Indian Oil Corporation Limited v. The Municipal Corporation Of Greater Bombay

Mukhi, J.:— This is an appeal under s. 218D of the Bombay Municipal Corporation Act of 1888 (hereinafter referred to as the Act) as amended. The appeal is from a decision of the Additional Chief Judge of the Small Causes; Court in what is described as an “appeal” filed before him under s. 217 of the Act. The appellant is the Indian Oil Corporation Limited and the matter arose out of the dispute about the rateable value fixed by the Bombay Municipal Corporation in respect of certain installations put up by the appellants on a piece of land situate at Wadala leased out to them by the Bombay Port Trust. It is necessary to notice that the installations consist of certain structures and six oil storage tanks but in this appeal we are concerned only with the said six oil storage tanks.

2. The relevant facts which are few and mostly undisputed now require to be stated. As we have mentioned above, the Indian Oil Corporation Limited, the appellants, are the lessees in respect of a piece of land admeasuring 17,279 sq. yds. owned by the Bombay Port Trust. There is no dispute that the lease of the land is for a period of 30 years from February 1961 at a rental of Rs. 9,482.34 p. per month for the first 15 years and Rs. 11,852.93 p. per month for the remaining 15 years.

3. Now on this piece of land the appellants have put up six oil storage tanks constructed out of steel plates and steel structures for storage of petrol and petroleum products.

4. It would appear that for the year 1964–1965 the respondents fixed the rateable value of the installations consisting of certain structures and the six tanks. In the events that happened the rateable value was somewhat reduced on a complaint being made by the appellants under the relevant provisions of the Act and came to be fixed at Rs. 84,660. Out of this value Rs. 13,980 represents the rateable value of the structures with which we are not concerned, and Rs. 70,680 has been fixed as the rateable value of the six oil storage tanks. It is to be noticed that the rateable value of the tanks was fixed on the basis of the capacity of each of the tanks.

5. The appellants contended in substance that the tanks were not assessable because they were moveable property and did not in any event fall within the definition of “land” or the definition of “building” as contained in the Act. The respondents negatived the contention of the appellants with the result that the appeal under s. 217 of the Act came to be filed before the Additional Chief Judge of the Small Clauses Court as persona designata.

6. The learned Additional Chief Judge upheld the contentions of the respondents that the tanks were rateable and, on the construction placed by him on the relevant provisions of the Act, he came to the conclusion that the tanks were both “land” and “buildings” as defined under s. 3(r) and s. 3(s) of the Act.

7. From this decision the appellants have come before us as they are indeed entitled to do under s. 218D of the Act.

8. It is appropriate at this stage to give a brief description of the six oil storage tanks and of the manner in which they have been put up on the land.

9. A senior engineer of the appellants was examined before the Additional Chief Judge and he described the manner in which the tanks had been put up and also produced as exh. ‘B’ an Isomatric sketch of one of the tanks. The respondents examined one Chudaman Govindrao Zope, an assistant engineer in the Bombay Municipal Corporation and on this evidence the Additional Chief Judge held that the six tanks were put up by the appellants between 1962 and 1964; that each of the tanks rested on a foundation of sand having a height of 2 feet 6 inches; that over this foundation there was a four inch thick layer of asphalt; that steel plates are spread on the asphalt layer and the tanks constructed upon the bottom steel plates as laid out on the sand bed. The learned Additional Chief Judge referring to the evidence of engineer Anjaria said as follow:

“According to him the steel plates act as the bottom of the tank which rests freely on the asphalt layer; a tank is about 30 feet height and 7,160 feet in diameter and weighs about 40 tons, while the total weight of a tank when filled with the product may be as much as 7,160 tons. This witness has also deposed that there are no bolts or nuts for holding the tank on to the foundation; that the tank remains in position only by its own weight; and that the tanks can be shifted from place to place by raising them slightly and dragging them after putting them on rails. His evidence also (shows?) that each of the tanks has a staircase attached along its side, and that each tank is connected with a pump house with pipes having a diameter of about 8″×14″, the distance between the pump house and the tanks varying between 50 feet and 300 feet.”

10. From the evidence on record, therefore, and as decided by the Additional Chief Judge it is clear that the tanks have been constructed out of mild steel plates and steel structurals and that they rest by their own weight on a foundation or what may perhaps be more accurately described as a pad consisting of a layer of sand with a coating of asphalt over it.

11. It is interesting to notice that the witness suggested that: “the tank keeps standing on the foundation in the same way as a glass of water stands on the table.”

12. Now under s. 140 of the Act appropriate taxes are to be levied on ‘land’ and ‘buildings’. Section 3(r) of the Act contains an inclusive definition of the word “land” and s. 3(s) contains also an inclusive definition of the word “building”.

13. The matter before us therefore raises the question as to whether these six oil storage tanks, bearing in mind the manner in which they have been put up at the site, come within either of the two definitions so as to be rateable under the Act. In other words can these tanks be properly construed to be either “land” and/or can they be said to be “buildings”. In either case the Municipal Corporation would be entitled to rate them for the purpose of property tax but not otherwise.

14. Simple as the question appears to be, the answer does present some difficulty. We would not say that it presents a very great difficulty but we suppose the difficulty was enough for counsel on both sides to have advanced lengthy arguments and cited a large number of authorities. Naturally each counsel tried to persuade us that the view advanced by him was the correct one.

15. Inasmuch as the question has not been decided by any of the High Courts in this country, we have heard the matter at some length and will presently consider the propositions advanced and some of the relevant authorities cited before us.

