HARI GOVIND KALKUNDRI Vs. CITY MUNICIPALITY OF BELGAUM

JUDGEMENT

(1.) This is a re visional application to set aside the decree of the Second Glass Subordinate Judge of in Small Cause Civil Suit No. 613 of 1927. This was a suit by the applicant to recover the excess paid by him in respect of the cess known as "Sullage Water Cess" levied on his house, The house in suit is divided into seventeen tenements occupied by seventeen families residing separately. A rough sketch of the premises-has been put in but we have been able to gather from the arguments before us that the space in which this building is erected has two outside walls in which there are three gates each of which opens into a small space and the seventeen tenements have seventeen doors opening into this space. Each tenement has, therefore, direct communication with this space and through the gate to the road. The learned Subordinate Judge construed the rule passed by the Belgaum Municipality under Section 46(1) of the Bombay City Municipalities Act as meaning that the word "house" in item 7 of Rule 1 must be taken under the circumstances of this case as meaning seventeen different tenements. It is in evidence that there are eight drains from this house leading into the Municipal gutter and that in some oases some of the drains from the tenements lead into one or other of these eight private drains. The learned Subordinate Judge, therefore, dismissed the suit. Against that order the plaintiff- applicant has filed this revision application.

(2.) Item 7 of Rule 1 reads as follows : "Every house that lets out sullage water into the Municipal gutters or Municipal limits shall pay Rs. 5 per year." The first question, therefore, for determination is the meaning of the word "house," That is certainly a question of fact and it may be also partly a question of law. Section 25 of the Provincial Small Causes Courts Act gives us power to interfere in revision in any case where the decision is not according to law. Our powers, therefore, are wide and it is for us to see whether the present decision cornea within that definition. Now the learned Subordinate Judge has relied, so far as his finding of fact is concerned, on the following evidence to show that the word "house" here meant seventeen tenements. Firstly, there are the separate numbers given to each house since 1921. Secondly, there are the eight drains which are connected with the Municipal gutter direct, Thirdly, there are separate iron plates fixed to the doors of the tenements to mark that they are different houses and separately numbered, The tenemets are separately numbered in the City Survey and Cess Register and the tenements are separately occupied each by a different family. Lastly, there is the fact, which I have referred to, that each tenement has a separate entrance leading through the gate into the highway. It is true that in Exhibit 28 the house is described only by one number and it is so entered in Ag. the Municipal Register. But in the face of the facts which have mentioned I am of opinion that so far as the question of fact is concerned this house must be considered as seventeen different tenements and item 7 of Rule 1 of Section 46(1) of the Bombay city Municipalities Act must be intended to apply to each one of these tenements.

(3.) The case of Rango Narayan Kirloskar V/s. Hughes (1881) P.J. 41 does not say dearly whether there was one building which was divided up into several tenements or whether there were separate buildings adjoining one another. But even in the latter case the learned Judges there held that "in so far as the plaintiff has in a manner separated one building from the rest by letting it to a tenant at a rent, we think that the Municipality was justified in treating that building as a house within Bombay Act YI of 1873 and Section 5, 01,1 of the Rules of the Municipality made under it." I think there can be no doubt that if you divide up a house into separate tenements it is not unreasonable to say for the purposes of this particular cess which, it must be noted, as my brother Murphy has pointed out, is a service cess that the cess should be charged in respect of each tenement.