P L D 1952 Dacca 12 (PLP)

GUHA, J.

These are two appeals on behalf of the same plaintiffs against two decisions of the learned Subordinate Judge; 1st Court, Faridpur, reversing the decisions of the learned Munsif, Goalundo, in two suits tried analogously. Second Appeal 1019 of 1944 arises out of title suit No. 192 of 1941 and Second Appeal 1020 of 1944 arises out of money suit No: 21 of 1942. The first suit is for a declaration that the imposition of water-rate of Rs. 20-8 per quarter upon the holding No. 119 of Ward No. IV of Rajbari Municipality, which is plaintiff's holding, is ultra vires, illegal and unautho?rised and as such not binding upon the plaintiff, for refund of a sum of Rs. 47-8 annas paid under protest and for a permanent injunction restraining the defendant Municipality from enforcing this assessment in future. The suit No. 21 of 1942 has been instituted by the plaintiff for recovery of damages estimated at Rs. 1,000 for injury alleged to have been caused to the plaintiff company by illegal issues of a distress warrant by the Municipality against the plaintiff for recovery of the water-rate in dispute and other taxes. The aforesaid two suits have been tried analogously in all the three Courts. I shall deal, however, with the two appeals separately in this judgment. The question raised in the first appeal turns upon the meaning of the expression "water available to the public" in section 125 (1) (b) of the Bengal Municipal Act (XV of 1932). There is no reported decision on this point. S. A. 1019 of 1944 arises out of title suit No. 192 of 1941. The plaintiff, Goalundo Ice Association Ltd., alleges that the nearest Municipal hydrant is set upon a land owned and possessed by the Ease Bengal Railway and the plaintiff and the public have no access to that without leave of the railway authorities and on several occasions the railway authorities have refused permission to the plaintiff company any right over the railway land, that the plaintiff cannot, as of right, have any access to any Municipal hydrant in the neighbourhood, that in spite of notice of this suit issued by the plaintiff to the defendant Municipality under section 535 of the Bengal Municipal Act, the defendant Municipality issued a distress warrant for recovery of the alleged water-rate and that on the 14th September 1941, the plaintiff company has paid under protest the sum of Rs. 45 as water-rate and Rs. 2 as fine. Hence this suit for a declara?tion that the imposition of water-rate of Rs. 22-8 per quarter upon the holding No. 119 of Ward No. IV, of the plaintiff, is ultra vires, illegal and unauthorised and as such not binding on the plaintiff, for refund of a sum of Rs. 47-8 annas paid under protest and for permanent injunction restraining the defendant Municipality from enforcing this assessment in future. The defence of the defendant Municipality is that the plaintiff has no cause of action, that the issue and execution of the distress warrant are quite legal, that the assessment of water-rate is legal and in conformity with the provisions of land and is not ultra vires; that the suit is barred by limitation and on the principles of estoppel, waiver and acquiescence, that the Civil Court has no jurisdiction to entertain this suit, that the plaintiff company is legally bound to pay the water-rate in dispute which has been assessed according to the provisions of the Bengal Municipal Act and that the plaintiff is not entitled to get any decree for injunction or any other relief. The learned Munsif, who has decided the suit, has held that under section 125 of the Bengal Municipal Act (XV of 1932) the Rajbari Municipality has jurisdiction to levy water?-rate but imposition of such rates is subject to certain restrictions and conditions in section 125 (i) (b), that is, (1) that any part of the holding to be assessed with water-rate must be situated within a radius to be fixed by the Commis?sioners at a meeting from the nearest stand-pipe or other supply of water and (2) that the said stand-pipe or supply of water should' be available to the public, that the defendant Muncipality has fixed the radius of one-fourth of a mile from the nearest stand-pipe, that there are five municipal hydrants within a radius of ? of a mile from the plaintiff's holding, namely, (a) stand-pipe near R.S.K. Institution is at a distance of 360 ft., (b) haydrant near the house of Kali Kumar Das is 426 ft. off, (c) hydrant near Kalibari is 804 ft. off, (d) hydrant near Station Master's quarters is 630 ft. off, and (e) hydrant near Loco Foreman's quarters is 1284 ft. off, all of which are within one-fourth of a mile from plaintiff's holding and of them (a) and (b) are by the side of Municipal road and (c),(d) and (e) are on railway lands and the