A.C. Sen, J.

1. The Defendants, the Municipal Commissioners of Howrah, are the Appellants before us. The appeal arises out of a suit for a declaration that the sheds on the Howrah Bridge approaches described in the schedule to the plaint are exempted from taxation by the Defendants and that the attempted assessment and valuation by the Defendant Municipality of Howrah is illegal and ultra vires and for permanent injunction.

2. The case for the Tramways company is that the company has the exclusive right to run tram cars in certain specified areas within the city of Calcutta and its suburbs and Howrah and that the company has acquired an exclusive right to construct, maintain tramways and trolley electric vehicles deriving their motive power from overhead wires of cables across the new Howrah Bridge and its approaches, on terms and conditions set out in the agreement, dated July 17, 1938, executed between the Commissioners of the new Howrah Bridge and the Plaintiff company.

3. The terms of the said agreement, according to the Plaintiff company, are that in consideration of the concession granted to-the company it is to pay to the Commissioners, Howrah Bridge, rent at Rs. 1,25,000 per annum, that the company will hot be required to pay any tax or toll which may be levied upon persons or vehicles using the new Howrah Bridge and that if the company is required to pay any such tax or toll and actually pays the same, it shall be entitled to deduct the amount so paid from the annual rent.

4. The further case of the Plaintiff company is that for the convenience of the travelling public, the Plaintiff company has erected shed on the bridge approaches on either side of the river Hooghly, that three such sheds are numbered 1B, 1C and 1D Grierson Road, now known as Rishi Bankim Chandra Road, that of these three sheds those bearing numbers 1B and 1C are passengers shelters and the ground floor of shed No. 1D is used as the company's starters office while the first floor is used by the Traffic Police of the West Bengal Government and that the new Howrah Bridge with its approaches and slopes on either side is vested in the Bridge Commissioners and are altogether exempted from assessment by the Defendant Municipality.

5. The grievance of the Plaintiff company is that even though it has been exempted by statute from taxation, the Defendant Municipality has been seeking to levy municipal tax upon the aforesaid three sheds and that in spite of the Plaintiff company's objection, the Defendant Municipality by its order dated January 13, 1955, has valued the aforesaid three sheds with effect from the third quarter of 1948-49 as per details given in the schedule to the plaint.

6. The contention of the Plaintiff company is that the statutory exemption from taxation is absolute and that the Defendant Municipality has been illegally and unconstitutionally trying to assess the aforesaid sheds, although they have no jurisdiction to do so. It is submitted by the Plaintiff company that it is for this reason that the Plaintiff company has been compelled to institute the present suit.

7. The Defendant denies that the land on which the suit premises are situate has vested in the Commissioners of the Howrah Bridge or are exempted from assessment of municipal taxes. The Defendant Municipality says that the previous assessment made by the Defendant Municipality were rescinded on different consideration and that the Plaintiff company is not entitled to absolute exemption from payment of municipal taxes under any statute. The contention, of the Defendant Municipality is that the approaches of the Howrah Bridge on the western side are within the territorial limits of jurisdiction of the Defendant Municipality and that the said approaches cannot be said to be included within the local area of Calcutta in the absence of any clear or specific notification issued by a competent authority, divesting the Howrah Municipality of its jurisdiction-over the said area.

8. The learned Munsif decreed the suit on a finding that the disputed sheds were outside the jurisdiction of the Howrah Municipality and that the Howrah Municipality had no right to levy any tax or make assessment. The decision of the learned Munsif has been affirmed by the lower appellate Court. Hence, the present appeal has been instituted by the Defendant Municipality.

9. The primary question for determination is whether the disputed land, namely approaches to the Howrah Bridge on the western side of the river Hooghly, is included within the territorial limits of the Howrah Municipality and whether the disputed sheds belonging to the Plaintiff company on the said land are exempted from the assessment of consolidated rates by the Defendant Municipality. It is not disputed that the sheds in question stand on the site comprising the approaches and slopes of the new Howrah Bridge. As a result of an agreement between the Commissioners of the Howrah Bridge and the Plaintiff company dated July 17, 1938, the Tramways company is required to pay rent at Rs. 1,25,000 per annum to the Commissioners of the Howrah Bridge for running the electric tram cars and trolleys over the new Howrah Bridge and its approaches. There is also no dispute that the sheds in question are on the western side of the river Hooghly which forms the eastern boundary of the Howrah Municipality. The Defendant Municipality is generally entitled to levy consolidated rates upon all lands and structures situated within the territorial limits of that Municipality. It, therefore, follows that the Plaintiff company is liable to pay municipal tax to the Defendant Municipality in respect of the disputed sheds unless the Plaintiff company can show that, the power of the Howrah Municipality to do so has been taken away by some statute.

