1. This is an appeal by the plaintiff in a suit for cancellation of latrine tax, for refund of the amount realised from him and for damages. The case for the plaintiff is that be has been made liable for latrine tax in respect of holding No. 466 in ward No. 2 within the Kumarkhali Municipality, although that holding was not liable to be assessed with latrine tax under Section 321 of the Bengal Municipal Act, 1884. He seeks to make the Chairman and the Commissioners of the Municipality as also the Municipal Corporation responsible for his claim. The Court of first instance dismissed the suit as against the Chairman and Commissioners personally, but allowed the plaintiff a decree as against the Corporation. Upon appeal by the Municipality, the suit has been dismissed by the District fudge and the cross-appeal of the plaintiff to hold the Chairman arid the Commissioners personally liable has also failed. On the persent appeal, the judgment of the District Judge has been challenged on the' ground that the holding was not liable to be assessed under the proviso to Section 321 of the Bengal Municipal Act. The appeal was heard in the first instance by Mr. Justice Sharf-ud-din, who was of opinion that the findings of the District Judge were defective and accordingly remitted an issue to determine whether there is a privy or cesspool within the holding. The District Judge has returned his finding to the effect that there is no privy within the holding. But he has expressed the opinion that upon the question whether there is or is not a cesspool attached to the holding, it is not possible to come to any conclusion, because apparently evidence was not directed to this point. The appeal has now been re-argued before us.
2. Section 321 of the Bengal Municipal Act provides as follows: When such provision, that is, a provision for the maintenance of an establishment for the cleansing of private privies and cesspools as contemplated by Section 321) has been made, the Commissioners may levy fees, to be fixed on such scale with reference to the annual value of the holding, containing dwelling houses or privies within the limits of the Municipality or such part thereof as aforesaid, as the Commissioners may at a meeting from time to time direct. Subsection (I) of Section 322 provides for the levy of the fee payable by the occupier or owner. A proviso is attached to subSection 4 of Section 322 in the following terms: Provided that no such fee shall be levied in respect of any shop or place of business which does not contain any privies or cess-pools, when a fee under this part is levied from the occupier thereof in respect of his dwelling-house within the same Municipality.' There is an apparent contradiction between the terms of the first paragraph of Section 321 and the proviso to sub-Section 4 of Section 322. To explain the precise difficulty, it is necessary to refer briefly to the history of the legislation on the subject. Section 321, as originally framed and incorporated in Act III of 1884, authorised the Commissioners to levy fees in respect of holdings within the limits of the Municipality. The proviso to Sub-section (4) of Section 322, read with the first paragraph of Section 321 in its original form, does riot create any difficulty. Section 321 authorises the levy of the fee on all holding's. The proviso to Sub-Section 4 of Section 322 lays down that the fee shall not be levied in certain specified circumstances, that is, if three elements are established, namely, (1) that the holding is a shop or place of business; (2) that it does not contain any privy or cess-pool; and (3) that the occupier thereof has been made liable for latrine fee in respect of his dwelling house within the same Municipality. Section 321 was first amended by section W of Act IV of 1894, by which the words containing dwelling houses' were inserted between the words 'value of the holding' and within the limits.' It was apparently overlooked by the Legislature that the result of this amendment was to make the proviso to Sub-section (4) of Section 322 wholly nugatory. Under Section 321 as amended in 1894, the Commissioners were authorised to levy latrine fees only in respect of holdings containing dwelling houses. Consequently, no question could arise as to the exemption of a shop or place of business. Subsequently, by Section 15 of the Act II of 1 898, Section 321 was again amended by the insertion of the words or privies' between the words containing dwelling houses' and within the limits.' The section now stands in its amended form. After this second amendment the proviso to Sub-section (4) of Section 322 is equally superfluous, because under Section 321 as finally amended, the Commissioners are authorised to levy latrine fees on holdings containing dwelling houses and holdings containing privies. The latter, that is, holdings containing privies might no doubt include holdings which contain a shop or place of business, but there cannot arise an occasion for exemption of a holding which contains a shop or place of business but does not contain a privy, inasmuch as a holding which does not contain either a dwelling house or a privy cannot at all be assessed under Section 321. Be that as it may, there cannor, be any occasion for application of the proviso in so far as cess-pools are concerned. We have referred in detail to the terms of the proviso to Sub-section (4) of Section 322 and contrasted them with those of the first paragraph of Section 321 because, in the case before us, at one stage-reliance does appear to have been placed upon the proviso. It is plain, however, that the proviso does not touch the present case. The question whether the claim of the plaintiff is well founded or not, must be determined with reference to the terms of Section 321. Now, it has been found by the District Judge on remand that the holding in dispute does not contain a privy. Consequently, if latrine fee is sought to be levied, it can be so levied only if it is found that the holding contains a dwelling house, and the question for determination reduces to this, the holding of this description? The District Judge, who heard the appeal in the first instance, found that there can b' no doubt that the holding is used as a place of business. 'Bat he added that there was ample evidence that the place was used also as a dwelling house. He took this view, because the witnesses on the side of the plaintiff admitted that there was a cowshed and that the plaintiff himself occasionally resided there while in a state of unsound mind. The District Judge, who heard be appeal after remand, has further found that there are cowsheds on the, holding. We have consequently to decide, whether upon these facts, the holding can be regarded as one which contains a dwelling house within the meaning of Section 321. It may be added that the plaintiff has admittedly another property which he uses ordinarily as a dwelling house. Now the term dwelling house' is not defined in the Bengal Municipal Act and we have consequently to attach to the expression its ordinary natural meaning. The learned Vakil for the respondent, however, contended on the authority of the case of Lawson v. Fraser (1881) 8 Ireland 55 that as the plaintiff occasionally sleeps in a room in this holding, it may be deemed a dwelling house. An examination of the decision mentioned does not bear out this contention. In that case, there was a dwelling house on the property and the real question in controversy was whether the petitioner inhabited that duelling house. With a view to the determination of this question, the Court held that the fact that he had a building and occasionally slept therein, justified the view that the dwelling house was inhabited by him. This decision consequently does not assist the contention of the respondent. But, what is meant, by a dwelling house? Clearly, it is a house with the superadded retirement, that it is dwelt in. In the case of Ford v. Barnes (1885) 55 L.J.Q.B. 24 Colt. 396 : 16 Q.B.D. 254 : 53 L.T. 675 : 4 W.R. 78 : 50 J.P. 37 it was held that a house in which a person occupied rooms, though he was absent occasionally on duty, might be properly described as his dwelling house. The meaning of the expression dwelling house' was also considered in the case of Riley v. Read 4 Ex. D. 100 : 27 W.R. 414 : 48 L.J. Ex. 437 where Kelly, C. B., observed that the proper interpretation of the expression to dwell' is to live and occupy for all the purposes of life'. In the case before us, all that has been found is that the plaintiff uses the place for residence while he is in a state of unsound mind. The circumstance that there is a cookshed or cowshed on the property, plainly does not indicate that it is a dwelling house. There may be a cookshed or a cowshed on a property which is not a dwelling house but which is merely a place of business. On the facts found, we are clearly of opinion that the holding in question cannot be deemed a dwelling house within the meaning of the first proviso to Section 321 of the Bengal Municipal Act. The conclusion follows that the latrine fee has been levied in contravention of the Statute.
3. The result is that this appeal is allowed, the decree of the District Judge set aside and that of the Court of first instance restored with costs both here and in the Court of Appeal below.