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Judgment
Wort, J.—The appeal by the defendant and the cross appeal by the plaintiffs arise out of an action against what is said to be the Buxar Municipality for a declaration that the imposition of latrine taxes on the plaintiffs'' holdings were illegal and ultra vires and for recovery of the sums which had been paid with respect thereto by the plaintiff-respondents. These sums are said to have been recovered by the Municipality under a distress warrant. It appears that there were three holdings of the plaintiffs in Ward No. 2 and one in Ward No. 1.
It appears that by some mistake of the plaintiffs themselves in the first instance one of these holdings was described as being in a Ward other than the Ward in which in fact it was situate. It also appears from the judgment that at the time the objection was filed u/s 116, Bihar and Orissa Municipal Act, a clerk or some person in office of the Municipality made a note correcting the mistake with regard to the number of the Ward. But although that note had been made, yet the case, it is alleged by the plaintiff, was put before a wrong committee and therefore the objection was not considered. u/s 117 of the Act, provision is made for the hearing of these objections to assessment by a committee of not less than three Commissioners with the proviso that no Commissioner from the Ward for which he was elected was to be appointed a member of the committee to hear such objections. No question arose as regards that matter.
The Section also provides for the method of hearing these objections such as taking evidence etc. In my judgment there is no substance in the point. All that the Act provides is that the objections should be heard by a committee consisting of not less than three Commissioners. It may be, what I might describe, a domestic or internal arrangement of the Municipality in assigning cases of one Ward to one committee and another Ward to another committee. But, it is purely domestic and in no way affects the jurisdiction. There is nothing in the Act to prevent the Municipal Commissioners from arranging their business in whatever way they desire so long as they comply with the provisions of the Act, and the fact that the objection was heard by the committee which was directed to hear Ward No. 2 cases instead of the committee directed to hear Ward No. 3 cases or Ward No. 1 cases does not go to the root of the jurisdiction.
But there is another point which perhaps is somewhat more serious. It is said that the committee hearing one of these objections at the time consisted of two members only and not three. This is not a case of vacancy occurring u/s 37 of the Act. Had it been so, a nice point would have arisen, namely whether the fact, that two only of the Commissioners formed a committee to hear the objection, made their action invalid. But the Section seems to me to be quite clear that the objection should be heard and determined by a committee consisting of not less than three Commissioners. The mere fact that the decision was by a majority and that the two members of the committee who heard the objection were unanimous in their decision makes no difference. But again it does not go to the root of the validity of the assessment but merely entitles the plaintiff to a declaration that the particular objection to the assessment which is objected to is invalid.
He (the plaintiff) would be much in the same position if the Court were to issue a prerogative or a writ of mandamus or prohibition writ, and if it were made absolute, it would go to affect the validity of the particular matter with regard to which the writ was issued but not the assessment itself. Therefore in this case if the plaintiffs succeed they would be entitled to have their objection re-heard or heard and determined according to law in accordance with Section 117, Bihar and Orissa Municipal Act. Whether the plaintiff would be entitled to recover the sums already paid would be perhaps not a very substantial question, because although for the time being he might be entitled to recover such sums, but if his objections were ultimately overruled he would be liable for the latrine taxes which were the subject-matter of his objections u/s 117. The learned Judge in the Court below has come to the conclusion that, as the Revisional Committee (as he describes it) was entitled to decide by a majority, therefore, as I have already said, on that ground the objection in this case must be overruled. The reason given by the learned Judge is not, in my opinion, a valid one.
A further point made by the plaintiffs was that there was no notice u/s 115 of the Act. It was contended by Mr. Sinha on behalf of the defendant Municipality that Section 115 had no reference to latrine taxes. Section 115 refers to assessment lists under Sections 89 and 105 of the Act. Now Section 89 finds a place in that part of the Act dealing with assessment of taxes on persons and Section 105 finds place in that part of the Act which deals with assessment of taxes on the annual value of holdings, and I do not think it is disputed that the latrine tax is based on the annual value of the holdings. This I think is clearly established by reference to Section 100 of the Act which provides:
Any tax which is assessed on the annual value of holdings, other than the latrine tax, shall, subject to the provisions of Sections 133 and 134, be payable by the owners of the holdings within the Municipality.
I repeat that there can be no dispute about that point in my judgment. Section 115 therefore relates not only to taxes on persons but also to latrine taxes: in other words, it is a "general provision" as stated at the head of Section 113 "relating to assessment." So far as the other objections are concerned, that is to say, notices of meetings and so forth, the learned Judge has, in my opinion, correctly decided the case against the plaintiffs on two points: first, that it was for the plaintiffs to establish to his satisfaction that no such notice was served; and secondly, that particulars of the matters complained of had to be given in view of the decision of their Lordships of the Judicial Committee of the Privy Council in AIR 1934 62 (Privy Council) .
For the purpose of dealing with this question as to the value of the proof of these matters given by the plaintiffs I perused the evidence which was given in this regard. It must be made clear that my perusal was for no purpose of deciding the question of fact but for deciding whether the learned Judge in point of law was wrong in the conclusion at which he arrived. The passage to which I refer is found at p. 131 of the report, AIR 1934 62 (Privy Council) , where it is said that:
It is well established that any such attack on the proceedings on a statutory body, such as the committee, must be clearly defined and clearly proved.
