DAYASAGAR MOHAPATRA Vs. COUNCILLORS, SAMBALPUR MUNICIPALITY

JUDGEMENT

(1.) DEFENDANT is the Petitioner. The Plaintiff opposite -party filed S.C.C. Suit No. 103 of 1960 in the court of the Small Cause Court Judge, Sambalpur, for realisation of Rs. 7092 nP. as the arrear latrine tax due for the house belonging to the Petitioner. The admitted case of the parties is theft the house in question does not contain a latrine, urinal or cesspool. The defence is that the Petitioner is not liable to pay the latrine tax and that the assessment of the latrine tax is illegal and without jurisdiction. The learned Small Cause Courts Judge decreed the Plaintiff's suit by his order dated 22nd December, 1960, holding that the imposition of the tax was legal. It is against this order that the revision has been filed.

(2.) THE learned Small Cause Courts Judge has recorded his finding as follows: "From the evidence discussed above these facts are admitted on both hands, namely, that there is no latrine, cesspool or urinal in the suit holding. Again from the evidence it also transpires that at least the suit holding was assessed with latrine tax since the year 1946 or 1947. It is also admitted that the Defendant was aware to the revised assessment after it was done in the year 1953. It is also further proved that the municipality in a resolution rejected the prayer of the Defendant for reconsideration of the imposition of latrine tax." The Defendant served certain interrogatories on the Plaintiff. One of those was "That there was no resolution by the Municipal Council that a latrine, urinal, or cesspool is required in the said holding before it was assessed to latrine tax by the Municipality'. To this the municipality gave a reply that n resolution is necessary as the holding has been assessed to latrine tax since its construction till the period in suit. The Orissa Municipal Act came into force in 1950, and prior to that the Bhar and Orissa Municipal Act was in force. Section 86(a) was the corresponding provision in that Act and it says that the tax shall be imposed only on holdings containing dwelling houses, latrines, urinals or cesspools and on holdings containing shops or places of business in which, in the opinion of the Commissioner a a meeting, a latrine, urinal or cesspool is required. As admittedly the latrine tax has been imposed on this holding from 1946 -47 on wards the first imposition was definitely under the Bihar and Orissa Municipal Act and the imposition in that case would be if in the opinion of the Commissioners at a meeting it was decided to impose such a tax. No question in the interrogatories asked the Plaintiff if the Commissioners under the Bihar and Orissa Municipal Act in a meeting ever decided that the suit holding should be imposed with latrine tax. Therefore there is no material on the record to show one way or the other as to the legality of the imposition of such a tax at its inception prior to the Orissa Municipal Act came into force. It is for this reason that the learned Small Cause Court Judge rightly observed, "It was open to the Defendant to call for any paper from the Municipality to prove that at the inception the Municipality did not form any opinion about the same at the time of imposition of the tax".

(3.) IT is also well settled that if the power and jurisdiction of the taxing authority is questioned on the ground that the formalities prescribed by the taxing statute have not need adopted, then the onus is on the Assessee to establish it. The Queen v. Reynolds 2 fully supports such a view., A.I.R. 1934 Pat 83 and : A.I.R. 1939 Pat 20 are in the same line. It is therefore necessary for the Defendant to establish that at its inception when the suit holding was assessed with latrine tax, it was not decided by the Commissioners in a meeting that the suit holding requires a latrine, urinal or cesspool. There is a presumption that official acts are regularly done. It is however rebuttable. The Defendant has failed to discharge that onus and accordingly the defence contention that the assessment is illegal, is untenable.