JUDGMENT 1. THE subject matter of challenge in this application are certain assessments by the Corporation of Calcutta. The assessment orders are in a bundle annexed to the petition and marked as annexure "c" and the petitioners herein are Lake Cooperative Housing Society and its members. The said petitioners are owners of flats in what is a common phenomenon in Calcutta, now, viz. multi-storied building. The question is, on what basis would the owners of these multi-storied flats should be assessed. It is the case of the Corporation of Calcutta that these units should be assessed on the basis of the letting out value of the entire building treating the building as a unit of assessment and thereafter to apportion their liability among the different flat owners, that is to say, the entire building is treated as one unit of assessment and thereupon among the different co sharers in that unit of assessment, that is to say, the different owners of the flats the liability is to be divided. It is upon this basis that the Corporation of Calcutta has issued the rate bills which are impugned in the application under Article 226 of the Constitution. The case of the petitioners is that the petitioners, who are the flat owners of the building excepting the petitioner no. 1 should be valued as separate units of valuation under the provision of clause (1) of Sec. 174 of the Calcutta Municipal Act, 1951. 2. SOME of these aspects I had examined in one of the decisions, vis in. the case of Saha Institute of Nuclear Physics Co-operative Housing Society ltd. v. Corporation of Calcutta 88 Calcutta High Court Notes 889. There, the facts were slightly different. There the Society obtained a lease of a building consisting of several flats. One of the terms of the said lease provided that the lessee would be at liberty to sub lease the said flats to the members of the Society on terms and conditions approved by the Board of the Calcutta Improvement Trust. The Trust delivered possession of the flats to the Society and the petitioners, in that case, obtained possession of the flats allotted to them on certain terms and conditions from the Society. The Trust delivered possession of the flats to the Society and the petitioners, in that case, obtained possession of the flats allotted to them on certain terms and conditions from the Society. There the petitioners contended that they were entitled to be assessed under Clause (1) of Sec. 174 of the Calcutta Municipal Act, 1951 though they were lessees of the said flats. There, I hold that they were so entitled and the fact that they were lessees did not in any way defeat their right to claim as owners because, in the facts of the case, the lease, I hold, really amounted to ownership of the flat. Here, of course, no question of lease, as such, arises. The only material question, however, is whether different flats should be treated as separate units for valuation and thereafter their liability should be determined. This aspect has to be adjudged in the light of the provisions for the assessment of land and building, as provided in Chapter II of Part IV of the Calcutta Municipal Act, 1951. There, section 165 of the Act provides that a graduated consolidate rate on the annual valuation determined, under this Chapter, might be imposed by the Calcutta Corporation upon all 'lands and buildings' for the purpose of the Act and there also different rates have been mentioned. It was emphasized on behalf of the Corporation of Calcutta that valuation had to be imposed on land and building together. Therefore, the entire land and building had to be taken into consideration. In my opinion, however, it is material to bear in mind that this valuation upon land and buildings taken together is dependent upon the annual valuation. The question, therefore, is what should be the annual valuation. The annual valuation in a case where there has been separation of the all different portions of a building has been provided in Section 174 of the Act which reads as follows "174. The question, therefore, is what should be the annual valuation. The annual valuation in a case where there has been separation of the all different portions of a building has been provided in Section 174 of the Act which reads as follows "174. Valuation in case of land or building, subdivision into separate share :if during the currency of any period prescribed by sub-section (1) or sub-section (2) of section 172, the ownership of any land or building, or portion thereof, is subdivided into separate shares, the Commissioner may, in accordance with such rules as may be made by the Standing Finance Committee, on the application of any of the co-owners, divide the valuation of such land, building or portion in the following manner, namely : (i) If the ownership be subdivided into two or more shares without separate allotments, or if as the result of such subdivision there is a separate allotment of such land, building or portion into two or more separate portions which are not entirely independent and capable of separate enjoyment, the Commissioner may, if he thinks fit, apportion the valuation among the shareholders according to the value of their respective shares without assigning any separate number; (ii) If, as the result of such subdivision, there are separate allotments of such land, building or portion and if such allotments are made entirely independent and capable of