P. N. BHAGWATI, J. ( 1 ) THESE petitions are broadly divisible into two main groups one consisting of 84 petitions relating to the official year 1967-68 and the other consisting of 96 petitions relating to the official year 1968-69. Though the two groups relate to different official years the facts giving rise to the petitions are substantially similar and so also the points of law arising in them and we therefore propose to dispose them of by a common judgment. We may point out that so far as the petitions in each group are concerned they also follow an identical pattern and therefore instead of taking each petition separately we decided to take Special Civil Application No. 662 of 1968 as representative of the first group and Special Civil Application No. 82 of 1969 as representative of the second group. The main affidavits were filed in these two petitions and it was agreed between the parties that the affidavits in these two petitions may be treated as affidavits in all the other petitions. Complaints were made before us that new facts were sought to be. introduced by both parties in the affidavits filed by them subsequent to the filing of the affidavit-in-reply but we pointed out to the parties that we did not propose to enter into any questions of fact and no further affidavits controverting the new fact introduced in the affidavit already filed or placing further facts on record need be filed by the parties and the failure to file such affidavits would not be regarded as a circumstance against the party who has not been able to file such affidavits. ( 2 ) TURNING now to the facts the dispute in these petitions relates to the validity of assessment to property taxes made on the properties of the petitioners for the official years 1967-68 and 1968 The facts relating to both the official years being substantially similar it will be sufficient if we state the facts only in regard to the official year 1967-68. The petitioners are owners of textile mills and factories situate within the limits of the Municipal Corporation of Ahmedabad (hereinafter referred to as the Corporation ). The petitioners are owners of textile mills and factories situate within the limits of the Municipal Corporation of Ahmedabad (hereinafter referred to as the Corporation ). On 10/12/1966 the Municipal Commissioner (hereinafter referred to as the Commissioner) submitted a statement of his proposals as to taxation for the official year 1967 to the Standing Committee under Section 95 Clause (d) and these proposals were approved by the Standing Committee with slight variations by a resolution dated 5th January 1967 and they ultimately culminated in a resolution dated 31/01/1967 passed by the general body of the Corporation under Section 99 of the Corporation Act. By this resolution the Corporation determined the rates at which property taxes shall be levied in the official year 1967-68. The rates were different for water tax conservancy tax and general tax. We are not concerned with water tax in these petitions and we will therefore say no more about it. So far as conservancy tax is concerned the general rate fixed was 3% but a special rate of 9% was fixed for hotels clubs stables theatres or cinemas or other large premises including mills and factories registered under the Factories Act where fifty or more workmen are employed in manufacture in all the shifts. The rate of general tax for ordinary properties was on a graduated scale but on properties owned by textile mills for cotton silk art silk rayon woollen or any one or more of these purposes the rate was a uniform one namely 30 The Commissioner thereafter proceeded to prepare and publish a separate assessment book relating to special property section for assessment and levy of property taxes on special properties like textile mills factories colleges University buildings etc. and made initial entries in the assessment book under Rule 9 Clauses (a) to (d ). So far as the petitioner in Special Civil Application No. 662 of 1968 is concerned the rateable value of the premises occupied by him was determined by the Commissioner at Rs. 5 63 156 and this rateable value was entered in the Assessment Book under Rule 9 Clause (b ). The general notice in regard to the preparation and publication of the Assessment Book was thereafter given on 13/10/1967 and this was followed by special notices to the owners of the assessed premises. 5 63 156 and this rateable value was entered in the Assessment Book under Rule 9 Clause (b ). The general notice in regard to the preparation and publication of the Assessment Book was thereafter given on 13/10/1967 and this was followed by special notices to the owners of the assessed premises. The special notice to the petitioner in Special Civil Application No 562 of 1968 was given on 18/10/1967 and on receipt of the special notice intimating that the rateable value of the petitioners premises was fixed at Rs. 5 67 156 the petitioner filed a complaint against the amount of rateable value entered in the Assessment Book It may be mentioned at this stage that the textile mill of the petitioner in Special Civil Application No 662 of 1968 was closed since 1/10/1966 and an order had been made by a single Judge of this Court on 11/06/1967 for compulsory winding up of the petitioner under the just and equitable clause. The same was the position also in regard to Hathising Mills Company Limited which was the petitioner in Special Civil Application No 661 of 1968 the textile mills of this company was actually closed much earlier namely on 6/06/1965 and an order for compulsory winding up of this company was made on 16/08/1965. The complaint in each of these two cases was therefore made by the Official Liquidator in charge of the assets of the petitioner Now the powers of the Commissioner under the Taxation Rules were deputed by him to the Deputy Municipal Commissioner (Revenue and Law) by virtue of an office order No 1113 dated 21/04/1966 issued under Section 49 sub-Section (1) and the complaint lodged by the petitioner was therefore investigated by the Deputy Municipal Commissioner (Revenue and Law) under Rule 18. The Deputy Municipal Commissioner by an order dated 28/03/1968 disposed of the complaint assessing the net rateable value of the premises of the petitioner in Special Civil Application No 662 of 1968 at Rs. The Deputy Municipal Commissioner by an order dated 28/03/1968 disposed of the complaint assessing the net rateable value of the premises of the petitioner in Special Civil Application No 662 of 1968 at Rs. 4 13 923 and in conformity with this decision he amended the entry in regard to rateable value in the assessment book and entered the amount of property taxes leviable on the premises of the petitioner The amount of conservancy tax was calculated at the special rate of 9% and the amount of general tax at the rate of 30 of the net rateable value Along with the order disposing of the complaint a bill for the sum due was also served on the petitioner. The bill for the same date as the order disposing of the complaint namely 28/03/1968 and it included not only the amount of Rs. 1 61 529 97 ps. being the total amount of property taxes for the official year 1967-68 but also an aggregate sum of Rs. 75 955 90 ps. being the arrears of property taxes in respect of the earlier official years remaining to be paid by the petitioner The petitioner thereupon preferred two appeals before the Chief Judge of the Court of Small Causes Ahmedabad on 1 5/04/1968 one against the rateable value and the other against the tax Both these appeals are pending before the Chief Judge Since the amount specified in the bill was not paid by the petitioner a notice of demand dated 19/04/1968 was issued by the Corporation and this was followed by a distress warrant card dated 9/05/1968. The petitioner thereupon filed Special Civil Application No 662 of 1968 challenging the validity of the assessment on various grounds to which we shall presently refer Similar petitions were also filed by owners of other textile mills and factories on which assessment of property taxes for the official year 1967 was made in the same manner ( 3 ) SO far as the petitions belonging to the second group relating to the official year 1968-69 are concerned we have taken Special Civil Application No 82 of 1969 as representative of that group. That petition is also by Anant Mills Company Limited (in liquidation) which is the petitioner in Special Civil Application No 662 of 1968. That petition is also by Anant Mills Company Limited (in liquidation) which is the petitioner in Special Civil Application No 662 of 1968. The facts of that case are almost identical with the facts of Special Civil Application No 662 of 1968 barring only the difference in dates and amounts and it is therefore not necessary to reproduce the same over again. Whatever we say in regard to Special Civil Application No. 662 of 1968 will apply equally to Special Civil Application No. 82 of 1969 and other petitions belonging to 1968-69 group. Wherever there are any differences or any features peculiar to any one or more of these petitions we shall indicate them while dealing with the arguments. ( 4 ) BEFORE we set out the arguments advanced in support of the petitions it would be convenient at this stage to refer to some of the relevant provisions of the Corporation Act. The Corporations Act in so far as it relates to imposition of property taxes was materially amended by the Bombay Provincial Municipal Corporations (Gujarat Amendment) Act 1968 (hereinafter referred to as the Amending Act ). The Amending Act came into force on 30/03/1968 and the assessment for the official year 1968-69 was therefore governed by the Amendment Act. But so far as the Official year 1967-68 is concerned it was the unamended Act which applied and it is therefore necessary to consider not only the provisions of the Corporations Act as amended but also the provisions prior to the amendment. Chapter XI of the Corporations Act deals with the subject of Municipal taxation. Section 127 which is the first section in this chapter enumerates the taxes to be imposed under the Corporations Act. Sub-Section (1) of that section lays down obligatory taxes which must be imposed by the Corporation and sub-Section (2) refers to other taxes which may be imposed at the option of the corporation. Property taxes constitute an item of obligatory taxes which says Section 127 sub-Section (1) shall be imposed by the Corporation. Sub-Section (1) of that section lays down obligatory taxes which must be imposed by the Corporation and sub-Section (2) refers to other taxes which may be imposed at the option of the corporation. Property taxes constitute an item of obligatory taxes which says Section 127 sub-Section (1) shall be imposed by the Corporation. Section 129 lays down that for the purpose of sub-Section (1) of Section 127 property taxes shall compromise water tax conservancy tax and general tax which shall subject to the exceptions limitations and conditions there provided be levied on buildings and lands in the city at such percentage of their rateable value as may be determined by the Corporation and so far as general tax is concerned it may be levied if the Corporation so determines on a graduated scale. Section 99 confers power on the Corporation to determine subject to the limitations and conditions prescribed in Chapter XI the rates at which municipal taxes shall be levied. The rates determined by the Corporation are as stated in Section 129 to be applied to the rateable value and rateable value is defined in Section 2 (54 ). The unamended Section 2 (54) gave a definition of rateable value which was not very helpful but after the amendment Section 2 (54) reads as follows:" (54) rateable value means the annual letting value of any building or land whether fixed with reference to any given premises or otherwise in accordance with the provisions of this Act and the rules for the purpose of assessment to property taxes and annual letting value means the annual rent for which any building or land exclusive of furniture or machinery contained or situate therein or thereon might reasonably be expected to let from year to year with reference to its use and shall include all payments made or agreed to be made to the owner by a person (other than the owner) occupying the building or land on account of occupation taxes insurance or other charges incidental thereto. SECTION 127 sub-Section (3) then proceeds to enact that property taxes shall be assessed and levied in accordance with provisions of the Act and the rules. SECTION 127 sub-Section (3) then proceeds to enact that property taxes shall be assessed and levied in accordance with provisions of the Act and the rules. The rules as pointed out in Section 2 (58) include rules in the schedule and that takes to the Taxation Rules in Chapter VIII of Appendix IV to the Schedule Rule 7 (1) as it stood prior to its amendment provided that 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 be let from year to year a sum equal to ten per cent of the said annual rent and the said deduction shall be in lieu of all allowance for repairs or any other account whatever Rule 7 Clauses (2) and (3) subjected certain classes of plant and machinery contained or situate in or upon any building or land to property taxes by introducing a fiction that they shall be deemed to form part of such building or land but for reason we shall point out later these clauses were declared to be ultra vires and void by the Supreme Court in New Manekchowk Spg. and Wvg. and Wvg. Mills Company Ltd. v. Municipal Corporation A. I. R. 1967 S. C. 1801 and they were therefore deleted by the Amending Act Rule 9 provides inter alia:9 The Commissioner shall keep a book to be called- "the assessment-book in which shall be entered every official year - (a) xx xx xx xx (b) the rateable value of each such building and land determined in accordance with the provisions of this Act and the rules; (c) the name of the person primarily liable for the payment of the property taxes if any leviable on each such building or land; (d) if any such building or land is not liable to be assessed to the general tax the reason of such non-liability; (e) when the rates of the property taxes to be levied for the year have been duly fixed by the Corporation and the period fixed by public notice as hereinafter provided or the receipt of complaints against the amount of rateable value entered in any portion of the assessment-book has expired and in the case of any such entry which is complained against when such complaint has been disposed of in accordance with the provisions hereinafter contained the amount at which each building or land entered in such portion of the assessment book is assessed to each of the property taxes if any leviable thereon;the entries referred to in Clauses (a) (b) (c) and (d) of Rule 9 are initial entries and when they have been completed in the assessment book Rule 3 (1) requires that the Commissioner shall give public notice thereof and of the place where the assessment book or a copy of it may be inspected. The Commissioner shall also says Rule 15 at the time and in the manner prescribed in Rule 13 give public notice of a day not being less than fifteen days from the publication of such notice on or before which complaints against the amount of any rateable value entered in the assessment book may be received in his office Rule 16 provides for the time and manner of filing complaints and predicates that such complaints may be against the amount of any rateable value entered in the assessment book or against the mention of the name of any person as primarily liable for the payment of property taxes or against the treatment of any building or land as liable to be assessed to general tax Rule 17 obliges the Commissioner to give notice to each complaint of the time and place when and where his complaint will be investigated Rule 18 then provides18 (1) at the time and place so fixed the Commissioner shall investigate and dispose of the complaint in the presence of the complainant if he shall appear and if not in his absence. (2) xxx xxx xxx (3) When the complaint is disposed of the result thereof shall be noted in the book of complaints kept under Rule 17 and any necessary amendment shall be made in accordance with such result in the assessment book Rule 19 as it stood prior to its amendment provided for authentication of the entries in the assessment book but this rule now has been substituted by a