1. After stating the facts as above, continued---Mr. O. C. Dutt refused to hear the evidence that was tendered on behalf of the petitioner, on the ground that the Chairman's assessment having become final under the last para, of Section 79, the question, whether he was liable to take out a license under Section 75, could not be re-opened. One of the grounds upon which the conviction has been questioned is, that this view of the law is not correct.
2. The other ground upon which the conviction has been questioned is, that Mr. O. C. Dutt, by reason of his connection with the Corporation of the town of Calcutta, as their collector of taxes, was incompetent to try this case.
3. I am of opinion that the proceedings and the ultimate conviction are illegal. In the first place it seems to me that Mr. O. C. Dutt was not right in convicting the petitioner without allowing him to substantiate his defence by evidence. The construction put upon the word 'final' in the last para, of Section 79, is, in nay opinion, not correct. The decision of the Chairman or Vice-Chairman has reference only to the class under which a particular person, who is admittedly bound to take out a license under Section 75, should be assessed. The decision referred to herein is what is referred to in Section 78, which is as follows:
4. 'The Chairman, or some officer authorized by him in that behalf, shall determine under which of the classes mentioned in the third schedule every person to whom a license may be granted shall be assessed; and the Chairman may, in his discretion, remit the payment of license tax either in whole or in part to any person classified under classes 5 or 6 of the third schedule.' The language of the section does not authorize the Chairman to determine (when the fact is denied), whether a particular person is bound to take out a license under Section 75. He shall determine under which of the classes mentioned in the third schedule every person to whom a license may be granted shall be assessed. Therefore, if the Chairman be of opinion, that a particular person is liable under the Act to take out a license, and if that person denies his liability, the question can only be determined judicially,---i.e., after taking evidence by a competent Court in a prosecution under Section 77.
5. Section 346 of the Act says,---that 'the Commissioners may direct any prosecution for any public nuisance whatsoever, and may order proceedings to be taken for the punishment of any person offending against any of the provisions of this Act. It was under the provisions of this section that the prosecution in this case was commenced. Certainly, before a conviction could be had, the prosecutor was bound to prove that the accused had offended 'against any of the provisions of this Act.' If the view of the law taken by Mr. O. C. Dutt is correct, it is not for the Magistrate before whom the accused is prosecuted to determine that question; but he is bound to accept the decision of the Chairman, who virtually stands in the position of a prosecutor. It is clear to me that this view is not warranted by any of the provisions of the Act in question. The conviction is therefore bad upon this ground.
6. As to the other objection it is clear upon the authorities---The Queen v. Meyer (L. R., 1 Q. B. Div., 173), The Queen v. Milledge (L. R., 4 Q. B. Div., 332), The Queen v. Gibbon (L. R., 6 Q. B. Div., 168),---that if Mr. O.C. Dutt had been a member of the Corporation, he would have been disqualified not only to take part in the final hearing, but also to issue the original summons.
7. Whether the principle upon which these cases has been decided, should not be applied to the case of a servant of the Corporation sitting as a Judge, is the question which we have to decide with reference to this objection. The reason of the rule is that a person who, by his interest, pecuniary or personal, is likely to have a bias in the matter of the prosecution, ought not to sit as a Judge. Having regard to the reason of the rule, I think, that the principle of the cases cited above should be extended to the case of a person who is connected with the Corporation in the same way as Mr. O. C. Dutt.
8. The proceedings and the conviction must, therefore, be quashed.
9. The petitioner, J. Wood, was convicted before Mr. O.C. Dutt, Justice of the Peace, of having exercised the trade, profession, or calling of a boarding-house keeper in 1880, without having taken out a license as required by Section 75. Beng. Act IV of 1876. A fine of Rs. 60 was imposed under Section 77 of the Act.
10. The record has been called up to this Court under Section 147, Act X of 1875, the petitioner's application. His chief ground for invoking the interference this Court is, that he was not allowed to enter into a defence shewing that did not exercise a boarding-house keeper's calling in 1880; but objection is no taken to Mr. O. C. Dutt's competency to deal with the case, as, besides(sic)ng a Justice of the Peace, be occupies a post, as collector of taxes, under the (sic)poration of Calcutta, the prosecutor in the case.
11. To commence with the first point the case stands thus:---By some unex-(sic)ined interpretation of the law it seems to be the practice for the officers of the Corporation to take the initiative and assess persons who may be considered fit subjects for assessment. This does not seem to be what the law intends. The law requires every person, who exercises a specified profession, trade or calling, to take out a license yearly (Section 75), and it renders such persons liable to fine for exercising the specified profession, &c;, without a license (Section 77). There is nothing which calls upon the Corporation to assess a person who has not applied for a license.
12. Now Wood has admittedly not applied for a license of any sort, and if he exercised the calling of a boarding-house keeper without a license, he is justly liable to a fine under Section 77. But, as in all criminal cases, the onus of proving that Wood exercised the calling lay upon, and has not been discharged by, the prosecutor. According to the prevailing practice, the Inspector Moore 'assessed' Wood as a boarding-house keeper at the close of January 1881, and the Chairman 'determined the class' of the license Wood was to take. I have no doubt this was not any part of the Chairman's duty under Section 78, in the absence of any application from Wood. The absurdity of assessing any one for 1880, in February 1881, becomes apparent on reference to Section 76. A license taken out in 1881 would take effect for that year. However, Wood was informed of the class under which he had been assessed (Section 79) on the 14th February 1881, and though he would have been perfectly justified in disregarding the notice of an officious and illegal assessment, be went to the office of the Corporation and made some enquiries, but up to the 28th February he made no appeal.
13. The period of limitation prescribed by Section 351 would have expired on the 28th February, and on that date Inspector Moore applied for a summons which was issued by order of Mr. O C. Dutt, and the case came on before him on the 29th March. At the trial Mr. O. C. Dutt adopted a course which had the effect of closing Wood's mouth. He held (following, he says, legal opinion) that no appeal having been preferred under Section 79, the Chairman's decision was final,--- that is to say, Wood not having taken out a license was not entitled to go into evidence to shew that he was not in 1880 a boarding-house keeper, because the Chairman had, in 1881, ex parte, determined that he was to be assessed under sched. 3. The point seems to me to be so utterly untenable, that it is waste of time to discuss it. The simple issue for trial under Section 77 was, whether Wood had exercised a particular trade or calling or not, and whether the Chairman had assessed him or not, or whether he had appealed or not, had no conceivable connection with that issue. The proceedings on the 29th March must therefore, be set aside on this ground.
14. As to the other point, as far as I have been able to discover, Mr. O. C. Dutt is not a member of the Corporation, but he holds the office of collector under the Corporation, being remunerated by a percentage on bills issued for collection of taxes. He has, it is admitted, no interest in the collection of license tax or carriage or horse tax. He had, therefore, no personal Interest in the result of this case against Wood, but he is undoubtedly a servant of the prosecutor,---i.e., the Corporation; and, in my opinion, his sitting as a Judge in the case was illegal. If he had been a member of the Corporation, he would have been absolutely disqualified from sitting, and even from issuing a summons; see The Queen v. Miiledge (L. R., i Q. B. Div., 332) and The Queen v. Gibbon (L. E., 6 Q. B. Div., 168). But although these cases do not, I think, directly establish that a servant of the Corporation is disqualified to act as a Justice of the Peace, the principle seems to me to apply with greater force to a Justice who is a servant, than to a Justice who is a member, of the Corporation. On this ground also, therefore, the proceedings must be set aside.