Asutosh Mookerjee, J.
Nos. 2816 and 2817 of 1916.
1. These two appeals are directed against the decrees of the lower Appellate Court, made in affirmance of the decrees of the Trial Court, in two suits instituted by the plaintiffs-respondents to contest the legality of the assessment of personal tax and latrine fee on them by the Commissioners of the Jalpaiguri Municipality. The plaintiffs are two Companies, the Jalpaiguri Tea Co. and the Chuniajhora Tea Co., which have their registered offices within the Municipal limits of the Town of Jalpaiguri. The defendant Municipality in exercise of statutory powers (under the Bengal Municipal Act, 1884) assessed on the plaintiffs at the last general assessment a personal tax of Rs. 84 each per annum under Section 85(a) and a latrine fee of Rs. 7 3 0 each per annum under Section 86(f). These are the assessments challenged in the two litigations. Section 85 provides that the Commissioners may impose within the limits of the Municipality one or other 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 eighty four rupees per annum; or(b) a rate on the annual value of holdings situated within the Municipality:
Provided that such rate shall not exceed seven and a half per centum on the annual value of such holdings, except within the Municipalities of Howrah, [Patna], Dacca and Darjeeling, in which it shall not exceed ten per centum on such annual value : and provided also that no rate shall be imposed on any holding of which the annual value is less than six rupees :
Provided that both the taxes shall not be in force at the same time in the same ward.
Section 86 provides that the Commissioners may order that a fee for the cleansing of latrines be levied within the limits of the Municipality in addition to either of the taxes mentioned in Section 85.
2. The plaintiffs attack the tax imposed under Section 85(a) as ultra vires on three grounds, namely, first, that the amount was assessed on the basis of their circumstances and property outside the Municipality : secondly, that each of the joint occupants of a holding has been separately asssessed at the maximum amount: and thirdly, that the statutory procedure for assessment has not been followed. The plaintiffs challenge the latrine fee as ultra vires, on the ground that each of two Companies who are joint occupiers of one holding has been separately assessed with the entire latrine fee payable. No further reference will be made to the legality of the latrine fee, as the question, in so far as it has been decided in favour of the plaintiffs, has not been re-argued in this Court. We are consequently concerned now solely with the matter of the legality of the tax imposed under Section 85(a), which has been pronounced ultra tires by the concurrent judgments of the Courts below.
3. The facts relevant for the determination of this question are not challenged in this Court and may be briefly recited. The head office of each of the Companies is situated within the Municipality. Their income is derived from tea gardens in the Western Doars in the District of Jaipaiguri, beyond the Municipal jurisdiction of the Town of . Jaipaiguri. The tea is sent direct from the gardens to Calcutta and sold there. The sale-proceeds are sent to the Jaipaiguri Banking and Trading Corporation, which is the financing Bank of the two Companies and has its office in the Town of Jaipaiguri. The amounts received by the Bank are placed to the credit of the respective Companies. The sums due on account of advances made by it as loan to the Companies are first deducted from the receipts. From the balance, the expenditure is met, and then dividends are declared in a general meeting of the share-holders. It is not disputed that the amount thus received by the Bank to the credit of each Company from outside the Munisipal limits exceeds Rs. 30,000 a year, and at the sanctioned rate of one rupee for Rs. 160, would justify the levy of the maximum tax of Rs. 84. On these facts, the Municipality maintains that the income thus received by each Company at Jaipaiguri constitutes its circumstances and property within the Municipality for the purposes of Section 85(a), and that it is immaterial that the tea is grown in a garden outside the Municipal limits or is sold in a market in Calcutta. This contention has been overruled by both the Courts below. We have arrived at the conclusion that the view taken by the Subordinate Judge, whose judgment is under appeal, cannot be supported.