new provision dispensing with authentication Rule 20 confers power on the Commissioner to amend any entry in the assessment book but this power can be exercised only during the official year. Then follows Rule 21-B which is a new rule introduced by the Amending Act and it sets out certain contingencies in which the Commissioner may prepare and complete the assessment book even after the expiration of the official year. Then follows Rule 21-B which is a new rule introduced by the Amending Act and it sets out certain contingencies in which the Commissioner may prepare and complete the assessment book even after the expiration of the official year. It may be pointed out here that while construing the corresponding provisions relating to assessment and levy of property tax contained in the Bombay Municipal Boroughs Act 1925 - which provisions are similar though not identical with the provisions of the Corporation Act and the rules - it was held by a Division Bench of this court in Municipal Corporation of the city of Ahmedabad v. Keshavlal (1965) 6 G. L. R. 228 that the procedure for assessment and levy of properly tax set out in those provisions must be completed before the expiry of the official year and no assessment can be made after the official year has ended. The scheme of the provisions of the Boroughs Act and the present rules relating to assessment and levy of property tax being substantially the same it would follow a fortiori that the ratio of this decision must apply equally in construing the provisions of the Corporation Act and the Rules and the assessment of property tax for any particular official year must be completed before the expiry of the official year. This position has now been impliedly recognised by the Legislature in enacting Rule 21h Rule 21b accepts by necessary implication that having regard to the scheme of the Corporations Act and the Rules the assessment of property tax for any particular official year must be completed before the expiry of the official year and thus give legislative approval to the decision in Keshavlals case (supra) and recognises that its ratio would also be applicable in the construction of the provisions of the Corporations Act and the Rules and having done so enacts an exception to the rule by providing that in cases falling within it the assessment book may be prepared and completed even after the expiry of the official year These are the relevant provisions of the Corporations Act and the Rules having bearing on the determination of the questions arising in these petitions ( 5 ) IT will be seen from the resume of these provisions that the entire scheme of taxation rests on the foundation of rateable value or annual letting value How is the annual rental value to be determined ? As pointed out in Halsburys Laws of England Third Edition Volume 32 page 76 Article 106 Except in the case of public utility undertaking which in the absence of special circumstances must as a matter of law be valued on the profits basis there is no rule of law as to the method of valuation to be adopted for rating There are at least four recognised methods of valuation given in leading text books on rating such as Faradays quoted in paragraphs 9 of the judgment of the Supreme Court in New Manekchowk Mills case (supra) at page 1809 of the report. It is not necessary for the purpose of the present petitions to refer to the other methods of valuation for we are concerned only with the method of valuation known as contractors basis which was adopted by the Deputy Municipal Commissioner in the present cases to determine the annual rental value of the premises. It is not necessary for the purpose of the present petitions to refer to the other methods of valuation for we are concerned only with the method of valuation known as contractors basis which was adopted by the Deputy Municipal Commissioner in the present cases to determine the annual rental value of the premises. This method consists of estimating the effective capital value of the premises and applying a rate per cent thereto in order to estimate the rental value Ryde in the Eleventh Edition of his book on Rating at page 443 points out that in the modern practice of applying the contractors basis it is possible to discern five stages though the fourth and fifth are not usually recognised as distinct and are often mixed up. He describes the five stages thus: the first stage is the estimation of the cost of construction of the building. There is a difference of view as to whether it is better to take the cost of replacing the actual building as it is or the cost of a substitute building on the same plan as the actual building but otherwise in an up-to-date form. The second stage is to make deductions from the cost of construction to allow for age obsolescence and any other factors necessary to arrive at the effective capital value. The third stage is to estimate the cost of the land. The principle of rebus sic stantibus demands that the land be valued as if limited to its existing use. The fourth stage is to apply the market rate or rates at which money can be borrowed or invested to the effective capital value of the buildings and the land The result is what it would cost the occupier in annual terms to provide the hereditament for himself rather than to lease it. The fifth stage is to consider whether the result of the fourth stage really represents what the hypothetical tenant would pay for an annual tenancy on the statutory terms and to make any adjustment necessary to ensure that no higher rent is fixed as the basis of assessment than that which it is believed the owner would really be willing to pay for the occupation of the premises. This method of valuation was adopted by the Deputy Municipal Commissioner He determined the cost of replacing the actual buildings as they were and deducted depreciation from such cost to allow for age and obsolescence and arrived at the effective capital value of the buildings; he then estimated the market value of the land and to the aggregate amount at rived at by adding the estimated value of the land to the effective capital value of the buildings he applied a certain percentage in order to arrive at the annual rental value of the premises. This determination made by the Deputy Municipal Commissioner as embodied in his order disposing of the complaints is challenged in the present petitions. ( 6 ) WE will now proceed to set out the grounds of challenge urged on behalf of the petitioners. The main arguments were advanced by Mr. C. T. Daru learned Advocate appearing on behalf of the petitioners in Special Civil Application Nos. 662 of 1968 and 82 of 1969 and they were supplemented by the learned Advocates appearing on behalf of the petitioners in the other petitions. (F) So far as Special Civil Applications Nos. 661 662 82169 and 93/69 are concerned the textile mills of Anant Mills Company Limited and thesing (sic.) Mills Co Ltd. the petitioners in these petitions were closed since prior to the official years 1967-68 and 1968-69 by reason of a winding up order being made in respect of each or these two companies and neither of them was therefore in beneficial occupation of the premises and their premises were not rateable to property taxes. (G) The contractors method of finding out the annual rental value involves a fallacious belief that rent of a building is determined by its cost. It ignores the fact that rent is a product of many complex variables of which cost is only one. By taking into account only one factor and leaving out others it gives a distorted picture of the rental value which is bound to be unreal and misleading. Moreover cost would not reflect value in case of old buildings by reason of the vast rise in building cost. By taking into account only one factor and leaving out others it gives a distorted picture of the rental value which is bound to be unreal and misleading. Moreover cost would not reflect value in case of old buildings by reason of the vast rise in building cost. There may have been times when cost was a dominant determinant of rent and therefore at such times contractors basis may have been a useful guide in getting a rough idea of rental value though even then the method only yielded some evidence and represented at best only the maximum rent. But owing to the phenominal rise in the cost of construction after the Second World War cost has ceased to be a major determinant of the rental value. Furthermore the contractors basis suffers from a further fallacy in that it fails to take into account the use to which building is to be put. It values the building as a lifeless or functionless skeleton and it therefore fails to achieve the rental value with reference to the present use of the building. The inadequacy and failure of the method are apparent from the reference to the fifth stage by Ryde. The addition of the fifth stage is an essential step in the method is an attempt to preserve the method by incorporating into it something which is entirely extraneous to it. It compels its adherents to look for considerable material outside the frame of reference supplied by the method and thereby the method is robbed of much of its practical utility. In fact the fifth stage which is supposed to be required to cure the method of its congential defect achieves the cure only by killing it. The contractors method is therefore by its very nature incapable of yielding the annual rental value in case of old buildings and it ought not to have been applied by the Deputy Municipal Commissioner in any event the Deputy Municipal Commissioner erred in ignoring the fifth stage and not giving due effect to it. (H) The contractors method in the form in which it is recognised in England is not applicable in India in those areas where the Rent Restriction legislation is in force. (H) The contractors method in the form in which it is recognised in England is not applicable in India in those areas where the Rent Restriction legislation is in force. The Bombay Rents Hotel and Lodging House Rates Control Act 1947 being in force within the area of the municipal limits the restriction of standard rent must necessarily enter in the hypothesis of the definition of annual letting value. Having regard to the provisions of the Rent Act the rent which a landlord can reasonably expect to receive and a tenant reasonably expect to give cannot be more than the standard rent. Now the standard rent would be either the rent at which the premises were let on a specified date or the rent which may be fixed by the court under the provisions of the Rent Act. When the court fixes the standard rent it would take the actual cost of construction and give reasonable return on the same. It would not take the new cost as the basis of fixing the standard rent for to do so would be to defeat the object of the Rent Act which is to deprive the landlord of the unearned increment in the values of the building. The contractors basis would thus be entirely inappropriate in a place where the Rent Restriction Act prevails. The rental value obtained by adopting that basis would be absolutely unreal in case of old buildings. It would be much higher than the standard rent which landlord can reasonably expect to get. The rent obtained by the contractors method would include the competent of unearned increment in the building value which component is excluded from standard rent which is the only rent the landlord can lawfully recover from his tenant. The contractors method is thus wholly inapplicable and it cannot conceivably yield the annual rental value in case of old buildings. It would be in fact irrelevant for the determination of the annual rental value. (I) Where the land on which the mill or factory building stands was leasehold land it was not open to the Deputy Municipal Commissioner to take the capital value of the land and determine its annual rental value by applying the contractors method. It would be in fact irrelevant for the determination of the annual rental value. (I) Where the land on which the mill or factory building stands was leasehold land it was not open to the Deputy Municipal Commissioner to take the capital value of the land and determine its annual rental value by applying the contractors method. The Deputy Municipal Commissioner ought to have determined the annual rental value of the land in these cases on the basis of the actual rent having regard to the provisions of the Rent Act. (J) The depreciation allowed or account of age and obsolescence in arriving at the effective capital value of the buildings was calculated by the Deputy Municipal Commissioner on an arbitrary and irrational basis in disregard of well-recognised method of calculating depreciation. (K) The special rate of conservancy tax namely 9 per cent of the rateable value determined by the Corporation at the meeting held on 31/01/1968 was outside the scope of its powers under Section 99. The determination of this special rate could not also be justified under Section 137 sub-Section (1): moreover the condition set out in Section 137 sub-Section (3) which is a prerequisite for fixation of special rate under Section 137 sub-Section (1) was also not satisfied. Section 137 sub-Section (1) in so far as it relates to large premises was in any event violative of Article 14 since the word large being a word of indefinite import did not furnish a clear and intelligible basis for classification. (L) The machinery of assessment provided in the taxation rules was unreasonable in that it did not provide the assessee an effective right of appeal to a judicial forum and made it dependent on deposit of the amount of tax assessed by the Municipal Commissioner. The entire machinery of assessment was therefore violative of Articles 14 and 19 of the Constitution. Section 406 (2) (e) in any event made unjust discrimination between two classes of persons one class consisting of persons who were not willing or able to deposit the amount of tax assessed by the Municipal Commissioner and the other consisting of the rest. There was no reasonable nexus between the basis of this classification and the object of the provision in regard to appeal. Section 406 (2) (e) was therefore violative of Article 14 of the Constitution and must be held to be ultra vires. There was no reasonable nexus between the basis of this classification and the object of the provision in regard to appeal. Section 406 (2) (e) was therefore violative of Article 14 of the Constitution and must be held to be ultra vires. (M) Though plant and machinery was held by the Supreme Court in New Manekchowk Mills case (supra) to be not rateable to property taxes the Deputy Municipal Commissioner included certain items of plant and machinery for the purpose of rating on the basis that they constituted building or part of building. The assessment of these items of plant and machinery was ultra vires the powers of the Deputy Municipal Commissioner. (N) The power to investigate and dispose of complaints was entrusted under Rule 18 to the Municipal Commissioner and this power being a quasi-judicial power could not be deputed by the Municipal Commissioner to the Deputy. Municipal Commissioner under Section 49 sub-Section (1); the purported deputation of this power under the office order dated 21/04/1966 was therefore beyond the power of the Municipal Commissioner and was ineffective and the Deputy Municipal Commissioner had no jurisdiction or authority to investigate and dispose of complaints made by the petitioners. We have set out the minor grounds first since they can be disposed of briefly and do not need much discussion. We shall now proceed to examine these grounds. ( 7 ) XX xx xx ( 8 ) XX xx xx ( 9 ) XX xx xx ( 10 ) XX xx xx ( 11 ) XX xx xx ( 12 ) RE: Ground (F): The argument of the petitioners under this head of challenge was that since the petitioners in Special Civil Applications Nos. 661/68 662 82 and 93/69 were ordered to be wound up and their textile mills were closed since prior to the official years 1967-68 and 1968-69 their occupation of the premises during these official years was not beneficial occupation and the premises were therefore not rateable to property taxes. The petitioners sought to support this argument by reference to certain passage of page 238 of Ryde on Rating (Eleventh Edition) and page 257 of Law of Rating by Amies Banks and Calbocoresse but we do not think these passages help the petitioners to escape liability altogether. The petitioners sought to support this argument by reference