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Addya Sundari Mittra and ors. Vs. Dwarka Nath Dutt, Chairman of the Barisal Municipality - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal319
AppellantAddya Sundari Mittra and ors.
RespondentDwarka Nath Dutt, Chairman of the Barisal Municipality
Excerpt:
bengal municipal act (bengal act iii of 1884), sections 85, 87, 91, 92, 112, 113, 116 - persons occupying holdings--liability to assessment--municipal commissioners, power to tax--assessment tax. - .....but it can never have been intended that this finding should not be open to challenge, and that the commissioners should be at liberty to declare a person liable to the tax on the ground that he occupies a holding which in truth he does not hold, and that that person should have no means of redress.17. it seems to us, therefore, that section 116 has no application to a dispute as to whether a person assessed to the tax does or does not occupy a holding, and that there is therefore no bar to the cognizance of the present suit by the civil courts.18. that being so, it is unnecessary to go into the larger question whether section 116 is sufficiently stringent in its terms to bar the interference of the courts of justice in cases in which the municipal commissioners may have exceeded.....
Judgment:

Beverley, J.

1. This is a Letters Patent appeal from a decision of Mr. Justice RAMPINI sitting alone on the Appellate side of this Court, in a suit which was brought under the following circumstances.

2. The plaintiffs alleged that they had been assessed by the Muncipal commissioners of Barisal to pay a tax under Section 87 of the Bengal Municipal Act, 1884, notwithstanding the fact that they did not occupy any holding within the Municipality, and they prayed for a declaration that a resolution of the Commissioners holding them liable to be assessed to the tax was illegal and inoperative.

3. In answer the Chairman of the Municipality contended, first, that the order of the Commissioners in the matter was under the Act final and conclusive and could not be questioned in the Civil Court, and, on the merits, that the plaintiffs were liable to assessment by reason of their employing as their am-mukhtar or agent a person who occupied a holding within the Municipality, notwithstanding that that holding belonged to another person for whom the mukhtar also acted as agent, and who had already been assessed in respect thereof.

4. The Munsif gave the plaintiffs a decree, which, however, was reversed on appeal by the Subordinate Judge on the ground that the suit was barred by Section 116 of the Act. On second appeal the learned Judge of this Court has reversed that judgment and restored the decree of the first Court.

5. The Chairman of the Municipality now appeals.

6. Upon the facts found by the lower Courts, it is clear that the plaintiffs, the respondents before us, do not occupy any holding within the Municipality of Barisal, that they have nevertheless been taxed under the provisions of the Bengal Municipal Act, 1884, and that their application to have themselves exempted from the assessment was heard and rejected under Section 114 of that Act; and the question before us now is whether under these circumstances the Civil Court can interfere, regard being had to the provisions of Section 116 of the Act.

7. Upon this question we are of opinion that the decision of the learned Judge of this Court is right, and that this appeal should be dismissed with costs.

8. It seems to us unnecessary to go into the general question discussed by the learned Judge whether Section 116 operates as a bar to the intervention of the Courts in cases where the Municipal Commissioners have exceeded their powers under the Act, because we are of opinion that Section 116 of the Act is not applicable to the facts of the present case. In construing the Act so far as it invests the Municipal Commissioners with power to tax the subject, we think we must scrutinise its provisions very closely and construe them with the utmost strictness.

9. Now, the tax which the Municipal Commissioners of Barisal are authorized to impose is 'a tax upon persons occupying holdings within the Municipality according to their circumstances and property within the Municipality,' as mentioned in Clause (a) of Section 85. The manner in which the tax is to be assessed is prescribed in Sections 87 to 95; and it is sufficient to point out here that those sections provide for a number of cases in which persons, although occupying holdings within the Municipality are declared to be not liable to, or may be exempted from, the tax.

10. Thus under Section 87 the tax is not to be levied on any person in respect of the occupation of arable lands (which is a beneficial occupation) or of buildings used exclusively as places of public worship. By Section 91 the Commissioners are empowered to exempt from assessment any person who may by them be deemed too poor to pay the tax, but the name of such person, if the occupier of a holding, must be included in the assessment list, even though he may be exempted. Section 92, again, authorises exemption from liability to pay the tax in certain circumstances.

