JUDGMENT D.K. Seth, J. While challenging the order dated 29th October, 1998 passed by the Municipal Assessment Tribunal constituted under the Calcutta Municipal Corporation, Act, 1980 (1980 Act) in M.A. Appeal No. 1054 of 1996, Mr. Pradip Ghosh, learned Counsel for the petitioners, has not only put forth his challenge on the ground of merit of the case, but also on the ground of Constitutional validity of section 174(1) of the 1980 Act. Submission on behalf of the petitioners : 2. Mr. Ghosh pointed out that the rent of the disputed premises, valuation whereof made by the Corporation under challenge, was let out to a tenant at a rate of Rs. 26/- per sq. ft. This amount represented service charges of Rs. 9.75/-, which include reimbursement of commercial surcharge, other expenses, occupier's share of tax and compensation for service and amenities provided. Therefore, the annual rent was to be assessed on the basis of actual rent of Rs. 16.25/- per sq. ft. The charges, the amenities and services were being provided through M/s. Sunsam Properties Private Limited on the basis of the payment made by the petitioners. The Tribunal has processed the valuation after deducting the commercial surcharge and a sum of Rs. 2,000/- per month for maintenance of lift. The Tribunal ought to have deducted the occupier's share of taxes as well as the amount for providing the amenities and services including payment of electricity charges for the common area. According to Mr. Ghosh, under section 174(1), in order to assess the annual valuation, service charge is also included in the computation, whereas the expenses incurred by the landlord for providing the amenities is required to be deducted. According to him, the occupier's share of such tax being 50 per cent of the consolidated rate, if absorbed by an agreement between the landlord and the tenant, then under sections 230 and 231 of the 1980 Act, the landlord is entitled to recover the said amount. In case the occupier's share of tax is included in the rent, in that event, such component if not excluded while computing the valuation, any tax imposed on such a component would be imposing tax on tax. The Tribunal having already allowed deduction of commercial surcharge, on the same principle, it should have deducted the occupier's share of tax as well. 2.1. According to Mr. The Tribunal having already allowed deduction of commercial surcharge, on the same principle, it should have deducted the occupier's share of tax as well. 2.1. According to Mr. Ghosh, consolidated rate is levied under section 170 of the said Act. The imposition is made under section 171 and the annual value is determined under section 174 of the said Act. Under section 174(1) annual value is to be determined on the basis of notional rent at which the premises might be reasonably expected to let from year to year to hypothetical tenant. The concept of reasonableness has since been crystallized in various decisions including Corporation of Calcutta vs. Padma Debi, AIR 1962 SC 151 and Motichand Mirachand & Ors. vs. Bombay Municipal Corporation, AIR 1968 SC 441 . 2.2. In order to determine the notional rental value on the basis of contractual rent, care has to be taken to identify the rent stricto sensu leaving out other payments made by the tenant to the landlord in a given case. In Corporation of Calcutta vs. Indian Exchange Limited, 69 CWN 237 and James Finlay & Company Limited vs. Corporation of Calcutta, 73 CHN 961, it was laid down that the expenses incurred by the owner for providing amenities and facilities to the tenant by the landlord under a contract of tenancy should be deducted from the monthly rent for the purpose of arriving at the 'rent proper'. In rendering this decision, the Calcutta High Court had relied on Bell Property Trust Limited vs. Hampstead Borough Assessment Committee, 1940 (3) All ER 640. According to him, the annual value is to be determined on the basis of the rent proper, which is an accepted principle. He relied on New Delhi Municipal Committee vs. Lila Guha & Ors., AIR 1980 Delhi 12 (DB). In the said decision, it was held that the profit accrues to the landlord and not the cost incurred by the tenant, which is to be taken as rent. According to him, it is net income of the landlord, which is to be regarded as a true element of rent and not the total expenditure incurred by the tenant out of pocket expenses of the landlord including the tax paid by him on behalf of the tenant, cannot form the element of valuation. According to him, it is net income of the landlord, which is to be regarded as a true element of rent and not the total expenditure incurred by the tenant out of pocket expenses of the landlord including the tax paid by him on behalf of the tenant, cannot form the element of valuation. He had approached the question from a different angle namely in a case where a tenant is compelled to pay the tax, the same is adjustable against the rent payable by the tenant to the landlord when such payment is made involuntarily. He relied on Sukhanti Ram Binode Kumar vs. Bijoy Laxmi Jaiswal, 87 CWN 368; Canara Bank & Anr. vs. Municipal Corporation of Ahmedabad, 1996 (7) SCC 298 . This decision was relied on by this Court in Bengal Properties Private Limited & Anr. vs. Calcutta Municipal Corporation & Ors., 1998 (2) CLJ 480 . 2.3. According to him, by reason of the agreement, the landlord took upon themselves the burden of payment of the tax payable by the tenant as well as the commercial surcharge. Although, under the 1980 Act, the liability to pay the occupier's share of taxes is upon the landlord, but the statute gives the landlord right to recover the same from the tenant. But, in this case, the landlord had been paying the same by virtue of an agreement and as such he is entitled to exclusion thereof for the purpose of assessment of valuation. In such a case after payment of occupier's share of taxes by the landlord, the landlord would not be entitled to recover the same. Thus, while the tenant pays the rent, it also pays the occupier's share of taxes to the landlord to be paid to the Corporation and which is actually paid to the Corporation. Therefore, the same cannot be regarded to be the income of the landlord, 2.4. The consolidated rate has to reflect the rental value of the land and building shorn of other elements, it cannot include electricity charges or any tax or payment for amenities. Otherwise in the guise of imposing tax on land and building, tax would be imposed on things other than land and building such as electricity or amenities or may be tax on tax. Otherwise in the guise of imposing tax on land and building, tax would be imposed on things other than land and building such as electricity or amenities or may be tax on tax. This might lead to the invalidity of the impost including the incompetence of the legislature to impose a tax on anything other than land and building, which is done on the basis of the entry No. 49 of List II of the 7th Schedule of the Constitution of India. From this angle, the vires of section 174(1) has since been challenged due to legislative incompetence; in the event, tax is meant to levy on services and amenities. Inasmuch as, the legislature cannot empower the State to impose tax on things other than land and building. In New Manek Chowk Mills vs. Ahmedabad Municipal Corporation, AIR 1967 SC 1801 ; Government of Andhra Pradesh vs. Hindustan Machine Tools, AIR 1975 SC 2037 , it was held that the levy of tax on land and building cannot be so interpreted to extend the power of taxing land and building to impose a tax on machineries and furniture situated in the land building. In Gannon Dunkerley & Co. Ltd. vs. State of Madras, AIR 1958 SC 560 , it was held that the legislature cannot by legislative device seek to extend its legislative domain. Neither the legislature can step outside the defined legislative field. Legislature cannot, therefore, seek to impose a tax on anything other than land and building, as it is understood in plain language. In Buxa Dooars Tea Company Limited & Ors. vs. State of West Bengal & Ors., 1989 (3) SCC 211 , tax imposed on dispatch of tea from a tea garden, sought to be supported on the strength of Entry 49 of List II of the 7th Schedule, was struck down by the Supreme Court on the ground that the legislation in substance was not in respect of land and building. In State of Bihar & Ors. vs. Indian Aluminium Company & Ors., 1997 (8) SCC 360 : JT 1997 (8) SC 201, Forest Conservation Act, 1980 was struck down by the Apex Court as being outside the ambit of Entry 49 List II of the 7th Schedule. 