1. The issue raised in this appeal involves the construction of the term persons occupying holdings' in Section 85(a), Bangal Municipal Act 3 of 1881. The appellant is the Headmaster of the English High School at Jangipur. From October 1921-23 he resided in a boarding house or hostel for students adjoining the school buildings, but the school building and the hostel for the purposes of the Bengil Municipal Act are, and are to be treated as, separate-holdings. The hostel belongs to the School Committee, and its internal affairs are managed by a Superintendent. Persons who are accepted as boarders are entitled to reside in the hostel only if, and so long as they conform to the rules and regulations of the institution. The hostel exists primarily for students, but the appellant obtained permission to reside therein as a boarder upon the usual terms, and became entitled to occupy a seat or bed in one of the rooms on the upper storey and to partake of the meals supplied in the hostel for an inclusive charge of Rs. 7-8-0 per month.
2. The appellant, however, was not entitled to the use of any particular seat or bed, and so long as he was given a seat in any one of the rooms on the upper storey he was liable to have his seat changed from time to time as the superintendent might direct or the exigencies of the hostel might require.
3. In these circumstances an assessment was made upon the appellant under Section 85(a) Bengil Municipal Act, and the amount of the tax was realized by the issue of distress warrants. The appellant thereupon brought the present suit to recover inter alia the amount of the tax that had been levied upon him. The trial Court decreed the suit, holding that the assessment upon the appellant was illegal, but the lower appellate Court reversed the decree of the trial Court and dismissed the suit. From the decree of the lower appellate Court the appellant has preferred the present appeal.
4. The material sections of the Act are, Section 85(a) The Commissioners may, from time to time... impose within the limits of the municipality one or other or both of the following taxes: (a) a tax upon persons occupying holdings within the municipality according to their circumstances and property within the municipality; provided that the amount assessed upon any person in respect of the occupation of any holding shall not be more than Rs. 84 per annum; or (b) a rate on the annual value of holdings situated within the municipality. Section 6(3) 'holding' means land held under one title or agreement, and surrounded by one set of boundaries: provided that where two or more adjoining holdings form part and parcel of the site or premises of a dwelling house, manufactory, warehouse or place of trade or business, such holdings shall be deemed to be one holding for the purposes of this Act other than those mentioned in Clause (a), Section 85.
(4) 'House' includes any hut, shop, warehouse or building;
(5) 'immovable property' and 'land' include (besides land) benefits arising out of land, houses, things attached to the earth, or permanently fastened to anything attached to the earth.
6. The issue to be determined is whether the appellant is a person occupying a holding within Section 85(a), Bengal Municipal Act. Two contentions have bean raised in support of the appeal.
6. The learned vakil on behalf of the appellant urged that the occupation of the appellant was that of a servant or agent of the School Committee, and that the hostel was being occupied by the School Committee, and not by the appellant. Ambika Chun v. Satis Chandra  2 C.W.N. 689 Govinda Chandra v Kailash Chandra  15 C.L.J. 689. In my opinion this contention is ill-founded. The appellant was not residing in the hostel because he was required to do so for the better performance of his duties as the headmaster of the school. Indeed, the hostel was not intended to be a boarding house for the masters but for the students, and it was only after obtaining the permission of the Secretary of the School Committee that the appellant was allowed to resids in the hostel at all. Now
the governing principle is that in order to constitute an occupation as a servant, it must be an occupation ancillary to the performance of the duties which the occupier has engaged to perform: per Mellor. J. in Smith v. Seghill  10 Eq. 422, Fox v. Dalby  10 C.P. 285, Clifton College v. Tompson  1 Q.B. 432 Charterhouse School v. Gaylex  1 Q.B. 437.
7. The first contention, therefore, raised on behalf of the appellant fails.
8. It was further contended that in the circumstances the appellant by residing in the hostel did not 'occupy a holding' within Section 85(a), Bengal Municipal Act.
9. Now, 'occupier' and 'occupation' are not defined in the Act, but, in my opinion occupation of a holding in order to render a person amenable to a personal tax imposed upon 'persons occupying holdings' under Section 85(a) connotes actual possession by the person liable to be assessed, or by his servant or agent in furtherance of the duties which such servant or agent has engaged to perform for the assessee. Such possession must be beneficial to the assessee; it must be intended that the possession should be continuous and not merely casual or intermittent, and the assessee or joint assessees of the holding must be entitled to the exclusive use and enjoyment of the holding as of right and not on sufferance; free from interference from outsiders, and without the user and enjoyment being subject to a paramount right of regulation or control by the party who put them in possession or any other person. It is not essential, however, that the possession should be permanent in the sense that the assessee should be entitled to the exclusive use and enjoyment of the holding for a definite term or a certain period, for
a tenant-at-will is, until the will be determined an occupier: per Denman, G.J., in re Chelsea Waterworks (7).
it would be a confusion of ideas to say that it (that is, a liability to determination) interferes with the exclusive possession any more than a right of re-entry on the part of a landlord in certain given events, could be said to interfere in any way with the right of a tenant during the time he is holding. He is in beneficial occupation for a term, though that term is limited by certain contingencies which may possibly determine his interest at an earlier period: per Lord Hatherley in Cory v. Bristol  2 A.C. 262.
