The Salem Municipal Council vs G.F.F. Foulkes

Krishnaswami Ayangar, J.—This revision petition arises out of a small cause suit instituted by the respondent against the Municipal Council

of Salem for the recovery of a sum of Rs. 66-15-6 claimed by way of a vacancy remission under the provisions of Section 87 of the Madras

District Municipalities Act, 1920. The respondent is the owner of a bungalow situate within the Municipal limits. His case is that on 15th March,

1940, he vacated his bungalow and left for Coonoor to stay there during the hot season and returned only on 25th June, 1940. During that period

it is admitted the bungalow was not occupied by the respondent.

Section 87(1) enacts as follows:

When any building whether ordinarily let or occupied by the owner himself has been vacant and unlet for thirty or more consecutive days in any half

year, the executive authority shall remit so much, not exceeding one half of such portion of the tax as relates to the building only as is proportionate

to the number of days during which the building was vacant and unlet in the half year.

It is common ground that in so far as the conditions laid down in Sub-sections (2) and (3) are concerned, the respondent has complied with them.

The only question is as to whether the bungalow can be held to have been ''vacant and unlet'' within the meaning of the section. The District Munsiff

has held that it was, and he accordingly gave a decree in favour of the respondent for the refund of the amount claimed. It may be mentioned that

this amount had been previously collected by the Municipality in spite of the respondent''s objection.

The section, as it now stands, directs the grant of remission not only in respect of buildings ordinarily let to tenants, but also in respect of

buildings ordinarily occupied by the owner himself. This was not quite clear on the language of the old section as it stood before the amendment

introduced in 1930. The contention of the Municipal Council was and is that the bungalow was not vacant because the respondent had left his

servant behind and had also left his furniture, library and his horse and jutka to remain in the bungalow or its compound. The District, Munsiff has

however found as a fact that no jutka or pony remained in the stables and no servant except the respondent''s peon or care-taker in the premises.

But he accepted the case of the Municipal Council to this extent, namely, that the respondent''s furniture and library remained in the bungalow and

that a care-taker had been left in charge of it when the respondent left for Coonoor. He has further found that he had no intention of returning or

occupying the bungalow till the date of his arrival in June. On these facts the District Munsiff came to the conclusion that the bungalow was vacant

and unlet within the meaning of Section 87, and the respondent was therefore entitled to the remission claimed.

The Municipal Council has filed this revision petition against the decree of the District Munsiff, urging that he has erred in holding that the

bungalow was. vacant, a view arrived at by misconstruing the word and giving it a sense different from that laid down in certain rulings in England

under the Rating Act and also in a decision of this Court in Commissioner of Income Tax v. Rajah of Parlakimidi (1925) 50 M.L.J. 63 : ILR Mad.

82 under the Income Tax Act. Before examining this contention it is desirable in the first instance to draw attention to the words of the section

under consideration and see whether they do not in themselves and without resort to decisions under other statutes, convey a definite meaning. In

the present case it is quite clear that the building was unlet during all the material period. The only question is whether it was vacant within the

meaning of the statute. Prima facie a house is vacant when no person occupies it. The meaning given to the word in the Oxford New English

Dictionary as applied to land, houses, etc., is ""uninhabited, unoccupied, untenanted."" Another meaning is "" devoid of an occupant, not taken up by

any one,"" Still another is ""devoid of all material contents or accessories, containing or occupied by nothing, unfilled, empty, void."" The last meaning

is quite general, whereas the first one is of special importance here, as that is the meaning given when the word qualifies a land or house. A

temporary absence of the owner or, occupant with the intention of coming back at any moment, cannot of course be regarded as rendering the

house or building vacant. A man may lock up the house and leave it for attending office, for visiting a friend or some other similar temporary

purpose. It would be unreasonable to hold that temporary absences for reasons of this nature, entitles the owner to claim the vacancy remission.

But when it is found, as it is found in this case, that the owner left the building for a definite period not intending to return and reoccupy the building

during that period, I find it difficult to conclude that the building can be regarded as not vacant. The owner''s library and furniture may be there; but

that only means that he intends to make a beneficial use of these, as of the building itself, not during his absence but when he returns and resumes

possession. The case will be different where the building is being utilised and intended to be utilised as a warehouse or a godown for the storing of

books, furniture, goods or machinery. But in my view, the library and the furniture remaining in the bungalow are merely appurtenances which will

add to its amenities and make the occupation of it when such occupation takes place, more beneficial and convenient. It is difficult to accept the

idea that a house is to be deemed occupied merely because books and furniture are left in it, and vacant only when they are removed. These

words'' inyolve in my opinion the intervention of a human agency. It is only when a humari being occupies it, it can be treated as occupied.

Similarly, it is only when nobody is in occupation, that one can properly speak of the house as a vacant house. Nor does it seem to me that the

mere fact that a care-taker was left behind order to prevent the building deteriorating of itself or being trespassed upon by others during the

absence of the owner, can make any difference on the question under consideration. It appears to have been so held even under the English Rating

Acts

In my opinion the true test is whether the owner is during the period for which the remission is claimed, in the beneficial enjoyment of the house.

