1. Two tax-payers who wore plying a motor vehicle for hire sued the defendant Municipal Board of Benares for a declaration that the motor vehicle used by them was a motor car assessable to duty at the rate of Rs. 25 per annum and not a motor lorry assessable at the rate of Rs. 100 per annum. Both the subordinate Courts granted the declaration, whereupon the Municipal Board has come here in second appeal. Like most concerns with which one is acquainted, the Municipal Board of Benares evidently carries on its business by rule of thumb and has found itself in somewhat unpleasant situation in this suit. The plaintiff's car was assessed at Rs. 25, and when they took Rs. 12-8-0 for six months for payment to the municipality they were told that after the body was changed the car was assessable at Rs. 100. Both the sub ordinate Courts, however, stated that there has been no regular assessment. No assessment book has been produced before this Court to indicate that the plaintiffs have been assessed to a tax of Rs. 100. The learned counsel here engaged by the municipality pointed to para. 5 of the plaint. In that paragraph nothing is said as to actual assessment, but the words used are that the defendant has been classing the vehicle as a lorry liable to an annual tax of Rs. 100. After making such a statement, the plaintiffs were not prevented from raising the objection that there was no regular assessment and that, therefore, the jurisdiction of the civil Court as laid down under Section 190, Municipalities Act, was not barred. The judgment of the first Court was passed as far back as 13th September 1927, that is, more than two years ago. An appeal was filed to the District Judge in which no assertion was made that the plaintiffs had been assessed according to rule, though the trial Court had definitely stated that no such assessment was made. This is not to be wondered at because the grounds of appeal are signed by an executive officer of the municipality Mr.B.P. Mehta, presumably unacquainted with law, and the learned vakil has coyly put his signature at one side as if disclaiming responsibility for the grounds of appeal. Even in this Court after more than two years no assessment register is produced to satisfy me that there had been an assessment of the plaintiffs for a sum of Rs. 100 per annum. Section 160, Municipalities Act, 1916, permits an appeal to the District Magistrate, but an appeal can only be filed from some kind of order and not against a verbal direction of an official of the municipality. In the case of a tax assessed by the municipality an appeal against an assessment or any alteration of an assessment may be made to the District Magistrate. In the present case both the subordinate Courts have held that there has been no assessment. No evidence is produced before me to come to a contrary conclusion. For that reason the provisions of Section 160, Municipalities Act, do not apply and the civil Court has jurisdiction.
2. It was next argued that the body with a seating capacity for ten passengers having been placed on a Ford car it must be designated as a lorry. A lorry however, is defined as stated in the judgment of the lower appellate Court as a vehicle for the carriage of goods or goods and passengers. The main characteristic, therefore, of a lorry is that of a vehicle for the carriage of goods. The vehicle in dispute is not such, and, therefore, cannot be designated as a lorry. Reference was made to a definition given in the previous rules of 1st March 1924. Those rules, however, appear to have been superseded by the rules published in the Gazette of 21st January 1928.
3. This appeal is dismissed with costs.
4. Mr. Harnandan Prasad desired to produce further evidence. I refuse to permit it as the municipality had sufficient warning for the last two years to prove in the lower appellate Court or here that the plaintiffs had been assessed according to rules.