Judgement

Appeal (No. 86 of 1920) from a judgment and decree of the High Court (March 18, 1919) reversing a decree of the Subordinate Judge, Second Court, of 24 Parganas.

The suit was brought by the appellants. The sole question arising on the appeal was whether a tank belonging to the appellants and used in connection with the supply of water to Calcutta, was " machinery " within the meaning of s. 101 of the Bengal Municipal Act (Ben. Act III.

of 1884) so as to be excluded in assessing the holding upon which it was for the purpose of municipal rates under that Act. The tank and its operation are described in the judgment of the Judicial Committee.

The Subordinate Judge held that the tank was "machinery" within the meaning of the section.

On appeal to the High Court the learned judges differed, Chatterjee J. being of opinion that the appeal should be allowed, and Walmsley J. that it should be dismissed. The appeal consequently stood dismissed.

The present respondent preferred a further appeal under the letters patent. The appeal was heard by Fletcher, Beacroft and Greaves JJ. A majority consisting of the last two named judges held that the tank was not " machinery " and that the appeal should be allowed. Fletcher J. dissented. The proceedings in the High Court are reported at I. L. R. 46 C. 910.

1921. June 21. Macmorran K.C., Dunne K.C. and Latter for the appellants. The balancing tank was " machinery " for the purpose of the section. It was an integral part of the machinery by which a constant supply of water to Calcutta was maintained. The view that the tank was " machinery " is strongly supported by the judgment of Lord Davey in Chamberlayne v. Collins. (( 1894) 70 L. T. 217.) [Reference was also made to Laing v. Bishopwearmouth (( 1878) 3 Q. B. D. 299.); Auckland Corporation v. Auckland Gas Co. ([ 1918] N. Z. L. R. 1028.); and In re The Income Tax Acts. ([ 1905] Vict. L. R. 185, 192.)]

Konstam K.C. and Kenworthy Brown (De Gruyther K.C. with them) for the respondent. The tank was not " machinery " any more than a natural reservoir situated on a hill would have been. The only force which the tank brought into play was the natural force of gravity. All mechanical application of force to the water took place before it reached the tank. It could only be described as " machinery" in a metaphorical sense ; that is indicated by the appellants describing it as forming part of a system of machinery. The switchback railway case is distinguishable.

Macmorran K.C. replied.

July 12. The judgment of their Lordships was delivered by

LORD ATKINSON. This is an appeal against the decree of the High Court of Judicature at Fort William in Bengal dated March 18, 1919.

The suit out of which this appeal has arisen was instituted in the Second Court of the Subordinate Judge of 24 Parganas by the present appellants against the present respondent. The question raised therein was whether the Cossipore and Chitpore Municipality had acted ultra vires in assessing the Corporation of Calcutta on an annual value of Rs. 25,000 in respect of a certain holding described in the plaint.

The Subordinate Judge answered this question in the affirmative and gave a decree for the plaintiffs, the Corporation of Calcutta. But his judgment was reversed by the final decree of the High Court above mentioned whereby the suit was dismissed with costs.

The present appeal has been preferred by the plaintiffs, the Corporation of Calcutta, from this decree

The appellants supply Calcutta with water, and for this purpose own two holdings of land, one situate at 71 Barrack-pore Road, Tallah, on which there is now and has for some time past been a reservoir and a pumping station. This piece of land has been assessed as a separate holding for the purposes of the Bengal Municipal Act, 1884 (Bengal Act III. of 1884), and the other, an adjoining holding, No. 1 Khelat Babus Lane, situate from 380 to 400 feet distant from the pumping station. It is with regard to the assessment of this