16. Now Mr. J.C Bhatt, counsel for the appellants, inter alia, contends that the oil storage tanks of the kind with which we are concerned in this appeal can never be described as “land” within the meaning of s. 3(r) of the Act. He placed emphasis on the fact that the tanks have not been attached to the earth; that they are merely resting on a layer of sand and asphalt by their own weight; and that unless they can be said to be “attached to the earth” within the meaning of s. 3(r) of the Act, the tanks can never become rateable under the Act. Mr. R.J Joshi, counsel for the Municipal Corporation and the Commissioner, on the other hand, would have us hold that the phrase “attached to the earth” does not mean physical attachment as such or being imbedded in the earth but would include what he describes as anything ‘super incumbent upon’ the land, a phrase he discovered from Stroud's Judicial Dictionary, Vol. 1 at page 229.

17. The second stage of the arguments related to the concept of what is or what is not a ‘building’ and in so far as s. 3(s) of the Act is concerned what is the conotation of the phrase “and every other such structure.”

18. Counsel for the appellants again inter alia contended that the tank was merely a vessel or a container and that it could never be described as a building. He pointed out that the definition of the word building is an inclusive definition and that no one has stated that a building means a tank.

19. Counsel for the respondents replied that an oil storage tank was designed to store oil and if along with this factor certain other factors like size, intention and permanence are taken into account, then a tank would clearly be a ‘building’ at least for the purpose of rating under the Act. Alternatively he argued that if the words “every other such structure” under s. 3(s) of the Act are read ejusdem generis then a tank would be a structure similar to a shed as it was capable of being used and occupied for storing of goods.

20. These are the basic contentions, although a number of refinements were introduced at a later stage.

21. Now before we deal with the contentions we may mention that our attention was invited to a number of authorities of the Supreme Court as to interpretation of a taxing statute or an Act or an enactment which had the effect of imposing a charge. The following cases were cited by counsel for the appellants. (1) A.V Fernandez v. State of Kerala . [1957] A.I.R S.C 657.; (2) I-T. Commr. v. J.E Supply Co. . [1960] A.I.R S.C 1182, S.C 63 Bom. L.R 549.; (3) Banarsi Debi v. I.-T. Officer . [1964] A.I.R S.C 1742.; (4) State Of Punjab v. Jullundur Vegetables Syndicate. . [1966] A.I.R S.C 1295.; and lastly (5) I.-T. Commr., W.B v. N.H Tea Co. . 1973 4 SCC 200 To this the learned counsel for the respondents added a reference to Halsbnry's Laws of England, Third edn. vol. 36, pp. 416 and 417 where the following passage appears:

“…If the Crown claims a duty under a statute, it must show that duty is imposed by clear and unambiguous words, and where the meaning of the statute is in doubt, it must be construed in favour of the subject, however much within the spirit of the law the case might otherwise appear to be; but a fair and reasonable construction must be given to the language used without leaning to one side or the other.”

22. Now it is not necessary to refer in detail to the authorities cited because the principles mentioned there are known and indeed we must agree that a fair and reasonable construction must always be given to the language of a statute. Now the proposition that so far as a statute which imposes a tax or a charge is concerned, the subject is not to be taxed unless the tax is imposed by clear and unambiguous words is a proposition with which there can be no argument.

23. It requires to be stated that apart from the question of construction of the relevant provisions of the Act counsel for the appellants pointed out that there was in the Act what he called “internal guidance” to show that it could not have been intended by the Legislature that a tank could be equated with a “building” for the purpose of rating or otherwise.

24. He invited our attention first to ss. 154(3), 155, 159 and 209 of the Act to show that the word “building” used in the Act included a concept of its occupation. He then referred to s. 156 of the Act to show that the Commissioner was required to maintain a list of all the buildings distinguishing each of them either by name or number and stated that no such thing had been done in the instant case, so far these tanks are concerned.

25. He then referred to s. 234 of the Act which provides that a new building is not to be erected without drains. He sought to show that before a building was intended to be occupied effectual drainage was necessary and argued that it could not be conceived that an oil storage tank would be required to have “effectual drainage” or that there should be a provision for “gathering and receiving the drainage”; “conveying the same off;” and “effectually flushing the drain of the said building”. It was then contended by him that the definition sections were intended to, and must, of necessity, apply to every part of the Act and not only to the sections dealing with rateability.

26. We shall first consider the question as to whether a tank is a building either simpliciter or within the meaning of s. 3(s) of the Act. It has already been mentioned that the definition is an inclusive one and does not really seek to or attempt to define what is a building.

27. The Random House Dictionary at p. 194 speaks of a building as:

“a relatively permanent, essentially boxlike construction having a roof and often windows and enclosing within its walls space, usually on more than one level, for any of a wide variety of activities, as living, entertaining, manufacturing, etc.”

28. There is also a very wide definition under which a building is said to be “anything built or constructed”; but, as we shall presently see, such a meaning would be of no help to parties or the Court in determining in any particular case as to what is a “building”.

29. In The Ralph M. Parsons Co. v. Bachubhai N. Raval . 1973 O.C.J Miscellaneous Petition No. 764 of 1968, decided by Mukhi J., on July 24, 1973 Unrep.. this Court observed:

“Now, the word ‘building’ in its popular sense is a structure with walls and roofs. The meaning to be given to the word ‘building’ will, of course, depend on the purpose for which it is used in a particular enactment, but a building is usually understood to be a structure of some size and intended to endure for some time.”

30. It would, therefore, necessarily depend on what the facts and circumstances are in each case to come to a conclusion whether a particular construction is a building or not. We have already noticed that the word ‘building’ in its broad or in its primary sense refers merely to that which is built but we have discarded that kind of a definition. In the narrower or restricted sense it has been held that the word ‘building’ can only mean a construction or an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture etc. This would suggest it to be a house, a hut or a shed.

