1. In this case the plaintiff brought a suit for remission of certain water and house taxes alleged to have been illegally charged from him by the Municipal Board, Cawnpore. His case was that the premises were vacant for the period for which the amount had been charged and that he was entitled to a refund under Section 151, Municipalities Act. The Court below has held that the suit is not maintainable. The Bench before which the revision came up for disposal has referred to us the following question for answer:
Whether a suit, brought for remission or refund of certain house and water taxes charged by a Municipal Board for the period during which the plaintiff alleges the premises to have remained vacant, and claims remission under Section 151, Municipalities Act, is barred by Section 164 of the Act.
2. Ordinarily a suit for recovery of money due is a suit of a civil nature and would be cognizable by a civil Court under Section 9, Civil P.C., unless the claim is barred by any specific provision of the law. No doubt the amount claimed is what was recoverable by the Municipal Board as a tax, and it may be said that the Municipal Board is a part of the Local Self-Government and disputes relating to taxes recoverable by it should not be entertained by civil Courts. There are, however, numerous cases in which suits against Municipal Boards have been entertained and no such universal principle has been recognized. The main point to see is whether the Court below is right in holding that the suit is barred under Section 164, U.P. Municipalities Act (Act 2 of 1916). Now Chap. 5, and particularly Section 128, show that Municipal taxes are of several kinds: (1) Those which are imposed on buildings or lands; (2) those which are imposed on persons; and (3) other taxes, e.g., on animals, vehicles, octroi, etc. In the first case valuation and assessment may be necessary, and in the second case at least assessment would be necessary. House tax and water tax are assessed on buildings or lands based on their annual value. On the other hand there may be personal taxes, for example, on trades, callings, etc., and also on circumstances of inhabitants.
3. Chapter 5 uses various expressions relating to taxes, e.g., imposition and alteration, consolidation, assessment and levy, collection, composition, exemption, recovery and also 'refund and remission.' Obviously they all cannot mean the same thing. Sections 128-137 come under the heading, Imposition and Alteration of Taxes;' Sections 138 and 139 come under the heading, 'Consolidated Taxes;' Sections 140-152 under the heading, 'Assessment and Levy of Taxes;' Sections 153-159 under the heading, 'Collection, Composition, etc;' Sections 160-164 under the heading, 'Appeals against Taxation;' and lastly Section 165 under the heading, 'Formal Defects in Assessments and Demands.' Sections 149 and 150 have the marginal notes, 'Liability for payment of Taxes,' whereas Section 151 has the marginal note, Remission by reason of Non-occupation.' The legislature has apparently drawn a distinction between liability for payment and remission on account of a certain reason. Under Section 151 a statutory obligation is cast upon the Municipal Board, other than one constituted in a hilly tract, when a building or land has remained vacant and unproductive for 90 days or more,
to remit or refund so much of the tax of that year as may be proportionate to the number of days that the said building or land has remained vacant and unproductive of rent.
4. There is no discretion in the matter at all. The section is imperative and the Board has no option but to grant remission or refund in such cases. Now prima facie it would appear that where a statutory duty is cast upon a Board to remit or refund a certain amount of money to a tax payer, the Board should not be the sole judge in the matter whether or not it would discharge its statutory obligation. If this were so, then the imperative character of the provision would lose its force, and it would become merely discretionary. When a statutory right is created in favour of a tax-payer for remission or refund, such a statutory right ought to be enforceable in a Court of law and the Municipal Board ought to be compelled to carry out its statutory obligation in making the remission. Presumably the Municipal Board should not be allowed to have the last word on the subject Sub-section (4) also suggests the same in an indirect way inasmuch as it provides that the burden of proving the facts entitling a person to relief shall be upon him and not upon the Board. It is difficult to believe that it could have been intended by the Legislature that the Board may act arbitrarily, and simply decline to remit or refund the amount leaving no remedy to the tax-payer in spite of the express provisions of the Act. In my opinion the statutory right conferred upon a tax-payer by this section must be enforceable in a Court of law unless it be held that a claim for recovery of such an amount is expressly barred by any of the provisions of the Act. Now Sections 160-164 which come under the heading 'Appeals against taxation' show what remedies a tax-payer is allowed against the decision of the Board. Under Section 160 an appeal lies to the Collector from certain orders passed under Sections 143 and 147, and in the case of any other tax, an appeal against an assessment or alteration of assessment. Section 161 provides certain conditions relating to limitation and preliminary deposit; and Section 162 provides for a reference to the High Court; and Section 163 regulates the payment of costs. Then Section 164 says:
1. No objection shall be taken to a valuation or assessment, nor shall the liability of a person to be assessed or taxed or 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 on 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.
