LawDistill
Supreme Court of India

NATIONAL & GRINDLAYS BANK LTD vs THE MUNICIPAL CORPORATION OF GREATERBOMBAY on 5 February, 1969

Cites 0 provisionsCites 0 judgmentsCited by 4
Official PDFBench Vaidyanathier Ramaswami, Amar Nath Grover
PETITIONER:
NATIONAL & GRINDLAYS BANK LTD.
Vs.
RESPONDENT:
THE MUNICIPAL CORPORATION OF GREATERBOMBAY
DATE OF JUDGMENT:
05/02/1969
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
GROVER, A.N.
CITATION:
1969 AIR 1048 1969 SCR (3) 565
1969 SCC (1) 541
ACT:
Bombay Municipal Corporation Act 3 of 1888, S. 146-Landlord
leasing land to tenant who constructs thereon-Whether
section contemplates composite assessment of property tax on
land and building-If primary liability to tax that of
landlord.
HEADNOTE:
The appellant had leased a plot of land situated in the
Malad Area in Greater Bombay at a rental on a monthly basis.
The lessee had constructed a house on the plot of land at
his own cost. Prior to the merger of the Malad Area into
Greater Bombay in February, 1947, the Malad District
Municipality assessed and levied taxes on the land and- the
structures separately and recovered the same from the
landlord and the tenant. After the merger, the respondent
Bombay Municipal Corporation issued a notice to the
appellant-under section- 167 of the Bombay Municipal
Corporation Act No. 3 of 1883, informing him that there
leviable on each such building or land.......
It was contended by Mr. Khambatta that on a proper cons-
truction of section 146(2) of the Act there should, have
been separate assessments in respect of the building and the
land in the present case. It was argued in the alternative
that even if section 146(2) of the Act contemplates a compo
site assessment of the building and the land, the
primary liability should be imposed upon the owner of the
building and not on the owner of, the land. It was said
that the right to let the building vests in the lessee of
the land and not in the appellant, and so, the primary
liability was upon the lessee under section 146(2) of the
Act. The argument was pressed that the appellant cannot be
treated as a lessor under section 146(2) of the Act,,
because the appellant has not let the
land with the building thereon as one-unit to the lessee.
The opposite viewpoint was presented on behalf of the
respondent. It was, argued, in the first place, that
section 146(2) of the Act contemplates that there should be
a composite assessment of the land and the building taken as
one unit. In the case of such a composite assessment, the
primary liability of the payment of tax was on the landlord
under sub-section (2)(a) of section 146 except in the case,
referred to in sub-section (3) where the primary liability
was-upon the tenant and not upon the landlord. Admittedly,
the present case did not fall under section 146(3), and,
therefore,. the primary liability was placed upon the
appellant. In our opinion, the argument put forward on
behalf of the respondent is well-founded and must be
accepted as correct. In the first place, the language of
section 146(2) indicates that the Legislature contemplated
that in a case where the land and the building are owned by
different persons there should be a composite assessment of
property tax. The reason is that in section 146(1) and (2)
the word premises’ is used in contrast to section 146(3)
where the words ’land and building’ are separately
mentioned. In section 154(1) of the Act again, the
Legislature uses the expression ’building or land’. Then
section 155 provides for the right of the Commissioner to
call information from the owner or the occupier in order to
enable him to determine the rateable value of ;any building
or land and the person primarily liable for the payment of
any property, tax levied in respect thereof. Section 156
provides that the Commissioner shall maintain a book to be
called ’the assessment book’ which book is to contain among
other things a list of all lands and buildings. Therefore,
the scheme of section 146 is that, when the land is let and
the tenant has built upon the land, there should be a
composite assessment of tax upon the land and building taken
together. We are further of opinion that in the case of
such a composite unit the primary liability of assessment of
tax is intended to be on the lessor of the land under;
section 146(2)(a) of the Act. It was objected by Mr.
Khambatta that the appellant was only the lessor of the land
and not of the building, and so, the appellant cannot be
held to be the lessor within the meaning of section 146(2)
(a). ’We do not think that there is any merit in this
objection. Section 146(3) of the Act furnishes the key to
the interpretation of section 146(2)(a), in the context of
section 146(3) the lessor of the premises as mentioned in
section 146(2)(a) must be construed as to mean the lessor of
the land on which the building has been constructed by the
tenant. In this connection, reference should be made to
section 147 which provides for an apportionment of
responsibility for property tax when the premises assessed
are let or sub-let. The language of this sub-section sugge
sts that the lessor of the land has the right of
