B.S. Hickey and Others vs Jai Narain Thakur and Others

Manohar Lall Ag. C.J.

This is an appeal by the plaintiffs who are aggrieved by the concurrent decisions of the Courts below by which they have dismissed their suit which was instituted for a declaration that the assessment of choukidari tax on the appellants wag illegal and ultra vires of the provisions of the Village Choukidari Act, 1870, hereinafter to be referred to as the Choukidari Act.

The facts are these. Plaintiff 1 is the Maharaja Bahadur of Darbhanga and the other plaintiffs are his Circle Manager, Circle Officers and other amlas of village Benipur situated within his zamindary. The circle office in village Benipur has one block of buildings a portion of which is used as the office and the other portion is in occupation of plaintiff 2, Mr. Hickey, who is the manager of the circle, as his residence. There are also five separate blocks attached to the building which are in the occupation of the other plaintiffs 3 to 16 who were serving at the place in various capacities as amins, clerks etc., under the manager. Under the Choukidary Act the Maharaja Bahadur has been assessed u/s 14 as he has in village Benipur a katchery for collecting rents. This assessment has been rightly made and is not the subject of the suit. The plaintiffs'' grievance is that in addition to the assessment of Maharaja Bahadur who is plaintiff 1 his servants and amlas have also been assessed "as occupiers of houses" in this village, and hence they seek for a declaration that this additional assessment is ultra vires of the Choukidary Act.

The Courts below have taken the view that although plaintiffs 2 to 16 were admittedly not the permanent residents of village Benipur and have no house of their own there, but as they were in possession of the houses exclusively inter se and their possession could not be interfered with by anybody, they are liable to be assessed under the Choukidary Act.

It is necessary to give the findings of fact arrived at by the lower appellate Court:

In the present case, the houses in which plaintiffs 2 to 16 lived did in fact belong to the Darbbanga Raj. The different houses also did in fact appertain as alleged to the circle office. But it is quite apparent that the houses had been intended for the residence of the servants working at the circle office and had been given to and were held by the plaintiffs as of right substantially as the part of the emoluments for the services they were doing at the circle office. These plaintiffs, that is to say, plaintiff 2 who was the circle officer and who had a whole house to his use as also the other plaintiffs 3 to 16 who had been given the different blocks mentioned above, had also without doubt the exclusive use and enjoyment of the respective houses without any interference and control in respect thereof from the Raj. Next the plaintiffs were also in occupation of the houses not casually but they were living in them indefinitely and were to be there till they remained posted at the circle office of the village. So it is apparent that although the plaintiffs were the servants and the houses belonged to the Raj and appertained to the circle office as alleged, still from the examination of the circumstances it is apparent that the plaintiffs were in occupation of the houses in the truest sense of the term...and were liable for the chowkidari taxes, u/s 14 of the Village Chowkidari Act.

The learned Judge then considered the argument that a number of plaintiffs were living in one block and how could it be said that they were the true occupiers and observed:

But none of the plaintiffs who occupied the blocks jointly with another was in occupation with any kind of subordination to the other. The position was not similar to the case of a servant or the children and the junior member of a family in which case only the head member and the muster of the house would be deemed to be the occupier of the houses. The respective two or more of the plaintiffs who were occupying the different respective blocks jointly were in possession of them with equal rights and with equal claim to the use and enjoyment which they had to adjust among themselves by a common understanding. In the circumstances the different plaintiffs though living in the different blocks jointly with some or other of the plaintiffs, will each be considered to be the occupier and will be liable for the Choukidari taxes u/s 14, Village Chowkidari Act.

In my opinion on these findings the suit of the appellants ought to have been decreed.

In a case decided in Ambika Churn Mozumdar v. Satish Chunder Sen C.W.N. 689 a case u/s 85(a), Bengal Municipal Act, the learned Judges disapproved of a similar argument which was advanced on behalf of the Municipality. In two of the cases dealt with in that judgment the plaintiffs were clerks or servants of the pleader who was occupying a particular holding and the learned Judges observed as to this situation:

And if the view which the municipality appears to take of the liability of these persons to assessment be well founded, it would follow that all persons connected with, or related to a particular individual occupying a particular holding, and by that relationship entitled to or bound to live with him, would be separately assessable, if possessed of a separate income. A wife, for example, if living with her husband and a servant, if residing on his master''s premises would be separately assessable; and so forth.

