JUDGMENT

Asutosh Mookerjees, Acting C.J.

1. This is an appeal by the plaintiff in a suit for declaration that a tax assessed by the Taki Municipality upon him u/s 85 of the Bengal Municipal Act, 1884, is in contravention of law and is consequently null and void.

2. The Court of first instance upheld the contention of the plaintiff. Upon appeal, that decision has been reversed by the District Judge.

3. The determination of the question in controversy depends upon the interpretation of Section 85 which provides for the imposition by a Municipality of two classes of taxes, tamely, "(a) a tax upon persons occupying holdings within the Municipality according to their circumstances and property within the Municipality" and "(b) a rate on the annual value of holdings situated within the Municipality." The tax in the resent case has been imposed under Clause (a).

4. The contention of the appellant to, that be assessment has been made according to his circumstances and property, not within but outside the Municipality. In our opinion, the facts found leave no room for doubt that this contention is well founded.

5. The appellant has been assessed on the basis of a valuation of his circumstances and property at the sum of Rs. 1,440. but t is plain, from the facts set out in the judgment of the District Judge, that he could not have been assessed on the basis of a valuation exceeding Rs. 250, if his circumstances and properly within the Municipality were alone taken into account. He holds his family dwelling house in Taki jointly with his nephews and looks after the property.

6. The family of his son, who is a Deputy Magistrate sometimes lives with biro. He and his two co-sharers get Rs. 660 as the net income of the property within the Municipality; this) gives him Rs. 220. It is further conceded that his circumstances within the Municipality are worth another Rs. 30. But the Municipality has assessed him on Rs. 1,440 by taking into account his circumstance outside the Municipality, The question is, whether the Municipality was competent to take such circumstances into account.

7. The argument for the Municipality in substance is that, for practical purposes, an assessing body will consider the style of living of the assessee within the Municipality which they control, on the theory that a man's means can ordinarily be fairly and reasonably computed upon a consideration of his mode of life. It is manifest that this is an unsound basis for assessment, and if the claim of a Municipality to make assessment on these grounds were upheld, we should have to omit the words within the Municipality" from Clause (a). The Municipality has argued in effect that Clause (a) has the same effect as if it had a right to impose a tax upon persons occupying holdings within the Municipality according to their circumstances and property, irrespective of the place where these circumstances and property might exist. A similar contention was pat forward in the case of Chairman of Giridih Municipality v. Srish Chandra Mozumdar 35 C. 859 : 12 C.W.N. 70 : 7 C.L.J. 631. There the question arose whether the resident was to be taxed on what he got or on what be spent in the Municipality. It was held that the measure of his liability was what he got and not what he spent within the Municipality, In that case, the contention was pat forward that the tax should be determined on what he spent in the Municipality for the purpose of reduction of the assessment. In the present case, the same test has been applied by the Municipality to increase the amount of the assessment, because here the appellant spends more within the Municipality than what his property and circumstances within the Municipality are worth. The decision in Chairman of Giridih Municipality v. Srish Chandra Mozumdar 35 C. 859 : 12 C.W.N. 70 : 7 C.L.J. 631 accepted as correct the role laid down in Rameshwar Pershai v. Chairman of the Bhobua Municipality 7 C. 849 : 14 Ind. Dec. (N.S.) 566, namely, that an assessment o