to certain passage of page 238 of Ryde on Rating (Eleventh Edition) and page 257 of Law of Rating by Amies Banks and Calbocoresse but we do not think these passages help the petitioners to escape liability altogether. What these passage emphasise is that the true test for the purpose of determining ratability is whether there has been a beneficial occupation within the ordinary meaning of these words: if there is then only the premises would be rateable to property taxes. Even if this test were to be applied it is difficult to see how it can be said that the petitioners are not in beneficial occupation of the respective premises. The criterion for determining beneficial occupation is not whether the occupier is making profits from his occupation but whether assessee is willing to pay rent for the premises and that is precisely the criterion laid down by the Legislature under the Corporations Act for determining rateability by basing it on the annual rateable value. The question which has to be asked is: What is the rent which a hypothetical tenant would reasonably be expected to give for a tenancy on the statutory terms and that is a question which would have to be answered by the assessing authority. If the answer given by the assessing authority is incorrect it could be set right in appeal by the Chief Judge and if necessary in further appeal by the High Court. But it would not be correct to state as a matter of law that the premises of the petitioners are not liable to property taxes as the petitioners have been ordered to be wound up and their textile mills were closed during the relevant official years. ( 13 ) RE: Grounds (G) (H) (I) and (J): These grounds may-be taken up together as there are two common preliminary objections raised against them on behalf of the respondents and though the first one is not well-founded the second is substantial and must result in our refusal to consider these grounds on merits. ( 13 ) RE: Grounds (G) (H) (I) and (J): These grounds may-be taken up together as there are two common preliminary objections raised against them on behalf of the respondents and though the first one is not well-founded the second is substantial and must result in our refusal to consider these grounds on merits. The first preliminary objection was that none of these grounds involved any error of law: the question to which the Deputy Municipal Commissioner was required to address himself was a pure question of fact namely what rent a hypothetical tenant would give for the premises for tenancy from year to year; it did not involve any question of law and therefore even if any of these grounds was otherwise well-founded it was not amenable to the certiorari Jurisdiction of this Court. This objection plausible though it may seem is not sustainable. It is no doubt true as pointed out by Earl of Halsbury in Mersey Docks and Harbour Board v. Birkkenhead Assessment Committee (1901) A. C. 175 that the question as to what is the annual rental value of the premises or in other words what is the rent which a hypothetical tenant would give for a tenancy on statutory terms is a pure question of fact. But even while dealing with a question of fact to be answered by an authority a question may well come up in the argument as a matter of law. Take for example a case where the Commissioner adopts a method which is wholly unrelated to the determination of the annual rental value so that it cannot conceivably yield the annual rental value; it would clearly raise a question of law for instead of doing what the statute has directed him to do the Commissioner would be doing something different. To quote the words of Scott. L. J. in Robinsion Brothers (Brewers) Ltd. v. Houghton and Chester-le-Street Assessment Committee (1937) 2 K. B. 445 logical relevance is the measure of legal admissibility and if therefore a particular method adopted by the Commissioner is logically so irrelevant to the issue of determination of annual rateable value that it can never give the desired result it would be affected by an error of law. So also if the method is demonstrably incorrect or the figure of annual rental value is so obviously wrong that it must have been reached by an incorrect method that again would be a question of law. Vide the observations of Denning L. J. in Cardiff Rating Authority v. Guest Keen Baldwins Iron and Steel Co. Ltd. (1949) 1 K. B. 385 at page 395. Then again if the Commissioner bases his determination on extraneous considerations which he ought not to have taken into account or fails to take into account consideration which he ought to have taken into account his determination can be quashed as suffering from an error of law. The question whether in arriving at his determination on what is admittedly a question of fact anything wrong has been done by the Commissioner either by way of exclusion or inclusion is a question of law and it can always be shown by the property owner that something has been improperly taken into or left out of account by the Commissioner. It is therefore clear that though grounds (G) to (J) attack the determination of the annual rental value which is a finding of fact they raise questions of law and a scrutiny of them cannot be shut out on the ground that they are outside the certiorari jurisdiction of this Court. As a matter of fact the Supreme Court itself entertained the question in Manekchowk Mills case (supra) which was a petition under Article 32 of the Constitution whether the flat rate method adopted by the Commissioner was a proper method which could in the circumstances yield the annual rental value of the premises. The Supreme Court pointed out that though there is no rule of law as to the method of valuation to be adopted for rating this does not mean that it is open to the Municipal authorities to fix upon any scale and say that they will adopt it; they must show if challenged that the scale adopted by them allows the fixing of an annual value and provides a basis for determination of the same as that which a hypothetical tenant might be expected to pay for the building. This preliminary objection is therefore without substance and must be rejected. This preliminary objection is therefore without substance and must be rejected. ( 14 ) THE second preliminary objection was that in any event grounds (G) to (J) were of such a nature that they could legitimately be urged by the petitioners in the appeals preferred by them before the Chief Judge and if they were agitated in the appeals and found to be valid by the Chief Judge the Chief Judge could determine a different rateable value by applying the appropriate method of valuation in a correct manner and tax could be recovered from the petitioners on the basis of such newly determined rateable value but if this Court were to interfere with the decision of the Deputy Municipal Commissioner and quash it on any of these grounds in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution the Corporation would lose the tax altogether since the official year having expired and Rule 21-B not being available on the facts it would not be competent to the Commissioner to assess and levy property taxes afresh by following the correct method of valuation to arrive at the rateable value. This Court should not therefore it was argued entertain these grounds in support of the present petitions but leave them to be decided in the appeals before the Chief Judge. The petitioners agreed that if the premise on which this objection was based was sound it would certainly be a good ground for refusing to interfere in the exercise of our discretion under Article 226 of the Constitution but their contention was that the premise was incorrect and with it the objection must fail. It was not correct to say said the petitioners that if this Court quashed and set aside the decision of the Deputy Municipal Commissioner by issuing a writ of certiorari the Commissioner would be without power to assess and levy the property taxes for the official years in question and the tax would be wholly lost for the court could always give a direction to the Commissioner to reassess and levy the property taxes by following the correct principles. Moreover even if this Court had no power to give such direction or such direction would be futile by reason of the expiration of the official years the position would be no better with the Chief Judge. Moreover even if this Court had no power to give such direction or such direction would be futile by reason of the expiration of the official years the position would be no better with the Chief Judge. The Chief Judge would not be competent to entertain and decide question of law or to adjudicate upon the legality of the assessment and therefore if the assessment was vitiated by errors of law it would not be open to the Chief Judge to correct those errors. The Chief Judge in any event would not be entitled to determine afresh the rateable value of the premises by applying a different method even if he took the view that the contractors method was logically irrelevant or inapplicable and therefore here also the result would be the same and the tax would be lost to the Corporation. The pendency of the appeals before the Chief Judge said the petitioners should not therefore deter us from exercising our jurisdiction under Article 226 of the Constitution. ( 15 ) ON these rival contentions the first question which arises for consideration is as to whether we can give direction to the Commissioner to reassess and levy property taxes on the premises of the petitioners if we find that any of these grounds is well-founded and the assessment made by the Deputy Municipal Commissioner requires to be quashed on that account. The petitioners contended that such direction could be given and in support of this contention they relied on the observation of Lord Denning M. R. in Regina v. Paddington Valuation Officer (1966) 1 Q. B. 380 where the learned Master of the Rolls pointed out: If the existing list has been complied oh the wrong footing the Court can order the Valuation Officer to make a new list on the right footing. But this observation must be read with the next sentence which follows upon it and if we do so it is clear that far from helping the argument of the petitioners it contradicts that argument. The assessment list there was undoubtedly required to be prepared by 31/12/1962 and that period of time had expired but it was pointed out by the learned Master of the Rolls that the passage of time was no bar as the requirement that the assessment list must be prepared by 31/12/1962 was directory only and not mandatory. The assessment list there was undoubtedly required to be prepared by 31/12/1962 and that period of time had expired but it was pointed out by the learned Master of the Rolls that the passage of time was no bar as the requirement that the assessment list must be prepared by 31/12/1962 was directory only and not mandatory. Here however according to the scheme of taxation which we have already analysed the requirement that the assessment must be completed before the close of the relevant official year is a mandatory requirement and once the official year has expired the Commissioner cannot assess and levy property taxes and if the Commissioner has no such power a fortiori the Court cannot issue direction to him to do something which is not permissible to him under the statute. Such a direction even if issued would be futile. There can therefore be no doubt that if we quash the assessment made by the Deputy Municipal Commissioner it would not be possible for the Commissioner to reassess and levy property taxes for the official years 1967-68 and 1968-69 and the tax for those official years would be totally lost to the Corporation. ( 16 ) THE question then is: Would the position be any the better if these grounds are agitated in the appeals before the Chief Judge and it is left to the Chief Judge to adjudicate upon their validity. The argument of the petitioners was that the Chief Judge had no jurisdiction to entertain these grounds as they raised questions of law affecting the legality of the assessment and in support of this argument the petitioners relied on certain observations of the Bombay High Court in Balkrishna v. Poona Municipal Corporation 65 Bom. L. R. 119 which were quoted with approval by the Supreme Court in New Manekchowk Mills case. We shall presently refer to these observations but before we do so let us examine the question on principle. To do so we must refer to certain Sections of the Corporation Act relating to appeals. The right of appeal is conferred by Section 406 sub-Section (1) and it provides for two kinds of appeals: there may be an appeal against the rateable value and there may also be an appeal against the fixed or charged under the Corporations Act. To do so we must refer to certain Sections of the Corporation Act relating to appeals. The right of appeal is conferred by Section 406 sub-Section (1) and it provides for two kinds of appeals: there may be an appeal against the rateable value and there may also be an appeal against the fixed or charged under the Corporations Act. Sub-Section (2) of Section 406 lays down certain conditions which must be fulfilled before any such appeal can be heard: Clause (b) of that sub-section says that no such appeal shall be heard unless in the case of an appeal against a rateable value a complaint has previously been made to the Commissioner and such complaint has been disposed of and Clause (e) provides that in the case of an appeal against a tax or in the case of an appeal made against a rateable value after a bill for any property tax assessed upon such value has been presented to the appellant no such appeal shall be heard unless the amount claimed from the appellant has been deposited by him with the Commissioner. Section 409 is a little important and it throws some light on the true nature of the proceeding by way of appeal before the Chief Judge. It says and we are here setting out only the material part of the Section:"409 (1) If any party to an appeal against a rateable value makes an application to the Judge either before the hearing of the appeal or at any time during the hearing of the appeal but before evidence as to value has been adduced to direct a valuation of any premises in relation to which the appeal is made the Judge may in his discretion appoint a competent person to make the valuation and any person so appointed shall have power to enter on survey and value the premises in respect of which the direction is given: (2) xxx xxx xxx. (3) The Judge may and on the application of any party to the appeal shall call as a witness the person appointed under sub-Section (1) for making the valuation and when he is so called any party to the appeal shall be entitled to cross-examine him. (3) The Judge may and on the application of any party to the appeal shall call as a witness the person appointed under sub-Section (1) for making the valuation and when he is so called any party to the appeal shall be entitled to cross-examine him. Section 410 provides that if before or on the hearing of an appeal relating to the rateable value or tax any question of law or usage having the force of law or the construction of a document arises the Chief Judge may and on the application of any party to the appeal shall draw a statement of the facts of the case and the question so arising and refer the statement with his own opinion on the point for the decision of the City Civil Court and now in view of the amendment for the decision of the High Court. Section 411 confers a further right of appeal by providing that an appeal shall lie to the High Court. (A) from any decision of the Judge in an appeal under Section 406 by which a rateable value in excess of two thousand rupees is fixed and (B) from any other decision of the said Judge in an appeal under the said section upon a question of law or usage having the force of law or the construction of a document. Section 413 is also an important section having a material bearing on the present controversy. We will therefore reproduce it in full:413 (1) Every rateable value fixed under this Act against which no complaint is made as hereinbefore provided and the amount of every sum claimed from any person under this Act on account of any tax if no appeal therefrom is made as hereinbefore provided and the decision of the Judge aforesaid upon any appeal against any such value or tax if no appeal is made therefrom under Section 411 and if