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Narendra Nath Sinha Vs. Nagendra Nath Biswas - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata
Decided On
Judge
Reported in(1911)ILR38Cal501
AppellantNarendra Nath Sinha
RespondentNagendra Nath Biswas
Cases ReferredDharma Das Kundu v. Amulyadhan Kundu
Excerpt:
municipal election - bengal municipal act (iii of 1884) sections 6, 15, 103 and 105--voter, qualification of--illegal levy of income-tax and payment of municipal rate, effect of--'owner' meaning of--property acquired by father with contribution from son. - .....it has been argued that the payment contemplated as a qualifying circumstance must be payment by a person liable to pay under the provisions of the law. it has been contended on the other hand, on behalf of the defendant, that as admittedly he had paid income-tax, it is immaterial that the sum has been illegally levied from him. in this connection, it may be pointed out that under section 13 of the income-tax act, 1886, the tax is deducted from the interest on the securities mentioned in part iii of the second schedule, unless the owner of the security produces a certificate from the collector that his annual income from all sources is less than the minimum taxable income. in other words, the income-tax is automatically deducted unless the holder of the security obtains an order for.....
Judgment:

Mookerjee, J.

1. This appeal arises out of an action commenced by the plaintiff-respondent, for declaration of the invalidity of the election of the defendant as a Commissioner of the Manicktolla Municipality. The suit was instituted on the 8th July, 1910, after the name of the defendant had been entered in the lists as qualified to vote and also to be elected as a Commissioner. The election took place on the 23rd July, 1910, and the plaintiff thereupon asked for a perpetual injunction to restrain the defendant from exercising his privileges as an elected Commissioner. The Court of first instance held that the defendant was qualified to vote under Clause 1 of the proviso to Section 15 of the Bengal Municipal Act, 1884, because he had paid, during the year immediately preceding the election, Municipal rates of the aggregate amount of not less than three rupees; the Court also found that he was qualified under Clause 2 of the same proviso as he had paid income-tax during that year. In this view, the suit was dismissed with costs. Upon appeal, the learned District Judge has reversed that decision. He has held, first, that the defendant is not qualified under Clause 2 of the proviso, because his income was not such as would make him liable under the law for the payment of the income-tax, and, secondly, that he is not qualified under Clause 1 of the proviso, because he was not owner of the house in respect of which he was assessed by the Municipality, and for which he has paid the Municipal rate. The District Judge has held in substance that although the defendant has actually paid both income-tax and Municipal rates he is not qualified, inasmuch as he was not liable under the law to pay either the tax or the rates. The defendant has now appealed to this Court, and on his behalf the decision of the District Judge has been assailed on the ground that as he has paid the income-tax as well as the Municipal rates, he is qualified to vote and to be elected, even though it is established that income-tax has been illegally levied from him, and he has been improperly made liable for the Municipal rates. It has further been contended that in so far as the Municipal rates are concerned, he was properly assessed and made liable as an occupier, if not as an owner. These contentions have been strenuously challenged on behalf of the plaintiff-respondent; and it has further been argued that in so far as the payment of income-tax is concerned, apart from the question whether the defendant was liable to pay the tax, the payment is of no assistance as it was made on the 7th June, 1910, that is not within the official year 1909-10. The answers to the questions raised, which are of some novelty and not altogether free from difficulty, must depend upon an examination of the statutory provisions on the subject.