separate enjoyment but not in conformity with the provisions of this Act, or of any rules or by-laws made there under, relating to buildings, the commissioner may, if he thinks fit, value such portions separately after assigning to them separate numbers under this Chapter: Provided that by such separate valuation the total valuation for the entire premises shall not be increased ; (iii) If such separate portions of such land, building or portion are, or are made, entirely independent and capable of separate enjoyment in conformity with the provisions of this Act, or of any rules or by-laws made there under, relating to buildings, the Commissioner shall value each portion separately by assigning a separate number thereto : provided that by such separate valuation the total valuation for the entire premises shall not be increased : provided also that such apportionment or separation of the numbers and valuation, as the case may be, shall remain in force and the consolidated rate shall be levied accordingly until the expiration of the said period. " 3. THEREFORE, the provisions covers as noted before, three different contingencies. The first contingency under which the petitioners base their claim is that the valuation is to be apportioned between different units. In my opinion, the apportioning has to be given the importance. But, at the same time, the valuation has to be apportioned in the context of Section 165. The valuation is in respect of the annual valuation and that would be apportioned. Therefore, the annual valuation must be separated if the first contingency comes into operation. It is true in that case separate number is not obligatory to be given to each different unit, as is obligatory under clause (iii) but optional again under clause (ii) upon fulfillment of certain conditions of section 174. My attention was drawn also in this connection to Section 185 of the said Act. It may incidentally be borne in mind that under the previous municipal Act, viz. Calcutta Municipal Act, 1923 Section 133 dealt with the situation and the said section was as follows : "133. My attention was drawn also in this connection to Section 185 of the said Act. It may incidentally be borne in mind that under the previous municipal Act, viz. Calcutta Municipal Act, 1923 Section 133 dealt with the situation and the said section was as follows : "133. If during the currency of any period prescribed by sub-section (1) of Section (3) the ownership of any land or building, or portion thereof is subdivided into separate shares, the Executive Officer may, on the application of any of the co-owners, divide the assessment of such land, building or portion in the following manner namely, (i) If the ownership be subdivided into two or more shares without separate allotments, or if as the result of such subdivision there is a separate allotment of such land building or portion into two or more separate portions, which are not entirely independent and capable of separate enjoyment, the executive Officer may, if he thinks fit, apportion the assessment among the share-holders according to the value of their respective shares without assigning any separate number ; (ii) if, as the result of such subdivision, there are separate allotments of such land, building or portion and if such allotments are made entirely independent and capable of separate enjoyment but not in conformity with the provisions of this Act, or of any rules or bylaws made there under relating to buildings, the Executive Officer may, if he thinks fit, assess such portions separately after assigning to them separate numbers under this Chapter ; provided that by such separate assessment the total assessment for the entire premises shall not be increased (iii) if such separated portions of such land, building or portion are, or are made, entirely independent and capable of separate enjoyment in conformity with the provisions of this Act, or of any rules or by-laws, made there under, relating to buildings, the Executive Officer shall assess each portion separately by assigning a separate number thereto : provided that by such separate assessment the total assessment for the entire premises shall not he increased : provided also that such apportionment or separation of the numbers and assessment, as the case may be, shall remain in force and the consolidated rate shall be levied accordingly until the expiration of the said period. " 4. " 4. THIS Section came up for consideration before this Court in the case of Corporation of Calcutta v. Bon Bihary Shaw, AIR 1938 Cal 581 where Mr. Justice Lord Williams was of the opinion that Section 133 spoke more of a structural separation between two premises before the separate valuation under Section 133 could be invoked. Of course, times have since changed because the concept of separate unit remaining in one building was comparatively few, if not wholly unknown in Calcutta in these days. But, even then what the learned Judge had decided was in the context of the expression used, that is to say, 'apportion the assessment among the share-holders'. But here the expression used in the section is 'apportion the valuation'. Learned advocate for the Corporation stressed before me, that according to the practice of the Corporation of Calcutta, it was thought, the expression 'assessment' might convey the entire process from' the starting of the issuance of the notice to the completion