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Kanhardas Jankidas Bairagi Vs. Keshav Govind Bargandi - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai
Decided On
Case Number Second Appeal No. 189 of 1931
Judge
Reported inAIR1935Bom321; (1935)37BOMLR235; 159Ind.Cas.209
AppellantKanhardas Jankidas Bairagi
RespondentKeshav Govind Bargandi
DispositionAppeal dismissed
Excerpt:
.....of jalgaon made a bye-law under which 'buildings used exclusively for religious, charitable or municipal purposes' were exempt from the payment of house-tax. the defendant was the manager of a temple at jalgaon. the temple property consisted of the temple proper, a room set apart for visitors, and a suite of twelve rooms, one of which was occupied by the manager and the remaining eleven were let to tenants. the rent recovered was used for the purposes of the temple. the first three were exempt from the payment of house-tax, but the municipality used to levy the tax on the eleven rooms which it enhanced for the year 1927-28 and recovered it from the defendant. the defendant appealed against the levy of the tax to a magistrate under section 11o of the bombay municipal boroughs act,..........appurtenant to a temple which are used for residential purposes and let to tenants are exempt from municipal taxation on the ground that the income is used for religious purposes connected with the temple.2. the appellant is the manager of a temple of balaram at jalgaon to which there are attached twelve rooms, one occupied by the manager himself and the others by tenants who pay rent for them. it is an admitted fact that the income derived from these rents is used for the purposes of the temple. the jalgaon municipality has for some time past been levying house-tax on the rooms and the tax has been paid. but in 1927-28 the amount of the tax was increased and the manager appealed against the assessment under section 110 of the bombay municipal boroughs act, xviii of 1925. the magistrate.....
Judgment:

Broomfield, J.

1. There is a common question in these two appeals, viz., whether rooms appurtenant to a temple which are used for residential purposes and let to tenants are exempt from municipal taxation on the ground that the income is used for religious purposes connected with the temple.

2. The appellant is the manager of a temple of Balaram at Jalgaon to which there are attached twelve rooms, one occupied by the manager himself and the others by tenants who pay rent for them. It is an admitted fact that the income derived from these rents is used for the purposes of the temple. The Jalgaon Municipality has for some time past been levying house-tax on the rooms and the tax has been paid. But in 1927-28 the amount of the tax was increased and the manager appealed against the assessment under Section 110 of the Bombay Municipal Boroughs Act, XVIII of 1925. The Magistrate who tried the case decided that, as the rent of the rooms is exclusively used for religious purposes, the Municipality was not entitled to levy the house tax, and the whole amount was remitted. On this the Municipality brought the suit, from which second appeal No. 189 of 1931 arises, to set aside the Magistrate's order and to recover the amount of the tax. This relief has been granted by the lower Courts. A counter suit was brought by the manager to recover the amount Of the tax paid by him for 1927-28, for a declaration of non-liability to taxation and for a permanent injunction restraining the officers of the Municipality from assessing and levying the tax. That suit has been dismissed by both the lower Courts and it is the subject of second appeal No. 201 of 1931.

3. I may deal first with the question of the liability of these rooms to taxation, which is common to the two appeals. It depends on the construction of a municipal bye-law which is in the following terms :-

The following buildings shall be exempt from the payment of house-tax, viz. :- (a) building used exclusively for religious, charitable or Municipal purposes.

I may say that the actual temple of Balaram and also a room for the accommodation of visitors to it are exempted by the Municipality under this bye-law. The question is whether the rooms which are let to tenants can be regarded as being used exclusively for religious or charitable purposes. Prima facie, and apart from authority, I should certainly say that the view taken by the lower Courts is correct. The rooms themselves are used for a secular purpose, and the fact that the income derived from such use is devoted to religious purposes would not, I should say, bring the buildings themselves within the ambit of the bye-law. The argument of the learned advocate for the appellant would equally apply if the buildings were used as shops or as a factory or as an entertainment hall. But in such circumstances, I think, it would be obviously unreasonable to say that the buildings were used for religious or charitable purposes merely because the income derived from them was applied to such a purpose.

