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TMI Blog1932 (6) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... y so made by him a tax of such amount not exceeding ₹ 2 as the Local Government may determine. (2) The said tax shall be collected by means of a surcharge on fares by the owner of the vessel in which the passengers are carried and shall be paid to the Board at such time as may be prescribed by rule made under s. 95 after making such deduction as the Local Government may approve, to meet any expenses incurred in connexion with the collection of the tax (3) The owner or agent of the owner of every vessel referred to in sub-s. (1) shall prepare and deliver, or cause to be prepared or delivered, to the Chairman, each quarter, a return, in the form prescribed by rule made under s. 95, of all passengers carried by such vessel, by whom the tax imposed by that sub-section is payable: and shall subscribe, at the foot of such return a declaration of the truth thereof. 3. At the hearing of the appeal, Mr. Young on behalf of the appellants formally, property and I think inevitably, abandoned the contention raised by the appellants in their defence to the suit that s. 106(2), Government of India Act, 1915, applied in the circumstances obtaining in the present case. He conceded that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her officer may exercise all the powers conferred on, and shall conform to all rules of procedure prescribed for, a court executing a decree by the Code of Civil Procedure. 6. Provision is made in s. 55 for appeals to officers appointed by the Local Government with a power of review by the Principal Commissioner, and the jurisdiction of the civil Courts is restricted as provided in s. 55. Now, by Municipal and Local Government Notification No. 27 of 27th January, 1921, certain rules were passed by the Local Government pursuant to s. 95 of the Act. Section 95 provides: That the Local Government may make rules consistent with the provisions of this Act to provide for all or any of the following matters......... (7) The collection of the duty and taxes imposed by ss. 63 and 69 and the payment thereof to the Board. 7. Rule 1 runs as follows: The terminal tax on passengers shall be collected by means of a surcharge on fares by the owner or agent of the vessel by which the passengers are carried. 8. Rule 3 runs as follows: Every person collecting the terminal tax shall, within one month after the last day of March, June, September, December pay to the Chairman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Andhra Burma Steamship Company (1929) Ltd. In para. 6 of the written statement the defendants specifically pleaded that the plaintiffs are liable under the Rangoon Development Trust Act and rules made thereunder to pay to the defendant Board the said ₹ 9,508 collected as terminal tax by them. 11. On the suit being called for healing the learned Advocate who then appeared on behalf of the appellants stated that the determination of the case depended mainly on points of law, the only fact that was necessary to prove other than those set out in the pleadings being that the sum in suit had been received by the plaintiffs in respect of the terminal tax payable by passengers in a vessel or vessels owned by the Andhra Burma Steamship Company (1929) Ltd. Thereupon a letter of 20th May, 1931, written by Messrs. Cowasjee, Anklesaria and Jeejeebhoy on behalf of the plaintiffs to the Chairman of the Development Trust was tendered find accepted in evidence in which the plaintiffs admitted that the terminal tax was collected by them in their capacity as agent of the Andhra Burma Steamship Company (1929) Ltd., and the sum so-called together with the passenger money re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax. But the rules made by the Local Government under s. 95, Act V of 1920, must be consistent with the Act, and the question, therefore, that falls to be determined is: Are rr. 1 and 3 consistent with s. 69(2) of Act V of 1920? My learned brother Cunliffe. J., who tried the case held that they were not in the course of his judgment the learned Judge observed: I am of opinion that rr. 1 and 3 clearly ultra vires of the Act. They are ultra vires because the appropriate s. 69 on which they are based and with which, in law, they must be consistent, does not mention on agent as being liable to collect or pay the tax in question. The duty of collecting and remitting the tax is thrown upon the owner alone. It is true that sub-s. 3, s. 69, does mention the duty of an agent to make a return of all passengers, but in no other connexion does the Act impose a liability upon an agent, but only upon the owner of the steamship. 