such appeal is made the decision of the District Court in such appeal shall be final. (2 ) Effect shall be given by the Commissioner to every decision of the said Judge on any appeal against any such value or tax. It will be seen from these provisions that two kinds of appeal are contemplated by the Legislature: one against the rateable value and the other against the tax. (2 ) Effect shall be given by the Commissioner to every decision of the said Judge on any appeal against any such value or tax. It will be seen from these provisions that two kinds of appeal are contemplated by the Legislature: one against the rateable value and the other against the tax. The appeal against the rateable value would involve only questions relating to the determination of the rateable value while the appeal against the tax would involve other questions relating to the levy of the tax. Now these questions which would arise in both kinds of appeals may be questions of law as well as questions of fact. Even though determination of rateable value is a question of fact it might involve as we have already pointed out several questions of law and on these questions of law the determination of rateable value may be challenged in the appeal. So also the appeal against the tax may and in many cases would involve questions of law such as the following: Whether the appellant is primarily liable for the payment of property taxes whether the premises are liable to be assessed to property taxes and the like. Now it is difficult to see how either of these two kinds of appeals can be disposed of unless the Chief Judge has the power to deal with these questions of law. The power to dispose of the appeals must necessarily carry with it the power to entertain and decide these questions of law which arise in the appeals. There is nothing in the Corporations Act or the Rules which inhibits the power of the Chief Judge and restricts it only to a consideration of questions of fact. In fact if such a provision were there it would have been a starting departure from the usual machinery of taxation provided in fiscal statutes and it might well have rendered the entire machinery of taxation unreasonable. But apart from the absence of any such provision we find that there is positive inherent evidence in the statute which clearly indicates that not only questions of fact but also questions of law are within the jurisdiction of the Chief Judge. There is a clear postulate underlying Section 410 that questions of law may arise in the appeals before the Chief Judge. There is a clear postulate underlying Section 410 that questions of law may arise in the appeals before the Chief Judge. If any party to the appeal applies that any particular question of law should be referred to the City Civil Court or the High Court as the case may be the Chief Judge is bound to refer it and if no such application is made it is left to the Chief Judge in his discretion whether to refer or not. He may refer the question of law or he may choose to decide it himself. Section 411 strengthens this conclusion: Clause (b) of that Section proceeds on the hypothesis that there may be a decision of the Chief Judge on a question of law. It provides that an appeal shall lie to the High Court from any decision of the Chief Judge upon a question of law or usage having the force of law or the construction of a document. It is therefore impossible to hold that it is not competent to the Chief Judge in an appeal against the rateable value or the tax to decide questions of law arising in such appeal. ( 17 ) SO much on principle. Turning to the authorities we find that this view is considerably fortified by an unreported decision of a Division Bench of this Court consisting of Miabhoy C. J. as he then was and my brother Vakil J. given on 5/05/1966 in Special Civil Application No. 1365 of 1965 and other allied petitions. It was however contended on behalf of the petitioners that the view taken in this decision must be regarded as impliedly overruled by the decision of the Supreme a Court in New Manekchowk Mills case (supra ). The argument was that the judgment of the Bombay High Court in Balkrishnas case (supra) which was dissented from by the Division Bench in this decision was approved by the Supreme Court in New Manekchowk Mills case and the view of the Division Bench can therefore no longer be regarded as good law. This contention is fallacious and is based on a misapprehension of the true import of the decision of the Supreme Court. This contention is fallacious and is based on a misapprehension of the true import of the decision of the Supreme Court. The objection raised before the Supreme Court on behalf of the Corporation was that the Supreme Court should not interfere at the stage of initial entries since at that stage there was only a proposal and even if the Corporation acted arbitrarily it was open to the assessees to take objection thereto and have proper valuations made and the assessment book prepared properly. This objection was negatived and it was pointed but by the Supreme Court:"the Small Causes Court cannot decide the applicability of Article 14 of the Constitution and according to the judgment of the Bombay High Court in Balkrishna v. Poona Municipal Corporation (1963) 65 Bom. L. R. 119 (by which the District Judge would be bound):". . . the words used in Section 406 (1) of the Act. . . do not cover the vires of the tax or the legality of the tax which is sought to be levied". We do not think that in making these observations the Supreme Court intended by the Commissioner suffers from any errors of law it cannot be corrected in appeal by the Chief Judge. What was sought to be emphasized by the Supreme Court was that the appeal would not be proper remedy because the question raised was on relating to the legality of the tax and in view of the judgment of the Bombay High Court in Balkrishnas case (supra) which would be binding on the District Judge such a question would not be within the scope of the appeal. The Supreme Court was not concerned to inquire whether the judgment of the Bombay High Court was correct or not. It merely tried to answer the objection raised on behalf of the Corporation by pointing out that the District Judge was bound by the view taken by the Bombay High Court in Balkrishnas case and in view of that decision he could not entertain the question relating to the legality of the tax and therefore it was no argument on the part of the Corporation to say that the assessees should be left to pursue the remedy of an appeal. We cannot construe the observations of the Supreme Court as laying down that no question of law relating to the determination of the rateable value or the tax can be raised in an appeal before the Chief Judge. The Supreme Court undoubtedly said that the Small Causes Court cannot decide the applicability of Article 14 of the Constitution but that is because the validity of the assessment under Article 14 would be a constitutional question and that would not be within the power of the Small Causes Court. This observation does not mean that any other question of law which does not involve a point of constitutional validity cannot also be decided by the Chief Judge. As a matter of fact in Martin Burn Limited v. Calcutta Municipal Corporation A. I. R. 1966 S. C. 529 the question as to which of the two methods set out in Clauses (a) and (b) of Section 127 of the Calcutta Municipal Act 1923 was applicable and whether assessment to property tax made by following the method set out in Section 127 Clause (b) was illegal and improper on the ground that it should have been made under Section 127 Clause (a) was decided in appeal by the High Court and it was not doubted that this could be done by the Small Causes Court and the High Court. To accept the contention of the petitioners would be to disregard the plain meaning and effect of Sections 410 and 411. We are therefore of the view that all questions of law barring only questions of constitutional validity can be decided by the Chief Judge in an appeal under Section 406 sub-Section (1) and these grounds which are sought to be urged by the petitioners are within the jurisdiction of the Chief Judge. We are therefore of the view that all questions of law barring only questions of constitutional validity can be decided by the Chief Judge in an appeal under Section 406 sub-Section (1) and these grounds which are sought to be urged by the petitioners are within the jurisdiction of the Chief Judge. ( 18 ) THE next contention urged on behalf of the petitioners was that in any event even if the Chief Judge came to the conclusion that the contractors test method was logically irrelevant or inapplicable and the assessment made by the Deputy Municipal Commissioner was therefore invalid it would not be competent to the Chief Judge to determine the rateable value afresh by applying the appropriate method in a correct manner: all that the Chief Judge would be able to do would be to declare the assessment invalid and leave it to the Commissioner to make a fresh assessment according to the correct method and this would again result in the Corporation losing the tax altogether. This contention is also in our opinion without substance. It ignores the scheme of the provisions in regard to appeals contained in the Act. We have already pointed out that an appeal may be preferred against the rateable value and in this appeal the assessee would challenge the determination of the rateable value made by the Commissioner. He may challenge it on any ground available to him and such ground may well relate to the method of valuation adopted for the purpose of determining the rateable value. It is apparent from the provision in Section 409 sub-Section (1) and particularly the words before evidence as to value has been adduced that the appeal against rateable value is in the nature of an original proceeding where evidence as to value may be led by both parties. The Chief Judge may on the application of a party to the appeal appoint a competent person to make the valuation and such person may be called as a witness and if he is so called he may be cross-examined by the other side. The evidence as to value which may be adduced before the Chief Judge in the appeal may be based on any method which is regarded by the party or his witness as appropriate: It cannot be restricted to the method of valuation adopted by the Commissioner. The evidence as to value which may be adduced before the Chief Judge in the appeal may be based on any method which is regarded by the party or his witness as appropriate: It cannot be restricted to the method of valuation adopted by the Commissioner. So also when a competent person is directed to make a valuation he may value it according to the method which he regards as proper: there is no requirement in the statute that his valuation must be based on the method adopted by the Commissioner. The entire question as to rateable value would be open before the Chief Judge and as contemplated under Section 411 Clause (a) it would be for the Chief Judge to fix the rateable value and the decision of the Chief Judge fixing the rateable value would be final subject to appeal to the High Court and the Commissioner would be bound to give effect to such decision as provided in Section 413. The whole scheme of the provisions clearly contemplates that in the appeal against the rateable value the Chief Judge would have to fix the rateable value after considering the evidence as to value which may be adduced before him and it is implicit in this process that he would also have to decide which method of valuation should be adopted. If therefore the Chief Judge takes the view that the contractors test method is inappropriate or inapplicable he can decide which other method should be adopted and fix the rateable value by applying such method on the basis of the evidence before him. ( 19 ) THE petitioners however contended that this view was inconsistent with the decision of the Supreme Court in Martin Burns case (supra ). There were two methods of valuation set out in Section 127 of the Calcutta Municipal Act 1923 The assessee was assessed according to the method set out in Section 127 Clause (b ). He objected to the assessment on the ground that it should have been under Section 127 Clause (a ). The objection was dismissed by the assessing authority. The assessee thereupon appealed under Section 141 to the Court of Small Causes. The main ground of appeal was that the valuation was illegal as it had been made under Clause (b) of Section 127 while it should have been made under Clause (a) of that Section. The objection was dismissed by the assessing authority. The assessee thereupon appealed under Section 141 to the Court of Small Causes. The main ground of appeal was that the valuation was illegal as it had been made under Clause (b) of Section 127 while it should have been made under Clause (a) of that Section. The Court of Small Causes accepted this ground and passed an order setting aside the assessment and directing that a fresh valuation be made by the Corporation in accordance with Section 127 Clause (a ). This last direction was however unfructuous inasmuch as the Corporation could only make a revaluation under Section 131 (2) (b) and the time limit for doing so had expired. The Corporation therefore appealed to the High Court under Section 142 (c ). The High Court took the same view as the Court of Small Causes on the main point as to which method was applicable and held that the Court of Small Causes was therefore right in cancelling the assessment but in order to save the tax the High Court made an order remanding the case to the Court of Small Causes and directing it to make a fresh valuation itself by applying the method set out in Clause (a) of Section 127. This order of remand was challenged by the assessee in the Supreme Court. The Supreme Court by a majority decision held that the Court of Small Causes had no power to make an independent valuation itself for under the Act the liability to rat es was fixed on the basis of a valuation made by the Corporation and not on the basis of a valuation made by the Court on its own. The Court could of course revise or alter the valuation made by the Corporation under Sections 147 and 164 but that would be very much different from an independent valuation to be made by the Court by adopting a totally different method. The Supreme Court accordingly held that the order of remand made by the High Court was not justified in law. This decision given on the basis of a scheme of taxation contained in the Calcutta Act can hardly be of any relevance when we are considering a question arising under a totally different scheme of taxation contained in the Corporations Act. This decision given on the basis of a scheme of taxation contained in the Calcutta Act can hardly be of any relevance when we are considering a question arising under a totally different scheme of taxation contained in the Corporations Act. The power of the Court of Small Causes under the Calcutta Act was to cancel the assessment or to revise or alter the valuation and the Supreme Court held that since the method on the basis of which the valuation was made by the Corporation was illegal the Court of Small Causes could not do anything except cancel the assessment: it would not make an independent valuation itself by adopting the correct method for that would not be revision or alteration of the valuation. But here under the Corporations Act the power of the Chief Judge in appeal against rateable value is not restricted merely to revision or alteration of the valuation. On the contrary it is a wide power conferred in general terms without any words of limitation. It says that an appeal against the rateable value shall be heard and determined by the Chief Judge. The Chief Judge is empowered to fix the rateable value after considering the evidence as to value adduced before him and the Commissioner is enjoined to give effect to the decision of the Chief Judge. The principle of the decision in Martin Burns case can therefore have no application under the Corporations Act. ( 20 ) THE result of this discussion is that if we quash and set aside the assessment made by the Deputy Municipal Commissioner on any of these grounds urged on behalf of the petitioners the tax for the official years 1967-68 and 1968-69 would be lost to the Corporation whereas no such drastic consequence would ensue if these grounds are left to be decided by the