31. It has been said that the word “building” signifies a structure designed and adapted for use for occupancy of persons or animals or storage of goods or shelter of property. There are indeed a number of English, American and Indian authorities where different views have been taken as to what is meant by the word ‘building’ depending, of course, upon the facts and circumstances of the case and on the particular enactment to be construed. In one case a floating wharf was held to be a building but in another case a floating dock was held not to be a building. In one case a freight car occupied as lodging place was held to be a building but in another case a box car was held not to be a building. It would appear that at least in one American case (see Wash: Hopkins v. Department of Labour and Industries . 67 P. 2nd 872, at p. 873.) an oil tank was held not to be a building. In our view these examples demonstrate that it is not possible really to define a building in general terms.

32. In Stevens v. Gourley . 1859 7 C.B N.S 99., Byles J. has made the following interesting observations (pp. 112–113):

“…What is a ‘building’? Now, the verb ‘to build’ is often used in a wider sense than the substantive ‘building’. Thus, a ship or a barge-builder is said to build a ship or a barge, a coach-builder to build a carriage; so, birds are said to build nests: but neither of these when constructed can be called a ‘building… The imperfection of human language renders it not only difficult, but absolutely impossible, to define the word ‘building’ with any approach to accuracy. One may say of this or that structure, this or that is not a building; but no general definition can be given; and our lexicographers do not attempt it. Without, therefore, presuming to do what others have failed to do, I may venture to suggest, that, by ‘a building’ is usually understood a structure of considerable size, and intended to be permanent, or at least to endure for a considerable time. A church, whether constructed of iron or wood, undoubtedly is a building. So, a ‘cowhouse’ or ‘stable’ has been held to be a building the occupation of which as tenant entitles the party to be registered as a voter…On the other hand, it is equally clear that a bird-cage is not a building, neither is a wig-box, or a dog-kennel, or a hen-coop—the very value of these things being their portability. It seems to me that the structure in question, which was erected for a shop, and is of considerable dimensions, and intended for the use of human creatures, is clearly a ‘building,’ in the common and ordinary understanding of the word.”

33. It will, therefore, be necessary for us to decide whether the six oil storage tanks with which we are concerned in this case can be said to be buildings in relation to and under the provisions of the Act, namely the Bombay Municipal Corporation Act of 1888.

34. Counsel for the appellants has referred to three English cases in support of his contention that the six oil storage tanks cannot be said to be buildings. Curiously at the same time he also told us that English authorities on different enactments cannot help the Court in the construction of this Act and he then suggested that the authorities on which the Additional Chief Judge had relied and on which the counsel for the respondent was to rely, should not be taken into consideration.

35. We do not think that it is appropriate to say in a general way that an English case should or should not be considered.

36. We will, therefore, first notice the three English cases which have been cited by counsel for the appellant in support of his contentions. The first of these cases was a decision of the Land Tribunal, U.K in Shell-Mex and B.P, Ltd. v. Clayton (Valuation Officer) and Holderness R.D.C . 1961 8 R.R.C 376. In that case, the appellant was also an oil company and they possessed oil storage tanks of a similar nature and they were also put on the land in the same manner—that is to say, placed on a layer of sand and in relation to some of the tanks, with a coating of asphalt. Indeed, this would appear to be the standard procedure for putting up oil storage tanks in England as well as in India. The question before the Land Tribunal (Erskine Simes Esq., Q.C) was whether the tanks (construction and the placing of which he has described in great detail) which were in use for storage of oil were buildings within the meaning of s. 22(4) of the Rating and Valuation Act, 1925. Sub-section (4) of s. 22 reads as follows:

“In this section the expression ‘house’ includes part of a house, the expression ‘non-industrial building’ means a building, or part of a building, of any description, with the exception of factories, mills and other premises of a similar character used wholly or mainly for industrial purposes, and of premises valued as part of—…”

37. Upon the question whether the tanks were buildings within the meaning of s. 22(4) of the Act it was contended that tanks were buildings “since they enjoyed all the structural characteristics to be found in a house, factory or mill, viz., foundations, a floor, walls, roof trusses and roof and access and served the same purposes of giving protection and shelter to the contents”. The other parties contended that tanks were structures and not buildings because a building of a similar character to a house should have a door for admission for human occupation. The Lands Tribunal came to the conclusion that “these tanks cannot be said to be of a similar character as a house, factory or mill, but even assuming that a wider construction should be applied, I do not think that any one looking at those tanks would refer to them as ‘buildings’, and, as I said in the Havercrojt case, I do not think that the definition of a ‘building’ in the Oxford English Dictionary as ‘that which is built’ can be applied to the word in this context.”

38. The next case cited was also a decision of the same Lands Tribunal in Shell-Mex and B.P, Ltd. v. Childs (Valuation Officer) . 1961 8 R.R.C 384. and appears to have been given on the same date as the earlier decision in Clayton's case (which case it may be noticed has been referred to by English Courts as the Saltend case). Now in this case the same question arose as to whether the tanks could be described as buildings. There was a slight difference in the facts in so far as two of the three tanks were surrounded by a brick and concrete wall and it was therefore suggested that the two large tanks may be described as buildings. The Lands Tribunal made the following observations:

“As regards the two large tanks on the hereditament, the position seems to me somewhat different from the tanks on the Saltend installation since this seems to me a case where in the words of Lord Morton of Henryton in the Holyoak case . 1959 4 R.R.C 68, at p. 76. the metal cylinder is ‘so linked with the surrounding compartment as to become one physical entity with it’, as the space is ‘filled with cement adhering to the cylinder’. But while it may well be a tank which is in the nature of a building or structure for the purposes of the Order, I do not think that it can be described as a ‘building’ within the meaning to be given to that word in its context in s. 22(4) of the 1925 Act as amended. In any event there is as part of the hereditament the smaller tank not surrounded by brick and concrete which is in my opinion not a ‘building’ within that section for the reasons given in the Saltend case.”

