JUDGMENT

Stephen, J. - This is a curious and important case turning on the proper construction of sec. 85 of the Bengal Municipal Act. The case was tried by the Small Cause Court Judge of Giridhi. The Plaintiff was the Chairman of the Giridhi Municipality, the Defendant a Deputy Magistrate engaged on Land Acquisition work and having his headquarters and living at Giridhi. His salary was Rs. 300 a month, of which he spent 150 on the maintenance of his family and like expenses, including the payment of premiums on a life policy, outside the boundaries of the Municipality. He occupied one house as an office and another chiefly as a residence. An assessment was made on the owner of the houses leased on their rental. This was withdrawn on objection being made. But the Defendant was assessed on his full income of Rs. 300 a month at 1 per cent, or Rs. 9 a quarter. His contention was that the assessment on him personally ought to be on Rs. 150 only, the amount which he may be taken to have spent in the Municipality, The Judge agreed with this view and gave judgment accordingly. A rule has been granted to show cause why the decree should not be set aside and the Plaintiff's claim allowed in full It has been suggested before us on behalf of the Petitioner that the present question is merely the amount of the assessment that has been made, and that under sec. 116 this is not a matter that can be dealt with by a Civil Court. It is hardly necessary to discuss the contention in view of the decisions in Navadip Chandra Pal v. Purnananda Saha 3 C. W. N. 73 (1898) and Kameshwar Pershad v. Chairman of the Bhabua Municipality I. L. R. 27 Cal. 849 (1900), where it is laid down that a remedy may be sought in a Civil Court against an action of a Municipality that is ultravires, and that the taxation of a man in respect of property and circumstances outside the jurisdiction of the Municipality is ultravires. The principle is well recognised in English law. Cf, Nando Lal Bose v. Corporation of Calcutta I. L. R. 11 Cal. 275 (1885), and a derogation from it by the legislature is not to be lightly inferred. I am, therefore, of opinion that the Munsif bad jurisdiction to deal with this case in which the jurisdiction of the Corporation of Giridhi to tax the Plaintiff in respect of certain property was called in question, and therefore of course we can exercise our revisionary jurisdiction over his decision.

2. On the merits then what we have to decide is the meaning of sec. 85 (a) of the Municipal Act. The section empowers the commissioners to impose " (a) a tax upon persons occupying holdings within the Municipality according to their circumstances and property within the Municipality," and the question argued before us turns on the meaning to be attached to the words " circumstances and property." Is it the case that as far as the Plaintiff's income is used as a test of his circumstances and a measure of his property only that part of his income is to be considered which he spends in the Municipality 1 Shortly, is he to be taxed on what he gets or on what he spends in the Municipality ? The question seems to be one of first impression as no authorities have been quoted before us nor are we aware of any. The case of Kameshwar Pershad v. Chairman of the Bhabua Municipality I. L. R. 27 Ca 849 (1900) was decided on this section; but the decision does not touch the present point. It has been suggested that sec. 87 (d) may throw light on the subject, where it is enacted that a list is to be drawn up showing an assessed's holding, property and profession or business, an this may show that his holding and profession or business are his circumstances, but this brings us no nearer to the solution of the present question, as the question is how much of his circum-stances connected with his business is within the Municipality.

3. On the words themselves his " property " seems to mean moveable and immoveable property in the widest sense and to include certainly any sal