2. Section 14 of the Bengal Municipal Act provides, that a certain proportion of the Commissioners of each Municipality shall be elected by male persons resident within the limits of the Municipality who shall have attained the age of 21 years. This section which defines the qualifications of electors in so far as age, sex, and residence are concerned, is supplemented by Section 15 which imposes what, may be briefly called property and educational qualifications. The proviso to Section 15 lays down that every male person who is at the time of election and has been for a period of not less than 12 months immediately preceding such election, resident within the limits of the Municipality, shall be entitled to vote at the election of Commissioners provided he satisfies one of three requirements. The first of these is the payment of Municipal rates, the second is the payment of income-tax, the third is an educational qualification with which I am not concerned in the present case. It is not disputed before us that the defendant resided Avithin the limits of the Municipality for a period of not less than 12 months immediately preceding the election. The only question, therefore, which requires consideration is, whether he has fulfilled the conditions relating to the payment of the prescribed minimum amount of rates and income-tax. As already stated, there is no controversy that he has paid both rates and income-tax, but the contention of the plaintiff is that the defendant was not liable to pay either of the sums realised from him, and that, therefore, his submission to the illegal demand, and the satisfaction of the claim made upon him, do not qualify him as an elector.

3. It will be convenient to consider the two payments separately. In so far as the payment of income-tax is concerned, it has not been disputed that on the 7th June, 1910, income-tax was deducted from the interest on Government securities held by the defendant, but it is argued that this is of no avail, first, because the payment was not within the official year preceding the election; and secondly, because in any event, the defendant was not liable to pay any income-tax, as he has not an assessable income of one thousand rupees or upwards. In support of the first objection, it is contended on behalf of the plaintiff that the income-tax mentioned in Clause (2) of the proviso to Section 15 of the Bengal Municipal Act, must be paid during the official year preceding the election, because the term 'year' as defined in Section 6, Clause (19) means a year beginning on the 1st day of April, consequently, as the payment in this case has been made during the official year in which the election has been held, it is of no avail to the defendant. On the other hand, it is argued that all the definitions given in Section 6, must be taken qualified by the introductory words '' unless there be something repugnant in the 'Subject or context' and that the word 'immediately' in the phrase 'during the year immediately preceding such election' shows that the word 'year' here cannot have the meaning given to the term in Section 6, Clause (19); the intention plainly, it is said, is that the payment should be made during the year which ends at the time of the election; from this point of view the payment of income-tax in the present case would not be open to objection on the ground that it had been made too late. The question raised is not free from difficulty, and as the second objection must prevail, it need not be decided in this case. In support of the second objection, it has been argued that the payment contemplated as a qualifying circumstance must be payment by a person liable to pay under the provisions of the law. It has been contended on the other hand, on behalf of the defendant, that as admittedly he had paid income-tax, it is immaterial that the sum has been illegally levied from him. In this connection, it may be pointed out that under Section 13 of the Income-tax Act, 1886, the tax is deducted from the interest on the securities mentioned in part III of the Second Schedule, unless the owner of the security produces a certificate from the collector that his annual income from all sources is less than the minimum taxable income. In other words, the income-tax is automatically deducted unless the holder of the security obtains an order for exemption. The question, therefore, arises, whether a person whose income is below the taxable minimum but who submits to the levy of. the tax does thereby acquire statutory qualification, contemplated by Section 15 of the Bengal Municipal Act. In my opinion, the question ought to be answered in the negative. The learned Counsel for the defendant has argued that the effect of such an interpretation would be to read into the statute restrictive words which are not to be found there. I do not feel pressed by the reasonableness of this consideration. It is well-settled that although the words used in a statute are general they do not always receive the widest construction of which they are susceptible and their operation is often restrained by reference to other parts of the statute, to its subject-matter, or its general scope and intention, though it may be conceded that such a restrictive operation will not be attributed to general Avords, unless we can find in the statute itself some ground for limiting and restraining their meaning by reasonable construction and not by arbitrary addition or retrenchment: Beckford v. Wade (1805) 17 Ves. 87, 91, Twycross v. Grant (1877) 2 C.P.D. 469, 530, and Garland v. Carlisle (1837) 4 Cl. & F. 693, 726. The view, we take, is supported by the canon of construction laid down in Stradling v. Morgan (1560) Plowden 199, 205, which was quoted with approval by Turner L.J. in Hawkins v. Gathercole (1885) 6 DeG. M. & G. 1, 21, by Halsbury L.C. in Cox v. Hakes (1890) L.R. 15 App. Cas. 506, 515, and by Bowen L.J. in In re Standard Manufacturing Co. [1891] 1 Ch. 627, 646. 'Those (statutes) which include every person in the letter, they (the sages of the law) have adjudged to reach to some persons only, which expositions have always been founded on the intent of the Legislature, which they have collected sometimes by considering the cause and necessity of making the Act; sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances.' (See also Bacon on Maxims of the Law Works, Ed. Ellis and Spedding, Vol. VII, p. 356.) Now in the present case the object of the Legislature was manifestly to confer the franchise upon persons who possessed a specified property qualification indicated by the payment of income-tax to the State. It could never have been intended that a person whose income was below the taxable minimum should secure qualification as an elector by payment of income-tax when no such tax could under the law be levied from him. The only case in which a similar question appears to have been raised is that of Humphry v. Kingman (1842) 5 Metcalfe (Mass.) 162 in which it was ruled that if a tax is regularly assessed against one who is in other respects a qualified elector, tits payment, if made in good faith, will entitle him to vote although such tax was illegally assessed. The authority of the case, however, has been doubted, and the principle recognised therein could not possibly be extended to cover cases where, as here, a person with full knowledge of his disability, submits to an assessment solely with a view to acquire electoral qualification. To countenance such a device would be manifestly to encourage a fraud upon the statute, so as to defeat the true object of the Legislature. I must consequently hold in the case before me that as the income of the defendant was below the taxable minimum and as he could not be legally assessed under the Income-tax Act, his acquiescence in the deduction of the tax from the interest on the Government security held by him, cannot possibly secure for him the qualification essential for the exercise of the franchise.