39. It may be noticed that this decision of the Lands Tribunal in Shell-Mex and B.P, Ltd. v. Childs (Valuation Officer) was taken before the Court of Appeal and the Court of Appeal upheld and approved the decision of the Lands Tribunal. (See Ryde's Rating Cases, Vol. 9, page 182). Lord Evershed M.R after considering the manner in which the tanks had been put up observed as follows:

“In other words, I think the question remains the one I have stated: do you, in the ordinary use of the English language, describe what I have called the tanks (bearing in mind the method of putting them up, which I have shortly described) as “building”?…I answer it quite briefly by saying that in my judgment Mr. Erskine Simes was right and we are not justified in differing from his view because I do not think it is shown to our satisfaction that we ought, contrary to his view, to say, applying the ordinary standards of the English tongue, that these objects are buildings.”

40. Counsel for the appellants then referred to yet another English case, this time a decision of the House of Lords in Shell-Mex and B.P, Ltd. v. Holyoak . [1959] 1 All E.R 391.. The matter, however, related to under-ground petrol tanks in a brick and concrete compartment and the point in issue was described by Viscount Simonds in the following words (at p. 393):

“The question at issue can now be stated. It is whether the metal containers, which I have without prejudice referred to as tanks, fall to be rated as part of the hereditament known as the Oaklands Filling Station. This question can be answered in the affirmative only if (i) they are “tanks” within the meaning of the order, and (ii) they are buildings or structures or in the nature of buildings or structures. The Local Valuation Court having held that these conditions were fulfilled and rated the hereditament accordingly, the present appellants appealed to the Lands Tribunal (Mr. Erskine Simes, Q.C). That tribunal allowed the appeal, concluding that the only part of the installation which could properly be called a tank for the purpose of the order was the metal cylinder, and that the compartment in which it was housed did not form a functional entity with it any more than any other building in which a piece of plant or machinery is housed. The tribunal said:

‘That compartment appeared to me to form an integral part of the hereditament like any other building thereon but the metal tank which is admittedly not a building or structure or in the nature of a building or structure looked at by itself should not under s. 24 and the order be deemed to be a part of the hereditament’.”

41. Now, in the present case, we are not concerned with an underground tank but tanks put up above the ground and resting by their own weight on a bed of sand and asphalt. We are also not concerned with the question which arose in the House of Lords case as to a metal cylinder within a brick and concrete housing forming a “functional entity”. But there are observations to show, as pointed out by the counsel for the appellants before us, that each of the metal cylinders was described as a tank and it was held that it was neither a building nor a structure nor indeed in the nature of a building or in the nature of a structure.

42. In the judgment of Viscount Simonds at p. 395 the following sentence occurs:

“…For it is clear, as was admitted, that the metal cylinder, looked at by itself, is not, and is not of the nature of a structure or building.”

43. Further down on the same page Viscount Simonds said:

“…But I think that paramount weight should be given to the consideration that, beyond doubt, the metal container is a tank, and is identifiable as a tank wherever it may be placed, whether above ground or under ground and by whatever structure it may be protected.”

44. Although Lord Denning gave a dissenting, judgment, he made certain interesting observations which may be referred to with advantage (p. 401):

“My Lords, this metal cylinder was, beyond doubt, a ‘tank’. If it had been put on to the chassis of a lorry, it would have been called by everyone a petrol tank; and the vehicle would be called a tanker. Or if it had been installed above ground, inside a shed for protection from the weather, it would still have been a tank. When it is put under ground, it is still, I think, a tank. But is it ‘in the nature of a structure’? Looked at by itself, it is, admittedly, not in the nature of a structure.”

45. Now relying on these observations in the several cases which we have referred to, counsel for the appellant, argued that a tank is not a building and further that a tank standing on its own weight above the ground would not even be a structure. He has complained that the basic approach of the Additional Chief Judge has been (and according to him wrongly) that which is built is a building and further that the tanks are in any event structures.

46. Now it is to be noticed that the learned Additional Chief Judge mainly relied on two judgments which were cited before him, that is to say, Hobday v. Nicol13 and Cardiff Rating Auth. v. Guest Keen, Ltd. . [1949] 1 All E.R 27. We have gone through these authorities and we find that so far as Hobday v. Nicol is concerned it is not an authority for the proposition that a tank is a structure. What was held was that a row of tanks filled with earth or hardcore and placed along the bank of the river, in some places in two tiers, was a structure within the meaning of the bye-law made by the Lee Conservancy Board under the Land Drainage Act, 1930 which provided that no person should, without the consent in writing of the Board, construct any building, fence post, pylon, wall or structure on the bank of the main river. We have been unable to see how this could be said to be authority for the proposition that an oil storage tank is a structure.

47. In the next decision i.e Cardiff Bating Auth. v. Guest Keen, Ltd. what was considered was whether a tilting melting furnace made of steel plates and joists, bolted, riveted and welded together on site, and which was lined with brickwork to a considerable thickness, was a structure and it was held that it was “in the nature of a structure” within the meaning of class 4 of the schedule to the Plant and Machinery (Valuation for Rating) Order, 1927. Denning L.J, however, made certain observations as to what is a structure and these may be noticed. He said (p. 31):

“A structure is something which is constructed, but not everything which is constructed is a structure. A ship, for instance, is constructed, but it is not a structure. A structure is something of substantial size which is built up from component parts and intended to remain permanently on a permanent foundation, but it is still a structure even though some of its parts may be moveable, as, for instance, about a pivot. Thus, a windmill or a torn-table is a structure. A thing which is not permanently in one place is not a structure, but it may be ‘in the nature of a structure’ if it has a permanent site and has all the qualities of a structure, save that it is on occasion moved on or from its site.”

