1. The plaintiff, Motihari Municipality, through the Vice-Chairman, brought a suit for arrears of municipal taxes in respect of holdings Nos. 91 (402 new), 73 (239 new) and 241 within the municipal limits of Motihari. The claim was for Rs. 1673-5-0 representing the accumulated arrears of taxes from April, 1942, to 31-3-1949. The plaint contains a detailed account of the dues and the payments made from time to time from 1942 onwards and it is shown that after making deductions of the payments made the total balance payable by the defendants would come to be the amount for which this suit was instituted.
2. The holdings referred to above represented the railway premises belonging to the O.T Railway which has a station at Motihari. The Dominion, of India through the Secretary, Railway Board, Central Government, New Delhi, and the General Manager, O.T Railway, Gorakhpur, were impleaded as defendants being liable to pay up the municipal dues in respect of the above, holdings owned by the railway at Motihari. It may be stated that according to the plaint the dues payable by the defendants represented the accumulation calculated at the original amount of taxes payable in respect of the railway property at Motihari prior to 1-4-1937, as well as the enhancements made by the municipality from time to time under the provisions of the Bihar Municipal Act.
3. The defendants made the payment at the old rate up to the end of the year, 1948, although there were arrears outstanding, but it was only in respect of the taxes for the quarter ending 31-3-1949, when demand was made by the plaintiff for payment that the railway authorities at Motihari showed their unwillingness to make the payment when notices under Section 80 of the CPC were served on the defendants and the present suit was duly filed. The case of the defendants ‘inter alia’ was that they were liable to pay taxes at the rate of Rs. 592-3-0 as they had been paying taxes at that rate all along. The plaintiff had no right to claim any enhancement in respect of the holdings owned and possessed by the defendants. The entire property of the B.N.W Railway, as the O.T Railway was called before, vested in the Central Government on 1-1-1943. The defendants were, accordingly, liable to pay at the rate which held good on 31-3-1937, in view of the provisions of Section 154 of the Government of India Act, 1935.
4. They stressed the fact that the B.N.W Railway might have paid over and above the rate of Rs. 592-3-0 per year as municipal taxes, but the payment should be held as not binding upon the railway. There was a general plea of exemption of the O.T Railway after its ownership vested in the Government from payment of any kind of municipal taxes in the absence of a notification to that effect of the Central Government. Further, a plea of limitation was also set up.
5. The learned Munsif dismissed the suit in so far as it related to the dues after 1-1-1943, although he passed a decree for the period prior to that date. He also passed a decree in favour of the plaintiff for arrears for the last quarter of 1948-1949 for a sum of Rs. 148-0-9. In the total, therefore, he passed a decree for a sum of Rs. 187-9-0 as payable by the defendants to the plaintiff. He held, however, that the plaintiff is not entitled to any taxes with respect to the suit holdings unless it is notified under Section 3 of the Railways (Local Authorities' Taxation) Act, 1941, in future.
6. The plaintiff preferred an appeal against that decision which was heard by the learned Additional Subordinate Judge, Motihari. The lower appellate court dismissed the plaintiff's suit in respect of the dues for holding No. 241 but passed a decree for the dues in respect of the remaining two holdings Nos. 91 and 73 in the result making the calculation on the basis of the agreed account as evidenced by Ext. 5. He passed a decree for a sum of Rs. 1656-9-0 against the Union of India.
7. The defendants have preferred this appeal in this Court against the judgment and decree of the learned Subordinate Judge. Learned Counsel for the appellants contended that the finding of the Court of appeal below is erroneous inasmuch as it should have been held that after the O.T Railway vested in the Government in 1943, the railway properties within the municipal limits ceased to be liable to pay any local taxes in view of the provisions of Section 154 of the Government of India Act. In any view, Act 25 of 1941, Railways (Local Authorities' Taxation) Act, 1941, provides a distinct bar under S. 3 against any local authority realizing any tax in respect of the railway properties unless there is a notification to that effect authorising the levy and realization of such taxes by the Central Government.
