SHIVA PRASAD Vs. COMMISSIONER OF DARBHANGA MUNICIPALITY

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff against the Darbhanga Municipality for a declaration. that the assessment by the defendant Municipality of latrine tax in respect of the plaintiff's shop buildings included in holdings Nos. 194, 195, 197 and 198 in Ward No. 7-A of the Darbhanga Municipality was illegal, ultra vires and without jurisdiction and for recovery of a sum of Rs. 179-1-0 which had been realised from the plaintiff. The plaintiff owns two blocks of buildings on a road side in Darbhanga town. These buildings are used exclusively as shops. These two blocks were treated by the municipality for the purpose of assessment as four holdings. The municipality assessed latrine tax on Q these four holdings at the rate of Rs. 20 per annum on each holding. Taxes at this rate were realised from the plaintiff by the municipality. Thereupon the plaintiff instituted a title suit (NO. 25 of 1931/59 of 1933) for a declaration that the assessment was ultra vires and for recovery of the sums that were realised from him. This suit was decreed, and the decree was upheld by this Court in second appeal. In 1933 the aforesaid four holdings were split up into 13 holdings and 13 different assessments of latrine tax were made. The municipality realised taxes for these 13 holdings. Thereupon the plaintiff y brought another suit (No. 158 of 1936) for a declaration that the assessment was ultra vires and without jurisdiction and for recovery of the monies which were realised by the municipality. This suit was also decreed.

(2.) In March 1935 the municipality amalgamated the 13 holdings into one holding and also consolidated the latrine tax to Rs. 80. The plaintiff filed an objection under Section 116, Bihar and Orissa Municipal Act, against this assessment. The objection was allowed by a review committee only to this extent that the holdings were treated as four holdings as they originally stood, but the total amount of latrine tax remained as it was, that is to say, Rs. 20 was payable per annum for each holding. Subsequently, however, a special officer of the municipality ignored the order of the review committee and demanded payment of latrine tax from the plaintiff at the consolidated rate of Rs. 80 per annum. Under threat of distress warrant and certificate proceedings, the plaintiff had to pay Rupees 179-1-0 to the municipality. The plaintiff brought the present suit on 24 August 1937, for recovery of this sum of Rs. 179-1-0 on a declaration that the assessment of latrine tax was ultra vires and without jurisdiction. It is alleged in the plaint that the holdings consist only of shop buildings which contain no latrine, urinal or cesspool, and, therefore, the holdings were exempt from payment of latrine tax and the municipality did not observe the provisions of law before imposing the latrine tax. The suit was contested on the grounds, inter alia, that the suit was not maintainable and that the latrine tax was imposed on the holdings in question by the Commissioners at a meeting according to the provisions of law. The learned Munsif, overruling all the defences decreed the suit. On appeal the learned Subordinate Judge upheld the findings of the learned Munsif but dismissed the suit, holding that the suit was not maintainable inasmuch as the plaintiff had failed to take the specific grounds now raised in the plaint in the objection under Section 116, Bihar and Orissa Municipal Act. Hence this appeal by the plaintiff. Section 86, Bihar and Orissa Municipal Act (7 of 1922), imposes certain restrictions on the imposition of latrine tax. The section provides that the imposition of the latrine tax shall be subject to the following among other restrictions namely: (a) 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 Commissioners at a meeting, a latrine, urinal or cesspool is required.

(3.) Admittedly the holdings in question do not contain dwelling-houses, latrines, urinals or cesspools. Therefore, under Section 86, latrine tax could be imposed only if "in the opinion of the Commissioners at a meeting, a latrine, urinal or cesspool is required." In other words this formality must be observed as a condition precedent to the imposition of the latrine tax. In Dhanbad Municipality v. Jajneswar Bhakat A.I.R. 1934 Pat. 83. Mohamad Noor, J., held that: Where under the clear provision of the law a particular class of holding is exempted from taxation unless certain things are done without which the Municipality has no jurisdiction to proceed with the assessment and when there is absolute want of jurisdiction, the civil Court can and must interfere in such a case.