Appeal No 378 of 1965
Appeal from the Judgment and decree dated April 9 1963 of the Bombay High Court in First Appeal No 616 of 1961
Rai Bahadur and B R Agarwala for the appellants
section T Desai O P Malhotra and 0
C Mathur for the res pondent
547 The Judgment of the Court was delivered by Shelat J
Whether in determining the rateable value of a building the assessing authority under section 1541 of the Bombay Municipal Corporation Act III of 1888 can take into consideration income derived by the owner under an agreement entitling an advertisement hoarding to be put up on the roof of such building is the question arising in this appeal
For consideration of this question a few relevant facts may first be recited
The appellants are the owners of Fulchand Nivas a building situate at the corner of what was known at the relevant time as Marine Drive and Sandhurst Road opposite Chowpatty Sea Face Bombay
The building consists of ground and five upper floors and a terrace
The ground floor and five upper floors of the building were and are let out
For the last few years the Municipal Corporation has been assessing the rateable value of the building as equivalent to the actual rents recovered by the owners
After the rateable value for the year 1956 57 was assessed it was found that the terrace of the building was used for advertising Tata Mercedes Benz Automobile Trucks and Buses by means of a neon sign
This was done under an agreement dated February 5 1957 entered into by the appellants under which the Tata Locomotive and Engineering Co Ltd had a reed to pay to the appellants Rs 800 per month in consideration of their being allowed to display the said advertisement and a further sum of Rs 700 in consideration of the owners agreeing not to allow any one else to use any portion of the said building for displaying any advertisement save those of the tenants on the ground floor not above the level of the height of the ground floor
The agreement provided also that it would be the owners who during the continuance of the agreement would pay all existing and future rates taxes etc which would be assessed imposed charged or become payable in respect of the said building or the said advertisement except the Municipal Licence fee in respect of the said advertisement which would be borne by the Company
On March 3 1958 the respondent corporation issued a notice under section 167 of the Act informing the owners that the assessment book had been amended and that the amount of the rateable value of the building was increased from Rs 44320 to Rs 64685
The appellants thereupon filed a complaint under section 1632 of the Act against the said increase and the assessing authority by an order dated February 21 1959 reduced the rateable value from Rs 64685 to Rs 59600
In maintaining the increase from Rs 44320 to Rs 59600 the assessing authority took into account the additional income arising from the said agreement and received by the appellants
The appellants thereupon filed an appeal before the Chief Judge Small Cause Court Bombay objecting to the said increase
The Chief Judge disallowed the said increase and directed that the rateable value should be Rs 44320
The Chief Judge held that under the said agreement 548 there was no demise or transfer of an interest in the said property in favour of the Committee that the said agreement amounted merely to a licence revocable at any time though subject to the express terms of the agreement and was no more than a grant of a right in gross to display neon sign outside the property and that the only user of the property was that of a small portion of the terrace used as a base for the said advertisement
He held that it was not any inherent or intrinsic quality of any portion of the property which commanded such a high consideration as the sum of Rs 1500 per month
Aggrieved by this order the respondent Corporation filed an appeal before the High Court at Bombay
The High Court held that the Chief Judge was in error in holding that the Municipal Corporation was not entitled to take into account income earned by the owners under the said agreement set aside his order and restored the original value assessed by the assessing authority at Rs 59600
The High Court analysed section 154 of the Act and after consideration of the rules as to rating recognised by several decisions both English and that of the High Court itself in Mahad Municipality vs Bombay SRT Corporation1 held that the said increase was justified
The appellants then applied for and obtained a certificate under article 1331a of the Constitution and filed this appeal
Counsel for the owners challenged the correctness of the High Court s judgment and order and contended that in deter mining the annual rent of the building the assessing authority can take into account the rent at which the
building is expected to be let that therefore the income derived from an agreement which amounts to a mere licence and not a demise cannot be added to such rent such income being totally irrelevant to the concept t of annual rent envisaged in rating
To appreciate the contention it is necessary first to examine section 1541 of the Act
