V.V. Srinivasa Aiyangar, J.
1. The Madras and Southern Mahratta Railway Company, Ltd., has instituted this action against the Municipal Council of Cuddappah for a declaration that certain levies as for assessments made by the defendant Council were illegal and not leviable or recoverable by the Council against or from the plaintiff-company, and that,on such a declaration, a decree should be passed for the refund to the plaintiff-company of the sum of Rs. 2,079-11-0, which is stated to have Been paid by the plaintiff-company to the defendant Council under protest. The suit was originally instituted in the District Munsif's Court of Cuddappah but was transferred by an order of this Court to the Original Side of this Court for trial and disposal. No question has been raised or argued in this case with regard to the right of the plaintiff-company to recover the amount alleged to have been paid by it under protest to the defendant-Council, if, as a matter of fact, the Court should find that the defendant-Council was not entitled to levy the amount. It is conceded that the payments were made under protest and we may take it, under threat of coercive process by the defendant-Council.
2. The question that arises for determination before me is whether the defendant-council was entitled to levy this amount under the existing law from the plaintiff-company. It is a somewhat curious case and I cannot help regarding it as having been entirely due to what I consider to be very probably an oversight on the part of the authorities. However, a? the question has arisen and has been argued, I have to find whether in the present state of things, the defendant Council was or was not legally entitled to levy the amount now claimed.
3. The position is this. There was a District Municipalities Act in the year 1884. Under Section 47 of that Act, power was given to the Municipal Council under Clause (ii) of that section to levy 'a yearly tax on lands and buildings not exceeding 7 per centum on the annual value of such lands and buildings.' So far as that Distiict Municipalities Act was concerned, there were no special provisions with regard to the levy of taxes and assessments by the Council form any railway administrations. They are therefore treated like all other legal persons and like all other companies. But under Section 135 of Imperial Act (IX of 1890), the Indian Railways Act, it is provided as follows:
Notwithstanding anything to the contrary in any enactment or in any agreement or award based on any enactment, the following rules shall regulate the levy of taxes in respect of railways and from railway administrations in aid of the funds of the local authorities, namely
(1) A Railway administration shall not be liable to pay any tax in aid of the funds of any local authority unless the Governor-General in Council has, by notification in the official Gazette, declared the railway administration to be liable to pay the tax.
Clause (2) of that section provides for the obligation on the part of railway administrations to pay such taxes or, in lieu thereof, some amount that may be fixed by an officer to be appointed by the Governor-General in Council, and Clause(3) authorises the Governor-General in Council at any time to revoke or vary the notification under Clause (1). I do not refer to the other parts of that section, because they are not relevant for the present purpose. The effect, therefore, of this section of the Indian Railways Act is that in the first instance it grants immunity to all railway administrations from any kind of tax or assessment by any local authority and then authorities the Governor-General in Council to issue a notification declaring any railway administration to be liable to pay the tax, I take it that that clause means that the Governor-General in Council may by notification declare any railway administration to be liable to pay any such tax as may be determined or declared by that notification.
4. This Act came into force on the 1st May 1890 and we find on the 12th June 1890 curiously enough a Notification No. 270 made by the Governor-General in Council under the provisions of this Act to the effect that every railway administration shall be 'liable from and after the 1st May 1890 to pay every tax which it was lawfully required by or on behalf of any local authority to pay in aid of the funds of such authority during the year ended on the 30th April 1890.' There was another notification by the Governor-Generail in Council, No. 136, dated the 5th April, 1893, in which the liability of railway administrations for certain taxes was sought to be regulated. The next notification was on the 29th Nov. 1907, No. 9977 and was to the effect that 'every railway adminis-rtation in British India shall thereafter be liable to pay, in respect of property within any local area, every tax which may lawfully be imposed by any local authority in aid of its funds, under any law for the time being in force.' Then we come to the last notification under that section with which we are concerned, namely, Notification No. 230, dated the 24th Aug. 1911. It is to the following effect and I quote it in extenso, because there has been some discussion with regard to the wording of a portion of it:
In pursuance of Section 135 of the Indian Railways Act (IX of 1890) and in supersession of all previous notifications on the subject, the Governor-General in Council is pleased to declare that the administration of the Madras and Southern Mahratta Railway shall be liable to pay, in aid of the funds of the local authorities set out in the schedule hereto annexed, the taxes specified against each in the second column thereof' and then there is a long schedule and the railway administration is made liable under the terms of the schedule to pay to the Municipal Council of Cuddappah, house, land and water taxes. This notification is expressly made in supersession of all previous notifications on the subject. Then in the year 1920, the District Municipalities Act was re-enacted and Acr V of 1920 was passed. There has been no notification issued by the Governor-General in Council after this new District Municipalities Act was passed by the local legislature at Madras.