8. In the present case, no such notification admittedly has been issued and, hence, the plaintiff is not entitled to realize any amount of taxes in respect of the railway properties at Motihari. In any view, the enhancement made by the municipal authorities in the rate of taxes payable on 1-4-1937, when Part 3 of the Government of India Act came into operation, could not be effective unless such an enhancement was authorised by a notification. Section 154 of the Government of India Act, runs as follows:
“Property vested in His Majesty for purposes of the government of the Federation shall, save in so far as any Federal law may otherwise provide, be exempt from all taxes imposed by, or by any authority within, a Province or Federated State:
Provided that, until any Federal law otherwise provides, any property so vested which was immediately before the commencement of Part 3 of this Act liable, or treated as liable, to any such tax, shall, so long as that tax continues, continue to be liable, or to be treated as liable, thereto.”
It is urged that the main body of the section provides for exemption from taxes imposed by or by any authority within a Province or Federated State of all properties vested in His Majesty which would mean now the property vested in the Union of India. The O.T Railway properties during the major part of the period in suit were vested in His Majesty for the purpose of the Government of the Federation and subsequent to that in the Dominion of India so that in the absence of a provision to the contrary in any Federal law, such properties were exempt from any liability.
9. The proviso which speaks of the continuance of any liability in respect of such properties immediately before the commencement of Part 3 of the Act would not be applicable to the present case inasmuch as the O.T Railway came to be vested in His Majesty in 1943 subsequent to 1-4-1937, when Part 3 of the Act came into operation. The proviso to S. 154 of the Act should be confined only to such classes of properties as were Crown property prior to 1-4-1937. It seems to me, however, that there is no basis for such a construction to be put up upon the proviso. The word “so” here represents, as I have said, only the phrase used in the main body of the section, namely, the property vested in His Majesty for the purpose of the Government of Federation, and, if that is so, the contention that it should further be extended to mean that is confined to properties so vested prior to 1937 is not warranted. It appears that the same view was taken in the case of — ‘Governor-General of India in Council v. Corporation of Calcutta’, AIR 1948 Cal 116 (2) (A), where Ormond, J. observed as follows on this point:
“The words ‘so vested’, appearing in the proviso, simply relate back to this phrase; and merely have the effect as if the whole phrase had been repeated in full in the proviso as well as in the earlier part of the section. The time at which it is necessary to find the property vested in order to bring it within the proviso, so as to be within the words ‘so vested’, is nothing more than the time when the taxing authority is claiming that the liability to pay tax exists. The phrase ‘so vested’ is simply descriptive of the nature of the ownership of the property. It means for the purpose of the present case nothing more than in common parlance ‘Central Government Property’.”
Further on, while speaking of the conditions which should be fulfilled before the proviso to Section 154 of the Government of India Act, 1935, applies, the learned Judge observed as follows:
“The four conditions which it would be necessary for the Corporation to establish to bring the property within the proviso would be (1) Physical existence of the property before 1-4-1937, (2) Liability of that property to the tax then, (3) Physical existence of the same property now, that is to say, for the current period for which tax is sought to be levied and (4) Liability of the property (if it were not Crown property) to the tax now.”
The extracts given above would clearly establish that the contention that in order to make a property which was liable to tax prior to 1-4-1937, liable thereafter, it must be Government property on that date is not correct. All that is required is that it must have been in physical existence on the date prior to 1-4-1937, and must have been liable to payment of tax if it were not Crown property. The consideration, therefore, as to whether the property vested in the Central Government prior to 1937 or thereafter is immaterial.
10. It appears that the learned Counsel for both parties in this Court had relied upon this decision in support of their respective contentions, but it seems to me that apart from the observations which I have quoted above, all that this decision lays down is that where a property, as in that case, being the buildings erected after 31-3-1937, in premises No. 7 Gun Foundry Road, Cossipore, was not liable to taxation in view of Section 154 of the Government of India Act, 1935, as not being in existence prior to 1937 it did not come under the scope of the proviso to that section.