11. Section 112 provides for the publication of notice of assessment; and then Section 113 runs as follows: 'Any person who is dissatisfied with the amount assessed upon him, or with the valuation or rating of any holding, or who disputes his occupation of any holding, or his liability to be assessed or rated, may apply to the Commissioners to review the amount of assessment, valuation, or rating, or to exempt him from the assessment or rate.'

12. This section, as it seems to us, provides for an appeal from the assessment as prepared under the orders of the Chairman in three cases--

first, (confining ourselves to the tax in question) by a person dissatisfied with the amount assessed upon him;

secondly, by a person who disputes his occupation of any holding; and

thirdly, by a person who (being the occupier of a holding) disputes his liability to be assessed.

13. Unless we read in the words 'being the occupier of a holding,' the second of the three clauses is redundant and unnecessary.

14. Section 114 then provides for the hearing and disposal of applications made under Section 113 by not less than three Commissioners, and the last clause declares that the decision of such Commissioners, or of a majority thereof, in such cases shall be 'final,'--final, that is to say, as between the applicant and the Commissioners, no further appeal being allowed to the entire body of Commissioners or to any other authority. It is not contended that this clause, if it stood alone, would bar the interference of the Courts. '

15. Section 116, upon which the appellant relies, runs as follows:

No objection shall be taken to any assessment or rating, nor shall the liability of any person to be assessed or rated be questioned, in any other manner or by any other authority than in this Act is provided.

16. This section appears to us to apply to two only out of the three cases mentioned in Section 113; that is to say, to the first and the third. It purports to make the decision of the Commissioners conclusive as regards the amount of assessment and the liability to assessment. But it does not say that the decision of the Commissioners in a dispute regarding the occupation of a holding may not be questioned otherwise than is provided by the Act. It is contended that the words 'liability of any person' are wide enough to include a question of liability based upon occupation. But we are of opinion that it was not intended, and that it would be unreasonable, to attach this wide signification to the word 'liability.' In our opinion Section 116 must be read with reference to Section 113, and the word 'liability' must have the same restricted meaning given to it in Section 116 as in Section 113, where one portion of the section shows that the Legislature was dealing with the liability of an occupier, and not with the question of the occupancy, to which question another part of the section applies; that is to say, it must mean the liability of any person being the occupier of a holding, regard being had to the provisions for exemption from liability contained in Sections 87 to 95. In other words, it means a liability apart from the question of occupation, and where the section says that the liability of any person to be assessed shall not be questioned otherwise than is provided in the Act itself, the meaning would seem to be that the decision of the Commissioners is to be conclusive as to whether a person who is the occupier of a holding is entitled to be exempted from the tax under any of the provisions of the Act. This we think, is clear from Section 87, which only empowers the Municipal Commissioners to tax persons who occupy holdings within the Municipality; from Sections 87 to 95, which contain references to persons who, though occupying holdings, are declared to be not* liable to, and may be exempted from, the tax; and more especially from Section 113 which refers in so many words to disputes regarding occupation as distinct and something other than disputes regarding liability. It may well be, and in truth it is very proper, that disputes as to occupation should in the first instance be heard and determined by the Commissioners, but all that the aggrieved person can do is to apply to be exempted, and all that the Commissioners can do is to decide upon his application to be exempted. This decision may involve a finding that a person occupies a holding within the Municipality, but it can never have been intended that this finding should not be open to challenge, and that the Commissioners should be at liberty to declare a person liable to the tax on the ground that he occupies a holding which in truth he does not hold, and that that person should have no means of redress.

17. It seems to us, therefore, that Section 116 has no application to a dispute as to whether a person assessed to the tax does or does not occupy a holding, and that there is therefore no bar to the cognizance of the present suit by the Civil Courts.

18. That being so, it is unnecessary to go into the larger question whether Section 116 is sufficiently stringent in its terms to bar the interference of the Courts of Justice in cases in which the Municipal Commissioners may have exceeded their powers under the Act or acted illegally or without jurisdiction. The appeal is dismissed with costs.


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