( 1 ) THE appellants herein are defendants in L. C. Suit No. 264 of 1963 on the file of the Second Joint Civil Judge, Junior Division, Dharwar. They are: The Hubli Dharwar Municipal Corporation and its Commissioner. The appeal is directed against the judgment of the Distnct Judge, Dnarwar,, in Civil Appeal No. 225 of 1964, whereby the appeal of the respondents herein was partly allowed, and the suit decreed to the extent it concerns the reliefs of declaration and injunction. ( 2 ) THE suit was by the respondents. It is their case that a premises by name 'laxmi Bhavan' in Dharwar City consists of two non-residential tenements owned by them. The numbers of the said premises are given as 3140/2923 and 3141/2924. The appellants herein sought to levy what is known as 'conservancy tax' on the said premises, on the strength of a Notification issued under Sec. 131 (1) (a) of the Bombay Provincial Municipal corporation Act, to be hereinafter referred to as the Act. They contend that the premises in question do not fall within the purview of the provisions of S. 131 (1) (a) of the Act, and that they come under the exemption enacted in the proviso to the said sub-section. The specific contention is that the premises have no privy, water closet, cess-pool, urinal, etc. , which require to be serviced by the Corporation, The defence of the appellants (Corporation) is one of denial of the factual allegations relative to the existence of the aforesaid items, in addition to a claim that the case squarely fell within the purview of S. 131 (1) (a) of the Act and the Notification issued thereunder. ( 3 ) THE trial Court dismissed the suit of the respondents herein. On appeal, the learned District Judge partially decreed the suit. Hence this appeal by the Corporation. The only contention urged on behalf of the appellants by Sri B. V. Deshpande, the learned Advocate, is based on the interpretation of S. 131 (1), (a) of the Act. The argument is that the proviso to the said sub-section would come into play only when the Commissioner is of the opinion that the effluents specified in Sec. 131 (1) (a) are found to accumulate or be deposited. ( 4 ) BEFORE adverting to this contention, it is necessary to resolve a question of fact arising in the case. The argument is that the proviso to the said sub-section would come into play only when the Commissioner is of the opinion that the effluents specified in Sec. 131 (1) (a) are found to accumulate or be deposited. ( 4 ) BEFORE adverting to this contention, it is necessary to resolve a question of fact arising in the case. It is urged on behalf of the respondents that the premises specified do not contain any privy, urinals or cess-pools mentioned in clause (a) of sub-section (1) of S. 131 of the Act. The case on behalf of the Corporation is that there was a wash in the premises, and that there are municipal gutters running in front of the premises into which the effluents are discharged. The question of fact that arises, therefore, is whether or not there is any such wash in the premises and the effluents therefrom are allowed to flow into the gutters. This question has been dealt with by both the Courts below. The learned District Judge has come to the following conclusion :"in view of this we have to say that the building or the premises in question does not have either a privy, urinal, water-closee bathing place cooking place etc " ( 5 ) IN coming to this conclusion, the learned District Judge has accepted the evidence of one Joshi and rejected the evidence of the witness examined on behalf of the Corporation as DW. 1. He has also placed reliance on a reply given by the Commissioner to one of the respondents, which is marked as Ext. P25. The said Exhibit may conveniently be reproduced. It is as follows :"i have to inform you that your property mentioned above is situated in a 'portion' of the city wherein conservancy arrangements, are made as published as required by S. 131 (1) (a ). Your are therefore liable for payment of conservancy tax. Yqur presumption that houses haying no latrines and urinals etc. , are exempted from levy of conservancy tax is not correct. The exemption applies to portions of the city and not to individual premises. "this reply read with Ext. Your are therefore liable for payment of conservancy tax. Yqur presumption that houses haying no latrines and urinals etc. , are exempted from levy of conservancy tax is not correct. The exemption applies to portions of the city and not to individual premises. "this reply read with Ext. 23, a reply to the notice demanding conservancy tax from one of the respondents, would make it clear that the Corporation has not denied the factum of non-existence of the aforesaid facilities in the premises in question The learned District Judge has placed reliance on this circumstance also. It may also be noticed that no argument was addressed before me in regard to this finding. For all these reasons, i am of the view that the fact that the premises did not have any of the facilities referred to