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Debi Das Marwari Vs. the Chairman of Motihari Municipality - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.183
AppellantDebi Das Marwari
RespondentThe Chairman of Motihari Municipality
Cases ReferredMohanand Sahai v. Said
Excerpt:
municipality - permanent lessee under municipality--exemption from payment of rates--contract--onus of proof. - .....is an appeal on behalf of the plaintiff in a suit for declaration that he is not liable to pay municipal rates under the bengal municipal act. the plaintiff is a lessee under the municipality and his contention is that he has been exempted from payment of municipal rates by the proper authority. the court of first instance decreed the suit, upon appeal the subordinate judge has dismissed it. the courts below have discussed the question whether the plaintiff has been validly exempted from the payment of municipal rates by a legally constituted authority. in our opinion, no such question arises or requires consideration. the case for the plaintiff is that his rights are regulated by the contract between the parties. that contract makes him permanent lessee under the municipality. he is.....
Judgment:

1. This is an appeal on behalf of the plaintiff in a suit for declaration that he is not liable to pay Municipal rates under the Bengal Municipal Act. The plaintiff is a lessee under the Municipality and his contention is that he has been exempted from payment of Municipal rates by the proper authority. The Court of first instance decreed the suit, upon appeal the Subordinate Judge has dismissed it. The Courts below have discussed the question whether the plaintiff has been validly exempted from the payment of Municipal rates by a legally constituted authority. In our opinion, no such question arises or requires consideration. The case for the plaintiff is that his rights are regulated by the contract between the parties. That contract makes him permanent lessee under the Municipality. He is liable thereunder to pay for the use and occupation of the land at a specified rate. That rate, again, is liable to be enhanced after a prescribed period. It is further provided that the land is let out for building purposes but restriction is, imposed as to the use of the building to be erected. There is also a provision by which the Municipality is entitled to exercise a right of pre-emption. There is no provision in the lease, however, to the effect that the plaintiff will be exempted from the payment of Municipal rates after the erection of buildings on the land demised. The plaintiff is clearly under a statutory liability to pay the rates demanded from him and the burden is upon him to establish an exemption from the statute: Mohanand Sahai v. Said-un-nissa 8. C.L.J. 525 : 12 C.W.N. 154 If it was intended by the parties that the plaintiff should be exempted from the payment of Municipal rates, there ought to have been an express covenant in the lease to that effect. In the absence of such a provision we are unable to hold, that under the terms of the contract between the parties, the plaintiff has been exempted from the payment of Municipal rates which he is under a statutory obligation to pay to the Corporation. The conclusion follows that there is no foundation for the claim of the plaintiff and his suit has been rightly dismissed.

2. The appeal, therefore, fails and is dismissed with costs.

3. This decision, it is conceded, will govern the other appeals, namely, Nos. 239, 290 and 291 of 1910 which are also dismissed with costs.


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