R. C. LAHOTI ( 1 ) THIS petition is directed against the demand of property tax contained in Bill No. 21796 dated 15 11. 91 and the assessment order dated 25 3 91 whereby the ratable value of the petitioner s property and its liability for payment of tax have been determined. ( 2 ) THE property in question consists of land surrounded by a boundary wall with huge tanks and pipes. The market value of land has been estimated at Rs. 800. 00 per sq. mtr and after reducing 50% unearned increase, appointed at Rs. 6. 28,67. 000. 00 Cost of construction has been accepted as declared by the assessee at Rs. 2. 50. 00. 000. 00 Standard rent @ 8. 625% on the total market value of Rs. 8,78,67,000. 00 has been arrived at After allowing 10% standard deduction the ratable value has been fixed at Rs. 68,20,680. 00 and then restricted to a figure of Rs. 68,20,000. 00, as was proposed, w. e. f. 1. 4. 87. ( 3 ) BY proposing an amendment in the writ petition challenge was sought to be laid by the petitioner to the constitutionality of the provisions contained in Section 116 (3) of the Act submitting that the said provision proposes to tax all plant and machinery contained or situated in or upon any land or building though the power to tax as contained in VIIth Schedule List-11, Entry No. 49 of the Constitution is confined to taxes on land and building . An attempt at taxing plant and machinery is ultravirus the power of the State legislature. ( 4 ) THE learned counsel for the respondent submitted that there is no plant on the land and the respondent-MCD has neither taxed any machinery nor does it propose to tax any machinery even if there be one on the land of the petitioner and therefore the challenge to the vires of the provision is rendered academic merely. The learned counsel for the respondent is right. In view of the stand so taken on behalf of the respondent, the learned counsel for the petitioner has not pressed the challenge laid to the vires of the provision noted hereinabove. The learned counsel for the respondent is right. In view of the stand so taken on behalf of the respondent, the learned counsel for the petitioner has not pressed the challenge laid to the vires of the provision noted hereinabove. ( 5 ) BEFORE we may proceed to deal with other contentions raised, it would-be appropriate to notice contents of a letter Annexure R-l addressed by the petitioner to the Assessing Authority in response to a letter calling for some information relevant to the assessment proceedings. The petitioner has stated :- "we hereby furnish the required information in respect of the abovesaid property as under : 1. Photo copy of the Sale Deed of land plot enclosed. 2. Amount paid towards the purchase of above land : Rs. 16,22,068. 00 3. Floorwise covered area 1696 sq. mtr. the break up of which is as under : Pakka: 668 ACC Sheets : 1028 sq. mtr. 4. Actual cost of construction of plot is Rs. 2. 5 crores. The break up of cost. is as under:- a) Building/boundary walls/gantry and other structures Rs. 0. 95 crores b) Tanks/pipelines and Rs. 1. 30 crores Machinery. c) Fire Fighting facilities Rs. 0. 25 crores Total Rs. 2. 50 crores (7) Major portion of the land was purchased during 1982-83 and immediately construction started which was completed and occupied partly for functioning April/ May 1987. "it is clear from the abovesaid contents of the letter as also from the copies of the sale deeds filed by the petitioner on the record of the Assessing Authority that the petitioner s land is all purchased and freehold land and not leasehold one. The petitioner itself admits to have purchased the land during the year 1982-83 and the construction having commenced immediately thereafter, completed by April/ May, 1987. It is pointed out by the learned counsel for the respondent that only 2 parcels of land were purchased by the petitioner in 1982 and all other land was purchased in 1981, as is clear from the copies of the sale deeds filed. ( 6 ) NOW three questions survive for decision :- (i) , Whether the value of the land has been rightly arrived at? (ii) Whether the value of the pipes sunk underground and the storage tanks on the land is liable to be included in the value of the land? ( 6 ) NOW three questions survive for decision :- (i) , Whether the value of the land has been rightly arrived at? (ii) Whether the value of the pipes sunk underground and the storage tanks on the land is liable to be included in the value of the land? (iii)Whether value of boundary wall is liable to be included in the value of land for determining ratable value thereof? ( 7 ) IN so far as the value of the land is concerned, the case deserves to be remanded for assessment afresh consistently with the principles laid down in Dr. Balbir Singh, AIR 1985 SC 339 , MCD Vs. M/s. Pragati Builders, AIR 1991 Delhi 212 and other decisions of this Court. ( 8 ) IN so far as the value of pipes being added to the value of the land is concerned, the point is no more res integra in view of the law laid down by their Lordships of the Supreme Court in the case of Anant Mills Co. Ltd. VS. The Aryodaya Spg. and Wvg. Mills Co. Ltd. , AIR 1975 SC 1234 . Vide para 44, their Lordships have held :- "entry 49 of List II contemplates a levy of tax on lands and buildings or both as units. Such tax is directly imposed on lands and buildings and bears a definite relation to it. Section 129 makes provision for the levy of property tax on buildings and lands. Section 139 merely specifies the persons who would be primarily responsible for the payment of that tax. The word "land" includes not only the face of the earth, but everything under or over it, and has in its legal signification an indefinite extent upward and downward, giving rise to the maxim. Cujusest solumejusest usque ad coelum (see pp. 163. 73 Corpus Juris Secondum ). According to Broom s Legal Maxims. 10th Edn. The word "land" includes not only the face of the earth, but everything under or over it, and has in its legal signification an indefinite extent upward and downward, giving rise to the maxim. Cujusest solumejusest usque ad coelum (see pp. 163. 73 Corpus Juris Secondum ). According to Broom s Legal Maxims. 