M.C. Ghose, J.
1. This is an appeal by the plaintiffs in a suit against the Commissioners of the Tamluk Municipality. The suit was instituted by eight persons for a declaration that a resolution of the Commissioners passed on 23rd February 1934 was ultra vires and illegal and without jurisdiction and was the result of an illegal proceedings of Commissioners; that the assessment lists as made were illegal that the plaintiffs are not liable to be assessed in the manner indicated in the said resolution. The suit was instituted under Order 1, Rule 8, Civil P. C. Many other rate payers joined as plaintiffs until the plaintiffs numbered no less than 269. The suit was dismissed by the trial Court. That decree was affirmed in appeal. Upon hearing the learned advocate for the plaintiffs-appellants the facts appear as follows:
2. The plaintiffs are the occupiers of lands within the Municipality. They use the lands for the purpose of cultivation, growing paddy and other crops therein. They pay rent for their lands to their landlords. They receive no rent from any person. The question was considered for a long time by the Municipal Commissioners whether in the circumstances the plaintiffs should be considered as owners within the meaning of the Municipal Act or whether their landlords, whom they pay rent for their holdings, should be considered the owners liable to pay the Municipal rates.
3. The Commissioners at a meeting of 23rd February 1934 decided by majority acting under Section 129 (b), Bengal Municipal Act that with regard to the tenanted lands, the ownership of a Mukarari raiyati or an occupancy raiyati or an under-raiyati with occupancy right for Mukarari right to be taken as a deciding test of ownership. These plaintiffs are affected by the decision as they are holders of land with occupancy rights. The first question is whether the meeting of 23rd February was a lawful meeting. It is urged that there was no proper notice served on the Commissioners for the meeting of that day. That, however, as the learned Subordinate Judge pointed out, is of no importance, for all the Commissioners without exception attended the meeting of 23rd. The question of no notice, therefore, is immaterial. They all having attended the meeting, the resolution was discussed and passed by a majority and at a subsequent meeting it was duly confirmed. It cannot therefore be held that the meeting was ultra vires or illegal. The main question urged by the learned advocate for the plaintiffs-appellants is that the test of ownership which the Commissioners resolved upon is ultra vires. An 'owner' is defined in Section 3 (38) of the Act. According to that Act:
'Owner' includes the person for the time being receiving the rent of any land or building or any part of any land or building whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose, or as a receiver, or who would so receive such rent if the land, building or part thereof let to a tenant.
4. The lands of the plaintiffs do not contain any building. They are purely agricultural lands used for the purpose of growing paddy and other crops. It is urged on their behalf that as they are not the persons receiving rent, they cannot be owners within the meaning of the definition. In support of this contention a decision of the Patna High Court in Harihar Prosad v. Municipal Commissioners Arrah 1934 Pat 357, was cited. In that case the Commissioners of Arrah Municipality had decided under the corresponding section of the Bihar and Orissa Municipal Act 1922 that as regards the agricultural lands the landlords who received rent for those lands would be considered the owners and not occupiers who occupied such lands. Against that decision of the Commissioners the landlord filed an appeal to the High Court and failed. It is to be noted that Section 129, Bengal Municipal Act leaves the decision of the matter to the Commissioners themselves and not to the Court. It may be stated that the definition of 'owner' is not exhaustive. It began with 'owner includes etc.' But there may be 'owner' other than what is stated in the definition. An owner may be a person who actually occupies the land. It depends upon the circumstances of each case. In the present case the plaintiffs are the occupancy raiyats holding agricultural lands within the Municipality. They receive rent from nobody. They pay rent to the Raja of Mohisadal and other landlords. The term 'owner' may be applied both to the holder of the occupancy right in the land and to his landlord as will appear clear when such a piece of land is acquired under the Land Acquisition Act. Both the landlord and the occupancy holders have right of ownership to the land and the extent of their right is considered by a Land Acquisition Officer in case of acquisition. In the Municipal Act it is left to the discretion of the Commissioners to determine which, of the two shall be taken to be the owner. In this case of Arrah Municipality the Commissioner thought it right to take the landlords to be the owner. The Commissioners of the Tamluk Municipality thought fit to decide that the owners of the occupancy right shall be considered to be the owners within the Municipality. It cannot be said that they have exceeded their right. The right is given to them absolutely under Section 129 (b), Bengal Municipal Act (1932) which states:
The Commissioners at a meeting shall determine what class of ownership shall be accepted as the test for determining whether lands within a Municipality are held under one title or agreement.
5. As to the case of each one of the plaint tiffs, the learned Subordinate Judge was right in stating that when each of them is assessed by the Commissioners, it is open to him to make objection to the said assessment and the Commissioner will then appoint an objection Committee whose duty will be to adjudicate each case upon its merits. As to the general proposition, in my opinion, the Municipal Commissioners were within their right in deciding the matter according to their judgment under Section 129, Bengal Municipal Act. The appeal is dismissed. Parties will bear their own costs in this appeal. Leave to appeal under Section 15, Letters Patent is refused. The cross-objection is not pressed and is, therefore, dismissed with costs.