The section provides that in order to fix the rateable value of any building or land assessable to a property tax there shall be deducted from the amount of the annual rent for which such land or building might reasonably be expected to let from year to year a sum equal to ten percentum of the said annual rent and the said deduction shall be in lieu of all allowances for repairs or on any other account whatever
The assessing authority for the purpose of fixing to rateable value has therefore to determine the annual rent
that is the annual rent for which such building might reasonably be expected to let from year to
year and to deduct the 10 percent statutory allowance therefrom and arrive at the net rateable value which would be equivalent to the net annual rent
The rateable value is thus taken to be the same as the net annual rent of the property
It is a well recognised principle in rating that both gross value and net annual value are estimated by reference to the rent at which the property might reasonably be expected to let from year to year
Various methods of valuation are applied 1 LXIII Bombay Law Reporter 174
549 in order to arrive at such hypothetical rent for instance by reference to the actual rent paid for the property or for others comparable to it or where there are no rents by reference to the assessments of comparable properties or to the profits earned from the property or to the cost of construction
The expression gross value means the rent at which a hereditament might reasonably be expected to let from year to year
The rent which a tenant could afford to give is calculated rebus sic stantibus that is to say with reference to the property in its existing physical condition and to the mode in which it is actually used
The hypo thetical tenant includes all persons who might possibly take the property including the person actually in occupation even though he happens to be the owner of the property
The rent is that which he will pay in the higgling of the market taking into account all existing circumstances and any relevant future trends
If the property affords the opportunity for the carrying on of a gainful trade that fact also must be taken into account
The property is assumed to be vacant and to let and the material date for the valuation is that of the proposal which gives rise to the proceedings
The actual rent paid for the property is not conclusive evidence of value though such actual rent may serve as an indication as to what a hypothetical tenant can afford to pay
However if the actual rent is paid on terms which differ from those of the hypothetical tenancy it must be adjusted if possible to the terms of the hypothetical tenancy before it affords evidence of value
See Halsbury s Laws of England 3rd ed vol
32 p 60 and onwards
It is also well recognised that while valuing the property in question every intrinsic quality and every intrinsic circumstance which tends to push the rental value up or down must be taken into consideration
In other words in estimating the hypothetical rent all that could reasonably affect the mind of the intending tenant ought to be considered Cartwright vs Sculcoates Union1
Scott L J Robinson Bros vs Houghton and Chester le Street Assessment Committee  observed It is the duty of the valuer to take into consideration every intrinsic quality and every other circumstances which tends to push the rental value up or down just bec ause it is relevant to the valuation and ought there fore to be cast into the scales of the balance
The objective being the real value of the actual hereditament the inquiry is primarily economic and not legal  it is only legal in so far as logical relevance is the measure of legal admissibility See also Ryde on Rating 11th ed 385 387
The measure for purposes of rating is therefore the rent which a hypothetical tenant looking at the building as it is would be prepared to pay
Though the tenant is hypothetical and the rent 1 2 at 469
550 too is hypothetical the property in respect of which he would estimate that which he would offer as rent is not hypothetical but concrete
While estimating the rent which he would be prepared to pay he would naturally take into consideration all the advantages together with the disadvantages attached to the property that is the maximum beneficial use to which he would be able to put the property
In doing so he is bound to take into consideration the fact of the property being situated at an unique place as the instant property undoutedly is viz at the juncture of two of the most prominent roads with the additional advantage of Chowpatty Sea Face being opposite to it where in the evenings and on week ends it cannot be questioned large crowds usually gather
Coupled with this would be the  advantage that a neon sign advertisement can be vividly seen if fixed on the top of the building by people pedestrians and those in vehicles from fairly long distances in all directions especially as the advertisement happens to be a rotating one
There can therefore be no doubt that if a property possesses such an amenity such amenity is bound to add to its beneficial value and the tenant who desires to take it on lease is bound to take into consideration while making up his mind as to the rent which he can profitably offer as to how much income he would be able to derive from exploiting such an amenity