5. The first contention on behalf of the plaintiff-company was that as there has been no fresh notification by the Government of India after the passing of the new District Municipalities Act, the plaintiff-railway administration is not liable to any extent in respect of any of the obligations to pay any taxes under this new Act. To this, it was replied on behalf of the defendant-Council, that so far as the District Municipalities Act was concerned, that did not exempt any railway administrations from liability to taxation and that such exemption was granted only by the Indian Railways Act. It was, therefore, contended that the Court should have regard only to the notifications issued by the Governor-General in Council under Section 135 of the Indian Railways Act for the purpose of determining whether or not any particular railway administration was liable to be taxed. If it was the Distrist Municipalities Act that exempted railway administrations in the first instance from liability to taxation in any manner or degree and if the notification had been issued under the District Municipalities Act which has been' repealed and no such notification had been issued under the new Act, no doubt there might be some force in such a contention, but having regard to the fact that all the notifications were issued or purported to be issued only under Section 135 of the Indian Railways Act, I am satisfied that the mere fact of a new District Municipalitits Act having been passed could not and does not affect the question.
But as I have already stated, in the notification of the 24th August 1911, the plaintiff-company was declared liable to house, land and water taxes. That notification was, as I have already said, expressly issued in supersession of all previous notifications on the subject. What has really caused the difficulty in this case and enabled the plaintiff-company to raise the present contention is the fact that in the present District Municipalites Act (V of 1920) there is no tax which is called house or land or water tax. One may say that practically these taxes have been substituted by a new tax called 'property tax'. I may as well point out here that under the old Act, 71/2 per cent on the annual value was fixed by the Act as the maximum of the taxes leviable by the Municipality for house and land tax. With regard to the property tax under the present Act, there is no maximum fixed and apparently the Municipal Council, is at liberty to fix tax at any percentage it pleases, subject of course to the restriction imposed in the Act itself with regard to sanction and so on.
6. The question therefore is whether having regard to the fact that under the last notification under Section 135 of the Indian railways Act the plaintiff-railway administration has been declared to be liable to house and land tax, it should be declared to be liable also for the property tax under the present Act. To begin with, I have very serious doubts whether any subject declared liable for a tax called by a particular name, could also held liable to a tax called by a different name under a new enactment, merely on the ground that, though called by a different name, the tax is substantially and identically the same. That was really the contention put forward on behalf of the defendant-Council. The earned Counsel who appeared for the defendant offered to show not only by references to Acts and Schedules and so on but also by calling oral evidence before me that the property tax now levied by the defendant-Council on 'the plaintiff-administration was identically the same tax that was previously levied under the old Act as house and land tax. It seems to me that serious consequences will follow if it should be held that it is open to Courts of law to enquire into the nature of the taxes, the incidence of taxation and so forth for the purpose of finding out the real identity between two kinds of levies. It is open to the Legislature to, call a tax a property tax and it is possible that the provisions relating to what is called the property tax have nothing to do with property. Though this might not happen ordinarily, still there is no reason whatever why it should not be so. A tax might be called a property tax and be recoverable only in respect of particular kinds of property. When we are dealing with enactments of the Legislature and notifications thereunder, it is not proper to dismiss altogether the names under which the declaration of persons in respect of liability for taxation is made. We may take the converse case. Supposing the railway administration had been declared liable to pay house tax, and afterwards the Municipalities Act was amended and the so-called house tax was made leviable in such a manner as to have nothing at ail to do with houses. In such a case as that, I should have felt bound to declare that though the definition or incidence of house-tax had been altered by the Legislature, still as, in the notification, the liability of the railway administration has been declared in respect of a tax called by a particular name and that name has not been altered, the railway administration would still be liable. In fact, the earned Counsel for the defendant said that such a result would necessarily follow. The question then is, whether if the name is altered, is it open to the Municipal Council to claim to show that though the name is altered, the two taxes are really and substantially the same? I think not. As I have already observed, it might lead to serious consequences if I should hold that such an enquiry is open to the Court. The Legislature for reasons of its own having declared the liability of the railway administration for a tax called by a particular name should not be held to have authorised the liability in respect of any levy or assessment named differently. The Governor-General in Council might have had their own reasons for making the notification in the terms in which they did. It would have been open to them in the notification to have stated that the railway administration should be liable not only for house and land tax but any tax that may be levied in respect thereof or in lieu thereof thereafter by any local bodies. No apt words have been used by the notification for such a purpose. I am therefore of the opinion that when the Legislature has declared the liability of a person to a tax called by a particular name, that person is not liable to any tax which is called by the Legislature itself by a different name and that it is not open to the Court to launch upon any enquiry with regard to the real or substantial identity of the two.
