessment orders are in a bundle annexed to the petition and marked as annexure "c" and the petitioners herein are Lake Cooperative Housing Society and its members. The said petitioners are owners of flats in what is a common phenomenon in Calcutta, now, viz. multi-storied building. The question is, on what basis would the owners of these multi-storied flats should be assessed. It is the case of the Corporation of Calcutta that these units should be assessed on the basis of the letting out value of the entire building treating the building as a unit of assessment and thereafter to apportion their liability among the different flat owners, that is to say, the entire building is treated as one unit of assessment and thereupon among the different co sharers in that unit of assessment, that is to say, the different owners of the flats the liability is to be divided. It is upon this basis that the Corporation of Calcutta has issued the rate bills which are impugned in the application under Article 226 of the Constitution. The case of the petitioners is that the petitioners, who are the flat owners of the building excepting the petitioner no. 1. should be valued as separate units of valuation under the provision of clause (1) of Sec. 174 of the Calcutta Municipal Act, 1951.
(2.) SOME of these aspects I had examined in one of the decisions, vis in. the case of Saha Institute of Nuclear Physics Co-operative Housing Society ltd. v. Corporation of Calcutta 88 Calcutta High Court Notes 889. There, the facts were slightly different. There the Society obtained a lease of a building consisting of several flats. One of the terms of the said lease provided that the lessee would be at liberty to sub lease the said flats to the members of the Society on terms and conditions approved by the Board of the Calcutta Improvement Trust. The Trust delivered possession of the flats to the Society and the petitioners, in that case, obtained possession of the flats allotted to them on certain terms and conditions from the Society. There the petitioners contended that they were entitled to be assessed under Clause (1) of Sec. 174 of the Calcutta Municipal Act, 1951 though they were lessees of the said flats. There, I hold that they were so entitled and the fact that they were lessees did not in any way defeat their right to claim as owners because, in the facts of the case, the lease, I hold, really amounted to ownership of the flat.
(3.) HERE, of course, no question of lease, as such, arises. The only material question, however, is whether different flats should be treated as separate units for valuation and thereafter their liability should be determined. This aspect has to be adjudged in the light of the provisions for the assessment of land and building, as provided in Chapter II of Part IV of the Calcutta Municipal Act, 1951. There, section 165 of the Act provides that a graduated consolidate rate on the annual valuation determined, under this Chapter, might be imposed by the Calcutta Corporation upon all 'lands and buildings' for the purpose of the Act and there also different rates have been mentioned. It was emphasized on behalf of the Corporation of Calcutta that valuation had to be imposed on land and building together. Therefore, the entire land and building had to be taken into consideration. In my opinion, however, it. is material to bear in mind that this valuation upon land and buildings taken together is dependent upon the annual valuation. The question, therefore, is what should be the annual valuation. The annual valuation in a case where there has been separation of the all different portions of a building has been provided in Section 174 of the Act which reads as follows "174. Valuation in case of land or building, subdivision into separate share :if during the currency of any period prescribed by sub-section (1) or sub-section (2) of section 172, the ownership of any land or building, or portion thereof, is subdivided into separate shares, the Commissioner may, in accordance with such rules as may be made by the Standing Finance Committee, on the application of any of the co-owners, divide the valuation of such land, building or portion in the following manner, namely : (i) If the ownership be subdivided into two or more shares without separate allotments, or if as the result of such subdivision there is a separate allotment of such land, building or portion into two or more separate portions which are not entirely independent and capable of separate enjoyment, the Commissioner may, if he thinks fit, apportion the valuation among the shareholders according to the value of their respective shares without assigning any separate number; (ii) If, as the result of such subdivision, there are separate allotments of such land, building or portion and if such allotments are made entirely independent and capable of separate enjoyment but not in conformity with the provisions of this Act, or of any rules or by-laws made there under, relating to buildings, the commissioner may, if he thinks fit, value such portions separately after assigning to them separate numbers under this Chapter: Provided that by such separate valuation the total valuation for the entire premises shall not be increased ; (iii) If such separate portions of such land, building or portion are, or are made, entirely independent and capable of separate enjoyment in conformity with the provisions of this Act, or of any rules or by-laws made there under, relating to buildings, the Commissioner shall value each portion separately by assigning a separate number thereto : provided that by such separate valuation the total valuation for the entire premises shall not be increased : provided also that such apportionment or separation of the numbers and valuation, as the case may be, shall remain in force and the consolidated rate shall be levied accordingly until the expiration of the said period. ";