11. The central point for decision, therefore, whether a certain property existed prior to 1937 or not and whether it was liable to taxation or not by local authorities, was the only test to be applied for determining whether a particular case was governed by the restrictive provisions of the main body of S. 154 or came within the exemption incorporated in the proviso to that section. The decision referred to above, therefore, in fact, lends support to the point of view urged on behalf of the respondent and does not support the stand of the appellants.
12. It may further be stated that the above decision refers to the applicability or otherwise of Section 154 of the Government of India Act. Apart from it, another consideration is imported into the case on account of Railways (Local Authorities' Taxation) Act, 1941.
13. Sections 3 and 4 of the Act read as follows:
“3.(1) In respect of property vested in His Majesty for the purposes of the Central Government, being property of a railway, a railway administration shall be liable to pay any tax in aid of the funds of any local authority, if the Central Government, by notification in the Official Gazette, declares it to be so liable.
(2) While a notification under sub-s. (1) is in force, the railway administration shall be liable to pay to the local authority either the tax mentioned in the notification or in lieu thereof such sum, if any, as a person appointed in this behalf by the Central Government may, having regard to the service rendered to the railway and all the relevant circumstances of the case, from time to time determine to be fair and reasonable. The person so appointed shall be a person who is or has been a Judge of a High Court or a District Judge.
4. The Central Government, may, by notification in the Official Gazette, revoke or vary any notification issued under clause (1) of Section 135 of the Indian Railways Act, 1890; and where a notification is so revoked any liability arising out of the notification to pay any tax to any local authority shall cease, and where a notification is varied the liability arising out of the notification shall be varied accordingly.”
It is clear that the above Act is a Central Act, which does make distinct provision for a class of cases referred to in S. 154 as that section itself speaks of a saving in so far any Federal law otherwise provides. Here, the Act referred to above is a Federal law which makes a distinct provision in respect of the liability of railway properties to a local taxation so that, strictly speaking, the present case is governed by the provisions of the above Act and not only by Section 154 of the Government of India Act unlike the ‘Cossipore Gun and Shell Factory case’ which was the subject matter of decision in ‘AIR 1948 Cal 116 (2) (A)’, referred to above. All, therefore, that is required to be seen is whether the above Act provides a bar to such liability as is sought to be imposed upon the O.T Railway premises by the plaintiff or it is otherwise.
14. Learned Counsel for the appellants contends that S. 3(1) distinctly provides for a notification by the Central Government before railway property vested in the Central Government could be taxed. Clause (2) further lays down that only so long as such notification under S. 3 is in force that the liability will continue and not otherwise. Sub-sections (1) and (2) of S. 3, therefore, taken together contemplate a notification as a necessary factor before local taxes can be levied.
15. As a matter of fact, the learned Subordinate Judge being impressed with the force of this contention disallowed the plaintiff's claim in respect of holding No. 241 which was a new holding and which is the subject-matter in the cross-objection to this Court. It seems to me, however, that S. 4 of the Act which refers to the case of existing liability unlike S. 3 which refers to general liability of railways to taxation more properly governs this case. The purport of the section is that where a notification is issued under Section 135(1) of the Railways Act, 1890, the liability arising out of the notification shall be varied or revoked only when the Central Government, by a notification in an Official Gazette does revoke or vary the notification issued under clause (1) of S. 135 of the Act.
16. It seems to me, however, that the learned Counsel cannot derive any support for his contention with reference to S. 3 of the Act. It is obvious that S. 3 refers to a situation which is different from what is provided for in S. 4 of the Act. All, therefore, that is required to be seen is whether a particular case in which a local authority sets up a right to impose or to realize any local tax or taxes in respect of railway properties will be subject to the provision of S. 4 of the Act or not. Where a case is in terms governed by S. 4 of the Act, S. 3 does not arise.
