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Judgment
Sultan Ahmed, J.—This appeal arises out of a sails which was instituted by the appellant Saiyid Muhammad Ali Nawab for a declaration that he had been unlawfully assessed with tax u/s 85 of the Bengal Municipal Act, because he was not an occupier of any holding and had no circumstance or property within the meaning of that section within the Behar Municipality.
It has been found by both the Courts that the plaintiff had no property within the Municipality except a house in respect of which tax had been assessed. Section 85 requires, however, that he should not only be an occupier of a holding but also must have "circumstances or property within the Municipality" before he can be assessed and, therefore, the whole question is whether he had any circumstances or property within the Municipality.
It appears from the judgment of the District Judge that the plaintiff has an income of about Rs. 15,000 from his property, which is not within the Municipality of Behar. The learned Judge, however, understood Section 85 to mean that even if the plaintiff had circumstances or property outside the Municipality yet if the income derived therefrom was received and spent within the Municipality the requirements of Section 85 of the Bengal Municipal Act would be satisfied. In my opinion this is clearly an erroneous view of law. In order to make the assessee liable for assessment the Municipality will have to satisfy the Court that he has got not only a holding within the Municipality but that he has circumstances or property within the Municipality. The word "within" refers not only to property but also to circumstances.
Therefore, unless he had circumstances or property within the Municipality he will not be liable to assessment. The view of the law that I take in this case is fully concluded by authorities. The cases reported as Deb Narain Dutt v. Chairman of the Barnipur ''Municipality 20 Ind. Cas. 264 : 17 C.W.N. 1230 : 19 C.L.J. 205 : 41 C. 168, Deb Narain Dutt v. Chairman of the Barnipur Municipality 12 Ind. Cas. 32 : 39 C. 141, Kameshwar Pershai v. Chairman of the Bhabua Municipality 27 C. 849 : 14 Ind Dec. 556 and Chairman of the Municipal Commissioners of the Municipality of Bihar v. Mahant Ramdeo Das 54 Ind. Cas. 227 : 4 P.L.J. 673 : (1920) Pat. 120, are conclusive on the point. In this view of the law it is impossible to maintain the judgment and decree of the lower Appellate Court. The result is that the decree of the lower Appellate Court is set aside and that of the Munsif dated the 25th February 1918 is restored. This appeal is allowed with costs.