4. In so far as the payment of municipal rates is concerned, it is not disputed that the defendant is recorded in the demand Register of the Municipality as an owner of premises No. 89, Charakdanga Road, and as such owner, he has paid the amount of rates assessed therein; but it has been argued that in the case of the first clause quite as much as in the case of the second clause of the proviso to Section 15, the payment of rates, to be available as a qualifying circumstance, must be by a person legally liable to pay the same and that the defendant is not such a person as his father is the owner of the house. I am of opinion, for reasons already explained, that the payment of rates by the defendant must be proved to have been made by him as a person legally liable to satisfy the Municipal demand. Now Section 103 provides that the rate upon holdings leviable under Section 85, shall be payable by the owner of the holding. Section 105 then provides that the sum due from the owner, if unpaid by him, may be recovered by the occupier also; consequently it would be sufficient for the defendant to establish that he is either an owner or an occupier liable to pay the rates. The term 'owner' is defined in Clause 11 of Section 6 toinclude every person who is entitled for the time being to receive any rent in respect of the land ; with regard to which the word is used, whether from the occupier or otherwise: the term 'owner' also includes a manager or agent or trustee for any such person. This clearly is not an exhaustive definition of the term 'owner,' because as observed in the cases of Reg. v. Kershaw (1856) 6 E. & B. 999, 1007, and Dilworth v. Commissioners of Stamps [1899] A.C. 99, 105, the word 'include' is generally used in interpretation clauses to enlarge the meaning of words so as to make them comprehend not only such things as they signify according to their natural import but also the things they are declared to include. An owner, therefore, for the purposes of the Municipal Act, includes not only an owner in actual occupation of the holding but also an owner entitled to receive rent from the occupier or otherwise. This definition, it must be remembered, however, was framed not so much with a view to confer rights as to impose liabilities, as is usual in statutes of this description see the observations of Blackburn J., in Cook v. Montague (1872) L.R. 7 Q.B. 418, 422. Apart from this circumstance, it is plain that the definition of the term 'owner' is comprehensive enough to include the father of the defendant, even though he is not in receipt of rent from his sons. The argument on behalf of the plaintiff, an argument which found favour with the learned District Judge, is that as the father of the defendants is not in receipt of rent from his sons, and lives at Benares in retirement, he cannot be deemed to be a person entitled, within the meaning of Section 6, Clause 11, to receive rent from the occupier or otherwise. This view, in my opinion is manifestly fallacious. The definition is not so framed as to restrict its application only to the owner who is in actual receipt of rent, and it may be observed, that when a similar contention was raised with reference to Section 250 of Statute 18 and 19 Victoria Chapter 120, it was overruled by the Court of Appeal in Wright v. Ingle (1885) 16 Q.B.D. 379. If it be assumed, therefore, that the father of the defendant is the owner of the house, 'though he is not in possession, he is still owner within the extended definition of that term as given in Section 6, Clause 11, and consequently' the defendant himself as his manager or agent has been rightly treated as the owner by the Municipality. But, upon facts patent on the record, it is plain that the defendant is also 'owner' in the ordinary acceptation of the term. -It is incontestable that the defendant has contributed considerable sums towards the acquisition and subsequent improvement of the property. The theory of the District Judge that these sums must be regarded as free gifts to his father is based upon no evidence at all, and cannot possibly be sustained. The presumption is that when the defendant contributed towards the cost of acquisition of the property, he became joint owner thereof with his father, Dharma Das Kundu v. Amulyadhan Kundu (1906) I.L.R. 33 Calc. 1119 : 10 C.W.N. 765. From this point of view also, the defendant would be appropriately treated as owner. But, even if it be assumed for a moment that the defendant is not an owner he is, at any rate, an occupier, and as such liable to pay the rates under Section 105 of the Bengal Municipal Act. It cannot be disputed that he has satisfied the Municipal demand with his money; consequently, there is no foundation for the suggestion that the payment was by a person neither liable nor competent to make it under the provisions of the law. I hold, therefore, that the defendant was qualified to be an elector under the first clause of the proviso to Section 15, and hence necessarily, to be a commissioner under the same section. The conclusion follows that the objection of the plaintiff-to the legality of the election cannot be sustained.