recovering from his tenant the amount of tax
which he has paid in excess, of the tax which the property
is liable to pay on the basis of the rent recovered by the
lessor. It is also clear that the intention, of the
Legislature in fixing the primary liability of property tax
upon the owner of the land in a case not falling under s.
146(3) of the Act is to facilitate the collection of,
property tax. In the, case of a monthly tenant who puts up
a temporary shack or asbestos shed on the land and who may
at any time terminate the lease at a short notice, it is not
always possible for the Corporation to keep track of the
lessee and to collect the property tax from him. It is not
unreasonable therefore that in a case of this description
the Legislature should impose the primary liability for the
payment of the property tax upon the lessor of the land and
to give him the right of recoupment under section 147. A
similar view with regard to the interpretation of section
146, of the Act was expressed by a Division Bench of the
Bombay High Court consisting of Chagla, C.J. and Shah, J.
in Ramji Keshavji’s(1) case. It was held by the learned
judges in that case that where the owner of a land had
leased it to a tenant for a period of one year and the
tenant had put up a structure upon the land, the owner of
the land was primarily liable to pay property tax together
with the structure constructed thereon. Counsel on behalf
of the appellant challenged the correctness of this
decision, but for the reasons already expressed we hold that
the ratio of this decision is correct.
We Shall, however , assume in favour of the appellant that
the meaning of section 146 (2) of the Act is obscure and
that’ it is possible to interpret it as throwing the primary
liability for payment of property tax upon the lessee who
has constructed a, building on the land. Even upon that
assumption we think that the view of the law expressed by
the Bombay High Court in this case ought not to be
interfered with. The reason is that in a case where the
meaning of an enactment is obscure, the Court may resort to
contemporary construction, that is the construction which
the authorities have put upon it by their usage and conduct
for a long period of time. The principle applicable is
"optima legum interpres est consuetudo" (2). In Ohlson’s
case(3), in dealing with the interpretation of section 39 of
the Pawnbrokers, Act, 1872, Stephen, J. said :
" What weighs with me very greatly in coming
to the present conclusion is the practice of
the Inland Revenue Commissioners for the past
sixteen years. So long ago as 1874 this very
point was decided by Sir Thomas Henry, for
whose decisions we ’all have very great res-
pect; and the least that can be said with
regard to the
(1) 56 Bom. L. R. 11 32.
(3) [1891] 1 Q.B. 485, 489.
(2) 2 Co. Rep. 8 1.
5 7 3
case before him is that he pointedly called
the attention of the commissioners to the
case-the learned magistrate having offered to
state a case-an offer refused by the
,commissioner, who by their refusal must be
taken to have acquiesced in the decision.
’Mat is a very strong contemporaneous
exposition of the meaning of the Act".
The same principle was referred to by Lord Blackburn in
Clyde Navigation Trustees v. Laird(1). The question in
dispute in that case was, whether the Clyde Navigation
Consolidation Act, 1858 (repealing eight prior Acts) imposed
navigation dues on timber floated up the Clyde in logs
chained together. From 1858 to 1882 dues had been levied on
this class of timber without resistance from the owners; and
some judges in the Court of Session suggested that this non-
resistance might be considered in construing the statute.
On this point Lord Blackburn said .
"I think that submission raises a strong prima
facie ground on which they (the owners) could
not resist, And I think a court should
be cautious, and not decide unnecessarily that
there is no such ground. If the Lord
President (Inglis) means no more than this
when he calls it ’contemporanea exposito of
the statutes which is almost irresistible’, I
agree with him. I do not think that he means
that enjoyment at least for any period short
of that which gives rise to prescription, if
founded on a mistaken construction of a
statute, binds the court so as to prevent it
from giving the true construction. If he did,
I should not agree with him, for whom I know
of no authority, and am not aware of any
principle, for so saying .
In our opinion, the principle of contemporanea exposito
applies to the present case. The Act was passed in the year
1888 and there appears to be a practice followed by the
Bombay Municipal corporation for a very long time of
treating the land and the building constructed upon it as
single unit and charging the property tax upon the owner
of the land in a case where the land is let for a period of
less than one year to a tenant who has constructed a
building thereon [See Ramji Keshavji’s case(2)].
For the reasons expressed, we hold that there is no merit in
this appeal which is accordingly dismissed with costs.
R.K.P.S. Appeal dismissed.
(1) 8 A.C.658 670.
(2) 56 Bom. L.R. 1132.
L10Sup./69-2