2.5. Mr. In State of Bihar & Ors. vs. Indian Aluminium Company & Ors., 1997 (8) SCC 360 : JT 1997 (8) SC 201, Forest Conservation Act, 1980 was struck down by the Apex Court as being outside the ambit of Entry 49 List II of the 7th Schedule. 2.5. Mr. Ghosh further submitted that whenever the Constitutional validity is raised, the Court has a first duty to save provision from being struck down by way of interpretation so as to avoid any constitutional vice affecting the piece of legislation, because of the presumption in favour of the constitutionality. In such a situation where there are two interpretations, one which make the law valid and the other void, the former must be preferred and the validity should be upheld. He referred to H.M. Seervai's Constitutional Law of India, 4th Edition, Vol. 1 at pages 260 and 261, where several instances have been cited. He had also referred to the Principles of Statutory Interpretation by Justice G.P. Singh, 4th Edition, pages 304 to 310 where similar examples have been given. Reference may also be made to Borosil Glass Works Limited Employees Union vs. D.D. Bambode & Ors., JT 2000 (Suppl. 3) SC 278. 2.6. Mr. Ghosh had spelt out section 174 (1) in order to save the constitutionality, to interpret the phrase less an allowance of 10% for the cost of repairs by making the said less an allowance of 10% common to other expenses necessary to maintain such land and building in a state of repair. He sought to support such interpretation by referring to sections 168(1) and 168 (4) (iii) of the Calcutta Municipal Corporation Act, 1951 (1951 Act). He also referred to section 169(1) of the 1951 Act. According to him, the concept of multi-storeyed building was absent and no special facilities were provided to the tenants by the landlords, therefore, 10% overall expenses was deemed to be sufficient. But nowadays, in a multi-storeyed building, various additional facilities like generators, lifts, gardens, security services, intercom telephone service, satellite connection etc. are provided. The legislature, therefore, changed the language. He also referred to sections 174 and 175 of the 1980 Act. Since there has been a distinction in the language employed in sections 174 (1) and 175 (1) of the 1980 Act, the intention is clear. are provided. The legislature, therefore, changed the language. He also referred to sections 174 and 175 of the 1980 Act. Since there has been a distinction in the language employed in sections 174 (1) and 175 (1) of the 1980 Act, the intention is clear. Inasmuch as, in respect of huts, only 10% for maintaining the hut is provided, other expenses were not included, which is included in respect of building other than huts. 2.7. He sought to distinguish the decision in Surat Textile Market Co-operative Shops & Warehouses Society Limited, Surat vs. Municipal Corporation of the City of Surat, 1998 (1) SCC 497 , cannot be said to be a decision on the proposition that all amenities or services form an integral part of the building. Inasmuch as, in the said decision, the lift was exclusively meant for the revolving restaurant on the 14th floor and thus it was an integral part of the restaurant. The service charge imposed is not related to an exclusive service provided to the tenant. It was a charge for amenities enjoyed by the said tenant along with the other tenants in the 9th storeyed building. Therefore, it does not form an integral part of the area let out to the tenant. He has also sought to distinguish the decision in Roma Sur vs. State of West Bengal, 95 CWN 1, on the ground that he is challenging the vires on grounds different from those which were taken in the said case and, therefore, the question of res judicate would not arise. In support he referred to Amalgamated Coal Fields Limited vs. Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013 and Khudiram Das vs. State of West Bengal & Ors., AIR 1975 SC 550 . On these grounds, Mr. Ghosh has challenged the valuation. Submission of the respondents : 3. Mr. Das Adhikari, learned Counsel for the Corporation, on the other hand, points out that after the decision in Roma Sur (supra), the question of vires is no more a res integra. According to him, once the vires is upheld, it cannot be challenged again on the ground that some of the grounds, which could have been taken, were not taken. 3.1 He had also contended that the petitioners cannot succeed in view of the delay involved in the case. The valuation was made in 1995. The decision was given in 1996. According to him, once the vires is upheld, it cannot be challenged again on the ground that some of the grounds, which could have been taken, were not taken. 3.1 He had also contended that the petitioners cannot succeed in view of the delay involved in the case. The valuation was made in 1995. The decision was given in 1996. The appeal was decided in 1998. The writ petition is moved in 1999 January. It is in effect an abuse of process of law. In view of the delay, the petitioners cannot get any remedy. He relied on K.K. Modi vs. K.N. Modi, JT 1988 (1) SC 407 (para-43). 3.2. He has also questioned the extent of interference in revisional jurisdiction by the High Court referring to the decision in Municipal Board Saharanpur vs. Imperial Tobacco Company (I) Limited, 1999 (1) SCC 566 (Head Note D). 3.3. According to him, Mr. Ghosh has raised a new plea, which was not raised earlier. It is not available in view of the decision in Calcutta Municipal Corporation vs. Bala Bestos (I) Limited, 1998 (1) CHN 492 ; Munna Lal Agarwal vs. Jagdish Narain & Ors., 2000 (1) SCC 31 (Head Note C and D). According to him, the petitioners cannot be allowed to blow hot and cold in the same breath. 3.4. Relying on State of Madras vs. Gannon Dunkerly & Company, AIR 1958 SC 560 : 1959 SCR 379 , Mr. Das Adhikari contended that Lists II and III is to be interpreted liberally, but it must relate to the entry, it cannot include something with deeming clause (paras 26, 46 and 47). To support the same contention, he also relied on New Manek Chawk Spinning & Weaving Mills vs. Municipal Corporation, City of Ahmedabad, AIR 1967 SC 1801 (paras 2, 17 & 26); Chandrama & Company vs. State of Mysore, AIR 1972 SC 217 : 1972 (1) SCC 70 (para 20) Buxa Dooars Tea Company Limited vs. State of West Bengal & Ors., AIR 1989 SC 2105 : 1989 (3) SCC 211 (para 14). 