17. It is contended that Ss. 3 and 4 should be read together and in that view there must, in any case, be a notification as required under S. 3(1) to make railway properties liable to a local tax inasmuch as S. 4 speaks only of modification of existing liability and does not refer to the fact of a liability that is yet to arise.
18. The argument, in my opinion, is not correct inasmuch as this Act is a remedial Act passed to restore the situation in respect of the liability of the railway properties to a local taxation as it was prior to 1-4-1937, so as to put this class of properties apart from other State properties which were governed in general by the provisions of Section 154 of the Government of India Act, 1935. Apart from the distinct language of S. 4 of the Act, this is an additional consideration why the argument of the learned Counsel for the appellants with regard to the interpretation of this Act cannot prevail.
19. Reference in this connection has been to a decision in the case of — ‘Municipal Board of Kanpur v. Dominion of India’, AIR 1954 All 56 (B), where Malik, C.J and Bhargava, J. disallowed the claim of the defendant, the Municipal Board of Kanpur, to levy an enhanced tax in respect of the railway premises of the East Indian Railway. It appears that in that case, Sri. F.N Crofts, District Judge, Kanpur, gave an award as an officer empowered for adjudication by a notification issued under the Railways (Local Authorities' Taxation) Act, (Act No. 25 of 1941), for determining the amount payable in lieu of taxes by the Railway Administration. The award was given on 1-8-1943.
20. The Municipal Board, however, revised and enhanced the amount payable by a resolution which evoked a protest from the railway administration and it was a point in dispute between the parties. Their Lordships of the Allahabad High Court took the view that the award once having been given under Act 25 of 1941 as well as under Section 135 of the Indian Railways Act, it could not be varied unless there was a notification to that effect by the Central Government approving of the enhancement or unless there was a fresh award by any person appointed by the Central Government. It is thus clear that the decision rested upon considerations which do not arise in the present case.
21. All, therefore, that is to be seen is whether there was a notification under Section 135 of the Indian Railways Act in this case. The plaintiff filed Exts. 9 and 9(a) which were notifications issued under Section 135 of the Indian Railways Act, 1890, which have neither been varied nor revoked by the Government of India. Exts. 9 and 9(a) authorise the local authorities to levy taxes in the nature of house taxes and latrine taxes for railway properties within the jurisdiction of the competent local authorities. The present case, therefore, is governed by the clear provisions of Section 135 of the Indian Railways Act. That section is in these terms:
“Notwithstanding anything to the contrary in any enactment or in any agreement or award based on any enactment, the following rules shall regulate the levy of taxes in respect of railways and from railway administrations in aid of the funds of local authorities, namely:—
(1) A railway administration shall not be liable to pay any tax in aid of the funds of any local authority unless the Central Government has by notification in the official gazette, declared the railway administration to be liable to pay the tax.
(2) While a notification of the Central Government under clause (1) of this section is in force, the railway administration shall be liable to pay to the local authority either the tax mentioned in the notification or, in lieu thereof, such sum, if any, as an officer appointed in this behalf by the Central Government may, having regard to all the circumstances of the case, from time to time, determine to be fair and reasonable.
(3) The Central Government may at any time revoke or vary a notification under Clause (1) of this Section.
(4) Nothing in this section is to be construed as debarring any railway administration from entering into a contract with any Local authority for the supply of water or light, or for the scaveging of railway premises, or for any other service which the local authority may be rendering or be prepared to render within any part of the local area under its control.
(5) ‘Local authority’ in this section means a local authority as defined in the General Clauses Act, 1887 (I of 1837), and includes any authority legally entitled to or entrusted with the control or management of any fund for the maintenance of watchmen or for the conservancy of a river.”