of final fixation of the amount. Therefore, the expression 'assessment' might have caused some confusion. It is in this light perhaps it was argued that the word was changed from the expression 'apportion the assessment' to 'apportion the valuation' in the present section. It is true in some context in the light of separate statutes the expression "assessment" tar received the meaning to cover the entire process but I am inclined to think that the expression "assessment" was used for specific purpose and the use of the expression "valuation" was advisedly made in the new Act. In my opinion, the expression 'valuation' has been introduced in section 174 of the Act more to bring it in inconformity with Section 165 of the said Act because the annual valuation had to be determined for imposition of consolidated rate and therefore, in that light, in case of situation as contemplated in clause (1) of Section 174, unless there was an apportionment of the valuation, it would be difficult to value the premises subsequently. Learned advocate for the Corporation drew my attention to the expression 'apportionment' and stressed that the expression 'apportion' indicated that it was a division of one unit dividing it or distributing it or allocating from one figure. Therefore, unless there was one unit there could be no question of apportioning. Learned advocate for the Corporation drew my attention to the expression 'apportionment' and stressed that the expression 'apportion' indicated that it was a division of one unit dividing it or distributing it or allocating from one figure. Therefore, unless there was one unit there could be no question of apportioning. In this connection, he further drew my attention to the Oxford Dictionary and to certain other observations appearing on the meaning of the expression apportioning'. While it is true that apportionment indicates that there is one that has to be divided between separate parts, it has to be borne in mind that when Section 174 speaks first of the 'valuation' that has to be made after the separation, the subsequent valuation must be on the basis of separate units. Therefore the expression 'apportion' though means dividing it up of one that is to be used for the purpose of fixing the first division of one unit of valuation. In that view of the matter, in my opinion, in view of the language used for the purpose of apportioning separately, the entire valuation of the land and building cannot be taken the basis of dividing the liability between the different flat owners. Learned advocate for the Corporation of Calcutta drew my attention to Section 14 of the West Bengal Apartment Ownership Act, 1972 which provided that every owner of flat would be entitled to be valued as a separate unit of assessment for the purpose of municipal rates and taxes. But this again is, as I have indicated in my previous judgment, is optional as Section 2 of the said Act makes it quite clear that it s optional, in the sense that the Act will be applicable to those who will elect to come under the purview of the Act. It is true that under Section 3a of the said Act, which was introduced by amendment, the co-operative societies have been given the right to be treated as owners and as such to come within the purview of this Act but even then the Section 2 remains and the co operative societies do not automatically come within the purview of this Act unless they elect to do so. It was, then, argued that if a person is given the right of separate unit of assessment under section 14 of the West Bengal Apartment. It was, then, argued that if a person is given the right of separate unit of assessment under section 14 of the West Bengal Apartment. Ownership Act, 1972, then he has to suffer certain limitation, that is to say, he cannot own more than one flat. If he is given the privilege of having his assessment under clause (1) of section 174 of the Calcutta Municipal Act, 1951 then lie will be better off. But I am unable to accept this position. As a matter of fact when valuing under clause (1) of Section 174, the entire building, that is to say, including the parts which are more or less in a building of common use, say, for instance, the air case, the gate, the courtyard everything is taken in to account and after taking in to account everything of that unit the valuation is apportioned. But whether, under Section 14 of the West Bengal Apartment Act, 1972 this is permissible or not that is not quite clear. So, there is no question of there being any advantage or of any gain by clause (1) of Section 174 without resorting to the benefit of Section 14 of the West Bengal Apartment Act, 1972, rather it may be otherwise. In that view of the matter, in my opinion the contentions urged in support of this application must be accepted and the Corporation of calcutta must value the units of different flats in accordance with Clause (1) of Section 174 of the Calcutta Municipal. Act, 1951 and apportion the valuation of each flat treating each flat as a separate unit and apportion the valuation of the entire premises, viz. the premises consisting of different flats and the common areas and tax the flat owners, that is to say, the petitioner nos. 2 to 46 herein accordingly. The Corporation of Calcutta is directed to act accordingly. The Rule is made absolute to the extent indicated above. There will be no order as to costs. Rule absolute. No costs.