3.5. He also referred to section 174 of the 1980 Act and had elaborated his submission having reference to similar provisions in section 168 and section 169 of the 1951 Act, as well as section 175 of the 1980 Act. 3.5. He also referred to section 174 of the 1980 Act and had elaborated his submission having reference to similar provisions in section 168 and section 169 of the 1951 Act, as well as section 175 of the 1980 Act. He sought to support his above contention relying to Corporation of Calcutta vs. India Exchange Limited, 69 CWN 237. He also sought to distinguish Bell Property Trust Limited vs. Hampstead Borough Assessment Committee, 1940 (3) All ER 640. 3.6. Mr. Das Adhikari contended that section 127 of the Calcutta Municipal Act, 1923 (1923 Act) prescribed the method of fair rent basis. The same principle was adopted in the 1951 Act. This question had cropped up at different times before the Courts. Two lines of the decision of the Apex Court were operating in the filed. One line supports Mr. Ghosh and the other line supports Mr. Das Adhikari. The actual method line was followed in Municipal Corporation of Indore & Ors. vs. Ratna Prabha & Ors., 1977 (1) SCR 1017 . This mode of fair rent could not be applicable because of the non-obstanate clause and, therefore, the actual method would be applicable. Whereas the other decision in Corporation of Calcutta vs. Padma Devi, AIR 1962 SC 151 : 1962 (3) SCR 49 , a decision under 1923 Act followed the "fair rent" method. This decision was followed in Corporation of Calcutta vs. Life Insurance Corporation of India, 1971 (1) SCR 248 ; followed by Dewan Daulat Rai Kapoor vs. New Delhi Municipal Corporation, AIR 1980 SC 541 : 1980 (2) SCR 607 . But these two lines have been settled finally in Assistant General Manager, Central Bank of India & Ors. vs. Commissioner, Municipal Corporation, City of Ahmedabad & Ors., 1995 JT (4) SC 310, wherein it was held that the effect in these two series of cases is no more relevant since the law has been changed. He sought to support his contention by referring to Corporation of Calcutta vs. East India Commercial Company, 1982 (1) CHN 360 (DB) and East India Commercial Company Pvt. Ltd. vs. Corporation of Calcutta, AIR 1998 SC 1789 : 1998 JT (2) SC 738 on the ground that there was no basic difference in between section 127 of 1923 Act and section 168 of 1951 Act. According to him, the decision in Assistant General Manager, Central Bank of India (supra) is based on Municipal Corporation, Indore & Ors. vs. Ratna Prabha & Ors., 1977 (1) SCR 1017 , which deals with non obstante clause relying upon Srikant Kashinath Jituri & Ors. vs. Corporation of the City of Belgaum, JT 1994 (6) SC 496. 3.7. Mr. Das Adhikari referred to section 2(20) of 1980 Act defining consolidated rate and section 193 of 1980 Act prescribing liability to pay tax. Referring to section 230 of 1980 Act and section 231 of 1980 Act, he had elaborated the right to recover by lessor from lessee and the mode of recovery. He has also dealt with sections 194 (1), (2) and section 174 of 1980 Act in order to impress upon the concept of rent. He also referred to the provisions of West Bengal Premises Tenancy Act. In support, he relied on Puspa Sengupta vs. Sushma Ghosh, 1990 (2) SCC 651 ; Usha Ranjan Bhattacharya vs. Mahalaxma Thakkar & Ors., 1975 (1) CLJ 204 (para-11); G.L. Ganguly vs. Arun Kumar Mukherjee, 1995 (1) CLJ 202; Puspadevi Gaurisaria vs. Sudhira Enterprise Private Limited, 1990 (2) CLJ 310. On these grounds, according to him the writ petition is liable to be dismissed. Delay: 4. The delay as alleged, is not of significant consequences. The appeal was decided in 1998 and the writ petition was moved in January 1999. It may be said to have been moved within a reasonable time. The principle laid down in K.K. Modi vs. K.N. Modi, JT 1988 (1) SC 407, has no manner of application having regard to the facts and circumstances of this case. Extent of revisional jurisdiction : 5. The revisional jurisdiction exercised by this Court under Article 226 does not empower the Court to sit on appeal over the decision of the Tribunal. But, it can examine as to whether the decision is in conformity with the jurisdiction of the Tribunal or that the Tribunal has not acted with illegality or irregularity in the exercise of its jurisdiction. Here in this case the Tribunal has jurisdiction. Therefore, it is to be examined whether there has been any illegality or irregularity in the exercise of jurisdiction. The extent of jurisdiction to assess annual letting out value cannot include something, which does not form a component of the service charges. Here in this case the Tribunal has jurisdiction. Therefore, it is to be examined whether there has been any illegality or irregularity in the exercise of jurisdiction. The extent of jurisdiction to assess annual letting out value cannot include something, which does not form a component of the service charges. It is alleged that the Tribunal appears to have acted illegally and with material irregularity in arriving at the assessment by including the occupier's share of taxes within service charges. The revisional jurisdiction is concerned with the process with which the decision has been arrived at. If there is any illegality or irregularity in the process, the Court has every right to examine. Mr. Ghosh has been able to show prima facie that there are some illegality and irregularity in the process. In the present case, on the basis of the questions raised, it appears that this Court can exercise its revisional jurisdiction. Inasmuch as the questions raised, appears to be of some substance, which requires examination. This petition, therefore, cannot be thrown out on the principle laid down in Municipal Board Saharanpur vs. Imperial Tobacco Company (I) Limited, 1999 (1) SCC 566 (Head Note - D), as cited by Mr. Das Adhikari. New plea : 6. Mr. Das Adhikari had cited Calcutta Municipal Corporation vs. Bala Bestos (I) Limited, 1998 (1) CHN 492 and Munna Lal Agarwal vs. Jagdish Narain & Ors., 2000 (1) SCC 31 (Head Note - C and D), to contend that the petitioner cannot be allowed to blow hot and cold in the same breath by raising new plea, which was not raised before the Tribunal. In this case, the question that has been raised is as to what would form service charges or whether the service charges could be included within the rent having regard to the scope and ambit of section 174(1). It was all along the stand of the petitioner that service charges cannot be included in rent and as such is not a factor to be taken into account for making assessment under section 174(1). It does not seem that any new plea is raised or the petitioners are blowing hot and cold in the same breath. Therefore, this ground also does not seem to be of any substance, though Mr. Das Adhikari had insisted upon the said point, whereas the question of vires cannot be raised before the Tribunal. It does not seem that any new plea is raised or the petitioners are blowing hot and cold in the same breath. Therefore, this ground also does not seem to be of any substance, though Mr. Das Adhikari had insisted upon the said point, whereas the question of vires cannot be raised before the Tribunal. Therefore, the contention of Mr. Das Adhikari cannot be sustained. The question of vires of section 174(1) : Legislative incompetence : 7. Before we consider the case on merit, we may first determine as to whether the question of vires can be gone into, when once the said question was decided, upholding the vires of the provision. It is contended that the grounds on which it is now being assailed was not raised and considered in the earlier decision. In Roma Sur (supra) the vires was upheld, admittedly, altogether on different grounds. In Delhi Cloth Mills vs. Sambhu, AIR 1978 SC 8 , it was held that once a decision had dealt with the validity of a particular law the same cannot be allowed to be raised in another case on the submission that a new ground can be raised to sustain the objection. Therefore, when this question has been decided by this Court once earlier, it is no more open to Mr. Ghosh to assail the same before a Single Judge of this Court since the said decision is rendered by a learned Single Judge. But, this does not preclude Mr. Ghosh to raise such question before the Division Bench or the Apex Court, as the case may be, unless it is already decided by such Courts. Now let us examine, having regard to the question raised, whether it is possible for this Court to examine the question of vires even though assailed from altogether different new ground. 