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 462 of 1966. Appeal by special leave from the order dated March 25, 1964 of the Bombay High Court in Letters Patent Appeal No. 28 of 1964. S.V. Gupte, P. P. Khambatta, D. P. Mehta, Bhuvnesh Kumari and O. C. Mathur, for the appellant. M. C. Chagla and I. N. Shroff, for the respondent.’ The Judgment of the Court was delivered by Ramaswami, J.-The question of law involved in this appeal is whether the primary liability is imposed on the appellant under the Bombay Municipal Corporation Act, 1888 (Act No. 3 of 1888) to pay property taxes to the respondent i.e., the Municipal Corporation of Greater Bombay in respect of landowned by the appellant and let on a monthly basis to a third party who has constructed a building thereon. The appellant is a banking company incorporated in the United Kingdom and has established places of business in India. The appellant is the sole trustee of the estate of the late Mr. F. E. Dinshaw and in that capacity is the owner of a plot of land at Manchubhai Road, Malad, Greater Bombay in the State of Maharashtra, bearing No. P-Ward No. 6418, Street No. 299B. The said plot of land had been leased by the former trustee of the estate to one Mr. R.-R. Pande Thereinafter referred to as the lessee) since a number of years at a monthly rent of Rs. 12-50. The lessee had constructed at his own cost a tiled house on the said plot of land. The Malad area merged into Greater Bombay on 1st February, 1957. Upto the date of the merger the Malad District Municipality was. assessing and levying taxes on the land and the structure separately and recovering the same from the landlord and the tenant. After the merger, the Bombay Municipal Corporation issued a notice to the appellant under section 167 of the Act informing him that the assessment book had been amended by inserting, the name of the appellant and that the rateable value of the house had been fixed at Rs. 430/-. Being aggrieved by this order the appellant preferred an appeal to the Chief Judge Small Causes Court, Bombay under section 217 of the Act. The appeal was dismissed by the Chief Judge, Small, Causes Court by his order dated 3rd August, 1960. The appellant took the matter in further appeal to the Bombay High Court. The appeal was heard by Mr. Justice Patel and was dismissed on the 14th January, 1964. The learned Judge felt that he was bound by the decision of Chagla, C.J. and Shah, J. in , Ramji Keshavji v. Municipal Corporation for Greater Bombay(1). The appellant thereafter preferred a Letters Patent Appeal No. 28 of 1964 which was summarily dismissed by Chief Justice H. K. Chainani and Mr. Justice Gokhale on 25th March, 1964. The present appeal is brought by special leave from the judgment of the Bombay High Court dated 25th March, 1964. Section 3(r) of the Bombay Municipal Corporation Act, 1888 (Act, No. 3 of 1888) (hereinafter called the Act) defines ’land’ as including "land which is being built upon or is built upon or covered with water......... Section 3(s) defines ’buildings’ as including a house, out-house, stable, shed, hut and every other such structure, whether of masonry bricks, wood, mud, metal or any other material whatever. Section 3(gg) defines ’Premises’ as including messages, buildings and lands of any tenure, whether open or enclosed, whether built on or not and whether public or private. Section 140 states :

"140. The following taxes shall be levied on

buildings and lands id Greater Bombay and

shall be called "property taxes", namely:-

(a)a water tax of so many per centum of

their rateable value as the corporation shall

deem reasonable for, providing a water-supply

for Greater Bombay.

