BANU MAL Vs. DISTRICT BOARD OF KARNAL

JUDGEMENT

(1.) This appeal arises out of a suit for a permanent injunction for restraining the defendant District Board from levying Rs. 50/- per annum as professional tax on the plaintiff and from realizing the same from him. The tax in question was levied by the District Board for the year 1948-49, 1949-50 and 1950-51, and proceedings were taken against the plaintiff for realisation thereof. It was pleaded by the plaintiff that he resided in Karnal and was not carrying on any business within the jurisdiction or limits of the District Board, except that he had taken certain land in village Kunjpura situate in District Karnal on lease and was getting it cultivated through tenants. The defendant Board pleaded, inter alia that the plaintiff had taken agricultural land on "theka" and had given it on cultivation to various tenants, and he was therefore carrying on the work of a contractor and was not doing any cultivation himself. The only material issue which arose for decision was whether the imposition of the professional tax by the defendant on the plaintiff was illegal and without jurisdiction. The trial Court came to the conclusion that the plaintiff's source of income was no doubt land but he was dependent on agriculture and that he was carrying on the profession of deriving benefit from land by obtaining it on lease and then sub-letting the same to tenants on profit. The suit was dismissed. The lower appellate Court, after referring to the relevant part of the notification dated 16th December, 1947, came to the conclusion that the said notification exempted the actual cultivators of land, and, as the plaintiff had made it a profession to get land on contract and make a profit by giving it on cultivation to tenants, he was carrying on a profession and was therefore liable to pay the tax. Consequently, the decision of the Court below was affirmed. The plaintiff is dissatisfied and has come up to this Court in Second appeal.

(2.) The first point that has been raised on behalf of the appellant is that he is not carrying on any trade, profession, calling or employment within the meaning of the notification by which the tax was levied. It is submitted that the appellant has taken the land on lease, and as it is a large area consisting of about 4,000 Bighas, he cannot carry on the cultivation himself and has therefore created sub-leases in favour of various tenants. This, according to the contention raised on behalf of the appellant, will not constitute carrying on of trade, profession, calling or employment. It is, however, in the evidence of P. W. 5, who was produced by the plaintiff, that the work of a thekedar of lands was being done by the plaintiff at Sargodha originally. It is further in the evidence of other witnesses produced by the plaintiff that he has taken on lease lands at other places also which he has sublet to tenant. The area of the land in question is about 4,000 Bighas which is a very large area, and there is a good deal of force in the contention of the learned counsel for the respondent-Board that such a large area was taken on lease only for the purpose of making profit as a thekedar or a contractor. In his own statement as P. W. 7 the plaintiff admitted that he had taken the aforesaid land on patta for the last forty years and that it was given on Batai to various tenants. He himself resided in Karnal and did not do any work in village Kunjpura where the land is situated. He was living in Karnal for the last 10 or 12 years prior to which he was living in Hissar, Sargodha and other places. In his absence his agents used to manage the lands. Since 1947, apart from the land in Kunjpura, he had taken on contract land in Mangalpur. He had also taken land on patta in another village two years ago. On these facts there can be little doubt that the appellant is certainly carrying on a calling, profession or trade within the meaning of the notification. A "calling" according to Webster's International Dictionary means "One's usual occupation, vocation, business, trade." In Partridge v. Mallandaine,1887 18 QB 276 , persons receiving profits from betting systematically carried on by them throughout the year were held chargeable with income-tax on such profits in respect of a "vocation". The following observations of Denman, J. at pages 277-278 are noteworthy :-

(3.) As regards the dictionary meaning of "trade", it is the "business one practices or the work in which one engages regularly; one's calling, occupation gainful employment, means of livelihood ......." (Webster's International Dictionary). In Luckin v. Hamlyn, 21 LTR 366, the meaning of the word "occupation" appearing in the Act for preventing Frauds upon Creditors by secret Bills of Sale of personal Chattels was considered. Kelly, C. B. observed as follows :-