7.1 This question has a different aspect. Admittedly, in Roma Sur (supra), various grounds with regard to the vires pertaining to the question of Article 14 etc. was considered. Admittedly, it was not examined on the question of legislative competence. If there is absence of legislative competence, whether it is hit by Article 14 or otherwise is immaterial. 7.2. The question becomes an exception to this rule when a legislation is attacked on the ground of legislative incompetence. was considered. Admittedly, it was not examined on the question of legislative competence. If there is absence of legislative competence, whether it is hit by Article 14 or otherwise is immaterial. 7.2. The question becomes an exception to this rule when a legislation is attacked on the ground of legislative incompetence. Inasmuch as, when question of legislative incompetence is raised, the Court is bound to examine the same, unless it is examined earlier by any competent Court of law of co-ordinate or superior jurisdiction. There might be several grounds to attack the vires of a legislation under Article 14 etc. or of legislative incompetence. In respect of a particular ground, if one or the other grounds supporting such particular ground or in other words, subsidiary grounds to support the challenge in respect of the principal ground is the subject matter, then the ratio laid down in Delhi Cloth Mills (supra) would be attracted. The principal ground may not be a bar if it was not taken in the earlier proceedings challenging the vires. We may, thus, examine the question as well. 7.3. It is true that consolidated rate has to reflect the rental value of the land and building shorn of other elements. It cannot include electricity charge or any tax or payment for amenities. If it does so, then in the guise of imposing tax on land and building, it would be imposing tax on things other than land and building, such as electricity or amenities or may be tax on tax. This might lead to the invalidity of the impost on the ground of incompetence of the legislature to impose tax on anything other than land and building pursuant to Entry 49 of List II of the Seventh Schedule of the Constitution of India. Legislature cannot empower the State to impose tax on things other than land and building under Entry 49. In New Manek Chowk Mills vs. Ahmedabad Municipal Corporation, AIR 1967 SC 1801 and Government of Andhra Pradesh vs. Hindustan Machine Tools, AIR 1975 SC 2037 , it was held that the levy of tax on land and building cannot be so interpreted to extend the power of taxing land and building to impose a tax on machineries and furniture situated on the land and building. In Gannon Dunkerley & Co. In Gannon Dunkerley & Co. Ltd. vs. State of Madras, AIR 1958 SC 560 , it was held that the legislature cannot by legislative device seek to extend its legislative domain. Neither the legislature can step outside the defined legislative field. Legislature, therefore, cannot seek to impose a tax on anything other than land and building, as it is understood in plain language. In Buxa Dooars Tea Company Limited & Ors. vs. State of West Bengal & Ors., 1989 (3) SCC 211 , tax imposed on despatch of tea from a tea garden, sought to be supported on the strength of Entry 49 of List II of the 7th Schedule, was struck down by the Supreme Court on the ground that the legislation in substance was not in respect of land and building. In State of Bihar & Ors. vs. Indian Aluminium Company & Ors., 1997 (8) SCC 360 : JT 1997 (8) SC 201, Forest Conservation Act, 1980 was struck down by the Apex Court as being outside the ambit of Entry 49 List II of the 7th Schedule. 7.4. All these decisions as referred to above, dealt with cases where the imposition was in respect of something other than land and building. Relying on these decisions, Mr. Ghosh sought to contend that the service charge, if includes, a component, which does not relate to charges on land and building but are for reimbursement of electricity or other services or amenities, than it would be definitely outside the scope of Entry 49 and thus legislatively incompetent for the State to impose it. But, there is a fallacy in the submission having regard to the provision contained in section 174(1). The intent and purpose of including rent and service charge is not to impose any tax on anything other than land and building. On the other hand, it is a mode, manner an method of arriving at the hypothetical annual letting out value of the land and building. It is not an impost either on rent or on the service charges. It is a guideline through which annual letting out value of the land and building is to be arrived at. 7.5. Challenge has been thrown on the ground that it exceeds the limit provided in Entry 49 of List II. The answer is simple. It is not an impost either on rent or on the service charges. It is a guideline through which annual letting out value of the land and building is to be arrived at. 7.5. Challenge has been thrown on the ground that it exceeds the limit provided in Entry 49 of List II. The answer is simple. Section 174(1) is a concept of method or mode for assessing the annual letting out value. It is not an imposition of tax either on rent or on service charges etc. It is a guideline for computation for assessing the annual letting out value of the land and building. The mode and method of computation is not an impost. The tax that is imposed, having been computed or assessed in the manner provided in section 174(1) is within the limits of Entry 49. It does not travel beyond the parameters of Entry 49. There is a distinction between the impost and the mode and method for arriving at or determining the quantum of the impost. If such an interpretation, as Mr. Ghosh is seeking to put forth, is accepted, in that event, when cost of construction method is adopted, then it might be argued that it is an impost on the materials and labour used for construction of the building. On the same analogy, if the guideline includes service charges, it would not be an imposition on the service charges. The expression used in section 174(1) is that ‘the annual value of any land or building shall be deemed to be the gross annual rent including service charges, if any, at which such land or building might at the time of assessment be reasonably expected to let from year to year. Therefore, foundation or basis of the rent and service charges is in effect is the guideline for determining the rent at which the premises is reasonably expected to let from year to year. It is not an imposition on rent or service charges. It is an imposition on the land and building, the annual value whereof is to be determined in the manner provided in section 174(1) of the 1980 Act. In effect, it is a notional rent at which the thrust is led. It is not the actual rent. Therefore, this question is answered against Mr. Ghosh. Scope of section 174 : 8. In effect, it is a notional rent at which the thrust is led. It is not the actual rent. Therefore, this question is answered against Mr. Ghosh. Scope of section 174 : 8. Section 174 of the 1980 Act prescribed as follows :- "174. Determination of annual valuation.