1. This appeal involves a question under the Bengal Municipal Act, 1884, with, reference to the levy of latrine tax.
2. The plaintiff's holding No. 173 has been assessed with Rs. 41-4-0 on the annual value of that holding including the upper storey, which is his dwelling house, and the eight shops in the verandah of the ground floor of which none are occupied by the plaintiff himself. His complaint is that the latrine tax is payable in respect of the dwelling house only.
3. It has been found that none of the shopkeepers pay latrine tax within the Municipality in question for their separate dwelling houses. The plaintiff's dwelling house has a privy attached to it.
4. Both the lower Courts have dismissed the suit. The Munsif remarked incidentally, that no scale had been adopted for the fixation of latrine fees, 'but one consolidated rate has been fixed for the latrine tax on the valuation of the holding.' This point, however, had not been urged in the first Court, and the lower appellate Court has not alluded to it.
5. In second appeal it has been argued (1) that no scale having been sanctioned by the Municipal Commissioners at a meeting, the levy of latrine tax was illegal, and (2) that the eight shops are practically in the possession of the plaintiff who already pays the tax for the upper storey and is, therefore, exempted from farther liability.
6. Section 321, Act III of 1884, provides that 'The Commissioners may levy fees, to be fixed on such scale, with reference to the annual value of holdings containing dwelling houses or privies within the limits of the Municipality, or such part thereof as aforesaid, as the Commissioners at a meeting may direct.'
7. The proviso to Section 322 is as follows--'No such fee shall be levied in respect of any shop or place of business which does not contain any privies or cesspools, when a fee under this part (IX) is levied from the occupier thereof in respect of his dwelling house within the same Municipality.'
8. The second contention on behalf of the plaintiff-appellant, turns on a construction of the proviso to Section 322. The meaning of the proviso is this that when a shopkeeper lives elsewhere, and pays latrine tax for his house, he shall not be made to pay again for his shop, unless the shop contains a privy or cesspool. The plaintiff is not the occupier of the eight shops: he cannot, therefore, claim exemption under the proviso. The plaintiff is the owner of the shops which, together with the dwelling house, are all included in one holding No. 173, and the fees are to be levied on the annual value of the holding inclusive of the shops. The wording of the Section (.321) shows that the fees are to be levied with reference to the annual value of holdings containing dwelling houses, or privies and not with reference to dwelling houses only. The second contention, therefore, must be overruled.
9. There is force in the first argument of the learned Vakil, but we are not in possession of the full facts. If, as a matter of fact, the Commissioners at a meeting did not fix any scale for the levy of latrine fees, as enjoined by Section 321 of the Act, the assessment and levy of the latrine tax must be deemed to be ultra vires. The scale has to be fixed at a meeting. The scale is not to exceed the limits imposed by the second and third paragraphs of Section 321. We express no opinion as to the meaning of the word scale.
10. The necessary facts must be found by the lower appellate Court and a fresh decision arrived at with reference to the observations we have just made. It is possible that a Scale was duly fixed; if so, the fact must be strictly proved. The parties will be entitled to adduce additional evidence on this point.
11. The appeal is allowed in part. The case will be returned to the lower appellate Court to be dealt with in accordance with law Future costs will abide the ultimate result. Costs hitherto must be borne by the appellant.