It seems to me, therefore, that Section 135 of the Indian Railways Act, Section 4 of the Railways (Local Authorities' Taxation) Act, 1941, and Section 154 of the Government of India Act with its proviso as interpreted by the Calcutta High Court and S. 9 of the Government of India (Adaptation of Indian Laws) Order, 1937, which also lays down that the provisions of S. 154 shall not render invalid any notification or law duly made or issued before the commencement of this Adaptation Order which would be in operation from 1-4-1937, are all in consonance with each other and, as such, it must be held that the plaintiff-Municipality was within its rights in claiming the tax in respect of the holdings in suit.
22. Learned Counsel for the appellants has also referred to the cases of — South Indian Railway Co. Ltd., Trichinopoly v. Panchayat Board, Mandapam’, AIR 1943 Mad 733 (C); — ‘Municipal Council, Cuddappah v. M. & S.M Ry. Co. Ltd.’, AIR 1929 Mad 746 (D), and Secry. of State v. Municipal Corporation of Bombay (No. 2), AIR 1935 Bom 352 (E). It appears to me, however, that the two Madras decisions refer to the nature of the tax. What their Lordships held in the two Madras decisions was that where the tax of a particular kind was notified under the Indian Railways Act as leviable upon the railway property, it did not mean that the local authorities would be entitled to levy a tax of a different kind inasmuch as it would require a specific notification to that effect.
23. In both the cases, the taxes authorised were the taxes for house, land for house, land and water-tax mentioned in the schedule to the notification whereas the local authority levied property tax which, their Lordships held, was a tax of a different class and was not covered by the terms of the notification issued under Section 135 of the Indian Railways Act. This was beyond the scope of the power of the local authorities. In the present case, there is no contention that the tax levied is different from what was authorised under Section 135 of the Railways Act. The Bombay case which is referred to above does not cover the point inasmuch as it relates to the liability of the defendant in the suit ‘inter se’ and not with regard to the liability of the property.
24. Learned Counsel for the appellant has advanced a further argument that in the present case in view of the enhancement made, the taxes are different from those actually authorised by the notification under Section 135 of the Indian Railways Act. The argument, however, is obviously incorrect inasmuch as what Exts. 9 and 9(a) authorised is a liability to certain kinds of taxes which are bound to be revised under the proper provisions of the Act governing the local authorities as in the present case, the Bihar Municipal Act. There is no limit in the notification as to the liability. Mr. Justice Ormond in ‘AIR 1946 Cal 116 (2) (A)’, considered the point and answered it as follows:
“It seems also clear that even if the rate of tax was raised thereafter there would be a liability under the section to pay at the enhanced rate. It has not been argued, and I think cannot properly be contended, that the section intended to fix a dead level maximum sum payable for all future time. This is made clear by the words shall so long as that tax continues, continue to be liable, or to be treated as liable, thereto. All that the Corporation would need to show is that the tax now sought to be levied is the same tax as the tax for which collections were made before 1-4-1937.”
All, therefore, that is excluded is a new kind of tax but it does not in any way affect the right of the local authorities to vary the amount of tax in accordance with law. The same view was expressed, in the case of — ‘Corporation of Calcutta v. Governors of St. Thomas' School, Calcutta’, AIR 1949 FC 121 (F), by their Lordships of the Federal Court where Sir Harilal Kania, C.J, considering the matter in connection with the liability of a Government property to local taxation under Section 154 of the Government of India Act expressed himself thus:
“Whether any particular property falls within the exemption provided in Section 154 of the Government of India Act must depend on what is ‘property’ within the meaning of that section and not on what is regarded as a unit for purposes of assessment under a local Municipal Act. The question is whether what is sought to be taxed is property and, if so, whether the same is vested in the Government. If the answer to both these is in the affirmative, the question is whether that property was liable to tax before April, 1947.”
It is, thus, clear that no question of the amount, of tax can affect the nature of class to which particular tax belongs.