But assuming for purposes of argument that such an enquiry is open, what then is the result in this case? I take it that the object of the Legislature in granting immunity to all railway administrations in the first instance from all local taxation and vesting the power to declare liability to such taxation in the Governor-General in Council to be exercised by notifications published from time to time, is that local bodies should not be at liberty to treat railway administrations in the same manner as they treat citizens and that railway administrations should be liable to taxation by local bodies only in the manner and to the extent that the particular constituted authority may, after considering the question, declare them to be liable. That is, the manner and the measure of liability will have to be determined by the authority that is constituted by Section 135 of the Indian Railways Act.
7. The learned Counsel for the defendant contended in this connection that by the notification of the year 1907, all the railway administrations were declared liable to any taxation which local bodies were entitled to levy according to the law for the time being and that the notification of 1911 did not supersede or cancel the previous notification. Undoubtedly, if there were any general notification to the effect that all railway administrations are subject to all the taxes which Municipal Councils, according to law, are entitled to levy and if any notification subsequent thereto, without cancelling or revoking the previous notification, should merely set out special cases of such taxation, there would be some force in the contention. But the notification of 1911 is in terms in supersession of all previous notifications on the subject. The earned Counsel for the defendant contended that the expression 'on the subject' did not refer to the subject of the liability of railway administrations to local taxation but merely to the particular purpose to which this notification was confined. It is impossible to accept such a contention. The reference is to Section 135 of the Indian Railways Act and the expression 'on the subject' should only be construed as relating to the liability of railway, administrations to taxation by local bodies.
8. It then becomes necessary to find whether even according to the contention on behalf of the defendant, the house and land tax under the old Act is really or substantially identical with the property tax as it is called under the new Act. Even in this respect, I am unable to agree with the contention on the part of the defendant. What is meant by substantially identical? It is conceded that it is differently styled in the two Acts. Next let us see the rare of taxation. Under the old Act, 7 1/2 per cent, on the annual value was the maximum fixed. Under the present Act, no such maximum fixed. Then, can this house and land tax under the old Act be regarded as substantially identical with the new tax called the property tax? Again the property tax, as it is called, is stated to be a general tax and may include, according to the provisions of Section 81 of Madras Act V of 1920, not only an unlimited tax in respect of buildings and lands but it is directed that it shall comprise a tax for general purposes and may also comprise other kinds of taxes set out in the sub-clauses of that section. The property tax therefore under this section is said to include not merely a tax on houses and lands but also a tax for general purposes and may also comprise a tax for other purposes specified therein. If the object of the Legislature in granting immunity to railway administrations in the first instance in respect of taxation by local bodies and vesting the power to subject them to such taxation in the Governor-General in Council by notifications duly promulgated from time to time, be that the Governor-Genera; in Council should, from time to time, having regard to the nature of the taxation, the function of railway administrations, the benefit that may possibly be derived by railway administrations from the existence and working of these local bodies, determine what taxes these railway administrations are to be made liable and for and to what extent, then it follows that in respect of the property tax now sought to be levied by the defendant Municipal Council, the Governor-General in Council has had no opportunity whatever to consider the propriety or otherwise of subjecting the railway administrations to such taxation and it, therefore, follows that in the absence of any such notification making the railway administrations liable, it cannot be regarded or held to be liable to pay the tax. No doubt it may often happen that a particular tax to which the railway administration is declared to be liable may be increased or altered1 in its incidence by any amendment of the District Municipalties Act and that in such a case, as I have already