hydrants (a) and (b) cannot be approached except over railway lands and so the plaintiff cannot have any access to any of the Municipal stand-pipes excepting going over railway lands and that once every year all passages over railway lands are closed to the public in order to prevent right of way being established over these passages in favour of the public, that as such the afore?said hydrants cannot be approached by the public as of right and so the hydrants cannot be taken to be "available to the public" within the condition laid down in section 125 (i) (b) of the Bengal Municipal Act and hence the water-rate imposed upon the plaintiff's holding is wholly illegal, unauthorised and ultra vires and the learned Munsif decreed the suit in full declaring that the imposition of water-rate of Rs. 22-8 annas per quarter upon the plaintiff's holding is illegal unauthorised, and ultra vires and not binding on the plaintiff and that the plaintiff do get refund of Rs. 47-8 from the defendant and that the defendant be permanently restrained from enforcing the assessment of water-rate in question against the plaintiff. That on appeal by the defendant, the learned Subordinate Judge. First Court, Faridpur, has reversed that decision. Hence this appeal by the plaintiff. Mr. Nirmal Chandra Nandi for the appellant argues that the assessment of water rate upon the holding of the plaintiff is illegal, unauthorised and ultra vires in as much as there is no stand-pipe within a radius of one-fourth of a mile from the plaintiffs holding, which is "available" to the plaintiff as a member of the public, has no access and that the circumstances is entitled to get a refund of the sum of Rs. 47-8 annas paid on account of water-rate and fine. Mr. Nandi contends that the expression "available to the Public" in section 125 (1) (b) of the Bengal Municipal Act means available to the public as of right and without any hindrance, obstruction or limitation of that right of the public at any time in the year of assessment. P. C. Pakrashi for the respondent contests that proposition. Section 123 of the Bengal Municipal Act empowers the Commissioners of a Municipality to impose taxes and section 125 provides for restrictions on the imposition of the water and lighting rates. Sections 123 and 125 of the Bengal. Municipal Act so far as are relevant for the present purpose run as follows :? Section 123. "(1) the Commissioners may, from time to time at a meeting convened expressly for the purpose, subject to the provisions of this Act, impose within the limits of the Municipality the following rates, taxes, tolls and fees, or any of them,? (a) a rate on holdings situated within the Municipality assessed on their annual value ; (b) a water-rate on the annual value of holdings ; Section 125. "(1) The imposition of a water-rate or of a lighting rate shall be subject to the following restrictions, namely,? (b) that the rate shall not be imposed on land used exclusively for purposes of agriculture, or on any holding consisting only of tanks, or, in the case of the water-rate on any holding, no part of which is within a radius, to be fixed by Commissioners at a meeting, from the nearest stand pipe or other supply of water available to the public The question for my determination depends upon what is the meaning of the expression "Stand pipe or other supply of water available to the public" in section 125 (1) (b) of the Bengal Municipal Act. Section 125 of the Act confers upon the Commissioners of a Municipality jurisdiction to levy water? rate on holdings within the Municipality and section 125 (1)(b) lays down two essential prerequisites for imposition of water? rates on holdings, namely, (1) that any part of the holding to be assessed with water-rate-must be situate within a radius to be fixed by the Commissioners at a meeting from the nearest stand-pipe or other supply of water and (2) that the stand-pipe or supply of water should be available to the public. In determining the question I shall have to concern myself in giving effect to the language used and to the plain gram?matical meaning of the expression "stand-pipe or other supply of water available to the public" in section 125 (1) (b) of the Municipal Act in the light of the admitted facts of the case. It is well-established that in construing statutes the Courts are concerned to give effect to the plain meaning of the words and language of the statutes without concerning themselves into an enquiry about the police or the effect of the provisions. This is principal has been laid down by Their-Lordships of the Judicial Committee of the Privy Council over and over again. In Australian Alliance Assurance Co. Ltd. v. Attorney-General of Queensland (1917) A C 537 it has been observed :- "Their Lordships are not concerned with the policy of the Act nor can they find in the novelty of the provision or in the language of other parts of the Act sufficient ground for dis?regarding the plain words of the enactment." Sir Sinshaw Mulla in delivering the judgment of the Board in Nagendra Nath Dey v. Suresh Chandra Dey (1932) 59 I A 283 at page 288 observed : "But in construing such provisions equitable con?siderations are out of place, and the strict grammatical mean?ing of the words is, Their Lordships think, the only safe guide." In Pakala Narayana Swami v. Emperor (1939) L R 66 Lord Atkin in delivering the judgment of the Judicial Committee of the Privy Council said "hence the meaning of words is plain it is not the duty of the Courts to busy themselves with supposed intentions". Viscount Simon L. C. in delivering the judgment of the Board in the case of Emperor v. Benoari Lal Sarma and others (1944) L R 72 I A 57 = 49 C W N 178 (P C) was pleased to observe : "Again and again, this Board has insisted that in construing enacted words we are not concern?ed with the policy involved or with the results injurious or otherwise, which may follow from giving effect to the language used". It is therefore established on principle that where the enacted words are plain with well-defined meanings, entirely free from ambiguity of any kind, or any difficulty created by any conflict or repugnance or inconsistency in the words enacted, it is necessary to concern oneself to the actual strict grammatical meaning of the words and expressions and the tendency to import into the words and expressions what is not there or to otherwise depart from the words and expres?sions are to be consistently deprecated. In this case the defendant Municipality has fixed at a meeting held on the 28th June, 1924 by a resolution of Commis?sioners that for imposition of water-rate, the holding must be within a radius of one-fourth of a mile from the nearest stand?pipe. It has been found on evidence that there are 5 municipal hydrants within one-fourth of a mile of the plaintiff's holding and three of them are fixed in railway land and two of them stand by the Municipal road but the latter two and the other three cannot be reached without passing through railway land: The evidence in the case shows that the public use the railway roads and lands leading to these hydrants and that members of the public use these hydrants without any opposition from the railway authorities. The passages leading to the hydrants are allowed to the public and private individuals. From these Mr. Pakrashi contends that the plaintiff is liable to water-rate. But the railway authorities notified on the 31st July, 1941, that all these passages are closed to the public once in the year in order to prevent right of way being established over these passages in favour of the public and these passages are closed on the 1st of August every year. The passages were closed on the 1st August, 1941, and obstructions were put at the approaches to these passages on the 1st August, 1943, also. These show that the intention of the railway authorities is to prevent the public from acquiring any right of way over the railway lands and roads. Public right of way may be created by statute or it may arise out of dedication to the public use, which is usually founded on a, presumption derived from user on the part of the public and there must be and intention to dedicate. In this case the public have not acquired any right of way over railway lands by any express grant or by statute, nor there is any written agreement between railway authorities and the Rajbari Municipality that the railway authorities would not object to the user of the municipal hydrants on the railway lands or to the use of the railway lands for passage to reach the hydrants on municipal roads nor has the Municipality acquired the lands on which hydrants on railway lands stand nor any such dedication can be presumed from user of railway lands and roads. The fact that the approaches to railway lands are closed to the public one day in the year is sufficient to displace the presumption of dedication by user and is a sufficient indication that those lands are not meant for public use. The word "public" is nowhere defined. In the Pakistan Penal Code the word "public" is defined "to include any class of the public or any community." The word "public" as used in section 125 (1) (b) of the Bengal Municipal Act, therefore, means and includes every member of the public in general. If the plaintiff or if some members of the public, is or are deprived of using these hydrants as of right the hydrants cannot be taken to be "available to the public". "Public way" means every way which is common to the subjects of the State. " A well though situate in private ground, which is used gratuitously, and as of right, by the inhabitants in the vicinity for the purpose of drawing water, is a public well." Smith v. Archibald, 5 A C

