DEBA PROSAD GARGA Vs. MUNICIPAL COMMISSIONER OF TAMLUK

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs, and it arises rut of a suit commenced by them in the Court of the First Munsiff at Tamluk for declaration that a resolution, dated 27-101938, passed by the Commissioners of the Tamluk Municipality under Section 129(b), Bengal Municipal Act, (Bengal Act 15 [XV] of 1932) is illegal and ultra vires and that the plaintiffs are not liable to be assessed with rates and taxes on the basis of that resolution. There was a further prayer for an injunction restraining the Commissioners from enforcing that resolution. The Commissioners of the Tamluk Municipality are the principal defendants in the suit, though some of the ratepayers also have been added as parties defendants under Order 1, Rule 8, Civil P.C. To appreciate the point in controversy between the parties, it may be convenient to refer to a few antecedent facts and also to some of the provisions of the Bengal Municipal Act. Section 8(21), Bengal Municipal Act, defines "holding" as "land held under one title or agreement and surrounded by one set of boundaries." Section 129 provides inter alia that the Commissioners at a meeting shall determine what class of ownership shall be accepted as the test for determining whether lands within a municipality are held under one title or agreement.

(2.) By a resolution, dated 23-2-1934, the then Commissioners of the Tamluk Municipality passed a resolution to the effect that ownership for purposes of determination of a holding and for assessment of rates and taxes would be the ownership of persons in actual occupation of the land and having substantial rights therein. One of the rate-payers who felt aggrieved by that resolution brought a suit in the Tamluk Court for a declaration that the resolution was illegal and ultra vires of the Municipality. The suit was dismissed by the Trial Judge and the order of dismissal was eventually affirmed by this Court on appeal. It appears that a new set of Commissioners came into office in 1938 after defeating the old Board, and the new Commissioners passed a resolution on 27-10-1938, which runs as follows: In the matter of determination of holdings within the Municipal area under Section 129(b), Bengal Municipal Act, 1932, the class of ownership as indicated below be accepted as the test for determining whether the lands within the Municipality are held under one title or agreement and surrounded by one set of boundaries, (a) In case of buildings, the ownership of the person or persons who have absolute rights over them, (b) In case of revenue free lands, the ownership of the person or persons who bold revenue free estates under the Crown, (c) In cases of rent free lands, the ownership of the proprietor or proprietors within whose revenue paying estates such lands are situated, (d) In case of Mai lands (Kaiyati lands) the ownership of the proprietor or proprietors within whose revenue paying Estate, such lands are situated.

(3.) The plaintiffs are the proprietors of the Mahishadal Estate, owning a large quantity of lands in the town of Tamluk of which they are the revenue proprietors but which are held by various grades of tenants or raiyats under them. The effect of the resolution quoted above, they apprehend, would be to place the entire burden of taxation in respect of these lands upon them and exonerate the raiyats who are in actual occupation of them from any liability in respect thereto. Accordingly, they brought this suit and impugned the resolution of the Municipality, dated 27-101938, on a number of grounds. It was contended; in the first place, that it was beyond the competence of the Municipal Commissioners to pass a resolution in the form in which it was passed or to adopt any class of ownership as the test for determination of the holding which is not ownership according to the definition of the ownership in the Municipal Act itself. The second ground taken was that the Commissioners were actuated by malicious motives and their act was not a bona fide act at all. The third point raised was that the proceedings of the meeting in which the resolution was passed were vitiated by various irregularities. Lastly, it was urged that a resolution on the identical matter having been passed by the Municipal Commissioners in the year 1934, a fresh resolution on the same subject could not be brought again in 1938. The learned Munsiff who heard the suit decided all these points against the plaintiffs and dismissed the suit. On appeal, this decree of dismissal was affirmed by the Subordinate Judge of Midnapur. The plaintiffs have now come up on second appeal to this Court.