10. It is contended on behalf of the Plaintiff company that the disputed sheds on the approaches to the Howrah Bridge on the western side on the river. Hooghly have been exempted from taxation by the Howrah Municipality by Section 18A of the new Howrah Bridge Act, 1926 Section 18A of the said Act runs as follows:

All lands required for the construction of the new Bridge including its foundations, approaches and slopes or for any improvement thereof together with all structures on such lands forming part of the said Bridge which vest in the Commissioners under Sub-section (1) of the Section 13 and which are not intended to be let out to tenants or for otherwise deriving an income therefrom shall be exempt from the consolidated rate leviable under Section 124 of the Calcutta Municipal Act, 1923, including the rate, leviable under the said section as extended to the Municipality of Howrah.

The sum of Rs. 1.25,000 per annum is paid by the Plaintiff company not only for the user of the Bridge itself but also its approaches. Therefore, the Commissioners of the Howrah Bridge are deriving some income from the approaches to the Bridge. Hence, it may be said that the approaches are intended for deriving an income. Therefore, the approaches are not excepted from the consolidated rate leviable by the Howrah Municipality and the disputed structures stand oh these approaches. If the area within which the disputed sheds stand is not exempted from the payment of municipal tax, the sheds too cannot claim exemption from such payment.

11. It is, however, contended/on behalf of the Plaintiff company that the authority of the Howrah Municipality to levy tax within the approaches to the Howrah Bridge on the western side has been taken away by Section 7 of the Calcutta Tramways Act, 1951, which provides that, notwithstanding anything contained in the Calcutta Municipal Act, 1923, the Howrah Bridge Act, 1926, or any other Act, the New Howrah Bridge and its approaches, vested in the Commissioners of the' new Howrah Bridge and the Esplanade (including the area commonly known as the Maidan) shall be deemed to be included in Calcutta as defined in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923.

12. The learned subordinate Judge accepted this contention on behalf of the Plaintiff company and dismissed the appeal, that is to say decreed the suit. According to the learned subordinate Judge, the effect of Section 7 of the Calcutta Tramways Act, 1951, is to extend the jurisdiction of Calcutta by a statutory fiction and thereby to exclude this area from the jurisdiction of the Howrah Municipality. The area, undoubtedly, says the learned subordinate Judge, included the site in dispute and under the provisions of Section 7 (sic) Calcutta-Tramways Act, 1951, this place, although it cannot (sic) designated Calcutta, must by its extended meaning be regarded as part of Calcutta and therefore, outside the scope and jurisdiction of the Municipality of Howrah.

13. Even if it be assumed for argument's sake that Section 7 of the Calcutta-Tramways Act, 1951, has the effect of excluding the Howrah Bridge approach on the western side of the Howrah Municipality, still the suit should not have been decreed in full. It should be remembered that the Howrah Municipality claimed consolidated rate from the third quarter of 1948-49 to the first quarter of 1955-56. The Calcutta Tramways Act received the assent of the President on October 18, 1951 and this date is to be treated as, the date of commencement of that Act. It is not the case of the Plaintiff company that the approaches of the Howrah Bridge on the western side of the river Hooghly were not included within the territorial limits of the Howrah Municipality prior to the commencement of the Calcutta Tramways Act, 1951. Therefore, the Municipality of Howrah was entitled to claim consolidated rate from the Plaintiff company from the third quarter of 194849 to the second quarter of 1951-52, that is to say for 12 quarters. Hence the learned subordinate Judge, even on his own interpretation of Section 7 of the Calcutta Tramways Act, 1951, was not justified in holding that the Plaintiff Company was not liable to pay anything on account of consolidated rate for the entire period from the third quarter of 1948-49 to the first quarter of 1955-56.

14. But in our opinion the learned subordinate Judge should have dismissed the suit in toto. First of all, it may be pointed out that the Calcutta Municipal Act, 1923, was repealed by Section 2 of the Calcutta Municipal Act, 1951. In the Calcutta Municipal Act, 1951, Calcutta has been defined in Clause (ii) of Section 5 of the Act. Section 7 of the Calcutta Tramways Act, 1951, says that the new Howrah Bridge and its approaches, vested in the Commissioners of the new Bridge, shall be deemed to be included in Calcutta as defined in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923. Can it be said that the new Howrah Bridge and its approaches shall be deemed to be Included in Calcutta as defined in Clause (ii) of Section 5 of the Calcutta Municipal Act, 1951. In other words, can we substitute Section 5 for Section 3 and the Calcutta. Municipal Act, 1951, for the Calcutta Municipal Act, 1923, in Section 7 of the Calcutta Tramways Act, 1951 We shall presently indicate that such substitution cannot be made.