48. Denning L.J also said “and a structure is often not a building.”

49. It may be noticed that the words which we have to construe as appearing in s. 3(s) of the Act are “every other such structure” and not merely a structure or something in the nature of a structure. In order to bring a tank within the mischief of s. 3(s) of the Act, it must not only be shown to be a structure but “such other” structure, as for instance, a hut or a shed.

50. In his efforts to meet the arguments advanced by the counsel for the appellants, Mr. Joshi, counsel for the respondents, argued that an oil storage tank is designed and adapted for storing oil and if we look at the size, the intention of the appellants, as to the use to which the storage tank has to be put and the elements of permanence, in so far as the tanks are placed on permanent site, then we must hold that the tank is a building. It is, he says, a question of degree and whether a particular tank is a building or not will depend on the facts and circumstances of each case. The next argument was that the tank was in any event a structure and if the phrase “every other structure” under s. 3(s) of the Act was properly construed (he suggested the application of the principle of ejusdem generis) then a tank was, after all, similar to a shed and would come within the purview of the section, which says that a building includes a shed.

51. Now we have seen how difficult it is to attempt to define what is a “building”. Indeed the Municipal Corporation Act, 1888 does not attempt to do. The section merely says that the word ‘building’ would include some construction (we avoid using the word structure) which may perhaps not properly be considered to be a building. In our view each case must be considered and determined on its own facts and circumstances and in the light of the object sought to be achieved and it is always possible to say of this or that, that this is a building or that this is not.

52. Can a tank, therefore, be considered to be a “building” under the Bombay Municipal Corporation Act, 1888 which we are construing? We think not. It is after all really a vessel or a container, the purpose of which is to store a liquid for eventual use or distribution. It would be immaterial if it is to contain oil or water or acid or even beer. As a matter of fact, a tank is not essentially different (in so far as it is a container) from a barrel or a brewer's vat or a copper still. It is, of course, possible that, in the context of a particular statute and of the phraseology of a definition clause, each of such, vessels or containers including a tank may conceivably be treated as a ‘building’ or a ‘structure’. But so far the Municipal Corporation Act, 1888, is concerned and, in particular, s. 3(s) thereof we are unable to see how a tank put up in the manner in which it has been done, for storage of oil, can be said to be a building.

53. No one looking at a tank can say that he was looking at a building or that it was in fact to be considered as building except perhaps where by a legal fiction, an artificial meaning is compulsorily to be given.

54. We have already referred to some of the provisions of the Act to show that the concept of occupation appears to have been incorporated in relation to a building. In other words a building should be capable of occupation or of being occupied or under occupation as normally understood, such occupation being by human beings or by animals. We do not agree, as contended by Mr. Joshi, that a receptacle used for storage of goods can properly be said to be ‘occupied’ as such. The proper expression would be, that it can “contain” something; that something is stored inside it. But it cannot, in our view, be said that a tank is occupied in the sense that a building is occupied.

55. As we were taken through the provisions of the Act we noticed that in s. 3(gg), the word “premises” includes building. If tanks were held to be ‘buildings’, on the construction which is sought for by the respondents, then tanks would also be held to be premises. Similarly s. 3(sa) says that a “tenement” also means a building. Thus a tank would also be ‘tenement’. If the provisions of s. 374 onwards, which deal with the inspection and sanitary regulation of premises, are seen, it will at once become apparent that if we were to construe tanks to be buildings within the meaning of the Act, then the Commissioner would be duty bound to apply the several regulations as to sanitation and drainage to tanks, as if they were ‘premises’ or ‘tenements’. We do not think that would be a construction warranted by the words and content of the Act in relation to which the definition of the word “building” is to be construed.

56. We, therefore, hold that the six oil storage tanks with which we are concerned in this appeal are not buildings within the meaning of s. 3(s) of the Act.

57. This now brings us to the question as to whether these tanks can be said to be “land” within the meaning of s. 3(r) of the Act. Now it may at once be noticed, that on a clear reading of s. 3(r) it becomes apparent that only things which are attached to the earth or which are permanently fastened to anything attached to earth can be treated as ‘land’. Thus a tank can never be said to be ‘land’, unless and until it is affirmatively shown that it is a thing “attached to the earth” or “permanently fastened to anything attached to the earth.”

58. We have noticed that on the evidence led before the Additional Chief Judge a conclusion has been arrived at, and indeed there is no dispute in that behalf, that these six oil storage tanks are resting on their own weight on a bed of sand and asphalt. It has also been suggested to us that the manner in which these tanks rest on their own weight is analogous to the manner in which a tumbler of water would rest on a table. There is also evidence to show that no bolts or nuts for holding the tank on to any foundation have been used. So that it cannot be said that these tanks, even though not attached to the earth, are “permanently fastened to anything attached to the earth.”

59. It is therefore only necessary for us to construe the words “attached to the earth” and so far as this phrase is concerned, Mr. Joshi, counsel for the respondents, has argued that the words “attached to the earth” should not be construed as “annexed to” or “embedded in” or “physically attached to” but also include “resting upon” or, as he used the phrase, “super incumbent upon.”

60. He has relied on a number of English cases, some of which we will notice.

61. Since really the burden of proving that the tanks in question, even though they are resting on their own weight, are in fact attached to the earth within the meaning of the phrase in s. 3(r) of the Act, lies on the respondents, we will consider the authorities cited by him before considering the authorities relied upon by counsel for the appellants who in his turn wishes to show negatively that these tanks are not “land” within the meaning of s. 3(r).

