Judgment :- P.K. DEB, J. (1). The core issue in the appeal is whether section 174(4) of the Calcutta Municipal Corporation Act, 1980 is ultra vires Constitution of India. (2). The premises in question situated at 29, Rabindra Sarani formerly known as 150, Lower Chitpur Road, Calcutta is owned by a public charitable trust called Rai Bahadur Bissessurlal Motilal Halwasiya Trust. Mrs. Laxmi V. Mansata, Mr. Narendra V. Mansata, Mr. Suryakant V. Mansata and Mr. Jitendr V. Mansata took tenancy of the southern portion of the said premises at a monthly rent. The cinema hall known as Naaz was administered by the members of the Mansata family. The trust received R. 20,300/-by way of rent from different tenants in the said premises. The annual valuation of the building was assessed at 42257A, as reflected in the demand notice for 4th quarter 1968-69. The annual valuation was subsequently raised to Rs. 82941/- after allowing statutory induction. Against the raising of the annual valuation from Rs. 82941/-to Rs. 1,96,968/- the trust filed an objection. On hearing the contentious matter, the Special Officer VIII assessed the valuation at Rs. 1,25,874/-. Against the contemplated revision of the tax structure, the trust filed an application. Instead of taking the actual rent received by the trust into account, the Hearing Officer, reassessed the annual valuation of the said premises. Ignoring the representation of the trust, as contained in its letter dated 29th June, 1987, the annual valuation of the premises in question was assessed at Rs.202677/-. Challenging the re-fixation application under Article 226 of the Constitution was filed. The learned Single Judge was pleased to pass an interim order in terms of prayer G and H of the writ petition restraining KMC from realizing the tax in terms of the purported order dated 10th August, 1987. KMC went ahead with reassessing the annual valuation. Again the proposed assessment of the annual valuation of the said premises at Rs. 313940/-for the period commencing from 4th quarter 1986-87, the trust filed an objection. The annual valuation was mainly based on the sale proceeds from the cinama hall. Applying the same principle, the annual valuation was subsequently raised to Rs. 601410/-. Resorting to the same practice, the annual valuation was assessed at Rs. 683970/- with effect from 4th quarter 1998-1999. The purported order dated 29th August, 2002 passed by the Hearing Officer XII was challenged in the writ petition. Applying the same principle, the annual valuation was subsequently raised to Rs. 601410/-. Resorting to the same practice, the annual valuation was assessed at Rs. 683970/- with effect from 4th quarter 1998-1999. The purported order dated 29th August, 2002 passed by the Hearing Officer XII was challenged in the writ petition. Dubbing the provision of section 174(4) of the Calcutta Municipal Corporation Act as unconstitutional and void, the petitioners prayed for issuance of writ prohibiting the respondent Nos. 1 to 6 from giving any effect to the purported notice dated 29th August, 2002. Judging from the aspect of the legislative competence and act of discrimination, the learned Single Judge viewed the aforesaid provision contained in 174(4) as ultra vires of the Constitution. The judgment has been challenged in the instant appeal. (3). Appearing on behalf of the appellant, Mr. A.K. Das Adhikari, learned Counsel has submitted, that the Constitutional validity of section 174 of the Calcutta Municipal Corporation Act, 1980 having been settled once for all in the case of Roma Sur vs. State of West Bengal, reported in 95 CWN (I), the question of Constitutional validity of the provision contained in section 174 of the Calcutta Municipal Corporation Act should not have been reopened before the learned Single Judge in writ application. Since the Constitutional validity of the provision of section 174 has been upheld in the case of Roma Sur vs. State of West Bengal (supra), the validity of the Constitutional provision of section 174 of the Calcutta Municipal Act should not have been gone into by the learned Trial Judge. The case of Delhi Cloth and General Mills Co. Ltd. vs. Shambhu Nath Mukherjee, reported in, AIR 1978 SC 8 , has been cited by Mr. Das Adhikari to substantiate his contortion that where a competent Court, declares a particular provision as intra vires and repelled the objection under Article 14 of the Constitution, it would not be permissible to raised that question again by submitting that a new ground could be raised to sustain the objection. Das Adhikari to substantiate his contortion that where a competent Court, declares a particular provision as intra vires and repelled the objection under Article 14 of the Constitution, it would not be permissible to raised that question again by submitting that a new ground could be raised to sustain the objection. The Constitutional validity