(b)a halalkhor-tax of so many-per centum,

not exceeding five of their rateable value as

will, in the opinion ofthe corporation,

suffice to provide for the collection, removal

and disposal, by municipal agency, of all

excrementitious and polluted matter from

privies, urinals and cesspools and for

efficiently maintaining and repairing the

municipal drains, constructed or used for the

receiptions or conveyance of such matter,

subject however, to the provisions that the

minimum amount of such tax to be levied in

respect of any one separate holding of land,

or of any one. building or of any one portion

of a building which is let as a separate

holding, shall (1) 56 Bom. L.R. 11 32.

be six annas per month, and that the amount of

such tax to be levied in respect of any hotel,

club or other large premises may be specially

fixed under section 172;

(c)a general tax of not less than eight and

not more than twenty-six per centum of their

rateable value, together with not less than

one-eighth and not more than three-quarters

per centum of their rateable value added

thereto, in order to provide for the expense

necessary for fulfilling the duties of the

corporation arising under clause (k) of

section 61 and Chapter XIV;

(ca) the education cess leviable under s. 195E;

(d)betterment charges leviable under

Chapter XII-A."

Section 146 provides

"146. (1) Property taxes shall be leviable

primarily from the actual occupier of the

premises- upon which the said taxes are

assessed, if such occupier holds the said

premises immediately from the Government or

from the corporation or from a fazendar.

Provided that the property taxes due in

respect of any premises owned by or vested in

the Government and occupied by a Government

servant or any other person on behalf of the

Government for residential purposes shall be

leviable primarily from the Government and not

the occupier thereof.

(2)Otherwise the said taxes shall be

primarily leviable as follows, namely:-

(a) if the premises are let, from the

lessor;

(b) if the premises are sub-let, from the

superior lessor; and

(c)if the premises are unlet, from the

person in whom the right to let the same

vests.

(3)But if any land has been let for any

term exceeding one year to a tenant, and such

tenant On any person deriving title howsoever

from such tenant has built upon the land, the

property taxes assessed upon the said land and

upon the building erected thereon shall be

leviable primarily from the said tenant or

such person, whether or not the premises be in

the occupation of the said tenant or such

person".

5 6 9

Section 147 states

"147. (1) if any premises assessed to any

property tax are let, and their rateable value

exceeds the amount of rent payable in respect

thereof to the person from whom, under the

provisions of the last preceding section, the

said tax is leviable, the said person shall be

entitled to receive from his tenant the

difference between the amount of the property

tax levied from him, and the amount of which

would be leviable from him it the said tax

were calculated on the amount of rent payable

to him.

(2)If the premises are sub-let and their

rateable, value exceeds the amount of rent

payable in respect thereof to the tenant by

his sub-tenant, or the amount of rent payable

in respect thereof to a sub-tenant by the

person holding under him, the said tenant

shall be entitled to receive from his sub-

tenant or the said subtenant shall be entitled

to receive from the person holding under him,

as the case may be, the difference between any

sum recovered under this section from such

tenant or sub-tenant and the amount of

property-tax which would be leviable in

respect of the said premises if the rateable

value thereof were equal to the difference

between the amount of rent which such tenant

or subtenant receives and the amount of rent

which he pays.

(3)Any person entitled to receive any sum

under this section shall have, for the

recovery thereof, the same rights and remedies

as if such sum were rent payable to him by the

person from whom he is entitled to receive the

same".

Section 154(1) enacts as, follows

"In order to fix the rateable value of any

building or land assessable to a property-tax’

there shall be deducted from the amount of the

annual rent for which such land or building

might reasonably be expected to let from year

to year a sum equal to ten per centum of the

said annual rent and the said deduction shall

be in lieu of all allowances for repairs or on

any other account whatever".,

Section 155 enacts

"155. (1) To enable him to deter-mine the

rateable value of any building or land and the

person primarily liable for the payment of any

property tax leviable in respect thereof the

Commissioner may require the owner or occupier

of such building, or land, or of any portion

thereof, to furnish him, within such

reasonable period

as the Commissioner prescribes in this

behalf, with in formation or with a written

return signed by such owner or occupier-

(a)as to the name and place of abode of the

owner or occupier, or of both the owner and

occupier of such building or land; and

(b)as to the dimensions of such building or

land, or of any portion thereof, and the rent,

if any, obtained for such building, or land,

or any portion thereof.

