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Judgment
Banerjee, J.—The Appellant, the Asiatic Society, is the owner of premises No. 1A, Park Street, Calcutta, comprising of land measuring 11 cottahs 13 chittacks 35 7|8 square feet, and certain buildings standing thereon. The premises are in the occupation of Standard Vacuum Oil Company, lessee under the Appellant. The rent payable by the lessee is Rs. 600 per month. In addition thereto the lessee pays the occupiers share of the consolidated rates.
The lessee obtained permission from the Appellant to erect a hoarding for advertisement purposes and to hire out the same to advertisers, upon an agreement to pay to the Appellant a sum of Rs. 1,000 per month on account of such facility.
It is not disputed that the lessee erected a hoarding consisting of several iron pillars, rising about 18 feet above the ground, carrying a rectangular iron frame, with space demarcated thereon, for separate advertisement. The rectangular iron frame is affixed to the pillars but is capable of being unscrewed and detached therefrom.
Under a revaluation made under the Calcutta Municipal Act of 1923, the premises had been assessed to an annual value of Rs. 19,094 with effect from the first quarter 1948-49. At the next revaluation, made under the Calcutta Municipal Act, 1951, the premises was assessed to an annual value of Rs. 15,887 to take effect from the second-quarter 1954-55.
The assessment of the annual value was made on the following calculation:
- Rs. a. p- Rs. a. p.
Bent per month 600 0 0
Part of the consolidated rates borne by the tenant. 67 0 0
Charges payable for permission to erect hoarding 1,000 0 0
1,667x12..... 1,667 20,004 0 0 0 0
Less 11 1/4 per cent. 2,351 0 0 17,653 1,766 0 0 0
tans 10 per e-eat... 0
Annual Value 15,887 0 0
Aggrieved by the assessment, as aforesaid, the Assessee Appellant preferred an appeal, u/s 183 of the Calcutta Municipal Act, 1951, to the Calcutta Small Causes Court. Of the several objections taken to the assessment of annual value one was:
The said Advertisement hoarding structure is neither building "nor land and as such is not liable to be assessed to annual value "or rates under the said Act. * * *".
According to the Assessee the annual value should have been fixed according to following calculation;
Rs. a. p. Rs. a. p.
Bent per month.-. 600 0 0
Part of the consolidated rates borne by the tenant. 67 0 0
667x12 667 8,004 0 0 0 0
Less 11 1/4 per cent. 901 0 0 7,103 0 0
I eas 10 per cent...... 711 0 0
Annual Value 6,392 0 0
The Court below dismissed the appeal with the following observation:
The Special Officer of the Corporation of Calcutta (the Respondent) has assessed the valuation of these on the basis of Rs. 667 per month being monthly rent and occupier''s share of the Municipal Tax payable and tbsro is no objection from the Appellant''s side on that account. It appears however that tits. aforesaid lessee has also the right to erec,t an advertisement hoarding structure on the land and uso and let cut the space thereon and permission therefor has been granted to the lessee for a consideration of Rs. 1,000 payable to the Appellant per month. Now as to the nature end position of the structure the evidence discloses that io is a rectangular frame at some height from the ground but it stands on several iron pillars which are affixed to the ground. It can, however, be detached by loosing the screws. It is thus contended on behalf of the Appellant that this advertisement hoarding does not fall within the definition of "building" in Section 5(6) of the Calcutta Municipal Act of 1951 and as such it is not land or building which can be assessed u/s 168 of the Act. But it is, at any rate, affixed to the ground and the lessee has been given permission to erect it on the land and use it for a consideration of Rs. 1,000 per month payable to the Appellant-lessor. This is a benefit in relation to the user of the land of the premises in question. The lessee has been given a right to use this land in a particular manner and a sum of Rs. 1,000 has admittedly been agreed to be payable by the lessee per month for such user. This can clearly be included in the letting value of the land and should thus form a part of the valuation of the land. In other words, though the advertisement hoarding itself is not a land or building within the meaning of the Calcutta Municipal Act the letting value for its erection and user should be taken into account in assessment of the valuation of the land of the premises upon which it stands. This was, therefore, rightly taken into account by the Special Officer of the Calcutta Corporation in assessment of the valuation of the disputed premises.