4. I do not consider moreover that the meaning which the language of the bye-law itself suggests as the probable meaning is in any way inconsistent with the authorities to which I have been referred. Fischer v. Twigg I.L.R (1897) Mad. 367 related to certain school buildings and the finding there was that these buildings were exclusively used for charitable purposes, that is to say, the buildings themselves were so used. Monie v. Scott : AIR1918Bom88 was a case dealing with college hostels. It was held that the part of a hostel of a college occupied by students arid the superintendent is occupied for charitable purposes and therefore exempt from general taxation. The basis of the decision was that hostels were erected and maintained by the college as part of the general educational scheme of the country and therefore the portions occupied by the resident students were exempt from taxation as they were exclusively occupied for charitable purposes within the meaning of the Act. Portions of the hostels were occupied by a professor and an assistant superintendent and it was held that those portions would be liable to taxation in the absence of evidence to show that their duties were such as to make their presence on the premises absolutely necessary for educational purposes. It is clear, therefore, that the Court was dealing with the manner in which the building was actually used and not with the manner in which the income derived from it might be used. The purpose of the institution required that the building there should be used in that particular way. But I do not think it can be said that the purposes of this temple of Balaram necessarily require that these rooms should be used in the way they are used. The most one can say is that the income to be realised from them is required for the unkeep of the temple.

5. The only other case to which my attention was directed is The University of Bombay v. The Municipal Commissioner for the City of Bombay I.L.R (1891). Bom. 217. It was held there that the Sir Cowasji Jehangir Hall, the University Library, and the Rajabai Tower, are buildings exempt from taxation on the ground that they are exclusively occupied for charitable purposes. I do not think the decision in that case is of any assistance here. In my opinion the rooms in question are not exempt from municipal house-tax.

6. In connection with the suit brought by the Municipality, the subject of the first of these second appeals, a point of jurisdiction has been taken. Section 110 of Act XVIII of. 1925 allows an appeal to a Magistrate or Bench of Magistrates against any notice of demand. The manager of the temple availed himself of this remedy, as I have stated, and got an order in his favour. Section 111 (1) of the Act provides that the decision of the Magistrate or Bench of Magistrates upon any appeal shall, at the instance of either party, be subject to revision by the Court to which appeals against his or their decisions ordinarily lie. Clause (2) of the section says that effect shall be given by the Chief Officer to every decision of the said Magistrate or Bench of Magistrates. Mr. Nijsure's contention is that the existence of these provisions enabling a party to appeal to a Magistrate and to get the order of the Magistrate revised, if necessary, bars a suit in a civil Court except in cases where the decision complained of is ultra vires or mala fide, Now on that point there are two decisions of this Court which appear to dispose of the matter and which are binding upon me. The first is Chunilal v. Surat City Municipality I.L.R (1903) 27 Bom. 403, 5 Bom. L.R. 267. It was held there that Section 86, a provision in Act III of 1901, which corresponds to Section 110 of Act XVIII of 1925, was permissive merely, and that it did not make it incumbent in every case on a party complaining of an illegal levy of a tax by a Municipality to appeal against the action of the Municipality to a Magistrate before suing in a civil Court. Mr. Nijsure says that the provisions of Section 86 were in terms permissive ; the language was 'Appeals may be made' ; whereas the language of Section Ill is mandatory. I do not agree. Clause (2) of Section Ill is no doubt mandatory, though of course it does not mean that the Chief Officer is not to give effect to the order of a civil Court, which supersedes that of the Magistrate or Bench. But the words ' any appeal shall, at the instance of either party, be subject to revision ' are not mandatory in the sense that they make it incumbent on either party to adopt the remedy provided in the section.