4. There has been much controversy as to the precise meaning of the expression 'circumstances and property within the Municipality' used in Section 85(a), as is apparent from an examination of the decisions in Kameshwar Pershad v. Chairman of the Bhubua Municipality 27 C. 849 : 14 Ind. Dec. (N.S.) 556, Chairman of Giridih Municipality v. Sureth Chandra Mosumdar 12 C.W.N. 709 : 35 C. 359 : 7 C.L.J. 631, Deb Narain Dutt v. Chairman of the Baruipu Municipality 12 Ind. Cas. 32 : 39 C. 141, DebNarain Datta v. Chairman of the Baruipur Municipality 20 Ind. Cas 264 : 41 C. 168 : 17 C.W.N. 1230 : 19 C.L.J. 205, Chairman, Rajpur Municipality v. Nogendra Nath Bagchi 60 Ind. Cas. 394 : 23 C.W.N. 475 : 29 C.L.J. 379, Debendra Nath Rai v. Pranah Chandra Ghose 60 Ind. Cas. 284 : 32 C.L.J. 210 : 25 C.W.N. 45, Chairman of the Commissioners, Joynagar Municipality v. Sailabala Dutta 61 Ind. Cas. 511 : 25 C.W.N. 47 : 48 C. 443, Chairman of the Municipal Commistioner of the Municipality of Bihar v. Ramdeo Das 54 Ind. Cas. 227 : (1920) Pat. 120 : 4 P.L.J. 673 and Muhammad Ali v. Chairman, Municipality of Bihar 56 Ind. Cas. 821 : 1 P.L.T. 591, What constitutes the circumstances and property of a person within the Municipality must, in a large measure, depend upon the facts of the particular case. In some of the decisions just mentioned, the question arose whether the answer depended upon what the person got or on what he spent within the Municipality. Sometimes it has been urged that the measure of his liability was what he got and not what he spent within the Municipality : this contention was put forward by the assessee in Chairman of Giridih Municipality v. Suresh Chandra Mozumdar 12 C.W.N. 709 : 35 C. 859 : 7 C.L.J. 631, for the purpose of reduction of the assessment. On the other hand, in Debendra Nath Bai v. Pranab Chandra Ghose 60 Ind. Cas. 284 : 32 C.L.J. 210 : 25 C.W.N. 45 it was urged by the Municipality that the test was what he spent and not what he received, because this would have enabled the Municipality to increase the amount of assessment. It is not necessary for our present purpose to determine whether either of the two tests admits of universal application : here the same result is reached whichever test is applied. It is immaterial that the tea is grown in the interior of the District, beyond the Municipal limits, and is sold in a far distant market. The fundamental fact remains that though the original source of the income may be outside the local limits of the Municipality, the entire income is brought to be spent and enjoyed within the Municipality. As was observed by Sir Lawrence Jenkins, C.J. in Deb Narain Datta v. Chairman of the Baruipur Municipality 20 Ind. Cas 264 : 41 C. 168 : 17 C.W.N. 1230 : 19 C.L.J. 205, the term 'circumstances' in Section 85 is equivalent to 'means' There can be no room for doubt that the sale proceeds of the tea, when they are brought within the Municipal limits and are placed in the Bank to the credit of the Companies, may, without undue strain on the language, be described as their 'circumstances and property,' that is, their 'means and property ' within the Municipality, and may consequently be taken to furnish a just measure of their liability to assessment under Section 85(a). In my opinion, the personal tax is not open to attack as ultra vires on the first ground mentioned.
5. We have next to consider two minor objections, namely, (a) that where two tea companies jointly occupy the same holding, each is cot liable to be separately assessed under Section 85 (a) and (b) that the assessment is vitiated, inasmuch as the list prepared under Section 87 did not contain all the details enumerated in Clause (d). In my opinion, these objections are groundless.
6. As regards the former of these points, it may be observed that the tax which has been imposed is the tax upon persons contemplated by Section 85(a), and not the tax upon holdings prescribed by Section 85 (b), Section 85 (a) cannot plainly be limited in its application to a case where only one person occupies an entire holding. The language does not justify such a restricted interpretation : and there is no good reason why in places where the personal tax is in operation, several persons occupying the same holding should not each be subject to assessment, according to their respective circumstances and property within the Municipality. But on behalf of the plaintiffs, it has been argued that such a comprehensive construction of Section 85 (a) may cause hardship and may lead to results not reconcilable with the decisions in Ambika Churn v. Satish Chunier Sen 2 C.W.N. 689 and Gobinda Chandra Ganguly v. Kailash Chandra Sanyal 15 Ind. Cas. 909 : 15 C.L.J. 689, in the first of these cases it was held that persons living with a particular individual (the occupier of a holding) by reason of some connection with or relation to him, such as sons or servants, could not be deemed to be occupying the holding within the meaning of Section 85(a) and would not be separately assessable by reason of possessing separate incomes. In the second case, it was held that when a Naib of a Zemindar resided on a holding, solely to carry on the business of the Zsmindar whose representative he was and who paid the rent, therefore, to