of section 174 of the Calcutta Municipal Corporation Act, 1980 having been decided once for all in the case of Roma Sur vs. State of West Bengal (supra), the learned Trial Court not have allowed the writ validity of section 174 of the Calcutta Municipal Corporation Act, 1980 having been decided once for all in the case of Roma Sur vs. State of West Bengal (sapra), the learned Trial Court should not have allowed the writ petitioner to rake up the settled issue in another writ application. (4). Calling the procedure postulated in section 174 of the Calcutta Municipal Corporation Act as the mode of determination of annual valuation of the land, Mr. Das Adhikari has submitted that the determination of the valuation of the land has got nothing to do with regard to tax on income. Since there is no specific mode for determination of the annual valuation of a cinema hall or any other hall meant for public entertainment the gross annual receipts as well as receipts from rent and advertisement were taken into account for the purpose of determination of the annual valuation of the aforesaid building which was partly used for public cinema shows. Since it is just a mode of determination of annual valuation of a building, it cannot be classified as tax on income. Citing the case of Government Servant Cooperative House Building Society Ltd. and Ors. vs. Union of India and Ors., reported in 1998(6) SCC 381 , it is submitted that the State Legislature is competent to levy municipal tax, as the imposition of municipal tax falls well within Entry 49 of List II of the Seventh Schedule to the Constitution of India. Merely because by virtue of charging section, annual rent actually received is taken as the basis for determining the rateable value for the purpose of levy of property tax, that would not convert the property tax into tax on income of the owner. Merely because by virtue of charging section, annual rent actually received is taken as the basis for determining the rateable value for the purpose of levy of property tax, that would not convert the property tax into tax on income of the owner. Once nature of the tax in pith and substance falls under Entry 49 of List II, it cannot invalidated, if it incidentally trenches upon the field covered by Entry 82 of List I of Schedule VII. Since there was no prescribed method for determination of the annual valuation of a cinema hall, income from sale proceeds, advertisement and rent for the purpose of assessing of the annual valuation were rightly taken into account for determination of annual rent. (5). Commenting on the observation of the learned Single Judge about the discriminatory provision contaired in sub-section (4) of section 174, Mr. Das Adhikary has submitted that it is within the power of the legislature to apply reasonable classification in the public interest. The provision contained in section 174(4) of the Calcutta Municipal Corporation Act cannot be called to be discriminatory merely because there is no provision of deduction of income on account of depreciation. When a building is used for public cinema shows or theatrical purpose or other public recreation, amusement and entertainment, ascertainment of the depreciation may not be all possible. The onus of proving hostile unequal treatment not having been established, the Trial Court should not have struck it down as being discriminatory in nature, as contended by Mr. Das Adhikari. Mr. Das Adhikari has also referred to the case of State of Bihar and Ors. vs. Sachchidanand Kishore Prasad Sinha and Ors., reported in JT 1995 (1) SC 459, to vindicate his stand that a mere possibility of a better classification is no ground to strike down the classification made by the statutory authority more particularly in the case of a taxing enactment. (6). Challenging the contention that Constitutional validity of a provision cannot be reagitated, Mr. (6). Challenging the contention that Constitutional validity of a provision cannot be reagitated, Mr. Bhaskar Sen, learned Senior Counsel, has submitted that since the Constitutional validity of the provisions contained in sub-sections (1) and (4A) of section 174 of the Calcutta Municipal Corporation Act, 1980 was the issue in the case of Roma Sur vs. State of West Bengal (supra) finding in the aforesaid judgment will not, stand in the way of challenging the vires of the provision contained in sub-section (4) of section 174. Drawing the attention of the Court to the judgment delivered in the case of Roma Sur vs. State of West Bengal, Mr. Sen has submitted that nowhere in the aforesaid judgment any discussion whatsoever was made on the validity of the provision of subsection (4) of section 174. The Constitutional validity of sub-sections (1) and (4A) of section 174 of the Calcutta Municipal Corporation Act, 1980 not having been challenged in subsequent writ application, the Constitutional validity of sub-section (4) of section 174 was rightly taken up and decided by the learned Single Judge. (7). Emphasizing the aspect that a declaration made without proper discussion of the subject will not operate as a binding precedent, Mr. Sen has contended that a finding based on non-appreciation of facts cannot have a binding effect. Mr. Sen has strongly relied on the case of State of U.P. and Anr. vs. Synthetics and Chemicals Ltd. and Anr. reported in 1991(4) SCC 139 , to substantiate his stand that a Court would not feel bound by the earlier decision if it is rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority. It is submitted that the Apex Court has underscored that a decision passes sub silentio in the technical sense that has come to be attached to the phrase, when particular point of law involved in decision is not perceived by the Court or present to its mind. Relying on the ease of Municipal Corporation of Delhi vs. G. Kaur, reported in 1989(1) SCC 101 , the Apex Court has once more reiterated that "precedent sub silentio and without argument are of no moment". The Courts, thus, have taken recourse to this principle for relieving from injustice perpetrated by unjust precedent. Relying on the ease of Municipal Corporation of Delhi vs. G. Kaur, reported in 1989(1) SCC 101 , the Apex Court has once more reiterated that "precedent sub silentio and without argument are of no moment". The Courts, thus, have taken recourse to this principle for relieving from injustice perpetrated by unjust precedent. The Apex Court in paragraph 41 of the aforesaid judgment of State of U.P. vs. Synthetics and Chermicals Limited (supra) has also underlined that a decision which is not express and is founded on reasons, not it proceeds on consideration of issues cannot be deemed to be a law declared to have a binding effect, as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline but that which escapes in the judgment without any occasion is not ratio decidendi. (8). Commenting on the legislative competency behind enactment of subsection (4) of section 174 of the Calcutta Municipal Corporation Act, 1980, Mr. Sen has argued that the State Legislature is well within its power to impose tax on lands and buildings as is squarely covered by item No. 49 of List II, the State List of Schedule VII to the Constitution of India. However, the State Legislature is debarred from imposing tax on income in round about way, inasmuch as tax on income is well within the Union List of 7th Schedule to the Constitution of India. There is a clear distinction between tax on land and tax on income arising from land. The State Legislature is definitely entitled to make legislation on tax on land, while tax on income raising from land would be definitely out of the ambit and purview of the State Legislature. The imposition of levy on cess based on the royalty derived from mining lands having been made in the garb of taxes of mineral rights, the Apex Court in Orissa Cement Ltd. vs. State of Orissa and Ors., reported in AIR 1991 SC 1676 , struck it down as unconstitutional. Similar issue cropped up in the case of India Cement Ltd., 1990 (1) SCC 12 . Rejecting the effort of the State to justify the imposition of levy under Entries 45, 49 and 50 of the List II of the Schedule VII, the Apex Court, it is submitted, underlined the proposition that levy on cess on royalty can be construed as an act of imposing tax on income. Rejecting the effort of the State to justify the imposition of levy under Entries 45, 49 and 50 of the List II of the Schedule VII, the Apex Court, it is submitted, underlined the proposition that levy on cess on royalty can be construed as an act of imposing tax on income. The Apex Court has ruled that the State Legislature is not competent to levy the impugned cess as it is not covered by item No. 49 or 50 of List II of 7th Schedule. It is to all intents and purposes a tax on income. It is viewed that royalty which is connected with land cannot be said to be a tax directly on land as a unit. Royalty is payable on a proportion of the minerals extracted from the land. No tax can be levied or is leviable under the impugned act being no mining activity is carried on. It is thus manifested that it is not related to land as a unit which is only method or valuation of land under Entry 49 of List II. Thus in India Cement Ltd. and Ors. vs. State of Tamil Nadu and Ors., reported in 1990(1) SCC 12 , the Apex Court viewed that the impugned legislation imposing its pith and substance is a tax on royalty and not a tax on land. The same analogy, as submitted by Mr. Sen, applies in the case of imposition of tax on cinema hall as postulated in sub-section (4) of section 174. No tax can be levied or leviable if no cinema show activities are carried on. It is, thus, not a tax on land. It is nothing to apply, to impose tax on income in a dubious way, as submitted by Mr. Sen. Mr. Sen has taken a leaf from the judgment in Goodricke Group Ltd. reported in 1995 (Suppl.) 