484. Referred in Strond's Judicial Dictionary, 2nd Edition, Volume 3 page 1617. So this shows that unless the user of the hydrant is "as of right" it cannot be said that water is "available" from the. "nearest stand-pipe or other supply of water". The position, as appearing from the evidence in this case, is that the aforesaid hydrants cannot be approached by the public including the plaintiff "as of right ". The word "available" means " capable of being used " or "at one's disposal". Vide Oxford Dictionary. In Imperial Dictionary the word " available " means "capable of being used," "attainable" or "accessible". In Chamber's Dictionary "available" means "that one may avail one's self of", "utilise", "obtainable" or "accessible". So the word "available" in section 125 (1) (b) means "obtainable or attainable or accessible" as of right. In the facts of this case it cannot, therefore, be said that the plaintiff or any member of the public can have access to these five hydrants "as of right". The mere fact that the railway authorities do not oppose the public in using railway lands or using the hydrants do not indicate that the public have a right of way over railway lands "as of right" to reach the hydrants and draw water therefrom. It may be that the people use railway roads and railway lands to reach the stand-pipes on the municipal road and use the stand-pipes on the railway land by mere courtesy or leave and licence of the railway authorities but this leave or licence can be refused or withheld at any time. Let us take the case of occupier of a holding who draws water from the water tap of his neighbour within a radius of one-fourth of a mile, because his neighbour allows him to do so as a matter of courtesy or neighbourly feeling, by no stretch of imagina?tion .it can be aid that the occupier of the holding does so as of right and he can do so for all times. Simply because the occupier of the holding gets water from his neighbour's house pipe, it cannot be said that the Municipality is entitled to impose water-rate on the occupier of the former holding. The intention of the Legislature in enacting section 125 (1) (b) appears to me is that if the occupier of a holding can get his supply of water without any restrictions on his right to do so from within a radius of one-fourth of a mile of his holding, he is liable to water-rate to the Municipality, otherwise not. The occupier must be able to have his supply of water "as of right" and that right must not depend on the grace or favour of any other person and if this right is available to him as of right and without any restrictions of or limitations to the exercise of that right, the occupier is liable to pay water-rate. There cannot be a liability without a corresponding benefit as there can be no right without a corresponding obligation. The liability of the occupier of a holding to pay water-rate depends on the fact that he may get the privilege of getting a supply of water as of right and such right must not be dependent on the whims, caprice, mercy or grace of another. The right of the Municipality to impose water-rate on the occupier of a holding makes it obligatory on the part of the Municipality to make the supply of water available to him not depending on the caprice or grace of a third party. The intention of the Legislature is transparently clear from the provisions in section 125 of the Bengal Municipal Act. A rate-payer of a Municipality pays a tax because he enjoys a benefit supplied to him by the Municipality. The payment is for enjoyment of the benefit. Therefore when the Municipality imposes a tax on a rate?payer, it must secure or make available to him the benefit for such a taxation and this right to enjoy the benefit must be an unrestricted and unlimited one, enjoyable as of right. There?fore considering the matter in the light of the aforesaid obser?vations, facts and circumstances, I hold that none of the 5 hydrants, which lie within a radius of one-fourth of a mile from the plaintiff's holding, is available to the plaintiff, a member of the public, within the meaning of "available to the public" in section 125 (1) (b) of the Bengal Municipal Act (XV of 1932) and as such the defendant Municipality has no jurisdiction to impose water-rate upon plaintiff's holding is, therefore, illegal, unauthorised and ultra vires and is not binding on the plaintiff, and he is not liable to pay it. So the first contention of Mr. Nandi succeeds. The next contention of Mr. Nandi is that his client is entitled to get a refund of Rs. 47-8-0 (that is, water-rate Rs. 45 and warrant fee Rs. 2-8-0) which had been paid under a distress warrant issued after the plaintiff served a notice upon the Municipality under section 535 of the Bengal Municipal Act for institution of a suit for a declaration that the impo?sition of water-tax on plaintiff's holding was ultra vires, illegal and unauthorised. This contention of Mr. Nandi is sound because I have already held that the assessment of water-rate is, void ab initio and ultra vires and illegal. The plaintiff is entitled to get a refund of the above sum of Rs. 47-8-0, which had been paid under protect by the plaintiff as a distress warrant was issued. In view of my decision that the imposition of water-tax on plaintiff's holding is illegal, unauthorised and ultra vices, I hold that the plaintiff is entitled to an order that the defendant Municipality be permanently restrained from enforcing the assessment of water-rate in question against the plaintiff company. The result, therefore, is that this appeal is allowed and the judgment and decree of the lower Appellate Court are set aside and that of the Trial Court are restored and the defendant-res?pondent must pay the costs of the plaintiff-appellant in all Courts. S. A. No. 1020 of 194.4 arises out of Money Suit No. 21 of 1942 and is by the plaintiff. The plaintiff's case is that in spite of the notice of T. S. No. 192 of 1941 issued to the defendant under section 535 of the Bengal Municipal Act challenging the validity of assessment of water-rate of afo2esaid and in spite of legal tender of house and latrine taxes for two quarters of 1941-42, which was refused by the defendant; the defendant Municipality sent a man to realise the above taxes and also the water rate in dispute amounting to Rs. 168-12-0 and the said amount was tendered under protest but was refused, and the defendant executed a distress warrant on the 14th September, 1941 by attaching a type-writer of the plaintiff company and thereupon the plaintiff paid the said sum of Rs. 168-12-0 arid fine of Rs. 2-8-0 under protest and compulsion, of legal process, that the execution of the distress warrant was mala fide, illegal, without sufficient grounds and unauthorised and it had lowered the plaintiff company in the estimation of the people and. it had suffered in prestige and hence the suit for compensation amounting to Rs. 1,

000. The defence inter alia was that the assessment of water-rate and issue of distress warrant were in accordance with law, that no legal right of the plaintiff company had been infringed by issue of distress warrant, that the plaintiff bad not suffered in prestige and that the plaintiff was not entitled to any damages. The learned Munsif held that the issue of distress warrant was mala fide and illegal and by the issue of distress warrant the plaintiff had suffered in prestige and unnecessary harass?ment and annoyance had been caused to the plaintiff and awarded the plaintiff a sum of Rs. 100 as damages and decreed the suit in part with costs. On appeal by the defendant and cross-objection by the plaintiff as to the quantum of damages, the learned Subordinate Judge, First Court, Faridpur, allowed the appeal and dismissed the cross-objection and thus dismissed Money Suit No. 21 of 1942 in entirety. Hence this second appeal by the plaintiff. Mr. Nandi for the plaintiff-appellant contends that as the water-rate is illegal and ultra vires and as the plaintiff offered the amount covering the entire demand for house-tax, latrine ?tax and water-tax and that was refused and then a distress warrant was executed lowering the plaintiff in prestige, the plaintiff company is entitled to damages. Mr. Pakrashi for the respondent contends that in the facts and circumstances of this case, the plaintiff company is not entitled to any damages. Mr. Pakrashi argues that the water-tax assessed was legal and that the distress warrant was in accordance with law and was not mala fide as has been held by the learned Subordinate judge and so the plaintiffs suit should be dismissed. In order to decide the question raised in this case I need state here the facts found in the case. It is not disputed that the house and latrine taxes for the first and second quarters of 1941-42 were already due from the plaintiff and were in arrears on the 19th August, 1941. The water-rates, if liable under the law, for those two quarters, were similarly due and were in arrears on that date. The Municipality purporting to act under section 155 (2) of the Bengal Municipal Act issued a notice of demand with-respect to the house, latrine and water?