The measure of the hypothetical rent which such a tenant would offer would thus be the extent of the beneficial use to which he would be able to put the property on its being demised  to him
That being so it seems to us that the question whether an agreement under which such a tenant would be able to exploit the advantageous situation in which the property is situate amounts to a lease or licence is totally irrelevant for the purpose of assessing the rateable value
Equally irrelevant is the question whether the income arising from such an agreement is rent or licence fee
To consider such income as irrelevant in the process of rating on the ground that it does not amount to rent but to licence fee is to misconstrue the true measure of the rent expected from the prospective tenant
The tenant would not only take into consideration the actual rent derived from the property but also such other income which he would be able to extract from the situation of the property by exploiting as best as he can the beneficial use to which the property is capable of being put
Therefore the mere fact that the income from the agreement is not rent but licence fee and therefore cannot be added to the actual rent fetched by the property does not justify on any principle of rating or any construction of section 154 of the Act disregard of it while estimating the rent which  the property would be expected to fetch
It is true that the rating was so far made including the year in question on the basis of the actual rent derived from 551 the property
That appears to have been done because of the restrictions under the Bombay Rent Act by reason of which the property cannot be leased at rent higher than the standard rent allowed under the provisions of that Act
Since no hypothetical tenant would pay rent higher than such standard rent the actual rent would ordinarily be the rent expected  from a hypothetical tenant
The question would be whether the Corporation would be justified in enhancing the rateable value by adding the said sum of Rs 1500 per month arising from the said amount It is true as observed earlier that the hypothetical rent cannot be in view of the rent restrictions higher than the actual rent
But the income arising under the said agreement is not rent realised from letting out any part of the property to the Company but is in consideration of the exclusive privilege granted to it of displaying its neon sign advertisement
It is manifest that the user thereunder of part of the terrace adds to the beneficial value of the building
For such user the owner can legitimately expect something extra over and above the standard rent of the building
Though the owner of the building cannot charge rent over and above that which is permissible under the provisions of the Rent Act there is nothing in that Act which prohibits him from charging an amount from an advertiser in consideration of the privilege of displaying his advertisement
A hypothetical tenant therefore would take into consideration such extra income arising from the special advantage attached to the building and would be prepared to pay over and above the actual rent something in respect of such an additional advantage
Counsel for the appellants relied upon certain decisions which we may now examine
Taylor vs Overseers of Pendle ton1 is a case where the question was whether the advertising agent was a tenant or a licensee
If he was a licensee it would be the owner who would be the occupier if a tenant it would be the advertising agent who would be the occupier
Since under the English law it is the occupier and not the owner who is liable for rates it was held that the agent being the tenant was the occupier and it was he and not the owner who was liable to pay rates
In Wilson vs Tavener2 the defendant agreed by an agreement to let the plaintiff erect a hoarding upon the forecourt of a cottage and to allow him the use of a gable end for a bill posting station at yearly rent
It was held the agreement did not amount to tenancy from year to year but was a licence and a quarter s notice terminating at the end of the year of the currency of the agreement was a reasonable notice
These decisions cannot be appropriately brought to aid by the appellants as under the English law it is the occupier who is liable for the tax and it is for that reason that the court had to determine in each case whether the agreement in question create 1 2 552 a demise or a licence
But whether the advertiser was a lessee or a mere licensee the income arising from advertisement hoardings has always been rated irrespective of the question as to who was liable to pay the tax
Reliance was placed both before the High Court and also before us on the decision in Corporation of Calcutta vs Anil Prakash Basu1
The building there was let out to the tenant at Rs 64  14   per month
On the roof of it however the Calcutta
Street Advertising Company had displayed a neon sign board of Capstain cigarette for which the owner was paid Rs 125 per month