7. Then in Hari v. Belgaum Municipality : AIR1930Bom68 we have a decision on the present Act. It was held there that there is nothing to prevent a suit being filed by an assessee even though he may not have followed in its entirety the procedure for appealing to the Magistrate laid down in Section 110 of the Act. It did not appear in that case that any appeal had been made to a Magistrate at all. Mr. Nijsure said that the question of the jurisdiction of the civil Court was not raised in this case, but I think it obviously must have been raised ; otherwise the Court would not have thought it necessary to give a finding on that point.

8. These two cases, in my opinion, clearly support the view which has been taken by the lower Courts and are opposed to the appellant's contention that the civil Court, has no jurisdiction. The other cases to which I was referred in that connection do not, in my opinion, lay down any principle inconsistent with the above. Morar v. Borsad Town Municipality I.L.R 900) 24 Bom. 607, 2 Bom. L.R. 417 and Municipality of Wai v. Krishnaji Gangadhar I.L.R.(1898) . 23 Bom. 446 dealt with the question of valuation, that is to say, the amount of a tax. It was held that the decision of the Municipality on such a point cannot be questioned by the civil Court or by a Magistrate. (That was before the Municipal Act allowed an appeal to a Magistrate.) Here we are concerned not with the correctness of the valuation but with liability to taxation. Kasandas v. Ankleshwar Municipality ILR(1901) 26 Bom. 294, 3 Bom. L.R. 882, though cited by Mr. Nijsure, seems to me to be contrary to the position which he took up. What was held there was that in the absence of proof of mala fides, perversity, or manifest error, civil Courts ought not to interfere with the house valuation made by a Municipality for the purpose of taxation, unless there is breach of the rules prescribed by law for making the valuation. Sir Lawrence Jenkins at p. 297 observed in his judgment :-

Had the appellant been able to make out that which is the basis of his argument, that the prescribed rules for arriving at a valuation had not been observed, then I agree he would have successfully distinguished this case,

i.e. (Morar v. Borsad Town Municipality). What has to be decided here is whether the assessment made by the Municipality is justified by the bye-law or not.

9. Then I was also referred to Bhaishankar v. The Municipal Corporation of Bombay I.L. R (1907) . 31 Bom. 604, s.c. 9 Bom L.R. 417. It was held there that where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. 'It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary Courts, for they never had any. The jurisdiction of the Courts can be excluded not only by express words but also by implication.' But this is not a case in which rights not existing before are conferred by the Municipal Act. Quite apart from the Municipal Act the civil Courts have jurisdiction to deal with a civil right such as liability to taxation. The principle of the decision in Bhaishankar v. The Municipal Corporation of Bombay is that when a statute which creates the right also prescribes a special remedy, the person aggrieved is limited to the remedy so prescribed. That principle, I think, has no application here at all. I cannot hold, therefore, that the jurisdiction of the civil Court to entertain a suit of this kind is impliedly barred. I may mention in that connection that Section 203 of the Act allows the Municipality an alternative procedure by suit in lieu of any process for recovery allowed by or under the Act.

10. There is one more point to be considered in connection with second appeal No. 201 of 1931. The lower Courts have held that the suit failed because the plaintiff did not give a notice to the Municipality as required by Section 206 of the Act, and that section requires two months' previous notice to be given to the Municipality before the commencement of any suit for anything done or purporting to have been done in pursuance of this Act. It is not really necessary to go into this point at any length because I have held that in any case the appellant's suit against the Municipality fails on the merits. But I may say that I agree with the conclusion of the lower Courts that notice was required. I think the observations of their Lordships of the Privy Council in Bhagchand Dagadusa v. Secretary of State for India I.L. R(1927) 51 Bom. 725, 29 Bom. L.R. 1227 are applicable in this case also, since the real basis of the appellant's suit is the assessment and the entry made by the Municipality, that is to say, 'an act done or purporting to be done under the Act.'

11. These two appeals are dismissed with costs.


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