1. This is a defendants appeal arising out of a suit in which the plaintiff claimed a declaration that a certain house in the Municipality of Benares was not liable to be assessed to water-tax amounting to Rs. 151-3-6 and that the plaintiff was entitled to an order for the refund of this amount which had been deposited by him and further Rs. 200 in name of damages on account of the illegal attachment of the plaintiff's property.
2. The plaintiff averred that the Municipality attached his property and that he had to pay the sum of Rs. 151-3-6 in name of water-tax in order to have the property released. That a certain amount was due by the plaintiff to the defendant is not disputed. The attachment was in respect not only of water-tax but in respect of house-tax. It is a matter of admission that the plaintiff was not liable to be assessed in respect of water-tax. It was contended however for the Municipal Board that the plaintiff had in fact been assessed for water-tax and that in view of the provisions of Section 164, Municipalities Act, he was not entitled to sue in the Civil Court for a refund of the amount deposited by him. The trial Court decreed the suit. The lower Appellate Court recalled the order of the learned Munsif and dismissed the suit. The plaintiff appealed and the learned Judge before whom the matter came in second appeal in this Court has set aside the order of the lower Appellate Court and restored the order of the trial Court. The main question for consideration in the appeal is whether the plaintiff is entitled to maintain a suit in the Civil Court in view of the provisions of the Municipalities Act. Section 164(1) of the Act is in the following terms:
(1) No objection shall be taken to a valuation or assessment, nor 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) The order of the appellate authority confirming, setting aside or modifying an order in respect of valuation or assessment or liability to assessment or taxation shall be final : provided that it shall be lawful for the appellate authority upon application or his own motion, to review any order passed by him in appeal by a further order passed within three months from the date of his original order.
3. Now the facts of the present case are that the plaintiff's house 'is not within a radius of 600 feet from the nearest standpipe nor has it got any water-pipe connexion;' in other words the Municipality supplies no water at all to the plaintiff. Nevertheless, he received a notice in which it is alleged he was 'assessed' in respect of waters-tax. It appears from the judgment of the learned single Judge who disposed of the second appeal that upon receipt of this notice the plaintiff filed an objection under Section 143, Municipalities Act, claiming exemption upon the ground that his house was beyond the prescribed radius. It appears that the Municipal Board passed no orders upon this objection. The plaintiff's name was however included in the final assessment list and accordingly the Municipal Board held him liable to pay the water-tax. Section 143, Municipalities Act makes provision for the consideration of objections by parties who have had notice of assessment. Sub-section (2) of Section 143 enjoins that
all objections to valuations and assessments shall be made to the board, before the date fixed in the notice, by application in writing stating the grounds on which the valuation and assessment are disputed, and all applications so made shall be registered in a book to be kept by the board for the purpose.
4. The Section goes on to provide for the investigation by the Board of objections. Section 144 provides:
When all objections made under Section 143 have been disposed of, and all amendments required by Sub-section (3) of that Section have been made in the assessment list, the said list shall be authenticated by the signature of the chairman or, in the case of delegation under Section 143 to a committee or to an officer of Government or of the board, by the signatures of not less than two members of such committee or by the signature of the officer aforesaid; and the person or persons so authenticating the list shall certify the consideration of all objections duly made and the amendment of the list so far as required by the decisions on such objections.
5. The Section further provides that the list so authenticated shall be deposited in the Municipal office, and shall thereupon, be declared by public notice to be open for inspection. Rule 160, Municipalities Act provides for appeals against taxation. The Section is in the following terms:
In the case of a tax assessed upon the annual value of buildings or lands or both an appeal against an order passed under Sub-section (3) of Section 143 or under Sub-section (3) of Section 147, and in the case of any other tax, an appeal against an assessment, or any alteration of an assessment, may be made to the District Magistrate or to such other officer as may be empowered by the Local Government in this behalf.
6. It will be observed that the right of appeal given in respect of assessment for annual value on buildings or lands is an appeal to the District Magistrate against an order passed by the Municipality under Sub-section (3) of Section 143. In so far as the plaintiff's property is concerned, no order was passed under Section 143(3). In the result the plaintiff by the conduct of the Municipal Board was deprived of the only remedy against arbitrary action of the Board that was open to him under the provisions of the Act.
7. Learned Counsel for the Board contended that although it might well be that the plaintiff had been deprived of his only remedy the terms of Section 164 were clear and unqualified and that it was not open to the Civil Court to give the plaintiff any relief whatever. In other words, learned Counsel contended, once a party's name appeared upon an assessment list, no matter how it got there, he was liable to pay the amount entered against his name and he had no remedy whatever. Under Section 164 'no objection shall be taken to a valuation or assessment.' In the present case we are concerned with an alleged assessment. No question of personal liability arises. In the case of liability of a person to be assessed, an appeal is provided by Section 160 against the assessment itself, but in respect of assessment of property, 'upon the annual value of buildings or lands,' the appeal is against the order passed upon the objections of the person assessed under Section 143(3).
