1. This is an appeal by the plaintiff, who is a Deputy Magistrate and was posted in Mymensingh during the period in suit, against the order of dismissal of his suit for recovery of Rs. 168 (being the amount which according to him he had to pay to the Mymensingh Municipality illegally and inequitably') the amount of tax realised from him at the rate of Rs. 9 per quarter during the first two quarters of the year 1920-21 and at the rate of Rs. 15 per quarter during the last two quarters of the same year and all the four quarters of each of the two following years. Both the Courts below have concurrently found against the plaintiff and dismissed the suit.
2. The facts are that the plaintiff was a Deputy Magistrate living in the town of Mymensingh and originally drawing Rs. 300 a month. His salary was subsequently raised to Rs. 500 a month. He was assessed originally at the rate of Rs. 9 per quarter, that is, one per cent. on the annual income and from October 1920 he was assessed at Rs. 15 a quarter it being alleged that his salary was Rupees 500 a month. The tax realised from the plaintiff was what is called in the Bengal Municipal Act, a personal tax. The points taken in this appeal are the following which may be considered in their order. The first is that personal tax could not be imposed without the sanction of the Government under Section 85, Bengal Municipal Act (3 of 1884 B.C). This objection is founded on the ground that in Ward No. 1 where the plaintiff resided for the greater part of the period in suit there were Government buildings which were taxed on their annual value and in view of the last proviso to Section 85 the Municipality had no jurisdiction to impose personal tax as well as a rate on the annual value of the holdings in one and the same ward. It has also been argued that the Municipality could not impose personal tax without the previous sanction of the Local Government under that section. This objection must be overruled. The Mymensingh Municipality was formed under Act 6 of 1868 which empowered it to impose personal tax and this form of tax has been imposed since its creation. The Act of 1868 was repealed by Act 5 of 1876 by Sections 2 and 7 by which all impositions made under the previous Act were allowed to stand and to be considered to be made under that Act. Act 5 of 1876 in its turn was repealed by the present Bengal Municipal Act, Sections 2 and 7 of which make the same reservation with regard to the impositions made under the previous law Section 85 of the present Act contemplates the imposition of a personal tax or a rate on the annual value of the holdings for the first time since the creation of the Municipality. It says that the Commissioners may, with the sanction of the Local Government, impose one or other or both of the following taxes: namely, a tax upon persons and a rate on the annual value of holdings. It has no retrospective effect and if it has any, the imposition of such tax under the previous Act has been sanctioned by the present Act of 1884. As regards the proviso to the section prohibiting the realisation of both kinds of tax in the same ward, Section 85 must be read in conjunction with Section 89 of the Act. Section 85 lays down that in the same ward the Municipality cannot realise personal tax from some persons and tax on property from some other person. This is a general rule. Section 89 however says that in any municipality in which tax on persons is imposed, no tax shall be assessed on any person in respect of his occupation of a holding in any building the property of Government. This section apparently is an exception to the general rule laid down in Section 85.
3. It relates to the part of the municipality in which tax on persons is imposed. It says where tax on persons is imposed such tax would not be realised from a person in occupation of a Government building. Instead of that the municipality has to levy on such building a rate on their annual value to be ascertained in the manner prescribed in Section 101. In Ward No. 1 of the Mymensingh Municipality it so happens that personal tax is realised from private persons living in that ward as from those living in the other wards of the municipality but there being some Government buildings in that ward rates on the values of those buildings were realised from the Government. In our opinion in such a case there is no contravention of the provision of Section 85.
4. It is argued in the second place that under the old Act personal tax was at the rate of 8 as per cent, whereas the present Municipality enhanced it to Rupee 1 per cent. It is said that under Section 7 rate, tax, fee or tolls that had been duly imposed under the previous Act should be deemed as duly imposed under the present Act and such rate, tax, fee or tolls shall continue to be levied until the Commissioners at a meeting, with the sanction of the Local Government, shall otherwise direct. On this language of the section it is argued that the tax at the rate of 8 as per cent. ought to be continued under the present Act and that the Municipality had no power to increase it from 8 as to Re. 1 per cent. without the sanction of the Local Government. We do not think that this is the meaning which can be given to the words:
until the' Commissioners at a meeting with the sanction of the Local Government shall otherwise direct.
5. These words are intended to enable the Commissioners with the sanction of the Government to make such alteration in the rate, tax etc., that were realised under the old Act as to remove them altogether or as has been provided in the Act itself, change one kind of rate to another kind of rate. Even if there be any force in this argument in the present case it must be deemed to have none because it was not taken at the trial like some other points that will be noticed later. There are no findings of fact by the Courts below to support the objection.
6. The third contention is that the respondent Municipality had no power to increase a tax within the period of assessment of 3 years from Rs. 9 to Rs. 15. There is a great deal of force in this argument; but unfortunately this objection too was not taken at the trial. Section 93, Bengal Municipality Act, contains provision which empowers the Municipality to enhance an assessment upon the ground that it appears to them to be inadequate and to have been so made owing to mistake and fraud. The power is curtailed by the limitation that not only the present assessment should appear to the Municipality to be inadequate but it must also be shown to have been made owing to mistake or fraud. As the learned appellate Court remarked, if this objection were taken at the trial we do not know what the defendant would have proved were he called upon to meet such a case. We cannot allow this objection to be raised at a subsequent stage of the suit when no issue and consequently no evidence were directed towards it. The same must be said with regard to the second contention noted above. If it were raised before the trial Court, the Municipality would have been able to show that there had been no illegal increase in the tax realised under the old Act.
7. The next contention is that there is no holding in respect of which the plaintiff has been taxed. It is not very easy to understand this objection. It seems that the plaintiff had changed his residence from one place to another but no particular holding was taxed. The personal tax imposed under Section 85 does not attach itself to any particular holding but it is a tax imposed upon a person occupying a holding within the Municipality according to circumstance and property.' These are all the main grounds taken on behalf of the appellant in this case some of which undoubtedly have great force and would have met with better result if they were raised at the trial.
8. In the result the appeal fails and must be dismissed with costs.
9. As the appeal fails on the merits we have not considered the question as to whether or not a second appeal lies in this case under Section 102, Civil P.C.