B.K. Mukherjea, J.
1. These six analogous rules have been obtained under Section 25, Provincial Small Cause Courts Act, by different petitioners, who were defendants in six analogous suits commenced by the Union Board of Lilooah, which is the opposite party in all these rules, in the Court of the Second Munsif of Howrah exercising Small Cause Court powers for recovery of union rates under the provisions of the Bengal Village Self-Government Act.
2. The petitioners are all employees of the East Indian Rilway and they reside in the railway quarters at Mouza Bamungachi within the jurisdiction of the Lilooah Union Board. The Union Board assessed each one of them to union rate as occupiers of buildings within the union under Section 37, Bengal Village Self-Government Act. On their failure to pay the rates these suits were instituted. The defence of the defendants in the several suits was identically the same. It was contended on their behalf that they were servants of the East Indian Railway and that they were required for proper performance of their duties to live in the railway premises at Bamungachi and that they were not permitted to reside elsewhere. In these circumstances, it was said that the railway administration itself should be regarded both as owner and occupier of these premises and the defendants could not be assessed to union rates under the Village Self-Government Act. The learned Small Cause Court Judge overruled these contentions of the defendants and decreed the suits with costs. It is against these decrees that these rules are directed.
3. Two contentions have been raised by Mr. Das who appears in support of the rules. It has been argued in the first place that the petitioners being required for the proper performance of their duties to live in the railway buildings at Bamungachi, they could not be regarded as occupiers of the premises and their names could not be entered in the rating list. The second point raised is that as the railway administration has already been assessed to the maximum rate prescribed by the Act as owner of the premises, the petitioners, even if they be regarded as occupiers, could not be taxed again. So far as the first point is concerned, reliance is placed by the learned advocate upon the note appended to Rule 2 of the rules framed by the Local Government regarding assessment and collection of the union rate, under Section 101 Village Self-Government Act. The note stands as follows:
Note. - In the case of buildings constructed, owned or rented by State Railways, Railway or Steamer Companies, mills or other industrial concerns, for the accommodation of servants thereof who are required for the proper performance of their duty to live in such buildings, the Railway, Steamer Company, mill or industrial concern in question shall be regarded as the occupier and no such servant living in such building shall be included in the list.
The mere provision of quarters as a matter of convenience does not bring the occupant within this note.
4. It appears from the evidence of the railway officer who has been examined in this case and whose evidence has not been disbelieved by the Court below that the petitioners are compulsorily required to live in the railway building as a condition of their service and that they are not permitted to reside elsewhere. The railway administration insists on their staying at the railway premises so that their services might be requisitioned at very short notice. Bach employee is given a room or rooms according to his status and he cannot sublet any portion of his quarters. The railway authorities have the sole discretion in the matter of allotment of rooms and the employees have no choice in the matter. This witness further admitted in his cross-examination that if the defendants could live close to the railway station, even outside the railway buildings, it would still be possible for the railway administration to avail of their services at short notice. Mr. Chakravarti who appears on behalf of the opposite party has argued that the note to Rule 2 of the assessment rules will not cover a case of this description. His argument is that in order to make the note applicable it must be absolutely necessary for the railway servant to live in the premises for the purpose of discharging the duties to his employer. If it was possible to do his work even if he lived outside that would be a matter of convenience and the note expressly says that that would not be a ground upon which the occupier could avoid assessment.
5. Both parties have drawn our attention to a number of cases decided by the Courts in England where the question as to whether a person occupies a house as a tenant or a servant has been discussed with reference to the law relating to rating income-tax, franchise and settlement. Mr. Das has placed very great reliance upon a decision of the Court of appeal in Reed v. Cattermole (1937) 1 K.B. 613, while Mr. Chakravarti, has cited amongst others the cases in Smith v. Seghill Overseers (1875) 10 Q.B. 422, Dobson v. Jones (1844) 5 M. & G. 112, Hughes v. Chatham Overseers (1843) 5 M. & G. 54, Reg. v. Spurrell (1865) 1 Q.B. 72 and Clark v. Overseers of the Parish of St. Mary (1856) 1 C.B. (N.S.) 23 in support of his contention. In Reed v. Cattermole (1937) 1 K.B. 613 the question of occupation arose in this way. A minister of the Methodist Church was appointed minister of a circuit containing nine churches and one of the terms of his engagement with the church was that he was to reside in the manse provided for him by his employers. Schedule A tax, rates and water rate in respect of the manse were paid on his behalf by the church. The question for decision in the case was whether the amount of such taxes and rates formed part of the emoluments of his office in respect of which he could be taxed under Schedule E. The contention of the Crown was that as he was liable to be assessed under Schedule A as occupier of the house and was hence relieved from paying something which he ought in law to have paid, his emoluments were to be treated as enhanced accordingly. This contention was negatived by the revising barrister and his decision was affirmed by the Court of appeal and it was held that he was not to be assessed to tax under Schedule B as occupier of the manse. In the course of his judgment Lord Wright M.R. observed as follows:
The essence of the matter, I think, is that the enjoyment which the minister has of this house, the enjoyment in the sense that he uses it as a dwelling house and therefore in the sense that it is a benefit to him, is subsidiary and ancillary. He dwells in the house, not for his own convenience, we do not know in this case whether it would have been more convenient for him to live in a house or in a residence of a simpler character; but in fact he lives there for the purposes of the church as part of the obligations which he owes to the church as part of his service, and under compulsory requirement of the church as it is said, whether it is suitable for him or not, in order that he may perform his duties. Under those circumstances the authorities as well as the principles which have been laid down, to my mind, involve the view that he is not the occupier for revenue purposes.