15. The Calcutta Tramways Act, 1951, is a subsequent Act in relation to the Calcutta Municipal Act, 1923. It has been pointed out by the Privy Council in the Secretary of State for India v. Hindusthan Co-operative Insurance Society Ltd. 58 I.A. 259 that

where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the form (sic) which is not made expressly applicable to the subsequent (sic) can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.

This principle has been applied by the Supreme Court in the case of the Chairman of the Municipal Commissioners of Howrah v. Shalimar Wood Products (Private) Ltd. A.I.R. 1962 S.C. 1691.

16. The object of the Calcutta Municipal Act, 1951, is to amend and consolidate the law relating to the municipal affairs of Calcutta. Its object, therefore, is to amend the law relating to the municipal affairs of Calcutta as embodied in the Calcutta Municipal Act, 1923.

The definition of Calcutta in the Calcutta Municipal Act of 1951 is not the same as the definition of Calcutta in the Calcutta Municipal Act of 1923. Section 10 of the Bengal General Clauses Act, says that where any Bengal Act repeals and re-enacts with or without modification, any provision of a former enactment, then references shall, unless a different intention appears to be construed as reference to the provisions so re-enacted. It can, therefore, be argued that in Section 7 of the Calcutta Tramway's Act reference to Calcutta as d fined in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923, shall be icons, trued as a reference to Calcutta as defined in Clause (ii) of Section 5 of the Calcutta Municipal Act, 1951. But this argument will not hold good if a different intention appears. Under Section 7 of the Calcutta Tramways Act the new Howrah Bridge and its approaches shall be deemed to be included in Calcutta as defined in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923. Can it be said that it was the intention of the Legislature in enacting Section 7 of the Calcutta Tramways Act, 1951, that the new Howrah Bridge and its approaches would be deemed to be included in Calcutta howsoever the definition of Calcutta might be amended or modified, in future, by any enactment for the regulation of the municipal affairs of Calcutta Before answering this question we would like to examine the relevant provision of the Calcutta Municipal Act, 1951.

17. Section 608 of the Calcutta Municipal Act, 1951, also says that in every enactment in force at the commencement of the Calcutta. Municipal Act, 1951, unless a different intention, appears all references to or to any chapter or section of the Calcutta Municipal Act, 1923, shall so far as is possible be construed as reference to the Calcutta Municipal Act, 1951, or to it as corresponding chapter or section. Section 608 merely reiterates the principle laid down in Section 10 of the Bengal General Clauses Act. The rule of interpretation laid down in Section 608 of the Calcutta Municipal Act, 1951, shall not apply if different intention appears. Mr. Roy argues that the Legislature never intended that the reference in Section 7 of the Calcutta Tramways Act, 1951, to Calcutta as defined in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923, would be construed as reference to Calcutta as defined in Clause (ii) of Section 5 of the Calcutta Municipal Act, 1951 or as defined in any future enactment regulating the municipal affairs of Calcutta. He submits that in the absence of express words to that effect, it cannot be reasonably assumed that the new Howrah Bridge and its approaches would be deemed to be included in Calcutta in whatever way Calcutta is defined in future, in whatever way the territorial limits of Calcutta are altered by any future legislation regulating the municipal affairs of Calcutta. According to him, it is the clear intention of the Legislature insofar as it can be gathered from the language of Section 7 of the Calcutta Tramways Act, 1951, that the new Howrah Bridge and its approaches shall be deemed to be included in Calcutta as defined in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923 and not in Calcutta as may be defined in any future enactment regulating the municipal affairs of Calcutta.

18. Mr. Roy next contends that Section 7 of the Calcutta Tramways Act is to be construed in accordance with the principle laid down by the Privy Council in the case of the Secretary of State for India v. Hindusthan Co-operative Insurance Society Ltd. Supra and accepted by the Supreme Court in the Chairman of the Municipal Commissioners of Howrah v. Shalimar Wood Products (Private) Ltd. Supra. That principle has been noted above. His argument is that as the definition of Calcutta in Clause (ii) of Section 5 of the Calcutta Municipal Act, 1951, has not been expressly incorporated into Section 7 of the Calcutta Tramways Act, 1951, the new definition of Calcutta cannot be deemed to be incorporated in that section, that is to say Section 7 of the Calcutta Tramways Act, 1951.

19. Mr. Roy draws our attention to the proviso to Section 7 of the Calcutta Tramways Act, 1951, which runs as follows:

Provided that save as aforesaid nothing in this Section shall affect the provisions of the Howrah Bridge Act, 1926 and save as may hereafter be provided by or under any law, the provisions of the Calcutta Municipal Act, 1923, shall not apply to the area referred to above.