(2)Every owner or occupier on whom any such

requisition is made shall be bound to comply

with the same and to give true information or

to make a true return to the best of his

knowledge or belief.

(3)The Commissioner may also for the

purpose aforesaid make an inspection of any

such building or land".

Section 156 states

"The me Commissioner shall keep a book, to be

called "the assessment book" in which shall be

entered every official year-

(a)a list of all buildings and lands in

Greater Bombay distinguishing each either by

name or number, as he shall think fit;

(b)the rateable value of each such building

and land determined in accordance with the

foregoing provisions of this Act-

(c)the name of the person primarily liable

for the payment of the property taxes, if any,

leviable on each such building or land....... It was contended by Mr. Khambatta that on a proper construction of section 146(2) of the Act there should, have been separate assessments in respect of the building and the land in the present case. It was argued in the alternative that even if section 146(2) of the Act contemplates a compo site assessment of the building and the land, the primary liability should be imposed upon the owner of the building and not on the owner of, the land. It was said that the right to let the building vests in the lessee of the land and not in the appellant, and so, the primary liability was upon the lessee under section 146(2) of the Act. The argument was pressed that the appellant cannot be treated as a lessor under section 146(2) of the Act,, because the appellant has not let the land with the building thereon as one-unit to the lessee. The opposite viewpoint was presented on behalf of the respondent. It was, argued, in the first place, that section 146(2) of the Act contemplates that there should be a composite assessment of the land and the building taken as one unit. In the case of such a composite assessment, the primary liability of the payment of tax was on the landlord under sub-section (2)(a) of section 146 except in the case, referred to in sub-section (3) where the primary liability was-upon the tenant and not upon the landlord. Admittedly, the present case did not fall under section 146(3), and, therefore,. the primary liability was placed upon the appellant. In our opinion, the argument put forward on behalf of the respondent is well-founded and must be accepted as correct. In the first place, the language of section 146(2) indicates that the Legislature contemplated that in a case where the land and the building are owned by different persons there should be a composite assessment of property tax. The reason is that in section 146(1) and (2) the word premises’ is used in contrast to section 146(3) where the words ’land and building’ are separately mentioned. In section 154(1) of the Act again, the Legislature uses the expression ’building or land’. Then section 155 provides for the right of the Commissioner to call information from the owner or the occupier in order to enable him to determine the rateable value of ;any building or land and the person primarily liable for the payment of any property, tax levied in respect thereof. Section 156 provides that the Commissioner shall maintain a book to be called ’the assessment book’ which book is to contain among other things a list of all lands and buildings. Therefore, the scheme of section 146 is that, when the land is let and the tenant has built upon the land, there should be a composite assessment of tax upon the land and building taken together. We are further of opinion that in the case of such a composite unit the primary liability of assessment of tax is intended to be on the lessor of the land under; section 146(2)(a) of the Act. It was objected by Mr. Khambatta that the appellant was only the lessor of the land and not of the building, and so, the appellant cannot be held to be the lessor within the meaning of section 146(2) (a). ’We do not think that there is any merit in this objection. Section 146(3) of the Act furnishes the key to the interpretation of section 146(2)(a), in the context of section 146(3) the lessor of the premises as mentioned in section 146(2)(a) must be construed as to mean the lessor of the land on which the building has been constructed by the tenant. In this connection, reference should be made to section 147 which provides for an apportionment of responsibility for property tax when the premises assessed are let or sub-let. The language of this sub-section sugge sts that the lessor of the land has the right of recovering from his tenant the amount of tax which he has paid in excess, of the tax which the property is liable to pay on the basis of the rent recovered by the lessor. It is also clear that the intention, of the Legislature in fixing the primary liability of property tax upon the owner of the land in a case not falling under s. 146(3) of the Act is to facilitate the collection of, property tax. In the, case of a monthly tenant who puts up a temporary shack or asbestos shed on the land and who may at any time terminate the lease at a short notice, it is not always possible for the Corporation to keep track of the lessee and to collect the property tax from him. It is not unreasonable therefore that in a case of this description the Legislature should impose the primary liability for the payment of the property tax upon the lessor of the land and to give him the right of recoupment under section 147. A similar view with regard to the interpretation of section 146, of the Act was expressed by a Division Bench of the Bombay High Court consisting of Chagla, C.J. and Shah, J. in Ramji Keshavji’s(1) case. It was held by the learned judges in that case that where the owner of a land had leased it to a tenant for a period of one year and the tenant had put up a structure upon the land, the owner of the land was primarily liable to pay property tax together with the structure constructed thereon. Counsel on behalf of the appellant challenged the correctness of this decision, but for the reasons already expressed we hold that the ratio of this decision is correct. We Shall, however , assume in favour of the appellant that the meaning of section 146 (2) of the Act is obscure and that’ it is possible to interpret it as throwing the primary liability for payment of property tax upon the lessee who has constructed a, building on the land. Even upon that assumption we think that the view of the law expressed by the Bombay High Court in this case ought not to be interfered with. The reason is that in a case where the meaning of an enactment is obscure, the Court may resort to contemporary construction, that is the construction which the authorities have put upon it by their usage and conduct for a long period of time. The principle applicable is "optima legum interpres est consuetudo" (2). In Ohlson’s case(3), in dealing with the interpretation of section 39 of the Pawnbrokers, Act, 1872, Stephen, J. said :