1 SCC 707, in support of his contention that income of a building would mean the rent that is or that can be received, it cannot include the income made from some activities carried therein. The tax on land or building, thus, cannot include income from a manufacturing activity carried on such land. (9). Calling the provision contained in sub-section (4) of section 174 as uncertain, arbitrary, unreasonable and discriminatory, Mr. The tax on land or building, thus, cannot include income from a manufacturing activity carried on such land. (9). Calling the provision contained in sub-section (4) of section 174 as uncertain, arbitrary, unreasonable and discriminatory, Mr. Sen has submitted that unlike subsection (1) of section 174 of the Calcutta Municipal Corporation Act, there is no corresponding provision in sub-section (4) for deduction on account of depreciation for the purpose of calculation of annual valuation. The cinama hall meant for public entertainment is also subjected to same wear and tear. Denial of such benefit cannot be justified on intelligible defferentia. Furthermore, since tax is based on the sale proceeds, it will always be of uncertain nature. If the hall is not used or operate for months together, no tax can be realized. The very object of realisation of tax would be frustrated if tax restructure is based on sale proceeds of cinema shows on a hall. In view of the uncertainty and ambiguity in sub-section (4) of section 174, the section is liable to be struck down as unconstitutional as well. (10). In the case of Roma Sur vs. State of West Bengal (supra) it was contended, that sections 171, 174, 182, 189, 195, 219 and 442 of the Calcutta Municipal Corporation Act, 1980 were unconstitutional and void. In dealing with such question, it has been held that section 174(1) of the said Act of 1980 should be reasonably interpreted to mean that for the purpose of valuation of land or building, municipal authority is entitled to value the property on the basis of contractual rent only when the fair rent or standard rent is not so fixed by the Rent Controller but, in case, such fair or standard rent is fixed, that should be the basis for determination of the annual value. The non-obstante clause contained in the said section cannot be construed so as to override the provisions of the West Bengal Premised Tenancy Act but the section should be reasonably interpreted as to provide a consistent meaning, if read together with the provisions or the West Bengal Premises Tenancy Act. (11). The non-obstante clause contained in the said section cannot be construed so as to override the provisions of the West Bengal Premised Tenancy Act but the section should be reasonably interpreted as to provide a consistent meaning, if read together with the provisions or the West Bengal Premises Tenancy Act. (11). Negativating the contention that there as no scope for valuing a property on the basis of the value of the building of tenant by adding the estimated present cost of erecting the building at the time of assessment less reasonable amount to be deducted on account of depreciate fixation of annual valuation of land at 7 per cent of the estimated market value of the land has been upheld. Observing that section 174 (4A) of Calcutta Municipal Corporation Act cannot be said to be unreasonable and arbitrary, it is held that one of the suitable method of valuation may be based on capital value on which value has to be found by applying suitable per cent. In dealing with the provision of section 174, the Court has observed in Roma Surs case that provisions contained in section 174 are based on recognised principles of rating and valuation which have been traditionally followed and have been in operation in India for a long time. Brushing aside the contention that section 174 does not contain any guideline, it is held that the Act also provides for filing of return, consideration of such return, opportunity for lodging objection and consideration of objection by Hearing Officer. It also provides for an appeal to the Municipal Assessment Tribunal. If there is an arbitrary valuation, it would be open to the aggrieved party to challenge the validity of the particular valuation in an particular case by way of appeal under a statute or to move the High Court for grant of a writ under Article 226 of the Constitution. It is viewed that all the contentions and submissions made in resect of section 174 of said Act for declaring the same as ultra vires appear to be without any substance and/or misconceived and the said provision in Constitutionally valid. (12). It is viewed that all the contentions and submissions made in resect of section 174 of said Act for declaring the same as ultra vires appear to be without any substance and/or misconceived and the said provision in Constitutionally