Mitter, J.@mdashThis Rule was issued on the Chairman of the Muktagacha Municipality to show cause why the decree of the Small Cause Court
of the 2nd Subordinate Judge of Mymensingh for recovery of Rs. 105 from the Defendants who are Petitioners before me should not be set aside.
Two grounds are urged in support of this Rule. It is said that the Municipality had no right to levy this personal tax as the Defendants were not
persons who were occupiers of holding within the meaning of sec. 85 of the Bengal Municipal Act. It is argued in the second place that, in any
event, the assessment of the Municipality is ultra vires, seeing that the assessment was a joint assessment against both the Defendants who are
Petitioners before me. It appears that the Petitioners who are the servants of the Maharaja obtained an ijara of a certain place which is described
as a cattle market within the Municipality and they make their collection of rent and carry on their business on holding No. 282 in respect of which
the assessment has been made although they reside elsewhere. It appears that on this holding a cattle market is held on Hal days and the holding
remains vacant on other days. The persons who sell their wares in the market are sort of licensees under the ijaradars, i.e., the Defendants and the
ijaradars are the persons who really occupy the holding within the Municipality. The first contention, there-Pore, that the Municipality had no
authority to assess tax on the Defendants because they did not occupy the holding within the Municipality must fail. The second ground taken is
one of substance and must prevail. It appears that there has been a joint assessment under sec. 85, cl. (a) of the Bengal Municipal Act against both
the Defendants. Sec. 85(a) reads as follows: I need only quote the material portion, ""The Commissioners may. from time to time, at a meeting
convened expressly for the purpose, of which due notice shall have been given, and with the sanction of the Local Government, impose within the
limits of the Municipality one or other, ''or'' both, of the following taxes:-
(a) A tax upon persons occupying holdings within the Municipality according to their circumstances and property within the Municipality.
2. Whether the holding is claimed jointly by two or more persons, cl. (a) suggests to my mind that a tax is to be assessed on each separately
according to the circumstances and property of each within the Municipality. The contention raised by the learned vakil for the Opposite Party that
these persons should be treated as one person seems to me not to be tenable. For, to accept that construction would be to take a view
inconsistent with the language of cl. (a) which suggests that each person must be taxed personally according lo the circumstances and property of
each within the Municipality. The circumstances and the property of two joint occupiers must of necessity vary and two persons occupying
holdings could not be regarded either as a Corporation consisting of several members as one person in the eye of the law or as one Company
consisting of several members. This view receives support from a decision of tin''s Court in the case of The Chairman of the Jalpaiguri Municipality
v. The Jalpaiguri Tea Co., Ltd. 26 c. W. N. 311 S.C. 34, C. L. J. 283 (1921). Mr. Justice Mookerjee in dealing with the Question as to what is
the proper interpretation which is to be put upon sec. 85(a) observed as follows:-""The language does not justify such a restricted interpretation;
and tin-re is no good reason why in places where the personal tax is in operation, several persons occupying the same holding should not each be
subject to assessment, according to their respective circumstances and property within the Municipality."" Mr. Justice Buckjand concurred with Mr.
Justice Mookerjee and observed that in his judgment ""the tax under sec. 85(a) was in the nature of a poll-tax leviable on persons. Not however
merely as persons, but according to their circumstances and property within the Municipality"" and he held that there were two Companies in that
case who were occupying the holding though joint occupiers of holding and each of them was liable 10 be taxed under sec. 85(a). In that case
separate tax was assessed on each of the Companies and the contention was that they should have been jointly assessed. That contention,
however, was not accepted and the view was taken that each person occupying the holding should be assessed separately. The Municipality of
Muktagacha by assessing a joint personal tax on each of the two Defendants has contravened the provisions of sec. 85(a) of the Bengal Municipal
Act. Their action must consequently be regarded as ultra vires and the suit based on such an action winch was beyond the powers of the
Municipality must be dismissed. The Rule is made absolute and the judgment and decree of the ""lower Appellate Court must be set aside. There
will be no order as to costs.