He points out that the proviso makes it clear that the provisions of the Calcutta Municipal Act, 1923, shall not apply to the new Howrah Bridge and its approaches save, as may hereafter be provided by or under any law except that the area shall be deemed to be included in Calcutta as defined in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923. His argument is that only the definition of Calcutta as given in the Calcutta Municipal Act, 1923, has been extended to the new Howrah Bridge and its approaches but not the other provisions of that Act, with the result that wherever Calcutta is defined in terms of Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923, the area in question, namely the new Howrah Bridge and its approaches shall be deemed to be included in Calcutta so defined. According to this argument this area shall be deemed to be included in the definition of Calcutta as given in the Howrah Bridge Act, 1926, which runs thus:

In this Act, unless there is anything repugnant in the subject or context, Calcutta has the same meaning as in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923,

Mr. Roy further contends that the proviso to Section 7 of the Calcutta Tramways Act, 1951, makes (sic) clear that the operative, portion of Section 7 of that Act shall not affect the provision of the Howrah Bridge Act, 1926, save as to the definition of Calcutta given in that Act namely the Howrah Bridge Act, 1926; in terms of Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923, Prior to the enactment of the Calcutta Tramways Act, 1951; he contends, the Howrah Municipality was entitled to realise consolidated rate in respect of the disputed structures because the site on which the disputed structures stand was not excepted from municipal taxation under Section 18A of the Howrah Bridge Act, 1926. He, therefore, concludes that as Section 18A of the Howrah Bridge Act, 1926, has not in any way been affected by Section 7 of the Calcutta Tramways Act, 1951, it cannot be said that Section 7 of the Calcutta Tramways Act, 1951, has taken away the authority of the Howrah Municipality to realise municipal tax from the, disputed sheds.

20. The Calcutta Municipal Act, 1951, received' the assent of the President on February 14, 1952. Since that date, says Mr. Roy,' the new Howrah Bridge and its approaches cannot be deemed to be included in Calcutta as defined in Clause (ii) of Section 5 of the Calcutta Municipal Act, 1951, because the deeming provision applies to Calcutta as defined in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923 and not to the corresponding definition in the Calcutta Municipal Act, 1951. That being the position he submits the Howrah Municipality was entitled to recover tax in respect of the disputed sheds for a portion of the farther quarter of 1951-52, for the four quarters of 1952-53 for the four quarters of 1954-55 and for the first quarter of 1955-56. As to the period between October 18, 1951, the date on which assent was given by the President to the Calcutta Tramways Act, 1951 and February 14, 1952, the date on which assent was given by the President to the Calcutta Municipal Act, 4951, he says that the Howrah Municipality enjoyed the power of taxation by virtue of the proviso to Section 1 of the Calcutta Tramways Act, 1951.

21. We fully agree with Mr. Roy as to the effect of the repeal of the Calcutta Municipal Act, 1923, by the Calcutta Municipal Act, 1951, on the operative portion of Section 7 of the. Calcutta Tramways Act, 1951 and as to the interpretation of the proviso of Section 7 of the Calcutta Tramways Act, 1951. In our opinion, therefore, the Howrah Municipality was entitled to levy consolidated rate on the disputed sheds. We may add that even on the assumption that the reference in Section 7 of the Calcutta Tramways Act, 1951, to Calcutta as defined in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923, shall be construed as reference to Calcutta as defined in Clause (ii) of Section 5 of the Calcutta Municipal Act, 1951, it cannot be said that since the commencement of the. Calcutta Tramways Act, 1951, the Howrah Municipality lost its power of taxation over the disputed sheds because, as shown above, the proviso to Section 7 of the Calcutta Tramways Act, 1951, makes it clear that the authority of the Howrah Municipality to tax the disputed sheds has not in any way been affected by the operative portion of Section 7 of the Calcutta Tramways Act, 1951.

22. Mr. Mukherjee, appearing on behalf of the Tramways Company adopted the reasoning of the learned subordinate Judge in support of his contention that Section 7 of the Calcutta Tramways Act, 1951, deprived the Howrah Municipality of the power to realise municipal tax in respect of the structures on the approaches to the Howrah Bridge on the Howrah side. We cannot accept this contention of Mr. Mukherjee for the reasons already stated.

23. In the result the appeal succeeds. The judgment and decree of the Courts below are hereby set aside and the suit dismissed. The Appellant will get the costs of this Court as well as of the Courts below from the Respondents.

S.K. Datta, J.

24. I agree.