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TMI Blog1947 (1) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee not was rightly made. The assessee has now come up on appeal to this Court. 4. Premises No.4 Dum Dum Road, which is the subject-matter of assessment, comprises a total area of 111 bighas of land, including within it 42 residential houses, an institute, a playground, tennis courts, recreation fields, bowling green spare grounds, roads and tanks. Mr. Mitchell who is the Assistant Manager of the Cossipore Gun and Shell Factory states in his deposition that the land was acquired by the Government for the purpose of erecting quarters for the officers and employees of the Cossipore Gun and Shell Factory. Of the 42 residential buildings 22 are class VI quarters each carrying a rental of Rs. 125 per month, 16 are class VIII quarters for each of which the monthly rent payable is Rs. 75, while the remaining four are class IX quarters for which the occupier has to pay a rent of Rs. 50 per building per month. Some of the houses are allotted to the officers of the Gun Factory and they pay rents as stated, above subject to maximum of 10 per cent, of their salary. The subordinate employees are allowed to occupy these quarters free of rent while a few of the buildings are let out to outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : The essence of The matter, I thin, is that the enjoyment which the minister has of this house, the enjoyment in the sense that he uses it as a dwelling house and therefore in the sense that it is a benefit to him, is subsidiary and ancillary. He dwells in the house, not for his own convenience we do not know in this case whether it would have been more convenient for him to live in a house or in a residence of a simpler character; but in fact he lives there for the purposes of the Church as part of the obligation which he owes to the Church, as part of the service, and under the compulsory requirement of the Church, as it is said, whether it is suitable for him or not, in order that he may perform his duties. Under those circumstances the authorities as well as the principles which have been laid down, to my mind, involve the view that he is not the occupier for revenue purposes. 8. On the other hand, if residence is merely optional or is a matter of convenience to the employee and is not required for the better or more efficient performance of his service the occupation will be deemed to be that of a tenant and riot of a servant. In Smith v. Seghill Overseers (1875) 10 Q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not prevent the servant from being a tenant; his possession is that of a tenant unless he is required to occupy the promises for the better performance of his duties though his residence is not necessary for he purpose or if his residence there be necessary for the performance of his duties, though not specifically required. 9. In the last passage their Lordships of the Judicial Committee reiterated the observation of Brett J. in Fox v. Dally (1875) 10 G.P. 285 at p. 295. In that case a Sergeant of a Militia lived in a house assigned to him close to the storehouse for arms and built expressly for the accommodation of men looking after the stores. He could not leave the house without the permission of the commanding officer but he could perform his duties equally well if he were living elsewhere, which he could do with his master's permission. It was held that he was not occupying the house as a tenant and was not entitled to vote. 10. We will now proceed to examine the facts and circumstances of this case in the light of the principles laid down above. The evidence adduced in this case makes it perfectly clear that it could not, have been intended by the Government that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gun and Shell Factory is concerned and it is not attempted to be carried into practice, The fact remains that not even half of the subordinate staff could be accommodated in these quarters and this witness admits that it is a matter of indifference to the Factory Manager whether the employees live in the premises or at a distant place. Mr. Kelly clinches the matter when he says that there is neither any advantage nor any great disadvantage to have half the employees of the Factory near about the Factory. The fact that there are clubs and play grounds within the premises is to our mind, not matter at all. It might show that the Government are not unmindful of the health and comforts of the employees but from that it cannot be argued that the residence in these quarters is in any way ancillary to the work of The workmen or required for the better performance of their duties. It is for the workmen to decide, as Mr. Mitchell himself says as to whether they will feel happier in these quarters or elsewhere outside this place. Mr. Basu laid considerable stress upon the evidence of Mr. Mitchell when he says that for administrative purposes it is desirable that the staff should be as near a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that of a tenant and not of a servant. In the present case where the employees are servants of the Grown a strict contract of service in the eye of law may not be possible but we think that the arrangement relating to residence and payment of house allowance could be regarded as an independent arrangement separate and distinct from the terms of the service. By allowing its officers and men to occupy the buildings for certain consideration, a tenancy, in our opinion, is created though the exact nature of the tenancy does not require determination in the present case. As we have said already, the occupation of the employees cannot be said to be that of servants. In our opinion where a right to the exclusive use of the premises is given to the occupiers they are not in a position of licensee either. The conclusion is irresistible that they are tenants and the premises are let out to them within the moaning of Section 127, Calcutta Municipal Act. 14. Our attention has been down to certain rules for quarters and payment of rent which are applicable to the Army Department. How far these rules, are applicable to the present case itself a debatable point and neither party has been able ..... X X X X Extracts X X X X X X X X Extracts X X X X
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