1. This appeal raises the question of the interpretation of Section 83 of the Madras District Municipalities Act which begins as follows:
The following buildings and lands shall be exempt from property-tax - (a) places set apart for public worship and either actually so used or used for no other purpose, choultries, buildings used for educational purposes including hostels
2. We are not concerned with the latter portion of the section.
3. The established facts are that the suit premises were dedicated for use as choultry, that the Civil Court permitted the trustee of the choultry to let one-third of the premises for rent and use this rent for the upkeep of the premises as a whole, and that under colour of that sanction, approximately one half of the building has now been let for rent to tenants, the remainder being used partly as choultry and partly as the residence of the trustee. The suit was brought by the Municipal Council (the appellant here) to establish its right to levy house-tax and latrine-tax on the portion of the building which has been let out to tenants.
4. Both the lower Courts have held that the property having been dedicated as a choultry remains a choultry even though used for other purposes and is not taxable by reason of Section 83.
5. The learned District Munsiff bases his decision on the precise words of the section emphasising the fact that the old Section 63(1-a) of Act IV of 1884 contains the clause:
To the extent to which they are used for public, charitable or religious, but not residential purposes,
which clause has not been reproduced in Section 83 of the present Act and he argues therefrom that one must infer an intention to exempt choultries from taxation whatever be the nature of their user. This argument would have been stronger had Section 83 been more or less a reproduction of the old Section 69(1-a). Actually it is an entirely different section completely redrafted, though aimed at the same object. The learned Subordinate Judge argues in a different way but reaches the same result. He points out that the property had been dedicated for use as a choultry, that though it has been largely diverted from that use, the dedication remains and that the remedy is for persons interested to sue to put an end to the breach of trust. It seems to me that the remedy which lies open to persons interested to restrain the breach of trust is scarcely relevant to the consideration of the question whether this building is or is not a choultry exempted from taxation.
6. I do not think it permissible to infer from the various changes which have taken place in the wording of the provisions relating to exemption from property-tax of religious and charitable buildings an intention on the part of the legislature to exempt from taxation any building which had once upon a time been dedicated to such a purpose as a choultry, but has entirely ceased to be used for that purpose. To hold so would be to encourage breaches of trust and it would result in the curious position that when a charitable trust has been openly and continuously abused but no one has taken action to restrain the abuse, the person who enjoys the property in breach of trust would also enjoy the privilege in respect of immunity from taxation which he could only claim by virtue of the dedication which he himself has nullified by his conduct. In my opinion, only very clear language in the statute would justify the Court in sanctioning such an immunity. Actually we have nothing in the shape of qualification of the term 'choultries' in the provision exempting them from property-tax. The natural interpretation of the section surely would be that anything which is in facts a choultry is exempt from the tax. I see no reason to extend that exemption to a building which once was a choultry, but is no more a choultry, or to a building which is not but ought to be a choultry and might return to the state of being a choultry if and when circumstances change. The obvious course seems to me to be to look at the facts as they are at the time that the right to claim the tax accrues and to exempt from the tax any building which at that time in fact falls within the categories to which exemption is given. If the property is a choultry when the tax accrues due then the tax cannot be levied. If it is not a choultry on that date, being used for other purposes, then the tax is leviable even though in the past the property has been a choultry and might become one again in the future. I need hardly say that the mere use of the income from property as an endowment of a choultry will not clothe the property with the character of a choultry.
7. In this view I allow this appeal and give the plaintiff a decree for the amount claimed with costs throughout.