He cannot be said to be in such enjoyment if added to his physical absence he intended not to return and occupy the property during the period of

his absence.

My decision largely turns on the findings which have been arrived at by the District Munsiff and it is therefore unnecessary to consider whether

and how far the English authorities can be looked at for construing the section in question. Most of these authorities turn upon the language of 43

Elizabeth, Chapter II, which directed the levy of a poor rate by taxation of... every occupier of lands, houses...in such competent sum and sums of

money...to set the poor on work; and also... for and towards the necessary relief of the lame, impotent, old, blind and such other persons among

them being poor and not able to work. There is a great deal of literature on the meaning of the word ""occupier"" of lands and houses in the English

authorities and they are all collected in Ryde on Rating (7th edition, page 14 et seq). The essentials of rate-ability are authoritatively laid down by

Lord Atkinson in Liverpool Corporation v. Chorley Union Assessment Committee (1925) 50 M.L.J. 63 : ILR Mad. 82 as follows:

(1) Does the appellant occupy this cematery--that being the locus in question--for which he is rated? (2) If he does, is his occupation a thing of

value? '' To make the plaintiffs rateable both these questions must be answered, mutatis mutandis in the affirmative.

In other words, was there a beneficial enjoyment of the property? According to Blackburn, J. in Allen v. Liverpool (1874) 9 Q.B. 180 ""the

intention of the alleged occupier is a governing factor in determining whether rateable occupancy is established."" In Liverpool Corporation v.

Chorley Union Assessment Committee (1913) A.C. 208 Lord Atkinson, referring to the rateability of empty houses, observed as follows:

When the statute therefore enacts that the occupier of a house should be rated, it must mean that the person to be rated shall occupy the house as

a house that is, that he shall use the house for the purpose of living in it or sojourning in it or working in it keeping animals in it storing other chattels

in it or using it for some such other purpose as houses may reasonably be devoted to; and that as a vacant house is not used for any of these

purposes it is not occupied as a house within the meaning of the statute.

The question under the Indian statute is not when a person is to be held to be the occupier of a house, but when a building is to be regarded as

vacant. It would seem that in England even the bare ownership of an empty house or other building if coupled with the intention on the part of the

owner to make use of it in the future, if opportunity offers or occasion arises, amounts to occupation for the purposes of the Poor Relief Act.

I am not satisfied that it is legitimate to make use of the English cases for the purpose of construing the word ""vacant"" which does not occur in

the English statute. The purpose of the Rating Acts is different as the rates are charged not on the land or house, but on the occupier in respect of

the land or house occupied and are not a charge on the property. The person to be rated is the occupier and not the owner of the land. In the

manner of the assessment, there is some analogy no doubt, but in every other respect the Indian statute appears to proceed upon different

principles. Unlike a poor rate which is not a tax on the land, the Municipal tax here is clearly such a tax. This is made plain by Section 82 which

states that every building shall be assessed and by Section 85 which charges the tax on the buildings and lands assessed to the tax. Section 86

states that the property tax shall be levied every half year and shall be paid by the owner of the assessed premises, unlike in England where it is the

occupier who is chargeable to the rate.

The only decision of the Madras High Court relied upon by the learned advocate for the Municipal Council is the Commissioner of Income

Tax v. Rajah of Parlakimidi (1925) 50 M.L.J. 63 : ILR Mad. 33 which is a ruling under the Income Tax Act. In this case the assessee claimed an

allowance of tax u/s 9(1)(vii) ""in respect of vacancies "" of certain bungalows belonging to the assessee. The contention was that though the

bungalows had been furnished and ready for occupation during the assessment year, they were not assessable, because, in fact, it so happened that

they were not lived in by the owner or by any other persons such as guests or officers of the owner. Coutts Trotter, C.J., held that there is nothing

in the section to warrant such a construction and held that if a man owns a house ready for his own occupation, ready for him to live in when he

chooses to do so, he is assessable to the tax. In coming to this conclusion the learned Chief Justice accepted the following proposition laid down

by Lush, J., in the Queen v. St. Pancras Assessment Committee (1913) A.C. 208 .

If, however, he (that is, the owner) furnishes it (that is, the vacant house) and keeps it ready for habitation whenever he pleases to go to it, he is an

occupier though he may not reside in it one day in a year.

In my opinion neither the English Poor Relief Act nor the Indian Income Tax Act can be said to be in pari materia with the District

Municipalities Act and that being so, the question has to be decided independently of the rulings under these Acts. The decision of the Allahabad

High Court in Upendranath Basu v. Municipal Board, Benares (1874) 9 Q.B. 180 is, it seems to me, nearer in point. Section 151 of the U.P.

Municipalities Act, 1916, provides that when a building or land has remained ""vacant and unproductive of rent "" for 90 or more consecutive days

during any year, the Board shall remit or refund a proportionate amount of the tax. Sulaiman, C.J. and Rachhpal Singh, J., construed the section to

mean that a building is vacant and unproductive of rent when neither the owner nor his relations or friends occupy it, and it is not let out to any

tenant or lessee.

For the reasons explained I am not prepared to differ from the conclusion of the learned District Munsiff and accordingly dismiss the civil

revision petition with costs.