The Chairman, Municipal Council vs Thirumalaisami Mudaliar and Others

Krishnan Pandalai, J.—The petitioner in all these cases is the Chairman of the Palamcottah Municipality and the respondents are vakils''

clerks living within that Municipality. The Municipality assessed them to profession tax u/s 93 of the District Municipalities Act, 1920, for two years

1924-25 and 1925-26 at 8 annjs per half year alleging that they were exercising a profession within the Municipality. The respondents refused to

pay alleging that they were not exercising any profession but only paid servants of the vakils who employed them and who were residing outside

the Municipal limits at Veeraraghavapuram within the Tinnevelly Municipality. The Municipality brought Small Cause Suits for the recovery of Rs. 2

from each of the respondents. In the plaints the defendants were described as exercising a profession. During the hearing, the Municipality seems

to have put forward an alternative ground that the defendants are holding appointments in Palamcottah. It was admitted that the Courts in which the

vakils practised are situated in Palamcottah and that the defendants'' clerks have duties to do in the Courts where their masters practise. But the

defendants denied liability to be taxed on either ground. The facts as above stated are not in dispute. Neither side wanted any oral evidence to be

recorded and so the District Munsif dealt with the case on what he calls preliminary points but what were really points arising on the admitted facts.

He held firstly, that the defendants are not exercising any profession but are merely paid servants or holders of appointments. Secondly, on the

footing of their being holders of appointments, he held that according to Rule 18 of Scheduel IV as interpreted in The Municipal Council,

Mangalore v. Parry and Co. (1926) 52 M.L.J. 360, the defendants could be assessed only at the principal place of their employment which he

held to be the residences of the vakils, i.e., Veeraraghava-purain. He accordingly dismissed the suits.

The learned Government Pleader who appeared for the petitioner first complained that the District Munsif had decided the cases without

recording evidence. But the facts above stated were admitted and as neither side asked for any evidence to be recorded, the only questions that

arose were those decided by the District Munsif.

It was next urged that on the footing of the defendants (respondents) being only holders of appointments, the construction placed on Rule 18

that they could only be assessed at the principal place of employment is incorrect and that they could be assessed both by the Tinnevelly

Municipality where the vakils lived and the clerks attend in the morning before going to the Court and also by the Palamcottah Municipality where

the vakils and their clerks work during the day in the Courts there. It was also urged that having regard to the nature of the duties of vakils'' clerks

their principal place of employment is where the Courts are situated and not where the vakils live. I am not prepaaed to say that the Lower Court

was wrong in holding that the principal place of employment of vakils'' clerks is their masters'' residence where presumably the contract of

employment was made and they receive their salaries and where also they have to do a considerable portion of their work every morning preparing

papers for presentation in Court and generally preparing for Court work and every evening winding up the day''s work and getting things in order

for the next day and attending to correspondence and accounts. The fact that they have to be in attendance in Court to help their masters during

Court hours and act according to orders then and there given does not alter the fact that the general control of their activities is by orders from the

master and these orders in the case of all servants who have duties to be performed outside the master''s house must in an ordinary and common

sense view be held to emanate from the master''s residence.

Next the question whether the defendants could be assessed not only by the Municipality when their principal place of employment is but in all

Municipalities where their duties take them in the ordinary course is really set at rest by the decision in The Municipal Council, Mangel ore v. Parry

and Co. (1926) 52 M.L.J. 360. In that case which was one of exercising a profession which for the application of Rule 18 stands on the same

footing as holding an appointment it was held that Messrs. Parry and Co., whose principal office was in Madras, but who had also a place '' of

business in Mangalore could not be assessed to profession tax by the latter Municipality. That decision is binding on me and I must follow it and

hold that the Lower Court was right on this point. It is to be finally noted that this and similar questions arise only in the District Municipalities Act

as it stood before the recent amendment by the Act of 1930. Under the amended Act, Section 93 and Scheduel IV have been extensively

amended and the Rule 17 corresponding to Rule 18 of the old Schedule contains no reference to the principal office or place of employment.

The last contention for the petitioners was that the respondents were exercising a profession within the meaning of Section 93. Three groups of

persons are contemplated in that section: (1) persons exercising a profession, art, trade or calling, (2) persons holding appointments, and (3)

persons in receipt of pensions and incomes. Tt would not be a reasonable construction to say% that a person who is holding an appointment, e.g.,

a vakil''s clerk, is, for the purpose of the section, exercising the profession of a clerk. The two categories are distinct. There is ground for thinking

that the persons intended by the first class are those who exercise their own profession and not clerks who work under those who exercise their

profession, though in a literal sense it is possible to say that clerks are exercising the profession of clerks. The decision in Lewis v. Graham (1888)

20 Q.B.D. 780 is authority for the proposition that in a somewhat analogous context the expression carrying on business is to be understood as

carrying on his own business and as excluding solicitors'' clerks. Though that decision was on the question of jurisdiction to a Court, the collocation

of ideas in the two contexts is sufficiently similar to apply the same reasoning. In my opinion the District Munsif''s opinion was right on this point.

The petitions are dismissed. As there was only arguments for both parties, the respondents will together get Rs. 100 for Advocates'' fees in all

the cases together and all the other costs if any.