First, as regards the other objections to which reference has been made, they have neither been clearly defined, nor have they been clearly proved as the learned Judge holds. I have dealt generally with the appeal and the cross appeal without stating specifically each of the points taken.
Now I come to a very substantial question raised by the appellants the Municipal Commissioners. I have used the expression Municipal Commissioners'' although strictly speaking Municipal Commissioners are not before the Court: in this case the plaintiffs sued the Chairman of the Buxar Municipality. It is contended by Mr. Sinha on behalf of the appellant that the action is not maintainable. The point seems to me to be perfectly clear and is unarguable. In support of the contention I have been referred to the decision of my brother James in an unreported case, Second Appeal Chairman Dt. Board Saran v. Ambica Rai Second Appeal No. 108 Of 1933. There the action was against the Chairman for an alleged tortious act. James J., in the course of his judgment, made this statement:
For Mr. Sinha''s second point the plaintiffs, should have instituted their suit either against the District Board or against the Chairman who actually sanctioned the prosecution. The suit was in form a suit against the Chairman personally. It is the Chairman''s personal failure to visit the place which is imputed as implying malice in the plaint. It is the Chairman''s personal liability which is dealt with in the written statement ; but the Chairman himself could no more be personally liable for the torts of his predecessor than the overseer who may have succeeded Sukhdeo Narain, the defendant in this case, could be personally liable for Sukhdeo Narain''s tort.
Section 12 of the Act provides:
There shall be established for each Municipality a body of commissioners who shall be a body corporate by the name of the municipal commissioners of the place by reference to which the Municipality is known, having perpetual succession and a common seal, and may by that name sue and be sued.
I am not concerned here with the exact meaning or significance of the word ''may'' in the sentence "and may by that name sue and be sued." It is unnecessary for me to decide whether the ''may'' as in some statute, must be construed as ''shall''. But taking the meaning at its face value it certainly would connote this that the plaintiff in an action of this kind has the option of suing the Municipality as a body corporate. If he fails to do that, his only other alternative would be (I do not decide this point expressly) to sue each one of the commissioners, joining them as party defendants. But the real point is that by the Section the commissioners become a legal entity which legal entity is not represented by the Chairman; although reference is made to the Chairman from time to time in the Act, he is a person who apart from such reference is unknown to the law, is not a legal entity but is merely a person. If the Chairman is sued the plaintiff is entitled to relief only against him and that is clearly not the plaintiff''s case here. In no sense of the word could he be held to be the representative for the purpose of the proceedings of the municipal commissioners, and there is no justification on principle or on authority or under the Act itself to entitle a party to seek his relief against the commissioners by bringing an action against the Chairman. In my judgment it is not merely a mistake of form but it goes to the very root of the action.
In In re Hodges (1873) 8 Ch. A 204, a similar point was decided. There the secretary of a company took out debtor''s summons against one Hodges. The summons read that, unless within three weeks Hodges paid to B. Leathley, the Secretary of the Leeds & County Loan and Investment Company Limited, the sum claimed, he would have committed an act of bankruptcy. The objection was taken that no debt was due to B. Leathley and that the summons could not be taken out by a servant for a debt due to his master even although he was authorised to collect: in other words, he in no sense represented, for the purposes of the litigation, the Leeds & County Loan and Investment Company Limited. Lord
Selborne pointed out in his judgment that summons is a special statutory proceeding involving important consequences, and all proper forms must be complied with,
and allowed the objection. It was treated as an unarguable point that if an incorporated company was to take out proceedings it was to do so in its own name. Likewise, if an incorporated body is to be sued, both on principle and by reason of Section 12 of the Act the corporate body must be sued and not the Chairman. There is a decision of the Calcutta High Court in Jogendra Nath Banerjee Vs. Tollyganj Municipality, where the following observations were made:
As to the first point, namely that the suit is bad inasmuch as the plaintiff sued the Chairman of the Municipal Corporation, we are of opinion that it is a technical flaw and no importance should be attached to it.
With great respect to the learned Judges, I do not agree with that view. If you have a cause of action against A, you cannot succeed by bringing an action against B. It is not a technical flaw but it goes to the very root of the matter. The learned Judges of the Madras High Court have held accordingly in Syed Ameer Sahib v. Venkatarama (1893) 16 Mad. 296, a case brought under the Local Boards Act (Madras), 1884.
In my judgment the objection taken by Mr. Sinha on behalf of the Municipal Commissioners must prevail. It was contended by Mr. Bose on the other hand that in the proceedings in the form in which they were taken the commissioners appeared. Exactly what was meant by that I fail to understand. Whether they filed vakalatnamas and were represented by advocates or whether they appeared physically in Court or whether they appeared in the proceedings is quite immaterial. The question is, whether in fact the body against whom relief was sought had been sued. There is only one answer to that question that they had not.
In my judgment therefore the suit fails and the appeal is allowed and the cross appeal is dismissed. There will be no costs either in the appeal or in the cross appeal in any of the Courts, as the point might have been taken in the trial Court and the plaintiffs would have had an opportunity to put the proceedings in order. Leave to appeal is refused.