10th Edn. p. 259, not only has land in its legal signification an indefinite extent upwards, but in law it extends also downwards, so that whatever is in a direct line between the surface and the centre of the earth by the common law belongs to the owner of the surface (not to the centre of the earth and up to the heavens) and hence the word "land" which is nomen generalissimum, includes, not only the face of the earth, but everything under it or over it. " "it may be stated that the word "land" has also been defined in clause (3) of Section 2 of the Corporations Act to include land which is being built upon or is built upon or covered with water, benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by legislative enactment over any street. This definition is of inclusive nature and does not exclude from its ambit the underground strata of the land. " "we would, therefore, hold that the petitioner-company is in occupation of the: underground strata of the land through which their electric supply lines had been laid. " ( 9 ) IN Section 2 (24) of DMC Act land has been defined to include benefit to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by law over any street. The pipes sunk under the land and permanently fastened to the earth are liable to be included in land for assessing value thereof. ( 10 ) IN The Municipal Corporation of Greater Bombay and Ors. VS. The Indian Oil Corporation Ltd. , AIR 1991 SC 686 , their Lordships have held :- "on a mere look at the Petroleum Storage tank, by no stretch of imagination, it could be said to be a building. However, the definition of the word building is an inclusive definition bringing within its ambit amongst other even other such structure. VS. The Indian Oil Corporation Ltd. , AIR 1991 SC 686 , their Lordships have held :- "on a mere look at the Petroleum Storage tank, by no stretch of imagination, it could be said to be a building. However, the definition of the word building is an inclusive definition bringing within its ambit amongst other even other such structure. The structure must be an entity in itself, although not necessarily a building in itself, adopted to the particular purpose it serves. In its ordinary sense a structure is something which is constructed by way of being built as is a building. But method of construction by itself is not conclusive. Structure by itself may not be a building but it may be analogous to a building, outhouse, shed, hut or a stable. Ship is like a floating building but it is not a structure. A crane gantry or a turnable is a structure but is not a building. Weighing bridge is a structure. Tilting furnaces mains are in the nature of structure. Under the Act the incidence of taxation is on the building or land. So the building or its accompaniments like house, outhouse, garage, stable, shed, hut and such other structures must also be an entity by itself although not necessarily a building, erected on the land. The adverb such must be construed in this perspective. Looking at the tank it would be apparent to be a structure, shorn of the feat of engineering mechanism put up to have the tank rested on the land. Mechanism or feat of engineering is not a conclusive test. The tanks, though, are resting on earth on their own weight without being fixed with nuts and bolts, they have permanently been erected without being shifted from place to place. Permanency is the test. The fact that no nuts and bolts were used to imbed the tank to the earth by itself is not conclusive. Though the witness stated that the tank is capable of being shifted, as a fact that tanks were never shifted from the places of erection. By scientific process, the tanks stand on their own weight on the earth at the place of erection as a permanent structure. Undoubtedly, when the tanks are erected and used for commercial purposes, the value of the demised property would get appreciated. The annual letting value is capable of increase. By scientific process, the tanks stand on their own weight on the earth at the place of erection as a permanent structure. Undoubtedly, when the tanks are erected and used for commercial purposes, the value of the demised property would get appreciated. The annual letting value is capable of increase. Considering from this perspective it is clear, the petroleum storage tanks are "structures" or "things attached to the land "within the definition of Section 3 (s) and 3 (3) of the Act. Thereby they are exigible to property tax". ( 11 ) IN the light of the law laid down in the two Supreme Court decisions REFERRED TO to hereinabove and the definition of the word land in Delhi Municipal Corporation Act there is no doubt that the storage tanks and the pipes are liable to be included in land for the purpose of assessing its value. ( 12 ) IT was submitted that the value of boundary wall is not liable to be included in the value of the building. Section 2 (3) of the DMC Act defines building to mean "a house, out-house, stable, latrine, urinal, shed, hut, wall (other than a boundary wall) or any other structure, whether of masonry, bricks, wood, mud, metal or other material but does not include any portable shelter;" It is clear that a boundary wall which is meant to serve merely as a boundary wall is not to be included in a building. A wall other than a boundary wall may be included in building. If there is a boundary wall meant to serve merely as a boundary wall and not as a part of building, its value cannot be taken into consideration for assessing the value of the building. Since the definition of building includes a wall but excludes specifically a boundary wall, keeping in view the legislative intent, boundary wall cannot again be taken into consideration as a part of land by treating it something permanently constructed on or attached with the earth. ( 13 ) THE petition is allowed. The impugned order of assessment dated 25. 3. 91 and Bill dated 15. 11. 91 are set aside. The case is sent back to the Assessing Authority for making an assessment afresh, after hearing the petitioner and consistently with the observations made hereinabove. The petitioner is directed to appear before the Assessing Authority on 17. 1. 96 at 11. The impugned order of assessment dated 25. 3. 91 and Bill dated 15. 11. 91 are set aside. The case is sent back to the Assessing Authority for making an assessment afresh, after hearing the petitioner and consistently with the observations made hereinabove. The petitioner is directed to appear before the Assessing Authority on 17. 1. 96 at 11. 00 AM. 14. The petition stands disposed of. No order as to the costs.