in S. 131 (1) (a) of the Act, must be taken to be concluded against the appellants. ( 6 ) I shall now turn to the main contention. Sec. 131 (1) of the Act reads thus :" The conservancy tax shall be levied only in respect of premises (a) situated in any portion of the City in which public notice has been given by the Commissioner that the collection, removal and disposal of all excrementitiqus and polluted matter from privies, urinals and cess-pools, will be undertaken by the Municipal agency; or (b) in which, wherever situate, there is a privy, water-closet, cess-pool, urinal, bathing place or cooking place connected By drain with a municipal drain; Provided that the said tax shall not be levied in respect of any premises situated in any portion of the City specified in clause (a), in or upon which, in the opinion of the Commissioner, no such matter as aforesaid accumulate or is deposited. " ( 7 ) SINCE, the fact that such a tax has been levied by the Corporation by means of a Notification issued by the appropriate authority, has not been disputed, it is unnecessary to refer to it in any detail. Clauses (a) and (b) of the above sub-section provide that on a public notice having been given providing for the levy of 'conservancy tax' in regard to any portion of the City, such tax becomes leviable in respect of all premises situated in such portion of the City. Clauses (a) and (b) of the above sub-section provide that on a public notice having been given providing for the levy of 'conservancy tax' in regard to any portion of the City, such tax becomes leviable in respect of all premises situated in such portion of the City. It is also provided therein that such tax would become leviable only when 'collection, removal and disposal of all exrementitious and polluted matter from privies, urinals and cess-spools' is undertaken by the Municipal Agency. We are not concerned with the alternative conditions prescribed under clause (b ). ( 8 ) THE proviso to S. 131 (1) clearly provides for in a manner of speaking, exemption of a premises from such taxation, in the circumstances mentioned therein. By that proviso, a premises situated in the portion of the city falling within the ambit of the Notification issued under the main clause of that sub-section can be exempted from such levy, if in the opinion of the Commissioner that no such objectionable matter accumulated or deposited. Much of the argument at the Bar was based on the construction of this proviso. It seems to me clear from the opening words of the proviso, viz. , "the said tax shall not be levied in respect of any premises", that it is made imperative that any premises which does not satisfy the conditions dpecified in clauses (a) and (b) of S. 131 (1) would not be liable to pay the 'conservancy tax'. However, the non-liability to pay such tax in respect of a given premises is made dependant on an opinion to be formed by the Commissioner that no such matter as mentioned in S. 13 (1) accumulated or deposited in or on such premises. Clearly, therefore, such an opinion can be formed only if the state of facts referred to in the statutory provision exists. If such a factual basis is absent, the proviso in question would not be attracted. It follows, therefore, that any opinion which is adverse to a tax-payer, in the context of the proviso to S. 131 (1), can be questioned on the ground that the Commisioner has failed to exercise his jurisdiction on an erroneous conclusion as to the existence, or otherwise of a material fact. It is in this view of the law that the Court below had adjudicated upon the question of fact as adverted earlier. It is in this view of the law that the Court below had adjudicated upon the question of fact as adverted earlier. ( 9 ) IN the above view of the scope and ambit proviso to S. 131 (1) of the act. I am not inclined to accept the contention urged on behalf of the appellant that the opinion of the Commissioner in the context of the proviso is decisive and the same is not justiciable. ( 10 ) IN the instant case, it is clear from the reply given by the Commissioner as per Ext. P25, reproduced earlier, that the Commissioner has formed an opinion without even adverting to the facts relevant for the formation of such opinion. From the said reply it is seen thathe has not even made any attempt to apply his mind to the facts bearing on the question of existence or otherwise of the facilities referred to in clauses (a) and (b) of Sec. 131 (a) of the Act. Indeed, there is not even a reference to the factual circumstances as referred in the letter of one of the respondents, ext. P23. If the facts averred therein are true the proviso, in question would be clearly attracted thus rendering the respondents free from any liability to pay the 'conservancy tax'. The opinion of the Commissioner, therefore, and as adumbrated in Ext. 25, is clearly opposed to the facts as found by the learned District Judgr. In the light of the above discussion, this appeal fails and is accordingly dismissed with costs. --- *** --- .