Lawrence H. Jenkins, K.C.I.E., C.J.
1. In my opinion the judgment of the District Judge cannot be accepted, and as a result we are unable to confirm his decree, though Mr. Justice Doss was in agreement with it. The question that arises is one of considerable importance to the plaintiff, who has brought this suit for a declaration that the Baruipur Municipal assessment of 1906-07 is illegal and arbitrary and as such not binding on him. Now, that assessment purported to be under Section 85 of the Bengal Municipal Act of 1884, which provides that ' the Commissioners may, from time to time, at a meeting convened expressly for the purpose, of which due notice shall have been given, and with the sanction of the Local Government impose within the limits of the municipality,....
(a) A tax upon persons occupying holdings within the municipality according to their circumstances and property within the municipality.
2. The Munsif in a very careful judgment came to the conclusion that the plaintiff was entitled to succeed in this suit. In the course of his judgment he says that 'It can be gleaned from the deposition of the plaintiff himself and his witness, Hridoy Nath Dutt, that the total income of the plaintiff's property situate within and outside the municipality is Rs. 3,000, and his income from property, situate within the municipality, is Rs. 100 per year, besides a holding of Rs. 300 a year. The plaintiff has been assessed at Rs. 6,000 by the assessor. There is no evidence on the defendant's side to rebut the plaintiff's statement as regards his. income within the municipality. Thus it is quite evident that the plaintiff's entire income was taken into consideration by the assessor.'
3. The learned District Judge set aside this decree, but he came to no finding of fact as to whether the assessment was according to the 'circumstances and property' of the plaintiff 'within the municipality' ; and in the absence of any such finding his judgment is manifestly incomplete.
4. We must, therefore, send down the following issues for determination: (i) what were the circumstances and property within the municipality according to which the tax was imposed upon the plaintiff; and (ii) what is the value of such several circumstances and property. I would point out that, according to the words of the Act and according to the ruling of this Court, both the circumstances and the property must be within the municipality. The above issues must be determined on the record as it at present stands and the return must be made within three months.
4. The learned District Judge appears to have accepted the opinion of the Legal Remembrancer as a correct exposition of the law. I do not agree with this view of the law, and, indeed, it has been conceded before us that it would be difficult to support all that the Legal Remembrancer has said.
5. I do not agree that there was no proper tribunal to hear assessment appeals; I think that the three Commissioners were a competent tribunal.
D. Chatteejee J.
6. I agree.