25. It is next contended that the suit is not maintainable inasmuch as it has been instituted in the name of the Motihari Municipality through the Vice-Chairman. Section 12 of the Bihar Municipal Act makes the Municipal Commissioners a body corporate by the name of the Municipal Commissioners of the place by reference to which the municipality is known. The suit should, therefore, have been instituted in the name of the Municipal Commissioners and not in the name of the Municipality through the Vice-Chairman. It is said that this point was raised in the written statement but the plaintiff failed to make necessary amendment in the plaint.
26. It is urged on behalf of the respondent that an application was filed to this effect in the trial court but, unfortunately, the attention of the court was not drawn to the petition for amendment. When the appeal, however, was filed in the lower appellate court, the respondents ought to file the appeal in the name of the Municipal Commissioners. When an enquiry was directed to the trial court whether such a prayer for amendment was made, the trial court, however, replied that a petition was moved but it was not pressed at the time of hearing. Learned Counsel for the respondent contends that it was a sheer mistake on the part of the trial court because the position was not that the petition was not pressed but that it escaped the attention of the court to take up the petition for amendment.
27. It is not necessary for me to pursue the matter further because in any view the bona fides of the municipality are clear. In my opinion, even if it were a defect, it would only be a technical irregularity which would not affect the substance of the matter of the suit as was held in the case of — ‘Jogendra Nath Banerjee v. The Tollvgunj Municipality’, AIR 1939 Cal 178 (G). Learned Counsel for the respondent has also drawn my attention to a decision in the case of — ‘Gopal Lal Tatak v. Commissioners of Gaya Municipality’, 48 Cri LJ 609 (Pat) (H), where Agarwala, J., as he then was held that Section 24 of the Municipal Act which authorised the Chairman to transact the business relating to the Municipality would also be deemed to authorise him to start prosecutions in his name.
28. It is contended that what was held in that case in respect of prosecution should also apply to the right of the Chairman to bring a suit on behalf of the Municipality. The decision referred to by learned Counsel for the appellants is — ‘Kamakhya Narayan Singh…Defendant v. Chairman, Hazaribagh Municipality…Plaintiff .’, AIR 1939 Pat 499 (I), where it was held that the Chairman alone was not entitled to sue. It appears that ‘AIR 1939 Pat 499 (I)’, which is a Single Judge decision of Mr. Justice Wort, had not taken into consideration Section 24 of the Municipal Act to which a reference is made in the decision referred to above in ‘48 Cri LJ 609 (Pat) (H)’.
29. Apart from all these, however, in my opinion, I there is nothing wrong in the frame of the present suit even on merits. It is not a case where the Chairman alone is suing but it is the Municipality which is suing through the Vice-Chairman. Mr. Thakur Prasad's argument that the Vice-Chairman must be shown, in any case, to have been delegated the authority to sue by the Chairman as required under S. 25 cannot be permitted to be raised at this stage because it was nowhere urged that there was no such delegation of power by the Chairman. The written statement upon which an issue was framed contained the bare plea that the Municipality could not sue through the Chairman, but it must be the Municipal Commissioners in whose name alone the suit could be filed.
30. The argument, in my opinion, is devoid of any substance inasmuch as although the Municipal Commissioners have been described as forming a body corporate in Section 12 of the Municipal Act, the body corporate certainly will be the Municipality. If the Chairman alone had instituted the suit, there might be some scope for argument but as the Municipality is suing through the Chairman represented by the Vice Chairman, it comes to the same thing that the Municipal Commissioners are suing and the Chairman is representing them as the plaintiff in the suit through the Vice-Chairman.
31. Some of the decisions to which reference has been made by the learned Counsel are decisions where only a particular functionary of the Local Board Taluk Board or Municipality was suing or was sued but the body corporate itself, namely, the Local Board or the Municipality was not represented. Mr. Thakur Prasad has not brought to my notice any decision wherein the Municipality, Local Board or any such body corporate was described as the plaintiff suing through one of the officers authorised to represent the body corporate and yet it was held that because of a particular flaw in the way in which the description was given it would in any way affect the maintainability of the suit. This contention, therefore, must fail.