Chief Judge in the appeals preferred by the petitioners. The Chief Judge can entertain these grounds and if he is of the view that the contractors method adopted by the Deputy Municipal Commissioner is not proper or relevant to the determination of the annual rental value he can determine the annual rental value of the premises by applying the appropriate method and the tax can be levied on the petitioners on the basis of such rateable value. The latter alternative would do fully justice to the petitioners without causing grave and undue hardship which would inevitably result to the Corporation if the former alternative were adopted. We therefore refuse to entertain these grounds in the exercise of our jurisdiction under Article 226 of the Constitution. They can be decided by the Chief Judge in the appeals preferred by the petitioners. . ( 21 ) RE: Ground (K): That takes us to the next ground of attack which is directed against the special rate of 9 percent in respect of conservancy tax. This special rate of 9 per cent determined by the Corporation at the meeting held on 31/01/1968 for certain special kinds of properties. Now the power of the Corporation to determine rates of tax is to be found in Section 99 and it was in purported exercise of this power that the special rate of 9 per cent was determined by the Corporation. That was also the stand taken up by the Corporation in paragraph 23 of the affidavit filed by N. R. Desai in reply to the petitions. The question which therefore arise for consideration is whether this determination of the special rate of 9 per cent was within the power of the Corporation under Section 99 Could the Corporation fix two different rates one a general rate of 3 per cent for all properties other than those governed by the special rate and the other a special rate of 9 per cent for certain special kinds of properties? Now it is no doubt true that there is nothing in Section 99 which prohibits the Corporation from fixing different rates for different classes of properties but that is not decisive of the question It is well-recognised rule of interpretation that every statute must be considered ex visceribus actus. Now it is no doubt true that there is nothing in Section 99 which prohibits the Corporation from fixing different rates for different classes of properties but that is not decisive of the question It is well-recognised rule of interpretation that every statute must be considered ex visceribus actus. No part of a statute should be construed in isolation for the intention of the law-maker is to be found not in one part of the statute or another but in the entire enactment and that intention can best be gathered by viewing a particular part of the statute not detached from its context in the statute but in connection with its whole context If applying this canon of construction we look at the scheme of taxation embodied in the Act and particularly Sections 129 and 137 it is clear that only one late of conservancy tax can be fixed by the Corporation and not different rates for different classes of peoperties. ( 22 ) THE decision of the Supreme Court in Patel Gordhandas v. Municipal Corporation. Ahmedabad (1964) 2 S. C. R. 608 shows that according to the uniform legislative history and practice in India tax on lands and building imposed by local authorities is always on the annual value. The basis of the tax is the annual value of the lands or buildings on or in connection with which it is imposed. This is also true of the tax under the Corporations Act. The property taxes which constitute in the aggregate the tax on lands and buildings under the Corporations Act are imposed on the basis of rateable value Section 129 casts a duty on the Corporation to impose property taxes only as a percentage of rateable value and in no other manner. Rateable value of the property or in other words its capacity to earn rent is made the basis of the tax. For the purpose of rating the Act does not recognise any special feature of the property except in so far as it is reflected in its capacity to earn higher or lower rent. The only factor which is Commissioner is required to lake into account and. It which he is restricted is the rateable value. For the purpose of rating the Act does not recognise any special feature of the property except in so far as it is reflected in its capacity to earn higher or lower rent. The only factor which is Commissioner is required to lake into account and. It which he is restricted is the rateable value. The size of the property its location the use to which it is being put and such other factors are relevant only in so far as and to the extent that they go into the determination of the rental value. Once the rental value is arrived at the differences based on these factors will be found reflected in the rental value and thereafter they cannot again be made the basis of differential treatment in the matter of rates If these factors are taken into account over again the lax would cease to be a lax based on rateable value it would be a lax levied with reference to these factors But the tax is based on rateable value and no other factor except rateable value can therefore be taken into account. That indeed is the equity of the lax. Different properties give different amounts of tax according to their rateable value It is therefore inherent in the nature of the tax based as it is on rateable value that different rates cannot be prescribed for different classes of property according to the nature of their use size location etc. or according to the magnitude or volume of the service required to be given by the Corporation unless of course there is a clear provision to that effect in the statute. or according to the magnitude or volume of the service required to be given by the Corporation unless of course there is a clear provision to that effect in the statute. ( 23 ) THIS view which we are taking on the basis of the nature of the property taxes becomes incontrovertible when we turn to consider the provision in regard to conservancy tax Conservancy tax says Section 129 Clause (b) shall be levied on buildings and lands at such percentage of their rateable value as will in the opinion of the Corporation suffice to provide for the collection removal and disposal by municipal agency of all excrementitious and polluted matter from privies urinals and cess-pools and for efficiently maintaining and repairing the municipal drains constructed or used for the reception of conveyance of such matter The percentage of rateable value at which conservancy tax shall be levied is therefore to be fixed by the Corporation having regard to the total cost of conservancy service supplied by the Corporation. The burden of the total cost of conservancy service is to be divided according to rateable value and therefore the percentage fixed by the Corporation must be uniform and it cannot vary from one class of properties to another. The Corporation cannot fix different percentages for different classes of properties according to the volume of conservancy service supplied by the Corporation for that would be dividing the burden of total cost of conservancy service not on the basis of rateable value but on the basis of conservancy service rendered and that would not be justified by the opening part of Section 129 Clause (b) which does not refer to any other factor except rateable value for the purpose of levy of conservancy tax Moreover such an action would favour more of a fee than of a tax It may also be noted that where the Legislature intended that the volume of conservancy service rendered by the Corporation should be a guiding factor in determining the percentage the Legislature has expressed itself clearly in so many terms in the last part of Section 129 Clause (b ). That provision says that the amount of conservancy tax to be levied in respect of any hotel club or other large premises may be specially fixed under Section 137 and when we turn to Section 137 we find that the power to fix a special percentage in respect of hotel club stable or other large premises is conferred on the Commissioner under sub-Section (1) and according to sub-Section (3) the special percentage is to be fixed with reference to the cost or probable cost of the collection removal and disposal by the agency of municipal conservancy staff of excrementitious and polluted matter from the premises The inclusion of this provision in the last part of Section 129 Clause (b) clearly suggests that where a special rate is to be fixed having regard to the additional burden of conservancy service which may have to be borne by the Corporation in respect of certain kinds of premises it may be done by the Commissioner under Section 137 sub-Section (1) but the Corporation cannot take into account the additional burden of conservancy service in respect of any particular class of premises and fix special rate with reference to the cost of such additional burden it can only fix a general rate having regard to the total cost of conservancy service ( 24 ) THERE is also inherent evidence in Section 129 itself which goes to support this construction If the contrary construction contended for on behalf of the Corporation were accepted it would be altogether unnecessary to provide in Section 129 Clause (c) that the general tax may be levied if the Corporation so determines on a graduated scale So also it would be unnecessary to enact the proviso to Section 129 Clause (c) empowering the Corporation to fix a higher rate of general tax in respect of premises in which any particular class of trade or business is carried on than that fixed in respect of other premises The contention of the Corporation would render these provisions futile and superfluous. The fact that an express provision had to be made in Section 129 Clause (c) and in the proviso to that clause empowering certain differentiation in the matter of fixing rates supports the view that in cases not fading within those provisions different rates cannot be fixed by the Corporation for different classes of properties. The fact that an express provision had to be made in Section 129 Clause (c) and in the proviso to that clause empowering certain differentiation in the matter of fixing rates supports the view that in cases not fading within those provisions different rates cannot be fixed by the Corporation for different classes of properties. The resolution of the Corporation fixing a special rate of 9 per cent for conservancy tax in respect of special kinds of properties must therefore be held to be outside the power of the Corporation under Section 99. ( 25 ) THE question then arises whether the fixation of special rate of 9 per cent can be justified under Section 137 sub-Section (1 ). We have already seen that Section 137 sub-Section (1) empowers the Commissioner whenever he thinks fit to fix the conservancy tax to be paid in respect of any hotel club stable or other large premises at such special rate as shall be generally approved by the Standing Committee. The power to fix the special rate is conferred on the Commissioner and not on the Corporation and therefore obviously the resolution of the Corporation dated 31/07/1968 cannot avail the respondents. But said the respondents the proposal which ultimately culminated in the resolution of the Corporation dated 31st January 1968 emanated from the Commissioner and it was the Commissioner who proposed the special rate of 9 per cent and this proposal was approved by the Standing Committee and the requirement of Section 137 sub-Section (1) that the special rate must be fixed by the Commissioner and approved by the Standing Committee was therefore substantially fulfilled. Now if we look at the budget estimate (A) for the official year 1967-68 and particularly the proposals at pages 50-51 it would appear that the provision under which the Commissioner purported to act was Section 95 Clause (d) and not Section 137 sub-Section (1 ). But in considering a question of this kind which involves validity of municipal taxation we may not adopt a technical and formalistic approach which subordinates substance to the form and if it is otherwise possible to do so we may accepting a liberal approach regard the proposal of the Commissioner as fixation of the special rate of 9 per cent by him within the meaning of Section 137 sub-Section (1 ). The reference to Section 95 Clause (d) and the phraseology used by the Commissioner need not be given undue weight and so long as it appears that the Commissioner has applied his mind to the problem it may not be inappropriate to say that the Commissioner has fixed the special rate of 9 per cent. But the difficulty in the way of the Corporation lies in the fact that it is not possible to say that the Commissioner applied his mind to the problem from the point of view of Section 137 sub-Section (1 ). The special rate contemplated under that provision has to be fixed by the Commissioner with reference to the cost or probable cost of the collection removal and disposal by the agency of municipal conservancy staff of excrementitious and polluted matter from the premises. That is the requirement of Section 137 sub-Section (3) and the Commissioner has to apply his mind to this requirement while fixing the special rate. This does not appear to have been done by the Commissioner. There is nothing on record to show that the Commissioner applied his mind to the requirement of Section 137 sub-Section (3 ). The Commissioner has not chosen to file an affidavit stating that though he purported to act under Section 95 Clause (d) in proposing the special rate of 9 per cent he decided upon the special rate having regard to the requirement of Section 137 sub-Section (3 ). There is also no statement to that effect in the various affidavits filed in the proceedings on behalf of the Corporation and indeed no such statement could be made in the affidavits as it would be completely belied by the statement at pages 50-51 of the budget for 1967-68. This statement clearly shows that it was the total cost of conservancy service which was taken into consideration by the Commissioner and not the cost or probable cost of conservancy service to be rendered to the special kinds of properties. This statement clearly shows that it was the total cost of conservancy service which was taken into consideration by the Commissioner and not the cost or probable cost of conservancy service to be rendered to the special kinds of properties. The same position also obtains in regard to the official years 1968-69 It is therefore not possible to justify the fixation of special rate of 9 per cent by reference to Section 137 sub-Section (1) The Commissioner did not in fact exercise the power under Section 137 sub-Section (1) and even if he did the exercise of the power was invalid since the requirement of Section 137 sub-Section (3) was not satisfied. The fixation of special rate of 9 per cent for conservancy lax must therefore be held to be ultra vires and void. This view taken by us renders it unnecessary to examine the challenge against the constitutional validity of Section 137 sub-Section (1) and we do not express any opinion upon it. ( 26 ) RE: Ground (L): It will be noticed from the scheme of taxation which we have already discussed that the assessment of property taxes is left entirely to the Municipal Commissioner who is the principal executive officer of the Corporation. The only guidance in the Act regarding assessment which is provided to him is that contained in the definition of rateable value Looking to the definition it is clear that the process of assessment would not be a simple one and in many cases it would be difficult and complicated Where for example there is no evidence of actual or comparable rent some other method has to be selected; its logical relevance has to be examined; it has then to be applied to the factual evidence and ultimately an estimate of rental value has to be made The entire process involves a large element of discretion and persons judgment and valuable rights of citizens would depend upon a proper exercise of this function Leaving this whole process entirely to the principal executive officer of the taking body without any right of appeal or reference to an independent judicial forum would clearly be unreasonable. Section 406 sub-Section (1) therefore provides for an appeal against rateable value as also against lax to a judicial forum. Section 406 sub-Section (1) therefore provides for an appeal against rateable value as