1. The appellant is the plaintiff in an action brought against the Naihati Municipality for refund of a certain sum of money as also for damages. Both the Courts below have agreed in dismissing his suit; hence the present appeal. In order to appreciate the points which fall for determination in the present appeal the following relevant facts may be briefly stated. The plaintiff is a tenant under one Asutosh Haldar who defaulted in the payment of municipal taxes; the plaintiff wrote a letter to the Municipality informing the Chairman that Asutosh lives in a separate portion of the building but notwithstanding such letter the Municipal Daroga went inside plaintiff's house by a khirki door, attached his cycle and thus subjected him to humiliation; plaintiff paid Rs. 17-3-0 for the release of his cycle. He maintains that the action of the Municipality was illegal and ultra vires and claims the refund of the said sum. He maintains further that the action of the Municipal Daroga in entering through back door in a place appropriated for the zenana or residence of women which by the usage of the country is considered private without giving notice and opportunity for the retirement of the women was illegal and in doing so the daroga contravened the provision of Section 123, Bengal Municipal Act; that his act constituted a trespass for which his employer, the Municipality, is liable. The defence of the Municipality is (1) that the plaintiff is not entitled to the refund as his property was liable to be attached as he was the occupier of the holding in question or of a portion of it; (2) that the act of the daroga was not a trespass and even if it was so the Municipality is protected by Section 128 of the Act. Both these defences have prevailed with the Courts below with the result that the plaintiff's suit is dismissed. In the appeal before us it is contended that plaintiff was not liable to have his moveable properties attached, having regard to Sub-section 105 and 121 of the Act. Section 121, so far as is material, runs as follows:
If any person, after service upon him of such bill and notice shall not . . . . service of such notice . . . pay the sum due . . . . the amount of the arrear due, with costs on the scale shown . . . be levied by distress and sale of any moveable property belonging to the defaulter . . . wherever found or of any moveable property belonging to any other person . . . . which may be found within the holding in respect of which defaulter is liable to such tax or rate.
2. It is argued that under the terms of this section read with Section 105 the move, able property belonging to any person which may be found within the defaulting holding may be subjected to distress only when the owner is not a resident within the Municipality, and it is admitted in the present case that the owner was a resident within the Municipality. In order to support this argument reference is made to Section 105 of the Act which runs as follows:
If the sum due from the owner of any holding remains unpaid after the notice of demand has been duly served, and such owner be not resident within the Municipality, or the place of abode of such owner be unknown, the same may be recovered from the occupier for the time being of such holding, who may deduct, from the next and following payments of his rent, the amount which may be so paid by or recovered , from him; provided that no arrear of rate, which has remained due from the owner of any holding for more than one year, shall be so recovered from the occupier thereof.
3. It is said for the appellant that in order to reconcile the provision of Section 105 with Section 121 the latter section must refer to a case where the owner is not a resident within the Municipality. The two sections in our opinion refer to different cases. Section 121 lays down the procedure for the realization of the tax by levying distress or sale of moveable properties belonging to any person which may be found on the holding in arrears. Whereas Section 105 enacts that the tax can be recovered from the occupier if the owner is not resident within the Municipality, there is no such limitation in Section 121. According to the plain meaning of the latter section the tax is leviable by distress and sale of the moveables of any person, which may be found on the defaulting holding. The Courts below have come to a correct conclusion on the matter and plaintiff's claim for the refund must be disallowed.
4. The next point taken is that the act of daroga in entering through the khirki door was an act of trespass and was actionable per se without proof of special damage. It was indeed improper for the daroga to enter through the back door and invade the privacy of the plaintiff. The proviso to Section 123 makes it incumbent on the officer of the Municipality to give notice at least three hours before the entry and thus afford the female members an opportunity to withdraw from the zenana apartments. No such notice was given; no opportunity was given to the female members to withdraw. There can be no question therefore that the act of the daroga was in contravention of Section 123. The Municipality says that the act of the daroga was not a trespass by reason of Section 128. Section 128 in our opinion applies to defects of forms in the notice, or warrant and cannot refer to the mode of levying distress where moveables to be attached are situate within the zenana apartments. We are therefore of opinion that the defendant is answerable in damages to the plaintiff. We assess the damage however at Rs. 20. We modify the decree of dismissal by the Courts below and direct that plaintiff should have a decree for damages for the sum of Rs. 20 and dismiss his claim for the refund. The sum of Rs. 20 will carry interest from the date of the decree to realization at the rate at six per cent per annum. As the success of the parties is divided each party will bear their own costs throughout.
5. I agree.