K V DAS Vs. VIJAYAWADA MUNICIPALITY

JUDGEMENT

(1.) This Civil Revision Petition raises a difficult question of law as to the true construction and interpretation of section 87 (1) of the Madras District Municipalities Act (hereinafter referred to as the Act) which runs as follows :

(2.) The facts of the case are rather simple. The petitioner is the owner of the building bearing Door No. 12/205 in Vijayawada Municipality. He was occupying a small portion in the downstairs and its monthly rental was estimated at Rs. 35/-per month. He let out the rest of the downstairs portion at Rs. 125/-per month to Batta Shoe Company and the upstairs portion to Louis Dreyfus Company at Rs. 75/-per month. But the Batta Shoe Company vacated the downstairs portion on 31-12-1947 and it was lying vacant up to the date of the suit, except during the period from 4-5-1949 to 19-12-1949 when a small portion out of the portion occupied by the Batta Shoe Company was let out to another tenant at Rs. 60/-per month. The Subordinate Judge dismissed the suit on the ground that the petitioner was not entitled to vacancy remission unless the entire buildng was vacant and unlet. The plaintiff, has consequently filed the Civil Revision Petition to this court and the short question for determination is whether the Subordinate Judge was right in his construction of section 87 (1) of the Act. Section 3 (3) of the Act defines "building" as including a house, out-house, stable, latrine, shed, hut, wall (other than a boundary wall not exceeding eight feet in height) and any other such structure, whether of masonry, brick, wood, mud, metal or any other material whatsoever. Hut and latrine are defined in sub-sections(11) and (12) of Sec. 3. Sub-section( 15) defines an occupier as including any person for the time being paying or liable to pay to the owner, the rent or any portion of the rent of the land or building or part of the same.

(3.) This definition recognises that part of a building and not the entire building may be occupied by a tenant. Section 82 enacts that every building shall be assessed together with its site and other adjacent premises occupied as an appurtenance thereto unless the owner of the building is a different person from the owner of such site or premises. Sub-section (2) provides that the annual value of lands and buildings shall be deemed to be the gross annual rent at which they may reasonably be expected to let from month to month or from year to year, less a deduction, in the case of buildings, of ten per cent of that portion of such annual rent which is attributable to the buildings alone, apart from their sites and the adjacent lands occupied as an appurtenance thereto. The proviso to sub-section (2) refers to calculation of the annual value of Government or railway buildings and of a class not ordinarily let. In respect of such buildings, the annual value is deemed to be 6 per cent of the total of the estimated value of the land and the estimated present cost of erecting the building after deducting for depreciation as provided thereunder. It is therefore clear that under sec. 82 (2) the annual value of the building is fixed on the annual rent. The property tax was fixed in the instant case on the basis of the rent paid by the Batta Shoe Co.. and Louis Dreyfus Company and the estimated rental of Rs. 35/- payable by the owner. Section 86 provides that the property tax shall be levied every half-year and shall be paid by the owner of the assessed premises save otherwise expressly provided in schedule IV. Schedule IV provides for the property tax being realised from the occupier when the tax remains unpaid in whole or in part at the end of the period specified in sub-rule (1) of rule 30. Section 91 prescribes that the executive authority may call on the owner or occupier of any land or building to furnish him with returns of the rent payable for the land or building. It is clear from the provisions referred to supra that the property tax is fixed on the annual value and the annual value is arrived at by taking into account the rent realised from the tenants and the rent realisable in respect of the portion occupied by the owner, if let out. Section 87 refers to vacancy remission being granted when the building occupied by the owner or let by him is vacant and unlet for thirty or more consecutive days in any half-year. Is it necessary that, in order to claim vacancy remission, the entire building should be vacant and unlet ? Having carefully examined the provisions of the Act, I am clearly of opinion that even if a portion of the building is vacant, proportionate remission should be granted under the terms of section 87. The expression " any building " in section 87 (i) may be read as including any portion of a building and need not be construed as only meaning building in its entirety or as a whole. This construction is not only natural on the plain language of the section but also accords with equity and common sense. If the property tax is fixed at Rs. 200/-on the basis that five tenants are occupying the premises and each paying a rent of Rs. 30/-per month and if four of the tenants vacate their portions of the building and the owner realises only a rent of Rs. 30/- per month from the other tenant, is he still liable to pay the property tax of Rs. 200/-? My answer is 'no'. It is highly inequitable to hold that the owner is liable to pay the entire tax and is not entitled to any remission whatsover when the portions occupied by the four tenants are vacant and unlet. The Subordinate Judge proceeded on the footing that the section was inapplicable as the words "portion of the building" are not to be found in the section. I am however inclined to take the view that the absence of the words "portion of the building" is immaterial and that the word "building" need not be restricted and read as meaning a building as a whole or in entirety and that it may be liberally construed as including part or portion of the building.