SURAT TEXTILE MARKET CO OPERATIVE SHOPS AND WARHOUSES SOCIETY LIMITED Vs. MUNICIPAL CORPORATION OF THE CITY OF SURAT

JUDGEMENT

(1.) The petitioner seeks to challenge the judgment and order dated 18/10/1979 passed by the learned Extra Assistant Judge Surat in Regular Civil Appeal No. 283 of 1977 dismissing the appeal confirming the order passed by the Civil Judge (S. D.) Surat in Municipal Assessment Appeal No. 13 of 1975 dated 26/08/1977 upholding the action of the respondent Municipal Corporation by which the respondent had added an amount of Its 5508/- in the annual letting value of the premises in respect of charges recovered by the petitioner for use of a direct. lift for access to the revolving restaurant on the 14th floor of the premises.

(2.) The petitioner constructed a textile market building on the land taken on lease from the respondent-Corporation. The shops constructed by the petitioner were allotted to various persons as member tenants of the petitioner-Society. In this huge complex 13 lifts were installed and one of such lifts was exclusively reserved for use of persons who granted to go to the 14th floor for visiting the revolving restaurant. That lift would go non-stop to the 14th floor. The premises of the said revolving restaurant were leased out by the petitioner to Kapoor Deviarwala Hotels by lease deed dated 5/04/1974 for a period of 10 years. It appears that two other lifts were provided for the hotel portion and as stipulated in the lease deed the expenses towards the salary of the liftman power consumption and all other incidental expenses were to be borne by the lessee in respect to those two lifts while the lessor was to bear the expenses of pay of the liftman power consumption and other incidental expenses for the lift used for the revolving restaurant. It was stipulated between the parties that the liftman employed by the lessor for that lift will be exercising control over the entry in the revolving restaurant. It was further stipulated in respect of that lift that fee would be charged and collected fully by the lessor for maintenance and service charges or for admission to revolving restaurant and observation gallery. The charges were to be fixed by the managing committee of the lessor from time to time. Accordingly the petitioner was charging fees from the visitors for their access to the restaurant through the said lift. The petitioner was served with special notices Nos. 91 to 97 dated 23/01/1975 pertaining to assessment years 1-5-1973 to 31 3 for assessment in respect of the said building. The petitioner filed objection on 13/01/1975 which was heard on 27/02/1975 By the order dated 1/05/1975 the objection filed by the petitioner to the effect that the income derived from the various persons using the lift for going to the 14th floor should not be considered as part of the income derived from the property which was liable to municipal taxes was over-ruled. The petitioner appealed against the said decision by filing Municipal Assessment Appeal No. 13 of 1975 which was dismissed by the learned Civil Judge (S. D.) who held that the respondent had not erred in computing income of the lift for assessing the annual letting value of the premises. The learned Judge found that while no charge was made from persons who used other lifts for their access to the building the petitioner charged Re. 1 from each visitor for using the lift for going to the revolving restaurant and admittedly that charge was over and above the rent which was collected from the tenant of the revolving restaurant. He held that the assessment of Rs. 5508.00 as calculated after deducting 50% of service and maintenance charges from the persons going to the revolving restaurant through the lift was properly made and there was no reason to interfere with that order.

(3.) The Appellate Judge recorded that it was conceded before him that the petitioner did not challenge the assessment of Rs. 5508.00 per month on the basis of calculation. It was however contended before him that the income which the petitioner derived by collecting fees from the visitors to the restaurant using the lift did not form part of the rent recovered from the tenant of the restaurant and therefore it did not form part of the annual letting value of the premises. It was urged before him on behalf of the respondent that the lift was a special amenity provided to the tenant running the revolving restaurant and even though the amount was recovered from the customers it amounted to additional income to the petitioner from the premises which was given on lease to the tenant. The Appellate Judge found that when the rent of the revolving restaurant was fixed the expenses of the lift were not taken into consideration and that the said lift was provided only for the restaurant. He came to the conclusion from the evidence on record that the premises were given on lease to the tenant running the revolving restaurant with a special facility of the lift and while fixing the rent of the restaurant the expenses of the lift were not taken into consideration. He found that the charge of Re. 1 from each customer for the use of the said lift cannot be separated from the premises for the visit of which the amount was recovered. Holding that the said income from the use of the lift was an additional income to the petitioner for a special facility provided to his tenant the learned Appellate Judge dismissed the appeal.