1. The applicant has applied in revision against an order of a Bench of Honorary Magistrates, Second Class, Andheri, ordering him to pay Rs. 226-2-0 being the arrears of house-tax and Halalkhor-tax in respect of the past seven years of a house at Ville Parle now in his occupation.
2. The evidence in the case showed that the applicant was employed twenty months ago as watchman for this house on Rs. 25 per month by the owner Lady Janbai Tharia Topan. The house in reputed to be haunted. Lady Janbai has been absent from India and is now said to be in South Africa, The applicant admits that he is staying in the bungalow and is occupying it to let the world know that it is not haunted. He also admits that be has been conducting a tea-shop in a portion of the house. He further admits that during the period of his twenty months' service he has received nothing from Lady Janbai for his wages. From these facts the Bench Magistrates have inferred that Lady Janbai let the premises to the applicant in lieu of his services as watchman. In that view of the case they held that the applicant would be liable for the arrears of taxes under the provisions of Rules 18 and 20 of the rules framed by Government as Notified Area rules under the power conferred on them by Section 188 of the Bombay District Municipal Act (Bom. III of 1901). Section 188, Sub-section (i)(a) of that Act provides that the Governor in Council may by notification apply or adapt to any notified area the provisions of any section of this Act, or part of any such section, or of any rules in force or which can be imposed in any municipal district under the provisions of this Act, subject to such restrictions and modifications, if any, as he may think fit. Rule 18 of the Notified Area Rules seems to be taken and adapted from Section 68 of the Bombay District Municipal Act. The first proviso to that rule is in the following terms :-
Provided that on failure to recover any sum due on account of such tax from the person primarily liable, such portion of the sum may be recovered from the occupier of any part of the buildings or lands in respect of which it is due, as bears to the whole amount due the same ratio, which the rent annually payable by such occupier bears to the aggregate amount of rent so payable in respect of the whole of the said buildings or lands, or to the aggregate amount of the letting value thereof, if any, stated in the authenticated assessment list, whichever of those amounts is the greater.
This proviso, in our opinion, contemplates that the occupier from whom the taxes are leviable should be a tenant of the property. There is no evidence in the case that the applicant is a tenant of this property. The inference drawn by the Bench Magistrates can be regarded only as in the nature of a conjecture. The learned Government Pleader has argued that the rent peed not necessarily be payment in money, but services may be accepted in lieu of such payment. This would be justified by the definition of rent under the Transfer of Property Act, but there is no evidence in this case that Lady Janbai entered into any agreement with the applicant whereby the applicant became her tenant in this sense of the term. In our opinion the case does not fall within Rule 18 of the Notified Area Rules and the order made by the Bench Magistrates cannot be sustained.
3. Having regard to the conclusion we have come to it is not necessary for us to express an opinion on the point whether the Governor-in-Council by omitting to incorporate in these rules the proviso to Section 87 of the Bombay District Municipal Act which restricts such claims against an occupant, to the taxes that have accrued during the past one year only and have since remained unpaid, can be said to have modified the provisions of the Act so as to make the limitation period of one year prescribed by it inapplicable to claims against occupants of premises. Prima facie the Governor in-Council would have no power under Section 188 of the Bombay District Municipal Act to frame rules which would be contrary to or inconsistent with the main provisions of the Act.
4. Nor is it necessary for us to express an opinion on the Government Pleader's further contention that the Governor-in-Council may by these rules override the general provisions of the Indian Limitation Act in that behalf and make the arrears of taxes beyond the period of limitation payable. No authority was cited for this contention.
5. That we have jurisdiction to entertain this application is covered by the ruling of this Court in Dinbai Jijibhai, In re 21 Bom. L.R. 755.
6. The order of the Bench Magistrates is set aside and the rule made absolute. The applicant is allowed to withdraw the moneys he brought into Court.