also against lax to a judicial forum. But Clause (e) of Section 406 (1) creates a clog on the right of appeal by providing that an appeal against tax or even an appeal against rateable value preferred after the municipal bill is presented shall not be heard unless the amount claimed from the appellant is deposited with the Commissioner. It is therefore clear that an assessees appeal against tax would not be heard on merits at all if he does not deposit the amount of tax assessed by the Commissioner howsoever wrong improper or excessive may be the assessment. It is equally clear that even an appeal against rateable value would not be heard in the absence of deposit if it is preferred after a bill for the tax is presented. Thus in cases such as some we have before us the right of appeal would become infructuous in case of those assessees who do not or cannot deposit the amount of tax claimed from them howsoever illegally improperly or excessively the amount may have been assessed by the Commissioner The question is whether such a provision enacted in Section 406 (1) (e) can stand the scrutiny of Article 14 of the Constitution. ( 27 ) CLAUSE (e) of Section 406 sub-Section (1) classifies the appellants against lax and rateable value into two classes (1) those who deposit the amount tax assessed by the Commissioner; and (2) those who do not whatever be the reason for non-deposit It then proceeds to give different treatment to the two classes. Those who belong to the former class are entitled to have their appeal heard while those who belong to the latter are not given such right and they are in effect deprived of a right of appeal The basis of classification is the deposit of the tax the legality or propriety of which is impugned in the appeal. The question is whether this basis has any rational nexus with the object of the provision for appeal or in other words from the point of view of the object of providing an appeal is there any reasonable justification for making this distinction for giving the right of appeal to one class and denying it to the other ? We do not think so. We do not think so. The object of providing an appeal is to give a remedy to an assessee against illegal improper or excessive exaction of tax so that he can get the legality propriety or correctness of the tax tested in a judicial forum and only such tax as may be payable according to law may be levied upon him It is difficult to see what nexus the deposit of the tax assessed has with this object How does the deposit of the tax in any way bear upon this object either by way of furthering it or impeding it ? The deposit of the tax is a totally irrelevant consideration so far as the securing of this object is concerned. The legality or propriety of the tax which is to be tested in the appeal does not depend on the deposit of the tax nor does the deposit of the tax in any way facilitate the disposal of the appeal We can well imagine other bases of classification which would have a reasonable relation to the object of appeal For example a condition may be provided that no appeal shall be entertained unless a certain fee is paid. The classification made by this condition into those who have paid fees and those who have not would have a rational nexus to the object of providing an appeal since it would eliminate frivolous appeals So also a condition may be imposed which may have the effect of facilitating the smooth course of the appeal such a condition also would have a rational relation to the object of provision for an appeal But the deposit of the tax which is impugned in the appeal has no relation to the object for which the appeal is provided. To emphasize this argument let us lake a case where there are two appellants who won identical properties and who are assessed by the Commissioner on the same basis in respect of their properties Suppose one of them has deposited the tax while the other has not. Though the appeals of both involve identical points and if one succeeds the other logically must the appeal of the appellant who has deposited tax will succeed while the appeal of the appellant who has not deposited the tax will be dismissed Would this advance the cause of justice ? Though the appeals of both involve identical points and if one succeeds the other logically must the appeal of the appellant who has deposited tax will succeed while the appeal of the appellant who has not deposited the tax will be dismissed Would this advance the cause of justice ? Would it serve the object of providing an appeal which is to enable the assessee to have the legality propriety or correctness of the tax tested in a judicial forum so that the proper tax according to law and no more is exacted from him ? As a matter of fact this object would be defeated for the appellant who has not deposited the tax would not be able to upset the illegal improper or excessive assessment made against him not because there is no merit in his appeal but because he has not paid the tax which is illegal improper or unjust and the propriety or legality of which is to be adjudicated upon in the appeal It would amount to meting out unequal treatment to him though from the point of view of the appeal there is no difference between him and the appellant who has deposited the tax. The difference between them is in relation to a feature which has no relevance to the provision for appeal. The provision for deposit of the tax as a condition of hearing of the appeal must therefore be held to be discriminatory and violative of the equal protection clause of the Constitution. ( 28 ) IT was however contended on behalf of the Corporation that property taxes constitute a large bulk of the revenue of the Corporation and it is therefore absolutely necessary that the property taxes when assessed should be recovered by the Corporation without delay. The provision for deposit of the tax as a condition of hearing of the appeal is in the circumstances a necessary provision for ensuring speedy recovery of the tax and its reasonableness in the context of a fiscal statute like the present cannot be questioned. It is a necessary evil said the Corporation justified by the consideration of necessity of speedy recovery of tax. This argument though at first blush attractive is in our opinion not well-founded. It sacrifices the principle of equality before law at the alter of practical convenience. It is a necessary evil said the Corporation justified by the consideration of necessity of speedy recovery of tax. This argument though at first blush attractive is in our opinion not well-founded. It sacrifices the principle of equality before law at the alter of practical convenience. Assessment of tax and its recovery are two entirely different and distinct processes. The appeal against assessment has the sole object of testing the validity of the tax assessed in a judicial forum. Such an appeal has no relation whatever to the recovery of the tax. Speedy recovery of the tax the legality or propriety of which is yet to be tested cannot be a germane consideration so far as the appeal is concerned. It is no doubt true that the object of the tax is to find money for the Corporation by proper and legal imposition assessment and recovery of tax and in that sense speedy recovery of the tax may be taken as a part of the object of the legislation; but a measure for speedy recovery which would result in denial of the right of appeal and defeat the object of the provision for appeal cannot be regarded as a reasonable from the point of view of the object of the appeal. The provision for deposit of the tax cannot be said to be reasonable by calling it a necessary evil. If it is an evil in the sense that it has no reasonable nexus to the object of the law its alleged necessity cannot cure it. Moreover as pointed out above its necessity is to be judged from the point of view of the appeal. A provision for deposit of the tax cannot be said to be necessary for hearing and deciding the appeal. The hearing of the appeal would not in any manner be facilitated by the deposit of the tax. If recovery of the tax is necessary not for appeal but for administration the Corporation can always proceed to recover the tax. But that does not justify the denial of the right of appeal to those who do not deposit the tax. We may point out here that the provision which permits recovery of tax during the pendency of the appeal is entirely distinct from the provision which directs the appellate authority to dismiss the appeal if the deposit of the tax is not made. We may point out here that the provision which permits recovery of tax during the pendency of the appeal is entirely distinct from the provision which directs the appellate authority to dismiss the appeal if the deposit of the tax is not made. Provision of the former kind would be a valid provision for it does not make any unfair or unjust discrimination. But it is the latter kind of provision which is objectionable from the point of view of the equality clause for it introduces a condition which classifies the appellants without there being any rational nexus between the basis of the classification and the object of the law. Section 406 sub-Section (2) Clause (e) must therefore be regarded as violative of the equal protection clause contained in Article 14 of the Constitution. ( 29 ) WE may point out that Section 406 sub-Section (2) Clause (e) is intimately connected with Rule 42 They form part of an integral scheme of recovery of tax. Since Clause (e) of Section 406 sub-Section (2) provides that an appeal against tax shall not be heard unless the tax is deposited with the Commissioner Rule 42 says by negative implication that no proceeding for recovery of the tax by issue of warrant shall be taken by the Commissioner if an appeal is preferred against the tax. If an appeal is preferred against the tax the amount of the tax would be recovered by the Commissioner as a result of the provision for deposit contained in Section 406 sub-Section (2) Clause (e) and therefore the Legislature has provided in Rule 42 that when an appeal is preferred against the tax no proceeding for recovery of the lax shall be taken. Now if Section 406 sub-Section (2) Clause (e) is void and the assessee is entitled to have his appeal against the tax heard without depositing the tax then obviously the raison detre for Rule 42 ceases to exist. Then there is no reason why the Commissioner should not be entitled to proceed to recover the tax from the assessee even if he has preferred an appeal against the lax. It must therefore logically follow that if Section 406 sub-Section (2) Clause (e) is bad the limitation in Rule 42 that proceeding for recovery can be taken only if no appeal is filed against lax must also equally be held to be void. It must therefore logically follow that if Section 406 sub-Section (2) Clause (e) is bad the limitation in Rule 42 that proceeding for recovery can be taken only if no appeal is filed against lax must also equally be held to be void. ( 30 ) RE: Ground (M): We now go on to consider the next ground which challenges the inclusion of certain items of plant and machinery in the determination of the annual rateable value eligible to properly tax. The argument of the petitioners was that the items shown in the list produced on behalf of the petitioners and marked Exhibit A were items of plant and machinery and therefore as held by the Supreme Court in New Manekchowk Mills case they were not rateable and their annual rateable value could not be included in determining the property taxes leviable on the lands and buildings of the petitioners. The petitioners pointed out that these items had always been treated by the Corporation as plant and machinery right from 1952 down to 1966-67 and they were included in the classes of plant and machinery specified by the Commissioner with the approval of the Corporation under Rule 792) as it stood prior to its amendment even since 1952 and their annual rateable value was included only because by reason of the specification by the Commissioner under Rule 7 (2) they were deemed to form part of the land and buildings of the petitioners. But Rule 7 (2) was now declared unconstitutional by the Supreme Court and it was held that it was not constitutionally permissible to the Corporation to levy properly taxes on plant and machinery and therefore these items contended the petitioners were not rateable and the. Deputy Municipal Commissioner had no jurisdiction to assess and levy property taxes on them. But Rule 7 (2) was now declared unconstitutional by the Supreme Court and it was held that it was not constitutionally permissible to the Corporation to levy properly taxes on plant and machinery and therefore these items contended the petitioners were not rateable and the. Deputy Municipal Commissioner had no jurisdiction to assess and levy property taxes on them. The Corporation agreed that these items could not be taxed unless they fell within the description of land or building and also conceded that in the past these items had not been taxed as land or building but had been treated as plant and machinery and taxes as such by reason of the specification by the Commissioner under Rule 7 (2); but said the Corporation the doctrine of res judicata had no application here and if the Deputy Municipal Commissioner found in the course of assessment for the official years 1967-68 and 1968 that these items fell within the category of land or building he was not precluded from assessing them to tax. The Corporation also relied on the test of annexation and pointed out that if this test was applied the disputed items were clearly part of land or building and rateable as such. These rival contentions raised an interesting question of law which we will now proceed to decide. We will first examine the question on principle. 31 Since the property taxes under the Corporation Act constitute in the aggregate taxes on lands and buildings their scope and ambit must be judged by reference to Entry 42 in List It of the Seventh Schedule to the Government of India Act 1935 This Entry empowers the Provincial Legislature to impose taxes on lands buildings hearths and windows The property taxes under the Corporations Act cannot therefore be imposed on anything which does not fall within the words lands and building the other words namely hearths and windows being inapplicable Now the words lands and buildings are not terms of art and they must be given the common meaning which they have in the ordinary use of the English language. The Legislature cannot be giving an extended or artificial definition of the words lands and buildings authorize a local authority to impose a tax on something which is not land or building as commonly understood but which may be land or building according to the artificial definition given by the Legislature. The Legislature cannot be giving an extended or artificial definition of the words lands and buildings authorize a local authority to impose a tax on something which is not land or building as commonly understood but which may be land or building according to the artificial definition given by the Legislature. It would not therefore be right to rely on the definition of land or building given in the Corporations Act for the purpose of determining as to what are the premises on which property taxes can be constitutionally levied by the Corporation. The definition of land given in Section 2 (30) is an extended definition in that it includes not only land simpliciter what is ordinarily understood as land but also things attached to the earth so also the definition of building in Section 2 (51 is an artificial definition for it includes every enclosure or structure which would not necessarily in all cases be a building as understood in ordinary parlance In order therefore to determine whether the Deputy Municipal Commissioner was right in levying property taxes on the disputed items we will have to consider whether the disputed items are land or building within the ordinary connotation of these terms. The Deputy Municipal Commissioner of course proceeded on the basis of the artificial definition of building contained in Section 2 (5) and held that the disputed items were buildings or part of buildings as they were structures of brick and mortal or of R. C. C. but this approach was clearly erroneous He should not have allowed himself to be guided by the artificial definition of building given in Section 2 (5) but should have considered whether according to the ordinary