15. In so holding the learned trial Judge in my opinion placed the true construction upon s. 69(2). It is to be observed that s. 69(3) which prescribes the duty to make a return of the passengers carried by the vessel imposes the obligation to make the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of Parliament says that AB shall pay a sum of money, and that rules may be made consistent with the Act, and a rule is made that C D shall pay the money, will that rule be consistent with the Act? The learned Advocate adroitly attempted to meet that question by replying that the answer depended upon whether AB and CD were the same person but it is conceded that this case was proceeded on the footing that the respondents and the Andhra Burma Steamship Co. (1929) Ltd., are different entities, and when pressed for an answer the learned Advocate perforce gave the only answer which common sense would allow, namely that such a rule would not be consistent with the Act. 17. Now s. 69(2) provides that the owner of the vessel shall collect and pay the tax. The rule provides that the owner or the agent of the vessel shall collect and presumably pay the tax. In my opinion, it is manifest that r. 1 and r. 3 pro tanto are inconsistent with s. 69(2) and ultra vires. It follows that the respondents, who are sued and sued only as agents of the Andhra Burma Steamship Co. (1929) Ltd., are not liable for the payment of the terminal tax. 18. Further and different questions would have arisen i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute or recovering a valid demand upon the fulfillment of a condition precedent and the condition precedent to the vesting of jurisdiction in the special tribunal has not been fulfilled, all the proceedings before that tribunal are null and void. Bhalkishen Das v. Simpson 25 C. 833 : 25 I.A. 151 : 2 C.W.N. 513 : 7 Sar. P.C.J. 363 (P.C.) Mahomed Jan v. Gaga Bishun 10 Ind. Cas. 272 : 38 C. 537 : 38 I.A. 80 : 15 C.W.N. 443 : 9 M.L.T. 446 : 8 A.L.J. 480 : 13 C.L.J. 525 : 13 Bom. L.R. 413 : (1911) 2 M.W.N. 477 : 21 M.L.J. 1248 (P.C.), Harendra Kumar Roy Chowdhuri v. Secretary of State for India 115 Ind. Cas. 45 : A.I.R. 1928 Cal. 803 : 55 C. 1355 at p. 1359 : 33 C.W.N. 385 (P.C.); Saraswati Bahuria v. Surajnarayan Choudhury 130 Ind. Cas. 676 : A.I.R. 1931 P.C. 57 : 10 Pat. 496 : 35 C.W.N. 444 : 60 M.L.J. 350 : (1931) M.W.N. 369 : Ind. Rul. (1931) P.C. 84 : 53 C.L.J. 307 12 P.L.T. 357 (P.C.) and Krishna Chandra Bhowmick v. Pahna Dhana Bhandhar Co. Ltd., 136 Ind. Cas. 410 : A.I.R. 1932 P.C. 61 : 59 I.A. 68 : 36 C.W.N. 277 : 55 C.L.J. 62 : Ind. Rul. (1932) P.C. 106 : 62 M.L.J. 421 : 35 L.W. 842 : 59 C. 1034 (P.C.). In Balkishen Das v. Simpson 25 C. 833 : 25 I.A. 151 :: 2 C.W.N. 513 : 7 Sar. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings that have been initiated against them by the appellants is founded on fact,. Now, to what relief are the plaintiff-respondents entitled? The learned trial Judge came to the conclusion that the plaintiffs were entitled under s. 45, Specific Relief Act, to an order in the nature of a mandamus:- Ordering the trustees of the Rangoon Development Trust to collect the terminal tax in question according to the law laid down in s. 69(2) Rangoon Development Trust Act, and in no other manner. 21. It must not be taken because this court will not order a mandamus in the circumstances obtaining in the present case that I have any doubt that the learned Judge correctly held that an order in the nature of a mandamus would lie against the trustees of the Development Trust under s. 45, Specific Relief Act. If it were necessary to hold I should agree with the view expressed by the learned trial Judge (Alcock Ashdown Co. v. Chief Revenue Authority, Bombay 75 Ind. Cas. 392 : A.I.R. 1923 P.C. 138 : 50 I.A. 227 : 47 B. 742 : 241 A.L.J. 689 : 25 Bom. L.R. 920 : (1923) M.W.N. 557 : 23 M.L.T. 267 : 45 M.L.J. 592 : 18 L.W. 918 : 39 C.L.J. 302 : 28 C.W.N. 762. But an order under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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