observed, railway administrations might still be held liable to pay the tax with its new incidence. That is because of the use in the notification of a particular expression, by which expression even the new tax, as it may be called, is known, and by which it is covered. It is possible that in such cases, the authority constituted for the purpose of issuing the notification might have considered that it would be proper to subject railway administrations not only to the tax known by the particular name with its incidence then existing but to the same tax called by the same name whatever may be the incidence in any amendment of the Act. If the intention had been otherwise, different language might have been adopted in the notification. But so long as the tax is properly called by the name used in the notification and contained or set Out in the legislative enactment, the liability cannot be denied; but when the name has been altered, it is impossible to say that legal liability still subsisted because the tax sought to be levied is in substance the same as the old tax. I certainly refuse to regard as substantially identical the house and land tax under the Act of 1890 and the property tax under the Act of 1920. The rate is different and the incidence is different. Even if it be open to the defendant Council to contend and seek to prove that the liability of the plaintiff railway administration subsists in respect of the tax, because of the real or substantial identity of the two taxes, I cannot find in favour of such real or substantial identity and that therefore also the defendant Council had no right to levy the tax that they did levy from the plaintiff administration.
9. It follows that the levy effected by the defendant Council from the plaintiff company was illegal and unauthorised. On my intimating to the learned Counsel for the plaintiff that I was in favour of his contention, so far as this point was concerned, he intimated on behalf of the plaintiff;company that he did not wish, in the circumstances, to press the other points now, because it is unnecessary to do in view of the fact that the decision on this point goes to the entire root of the liability of the plaintiff company to pay to the defendant Council any tax whatsoever. It has therefore become unnecessary to try the other questions that have been raised on behalf of the plaintiff. But if my decision on this point should be reversed, it will be open to the plaintiff company to have the other matters, heard' and disposed of.
10. As I have already said, there was no argument to me with regard to the liability of the defendant Council to repay the amount levied if the Ievy should be held to have been illegal or unauthorised. I therefore declare that the defendant Council had no right to levy the property tax from the plaintiff railway administration and that therefore the amount (levied by the defendant Council and set out in the plaint is liable to be repaid by the defendant Council to the plaintiff company. There will therefore be a decree for the payment of the sum of Rs. 2,079-11-0 by the defendant Council to the plaintiff company. The said amount will carry interest at 6 per cent, per annum from the date of suit till payment.
11. The plaintiff has succeeded in the action. The question arises whether there are any sufficient grounds for my depriving the successful plaintiff of the costs of the action or for making an order for taxation of costs on any scale other than that adopted in this Court. If I should be satisfied that the order for transfer of the case was obtained on insufficient grounds or that it was not a proper case for transfer or there was any unusual hardship for the other party by reason of the transfer having been ordered, I should certainly have considered the desirability of making some other order as regards costs than the usual one. I have been asked by the earned Counsel that appeared for the defendant that the order for costs should be only for payment of costs on the scale on which the same would have been payable if the case had continued on the file of and disposed of by the District Munsif's Court of Cuddappah. A learned Judge of this Court has made the order for transfer and I have now heard the case, and having regard to the general importance of the case and the difficult nature of the questions raised, I cannot say that the order for transfer was not properly applied for. If therefore it should be conceded that the order for transfer was proper, then are there any reasons for depriving the successful plaintiff who has had to pay costs in this Court, of the costs on, the ordina scale? I see none whatever. The Legislature has really allowed such transfers in special cases and unless there are special circumstances, the costs allowed should be the costs of this Court. I therefore direct that the defendant will pay to the ' plaintiff taxed costs of this suit.