The Assessee now appeals to us against the aforesaid decision.
The Court below did not hold that the hoarding was a building. In Stroud''s Judicial Dictionary the definition in Webster that a boarding is "a fence inclosing a house and materials while buildings are at work" has been rightly criticised as incomplete and also inaccurate if it is to be understood as, necessarily, meaning something a mere temporary character. A hoarding may be a fence, either temporary or permanent. It may also be an obstruction kept up against somebody''s window or opening to prevent acquisition of right of light or air. It may again be an advertisement hoarding, namely, a screen of wooden board or metal sheet perpendicularly put up, on pillars or otherwise, to display advertisement. Hoardings "are not necessari y walls and as such buildings, within the meaning of Section 5(b) of the Calcutta Municipal Act, 1951 [corresponding to Section 3(7) of the Act of 1923]. Advertisement hoardings, erected on pillars, cannot be walls in any sense of the term, because they have none of the purposes of walls, for example, enclosing, covering or serving as boundary. The view that we take of advertisement hoardings finds support from Section 229, appearing in chapter XVI of the Calcutta Municipal Act, 1951, which is headed "License fee for "advertisements". Section 229 is set out below:
Every person who erects, exhibits, fixes or retains upon or over any la-id, building wall, hoarding or structure any advertisement, or who displays any advertisement to public view in any mariner whatsoever, visible from a public street or other public place, shall pay for every such advertisement which is so erected, exhibited, fixed, retained or displayed to public view, a license fee * * * * *
It will appear from the above section that the word "boarding" has been used in juxtaposition with the words "building" and "wall" indicating thereby that the Act recognises the difference amongst buildings, walls and hoardings set up for advertisement. We, therefore, hold that an advertisement hoarding is not a wall and, therefore, not a building, unless of course, what is called a hoarding is really a wall and therefore a building.
The next question for our consideration is whether the sum of Rs. 1,000 which the Assessee Asiatic Society receives for permission granted for the hoarding, is part of the gross annual rent and as such falls within the mischief of Section 168 of the Calcutta Municipal Act, 1951. We are not sure whether the sum of Rs. 1,000 is being paid by the lessee to the Assessee, Asiatic Society, as part of rent. The lease is not in evidence, nor is the document, permitting the lessee to put up the hoarding, to be found in the records of this case.
One Tarak Nath Das Gupta (P.W. 1) deposed on behalf of the Assessee-Appellant, but his evidence is" absolutely unhelpful. In his exarnination-in-chief he said as follows:
The land and all the structures thereon except the hoarding are let out to the Standard Vacuum Oil Company at a rental of Bs.600 per month and occupier''s share of the Municipal Tax. The company took permission to fix the hoarding and use it as an advertisement medium at a charge of Rs. 1,000 per month. They are still in occupation thereof as such.
In his cross-examination he stated as follows:
The deed of lease:''s not with me. I do not know with whom it is lyitig.
There is another agreement as to the permission granted to the Standard Vacuum Oil Company for use of the space for the advertisement hoarding. I do not know where it is now.
In the absence of the deed of lease and the agreement, we cannot assure ourselves of the real nature of the sum of Rs. 1,000 paid by the lessee to the Assessee, Asiatic Society. If the said sum of Rs. 1,000 forms no part of the gross rent, then it cannot be taken into account in assessing the consolidated rates.
In this view of the matter, we set aside the judgment of the Court low and direct it to re-hear the matter, keeping in view the observations contained in this judgment.
This appeal is allowed and the case is remanded to the Court below. Cost of this appeal will abide the result.
Niyogi, J.
I ajree.