In Gobinda Chandra Ganguly v. Kaliash Chandra Sanyal Cri.L.J. 689 the facts found were that the plaintiff was the naib of the Maharaja of Mymenshing and as such occupied a small house adjoining the katchari in that holding and that he was residing in that house in his capacity as servant of the Maharaja. The assessment of the plaintiff to municipal tax was held to be illegal by Rampini J. who delivered the judgment of the Division Bench in these words:

The Subordinate Judge has held that the plaintiff is not the occupier of the house in question, because he is only the naib of the Maharaja and is residing in it in his capacity of servant of the Maharaja. He does not pay any rent for the house and is not a permanent occupier but can be removed at the Maharaja''s pleasure.

This is exactly the position in the present case. Plaintiffs 2 to 16 are not permanent residents of these houses; they are removable at the pleasure of the Maharaja and they are bound to reside there as the servants of the Maharaja to carry on the work of collection from that village or from that circle in which this village is situated and they cannot insist upon staying in those houses if the Maharaja orders otherwise.

A reference may be made to the exhaustive consideration of the meaning of the word occupation by Mokerjee J. in Jalpaiguri Municipality v. Jalpaiguri Tea Co. Ltd. 26 C.W.N. 311. A number of English cases are referred to at page 315 and specially the observations by Herschel L.C. and Lord Davey in (1895) A.C. 117

The cases show that if a person has only a subordinate occupation, subject at all times to the control and regulation of another, then that person has not occupation in the strict sense for the purposes of rating, but the rateable occupation remains in the other, who has the right of regulation and control.

The position in the present case is in no way different.

The learned Subordinate Judge has placed great reliance upon the case in Aghore Nath Haldar Vs. Dwijapada Chatterjee, . But the observations of Page J. do not support the argument of the defendants. At page 942 it is stated:

Now, ''occupier'' and ''occupation'' are not defined in the Act, but in my opinion, occupation of a holding in order to render a person amenable to a personal tax imposed upon ''persons occupying holdings'' u/s 85(a) connotes actual possession by the person liable to be assessed, or by his servant or agent in furtherance of the duties which such servant or agent has engaged to perform for the assessee...the assessee or joint assessees of the holding must be entitled to the exclusive use and enjoyment of the holding as of right and not on sufferance, free from interference from outsiders, and without the user and enjoyment being subject to a paramount right of regulation or control by the party who put them in possession or any other person,

These observations support the views expressed in the decisions which I have referred to above.

For these reasons I must hold that the additional assessment on plaintiffs 2 to 16 was illegal and ultra vires of the Choukidari Act.

The learned Government Pleader appearing for the respondents then urged that as the Provincial Government was not made a party in this suit, the Courts below have rightly dismissed the action. I do not agree with this contention which had commended itself to the Courts below. A perusal of the various provisions of the Act shows that it is the panchayat who is to impose the assessment by Section 13, and any new assessment has also to be imposed by she panchayat by Section 17. By Section 26 the panchayat of the village is required to prepare a list of persons who have failed to pay their respective instalments, and by Section 27 the collecting member of the panchayat has to issue a writing authorising the choukidar or some other person to levy a distraint. By Section 45, it will be observed, if it is found that there is no money to the credit of the village choukidari fund and the panchayat has not taken sufficient steps to realise the arrears due from the defaulters, the District Magistrate is authorised to issue a warrant for the realization of the chaukidar''s pay from the members of the panchayat. In the face of these elaborate provisions, it must be held that the only proper defendants to the suit would be the panchayat who imposed the assessment on plaintiffs 2 to 16 and that the Provincial Government was rightly not made a defendant by the plaintiff.

The result is that the appeal is allowed, the decisions of the Courts below are set aside, and the suit of the plaintiffs is decreed with costs in this Court as well as in the Courts below.

Ray, J.

3 12. I agree.