valid. (12). Relying on the case of Patel Gordhandas Hargovindas vs. Municipal Commissioner, Ahmedabad and Anr., reported in AIR 1963 SC 1742 , it is held in Roma Surs case that annual value or rateable value can be arrived at by one of three modes namely (1) actual rent fetched by the land or building where it is actually let (2) where it is not let, rent based on hypothetical tenancy particularly in the case of building and (3) where either of these two methods is not available, by valuation based on capital value from which annual value has to be found by applying a suitable percentage. (13). Justifying the procedure for determination of annual valuation, the Court has observed that the petitioner is not entitled to a declare that the provisions contained in section 174 of the Calcutta Municipal Corporation Act, 1980 are unconstitutional and void. We do not subscribe to the view that a declaration or conclusion had been arrived at without application of mind or proceeded without any reason. It is true that a decision which is not expressed and not founded on reasons it cannot be deemed to be a law having a binding effect as is contemplated by Article 141, The provision contained in section 174 have bean discussed threadbare. The decision has founded on reason. It is not a case of precedents sub silentio and without argument. Section 174 of the Calcutta Municipal Corporation Act, 1980 having been held to be Constitutionally valid, such question should not be entertained in a separate writ application. (14). The question of legislative competitiveness on imposition of cess on royalty was raised in India Cement Ltd. and Ors. vs. State of Tamil Nadu Ors., reported in 1990(1) SCC (supra). In dealing with tax on land, the Apex Court has observed in India Cement Ltd. and Ors. vs. State of Tamil Nadu and Ors., (supra) that tax must be directly on land as a unit and not on income raising from land. It is observed that royalty on mineral rights is not tax on land but the payment for the user of land. vs. State of Tamil Nadu and Ors., (supra) that tax must be directly on land as a unit and not on income raising from land. It is observed that royalty on mineral rights is not tax on land but the payment for the user of land. Accordingly, it has been held that cess on royalty being tax on royalty, it is beyond the competence of the State Legislature. Since section 9 of the Central Act covers the field the State Legislature is denuded of its power to impose tax under Entry 23 of List II. It is held that cess on royalty cannot be sustained under Entry 49 of List II as being a tax on land. The Apex Court has made a clear distinction between tax directly on land and tax on income arising from land. Royalty being that which is payable on the extraction from the land and cess being an additional charge on that royalty, it cannot be considered to be a tax on land. In Orissa Cement Ltd. vs. State of Orissa and Ors., there had been an attempt to impose cess under Entry 45, List II, Schedule VII to the Constitution. In dealing with the power of the State Legislature, the Apex Court has observed that imposition cess of cannot be justified by having recourse in Entry 50 of List II. It is held that tax on royalty cannot be a tax on minerals. It is observed that cess is not a tax on mineral rights; it is a tax on the minerals actually produced and can be no different in pith end substance from a tax on goods produced which cones under item 84 of List I, as duty of excise. It was considered to be a tax on income arising from land. (15). Distinguishing tax on land and income derived from the land the imposition of cess was struck down. The Apex Court has highlighted the proposition that there could not be any doubt that the word land in Entry 49, List II of the Schedule VII includes all lands whether agricultural or non-agricultural. The State legislature has, thus, got power and jurisdiction to impose tax on land and building. (16). Section 174 of the Calcutta Municipal Corporation Act, 1980 prescribes the procedure for determination of annual valuation. It comprises and incorporates several methods for determination of annual valuation. The State legislature has, thus, got power and jurisdiction to impose tax on land and building. (16). Section 174 of the Calcutta Municipal Corporation Act, 1980 prescribes the procedure for determination of annual valuation. It comprises and incorporates several methods for determination of annual valuation. In interpreting the word rate and tax, the Apex Court in Patel Gordhandas Hargovindas vs. Municipal Commissioner, Ahmedabad and Anr. (supra) has observed that rate is not a kind of income tax, nor is it a tax on wealth. It is levy on the owner and/or occupier of the immovable property, on the basis of a notional value of such property which is called the "rateable value" or the annual rental value (AEV). In Century