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TMI Blog1908 (4) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 300 a month at 1 per cent, or ₹ 9 a quarter. His contention was that the assessment on him personally ought to be on ₹ 150 only, the amount which he may be taken to have spent in the Municipality, The Judge agreed with this view and gave judgment accordingly. A rule has been granted to show cause why the decree should not be set aside and the Plaintiff's claim allowed in full It has been suggested before us on behalf of the Petitioner that the present question is merely the amount of the assessment that has been made, and that under sec. 116 this is not a matter that can be dealt with by a Civil Court. It is hardly necessary to discuss the contention in view of the decisions in Navadip Chandra Pal v. Purnananda Saha 3 C. W. N. 73 (1898) and Kameshwar Pershad v. Chairman of the Bhabua Municipality I. L. R. 27 Cal. 849 (1900), where it is laid down that a remedy may be sought in a Civil Court against an action of a Municipality that is ultra vires , and that the taxation of a man in respect of property and circumstances outside the jurisdiction of the Municipality is ultra vires . The principle is well recognised in English law. Cf, Nando Lal Bose v. Corporation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o it the meaning that it has in such a phrase as easy circumstances meaning the whole of his position in life from an economical point of view. It then becomes necessary to consider all his expenses and liabilities and allowance must be made for debts and possibly for improvident habits. This may lead us a good deal beyond the bounds of the Municipality, and I find it impossible to suppose that it can have been intended that matters such as these should form a basis of taxation. On the other hand, It may very well be that property does not Include all a man's wealth and that it is at nothing less than his total wealth that this section is aimed. Are voluntary offerings to a priest property ? I should Imagine not. But their regular receipt would surely be included in a man's circumstances, although they may not for that reason only be a proper subject for a tax. Other states of fact may easily be supposed where a man's resources extend beyond his property, and the word circumstances is apt for describing them. Taking the word in this sense it offers in conjunction with property a fairly definite basis for taxation. It has been argued that It cannot have been inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge overruled the preliminary objection taken on behalf of the Plaintiff and upon the merits decided in favour of the Defendant. The rule now under consideration was thereupon issued by this Court at the instance of the Plaintiff and the learned vakil, who appears in support of it, has called in question the propriety of the order of the Court below on two grounds, viz., first, that it was not competent to the Court below and is consequently not competent to this Court to question the legality of the assessment and, secondly, that upon the merits, the assessment ought to be treated in conformity with the provisions of sec. 85 of the Bengal Municipal Act. 6. As regards the first of these objections, reliance is placed by the learned vakil for the Petitioner upon sec 116 of the Bengal Municipal Act which provides that no objection shall be taken to any assessment or rate in any other manner than in this Act is provided. It is contended that a remedy by recourse to a regular suit in the Civil Court for cancellation of the assessment or by way of a proper defence to an action by the Municipality in the Civil Court for recovery of assessed taxes is not expressly mentioned as a possi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. J., relied, in support of this position, upon the principle deducible from, the cases of Rex v. Moreley 2 Bur. 1041 (1760) and Rex v. Plouright 3 Mad. Rep. 95(1881) which show that the distinction recognised between a case in which the corporation has acted within its powers but probably exercised an erroneous discretion and another in which the corporation has acted in contravention of its powers is analogous to the distinction between an error of fact and an error of law. To put the matter in a different way the Civil Court is not called upon to try the merits of the question but to see whether the authorities possessed of limited jurisdiction have exceeded their bounds. A similar view has been taken in the English Courts in more recent cases : Ex-Bradlaugh 3 Q. B. D. 509 (1878) and Beg v. Bradley 17 Cox. C.C. 739(1877), and the provisions of sec. 220 of the Municipal Corporation Act of 1882 (45 and 46 Victoria, Chap. 50) have been similarly interpreted. The principle applicable to cases of this description was elaborately examined by their Lordships of the Judicial Committee in Colonial Bank of Australasia v. Willan L. R. 5 P. C.417 (1874)., where it was pointed out by Sir Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this position and I am unable to hold that it is based upon any intelligible principle. The test is, as I have pointed out, whether the assessment is or is not in conformity with the statutory provisions. If it is not, it does not enjoy any security from collateral attack. If the assessment is open to objection on the ground of lack of jurisdiction, which, be it remembered, has to be exercised in conformity with the statute, it is open to collateral attack [Muir v. Bardstown 87 S. W. 1096 (1905)]. The essence of the matter is that the action of the Municipality is in its nature quasi-judicial, and is not subject to collateral attack except upon the ground of fraud, actual or constructive, or on the ground of exercise of a power not conferred by the statute. If errors or irregularities are committed, they must be corrected in the mode appointed by the statute and, if not so corrected, they become conclusive, for Courts have not the power to control the quasi-judicial authority in a matter of discretion. But when the assessment proceeding is in clear violation of the provision of the statute, the Court has jurisdiction to afford relief. It follows consequently that the first ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Legislature, the phraseology might have been appropriately made different, and one would expect that if the test intended was not what is earned, but what is spent, the statute would have expressly so provided, In the same way, if it was intended that a deduction should be made, either for the expenses of the rate-payer or for his indebtedness or for possible insolvency, the exemption would probably have appeared on the face of the statute. On the other hand, if we look to sec. 92 of the Bengal Municipal Act we find that circumstances is used as equivalent to means which indeed is given in the Oxford Dictionary, Vol. 2, page 435, as one of the ordinary significations of the term, circumstances which is condition or state as to material welfare, or means. I am unable to bold therefore that the word circumstances was introduced in sec. 85 to restrict the term property. The intention on the other hand, seems to have been to widen the Scope of the section so as to make taxable what might perhaps be not properly comprised under the term property and at the same time ought not to escape assessment. I feel no doubt In this particular case that the property of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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