the superior landlord, the Zamindar and not the Naib must be regarded as the occupier liable for payment of the tax. These decisions show that in concrete instances, and upon their special facts, questions of nicety may arise, as to whether a person may be said to be in occupation of a holding within the meaning of Section 85(a). This, indeed, is clear from an analysis of the elements included in the complex notion of occupation : see the judgments of Mellor and Lush, JJ., in Reg. v. St. Pancrat Assessment Committee (1877) 2 Q.B.D. 581 : 46 L.J.M. C. 243 : 37 L.T. 126 : 25 W.R. 827. To determine, whether in a given set of circumstances a person may be said to be in occupation of a holding for purpose of assessment of rates and taxes, we may have to apply various tests : these need not be exhaustively enumerated, but some illustrations may be mentioned : taking possession as the primary element in occupation, the questions may he asked, is his possession actual, is it transient or temporary, has it a character of permanence, and is it as of right or merely by permissive license. Considerations akin to these may arise in a form of increased complexity where we have to deal with members of joint Mitakshara families : the case before us is, however, free from sushi serious difficulties. Here the possession of the holding by each of the Companies is actual, is as of right, and is not of a transient character. Such possession, if it were exclusive, would undoubtedly constitute 'occupying a holding' within the meaning of Section 85(a). The only fast which, it is urged, deprives the possession of the characteristics of occupation is that another Company is in joint possession in a precisely similar manner. I am of opinion that this circumstance is not material and that each Company may, in the eye of the law, he regarded as occupying the holding. I am not unmindful that there are expressions in cases reported in the books to the effect that occupation in order to be rateable must be exclusive : Cory v. Bristow (1877) 2 App. Cas. 262 at p. 276 : 46 L.J.M. C. 273 : 36 L.T. 595 : 25 W.R. 383, London & N.W. Ry. v. Bukmaster (1891) 2 Q.B.D. 436 : 61 L.J.M.C. 27 : 65 L. T. 450 : 40 W.R. 86, London & N.W. Ry. v. Buckmaster (1875) 10 Q.B. 444 : 44 L.J.M.C. 180 : 33 L.T. 329 : 24 W.R. 16. But as was pointed out by Lord Herschell, L.C., and Lord Davey in Holywell Union and Ralkyn Parish v. Halkyn District Mines Drainage Co. (21), the statement that occupation must be exclusive does not mean that nobody else has any right in the premises. The cases show that if a person has only a subordinate occupation, subject at all times to the control and regulation of another, then that person has not occupation in the strict sense for the purposes of rating but the rateable occupation remains in the other, who has the right of regulation and control. Cases also frequently arise where two persons have rights over the same hereditament, the rights of each qualifying the rights of the other, and both persons are rateable: Lancashire Telephone Company v. Overseers of Manchester (1884) 14 Q.B.D. 267 : 54 L.J.M.C. 63 : 52 L.T. 793 : 33 W.R. 203 : 49 J.P. 724, Allchurch v. Assessment Committee and Guardians of Hendon Union (1891) 2 Q.B.D. 436 : 61 L.J.M.C. 27 : 65 L. T. 450 : 40 W.R. 86, Reg. v. St. George's Assessment Committee (1872) 7 Q.B. 90 : 41 L.J.M. C. 30 : 25 L.T. 696 : 20 W.R. 179. Where the rate is imposed upon the land itself, it may well be that as land may, so to speak, be subject to different strata of occupation superimposed one upon another, an occupation of one kind may still be regarded as exclusive although other persons may use the land in some other way, and may even use it in such a way as to render themselves also rateable as occupiers. On the other hand, if the tax is assessed on a person as occupier, it is plain that he does not cease to be occupier because other persons are jointly in occupation with him. The second objection to the legality of the assessment must consequently be overruled as untenable.
7. As regards the final objection, namely, that the assessment list was not prepared in accordance with the provisions of Section 87(d) (which requires that the list shall include a description of the holding and of the property within the Municipality and the profession or business of the person assessed), we are informed that the assessment list did not show the income upon which the tax was assessed. In my opinion, this was a defect of form and did not invalidate the assessment: Chairman of Chittagong Municipality v. Jogeth Chandra Rai 3 Ind. Cas. 1 : 37 C. 44, There is clearly no foundation for the sweeping proposition that every defeat in the assessment list prepared under Section 87 destroys the jurisdiction of the Commissioners and renders the assessment ultra vires and unless this is established, the Civil Court has no jurisdiction to interfere: Chairman, Municipal Board, Chapra v. Basudeo Narain Singh 6 Ind. Cas. 321 : 37 C. 374 : 14 C.W.N. 437 : 11 C.L.J. 400, Chairman, Rajpur Municipality v. Nogendra Nath Bagchi 60 Ind. Cas. 394 : 23 C.W.N. 475 : 29 C.L.J. 379. I hold accordingly that the assessment under Section 85(a) is not liable to successful attack on any of the three grounds specified.
