COMMISSIONERS OF ARRAH MUNICIPALITY Vs. INDER CHAND

JUDGEMENT

(1.) This appeal comes before this Court after remand. The case was remanded for the purpose of deciding a question of fact relating to a drain in Arrah. The Municipal Commissioners, who are the appellants, were the defendants in the trial Court in a case in which the plaintiff claimed the following reliefs: That on the facts and circumstances stated it be declared that the imposition of a fee by the defendants for taking license for plaintiff's keeping platform is illegal and ultra vires and the defendants have no right to realize the same from the plaintiff and that the said levy of platform-tax is illegal, ultra vires and beyond the power of defendants and the defendants are not entitled either in law or in equity to do the same and demand the same from the plaintiff. The second relief claimed was: That the defendants be restrained from realizing platform-fee or taking proceedings against the plaintiff under the Municipal Act or by-laws of the Municipality for not taking a license or compelling the plaintiff to remove his platform (if any) during the pendency of the suit.

(2.) The plaintiff further claimed a refund of the amount paid with interest. Several questions were raised in the Courts below, and in the lower Appellate Court the plaintiff succeeded. The learned Judge in the Appellate Court came to the conclusion, contrary to the contention of the Commissioners, that the drain was not a Municipal drain and that therefore the Municipal Commissioners had no jurisdiction over it. He also decided two questions of law in favour of the plaintiff which will be indicated by the points to which I shall refer in the judgment. This Court, being in doubt as regards the findings of fact, remanded the case to the Subordinate Judge for the determination of the question whether the drain was the Municipal drain, or whether it was within the limits of the District Board Road.

(3.) The contention of the plaintiff was that the District Board Road was 38 feet 8 inches in breadth and that the drain in question came within those limits. The learned Judge in the Court below, after remand, has come to the conclusion that the drain is beyond the limits of the District Board Road. At the instigation of the parties, a Commissioner was appointed and ha came to the following conclusion. "His report," says the learned Judge, shows that the road in front of the plaintiff's house was 4& feet & inches wide from the southeast corner of the plaintiff's house, ii feet & inches wide from the southern stairs of the plaintiff's house, and &i feet 5 inches wide from the northeast corner of the plaintiff's house....From the measurements made by the Commissioner it will appear that at 20 places, where the plaintiff wanted the widths of the road to be measured, it varied from Hi feet to 38 feet 6 inches, the average coming to 29 feet 10 inches. The learned Judge has come to the conclusion accordingly, and it will be seen therefore that the drain is beyond the limits of the District Board road, and on that conclusion it seems to be abundantly clear that, contrary to the plaintiff's contention, the drain is that of the Municipal Commissioners and not of the District Board. However, that matter does not dispose of the case. Dr. Mitter on behalf of the respondent raises several questions of law. The first is on the construction of Section 82, Bihar and Orissa Municipal Act, 1922. Section 82 provides that: The Commissioners may, from time to time, at a meeting convened expressly for the purpose, of which due notice shall have been given, subject to the provisions of this Act and with the sanction of the Local Government, impose within the limits of the Municipality the following taxes and fees, or any of them.