10. In other words, it is the mode of user and not the length of the term, that determines whether or not the occupation is such that the person occupying the holding is liable to assessment. Further it is to be observed that exclusive user and enjoyment is not the same thing as exclusive occupation, for
a lodger in a house, although he has the exclusive use of rooms in the house, in the sense that nobody else is to be there, and though his goods are stowed there, yet he is not in exclusive occupation in that sense, because the landlord is there for the purpose of being able as landlords commonly do in the case of lodgings, to have his own servants to look after the house and the furniture, and has retained to himself the occupation, though he has agreed to give the exclusive enjoyment of the occupation to the lodger. Such a lodger could not bring ejectment or trespass quare clausum fregit the maintenance of the action depending on the possession, and he is not rateable: per Blackburn, J. in Allan v. Liverpool  9 Q.B. 180;
and although a person may be entitled to the exclusive enjoyment of a holding that is so also
where a guest in an inn, or a lodger in a house, has a separate apartment, or where a passenger in a ship has a separate cabin; in which case it is clear that the possession remains in the innkeeper, lodging-house keeper, or shipowner: per Hill, J., in Smith v. St. Michael's Cambridge  3 E. & E. 388, Smith v. Lambeth  10 Q.B.D. 327, Curzon v. Westminster Corporation  86 L.J.K.B. 198.
11. Now, in determining the question whether the occupation of a holding is such that it renders the occupier liable to a personal tax imposed under Section 85(a) regard must be had to the circumstances of each case, for
it is the intention of the parties which has to be looked at; it is not the words only that are to be regarded. The whole of the circumstances must be taken into consideration. It is the substance of the transaction rather than the form that determines the question whether such an exclusive occupation exists as will make the property rateable: per Lopes, L.J., in Rochdale Canal Co. v. Brewster  2 Q.B. 852, Lord Bute v. Grindall  2 H.Bl. 265, The Queen v. Lady Emily Ponsonby  3 Q.B. 14, H. v. St Pancras  2 Q.B.D. 581, Gory v. Bristow  2 A.C. 262, Bradley v. Baylis  8 Q.B.D. 195, Holywell Union v. Halkyn Dist. Mines Co.  A.C. 117, Liverpool Corporation v. Chorley  A.C. 197, Jalpaiguri Municipality v. Jalpaiguri Tea Co. Ltd. A.I.R. 1922 Cal. 46.
12. In my opinion, however, there cannot be separate occupiers of separate parts of one and the same holding assessable to the tax in respect of the portions that they respectively occupy, for the term 'holding' in Section 85(a) does not mean or include 'part of a holding' Sections 6(3)(4)(5); although, no doubt, there may be more persons than one in joint occupation of a holding, in which case each of the joint occupiers, is, or may be, amenable to the tax according to his
circumstances and property within the municipality: Jalpaiguri Municipality v. Jalpaiguri Tea Co., A.I.R. 1922 Cal. 46 and R. v. Paynton  7 Q.B. 255.
13. Reliance was placed by the respondent on Section 15 (iii), but Section 85 and Section 15 do not relate to the same subject-matter. In enacting Section 15 the legislature was not concerned with the incidence of taxation, but with the qualifications for the electoral franchise, and in Section 15(iii), where the words 'occupies a holding or part of a holding' occur, the legislature were prescribing the qualifications of one class of electors, upon the supposition that persons who had passed one of the tests therein set out, and were occupying a holding or a part of a holding rated at not less than a certain sum, probably wore possessed of sufficient perspicacity and intelligence to exercise the electoral franchise in a reasonable way. In Section 85 the legislature were concerned with the imposition of taxation, and the term 'holding' in that section, in my opinion bears the meaning attributed to it in Section 6(3) viz:
land held under one title or agreement and surrounded by one set of boundaries : Shah Earned Sossain v. Patna Municipality  17 C.W.N. 812,
and does not and cannot reasonably be construed to mean or include a part of a holding. Now, applying the texts that I have endeavoured to explain to the facts of the present case, in my opinion, it is clear tint the appellant did not 'occupy a holding' within Section 85(a), for it cannot reasonably be contended that he was in occupation of the hostel, and further, his right to the use and enjoyment of a seat or bed on the upper storey of the hostel was not such occupation as would render him liable to. assessment under Section 85(a).
14. For these reasons the appeal will be allowed with costs, the decree of the lower appellate Court will be discharged, and the decree of the trial Court restored. The appellant is entitled also to his costs an the lower appellate Court.
15. I agree.