-(1) Notwithstanding anything contained in the West Bengal Premises Tenancy Act, 1956 (West Bengal Act 12 of 1956) or in any other law for the time being in force, for the purpose of assessment to the consolidated rate, the annual value of any land or building shall be deemed to be the gross annual rent including service charges, if any, at which such land or building might at the time of assessment be reasonably expected to let from year to year, less an allowance often per cent for the cost of repairs and other expenses necessary to maintain such land or building in a state to command such gross rent : 1 [Provided that there is a transfer, inter vivos, of ownership of any land or building since the last preceding periodical assessment under section 179, the annual value of such land or building shall be fixed at seven and a half per cent of the amount stated in the deed of transfer as consideration for such transfer or, if no consideration is stated in such deed of transfer, at seven and a half per cent of the estimated marked value thereof:] 2 [Provided further that] while determining the annual value in the case of any land or building or portion thereof exclusively used by the owner for his residential purpose, the gross annual rent of such land or building or portion, as the case may be, shall be reduced,- a) where the gross annual rent does not exceed six hundred rupees, by thirty per cent. b) where the gross annual rent exceeds six hundred rupees but does not exceed eighteen thousand rupees, by such per centage of the gross annual rent as is worked out by dividing the gross annual rent by six hundred and subtracting the quotient from thirty-one, the difference being rounded off to the nearest place of decimal: 3[Provided also] that no such reduction in gross annual rent shall be made (a) in case the total covered area in any land or building under occupation for residential purpose by the owner exceeds one hundred and fifty square meters, or (b) where a person owns or occupies for residential purpose more than one plot of land or building or portions thereof within the municipal limit of Calcutta. * * * * * * * * * * 1[(4A) If the gross annual rent of any land or building or part thereof cannot be easily estimated the gross annual rent of such land or building for the purposes of sub-section (1) shall be deemed to be seven and half per cent of the value of the building obtained by adding the estimated present cost of erecting the building at the time of assessment less a reasonable amount to be deducted on account of depreciation, if any, to the estimated present market value of the land : Provided that the estimated present cost shall not include the cost of any plant or machinery, excepting those enumerated in Schedule VIII, on the land or the building as aforesaid. * * * * * * * * * *” 8.1. It appears from the plain reading of the above provision that the consolidated rate is to be assessed on the basis of the annual value of the land and building. Such annual value shall be deemed to be the gross annual rent including service charges. The rent at which such land and building at the time of assessment be reasonably expected to let from year to year. Therefore, it is a notional rent for letting out to a hypothetical tenant. 8.2. Mr. Das Adhikari wanted to point out that the question is ultimately settled by the Apex Court in the decision in Assistant General Manager, Central Bank of India & Ors. Therefore, it is a notional rent for letting out to a hypothetical tenant. 8.2. Mr. Das Adhikari wanted to point out that the question is ultimately settled by the Apex Court in the decision in Assistant General Manager, Central Bank of India & Ors. vs. Commissioner, Municipal Corporation for the City of Ahmedabad & Ors., JT 1995 (4) SC 310 : 1995 (4) SCC 696 , followed by the decision in East India Commercial- Company Pvt. Ltd. vs. Corporation of Calcutta, JT 1998 (2) SC 738. But the said contention of Mr. Das Adhikari does not seem to be sound. Inasmuch as, the decision in Assistant General Manager, Central Bank of India & Ors. (supra) proceeds with a provision, which is not similar to section 174(1) of the 1980 Act. It deals with a provision, which does not mention anything about service charges. The decision in East India Commercial Company Pvt. Ltd. (supra) dealt with section 168 of the Calcutta Municipal Act, 1951. The said provision refers to fair rent, but did not mention anything about service charge. The service charge has been included in section 174(1) of the 1980 Ad. Therefore, this decision cannot help us in arriving at the right proposition. 8.3. This question was also considered in East India Commercial Company Pvt. Ltd. vs. Corporation of Calcutta, JT 1998 (2) SC 738. This case also dealt with the provisions of section 168 of the Calcutta Municipal Act, 1951. Section 168 also provided that the annual value shall not exceed the annual amount of the rent fixed under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 or the West Bengal Premises Tenancy Act, 1956. Thus, this was also a case where the question of fair rent was under consideration having relevance or co-relation with the provisions provided in the Rent Control legislations referred to above. This decision also had discussed in Guntur Municipal Council (supra), Life Insurance Corporation (supra), Padma Debi (supra), Dewan Daulat Rai (supra). It has also noted that Dewan Daulat Rai (supa) was followed in Dr. Balbir Singh vs. Municipal Corporation of Delhi, 1985 (2) SCR 439 ; Morvi Municipality vs. State of Gujarat & Ors., JT 1993 (2) SC 529; Bhagwant Rai & Ors. vs. State of Punjab & Ors., JT 1995 (6) SC 245; New Delhi Municipal Committee vs. M.N. Soi & Anr., 1977 (1) SCR 731 . Balbir Singh vs. Municipal Corporation of Delhi, 1985 (2) SCR 439 ; Morvi Municipality vs. State of Gujarat & Ors., JT 1993 (2) SC 529; Bhagwant Rai & Ors. vs. State of Punjab & Ors., JT 1995 (6) SC 245; New Delhi Municipal Committee vs. M.N. Soi & Anr., 1977 (1) SCR 731 . It has also noted the distinction of existence and absence of non obstante clause. The distinction between Ratna Prabha (supra) and Dewan Daulat Rai (supra) was existence and absence of non obstante clause respectively. This distinction was also emphasized in Indian Oil Corporation Limited vs. Municipal Corporation & Ors., JT 1995(3) 626 where Ratna Prabha (supra) was followed, while Dewan Daulat Rai (supra), Balbir Singh (supra) were distinguished. The 1951 Act did not contain any non obstante clause. Thus, the fair rent was to be determined having regard to the provisions contained in the Tenancy Act because of the proviso provided therein. 