1. This appeal is by the defendant who is the Chairman of the Baruipore Municipality. The plaintiffs instituted the suit in order to obtain a declaration that a certain assessment was illegal. In order to understand the first argument made on behalf of the appellant it is necessary to note that the commissioners of the Municipality were superseded and the Circle Officer was appointed under the provisions of Section 66(b), Bengal Municipal Act, to perform the duties of the commissioners. It was contended on behalf of the Chairman that the suit should have been dismissed because no notice was served on the Circle Officer under the provisions of Section 80, Civil P.C. Neither the Munsif nor the Subordinate Judge came to any definite conclusions on this point, but it has been argued before me on both sides, and I am clearly of opinion that no notice was necessary. It is quite clear that if a public officer is appointed Chairman of a Municipality it is not necessary to serve notices on him as such. It was however argued that a notice ought to have been served in this case because the Municipal Commissioners had been superseded. It is a mere accident that the person appointed to perform their duties under the provisions of Section 66(2) was a public officer. Any person or persons might have been so appointed. There is nothing in the Act to suggest that such person or' persons become Officers. The effect of the supersession is that the Commissioners vacate their office and their property vests in Government during the period of supersession. It might perhaps be argued that in a suit concerned with Municipal property it is necessary to serve a notice on the Secretary of State; but the Commissioner was not acting as a public officer.
2. In the second place, before the suit came on for hearing, the supersession was over. The plaintiffs then amended their plaint and made the present appellant the defendant in the suit. It is not even pretended that he was entitled to any notice. The effect of the amendment was practically to institute a new suit. I entirely agree with both the Courts below that in these circumstances even if the Circle Officer was entitled to notice the present appellant cannot defeat the suit on the ground that no such notice was given.
3. On the merits of the case there can be no question that the personal tax imposed on the respondents under Section 85(a) of the Act was illegal. It was imposed jointly on them and some other persons who were not even named. It is a personal tax and the assessment is to be made according to the circumstances and property of each individual assessed. This alone shows that it was not intended that this tax should be imposed jointly on more persons than one. This was the view taken by Mitter, J. in Prodip Singh y. Ramani Mohan Sen, 1928 Cal 611 and I respectfully agree with his decision. Another objection to the assessment was that the plaintiff's were already personally taxed up to the maximum amount allowed under the Act. This ground alone is sufficient to dispose of the point and Mr. Mitter did not rely on any other alleged illegality with regard to this assessment.
4. It was also contended that the suit should have been dismissed with regard to the latrine tax. I do not propose to say anything with regard to the merits of that contention because Mr. Mitter has pointed out that in the appeal to the lower appellate Court this was not made a ground of appeal; on the other hand, the decree obtained by the plaintiff was a decree to the effect that 'the assessment on the plaintiffs be declared invalid.' The latrine tax is not a tax made on the plaintiffs at all; under Section 321, the Commissioners may levy fees on the holding. It is not a personal tax at all and its realisation is provided for by Section 322. It is therefore not at all clear that the plaintiffs were given any relief with regard to the latrine tax. That is probably why no appeal was made with regard to it in the lower appellate Court. The present appeal fails and is dismissed with costs. The appellant asks for leave to appeal. This is granted.
Judgment in Letters Patent Appeal
5. This is an appeal from the judgment of our learned brother Henderson, J., dismissing an appeal from the concurrent decision of the Subordinate Judge and the Munsif in a suit by certain ratepayers, the respondents in this appeal, against the Baruipore Municipality, for a declaration that an assessment of tax made by the Municipality between September to December 1928 was illegal and ultra vires; and for setting aside the said assessment. The questions decided by the learned Judge of this Court were two: that the suit could not be dismissed for want of notice under the provisions of Section 80, Civil P.C., and that the personal tax imposed on the plaintiffs in the suit under Section 85(a), Bengal Municipal Act, was illegal.
6. So far as the first question was concerned, it has to be mentioned that after the assessment in question sought to be challenged in the suit, the Baruipore Municipality was superseded under Section 65, Bengal Municipal Act, and a Circle officer was appointed by the Government to perform the duties of the Commissioners of the Municipality, as provided by Section 66 of the Act. In view of the position, about which there can be no question, that the assessment of tax by the Municipality which was sought to be declared ultra vires and illegal, was made before the supersession of the Municipality, and before the appointment of the Circle Officer to perform the duties of the Commissioners, the notice as contemplated by Section 80, Civil P.C., was not required to be served on the Circle Officer performing the duties of the Commissioners of the Baruipore Municipality, under Section 66, Bengal Municipal Act. As has been authoritatively laid down by their Lordships of the Judicial Committee of the Privy Council, in Rebati Mohan Das v. Jatindra Mohan Ghose, 1934 PC 96, it is only where the plaintiff complains of some act purporting to have been done by a public officer in his official capacity, that notice is enjoined. The fact that the assessment complained of was made before the supersession of the Municipality is sufficient for the purpose of holding that Section 80, Civil P.C., could cot possibly apply to the present case. The decision of the learned Judge that the suit was maintainable without giving notice to the Circle Officer under Section 80, Civil P.C., must therefore be upheld.
7. The decision of our learned brother on the second question raised before him, must also be affirmed on the ground stated by him, that the personal tax imposed on the plaintiffs in the suit under Section 85(a), Bengal Municipal Act, was illegal. It appears that a point was raised in the second appeal to this Court, on the question of imposition of latrine tax. The point was not raised before the primary Court or before the Subordinate Judge on appeal, and as such could not be allowed to be raised in second appeal. The learned Advocate for the respondents in this appeal has no objection on behalf of his clients to the observations contained in the judgment of Henderson, J., to the following effect being deleted:
On the other hand, the decree obtained by the plaintiffs was a decree to the effect that the assessment on the plaintiff be declared invalid. The latrine tax is not a tax made on the plaintiffs at all; under Section 321 the Commissioners may levy fees on the holding. It is not a personal tax at all and its realization is provided for by Section 322, It is therefore not at all clear that the plaintiffs were given any relief with regard to the latrine tax. That is probably why no appeal was made with regard to it in the lower appellate Court.
8. And we give that direction, as we agree with the learned Advocate for the appellants in thinking that the observations quoted above, are likely to give rise to difficulties in future. In the result, the appeal is dismissed with costs.