1. This is a plaintiff second appeal arising out of a suit for refund of licensing fees alleged to have been illegally levied, and for damages. The plaintiff owns a limo factory at Muhiuddinpur, outside the limits of the Municipal Board of Meerut. He owns a number of thelas drawn by buffaloes, by means of which he delivers Lime to his customers. It appears that on 4th and 6th September 1934 two of these thelas wore carrying lime to the Sadar Bazar within the municipal limits when they were stopped by the licensing inspector of the Municipal Board. The latter demanded licensing fees at the rate of Rs. 12 per thela and detained the two thelas at the Municipal office, while the thela walas were allowed to return with the buffaloes and make their report to their employer. Subsequently, the plaintiff paid the taxes under protest and thereafter he instituted this suit, alleging that the taxes had been illegally levied and that his thelas had been wrongfully detained. He accordingly claimed a refund of Rs. 24 on account of the taxes which he had paid and also Rs. 24 as damages. The trial Court decreed the suit for refund of Rs. 24 on account of the licensing taxes which the plaintiff had to pay and also for one rupee as nominal damages. The lower Appellate Court found it not proved that the thelas were either kept or plied for hire within the municipal limits within the meaning of Section 128(iv), Municipalities Act, but the learned Judge reversed the decree of the trial Court and dismissed the suit on the ground that the suit was barred under the provisions of Section 164 of the Act. Section 164(1) of the Act provides:
No objection shall be taken to a valuation or assessment, not shall the liability of a person to be assessed or taxed be questioned in any other manner or by any other authority than is provided in this Act.
2. In Municipal Board Benares v. Krishna & Co. : AIR1935All760 the plaintiff had instituted a suit for refund of octroi duty which had been assessed by the Municipal Board on goods imported into Benares on the ground that the goods were not in fact assessable, and it was held by a Bench of this Court consisting of Sulaiman C.J. and Bennet J. that, in view of the provisions of Section 164, Municipalities Act, such a suit does not lie in the Civil Court. Learned Counsel for the plaintiff-appellant concedes before me that the facts of that case are virtually indistinguishable from the facts of the case with which I am now dealing, but he pleads that that decision has been in fact overruled by a Full Bench in Munna Lal v. Municipal Board Cawnpore : AIR1936All676 . In the last-named case a suit was brought for remission or refund of certain house-taxes and water taxes which had been charged by a Municipal Board for a period during which the premises had remained vacant. Remission was claimed under Section 151, Municipalities Act, and it was held by a majority of the Full Bench, (Bennet J. dissenting), that the suit was not barred by Section 164 of the Act. It will be observed that neither Sulaiman C.J. nor Niamatullah J. made any reference to the case in Municipal Board Benares v. Krishna & Co. : AIR1935All760 although Sulaiman C.J. had himself been a member of the Bench which heard that case; and the reason why they made no reference to it obviously was that in their opinion, in the case which they were then hearing as members of the Full Bench, the plaintiff was not objecting to his liability to assessment or taxation. They then held, on grounds which are irrelevant to the case now before me, that the suit was not barred by Section 164, Municipalities Act. Bennet J., on the other hand, was of opinion that the reasoning in Municipal Board Benares v. Krishna & Co. : AIR1935All760 was applicable in a claim for refund, such as the Full Bench had before it. For this reason he was of opinion that the suit was barred by Section 164 of the Act. In my opinion the law as laid down by the Division Bench in Municipal Board Benares v. Krishna & Co. : AIR1935All760 is unaffected by the view expressed by the majority of the Full Bench in Munna Lal v. Municipal Board Cawnpore : AIR1936All676 . Accordingly, following the decision of the Division Bench in the former case, I hold that the view taken by the lower Appellate Court was right, and I accordingly dismiss this appeal with costs. Leave to appeal under the Letters Patent is granted.