8.4. These decisions proceeded on the basis of statutory provisions, which co-relates the valuation, to be made under the Municipal Act, with that of the Rent Control Legislation. In fact, all the provisions, which were dealt with provided for valuation at the standard rent, if fixed by the Rent Control Authority or on contractual rent where it is not so fixed. Having regard to this proposition, the Court had always taken the view of "fair rent". There was also one distinguishing feature in some of the legislations. This is the absence or presence of a non obstante clause. In Roma Sur (supra), principle of fair rent has since been accepted. The presence of non obstante clause in section 174(1) of the 1980 Act has been held not to affect the determination on the basis of fair rent governed by the West Bengal Premises Tenancy Act. In Assistant General Manager, Central Bank of India (supra), the decision in Corporation of Calcutta vs. Padma Debi, 1962 (3) SCR 49 was discussed and distinguished. It (AGM Central Bank) had also discussed Guntur Municipal Council vs. Guntur Town Rate-payers Association, 1971 (2) SCR 423 ; Corporation of Calcutta vs. Life Insurance Corporation of India, 1971 (1) SCR 248 ; Dewan Daulat Rai Kapoor vs. New Delhi Municipal Corporation, 1980 (2) SCR 607 ; Morvi Municipality vs. State of Gujarat & Ors., 1993 (2) SCC 521; Srikant Kashinath Jituri & Ors. vs. Corporation of the City of Belgaum, JT 1994 (6) SC 496 and Indian Oil Corporation Limited vs. Municipal Corporation & Ors., JT 1995 (3) SC 626. In the said decision (AGM Central Bank), the principle laid down in Municipal Corporation, Indore & Ors. vs. Ratna Prabha & Ors., 1977 (1) SCR 1017 was applied. The said decision proceeded on the basis of the provision which provided that where standard rent is not fixed, the actual rent received by the landlord shall be deemed to be the annual rent at which the property might reasonably be expected to let, notwithstanding, anything contained in any other law. However, in the said decision, some space for playing in the joints was also conceived. 8.5. In Roma Sur (supra) as observed earlier, the presence of non obstante clause, has been held to be not of much significance. It has held that the provisions of section 174 is substantially the same as section 168 and that the value is to be determined according to the recognized modes of rating as laid down by the various decisions of the Apex Court. The fact remains that there is a marked distinction between the provisions of section 168 of the 1951 Act and section 174 of the 1980 Act. A non obstante clause has been inserted in section 174 of the 1980 Act, which was absent in section 168 of the 1951 Act. The proviso was provided in the 1951 Act with regard to the fixation of rent under the Rent Control Legislation where so fixed not to exceed such valuation. Whereas this proviso has been omitted while enacting section 174. It had confined the assessment only to actual rent received by the landlord. The other change that has been incorporated is inclusion of service charges as part of rent for the purpose of assessment. In fact, this aspect has not been specifically dealt with in Roma Sur (supra). 8.6. The vires on the question other than legislative incompetence was gone into in Roma Sur (supra) and it was held to be intra vires. Though, much attempt was made by Mr. Ghosh to attack the question of vires from different angles besides legislative incompetence and wanted that section 174 of 1980 Act should be interpreted on the principle of reading down, relying on Borosil Glass Works Limited Employees Union vs. D.D. Bambode & Ors. Though, much attempt was made by Mr. Ghosh to attack the question of vires from different angles besides legislative incompetence and wanted that section 174 of 1980 Act should be interpreted on the principle of reading down, relying on Borosil Glass Works Limited Employees Union vs. D.D. Bambode & Ors. , JT 2000 (Suppl. 3) SC 278. But, it is a settled principle of law that once the question of vires is gone into, the same cannot be reopened or attacked on a different ground, which might not have been considered in the earlier decision. Therefore, all these grounds are not available to Mr. Ghosh. In any event, I do not find any reason to hold the said provision, as ultra vires since a particular mode for arriving at a notional value has been provided for, which is in effect a guiding standard for determining the notional value, which has since been recognized and emphasized in various decisions as discussed above. Majority of the decisions proceeds on the basis of assessment to be made on notional value. Inasmuch as, the expression used is "at a rent at, which reasonably expected to be let". The contractual rent has also been accepted. Therefore, there is nothing, which can affect the vires on account of legislative incompetence or otherwise as has already been discussed. I have held that it was within the legislative competence of the State legislature and cannot be questioned. Service charges : How far can be included : 9. But the only question that remains to be decided is as to what extent the service charges could be a component for assessing the notional value. In some cases, it was held that it is to be decided on the basis of the rent stricto sensu. In Corporation of Calcutta vs. Indian Exchange Limited, 69 CWN 237 and James Finlay & Company Limited vs. Corporation of Calcutta, 73 CHN 961, the expenses incurred by the owner landlord for providing amenities and facilities to the tenant under the contract of tenancy was held to be deductible for the purpose of determining the monthly rent for assessing annual value. It had used an expression "proper rent". Such a principle was laid down relying on the decision in Bell Property Trust Limited vs. Hampstead Borough Assessment Committee, 1940 (3) All ER 640. It had used an expression "proper rent". Such a principle was laid down relying on the decision in Bell Property Trust Limited vs. Hampstead Borough Assessment Committee, 1940 (3) All ER 640. But the decision had dealt with provisions other than section 174 of the 1980 Act. 9.1. Since it is a mode of assessment, therefore, inclusion of service charges cannot be excluded. A particular service, if forms an integral part of a particular premises, the same may form a component for the purpose of assessment of valuation of that particular premises. But if it is a common service, in that event, such service may not form a component for the purpose of determining the annual letting out value of that particular premises. 9.2. Now we may examine which of the components of the service charges could be taken into account for assessing the annual letting out value. The expression "service charge" used in section 174(1), as a guiding factor, is to be interpreted in its simple and ordinary meaning. It would mean the charges realized for the services provided. Such services must have co-relation with the land and building. The service charges are meant for proving the amenities, which are necessary for the enjoyment of the land and building in occupation of the person to whom these are provided. In fact, these amenities are provided for the use and occupation of the land and building. It must be part of the amenities attachable to the land and building. In other words, it would be those amenities, which are provided for better enjoyment of the building or to facilitate the use and occupation thereof. Therefore, it may include electricity charges, water charges, conservancy charges or various other facilities and amenities, which are provided for the better enjoyment of the building itself. But, it cannot include such components, which are not necessary for the purpose of enjoyment of the building. The charges realized from the tenant on account of certain services provided, which are co-related to the enjoyment of the property, are definitely service charges, which can be taken into account having regard to the principle of determining fair rent and various other decisions as discussed above, including the question of forming integral part of a particular premises or common services. It may be a case where common service is charged at a proportionate rate, which may though be common, but to that proportion, it may be an integral part of that particular tenancy. But these are dependent on the facts and circumstances of each case viz. how it is being charged. 