32. Next point raised is that there should have been no decree for the period 1942 to April, 1943 which falls beyond the period of six years for which alone the plaintiff would be entitled to a decree under Article 120 of the Limitation Act. Mr. Tarkeshwar Nath, however, on behalf of the respondent has drawn my attention to the fact that the learned Munsif, who dismissed the suit for the period subsequent to 1-1-1943, had decreed the suit for the period prior to that against which there was no cross-objection on behalf of the appellants. The matter, accordingly, became final and cannot be re-opened in this Court. I think the argument is well founded and must be accepted. It must, accordingly, be held that the plea of Limitation cannot succeed. In the view, which I have expressed above, it must be held that this appeal has no merit and must be dismissed.
33. There is, however, a cross-objection on behalf of the respondent. The cross-objection relates to the amount of tax not decreed by the court of appeal below in respect of holding No. 241, which is a railway Gumti, a small addition to the premises held by the O.T Railway, Motihari. The learned Subordinate Judge came to the conclusion that it was constructed after 1937 and, as such, this was not the property which was liable to pay tax prior to 1-4-1937. It is urged on behalf of the respondent that the view is incorrect, inasmuch as Exts. 9 & 9(a) which are notifications of the Central Government authorising the levy of taxes by local authorities do not speak of a particular property which would be liable to taxation. The notifications specify the taxes to be levied and made the Railway Administration liable to such taxes to be levied by local authorities.
34. Since there is no mention of any particular properties and there is general authorisation in favour of the local authorities and general liability in respect of the taxes specified in the railway administration, it is clear that the construction or the property duly liable to the taxes specified in Exts. 9 and 9(a) will be liable to taxation irrespective of whether there is a further notification in respect of that property or not. The learned Counsel for the appellants opposing the cross-objection refers to ‘AIR 1948 Cal 116 (2) (A)’, and the above Federal Court decision and it is said that in these cases where the buildings were constructed after 1937 such buildings were held exempt from the liability to a tax by any local authority in the absence of such a notification in terms of Section 154 of the Government of India Act.
35. It is contended that the same consideration should apply to the present case. It is true, no doubt, that in the above two decisions, their Lordships of the Calcutta High Court as well as of the Federal Court did express themselves against the liability to tax by local authorities in respect of properties which came into existence after 1-4-1937. It seems to me, as I have said above, that the present case which is one of railway property is more specifically governed by S. 4 of the Act 25 of 1941 and not by Section 154 of the Government of India Act, 1935.
36. Since the notifications under Section 135 of the Indian Railways Act, Exts. 9 and 9(a), which are held as operative by virtue of S. 4 of the Act 25 of 1941, are in different terms, the present case must be governed by the terms of Exts. 9 and 9(a). As I have said that Exts. 9 and 9(a) do not provide any restriction upon the power of the local authorities to impose the tax specified, thereunder, there is no reason to restrict their operation to the properties which existed prior to 1937 as would be the case where the matter is governed only by the provisions of Section 154 of the Government of India Act, 1935. Were it not so, every little structure to be put up by the railway authorities at a particular place would impose exemption of that property from liability to a local tax although the other properties are so liable unless there is a notification by the Central Government to that effect.
37. That, obviously, is not the intent of Section 135 of the Indian Railways Act. Apart from this consideration, however, as I have said, the position is to be regulated in terms of Section 135 of the Railways Act, notifications issued thereunder and S. 4 of the Act 25 of 1941 and, therefore, it must be held that the Gumti, which is a railway property, and, which was constructed after 1937, is in terms of Exts. 9 and 9(a) liable to taxation in the same manner as the other two holdings. The cross-objection, accordingly, must be allowed.
38. It must be held that holding No. 241 is liable to municipal tax in the same manner as holdings Nos. 91 and 73.
39. In the result, the appeal stands dismissed; the cross-objection is allowed; but in the circumstances of the case, parties will bear their own costs throughout.
V.R.B
40. Appeal dismissed:
41. Cross-objection allowed.