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1. This appeal comes before us under the provisions of Clause 15 of the Letters Patent owing to a difference of opinion between Chatterjea, J., and Walmsley, J.

2. The Corporation of Calcutta instituted the suit for the declaration that the valuation and assessment made by the Cossipore Chit-pore Municipality of a holding owned and occupied by the Calcutta Corporation at an annual value of Rs. 25,000 was ultra vires and illegal.

3. The Calcutta Corporation own a holding No. 1, Khelat Babu's Lane, containing 16 bighas odd at Tallah within the limits of the Cossipore-Chitpore Municipality on which there has been erected an overhead steel tank supported by steel columns and girders. The tank was constructed in connection with the supply and distribution of filtered water to Calcutta.

4. The pumping house is situate at No. 71, Barraokpore Road, adjoining the holding No. 1, Khelat Babu's Lane. Under the terms of the proviso to Section 6, Sub - section '3, the two holdings ought to have bean assessed as one holding. Before the erection of the tank the holding No. 1, Khelat Babu's Lane, was assessed by the Cossipore-Chitpore Municipality at Rs. 1053. The annual value of the holding has now been raised to Rs. 25,000. I have had the opportunity of reading the judgment about to be delivered by Greaves, J. He has in the course of his judgment summarised the evidence as to the purposes for which the tank was erected and I do not intend to repeat it here.

19. I would allow the appeal and dismiss the suit with costs in both Courts.

Greaves, J.

20. This appeal comes before us by reason of a difference of opinion between Chatterjea, J., and Walmsley, J. The question that arises for decision is whether the Cossipore and Chitpore Municipality have acted ultra viras in assessing the Corpora-lion of Calcutta upon art annual value of Rs. 25,000 in respect of their holding of 16 bighas 18 cottas and five chittaks, No. 1, Khelat Babu's Lane, at Tallah in' the 42 Parganas, situate within the limits of the Cossipore and Chitpore Municipality, which has on a portion thereof a one-storied old masonry building measuring 30 feet by 20 feet used as an out-office and an overhead steel tank resting on and supported by steel columns and girders which stand upon a concrete cement foundation or plinth. The question involves deciding whether the steel tank is machinery within the third proviso to Section 101 of the Bengal Municipal Act, 1884 (Act III of 1884), and assuming that it is machinery, whether the Cossipore and Chitpore Municipality were entitled to take into account its existence on the holding in arriving at the annual value of the holding under Section 101. Up to 1913 and prior to the erection of the tank the holding was assessed upon an annual value of Rs. 8,000 approximately. There is no evidence on the record that apart altogether from the erection of the tank the holding has so appreciated in value that its annual value is now Rs. 25,000, and consequently I think that the inference is obvious that the tank has been taken into account in arriving at the present annual value of RS. 25,000 Chatterjea, J., has held that the tank is not machinery within the third proviso to Section 101 and that even assuming it is machinery, its existence upon the holding has been rightly taken into account in arriving at the annual value of the holding under Section 101, Walmsley, J., has held that the tank is machinery and that the third proviso is an absolute prohibition against taking the tank into account in arriving at the annual value.

24. In the lower Court three witnesses were called, two on behalf of the Calcutta Corporation, namely, Mr. G.B. Williams and Mr. W.S. McCabe, and one Mr. Henry Firth on behalf of the Cossipore and Chitpur Municipality.

25. Mr. Williams is a Sanitary Engineer under the Government of Bengal and a member of the Institute of Civil Engineers and of the Institute of Mechanical Engineers, and he stated that he had carried out a number of schemes of waterworks in India. He stated that be considered the tank to be a part and parcel of the pumping machinery and that the tank must be sailed machinery, and that it was as much a part of the machinery as the boiler and that it could not be designed or constructed without the pumps and that it helped the pumps.