62. Mr. Joshi mainly relied on Tyne Boiler Works Co. v. Overseers of Longbenton . 1886 18 Q.B.D 81.. Now that was a case in connection with the poor rate and rating of premises with machinery and machines used in connection with the hereditament, and it was contended by the Overseers of the Parish of Longbenton that the machinery and plant were necessary to the beneficial occupation of the premises as boiler works, that being the business to which they were appropriated, and they ought to be taken into consideration as enhancing the rateable value of the premises to which they were attached. Lord Esher M.R actually found difficulty in determining what the question was which the case raised and it was observed by his Lordship on a discussion of the cases and the enactment involved that it was nobody's case that these machines were to be rated as personal chattels, and that the question was whether they were to be taken into account in estimating the rateable value of the premises, which it was admitted, were liable to be rated. He further observed that “it was not necessary that the matters in question should be physically attached to the freehold.”

63. Counsel for the appellants, while dealing with this authority in his reply, pointed out that the question of attachment of chattels to the earth so as to become part of the freehold was never the question in issue, and that it was the occupier who was to be rated in relation to his occupation of the premises, that is to say the Boiler Works. Counsel for the appellants also pointed out that as stated in Halsbury's Laws of England, 3rd edn., vol. 32, p. 30 it was not the property which was rateable but that chattels may be rated if they are enjoyed with the land. Mr. Joshi has fairly conceded that in England it is the occupier in relation to the things occupied who is rateable and that it would be correct to say that in England, land is not rateable under the relevant statutes. In fact he has with his characteristic fairness invited our attention to Ryde on Rating, 12th edn., p. 20 where it is stated that, “the poor rate is not a tax on the land, but a personal charge in respect of the land,” and that, “if there is no occupier of the land, no rate can be levied.”

64. It would appear to us, therefore, that there is an essential difference between the concept of rating in England and that under the Bombay Municipal Corporation Act, 1888. The several authorities cited by Mr. Joshi, to which I will briefly refer, do not really touch the question of “attached to earth” which is the phrase used in the definition of “land” before us. But Mr. Joshi contends that there is a discussion in the Tyne Boiler Works Co. case as to what is meant by the words “attached to the earth”. He has in particular referred to the passage at p. 91, where Lord Esher M.R was discussing the case of Laing v. Bishopwearmouth . 1878 3 Q.B.D 299. and this is what was stated:

“Does the Court there mean by the word ‘attached,’ that the thing must be bolted or screwed to the premises, or some physical mode of attachment? I do not think so. I think that they could not have meant to differ from Patteson, J., when he said that it was unnecessary to inquire whether the machinery was or was not annexed to the freehold. If by ‘attached’ the Court meant only physically attached, then a piece of machinery weighing many tons which rests by its own weight and which is never intended to be removed as long as the premises are used for the same purpose, but which is not bolted or screwed to the premises, is not to be taken into account; but, if there are some screws by which it is fixed, it is to be taken into account. Such a consequence seems to me to be monstrous. I do not think the Court meant by the word ‘attached’ that physical attachment should be the test. It becomes therefore necessary to consider, what is meant by the word ‘attached’ in the decisions on the subject.”

65. This passage, would appear to support the contention of Mr. Joshi. But it is to be noticed that, immediately after this passage, Lord Esher M.R after stating that he would leave out the word “attached” or any other similar expression, spelled out the rule as to rateability by saying (p. 92):

“…I believe the rule really to be that things, which are on the premises to be rated, and which are there for the purpose of making, and which make the premises fit as premises for the particular purpose for which they are used, are to be taken into account in ascertaining the rateable value of such premises.”

66. The learned Judge also went on to observe that (p. 92):

“…it is immaterial to inquire whether they are or are not physically annexed to the freehold, and that they, all of them, come within the rule as I have expressed it. They are all on the premises for the purpose of making and they do make them fit as premises for the purpose for which they are used, and therefore in arriving at the rateable value of such premises they must be taken into account.”

67. In other words as Lindley L.J observed in the same case, “physical annexation has never, so far as I understand the cases, been considered the test” and Lopes L.J the third Judge went on to say, “but then there are things, which, though they may not be physically attached, or may be removable without damage to themselves or the freehold, are so placed on the premises, and so essential to their use for the purpose for which they are used, and so much intended to be used with them for that purpose, that they have practically become for the time being part of the premises.”

68. A proper reading of the above case, which has been cited by counsel for the respondents, leaves no doubt in our mind that the concept or the question of attachment to the earth was never really considered by the Court of Appeal or in any other of the judgments referred to therein.

69. Our attention was drawn to the London County Council v. Wilkins . [1955] 2 Q.B 653. and the appeal therefrom to the House of Lords reported in London County Council v. Wilkins (Valuation Officer) . [1957] A.C 362. where also it was observed that in England the occupier, not the land, is rateable; but the occupier is rateable in respect of the land which he occupies, and the aspect of permanence which was discussed was in relation to the occupation by the occupier and not in relation to the things on the land. The question that arose was whether contractors' huts were part of the hereditament for rating purpose. The decision of the Queens Bench Division was really based on a Scottish case, City of Glasgow Assessor v. Gilmartin . [1920] S.C 488., where the word “erection” under the Lands Valuation (Scotland) Amendment Act, 1895, was to be construed and it was held that the structures without actual attachment to the land, and closely comparable to the tanks in the present case, were nevertheless heritable subjects.

70. Frankly, we do not find these authorities of any assistance to us in determining the question which we have to decide. It is obvious that different considerations may arise in construing the word “erection” and as we have already pointed out, in Tyne Boiler Works Co. v. Overseers of Longbenton as well in the London County Council v. Wilkins (Valuation Officer) the test of rateability was whether there was evidence that the structures, occupied for a period which was not transient, were enjoyed with the land and enhanced its value.