9.3. We may note from the various decisions discussed hereinbefore that the Court had always attempted to proceed on the basis of fair rent principle in all these cases, even in Roma Sur (supra). The Court has adopted the principle of fair rent almost in all cases. 9.4. Having regard to the above discussion, it appears that in no event the service charges could include the occupier's share of taxes, if by reason of a contract included in the rent. Similarly, it cannot include commercial surcharge, if by reason of a contract, the same is also included in the rent. Therefore, while calculating rent including service charges, the assessing authority has to examine and find out that what are the components of the service charges, which are to be included or excluded. The service charge never intended to include the realization of occupier's share of taxes or commercial surcharges. The words 'service charges' is to be interpreted according to its common meaning in an ordinary sense as a common man will understand. It may be charged for some services and amenities. Occupier's share of tax or commercial surcharge is not charges for any service or amenities. Therefore, occupier's share of tax or commercial surcharge cannot form a component of a service charge, even if it is included in the rent or the service charge, as the case may be. 9.5. Rule of interpretation require the Court to interpret a particular expression according to its plain ordinary grammatical meaning. The words "service charge" has to be interpreted in its ordinary sense. Service charge means the charges for the services rendered. Therefore, whatever might be included in the service charges, the same would not form a component of the service charges for the purpose of assessment of valuation. The charges must have some co-relation with the services rendered or amenities provided. It may include all charges, which are related to the amenities provided, or the services rendered. But, it cannot include the component of occupier's share of taxes or the amount of commercial surcharge. The charges must have some co-relation with the services rendered or amenities provided. It may include all charges, which are related to the amenities provided, or the services rendered. But, it cannot include the component of occupier's share of taxes or the amount of commercial surcharge. Inasmuch as, the liability to pay occupier's share of taxes is a liability of the occupier to pay it to the Corporation. But by reason of section 170, the primary liability is cast upon the owner. He has to pay the same to the Corporation. Once it is paid, he is entitled to recover it under section 230 in the same manner rent is recoverable. Therefore, if component of occupier's share of tax is included, by reason of an agreement, in the service charges, the same cannot be constructed to form a part of or component of the service charges. In the same manner commercial surcharge is also a liability of the occupier using the premises as a commercial one. If this component is included in the rent or service charges, the same also do not form a component of service charges. Principle of fair rent : 10. When the legislature has adopted a particular mode for assessing the valuation of the land and building, the Court has to follow the same until and unless the same is declared ultra vires. This question was decided in Roma Sur (supra). But in Roma Sur (supra), the question of extent of service charges to be included as component for the determination of notional rent was not a concept to which the Court had addressed itself. All these decisions proceeded on the basis of the earlier decisions on the question of fair rent having regard to the Rent Control legislation. In section 174, there is a marked departure from the provisions. The earlier provisions related to the question of fair rent. But it had never included service charge consciously. Now service charge may be a component for the purpose of arriving at the annual letting out value. But, if the actual rent consists of the occupier's share of taxes or commercial surcharge, which are, admittedly, the liability of the occupier or the person, who use the premises for commercial purpose under the 1980 Act itself, then such a component cannot be included for the purpose of determining the notional annual letting out value. But, if the actual rent consists of the occupier's share of taxes or commercial surcharge, which are, admittedly, the liability of the occupier or the person, who use the premises for commercial purpose under the 1980 Act itself, then such a component cannot be included for the purpose of determining the notional annual letting out value. Occupier's share of taxes collected from the tenant, which is a determinable component and the commercial surcharge, which is an equally determinable component, cannot be treated to be a charge for service. Therefore, the expression "service charge" may include the charge for the services rendered. A tax component included in rent is not a charge for any service and as such it cannot be included within the expression "service charge". The expression "service charge" means charges levied on account of certain service rendered. But the collection of occupier share of tax or commercial surcharge from the tenant and its payment to the Corporation is not a charge for service. Therefore, the expression "service charge" cannot include, if by reason of agreement, the occupier's share of taxes and commercial surcharge collected by the landlord along with the rent. This also does not fit in the concept of fair rent. 10.1. In order to ascertain as to whether a particular service is an integral part of a particular tenancy, the same has to be determined on the basis of the ratio in Surat Textile Market Co-operative Shops and Warehouses Society Limited, Surat vs. Municipal Corporation of the City of Surat, 1998 (1) SCC 497 . Unless a particular amenity forms integral part of a particular tenancy, namely, the lift, it cannot form a component for service charges and it was so rightly excluded in the order of the Appellate Authority. But, so far as the other charges are concerned, the same may form a component for the purpose of arriving at a notional value at which the premises could be reasonably expected to be let out. 10.2. So far as the other components are concerned, those are no more res integra and have already been subjected to scrutiny and has become a settled proposition of law in various decisions culminated in Assistant General Manager, Central Bank of India (supra), 1995 JT (4) SC 310. 10.2. So far as the other components are concerned, those are no more res integra and have already been subjected to scrutiny and has become a settled proposition of law in various decisions culminated in Assistant General Manager, Central Bank of India (supra), 1995 JT (4) SC 310. 