5. The result is that this appeal must be allowed, the decree of the District Judge reversed and that of the Court of first instance restored with costs to the defendant in all the Courts.

Teunon, J.

6. In this case I have had the advantage of reading the judgment just delivered by my learned brother and need not again, set out the facts or the contentions of the parties to this appeal.

7. For the reasons given at length by my learned brother, I agree that the appellant is not a qualified voter under the second clause of the proviso to Section 15 of the Act.

8. On the other hand, it has been found by the Court of first instance that though the premises in question were purchased in the name of the father, the major portion of the consideration money was paid by the appellant out of the joint funds belonging to himself and his five brothers, and, further, that the expenditure on subsequent extensive alterations and additions was similarly defrayed by the appellants out of the same funds. This finding has not been displaced by the learned District Judge and there is ample evidence in support of it. Indeed, that evidence shows that out of the sum of Rs. 3,200 which formed the consideration money, Rs. 2,865 were paid by the six brothers, and that their subsequent expenditure on the property amounted to some Rs. 7,000.

9. The recitals in the deed of sale and the assertions made by the father to the knowledge of his son, the appellant, in certain suits and certain letters, have apparently been erroneously treated by the District Judge as conclusive evidence of the father's exclusive title. These recitals and assertions, when assented to or not contradicted by the son, may be said at best to represent admissions capable of explanation. They have been explained and there is no warrant in law for the learned District Judge's assumption that the sums spent by the sons, aggregating some Rs. 9,000, should be regarded as free gifts made by them to their father.

10. There is thus, in my opinion, no question that the appellant and his brothers have a substantial interest in the property and have' been rightly treated by the Municipality as owner in the ordinary acceptation of that term, and, therefore, liable under Section 103 of that Act to pay the rates assessed on the holding.

11. In this view of the case, the payment of rates made by the appellant entitles him to a vote under the first clause of the proviso to Section 15 of the Act.

12. For these reasons, I agree in decreeing this appeal with costs.


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