JUDGMENT
Mohammad Noor, J.
1. This is an application to revise a decision of the Small Cause Court Judge of Dhanbad. The petitioner, the Chairman of the Dhanbad Municipality instituted a suit against the opposite party for realisation of arrears of taxes in respect of six holdings, situated within the Dhanbad Municipality, namely, holdings Nos. 41 to 46. Taxes were due for 10 quarters in respect of holding No. 46 and for six quarters for holdings Nos. 41 to 45. The “holding tax” was imposed under Sub-clause (a) of Section 82(1) of the Bihar and Orissa Municipal Act (VII of 1922), and the “latrine tax” purports to have been imposed under Sub-clause (e) of that section. The suit so far as it related to the tax on the holdings has been decreed. There is, however, it is said, a mistake in the decree and I shall deal with it later.
2. The main controversy is centered round the latrine tax, the claim for which has been dismissed by the learned Small Cause Court Judge on the ground that the imposition of such a tax on the holdings in question was ultra vires.
2. It is an admitted fact and it is clear from the register produced by the plaintiff, that all the six holdings are shops in the bazar of Dhanbad. Now, under Section 86 of the Bihar and Orissa Municipal Act the latrine tax can only be imposed upon certain class of holdings and not on every holding. That section speaking about latrine tax says:
(a) that the tax shall be imposed only on holdings containing dwelling houses, latrines, urinals or cesspools and on holdings containing shops or places of business in which, in the opinion of the Commissioners at a meeting, a latrine, urinal or cesspool is required.
3. It is not the case of the plaintiffs that these holdings contained dwelling houses, latrines, urinals or cesspools. Therefore, the latrine tax can only be imposed upon them if in the opinion of the Commissioners at a meeting, they or any one of them require latrines, urinals or cesspools. The contention of the -defendants has been that the condition precedent to the imposition of the latrine tax was not fulfilled and the Municipal Commissioners at a meeting did not form an opinion about the requirement of latrines, urinals or cesspools in respect of these holdings and therefore, these holdings are not included within the class or holdings on which latrine tax can be imposed. This contention has prevailed before the learned Small Cause Court Judge and it is against this part of his decision that the plaintiff has moved this Court.
4. Fortunately the facts are not disputed. What seems to have happened is this. There was a general revision of assessment of the Dhanbad Municipality in the end of the financial year 1927-28 and at the instance of the Municipality, a Sub-Deputy Collector was deputed by the Local Government, to make the assessment. The Sub-Deputy Collector prepared a complete assessment list of the whole of the Municipality. The list is before me. It contains the usual columns, the number of holdings the names of the owner or occupant, the description of the holdings and their annual value and so forth. Then the columns of holding and the latrine taxes were also filled up, obviously on the basis of the precentage of taxation already in force in the Municipality, as the precentage of tax for the ensuing years had not till then been fixed by the meeting. The calculation was at 7½ per cent, for the holding tax the maximum permissible under Section 84 and the latrine tax was calculated at the rate of Rs. 3-12 percent. The Sub-Deputy Collector having assessed the annual value, the mention of the amount of each kind of tax on the basis of the prevailing rate was purely a clerical work. The assessment list in this form was placed at a special meeting of the Commissioners on March 28, 19 8 and a resolution was passed which ran thus:
Considered the list of revised assessment made by the Sub Deputy Collector in charge of assessment for ascertaining the amount of assessment and fixing the precentage at which the tax is to be levied. Resolved that the percentage be Rs 7 50 per cent, of the annual valuation of holding for holding tax As for the latrine tax the percentage is fixed at Es. 3-75 percent. Resolved that the assessment list prepared by the Sub-Deputy Collector be checked by the Chairman and then duly published in time.
5. There is no resolution to the effect that the holdings in question which are admittedly shops and were till then admittedly not assessed to latrine tax, required latrines etc., and, therefore, liable to pay latrine tax. Mr. Khurshaid Husnain asks me to hold that this resolution expressed the opinion of the Commissioners at a meeting that the shops in question which were mentioned in the list and against which the amount of latrine tax was also mentioned, required latrine, urinals or cesspools. I am unable to do so. It is a well settled principle of law that when the legislature has empowered an authority to impose taxes after doing a certain act, it cannot impose the taxes unless that act is done, and the authority must show, if challenged, that the act was done. No doubt there is a presumption that the official acts were duly performed. But it is a rebuttable presumption. On the instruction of the Tax Daroga who was present in Court, the learned Advocate informed me that these shops were imposed with latrine tax for the first time from April, 1928, under the resolution of March 28, 1928, which resolution does not show that the Commissioners at a meeting were of opinion that these shops required latrines etc. It seems to me quite clear that the Sub-Deputy Collector whose main function was to assess the annual value of the holding, assessed the annual value of these shops and then on the assumption that not only holding tax but also latrine lax was legally payable in respect of them, mentioned the figure of latrine tax calculated at the prevailing rate against them and the Commissioners at a meeting accepted the assessment list en bloc. There is nothing to show that the Commissioners in the meeting were called upon to decide that the shops against which latrine tax for the first time mentioned required latrines urinals or cesspools. From the fact that they accepted the list it cannot be presumed that they applied their mind to the requirements of latrines, urinals or cesspools in respect of each and every one of the shops involved in the present litigation. It is not a question in which a requirement of law was irregularly performed. Here is a total absence of compliance with a condition without which the tax could not be imposed. The plain reading of Section 86 of the Municipal Act, leaves no doubt in my mind that the shops are exempt from taxation unless the Commissioners at meeting form an opinion that they require latrines, urinals or cesspools. The matter is very simple and the whole contention of Mr. Khurshaid Husnain has been that this formation of opinion by the Commissioners must be presumed from the fact that they accepted the assessment list containing the latrine tax. As I have said, I am unable to accept this contention. It will be entirely overruling the requirements of law which the legislature has deliberately provided in the Act for the protection of shopkeepers. The legislature clearly meant that ordinarily the latrine tax, which is intended for cleaning the latrines etc., should not be imposed upon holdings containing shops only but that it can be imposed if the Commissioners at a meeting have formed the opinion that they require latrines, urinals or cesspools for the purpose of sanitation. To hold otherwise would mean the repealing of the section itself.
6. The learned Advocate has placed before me a number of decisions, which I do not wish to discuss, to the effect that the assessment of the Municipality cannot be challenged in a Civil Court. This is clearly enacted in Section 119 of the Bihar and Orissa Municipal Act and nobody disputes it. No doubt the Civil Court cannot interfere with a taxation which is imposed with in the power conferred by the law but where under the clear provision of the law this particular class of holding is exempted from taxation unless certain things are done without which the Municipality had no jurisdiction to proceed with the assessment and when there is absolute want of jurisdiction, the Civil Court can and must intervene.
7. In my opinion the judgment of the learned Small Cause Court Judge is correct and the suit in respect of the latrine tax has been rightly dismissed. I hive already stated in the beginning of my judgment that it is contended that there is a mistake in the decree of the learned Small Cause Court Judge inasmuch as, instead of passing a decree for Rs. 225 he has passed a decree only for Rs. 180. If so the decree will be modified and the plaintiff will get a decree for the entire amount of holding tax claimed with proportionate costs. A fresh decree will be prepared in this Court.
8. Taking into consideration the fact that the defendants never offered to pay the holding tax and never raised any objection to the latrine tax, the learned Small Cause Court Judge was right in refusing them costs fir the amount of claim dismissed. I propose to adopt the same course. The application is rejected. There will be no order for costs.