10.3 The concept of "rent proper" as decided by this Court stands eclipsed by the subsequent decision of the Apex Court and the law as settled in different decisions cited by the respective Counsel for the parties. Occupier's share of tax : Commercial surcharge : Cannot be included : 11. We may remember in the present case by virtue of the agreement, admittedly the rent includes the occupier's share of taxes as well as commercial surcharge. The Tribunal had excluded the commercial surcharge but not the occupier's share of tax. Section 230 of the 1980 Act provided for apportionment of consolidated rate. It provides that the person, who is primarily liable to pay the tax is entitled to recover the occupier's share of taxes from each of the occupier, half of such sum as bears to the entire amount of rate as paid by the owner, in the same proportion as the value of the portion of the land and the building in the occupation of such occupier bears to the entire value of such land or building. In the present case, we are concerned with one occupier. Clause (b) of section 230 entitles the owner to recover the entire amount of surcharge if the building is used for commercial or non-residential purpose. Section 230 has two parts. Clause (a) deals with the occupier's share of taxes, which is at the ratio of 50:50 before paid by the owner and the occupier respectively. The owner is the person primarily liable to pay the tax. Therefore, if he pays the owner's share as well as occupier's share in terms of its primary liability, he is entitled to recover the occupier share of tax from the occupier. The other part clause (b) entitles the owner to recover commercial surcharge if the premises is used for commercial or non-residential purpose by the occupier. The liability to pay commercial surcharge is that of the occupier or the person, who uses the premises for commercial or non-residential purpose. 11.1. The other part clause (b) entitles the owner to recover commercial surcharge if the premises is used for commercial or non-residential purpose by the occupier. The liability to pay commercial surcharge is that of the occupier or the person, who uses the premises for commercial or non-residential purpose. 11.1. The mode of recovery in terms of section 230 of the 1980 Act is provided in section 231 of the said Act. Section 230 provides that if a person primarily liable to pay the consolidated rate, becomes entitled to recover any sum from the occupier, the same can be recovered as if the said sum were rent payable to him by the occupier. Thus, the said tax is not a rent for any of the purposes of rent legislation. But, it is only a deeming clause creating a fiction only for the purpose of recovery. Therefore, if the occupier's share of tax is included in rent for the purpose of its recovery within the scope and meaning of section 231, in that event, it only forms part of the occupier's share of tax being recovered under section 231 and it cannot be rent. Therefore, whatever may be the tax, the 50% of which has to be excluded from the rent component. In case it is included with the rent component, in that event, it would attract the vires of imposing tax on tax. It is on this principle that the Tribunal had excluded the commercial surcharge from the rent component. 11.2. The component that forms occupier's share of tax recovered as a component of rent cannot be included for the purpose of computation of gross annual rent. Alike commercial surcharge, the occupier's of tax is also liable to be excluded, since it does not form the rent component even if it is included in rent having regard to the provision of section 230 read with section 231 of the 1980 Act. 11.3. Entry 49 of List II of the Constitution of India. This empowers an impost on land and building. This does not include imposition of tax on tax. The extent of the tax paid on account of occupier's share is surely determinable, the commercial surcharge is equally determinable. Therefore, these two quantum cannot form the rent component for the purpose of assessment. It has to be excluded while making the assessment. Allowance for cost of repair : 12. Mr. This does not include imposition of tax on tax. The extent of the tax paid on account of occupier's share is surely determinable, the commercial surcharge is equally determinable. Therefore, these two quantum cannot form the rent component for the purpose of assessment. It has to be excluded while making the assessment. Allowance for cost of repair : 12. Mr. Ghosh sought to interpret the phrase "less allowance of 10% for the cost of repair and other expenses necessary to maintain such land or building in a state to command such gross rent" to mean 10% for cost of repairs and 10% for other expenses necessary to maintain such land and building in a state to command such gross rent. In support he had referred to section 175 dealing with huts where only cost of repair was included and other expenses were not included. But such a proposition is devoid of any substance. Inasmuch as, section 175 prescribes that annual letting out value shall be deemed to be 10% of such gross rent at which such land with hut or building comprising in a Thika Tenancy may reasonably be expected to let from year to year. It has not provided for any allowance for repair or otherwise. Therefore, analogy of section 175 is completely inapplicable. The allowance of 10% is the cost of repair and other expenses. The use of the phrase as engrafted, does not make the same disjoint. The 10%, after which comma is used, qualifies both cost of repairs and other expenses. This cost of repair and other expenses is qualified by the phrase necessary to maintain such land or building in a state to command such gross rent. In other words, the cost of repair and other expenses incurred for maintaining such building in a state to command such gross rent is qualified by 10%. It does not add another 10% to it. It is 10% of the amount spent for maintaining the land and building in a state of repair including any other expenses other than repair, if necessary, to maintain such building for commanding such gross rent. Order : 13. In the result, the order impugned stand set aside and the matter is remitted to the Tribunal for deciding the question afresh, excluding the tax component namely the occupier's share of tax in addition to the commercial surcharge already excluded by the Tribunal. Order : 13. In the result, the order impugned stand set aside and the matter is remitted to the Tribunal for deciding the question afresh, excluding the tax component namely the occupier's share of tax in addition to the commercial surcharge already excluded by the Tribunal. The Tribunal shall decide the same after giving opportunity to the parties within a period of three months from the date of communication of this order, in accordance with law, and reassess the valuation accordingly. In case it is shown apart from the lift for which a sum of Rs. 2,000/- has been excluded, any other services are shown not to form integral part of the tenancy, the same may also be considered and be decided accordingly having regard to the law governing the subject. 13.1. This writ petition is, thus, disposed of. There will, however, be no order as to costs. All parties concerned are to act on a xerox signed copy of the operative part of this order on the usual undertaking. Writ petition disposed of with direction.