CHAIRMAN, BALASORE MUNICIPALITY Vs. KHITINDRANATH GHOSE

JUDGEMENT

(1.) THE point raised in this revision is of some public importance though it arises out of a Small Cause suit. The Petitioner is the Balasore Municipality and the opposite party is a Clerk in the Balasore Collectorate residing with his father Ashutosh Ghosh in Balasore town. Holding No. 35 is a two storeyed building owned by ad registered in the name of Ashutosh Ghosh. The Municipality created a fictitious holding, numbered as 35(2) to represent the occupation of the opposite party in the house of his father, and sought to levy a personal tax on the opposite party assessed on the basis of his income) and on his refusal to pay the same filed the present suit. The learned Small Cause Court Judge dismissed the Plaintiff's suit holding that the Defendant (opposite party) is not liable to pay any personal tax as he is not in occupation of a holding within the meaning of Section 82(1) of the Bihar & Orissa Municipal Act, 1922, The Plaintiff -Municipality has come up in revision against this order.

(2.) A "holding" is defined in the Act as "land held under one title or agreement and surrounded by one set of boundaries provided that where two or more adjoining holdings form part and parcel of the site or premises of a dwelling house, manufactory, warehouse or place of trade or business, such holding shall be deemed to be one holding for the purposes of this Act, other than those mentioned in Clause (a) of Sub -section (1) of Section 82." Section 82(1) vests the power in the Municipality to impose taxes upon persons and on holding. That Sub -section reads as follows:

(3.) 'Occupation' is not synonymous with possession and differs from 'residence'. The word 'residence' is not defined anywhere in the Act, but on a reference to the election rules framed under Section 19 of the Act one caught an idea as to who is a 'resident' within the limits of a Municipality. Clause (2)(f) of that Rule says: