1. The principal question in this appeal relates to the method of assessment of No. 4, Theatre Road. It was assessed by the municipality under Section 127, Clause (b), Calcutta Municipal Act, but the Province of Bengal contends that it can only be assessed under Clause (a) of that section. This contention has been accepted by the Chief Judge of the Calcutta Small Cause Court in an appeal preferred by the assessee under Section 141 of the said Act. The annual value has been reduced from Rs. 16,887 to Rs. 9720. The Province of Bengal is the owner of the said premises. It is occupied by the Commissioner of the Presidency Division. He has to pay for his occupation ten per cent of his salary. The evidence is that that sum is deducted from his salary and credited by the Accountant General, Bengal, to the local Government under the denomination of rent. The evidence also establishes the fact that a Government officer occupies it and is entitled to occupy it so long as he is the Commissioner of the said division. The learned Chief Judge has held that the Commissioner of the Division must be taken to occupy the same in the character of a tenant and not of a servant for two reasons, namely (a) because the sum deducted from his salary is credited to the Local Government as rent and (b) because it is immaterial whether he actually resides there or sublets it.
2. The last mentioned finding is not only not supported by evidence but is against the case as set up by the respondent. The sole basis of the finding of the learned Chief Judge accordingly rests on the fact that the Government deducts a fixed sum from the Commissioner's salary as rent. We do not however consider the said fact as of unequivocal import. The mere fact that a servant is paid less wages or some deductions are made from his pay for the benefit of being allowed to occupy a house of his master would not make him a tenant: Bertie v. Baumont (1801-12) 16 Bast 32. A master may provide a lodging for his servant, may be in a separate house, pay him less wages, or deduct from his pay a fixed sum of money for such benefit, still the servant would not be his master's tenant, though he has to pay for his residence in his master's house. In such a case the master would in law be taken to have possession. The relationship of master and servant is not however inconsistent with that of landlord and tenant. In our judgment the question as to whether the master's house is a mere lodging provided for the servant or is left in occupation of the latter qua tenant must be answered by keeping in view not the form but the substance.
3. The cases establish the principle that if, the servant's occupation of his master's house be ancillary to the performance of the duties which as servant he has engaged to perform, then his occupation would be considered as that of a servant, but if his occupation is not connected with his employment, he would be considered a tenant. The cases we have in mind are Hughes v. Overseers of the Parish of Chatham (1840-44) 5 M & G 54; Dobson v. Jones (1840-44) 5 M & G 112; Reg. v. Spurrell (1865) 1 QB 72, Smith v. Overseers of Seghill (1875) 10 QB 422 and Bent v. Roberts (1878) 3 Ex D 66. The case has not been approached in the Court below from this point of view and there is no evidence on this material point. The onus is on the Province of Bengal to prove the conditions of service of the Commissioner of the Division on the ground of special knowledge. As the case is of importance we do not think it right to allow the appeal, as urged by Mr. Chatterjee, on the ground that the onus has not been discharged by the respondent. For the ends of justice we direct the learned Chief Judge to allow the parties to lead additional evidence directed on the following points : (a) Whether the Commissioner of the Presidency Division is required to occupy the house in question for the performance of his services, or (b) did occupy it in order to their performance or (c) that it was conducive to that purpose more than any other house which he might have himself rented. The respondent must first lead evidence and the appellant will have the right to give rebutting evidence. The learned Chief Judge is requested to record his findings and send the same together with the additional evidence, to be recorded in full, within six weeks of the arrival of our order. We keep the appeal in our file, which is to be treated as part heard. Bight typed copies of the additional evidence and of the findings of the Court below must be prepared as expeditiously as possible by the appellants for their use and for the use of the respondent and of the Court. (After receiving the findings their Lordships delivered the following judgment.)
4. The question involved in this appeal is whether premises No. 4, Theatre Road, which is known as the ' Commissioner's house' is to be assessed to rates under Clauses (a) or (b), Section 127, Calcutta Municipal Act. It has been assessed under Clause (b) but the Province of Bengal contends that; it ought to be assessed under Clause (a). This question depends upon the question as to whether the occupation of the premises by the Commissioner of the Presidency Division is that of a tenant or of a servant. On appeal by the Province of Bengal the learned Chief Judge of the Calcutta Small Cause Court held by his order dated 17th March 1988 that the Commissioner of the Presidency Division was a tenant. He further held that the rent at which the premises could reasonably be let out is Rs. 900 per month. On that basis he fixed the annual value at Rs. 9720. When the appeal against the said decision preferred by the Corporation of Calcutta came up for hearing before us in November of the last year we passed an order by which we directed the learned Chief Judge to afford opportunity to the parties to lead further evidence and to record his findings on the following points which have been formulated as material in such cases by Tindal C. J., in Hughes v. Overseers of the Parish of Chatham (1840-44) 134 E R 479 at p. 488 and analogous cases:
(a) whether the Commissioner of the Presidency Division is required to occupy the house in question for the performance of his services, or (b) did he occupy it in order to their performance, or (c) that it was conducive to that purpose more than any other house which he might have himself rented.