5. Sub-section (1) consists of two parts, the first dealing with the cases of 'valuation or assessment' which primarily refers to valuation and assessment of taxes on lands, buildings, etc; and the second 'the liability of a person to be assessed or taxed,' The second portion does not refer to the liability of any property or land to be assessed or taxed, but to the liability of 'a person' to be assessed or taxed. Now there is no section in this Chapter which fixes the liability of a person to be assessed or taxed unless the tax be a personal tax, like a tax on trades, callings etc., or circumstance tax, etc. Under Section 149 certain taxes on the annual value of buildings or land are leviable primarily from the actual occupier or from the person in whom the right vests. But in that section the word used is 'leviable,' which would obviously mean recoverable. The words 'liability of a person to be taxed' which occur in Section 164 are not used here. It, therefore, seems to me that what is prohibited is an objection to the valuation or assessment of tax on buildings and lands and not liability to pay it; and what is also prohibited is the liability of a person to be assessed or taxed, and not his right to claim a refund or remission. It has been strongly argued that if a tax is liable to be remitted or refunded under Section 151 for a particular period, then it is not liable to be paid at all, and therefore a person who claims a remission or refund is necessarily objecting to his liability to be taxed for that period. In my judgment this conclusion does not follow. The tax had been duly assessed and the building had been duly taxed.
6. Indeed, under Section 166, Sub-section (2) the occupier or owner had become liable for the payment of every tax upon the commencement of the period in respect of which such tax was payable. It may well be that the tax is actually realised in advance. It is only when later in the year it is found that the building has remained unoccupied for over three months that, on due notice being given, a refund or remission is claimable. Thus the refund or remission does not imply that the house was not liable to be taxed for that period. What it implies is that although the house was liable to be taxed and was rightly taxed, there has come into existence a statutory obligation on the Board to remit or refund so much of the tax for that year as is proportionate to the period when the building remained vacant. Section 151, Sub-section (1) does not say that the tax will not be chargeable. It merely enjoins that so much of the tax of that year should be remitted or refunded as is proportionate to the period of non-occupation. It follows that the tax really exists, but the Board is directed either to refrain from recovering a proportionate amount out of the tax if not realised, or to refund it if already realised. The words 'remit the tax' do not mean that the tax itself is completely extinguished and made nonexistent. It merely means that the Board is not to recover it, that is to say, is to refrain from realising it. The meaning of the word remit' when used with reference to payment, as given in Murray's Dictionary is 'to abstain from exacting; to allow to remain unpaid.' This also shows that the imposition of the tax is there, but the Board is to abstain from exacting it.
7. Section 164, Sub-section (2) rather suggests that the cases in which the jurisdiction of civil and criminal Courts is barred are cases which come under the heading, 'Appeals against taxation,' in which in certain events appeals lie to the Collector 1 whose order is final. This sub-section 1 refers to the order of the appellate authority being final in respect of 'valuation or assessment, or liability to assessment or 1 taxation.' Obviously these four words I are the same four words mentioned in 1 Sub-section (1) and the ranges of both the Sub-section 1 sections are co-extensive. It is, however, not necessary to decide this point finally in this ease. In Upendra Nath Basu v. Municipal Board, Benares 1934 ALJ 1067, the claim for refund of such a tax was decreed by the High Court on the assumption that such a suit was maintainable. I am therefore of the opinion that when a person is claiming a remission or refund of the Municipal tax under Section 151, U.P. Municipalities Act, he is not really objecting to the liability of himself to be assessed or taxed within the meaning of Section 164(1). My answer to the question referred to us is in the negative.
8. The question which has been referred to this Full Bench is:
Whether a suit brought for remission or refund of certain house and water taxes charged by a Municipal Board for the period during which the plaintiff alleges the premises to have remained vacant and claims remission under Section 151, Municipalities Act, is barred by Section 164 of the Act.
9. Section 151(1), Municipalities Act, runs as follows:
In a Municipality other than one situated wholly or partly in a hilly tract, when a building or land has remained vacant and unproductive of rent for ninety or more consecutive days during any year, the Board shall remit or refund so much of the tax of that year as may be proportionate to the number of days that the said building or land has remained vacant and unproductive of rent.
10. This provision is imperative, and the parson liable to pay the tax contemplated by the aforesaid section is, of right, entitled to a remission or refund of a proportionate amount of the tax, as therein provided. Where the law imposes a pecuniary obligation on a person or a local body, such obligation can be enforced in a Court of law unless its jurisdiction is expressly or by necessary implication excluded by some rule of law. It is said that Section 164, Municipalities Act, excludes the jurisdiction of every Court to entertain claims for remission or refund of taxes in terms of Section 151(1), already quoted. Section 164 runs as follows:
(1) No objection shall be taken to a valuation of 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 on 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.
