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The Municipal Council of Mangalore, by their Chairman Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1902)ILR25Mad747
AppellantThe Municipal Council of Mangalore, by their Chairman
RespondentThe Secretary of State for India in Council
Excerpt:
madras district municipalities act - act iv of 1884, schedule a--shopkeeper or trader--district forest-officer--depot for sale of forest produce conducted by representative of government--liability to taxation. - order 1. the district forest-officer of south canara, as the representative [of government, i.e., of the secretary of state for india in council, has been assessed by the municipal council of mangalore under the last clause of class iii, in schedule a, appended to act iv of 1884 (madras), as a shopkeeper or trader. the district forest-officer paid the tax charged and the secretary of state for india in council filed a suit in the court of the district munsif of mangalore to recover the amount so paid. the district munsif gave the plaintiff a decree as sued for and the municipal council, by this civil revision petition, pray the high court to set aside this decree. 2. a great deal has been said at the hearing of this case before the district munsif as to whether the secretary of state in.....
Judgment:

ORDER

1. The District Forest-officer of South Canara, as the representative [of Government, i.e., of the Secretary of State for India in Council, has been assessed by the Municipal Council of Mangalore under the last clause of class III, in schedule A, appended to Act IV of 1884 (Madras), as a shopkeeper or trader. The District Forest-officer paid the tax charged and the Secretary of State for India in Council filed a suit in the Court of the District Munsif of Mangalore to recover the amount so paid. The District Munsif gave the plaintiff a decree as sued for and the municipal council, by this civil revision petition, pray the High Court to set aside this decree.

2. A great deal has been said at the hearing of this case before the District Munsif as to whether the Secretary of State in Council can be held to be a person,' within the meaning that should be attached to that term as used in the schedule already alluded to. It is, however, not necessary to consider this question as the Secretary of State has not been assessed as a person under class II, Clause 2, class III, Clause 1, or any other clause set out in the schedule, but as a shopkeeper or trader. The provisions of Act XI of 1881 show clearly that the view taken by the District Judge of South Canara when this case came before him (Appeal Suit No. 130 of 1898), that the Secretary of State in Council is not liable to pay municipal taxes, is not in accordance with the principles followed by the Legislative Council of the Government of India. As far as can be ascertained from the evidence, the District Forest-officer of South Canara does not sell anything at the forest depot under his management in Mangalore except forest produce take a from the forests belonging to Government in that district. Such being the case, we are inclined to hold on the record as it stands that, in so far as these transactions are concerned, the Secretary of State in Council cannot be held to be a trader. In a number of judicial decisions quoted at the bearing, a trader has been held to be a person who habitually buys and sells with a view to profit and this definition is in accordance with popular phraseology. We should hesitate to decide that a person who is not shown to be in the habit of selling anything except the produce of his own land is a trader. Reference has, however, been made to the decision in Venkata Reddi v. Taylor I.L.R. 17 Mad. 100, where it was held by Parker, J., that a Taluk Sheristadar who sold paddy grown on his own land was a trader within the meaning of Act IV of 1884. Muthusami Aiyar, J., and Best, J., however, when Mr. Justice Parker's order came before them on appeal, qualified the above finding by ruling as follows: "We do not think the fact of what he sells being the produce of his own land makes him the less a trader, provided the sales are conducted in a shop or place of business." The only evidence on the record is a deposition of the District Forest-officer and it is not sufficient to enable us to decide if the sales of forest produce in Mangalore are conducted in a "shop or place of business" or not. The Secretary of State has been assessed as a trader or shopkeeper. The District Munsif has found that he is not a trader but has not considered the question as to whether he is liable to be taxed as a shopkeeper. In order, therefore, to enable us to dispose of this revision petition we are of opinion that the District Munsif should be called on to try the following issue:

Is the plaintiff liable to be assessed as a shopkeeper under class III, Clause 7, of schedule A, appended to Act IV of 1884 (Madras)?

3. Further evidence may be taken. The finding should be submitted within one month from the date of the receipt of this order. Seven days will be allowed for filing objections.

4. In compliance with, this order the District Munsif returned a finding to the effect that the depot in question was not a shop.

5. The case came on for disposal before the same Bench, when their Lordships delivered the following

Case Note:

Madras District Municipalities Act - Act IV of 1884, Schedule A--Shopkeeper or trader--District Forest-officer--Depot for sale of forest produce conducted by representative of Government--Liability to taxation.

JUDGMENT

6. The finding is that the depot is not a shop and we accept that finding. It follows that the District Forest-officer is not a shopkeeper. We have already found that he is not a trader. We therefore dismiss this revision petition with costs.


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