8. The result is that those two appeals are allowed and the suits are dismissed, in so far as the plaintiff seeks a declaration that the assessment under Section 85 (a) was ultra vires. The decrees will stand in so far as they declare that the assessment of the latrine fee was ultra Vires.
S.A. Nos. 690, 1019--1024 OF 1919.
9. It is conceded that these appeals will be governed by the above judgment in Second Appeals Nos. 2816 and 2817 of 1916, and similar decrees will be drawn up in these cases.
10. In each case, the plaintiff will pay costs in this Court and in the lower Appellate Court to the defendant Municipality : but all parties will pay their own costs in the Court of first instance.
11. The facts of these cases are simple. The respondent Companies, with the exception of the Anjuman Tea Company, Limited, which has premises of its own not shared with any other Company, jointly occupy at Jalpaiguri a building or buildings in which they have their registered offices.
12. Each of them has been assessed under Section 85(a) of the Bengal Municipal Act at the maximum rate allowed thereby. It is not disputed that if they are liable to assessment under that section, the maximum rate is not excessive.
13. They filed suits to have it declared that the assessments were illegal and ultra vires and to have them set aside, and have succeeded in both the lower Courts.
14. Three points have been argued on this appeal. The first is that the conclusion as to the Companies having property within the Municipality is wrong in law upon the facts as found.
15. The second is that the Companies who jointly occupy a holding cannot all be made liable.
16. The third is that the provisions of Section 87 of the Act have not been observed.
17. As regards the first of these points it is not disputed that the procedure is for the tea, which, of course, is grown outside Municipal limits, to be sent to Calcutta for sale. The Companies are financed by the Jalpaiguri Trading and Banking Co. When the tea has been sold the proceeds, which are not paid to the Companies or their agents, are credited in the Companies' accounts with the Bank after being remitted to Jalpaiguri, where the balance after payment of the Bank's dues becomes available for dividends or for use in the concerns as may be decided.
18. It is quite clear that these proceeds of the sale of tea, deposited in the Bank at Jalpaiguri, are property within the Municipality. These last four words involve a very simple question and do not necessitate any consideration of questions as to where the income accrues and so forth, such as are to be found in connection with questions of assessment for income-tax. It has not been suggested that there are any other 'circumstances' which have to be taken into account. This point, therefore, must be decided in favour of the appellant.
19. The second point does not concern the Anjuman Tea Co., for reasons already given. The lower Courts Have not, in my opinion, approached this question from the right point of view. They have held that where more than one Company occupies one holding, the definition of which is 'land held under one title or agreement and surrounded by one set of boundaries' and does not give rise to any difficulty, the Municipality is not entitled to divide the holding into several holdings and assess the Companies accordingly. This has resulted in their not finding it necessary to deal with the point as now presented to us.
20. The Companies undoubtedly are persons. They admittedly occupy holdings. There is nothing in the section which saves them from liability because the occupation is joint. The tax is in the nature of a poll-tax, leviable on persons. Not, however, merely as persons, but according to their circumstances and property within the Municipality, So far as a tax per holding is imposed, that is provided for by Section 85(b). Section 90, to which we were referred on behalf of the respondent Companies, supports this view. It provides the procedure if the aggregate amount of rates assessed on any person in respect of his occupation of two or more holdings, exceeds Rs. 84 per annum. That is to say, it deals with assessments under Section 85(a). Were the tax not a personal tax but a tax per holding, clearly this section would have no place in the Act, as in that case there would be no reason for abatement as provided by this section. In the Bourse of argument the position of a Hindu joint family under Mitakshara Law was referred to, in connection with the liability of an infant son at birth, who would have a share in the holding. The point does not now arise for decision, but that a joint occupier was incapable of earning income or did not own property independently of the other joint occupiers might well be circumstance, such as is contemplated by Section 85(a), for not assessing him to the full amount. This illustration of a possible application of the section does not affect the principle.
21. In my judgment the Companies, though joint occupiers of holdings, are each of them liable to the tax under Section 85(a).
22. The third point is one of no substance. The complaint of the Companies is that the assessment list contained no description of the property as required, by Section 87(d), No proceedings were taken under Section 113, which provides a remedy in such a case. Moreover, the point which has been determined in favour of the respondent Companies by the lower Courts is inconsistent with the second point as there taken on behalf of the Companies that the Municipality should not have divided the holding into several holdings for the purpose of assessment. I am not prepared to hold that the omission may invariably be negligible, but for the purposes of this appeal I do not think that the defect is fatal to the appellant. Section 358 was referred to in the course of argument, but that does not help the appellant as it only refers to an assessment or rating of tax on property, whereas the tax in question is one on persons.
23. For these reasons I concur in the orders to be made in the several appeals.