5. After taking additional evidence the learned Chief Judge has answered all the three questions in the affirmative. We are to see whether his findings are correct. The relevant evidence bearing upon those points are the depositions of Mr. Graham, the Commissioner of the Presidency Division, of Mr. Manmohan Mukherjee and Exs. E.E. (1), D.E. (2), D.E. (4), D.E. (5), P.E A., P.E.B. and P. E. C. The summary of this evidence is as follows: In 1906 a proposal was made by the Government of Bengal to the Government of India suggesting that the Commissioner of the Presidency Division should be provided with an official and permanent residence in Calcutta. The grounds given by the Bengal Government in support of its proposal are mentioned in its letter to the Government of India dated 28th November 1906 (ex. D.E. 1): (1) that high rents prevalent in Calcutta had in the past dissuaded the Commissioner of the Presidency Division in renting a house suitable to his official position with the result that he had preferred to live in clubs, which was derogatory to his position and which had the effect of diminishing his influence, and (2) that public interest required that he should be easily found out by those who required to see him on business or by those -who desired to pay him ceremonial visits. 'Accessibility in his case was a matter of first importance'.
6. The letter stated that for those reasons it was necessary for the Commissioner to reside in a fixed house suitable to his official position so that continuity of residence may be secured and his place of residence may be known to the public. The letter further suggested that it should be made obligatory on the Commissioner to reside in the house to be acquired at Government cost for his residence for which he would be required to pay 'rent' at the rate of 10 per cent. of his salary. This proposal was accepted by the Government of India by its letter to the Bengal Government dated 20th December 1906 (ex. d.e. 2). Premises No. 4, Theatre Road, was thereafter acquired and it has since its acquisition been the official residence of the Commissioner. A name plate has been fixed at the gate indicating the house as the house of the Commissioner of the Presidency Division. Although Bengal Government suggested in its letter Ex. (d.e. l) that residence of the Commissioner in the house to be acquired was to be made obligatory, that has not been done.
7. After the acquisition of the said premises no special rule was made for the Commissioner's residence but he continued to be governed by the general rules applicable to all Government servants relating to residence in localities where the Government has provided for residential houses for them. These rules are appended to the letter written on 16th December 1939 by the Secretary to the Government of Bengal, Department of Public Health and Local Self-Government, to the Deputy Executive Officer, Corporation of Calcutta (ex. P. E. C.). These rules do not make it obligatory on the part of Government servants to occupy the houses built by the Government for their residence. They make a Government servant responsible for the 'rent' of the house built by the Government for his residence, unless exempted by the Local Government. If he does not get the exemption, he can reside in a house of his choice, but must pay the 'rent' of the Government house to the Government. The rules leave him free to sublet the Government quarters intended for his use. Although the word 'rent' is used in these rules, we have already held in our previous order that a Government servant occupying a Government quarter would not necessarily be a tenant. We point out here the fact which is now relevant, that these rules do not, in express terms make it obligatory for a Government servant to reside in Government quarters. provided for him. The letter of Mr. G. S. Dutt (ex. D. B. 5) only expresses his own opinion which he subsequently modified in his letter Ex. P. E. C. Those rules may at best exert an indirect pressure on a Government servant to occupy the house intended by the Government for his residence. In the Commissioner's case there is besides the natural inducement, for a house of the nature of No. 4, Theatre Road, cannot be rented at about Rs. 300 a month, which amount the Commissioner has to pay for his occupation. The finding of the Chief Judge is that a house of that description in that locality would fetch Rs. 900 a month.
8. Although it is not obligatory on the Commissioner to reside at No. 4, Theatre Road, the evidence establishes that since its acquisition by Government, all the Commissioners have resided in that house except on two short terms. Those two cases were of exceptional character and must therefore be discarded from consideration. The house is at a distance of about two miles from the office of the Commissioner. In the house he sometimes holds meetings of public bodies of which he happens to be the chairman, though the meetings could have been as well held in his office and in fact some such meetings have been held in his office. On this evidence we cannot hold that the case comes within the first head on which we required a finding. It cannot be said that the Commissioner was required to occupy the house for the performance of his duties. He was not required to reside there, much less was his residence there ancillary and necessary to the performance of his duties : Smith v. Overseers of Seghill (1875) 10 QB 422 at p. 428. The evidence also does not justify an affirmative answer to the second and the third points on which we required findings. The evidence given by Mr. Graham is that he could perform his duties as well by residing in another house. The only material which requires special consideration in this respect is the Government of Bengal's letter of 28th November 1906 (Ex. D. E. 1). The reasons which induced the Government to provide a suit-able house for the Commissioner at a reasonable sum payable for his occupation were mainly two, namely dignity of the office and easy accessibility to visitors coming on business or to pay respects.
9. For the purpose of judging whether the house in question was more conducive for the performance of his duties than any other house which he could have himself rented, we must have regard to his duties. Reception of ceremonial visits or other visits is no doubt one of the duties of the Commissioner but his other duties were more important and more responsible. If the residence in that house be only slightly more advantageous to the performance of his official duties the case would not in our judgment come within the second or the third proposition laid down by Tindal C. J. in Hughes v. Overseers of the Parish of Chatham (1840-44) 134 E R 479. The advantage must be a decisive one. We accordingly hold that the Commissioner's occupation must be regarded as that of a tenant and the assessment has to be made under Clause (a) of Section 127, Calcutta Municipal Act. We are further of opinion that the fair rent would be Rs. 900 a month as found by the learned Chief Judge. We accordingly confirm the order of the learned Chief Judge dated 17th March 1938, though not for the reasons given therein. The annual value is fixed at Rs. 9720. The appeal is accordingly dismissed with costs, hearing fee five gold mohurs.