8. Now in our judgment so far as the plain, tiff was concerned he was never 'assessed' at all inasmuch as the procedure prescribed by the mandatory provisions of Section 143, Municipalities Act, was not followed. Learned Counsel for the appellant contended that it was well established law that a mere irregularity in procedure by the Municipal Board or a public authority would not confer jurisdiction upon the Civil Courts. In the present case however, we are not concerned with a mere irregularity. There is provision for irregularities and for the formal defects in assessments and demands in Section 165 of the Act. But the flagrant disregard by the Board of the provisions of Section 143 of the Act, was no mere irregularity. No doubt such irregularities and errors as are referred to in Section 165 would not have the effect of conferring jurisdiction upon the Civil Court in respect of a dispute between a Municipal Board and the party assessed. Here however we are concerned with something far more serious than a mere irregularity. In our judgment the procedure prescribed by the Act having been entirely ignored by the Municipal Board there was no assessment within the meaning of Section 164. We would observe in this connexion that the provisions relating to assessments and to the fixing of the liability of owners of property are mandatory. Learned Counsel for the appellants contended that the appellants in the ordinary course of their administrative duties had prepared an assessment roll which included the plaintiff's name, and that as that roll was conclusive it could not be challenged. An assessment roll properly prepared in conformity with the provisions of the Act is-made conclusive and for the very good reason that those provisions afford ample protection to the tax-payer. Under Section 143, any party who wishes to object to his being, assessed or to the amount of his assessment may prefer an objection. If he is dissatisfied with the decision of the Board upon his objection he has a right of appeal to the District Magistrate and the District Magistrate's decision is final. A roll prepared in accordance with the provisions of Sections 142, 143 and 144 can be reasonably regarded as conclusive proof of the liability of the persons whose names appear on the roll. No such sanctity however attaches to a document which has been prepared in utter disregard of the provisions of the aforementioned Sections. If the argument for the Municipal Board is sound then it is open to the Board to include the name of any person in the roll whether he has been given an opportunity of objecting to his assessment or not, or even where the District Magistrate has upheld his objection to the assessment and he has no remedy by way of suit in the Civil Courts, that is he has no legal remedy at all. We are un-able to hold that the Legislature so intended. In our judgment the intention of the Legislature is plain. The word 'assessment' in Section 164 of the Act means, in our view, assessment in accordance with the provisions of Section 142, 143 and 144 of the Act. Upon general principle, even if two interpretations are possible, we would without hesitation reject that interpretation of the Act which would have the effect of depriving the citizen of his only remedy in respect of arbitrary and illegal acts of the Municipality.
9. If the Municipality by its conduct deprives the citizen of the only remedy which is open to him under the Act then, in our judgment, the citizen has his remedy under Section 9, Civil P.C. By Section 9 the Civil Courts have jurisdiction to try 'all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.' It was contended for the appellants that even under the provisions of Section 9, Civil P.C., the plaintiff was not entitled to maintain the present suit. This contention was based upon an observation by a learned Judge of this Court in the course of the judgment in Sheo Narain v. Town Area Panchayat Chhabramau : AIR1936All117 . It was observed in the judgment that a suit between a subject and a branch of Local Self. Government is not a suit which deals with civil rights. Civil suits were defined by the learned Judge as 'suits between subject and subject dealing with Civil rights.' With respect we are unable to accept this definition as exhaustive or satisfactory. There are many suits which a subject may maintain against a Local Government and against the State which cannot be regarded as anything else but Civil suits within the meaning of Section 9, Civil P.C. In our view it is not the status of the parties to the suit but the subject matter of the suit which determines whether or not the suit is one of a civil nature, |and we bold that under the provisions of Section 9 the plaintiff was entitled to prosecute the present suit for the recovery of money which had been in fact illegally extorted from him by the Municipal Board of Benares. In the suit he does not seek to question any 'assessment' within the meaning of the provisions of the Municipalities Act. He seeks to recover money which by an illegal device the Municipal Board of Benares forced him to pay without having 'assessed' his property at all. We hold therefore that the suit is not barred by the provisions of Section 164, Municipalities Act, or of Section 9, Civil P.C.
10. The plaintiff has been awarded Rs. 200 in name of damages. Learned Counsel for the appellants contended that inasmuch as the attachment was not only in respect of water-tax but also in respect of house-tax the liability in respect of which he has not denied the plaintiff was not entitled to damages. There is no force in this argument. The attachment was in respect of the total amount claimed by the Municipal Board, including Rs. 151-3-6. The Board were not entitled to recover this sum. Therefore the Board in attaching the property in respect of it did the plaintiff a wrong and the plaintiff, in law is entitled to damages. We see no reason to interfere with the decree for damages which has been passed. We are satisfied upon the whole matter that there is no force in this appeal. The appeal is accordingly dismissed with costs.
11. Under the provisions of the Civil Procedure Code, it is not open to us to award special costs against the appellants. If it had been open to us we certainly would have awarded special costs. We desire to take this opportunity of stating that the conduct of the Municipal Board in reference to the plaintiff's claim has been in our opinion characterized by a disgraceful lack of sense of responsibility. It is a matter of admission that in fact the plaintiff was not liable to pay water-tax. The Municipality supplied him with no water, and his house is not within a radius of 600 feet of the nearest stand-pipe. If the Municipal Board had acted honestly and consistently with their position and responsibility as an authority representing the public interest they would immediately have returned the amount of Rs. 151-3-6 which they wrong, fully extorted from the plaintiff when his property was freed from attachment. Even if the defence preferred by the Board was technically sound from a legal standpoint it is not one on which any responsible public authority should have insisted. The conduct of the Board in the matter in our view has been highly discreditable.