A tenant is not liable for payment of municipal tax without notice and mutation of his name in the relevant records of the municipality, and a resolution passed by the Municipality under Section 99(b) of the Bihar and Orissa Municipal Act, 1922, is not sufficient to saddle the tenants with liability to tax without any further action.

Kanhaiya Singh, J.

1. These are two applications under Sec.25 of the Provincial Small Cause Courts Act against the decisions of the Small Cause Court Judge decreeing two suits of the Bhagalpur Municipality for recovery of municipal tax in respect of two holdings. Defendants Nos. 1 to 3 are the landlords of these holdings and defendant No. 4 is the tenant under them. The landlords did not enter appearance, though duly served. Defendant No. 4 alone contested the suits. His defence was that the landlords were the owners of the holdings and were recorded in the Assessment List and the Demand Register, that he was a mere occupier and not an owner of the holdings and was never assessed with tax, nor was any demand made upon him and that he was, therefore, not at all liable to pay the taxes claimed in the two suits.

2. The learned Small Cause Judge overruled the defence and decreed the suits ex parte against defendants Nos. 1 to 3 and on contest against defendant No. 4. Now, the latter has come up to this Court in revision.

3. The facts as admitted by the witnesses for the municipality, about which there is now no longer any controversy, are these : The two holdings consist of culturable lands and are under crop. Defendants Nos. 1 to 3 in both the suits are the landlords of these holdings and defendant No. 4, who is the petitioner before us, is the occupancy raiyat and pays rent to them. He himself cultivates the lands and receives no rent from anybody else. The holdings contain no buildings at all. In the municipal records the landlords, namely, defendants Nos. 1 to 3, were recorded as the owners of the holding and their names appear both in the Assessment list and in the Demand Register. They have been paying municipal taxes so far. The petitioner was never assessed with municipal tax and his name was not mutated in the Assessment List and the Demand Register. He never paid any tax at all nor was any demand for tax made upon him before the institution of these suits. Subsequently, on the application of Sri Basant Lal and others and in exercise of the powers vested in them under Section 99(b) of the Bihar and Orissa Municipal Act, 1922, the Commissioners at a meeting on 31-7-1950, passed the following resolution :

"In view of the provisions made in Section 99 of the B and O Municipal Act this board hereby resolved that in respect of Agricultural and Horticultural" holdings wiihin the limit of Municipality tenants and not the landlords should be regarded as Owner of the holding as provided in Sec.100 of the Act and the tenants should be assessed accordingly." (exhibit 1 in both the suits).

On the strength of this resolution, defendant No. 11 is sought to be made liable for the municipal tax. But the admitted facts are that the notice of this resolution was not served upon the petitioner. His name was also not mutated in the Assessment List or the Demand Register, and there was never any fresh, assessment of the holdings so far as he was concerned. Notwithstanding this, resolution, the landlords aforesaid appeared as assessees in the municipal records prior to the institution of these suits.

4. On these facts, an argument was advanced on behalf of the petitioner that he was not at all liable for the payment of the municipal tax. The submission of the learned counsel on his behalf is that unless he was assessed with municipal tax and his name was mutated in the Assessment list, he had no liability for payment of the municipal tax. This contention, in my opinion, is well founded and sound in law and must be accepted as correct. It is against all canons of justice to impose, as in the instant case, tax upon any person without notice I have examined the provisions of the Bihar and Orissa Municipal Act, 1922, and I do not find any thing therein which subjects the petitioner or for the matter of that any person residing in the municipality, to liability for tax without notice and without mutation of his name in the relevant records