" What weighs with me very greatly in coming

to the present conclusion is the practice of

the Inland Revenue Commissioners for the past

sixteen years. So long ago as 1874 this very

point was decided by Sir Thomas Henry, for

whose decisions we ’all have very great res-

pect; and the least that can be said with

regard to the (1) 56 Bom. L. R. 11 32. (3) [1891] 1 Q.B. 485, 489. (2) 2 Co. Rep. 8 1. 5 7 3

case before him is that he pointedly called

the attention of the commissioners to the

case-the learned magistrate having offered to

state a case-an offer refused by the

,commissioner, who by their refusal must be

taken to have acquiesced in the decision.

’Mat is a very strong contemporaneous

exposition of the meaning of the Act". The same principle was referred to by Lord Blackburn in Clyde Navigation Trustees v. Laird(1). The question in dispute in that case was, whether the Clyde Navigation Consolidation Act, 1858 (repealing eight prior Acts) imposed navigation dues on timber floated up the Clyde in logs chained together. From 1858 to 1882 dues had been levied on this class of timber without resistance from the owners; and some judges in the Court of Session suggested that this nonresistance might be considered in construing the statute. On this point Lord Blackburn said .

"I think that submission raises a strong prima

facie ground on which they (the owners) could

not resist, And I think a court should

be cautious, and not decide unnecessarily that

there is no such ground. If the Lord

President (Inglis) means no more than this

when he calls it ’contemporanea exposito of

the statutes which is almost irresistible’, I

agree with him. I do not think that he means

that enjoyment at least for any period short

of that which gives rise to prescription, if

founded on a mistaken construction of a

statute, binds the court so as to prevent it

from giving the true construction. If he did,

I should not agree with him, for whom I know

of no authority, and am not aware of any

principle, for so saying . In our opinion, the principle of contemporanea exposito applies to the present case. The Act was passed in the year 1888 and there appears to be a practice followed by the Bombay Municipal corporation for a very long time of treating the land and the building constructed upon it as single unit and charging the property tax upon the owner of the land in a case where the land is let for a period of less than one year to a tenant who has constructed a building thereon [See Ramji Keshavji’s case(2)]. For the reasons expressed, we hold that there is no merit in this appeal which is accordingly dismissed with costs. R.K.P.S. Appeal dismissed. (1) 8 A.C.658 670. (2) 56 Bom. L.R. 1132. L10Sup./69-2