Municipal Board Of Bareilly v. Hafiz Ala Baksh

1. This is a reference under Section 162(1) of the Municipalities Act from the District Magistrate of Bareilly, who seeks guidance as to the principle upon which certain named gentlemen should be taxed in the notified area of Aonla. In that area there is the following rule governing it: “A tax on all persons residing or carrying on any trade, calling or vocation, or owning property within the stifled area of Aonla will be levied according to their circumstances and property, provided that in case of non-residents the tax will be levied with regard only to the value of their property and trade within the notified area.” The question upon which decision is sought has arisen in this way. There are certain gentlemen whose native town is Aonla. They have gone out into the world, principally Calcutta, where they have established business and where they have established house-holds; but they return to their native district and to their ancestral family houses either for rest or on occasions of family ceremonies, and it may be taken generally that two months is the outside period during which any one of these would be expected to be found in the town of Aonla. The taxation as will be seen from the rule falls under two heads; that is to say, there is a tax upon all persons who reside or carry on any trade or calling or vocation or owning property within the notified area; and that tax is levied upon these resident persons or those persons carrying on trade according to their circumstances and their property. But with regard to the class of cases of people who are non-residents they pay a tax which is calculated upon the value of their property and trade within the notified area. If these gentlemen are held to be persons residing within the area they will be subject to very much greater tax than if they are held to be non-residents. They do not object to taxation as non-residents upon the value of their property within the notified area. In passing one may remark that there is no evidence that they carry on any trade within the notified area. We are of opinion that on the facts as laid before us with regard to (1) Hafiz Ala Baksh, (2) Tanbir Ahmad and Khairunnissa, (3) Zainuddin, (4) Muhammad Ibrahim, (5) Abdul Shakur, (6) Abdul Qayum, and (7) Ahmad Murtaza and Muhommad Murtaza, with regard to all of these, the facts as stated do not bring them within the description of persons residing within the notified area of Aonla. In every case residence is a question of fact, and it must depend upon the particular circumstances. The general practice is to accept as the person's residence the place where throughout the year you would ordinarily expect him to be found. The term residence is naturally a flexible one, but in the case of gentlemen such as these who are traders carrying on business either at Calcutta or elsewhere, their place of residence is manifestly their place where they earn a living and do their daily work nor does that place cease to be their residence because for purposes of rest or recreation or family ties, they occasionally return to the family home where they and their families have been brought up. We are, therefore, of opinion that these gentlemen should not be taxed as residents but merely in respect of property owned by them within the notified area.