11. It will be seen that Sub-section 1 applies to an objection to (a) valuation or assessment, or (b) the liability of a person to be assessed or taxed. The reference to the Full Bench thus resolves itself to the question whether a claim to remission or refund of taxes amounts to or involves an objection to valuation or assessment, or the liability of a person to be assessed or taxed, with in the meaning of Section 164(1). Valuation' implies the determination of the value of a house or land for ascertainment of a tax at a given rate, which has reference to such value. Assessment' implies the determination of the amount of tax which may or may not depend upon the value of any property. A reference to Section 128, Municipalities Act, will show that the Act contemplates a variety of taxes, some of which alone require the valuation of properties, such, as houses and lands while others have to be assessed on considerations wholly independent of the valuation of properties. The expression ' the liability of a person to be assessed or taxed' presents no difficulty, if the words ' assessed and taxed' are rightly construed.
12. The important point to be considered is whether the implication of the words 'valuation', 'assessment' and 'the liability to be assessed or taxed' embraces the idea conveyed by the words ' remission' and 'refund' used in Section 151. It seems to me that, far from this being the case, the words remission' and ' refund' presuppose previous valuation, assessment or the liability of a person to be assessed or taxed, as the case may be. When a person claims remission or refund, he accepts the valuation on which a tax is based, or the assessment which has been made, and his own liability to be assessed or taxed, but contends that the tax, properly assessed on valuation or otherwise and made payable by him, should not be recovered from him for a particular period, or, if he has already paid it, should be refunded to him. It cannot be said that he objects to the valuation on which the tax in question was based, or that the assessment which is made for the whole year was not rightly made, or that he should not have been declared liable to be assessed or taxed. He admits all these facts, and starting with such admission he offers to prove that ' a building or land has remained vacant or unproductive of rent for 90 or more consecutive days during any year' for which the tax has been assessed on valuation or otherwise and for which his liability to be assessed or taxed was determined and is no longer questioned. On proof of the condition required by Section 151, no room for any controversy is left for enforcement of the obligation laid on the Board by that section.
13. An examination of Ch. 5, Municipalities Act, in which the relevant sections occur, will show that it contains a scheme of which the object is to make that chapter self-contained in respect of valuation', 'assessment', and ' liability to be taxed or assessed' laying down the procedure therefor and the extent to which the action of the Board in those respects can be challenged by appeal. Section 128 specifies the various kinds of taxes which the Municipal Board is empowered to impose. All those taxes are not imposed by force of the Act, but the Board has to notify its proposal of imposing a particular tax and to invite objections from the inhabitants of the Municipality, who can question the propriety of the Board's proposal. Such objection is to be disposed of by the Commissioner, or the Local Government in certain cases.
14. The Commissioner or the Local Government, as the case may be, has the last word on the subject as regards the propriety of imposing a particular tax. As already stated, there is a class of taxes which vary with the valuation of houses and lands. Where the Commissioner or the Local Government, as the case may be, has allowed the imposition of such taxes, the Board has to assign an annual value to buildings and lands in the manner laid down by Section 140. The valuation is followed by assessment in accordance therewith (Section 141). The assessment list is to be published, and objections to 'valuation' and 'assessment' are invited (Section 143). Objections have to be drawn up in a given manner and are to be disposed of by the Board, or a committee empowered by delegation in its behalf, or an officer of Government or of the Board to whom the authority to dispose of the objections has been delegated. After investigation the decision of the authority empowered to dispose of the objections is to be recorded in a separate book kept for the purpose. A new valuation or assessment, whether involving valuation or not is to be made for five years (Section 145); but the Board is empowered to alter or amend the assessment list before the expiry of that period in certain cases. Where the Board amends or alters the list, the same procedure is to be adopted as in case of the original preparation of the list. Section 146 is important in this connection, and pro. vides that:
An entry in an assessment list shall be conclusive proof: (a) for any purpose connected with a tax to which the list refers, of the amount leviable in respect of any building or land during the period to which the list relates, and, (b) for the purpose of assessing any other municipal tax, of the annual value of any building or land during the said period.