common meaning of the words land and building the disputed items were land or building If judged by this test they were land or building the Corporation had power under the constitutional Entry to levy property taxes on them and their annual rateable value could be legitimately included in the final assessment. ( 31 ) THE Corporation however relied on the test of annexation for the purpose of determining whether the disputed items were land or building and its argument was that this test was supported by the decision of a Division Bench of the Bombay High Court in Poona Municipal Corporation v. Shankar 60 Bom. L. R. 25. ( 31 ) THE Corporation however relied on the test of annexation for the purpose of determining whether the disputed items were land or building and its argument was that this test was supported by the decision of a Division Bench of the Bombay High Court in Poona Municipal Corporation v. Shankar 60 Bom. L. R. 25. This test which was pressed for our acceptance emphasized two aspects one the nature and extent of degree of annexation to the building and the other the object intention or purpose of the annexation If the thing in question is so solidly attached to the building that by its attachment it has become part and parcel of the building itself and it is attached not for enjoyment of it as a separate object but for permanent enjoyment of the building it would be part of the building Applying this test said the Corporation the disputed items were part of building and were therefore rateable as such. Now it is undoubtedly time that the decision of the Bombay High Court in Poona Municipal Corporation v. Shankar does formulate this test for the purpose of determining as to when a thing attached to a building can be said to be part of the building but we do not think this decision can stand with the decision of the Supreme Court in New Manekchowk Mills case and it must be held to be impliedly overruled. The question which arise before the Supreme Court in New Manek chowk Mills case was whether certain items of plant and machinery which were specified by the Commissioner with the approval of the Corporation under Rule 7 (2) were lightly included in the computation of the annual rental value for the official years prior to 1967-68. The petitioners challenged the ratability of these items of plant and machinery on the ground that it was not competent to the Legislature by artificial extension of the meaning of the words land and building to include plant and machinery for levy of property tax even if they were attached to the earth or permanently fastened to anything attached to the earth. It was undoubtedly true said the petitioners that entries in legislative lists must be construed widely but even then no artificial meaning or arbitrary extension of the meaning of the words in entry could be allowed and plant and machinery could not be taxed in the garb of land or building. This argument was accepted by the Supreme Court and it was held plant and machinery could not be brought within the ambit of the taxing power of the Corporation by extending the meaning of the words land and building which occur in the relevant legislative entry. Mitter J. speaking on behalf of the Supreme Court pointed out that according to uniform legislative practice in India plant and machinery were excluded from ratability and therefore when the words lands and buildings were used in the legislation entry they could not be intended to include plant and machinery and it was not proper to interpret these words in an extended sense. The learned Judge observed that the position of law in England prior to the enactment of the Rating and Valuation Act 1925 was that the rateability of plant and machinery depended on legal decisions of which is comprehended by the term land and these decisions were based on principles applicable to fixtures generally of which rateable plant and machinery were one kind and after referring to this position the learned Judge proceeded to state in paragraph 24 at page 1812 of the report:"it will therefore be noticed that the rateability of plant and machinery depended on judicial decision as to the meaning of the word land. There is no reason why we should accept those decisions as to which was comprehended by the term land when we find in our statutes plant and machinery being excluded therefrom". The Supreme Court thus negatived the argument that plant and machinery could be included for the purpose of rateability by adopting an extended meaning of the word land and what the Supreme Court said in relation to land must also apply equally in relation to building. The twofold test adopted by the Bombay High Court in Poona Municipal Corporation v. Shankar (supra) for the purpose of including within the word building things annexed to the building and thereby giving an extended sense to the word building must therefore be held to be negatived by the Supreme Court. The twofold test adopted by the Bombay High Court in Poona Municipal Corporation v. Shankar (supra) for the purpose of including within the word building things annexed to the building and thereby giving an extended sense to the word building must therefore be held to be negatived by the Supreme Court. The Supreme Court read the words land and building in the constitutional entry in their ordinary natural sense and held that plant and machinery would not be rateable as land or building on the ground that they were annexed to the land or building and were therefore on principles applicable to fixtures generally part of land or building. This view was reemphasized by the Supreme Court in paragraph 26 of the judgment at page 814 where after referring to the principle laid down by the House of Lords in Kirby v. Hunslet Union 190 A. C. 43 that the rating authority must value the hereditament equipped with machinery and plant as it appears to the eye or in other words ask itself the question: Well looking at the whole of the place such and such is the rent which would probably be paid by a tenant from year to year for such an establishment as this Miter J. said:"the problem in our case is not quite the same. The hyphothetical tenant would certainly take into consideration the machinery in the building if he was going to rent it for the purpose of running a textile factory. But if the State Legislature had power to levy a tax only on land and buildings we do not see how the same could be levied on machinery contained in or situate on the building. even though the machinery was there for the use of the building for a particular purpose". These observations are clearly destructive of the second limb of the twofold test adopted by the Bombay High Court. The decision of the Bombay High Court must therefore be regarded as impliedly overruled by this decision of the Supreme Court. . . . even though the machinery was there for the use of the building for a particular purpose". These observations are clearly destructive of the second limb of the twofold test adopted by the Bombay High Court. The decision of the Bombay High Court must therefore be regarded as impliedly overruled by this decision of the Supreme Court. . . . ( 32 ) THIS discussion shows that the correct lest which the Deputy Municipal Commissioner should have applied for the purpose of determining whether the disputed items fell within the category of lands or buildings exigible to property tax was whether these items could be said to be lends or buildings within the ordinary connection of these words according to common English usage. That was in fact the test which Court of Appeal applied in Shell-Mex and B. P. Ltd. v. Childs 9 Rydes Rating Cases 182 for the purpose of determining whether three oil storage tanks comprised in a hereditament were buildings. Lord Evershed M. R. pointed out that the word building is to be given its ordinary sense not unduly restricted not unduly expanded the ordinary sense in which as a matter of the English language we would use that word. He deprecated the attempts made in the past to define the word building and without himself making an attempt to define that word he observed that in cases such as this the question always is: Do you in the ordinary use of the English language describe what I have called the tanks. . . as building?. The Deputy Municipal Commissioner was therefore clearly in error in determining the rateability of the disputed items by reference to the artificial definition of building in Section 2 (5) and even the twofold test formulated by the Bombay High Court in Poona Municipal Corporation v. Shankar (supra) was not a correct test for the purpose of deciding this question. The Deputy Municipal Commissioner was therefore clearly in error in determining the rateability of the disputed items by reference to the artificial definition of building in Section 2 (5) and even the twofold test formulated by the Bombay High Court in Poona Municipal Corporation v. Shankar (supra) was not a correct test for the purpose of deciding this question. On this view we should have ordinarily quashed the decision of the Deputy Municipal Commissioner in 60 far as it seeks to assess and levy property tax on the disputed items and directed the Commissioner to examine the question of rateability of the disputed items on the correct basis indicated above but as we have already pointed out above it would not now be competent to the Commissioner to reassess and levy property taxes and moreover this question can always be agitated by the petitioners in the appeals preferred by them before the Chief Judge. We therefore do not propose in the exercise of our discretion under Article 226 of the Constitution to interfere with the decision of the Deputy Municipal Commissioner on this ground. It would be for the Chief Judge in the appeals preferred by the petitioners to decide whether the disputed items are rateable as land or building according to the ordinary acceptation of these words in the English language. If they are they would be rateable but not otherwise. ( 33 ) RE: Ground (N): We now pass on to consider the last ground of challenge. The argument of the petitioners under this ground was thai the authority entrusted by the Legislature with the task of investigating and disposing of complaints and determining the rateable value and the amount of property tax under Rule 18 was the Commissioner and not the Deputy Municipal Commissioner and therefore the decision of the Deputy Municipal Commissioner disposing of the complaint of the petitioner and determining the rateable value and the amount of property tax if each case was without authority and void. Now there can be no doubt that the power to investigate and dispose of the complaint made by an assessee and to determine the rateable value and the amount of property tax is conferred under Rule 18 on the Commissioner and not on the Deputy Municipal Commissioner and the definition of Commissioner in Section 2 sub-Section (9) also does not include Deputy Municipal Commissioner. But the contention of the Corporation was that the power of the Commissioner under Rule 18 was deputed by him to the Deputy Municipal Commissioner by virtue of Office Order No. 1113 dated 2 1/04/1966 purported to be made under Section 49 and the Deputy Municipal Commissioner had therefore power to investigate and dispose of the complaints and the impugned decision of the Deputy Municipal Commissioner in each case was within jurisdiction. This contention raises a question whether the power under Rule 18 can be validly deputed by the Commissioner under Section 49 and that depends on the true interpretation of that Section. Section 49 reads as follows:"49 (1) A Deputy Municipal Commissioner or Assistant Municipal Commissioner shall subject to the orders of the Commissioner exercise such of the powers and perform such of the duties of the Commissioner as the Commissioner shall from time to time depute to him;provided that the Commissioner shall inform the Corporation of the powers and duties which he from time to time deputes to a Deputy Municipal Commissioner or Assistant Municipal Commissioner. (2) All acts and things performed and done by a Deputy Municipal Commissioner or Assistant Municipal Commissioner during his tenure of office and by virtue thereof shall for all purposes be deemed to have been performed and done by the Commissioner. One striking feature which emerges on a plain reading of this Section is that unlike Section 6a of the Bombay Municipal Corporations Act 1888 it does not specify any particular powers or duties which may be deputed by the Commissioner. If the Section has specifically referred to Rule 18 and provided for deputation of the power under that Rule in express terms there would have been an end of controversy and no argument would have been possible that such power cannot be deputed. But the section is in general terms and says that the Deputy Commissioner shall exercise such powers and perform such duties as the Commissioner shall from time to time depute to him. The question therefore arises: What kinds of powers and duties can be deputed by the Commissioner can a power of the kind referred to in Rule 18 be deputed by him? To answer this question it is necessary first to apprehend properly the true nature of the power under Rule 18. The question therefore arises: What kinds of powers and duties can be deputed by the Commissioner can a power of the kind referred to in Rule 18 be deputed by him? To answer this question it is necessary first to apprehend properly the true nature of the power under Rule 18. ( 34 ) RULE 18 confers power and it also impose duly on the Commissioner to investigate and decide complaints made by assessees against the initial entries in the assessment book. The exercise of the power results in an order being made determining amongst other things the rateable value of the premises. Now the amount of tax payable by an assessee depends directly upon the rateable value so fixed and therefore the decision of the Commissioner vitally affects the valuable rights of persons owning or occupying lands and buildings. This decision making as pointed out by Earl of Halsbury in Mersey Docks case (supra) is by no means an easy one. The Act does not lay down any particular method of arriving at the rateable value. The power of the Commissioner therefore includes the power (i) to select a logically relevant and appropriate method for determining the rateable value; (ii) to analyse sift and weigh evidence which may include highly technical expert evidence and which may often be conflicting; (iii) from the evidence adduced to find facts necessary for the application of the selected method; and (iv) to determine questions of law relating to the liability of the person to pay lax including the question whether they qualifies for exemption from lax. These are Difficult and complicated questions involving a large element of discretion and personal judgment at every stage. Moreover these questions are to be determined not only fairly and impartially but also judicially. Having regard to the nature of the power namely that it is a power to assess lax including determination of liability to tax it is clear that the Commissioner is under a duty to act judicially while exercising the power and the power is a quasi-judicial one. See the observations of Sinha C. J. at page 552 of the judgment in K. T. Moopil Nair v. State of Kerala A. I. R. 1961 S. C. 552 and also State of Orissa v. Binapani Dei A. I. R. 1967 S. C. 1269. See the observations of Sinha C. J. at page 552 of the judgment in K. T. Moopil Nair v. State of Kerala A. I. R. 1961 S. C. 552 and also State of Orissa v. Binapani Dei A. I. R. 1967 S. C. 1269. We may point out that in fact the quasi-judicial character of the power was assumed in New Manekchowk Mill s case vide para 28 of the judgment at page 1814 of the report. This quasi-judicial power involving exercise of a large measure of personal judgment and vitally affecting the property lights of citizens has been conferred by the Legislature upon the Commissioner who is the highest executive officer under the Act. The question is: Whether such a power is within the contemplation of Section 49: can it be deputed to another under that Section ? we do not think so. No judicial or quasi-judicial power can be deputed to another by an officer to whom it is entrusted under the statute unless the law expressly or by necessary implication permits it. There is high authority for this proposition in the observations of Hidayatullah