General Manager, B.B Light Railway v. Municipal Commrs. Of Bihar Through Spl. Officer Opp. Party.

1. The suit filed by the Municipal Commissioners of Bihar Municipality through the Special Officer against the petitioner, namely, B.B Light Railway Administration for realisation of holding, latrine and water taxes from the first quarter of 1956–1957 to the last quarter of 1961–1962 has been decreed by the learned Small Causa Court Judge. The Railway Administration has filed this application under Section 25 of the Small Cause Courts Act challenging the correctness of the said decision.

2. The only point urged in support of this application is that under sub-section (1) of section 135 of the Indian Railways Act, 1890 (Central Act 9 of 1890), hereinafter called the Act, the Railway Administration is not 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. The learned Sm. C.C Judge repelled this arguput forward before him on a plea taken in additional written statement filed later on the ground that the Railway Administration had been paying such taxes to the Bihar Municipality in the past and the failure of the Municipality to produce the notification of the Central Government issued under sub-section (1) of section 135 of the Act would not absolve the Railway from payment of the municipal taxes. In his opinion, it may be presumed that there must have been such a notification.

3. We think that the decision of the Court below can be upheld for somewhat different reasons. Section 3(1) of the Act says—

“‘tramway’ means a tramway constructed under the Indian Tramways Act, 1880, or any special Act relating to tramways”

4. Historically it would appear from the fact stated in Bukhtiarpur Bihar Light Rly. Co. Ltd. v. State of Bihar, AIR 1951 Pat 231, that this Light Railway was established in or about year 1901 under the provisions of the Bengal Tramways Act, 1883 (Bengal Act III of 1883). This position is not disputed on behalf of the petitioner. Hence, this is a tramway constructed under the special Act, namely, Bengal Act III of 1883 relating to tramways. Sub-section (4) of Section 3 of the Act defines ‘railway’ and says it means a railway, or any portion of a railway, for the public carriage of passengers, animals or goods, and includes — ……” Tramway is not included in the definition of ‘railway’. Sub-section (6) of Section 3 defines the expression “railway administration” to mean “the manager of the railway and Includes the Government and, in the case of a railway administered by a railway company, means the railway company”.

5. Reading these provisions, at their face and in terms, the provisions of sub-section (1) of Section 135 of the Act would not be attracted to the railway undertaking of the petitioner which, technically speaking, is a tramway undertaking. But section 146 of the Act says—

“(1) This Act or any portion thereof may be extended by notification in the Official Gazette—

(a) to any tramway which is wholly within a municipal area or which is declared not to be a railway under clause (2) of article 366 of the Constitution by the State Government; and

(b) to any other tramway, by the Central Government.

(2) This section does not apply to any tramway not worked by steam or other mechanical power”

6. It seems that notification no. 294 dated 13th of August, 1903 was issued in exercise of the power conferred by section 146 of the Act by the Governor-General in Council.

7. This notification was published in the Gazette of India Part I dated August 15, 1903, at page 797, and it says—

“… The Governor General in Council is pleased to extend the whole of the said Act except section 135, to the Bukhtiarpur Behar Light Railway”, meaning thereby that the other provisions of the Act were extended except the provisions contained in the 135th section. That being so, it is manifest that the petitioner's undertaking, even though for the purposes of the other sections of the Act, may be a railway, is not protected in the matter of paying tax in aid of the funds of the local authority under sub-section (1) of section 135 of the Act, and no notification of the Central Government is necessary to declare this Railway Administration to be liable to pay the tax. The tax demand was justified and the suit of the opposite party has been rightly decreed.

8. In the result, the application fails and is dismissed with costs; hearing fee Rs. 32 only.

VPP/G.G.M

9. Petition dismissed.