The question was whether the Calcutta Corporation was right in treating this income as rent within the meaning of section 127a of the Calcutta Municipal Act 1923 and take it into account while determining the annual letting value of the building
Section 127a is as follows
 For the purpose of assessing land and building to the consolidated rate the annual value of land and the annual value of any building erected for letting purposes or ordinarily let shall be deemed to be the gross annual rent at which the land or building might at the time of assessment reasonably be expected to let from year to year less in the case of a building an allowance of 10 for the cost of repairs and for all other expenses necessary to maintain the building in a state
to command such gross rent
 The High Court held that the roof of the building on which the sign board was put up could not be said to have been demised that the amount paid to the owner by the advertising agency was therefore not rent and that the use of the roof for putting up the sign board amounted to a licence and therefore could not be treated as rent for the purpose of assessing the annual value of the building
The High Court relied on certain English decisions and also on its own earlier  decisions for deciding whether the agreement between the owner and the advertising agency amounted to a lease or licence
Having held that the agreement amounted to a licence and not lease and the income was licence fee and not rent it rejected the contention of the Municipal Corporation that it was entitled to treat the amount of Rs 125 a month as rent over and above the actual rent of the building
 It may be observed that it was never argued before the High Court that the agreement whether the said amount was rent or licence fee added to the beneficial value of the building that though the roof on the terms of that agreement could not be said to have been demised what had to be considered under section 127a for assessing the annual rent of the building was the rent which a hypothetical tenant was expected to pay and not the actual rent and whether such hypothetical tenant would or 1 AIR 1958 Cal
553 would not take into consideration the extra income derived from the use of the roof for the advertising hoarding over and above the actual rent while deciding what rent he can profitably offer for the building
Such a question not having been raised or decided this decision also cannot assist the appellants
In our view if the building or a part of it yields am extra income over and above the actual rent derived from it such income on the terms of section 1541 of the Act can legitimately be taken into consideration by the assessing authority while determining the annual rent on the ground that a hypothetical tenant would take such extra income into account while considering what rent he can afford to offer for such building
That being the correct position under section 1541 of the Act the High Court was right in confirming the enhancement of the annual rent from Rs 44320 to Rs 59600
The appeal fails and is dismissed with costs
Y P n Appeal dismissed


Summary:
The respondent municipal Corporation increased the rateable value of a building assessed the actual rent recovered by Appellant owner by adding the income derived by the owner under an agreement entitling a Company to display an advertisement on the roof of the building
The owner successfully filed a complaint against the increase which was upheld by the Small Cause Court to the High Court and its confirmed the enhancement In appeal this Court HELD The High Court was right in confirming the enhancement of the annual rent
If a building or a part of it yields an extra income over and above the actual rent derived from it such income on the terms of section 154 i of the Bombay Municipal Corporation Act can legitimately be taken into consideration by the assessing authority while determining the annual rent on the ground that a hypothetical tenant would take such extra income into account while considering what rent he can afford to offer for such building
553B The hypothetical tenant includes all persons who might possibly take the property including the persons actually in occupation even though he happens to be the owner of the property
The rent is that which he will pay in the higgling of the market taking into account all existing circumstances and any relevant future trends
Therefore the mere fact that the income from the agreement is not rent but licence fee does not justify on any principle of rating or any construction of section 154 of the Act disregard of it while estimating the rent which the property would be expected to fetch
549B C 550G H Though the owner of the building could not charge rent over and above that which was permissible under the provisions of the Rent Act there was nothing in that Act which prohibited him from charging an amount from an advertiser in consideration of displaying his advertisement
551D Mahad Municipality vs Bombay SRT Corporation LXIII Bom bay Law Reporter 174 Cartwright vs Sculoates Union  Robinson Bros vs Houghton and Chester le Street Assessment Committee  Taylore vs Overseers of Pandleton  Wilson vs Tavender  Corporation of Calcutta vs Anil Prakash Basu AIR 1958 Cal 423 referred to