Spinning and Manufacturing Company vs. District Municipality of Ullhasnagar and Ors., reported in AIR 1968 SC 859 , the Apex Court in interpreting the word rate has observed that the word rate must be understood to mean a tax for local purpose imposed by the local authority, the basis of which is annual value of lands and buildings, arrived at in one of the three ways, viz., (i) actual rent where land or building is actually let, (ii) where it is not let, the rent based on hypothetical - tenancy, particularly in the case of building and (iii) where either of the two modes is not available by the valuation based on capital value from which the annual value has to be found by applying suitable percentage which may not be the same for lands and buildings. In the case of determination of annual valuation of a building and part thereof used for public cinema shows or theatrical performance, or as a place of similar public recreation, amusement or entertainment, the gross annual rent of such land or building or post thereof, as the case may be, shall be deemed to be seven and a half percent of the gross annual receipts in respect of such cinema shows or theatrical performances or place of public recreation, amusement or entertainment, including receipts from rent and advertisements and sale of admission tickets, as contemplated in section 174(4) of Calcutta Municipal Corporation Act, 1980. The law recognises different methods and schemes for arriving at the annual value of a building-the "competent or comparative method", the "profit basis" the Contractors method and the unit method. The law recognises different methods and schemes for arriving at the annual value of a building-the "competent or comparative method", the "profit basis" the Contractors method and the unit method. One of the methods recognised by the law has been incorporated in sub-section (4) of section 174. It is just a mode of determination of annual valuation. Unlike cess on royalty, it is not a tax on income. (17). As observed by the Apex Court in Government Servant Cooperative House Building Society Ltd. and Ors. vs. Union of India and Ors. (supra) merely because annual rent actually received is taken as the basis for determining the rateable value for the purpose of levy of property tax that would not convert the property tax on income of the owner. Nature and subject-matter of the tax is different from the method of calculation of the tax. Once nature of the tax in pith and substance falls under Entry 49 of List II, it cannot be invalidated if it incidentally trenches upon the field covered by Entry 82 of List I of Schedule VII. (18). The Court should not go into the enquiry on the wisdom of the legislature unless the Act or the Statute is found to be an affront or a violation of a Constitutional provision. If the law in its rational and logical character meets the demand of the Constitution, it has to be held to be Constitutional and wisdom of the legislature ought not to be doubted. What is prohibited in Article 14 of the Constitution is class legislation and not classification for the purpose of legislation. There can be classification on intelligible differentia. There may be several reasons for not extending the benefit of depreciation under sub-section (4) of section 174. The fact that such benefit has not been extended cannot be a ground for calling it as unconstitutional as violative of Article 14 of the Constitution. In view of the user of hall for public recreation and amusement by large number of persons, it will entail a great strain on municipal service. In most of the cases, it is used for commercial purposes. Like fluctuation of rent, there may be fluctuation of realization of sale proceeds as well. In view of the user of hall for public recreation and amusement by large number of persons, it will entail a great strain on municipal service. In most of the cases, it is used for commercial purposes. Like fluctuation of rent, there may be fluctuation of realization of sale proceeds as well. In the event of a building or part thereof not being used for public cinema shows or theatrical performances or as a place of similar public recreation, amusement or entertainment for substantial period, there is always scope for reduction of the annual valuation. Annual valuation in most of the cases may fluctuate and vary. That itself cannot be a ground for calling it unconstitutional either. We are afraid we cannot subscribe to the view of the learned Single Judge that entire provision of sub-section (4) of section 174 is liable to be struck down as unconstitutional and void. We do reiterate that the procedure postulated in sub-section (4) of section 174 is just a method of calculation of annual valuation of land and, as such, it cannot be dubbed as a tax on income, Accordingly we allow the appeal, setting aside the order of the learned Single Judge. Appeal allowed.