15. Where an assessment, based on valuation or otherwise, is made, either originally or by amendment, an appeal is provided to the District Magistrate, whose order is declared to be final. As regards the liability of a person to pay, as distinguished from his liability to be assessed or taxed, Section 149 gives a wide latitude to the Board as regards recovery of the tax from the owner or occupier, and expressly authorises a person considering himself to be aggrieved to recover it from any other person who, according to him is primarily liable. It will be seen that Section 151, which provides for remission or refund of a tax already assessed on valuation or otherwise, does not come anywhere in the scheme provided by the Act for valuation or assessment or the determination of a person's liability to be assessed or taxed. That section stands by itself and makes the Board absolutely liable to remit or refund for the period therein provided. Having regard to the other provisions preceding Section 151, the Board can never find it difficult to discharge its obligation. The assessment list being declared conclusive by Section 146, the amount of tax payable can never be a matter of controversy. Given the fact that a building or land was unproductive of rent for 90 or more consecutive days, the Board is directed by the statute, to make a refund. The intention of the Legislature obviously is that, if the Board refuses to do what it is enjoined by the statute to do, the ordinary Courts should step in to give relief to an aggrieved person. The contention that in determining the amount of remission or refund the Court necessarily re-adjusts the valuation or assessment is, in my opinion, not correct. As I have already indicated, the 'valuation' and 'assessment' are to be made in a particular manner provided by the Act, and if remission and refund of taxes be taken to imply alteration or re-adjustment of valuation and assessment, as is contended, the procedure provided by the Act for alteration and amendment would have been made applicable which is not the case. There is hardly any decided case which can be said to be in point. In Upendra Nath Basu v. Municipal Board, Benares 1934 ALJ 1067, it was assumed rather than decided that a suit for refund is maintainable in a civil Court. The Cantonment Board v. Kanhaiya Lal 1933 ALJ 162, decided by a Bench of which 1 was a member, related to a question arising under the Cantonment Code, Rule 15 of which provides:
No objection shall be taken to an 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 prescribed under this rule.
16. It will be noticed that this phraseology is similar to Section 164(1), Municipalities Act. Kanhaiya Lal, had taken a lease for 25-years from the Secretary of State, which, provided for fixation of tax on the basis of net profit accruing to the lessee while he-was in the occupation of the 'sarai' which was the subject matter of the lease. Kanhaiya Lal instituted a suit for a declaration that the tax should be levied from him in the manner laid down by the lease. It was held that the civil Court had no jurisdiction, in view of Rule 15, already referred to, to entertain the claim. Kanhaiya Lal had objected to the assessment made by the Cantonment Board contrary to the terms of the lease. His objection was to the assessment, and therefore the jurisdiction of the civil Court was held to be ousted. If we hold in the present case that claim to remission or refund is tantamount to objection to assessment, we would be bound to hold that the jurisdiction of the civil Court is ousted by Section 164(1), Municipalities Act. The crucial question, however, is whether a claim to remission or refund is an assessment, and this question could not be and was not touched in The Cantonment Board v. Kanhaiya Lal 1933 ALJ 162 cited above.
17. I have so far considered Section 164(1). Sub-section (2) of that section has no application, as there is no order of the appellate authority confirming, setting aside or modifying an order in respect of valuation or assessment or liability to assessment or taxation in question. As a matter of fact, Section 164(1) bars objections to these matters, because they can be the subject of an appeal to the District Magistrate under Section 160. So far as the order of the Board relates to claims to remission or refund, the Act does not contemplate any appeal, or an occasion for an appeal, for the simple reason that the Board is bound to Act in the manner provided by Section 151. It may be said that a claim to remission or refund involves consideration of the question of fact whether the building or land remained vacant and unproductive of rent for 90 or more consecutive days during any year, and that any decision of the Board on that question should not, on principle, be allowed to be challenged in a civil Court. In the first place, if the law has not given finality to the decision of the Board-and to my mind the Act has nowhere given such finality-there is no reason why on a disputed question of fact between the Board and the tax-payer the civil Court should have no jurisdiction. In the second place we find that the interest of the Board has been sufficiently safeguarded by Section 151(3), which makes it incumbent on the tax-payer claiming remission to give notice in writing of the fact of the building or land being vacant and unproductive of rent to the Board, and further by Section 151, which provides for punishment of a person who fails to give notice for which remission or refund of the tax has to be given under Section 151. For the reasons stated above I answer the question referred to the Full Bench in the negative.
18. In a civil revision of a decree of the Judge, Small Cause Court, Cawnpore, the following point, as amended, has been referred to this Full Bench:
Whether a suit brought for remission or refund of certain house and water taxes charged by a Municipal Board for the period during which the plaintiff alleges the premises to have remained vacant, and claims remission under 3. 151, Municipalities Act, is barred by Section 164 of that Act.
19. The sub-section in question is: United Provinces Act 2 of 1916, Section 164(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.