-rates on the 19th August 1941 and it was served on the plaintiff on the 22nd August .1941. On the 3rd September 1941 the plaintiff issued a notice of Title Suit No. 192 of 1941 under section 535 of the Bengal Municipal Act, challenging the validity of the water-rate and the notice was received by the Municipality on the 5th September 1941. It is also an admit?ted fact and it is in accordance with law that no notice of demand may cover several bills provided a copy of each bill is attached to that notice. In this case several bills had been duly presented and that a copy of each bill had been attached with notice of demand and this is provided for in rule 70, which is a rule framed under section 122 of the Bengal Municipal Act, 1932 and was published by Notification No. 6499M, dated the 21st November 1935. It further appears that the plaintiff did not within 15 days of the notice of demand (that is within the 6th September, 1941) pay the said demand. The plaintiff did not take any steps in paying but remained content with the issues of notice of the suit to declare the water-rate illegal and ultra vires. The second paragraph of rule 70 framed under section 122 of the Bengal Municipal Act provides that "when 15 days shall have elapsed after the delivery of a notice of demand and the sum due is not paid within this period or sufficient cause is not shown to the Com?missioners for not paying the same, the Commissioners should issue a warrant of distress under section 156 of the Act." The Commissioners did not consider the notice of the suit under section 535 of the Act as a sufficient cause for non-payment and in the circumstances the Commissioners were within their legal rights to issue distress warrant for realisation of the amount of arrears due with costs according to the prescribed scale by issue of distress warrant and sale of movable properties in the event of non-payment within 15 days of date of service of the notice of demand, here in this case, within 15 days from 22nd .August 1941, or in the event of not showing sufficient cause for non-payment. After the issue of distress warrant in accordance with the prescribed law, the plaintiff wrote to the Chairman of Municipality on the 10th September 1941 that house and latrine-taxes were being tendered for payment with protest. It is admitted that no offer was made by that letter for payment of the water-rate due or the costs of the distress warrant. In reply to that letter the Vice-Chairman wrote on the 11th September 1941 that the Municipality could not accept taxes, which was short of the amount in the demand notice and requested the plaintiff to pay up the taxes, etc., as per demand to avoid unnecessary unpleasantness. That on the 13th September 1941, the plaintiff remitted the sum of Rs. 167-12-0 being the amount of house, latrine and water-rates in arrears under protest, but even then the costs of distress warrant according to the prescribed scale of fees had not been tendered. Again rule 70; prescribes that the officer entrusted with the attachment of defaulter's property shall make an attachment "if the demand as well as the fee prescribed by the law for the warrant expenses be not then satisfied". So far as the law goes the defendant was within its rights to proceed to realise the demand for taxes and warrant fees. The notice of demand cannot be said to be illegal, as I have pointed out above, because several bills had been presented with the notice of demand, as prescribed in rule 70 mentioned above. In the circumstances stated above it cannot be said that the defendant Municipality acted mala fide with the intention to harass the plaintiff or to lower its prestige in the eye of the public and to me it appears that the action of the Municipality in the circumstances of the case, is quite reasonable and bona fide. Again the alleged payment made by the plaintiff under protest cannot be said in law to be a payment. A payment to be an effective payment must be an unconditional payment and a payment under protest is not a legal payment. The defendant did not act illegally in the circumstances stated above in refusing to accept the amount tendered without the distress warrant fees, after the issue of distress warrant and after the expiration of the period of 15 days after service of notice of demand. The distress warrant was legal and it cannot be said to have been issued illegally and that it was ultra vires. Moreover there is no evidence that the defendant Municipality acted mala fide; whereas the evidence shows that the action of the Municipality is bona fide and is in accordance with law. So the only contention of Mr. Nandi fails. The result, therefore, is that this appeal fails and is dismis?sed with costs in all Courts payable by the plaintiff to the defendant. Leave under clause 15 of the Letters Patent is prayed for but refused. K. M. A.????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.