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TMI Blog1932 (10) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... he Municipality let to the defendant for the sum of Us. 4,500 the right of recovering jakat from March 15, 1926, until October 6, 1926, from all pilgrims to Shree Yellamma Devi, vehicles and animals. Then, in the contract the rates to be charged on persons, vehicles and animals are specified. The first charge is on every person above five years of age one anna and the other charges are on animals and vehicles. The defendant paid part of the consideration, but he has not paid the last installment for which the Municipality now sue. 2. The defence of the defendant is that it was beyond the power of the Municipality to grant him the right to collect fees from pilgrims attending this shrine. That question turns on the construction of the Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate or a cess, which would be inappropriate words with which to describe a levy on pilgrims. The word 'tax' there seems to me to be used in the sense of a toll, that is to say, a payment charged for a particular benefit, namely, the right to attend a shrine. But, in my opinion, in construing Section 81A, which gives the Municipality power to lease the levy of any toll, we must apply the dictionary which the legislature has provided and hold that the section confers on the Municipality power to lease the levy of what is described in the Act as a toll, whether correctly so described or not. Undoubtedly, this particular levy on pilgrims is described not as a toll, but as a tax. On the whole, therefore, I think that the view of the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d direct an issue to be tried as to whether the defendant made any profit under Section 65 of the Indian Contract Act. For these reasons I think the judgments of the lower Courts were right and that the appeal must be dismissed with costs. S.S. Rangnekar, J. 4. The facts of the case which has given rise to this appeal have been set out in the judgment of my Lord the Chief Justice, and it is not necessary for me to refer to them in detail. 5. The Saundatti Municipality had levied a "tax" on the pilgrims visiting the shrine of Yellamma at Saundatti in the district of Belgaum and a "toll" on the vehicles used by the pilgrims. The "toll" and the "tax" were levied under the powers conferred upon the Mun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, Sub-clause (xiv), runs as follows: "'Tax' shall include any toll, rate, cess, fee or other impost leviable under this Act." It is clear that this is not a definition of the term 'tax'. The word "includes" in interpretation clauses is intended to be enumerative, not exhaustive. 8. Now, a charge of the kind described in Sub-clause (x) would be more aptly described as a "toll" rather than a "tax," Mr. Gumaste, therefore, says that when the legislature has used the word "tax" in Sub-clause (x) of Section 59 it is a mistake, and that we should substitute for it the word "toll." I am unable to accept the contention, having regard to the fact that various kinds of imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Municipality. Part of the consideration was, therefore, unlawful. Then, the general rule is, that when you cannot sever the illegal from the legal part of a contract, the contract is altogether void. (Kristodhone Ghose v. Brojo Gobindo Roy I.L.R. (1897) Cal. 895 Here, it is conceded, and it is obvious, that there was one single consideration for two objects, and the part that was legal-that is one relating to collection of tolls-cannot be severed from the illegal. That being so, the whole contract was void under Section 24 of the Indian Contract Act. 10. Mr. Gumaste refers to Section 40 of the Act. I do not think the taxes to be imposed under Section 59 of the Act are "property moveable and immovable" within the meaning of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rightly, that the plaintiff never put forward any such case and never sought any issue as to whether the defendant was not bound to restore the advantage which he had received under the agreement which under the statute was void. I do not think, therefore, it would be proper to allow Mr. Gumaste to raise this case for the first time at this stage. Apart from this, there is a fatal answer to the argument. The record shows that it was admitted by the plaintiff that the defendant did not make any profit in this transaction ; on the other hand he had suffered a loss. Further, when the defendant asserted that he had suffered a loss of ₹ 2,500, there was no cross-examination on the point, In this state of things, even if I was inclined to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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