71. Reliance was also placed by counsel for the respondents on Holland v. Hodgson . 1872 L.R 7 C.P 328., which case has been discussed in the several authorities cited before us, where also the question really was whether the articles enhanced the value of the premises to which they were annexed for the purpose to which those premises were applied.

72. We are unable to agree with Mr. Joshi, that these judgments are authorities for the proposition that the phrase “attached to the earth” would include anything resting on the earth by its own weight.

73. As a matter of fact, looking at s. 3(r) of the Act itself, we find that the words “attached to the earth” are followed by the words “or permanently fastened to anything attached to the earth”. Can it be said that there are things which in order to be considered as land need only to rest on their own weight on the land, but that, when a thing was said to be fastened to anything resting on the land, then it was necessary for the purpose of the definition that it should be permanently fastened?

74. Counsel for the appellants has invited our attention to the definition of “immovable property” in the Transfer of Property Act, 1882 and in the General Clauses Act, as well as the Bombay General Clauses Act. He has also referred to the definition of the words “attached to the earth” as appearing in s. 3 of the Transfer of Property Act, 1882, which is as follows:

“‘attached to the earth’ means—

(a) rooted in the earth, as in the case of trees and shrubs;

(b) embedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached;”

75. The definition of “immovable property” under s. 3(26) of the General Clauses Act is also not exhaustive and is as follows:

“‘Immovable property’ shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth;”

76. The definition of “immovable property” in the Bombay General Clauses Act, 1904, is also similar in so far as it says that immovable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth.

77. It requires to be stated that the definitions in the two General Clauses Acts do not carry us any further. They are similarly worded as the definition in s. 3(r) of the Municipal Corporation Act in so far as the phrase “attached to the earth” is used. But the Transfer of Property Act, which is an enactment which deals with land and other property, does contain a definition of the phrase “attached to the earth” and this definition clearly provides that in order to achieve an attachment, the thing must be embedded in the earth as in the case of walls or buildings, or attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached.

78. This definition of the words “attached to the earth”, as appearing in the Transfer of Property Act, clearly suggests a degree of annexation which would far exceed that which could be obtained by mere resting of a thing by its own weight on the earth.

79. Counsel for the respondents has pointed out a passage in The Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy . [1958] S.C.R 101, at p. 113., to show that the definition of a term in one statute does not afford a guide to the construction of the same in another statute. In that case the Supreme Court observed that whether the narrower or the wider sense of the term “agriculture” should be adopted in a particular case depends not only upon the provisions of the various statutes in which the same occurs, but also upon the facts and circumstances of each case. The Supreme Court said “that sense in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally.”

80. Now we agree that the sense of term used in one statute must depend upon the provisions of that statute as also the facts and circumstances of each case. It would, therefore, be right to say that the definition of the words “attached to the earth”, as appearing in the Transfer of Property Act, cannot be bodily lifted and incorporated as if it were in the Bombay Municipal Corporation Act, but we do not understand why the definition in the Transfer of Property Act of these very words i.e “attached to the earth” cannot assist the Court in determining what these words seek to signify when used in the Bombay Municipal Corporation Act.

81. In fact, counsel for the appellants has invited our attention to a judgment of the High Court of Australia in Ramaciotti v. Federal Commissioner of Taxation . 1920 29 C.L.R 49., where it was held that when a phrase which requires to be construed is also found in another Act which for the purpose is in pari materia, then there is no reason for not giving it in the section under consideration the same meaning as it bears in the other Act. Now it is significant that the words “attached to the earth” are used in the Bombay Municipal Corporation Act in relation to the concept of land. The Transfer of Property Act is also concerned with land and this phrase is defined in that Act.

82. In our opinion it can never be improper to give to the phrase “attached to the earth” the same or at least a similar meaning as given to it in the Transfer of Property Act.

83. In any event a proper reading of the definition in s. 3(r) of the Act would show that what was intended to be regarded as “land” was a thing which became a part of the land and we find ourselves unable to agree that which is placed on the land becomes part of the land. We would fancy that there is a considerable distance between placing a thing on land and making it a part of it. In our view there must be some kind of identification or fusion before anything can be said to become a part of the land and the words “attached to the earth” must therefore be construed in such a manner as to hold that because of such attachment the thing has lost its identity as a chattel and has become a part of the land.

84. Our attention has been invited to some Indian cases the first one being Perumal v. Ramaswami . [1969] A.I.R Mad. 346., where their Lordships considered the definition of immovable property in the General Clauses Act, in the Registration Act and in the Transfer of Property Act and found as we have done that the first three Acts were not of any assistance, for they merely use the same expression and give no guidance as to what is meant by the words “attached to the earth”.

85. As regards what is the content of the words “attached to the earth” the Madras High Court while referring to the Transfer of Property Act said (p. 348):

“…The third enactment, by Section 3, describes what is meant by ‘attached to the earth’, to wit, (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or building; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached. Broadly speaking, the degree, manner, extent and strength of attachment of the chattel to the earth or building, are the main features to be regarded. All the three aspects, in the description, show that the attachment should be such as to partake of the character of the attachment of the trees or shrubs rooted to the earth, or walls or buildings imbedded in that sense, the further test is whether, such an attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached.”

86. It was further observed (p. 348):

“For a chattel to become part of immovable property and to be regarded as such property, we should think, it must become attached to the immovable property as permanently as a building or a tree is attached to the earth.”

87. The next case cited was Jnan Chand v. Jugal Kishore . [1960] A.I.R Cal. 331., in which the Court was required to consider what was land for the purpose of cl. 12 of the Letters Patent. The Court was of the view that as ‘land’ had not been defined, reference to other provisions of law namely the Transfer of Property Act had to be made. The question involved was whether machinery fastened to earth was land or immovable property and it was held that if the mode of attachment is embedding in the earth as in the case of walls, or the object of the attachment was for the permanent beneficial enjoyment of land to which it is attached, then the property will be immovable property within the meaning of s. 3 of the Transfer of Property Act but not otherwise.