6. In our opinion the principle enunciated in this decision does apply to the facts of the present case and it undoubtedly favours the contention of the petitioners. The cases relied on by Mr. Chakravarti have all been discussed by Lord Wright in his Judgment mentioned above and it appears to us that none of them lays down the law in a different manner. Mr. Chakravarti lays great stress upon the decision in Smith v. Seghill Overseers (1875) 10 Q.B. 422. There, a colliery provided a number of houses for the benefit of its workmen and filled up these houses at its discretion giving preference to married men. The workmen could not go into a house without the owner's concurrence. Some of the workmen who were single had no house given to them and they got no allowance for that either. Allowance was, however, given to a married workman if he could not be given accommodation in any one of the houses, s, a married workman, resided in one of these houses for which no rent was payable, the question was whether he should be assessed to rate as occupier of the house. The question was answered in the affirmative, and it was held that his occupation was that of a tenant and not of a servant. Mr. Chakravarti places reliance upon the observations of Mallor, J. where he says:
'Required' means more than the master saying 'you must reside in one of my houses, if you come into my service.
7. This proposition need not be disputed and we may say that we agree with the observation of the learned Judge that the residence must be ancillary to the performance of the duties which the occupier is engaged to perform. Where the occupation is not connected with the performance of the employment the occupation must be deemed to be the occupation of the tenant. It must be noted that in this case the accommodation was provided as a matter of convenience to married workmen only. Single workmen had no house provided for them and even amongst married men residence in these houses was not compulsory; they would forgo the allowance only if they resided elsewhere. The cases in Dobson v. Jones (1844) 5 M. & G. 112 and Hughes v. Chatham Overseers (1843) 5 M. & G. 54 which have been referred to in this connection rather go to show that to constitute the occupation of a servant it is not necessary to prove that the services could not be performed at all if the servant resided elsewhere. In Dobson v. Jones (1844) 5 M. & G. 112 the surgeon was required to reside in the house for the purpose of enabling him the more readily thereby to perform the services required of him. But it was not impossible for the surgeon to perform his work even if he resided elsewhere. It was held that he occupied the house not as a tenant, but as a servant. Tindal C.J. in the course of his judgment referred to the earlier case in Hughes v. Chatham Overseers (1843) 5 M. & G. 54 to which he was a party and observed as follows:
We drew the distinction between those cases where officers or servants in the employment of Government are permitted to occupy a house belonging to the Government as part remuneration for the services to be performed, and those in which the places of residence are selected by the Government, and the officers or servants are required to occupy them, with a view to the more efficient performance of the duties or services imposed upon them.
8. The test which was formulated in this case was that if a house was allotted to a servant as a reward or remuneration for his services, his occupation would be that of a servant, it would be otherwise if he was required to occupy it in the interest of his employer, for services required from him. In Hughes v. Chatham Overseers (1843) 5 M. & G. 54 a rope maker was permitted to reside in a house in part remuneration of his services and not for the performance of his duties and it was held that he occupied it as a tenant. In this case Tindal, C.J. observed that there was nothing in the facts of the case to show that the claimant was required to occupy the house for the performance of his service or did occupy it in order to the performance or that it was conducive to that performance more than any other house. The same view was taken in Reg. v. Spurrell (1865) 1 Q.B. 72. In Clark v. Overseers of the Parish of St. Mary (1856) 1 C.B. (N.S.) 23, Cresswell, J. remarked in his judgment that no distinct principle could be formulated from the cases decided before, for determination of the point. But as in the case before the Court the revising barrister had found that the claimant was required to occupy and did occupy as a servant, there was sufficient reason for holding that he did occupy in the character of a servant and not as a tenant.
9. Let us now examine the language of the note to Rule 2 of the Assessment Rules framed under the Village Self-Government Act in the light of the principles laid down in the cases referred to above. To bring a case within the purview of the note, it is necessary that a servant must be required for the purpose of performance of his duty to live in a building owned by his employer and the provision of quarters should not be a matter of convenience to him. This means, in our opinion, that it must be a requirement of the contract of service that the servant should live in a house owned by his employer, whether it was suitable to him or not, and his residence in the house should be ancillary to or connected with the performance of his duty. In other words, he would be required to live in that house in order to discharge his duties to his employer. But it would not be necessary to prove that it was impossible for him to perform his work even if he resided outside those premises. The word 'convenience' occurring in the note refers, in our opinion, to the convenience of the employee or the servant and it excludes the class of cases mentioned above where the servant gets the accommodation as a reward or part of his remuneration.
10. In the case before us, we think that all the requirements of the provision embodied in the note are fulfilled. The petitioners are bound by the contract of service to reside in the railway premises at Bamungachi. They have got no option in the matter and they are bound to stay in those premises whether it suits their convenience or not; they are required to reside in the premises for the performance of their duties. The fact that even if they occupied certain other premises close to the railway station they might be able to discharge their duties is to our opinion altogether immaterial. Our conclusion, therefore, is that on the facts admitted and found the petitioners could claim the benefit of the note appended to Rule 2 of the Assessment Rules and consequently they could not be assessed to union rate under the Village Self-Government Act. Having regard to the view that we have taken, it is not necessary for us to discuss the other point raised in this case as to whether the owner and the occupier could both be assessed to union rate order the Village Self-Government Act. The rules are accordingly made absolute and the decrees of the Courts below are set side, and the suits are dismissed. The petitioners are entitled to costs in these rules--the hearing fee being assessed at one gold mohur in each case.
11. I agree.