J. as he then was in Bombay Municipal Corporation v. Dhondu A. I. R. 1965 S. C. 1486. The question in that case was whether the quasi-judicial functions of the Commissioner under Section 105-B to 105-E of the Bombay Municipal Corporation Act 1888 could be exercised by an officer of the Corporation empowered by the Commissioner in writing in that behalf under Section 68 of that Act. Hidayatullah J. speaking on behalf of the Supreme Court observed that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it and held that since in the case before him the amended Section 68 in so many terms included delegation of the functions of the Commissioner under Sections 105-B to 105-E there was clear indication that the judicial or quasi-judicial powers contained in Chapter VI-A were expressly intended to be delegated. This statement of the law was strongly relied upon on behalf of the petitioners and it was urged that since in the present case there was nothing in Section 49 to indicate expressly or by necessary implication that the quasi-judicial power of the Commissioner under Rule 18 was intended to be deputed it was not competent to the Commissioner to depute such power to the Deputy Municipal Commissioner. The learned Advocate General on behalf of the Corporation however sought to make a distinction between delegation and deputation and urged that this observation of the Supreme Court was confined in its application only to a case of delegation and it had no application where there was a provision empowering deputation as in the present case. This argument based on the distinction between delegation and deputation is without merit. It is no doubt true that there is a difference between delegation and deputation: When A delegates his power to B and B exercises the delegated power the order of B would in law amount to an order by A but in a case where a power is deputed by A to B an order made by B in exercise of the deputed power would be his own order and would not amount to an order by A. There is involved in delegation a certain element of agency so that the act of the delegate is the act of the delegating authority. But in deputation this element is absent: When a power is deputed there is a transfer of the power so that the person to whom it is deputed acts on his own in exercise of the power which belongs to him by virtue of the deputation and not as an agent of the authority deputing the power. This difference undoubtedly exists between the two legal concepts but we do not think it has any relevance to the applicability of the principle now under consideration. If the principle is well-founded that a judicial or quasi-judicial power cannot be delegated unless the law expressly or by clear implication allows it it must equally hold true that such a power cannot be deputed without a clear expression of legislative will to that effect. As a matter of fact the principle must apply more vigorously in case of deputation. The reason behind the principle seems to be that when a judicial or quasi-judicial power is entrusted by the Legislature to a particular person the Legislature does not ordinarily intend that it should be executed by anyone other than the person to whom it is entrusted unless of course the Legislature has made its intention clear by using appropriate language. The reason behind the principle seems to be that when a judicial or quasi-judicial power is entrusted by the Legislature to a particular person the Legislature does not ordinarily intend that it should be executed by anyone other than the person to whom it is entrusted unless of course the Legislature has made its intention clear by using appropriate language. This reason has greater relevance and cogency case of deputation than in case of delegation for in delegation the act of the delegate is that of the person to whom the power is given by the statute while in deputation what is done is to transfer the power or in other words to create a substitute whose act would be his own and not that of the person deputing the power. The objection in case of deputation has therefore greater force than in case of delegation and consequently it must be held that a judicial or quasi-judicial power cannot be deputed by the person to whom it is entrusted by the statute unless the law expressly or by clear implication allows its. We must therefore turn to inquire whether Section 49 contains any provision express or by necessary implication permitting deputation of the quasi-judicial power under Rule 18. ( 35 ) WE find that far from containing any such provision there is within Section 49 inherent evidence to show that the Legislature never intended that judicial or quasi-judicial power should be deputable by the Commissioner to the Deputy Municipal Commissioner. Section 49 says that the powers and duties deputed by the Commissioner under the Section are to be exercised and performed by the Deputy Municipal Commissioner subject to the orders of the Commissioner. The orders may be general or specific and they may be issued from time to time or at any time and at any stage of the proceeding before the Deputy Municipal Commissioner. The Section thus enables the Commissioner to control the exercise and performance of the powers and duties by the Deputy Municipal Commissioner at any and every stage. It makes it obligatory on the Deputy Municipal Commissioner to follow whatever orders the Commissioner may make while taking decisions in exercise of the power and performance of the duty deputed to him. Now it is impossible to conceive of interference and control by one officer in the performance of a quasi-judicial function by another. It makes it obligatory on the Deputy Municipal Commissioner to follow whatever orders the Commissioner may make while taking decisions in exercise of the power and performance of the duty deputed to him. Now it is impossible to conceive of interference and control by one officer in the performance of a quasi-judicial function by another. Such interference and control except by way of appeal is inherently inconceivable in the field of judicial or quasi-judicial decision. It is in fact a contradiction or negation of judicial or quasi-judicial power. If such interference and control were permissible it would make one officer ostensibly responsible for the decision of another: nay more it would compel an Officer in the exercise of his judicial function to act according to the dictates of another even if he is not satisfied about the correctness of the course dictated by that other. That would be wholly inconsistent with exercise of judicial or quasi-judicial power. The words subject to the orders of the commissioner are appropriate only in relation to deputation of administrative functions. They are singularly inappropriate in relation to deputation of judicial or quasi-judicial functions. These words are clearly indicative of the legislative intent that judicial or quasi-judicial functions of the Commissioner are not intended to be deputed and it must therefore be held that the deputation of the quasi-judicial power under Rule 18 was not within the contemplation of Section 49. 37 The learned Advocate General on behalf of the Corporation however contended that the investigation and disposal of the complaint by the Deputy Municipal Commissioner was really an exercise of the power by the Commissioner because under Section 49 sub-Section (1) the control of the Commissioner is very deep and by reason of the fiction enacted in Section 49 sub-Section (2) the act of the Deputy Municipal Commissioner would be deemed to be the act of the Commissioner himself. This argument was sought to be supported by reference to the decision of the Supreme Court in Pradyat Kumar v. C. J. of Culcutta A. I. R. 1956 S. C. 285. The petitioner in that case was the Registrar of the Calcutta High Court and disciplinary proceedings were adopted against him by the Chief Justice in respect of various charges served upon him. The petitioner in that case was the Registrar of the Calcutta High Court and disciplinary proceedings were adopted against him by the Chief Justice in respect of various charges served upon him. ( 36 ) THE Chief Justice did not himself hold an inquiry into these charges but deputed Das Gupta J. to make an inquiry and submit a report. Das Gupta J. made a full inquiry and submitted a report and agreeing with the report the Chief Justice issued a notice to the petitioner to show cause why he should not be dismissed from his post. The petitioner was given a hearing by the Chief Justice and after hearing the Chief Justice made an order dismissing the petitioner from his office. This order of dismissal was challenged by the petitioner inter alia on the ground that it was not competent to the Chief Justice to delegate the inquiry to Das Gupta J. and that he should have held the inquiry himself. This ground was rejected by the Supreme Court and the view taken was that so long as the Chief Justice himself exercised the power to dismiss there was nothing wrong in his deputing Das Gupta J. to inquire and report. Jagannadhadas J. observed in paragraph 11 at page 291 of the report: it is welt-recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides is the ultimate responsibility for the exercise of such power. . . the objection to the validity of the dismissal on the ground that the delegation of the enquiry amounts to the delegation of the power itself is without any substance and must be rejected We fail to see how this decision has any relevance to the question before us What was delegated or deputed by the Chief Justice in this case was merely to power to hold an inquiry and make a report-and there was no delegation or deputation of the power of dismissal which vested in the Chief Justice ( 37 ) THERE was therefore no question before the Court whether the power of the Chief Justice to dismiss could delegated by him to any other judge. The only point decided by the Supreme Court was that if there is an administrative officer who is under a duty to act judicially in exercising his power he can with a view to enabling him to exercise the power gather material by delegating or deputing the power to hold an inquiry to another officer But the Supreme Court took care to point out that the ultimate responsibility for the exercise of the power cannot be delegated unless the law specially so provides. This case bears no analogy to the present petitions before us. The power which is deputed in the present case is not a power merely to make an inquiry and submit a report but a power to decide the complaint and determine the rateable value and the amount of property tax. If this power can be validly deputed on a proper interpretation of Section 49 sub-Section (1) then the act of the Deputy Municipal Commissioner would of course be deemed to be the act of the Commissioner but that would be by reason of the fiction enacted in Section 49 sub-Section (2) and not because the Commissioner has himself exercised the power. The learned Advocate General attempted to argue that just as in the case before the Supreme Court it was the Chief Justice who exercised the power here also it is the Commissioner who exercised the power and therefore what has been done by the Deputy Municipal Commissioner must be equated with what was done by Das Gupta J. But this argument ignores the fact that in the case before the Supreme Court the Chief Justice in fact exercised the power which has vested in him while in the present petitions before us it was the Deputy Municipal Commissioner who exercised the power and only by reason of the fiction introduced in Section 49 sub-Section (2) the Commissioner could be deemed to have exercised the power his fiction however comes in to play only when there is exercise of power validly deputed under Section 49 sub-Section (1) and in the circumstances to uphold the decision of the Deputy Municipal Commissioner as valid on the ground that by reason of the fiction in Section 49 sub-Section (2) it is really the decision of the Commissioner himself would be to put the cart before the horse it would be begging the question which has to be answered namely whether the deputation of the power is valid under Section 49 sub-Section (1) ( 38 ) THE learned Advocate General then contended that the volume of work entrusted to the Commissioner under the Act is so large and stupendous that it would be impossible for him to personally investigate and dispose of complaints made by assessees and therefore Section 49 sub-Section (1) must be so construed as to make it possible for this work to be carried out by the Deputy of Assistant Municipal Commissioner. The Section must be construed said the learned Advocate General so as to prevent the mischief and advance the remedy and the interpretation must be such as to make the legislative intent effective and the section workable. Now it is no doubt true that there is a considerable amount of work entrusted to the Commissioner under the Act and the Commissioner cannot possibly carry out all this work himself. Delegation of deputation would therefore be inevitable and if the provision empowering delegation or deputation were challenged as unreasonable this might perhaps provide a good answer to the challenge. Delegation of deputation would therefore be inevitable and if the provision empowering delegation or deputation were challenged as unreasonable this might perhaps provide a good answer to the challenge. But when we are construing the scope and ambit of Section 49 sub-Section (1) and examining the question whether it permits deputation of a judicial of quasi-judicial power of the Commissioner this consideration of practical expediency or convenience cannot be allowed to override a more important principle which is based on the presumed intent of the Legislature. We are also not impressed by this argument of practical difficulty and inconvenience because the Commissioner can always depute the power to hold an inquiry and make a report to the Deputy Municipal Commissioner and then dispose of the complaint himself on the report of the Deputy Municipal Commissioner after hearing the assessee in the same manner as did the Chief Justice in Pradyat Kumars case (supra ). Moreover if the legislative intent is that the quasi-judicial power under Rule 18 should be deputable by the Commissioner there is nothing to prevent the Legislature from expressing itself clearly to that effect. But as the law stands today it is clear that a proper reading of the language of Section 49 sub-Section (1) in the light of the well-recognised principles of interpretation that the deputation of a judicial or quasi-judicial power such as the one under Rule 18 is not within the contemplation of the Section. The order of the Commissioner deputing the power under Rule 18 to the Deputy Municipal Commissioner is therefore ultra vires and void and the exercise of this power by the Deputy Municipal Commissioner must consequently be held to be illegal and without authority of law. ( 39 ) IN the result we allow the petitions and make the rule issued in each petition absolute by quashing and setting aside the orders passed by the Deputy Municipal Commissioner disposing of the complaints made by the petitioners as also the municipal bills the notices of demand and the distress warrant cards on the ground that the exercise of the power under Rule 18 by the Deputy Municipal Commissioner was without authority and void. We also issue a writ declare Section 406 sub-Section (2) Clause (e) ultra vires and void as violating Article 14 of the Constitution. We also issue a writ declare Section 406 sub-Section (2) Clause (e) ultra vires and void as violating Article 14 of the Constitution. We also declare Rule 42 ultra vires and void in so far as it provides that if an appeal is preferred against the tax warrant shall not issue for recovery of the amount of tax. We also issue a writ declaring the special rate of 9 per cent for conservancy lax in respect of hotels clubs stables theatres or cinemas or other large premises including mills and factories registered under the Factories Act where. fifty of more workmen are employed in manufacture in all the shifts to be invalid. The respondents will pay to the petitioners in each petition costs of such petition. ( 40 ) THE learned Advocate General appearing on behalf of the respondents applies for leave to appeal to the Supreme Court under Articles 132 (1) and 133 (1) (b) and (c) of the Constitution. Leave as applied for is granted. Order accordingly. .