88. Now in the appeal before us we are not concerned as to what is or is not immovable property and this judgment is therefore not of much assistance except for the suggestion as to the nature of the attachment required.

89. Counsel for the appellants also relied on Narayana Sa v. Balaguruswami Nadar . [1924] A.I.R Mad. 187., where it appears to have been held that copper stills, vats and pipes of a distillery cannot be said to be fixtures. This judgment is not really relevant because what we have to consider is whether the tanks are attached to the earth, not as fixtures but as to make them part of the land.

90. Now an article which is no more attached than by its own weight is generally considered a mere chattel whereas even if an article is firmly fixed to the earth, if it was never intended to be a part of the land, it does not become so.

91. It will be seen that in Perumal's case the Madras High Court was of the view that the attachment was to be of such a degree as to make that thing part of the land and with this proposition we respectfully agree.

92. Mr. Joshi during the course of his argument suggested, that when we consider the question as to what is the meaning of the words “attached to the earth”, we should take into consideration the size of the oil storage tanks which have been put up by the appellants; we should take into consideration their weight; and we should also take into consideration the fact that even though they may be said to be capable of being moved, they are in fact intended to be permanently situated where they have been placed. He then went on to say that when these factors are taken into consideration then it would become apparent that the tanks even if not embedded in the earth or physically fastened by nuts and bolts to anything embedded in the earth would come within the purview of s. 3(r) of the Act. This is no doubt an attractive argument and Mr. Joshi seeks to rely in support of his argument on the observations in the Tyne Boiler Works case, certain passages from which have been set out by us. But it is to be noticed that the passage from the judgment on which Mr. Joshi relies itself refers to an interpretation of another judgment with which Lord Esher was dealing and it is significant to note that what he said was that he did not think that the Court in the case which he was discussing meant by the word “attached” that physical attachment should be the test. It was not as if the word “attached” appearing in a statute was being construed. In any even we must, as Mr. Joshi himself exhorted us to do, adopt a fair and reasonable construction of the relevant provision of the Act. Section 3(r) of the Act as we have seen, uses the words “attached to the earth” and we have come to the conclusion, on a careful consideration, that attachment must be of a greater degree than suggested by Mr. Joshi. As a matter of fact it is difficult to comprehend that anything which is resting by its own weight can even be said to be attached at all. If what Mr. Joshi suggests would be the correct interpretation, then it would come to this that weight alone would be the factor. A light article would not be said to be attached, but a heavy article would be. We are unable to agree that size and weight and even purpose can be determinative of a thing being attached to the earth or not. Attachment is a physical characteristic. It is the mode or manner of annexation or attachment that would be decisive. If some how it becomes a part or parcel of land then it is attached to the earth but not otherwise. We, therefore, hold that the six oil storage tanks, with which we are concerned, cannot be described as “land” for the purpose of their rate-ability under the relevant provisions of the Bombay Municipal Corporation Act.

93. Lastly it was suggested by Mr. Joshi, counsel for the respondents, that the interpretation should be such that the law should be made to extend to new things as they come into existence. He referred to Maxwell on Interpretation of Statutes, p. 102, for the proposition that the language of a statute is generally extended to new things, which were not known and could not have been contemplated when the Act was passed and when the Act deals with a genus and the thing which afterwards comes into existence was a species of it. Mr. Joshi said that when the Act was passed it was not known that oil tanks of this size would come into existence and be put up in the manner in which they have been done and that, therefore, the Court, while construing s. 3(s) must extend the definition of the word “building” by including in it an oil storage tank which is analogous to a shed. First of all it is to be noticed that Mr. Joshi once again wishes to use size as a criteria. Secondly an extension to new things is only possible if the genus is clear. We have held that a tank can never be described as a building nor do we find it possible to describe it as a house or shed. Mr. Joshi has emphasised the word “shed” but he himself told us that according to Oxford Dictionary a shed was a light structure for storage or shelter often with open front and sides. We find it difficult to see how a tank can ever be equated to a ‘shed’ which may have no sides at all.

94. In these circumstances, we are of the view that the Additional Chief Judge was wrong when he upheld the valuation of the tanks and their assessability to property tax. He was, however, right when he confirmed the rateable value of Rs. 13,980 for the other structures.

95. Since we have taken the view that tanks cannot be considered to be either land or buildings for the purpose of fixing the rateable value under the Act, we set aside the order passed by the Additional Chief Judge of the Small Causes Court in relation to the six tanks.

96. At this stage, Mr. Kothari for the respondents prays that the matter should be remanded to the Additional Chief Judge of the Small Causes Court as persona, designata for determining the rateable value of the property, in so far as the plot of land where the tanks are situate is concerned.

97. We are of the view that such a prayer is misconceived in so far as it is abundantly clear that the Additional Chief Judge of the Small Causes Court is not the assessing authority under the Act and the scheme of the Act is such that it only provides for a right to the person who is aggrieved by the assessment order made by the Municipal Corporation, to approach the persona designata under s. 217 of the Act for relief.

98. We are unable to understand how the persona designata would become an assessing authority as such under the Municipal Corporation Act. Mr. Kothari has not been able to point out any provision of the Act which would permit us to send back the matter to the Additional Chief Judge of the Small Causes Court for any further proceedings. We have already decided that the tanks cannot be treated either as land or building and it follows that they cannot be assessed to property tax. That is the substance of this judgment and that is where the matter must rest. It would be open to the Municipal Corporation to take such proceedings as they may be entitled to under the Act, or any other relevant law if any. The appeal is allowed. Respondents will pay the costs of the appellants throughout.

99. Appeal allowed.