20. I propose to examine the meaning of this section from four points of view: (1) Historical, (2) Logical, (3) Analogy, (4) Previous Rulings. (1) Historical. In the beginning the East India Company did not exempt its Revenue Officers etc., from the jurisdiction of the civil Courts, and in Regn. 3 of 1783, Section 10, there is a provision that Revenue Officers, salt agents, customs officers, etc, shall be amenable to the civil Courts for any acts done in their official capacity contrary to the Regulations. But in time the system has changed and by different Acts the jurisdiction of the civil Courts has been barred in matters of taxation. For example in these provinces all matters of land revenue are barred by the U.P. Land Revenue Act, Act 3 of 1901. All matters of income-tax are barred by Section 67, Act 11 of 1922. Under the Indian Forest Act, Act 16 of 1927, Section 82, money payable to Government is recoverable as if it were an arrear of land revenue, and this is also barred. Similar provisions exist for salt revenue and for customs. The existence of such provisions is recognised by Sections 9 and 4, Civil P.C. 1908, and 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. The presumption is in favour of jurisdiction. Turning now to the history of municipal legislation in these provinces, the early North-Western Provinces and Oudh Municipalities Acts of 1873 and 1883 provided for the imposition of taxes, but the Acts do not contain provisions for appeals against taxation or for the barring of the jurisdiction of the civil Courts. The Local Government had power to make rules for the assessment and collection of taxes imposed under the Acts, and those rules may have provided for appeals and for the bar of civil Court jurisdiction.
21. When we come to Act 1 of 1900, the North-Western Provinces and Oudh Municipalities Act, Ch.-5, deals with taxation and enumerates the taxes which may be imposed and the method of imposing taxes, and for appeals against the assessment or levy of any tax to the collector, Section 71(1), and then in Section 73 appears for the first time in identical language the Section 164(1) of Act 2 of 1916 under discussion, with the trifling change that any' has been replaced by a' in two places. This historical examination will, in my opinion, dispose of one of the arguments used for the applicant in revision. It was argued that Section 164 only barred the jurisdiction of the civil Court where there was a right of appeal to the District Magistrate under Section 160(1), and that there would be no such right of appeal in the present case and so the jurisdiction of the civil Court was not barred. But in Act 1 of 1900 there was a right of appeal in every case:
71(1): An appeal against the assessment or levy of any tax under this Act shall lie to the Collector, etc.
22. Accordingly Section 73 could not then be road as only barring the jurisdiction of the civil Courts in certain cases. When the present Act 2 of 1916 was passed and the right of appeal only granted in certain cases under Section 160(1), if it had been intended that the jurisdiction of the civil Court would be barred only in such cases, then this would have been expressed by a corresponding change in the language of Section 164(1). But no such change was made and the same general language was used and I think therefore that the barring of jurisdiction must be taken to remain general as before. In Act 1 of 1900 there was no provision for remission on the ground of non-occupation. This provision has been introduced for the first time in the present Act of 1916 as Section 151, and the claim of the plaintiff is that his house remained vacant for a period for which Section 151 provides that the Board 'shall remit or refund' a proportionate amount of the tax. The argument for the plaintiff applicant is that the right to remission or refund is not a matter contemplated by Section 164(1) as these words are not in that section. To this the reply is that the section was placed at the end of Ch. 5 on Taxation in Act 1 of 1900 and was intended to cover all matters in that chapter, and when it was reproduced as Section 164(1) at the end of Ch. 5 on Taxation in Act 2 of 1916 it must be taken to cover all matters in that Chapter, This leads to the next consideration.
(2) Logical-Chapter 5, Act 2 of 1916 is headed 'Municipal Taxation' and at six places there are sub-heads in italics dividing the chapter into various parts. These sub-heads are also new. They deal with imposition and alteration of taxes, consolidated taxes, assessment and levy of taxes on the annual value of buildings or lands or both, collection, composition exemption and other matters relating to taxation, appeals against taxation, formal defects in assessments and demands. I consider that as Oh. 5 deals with the whole business of taxation Section 164(1) should be read in a perfectly general meaning as applying to all the sections of Ch. 5 as it did in the former Act. The argument was put forward that it should be divided into two parts as follows: 'No objection shall be taken to a valuation or assessment' and it was said that this part alone applied to the present case of the assessment of house tax and water rate on a building. This argument was supported by the provision in Section 160(1) for appeals in such cases only against orders under Sub-section (3) of Section 143 or under Sub-section (3) of Section 147. I do not think this argument is correct because there was no such distinction in the former section for appeals, Section 71(1) of Act 1 of 1900. And also the question of valuation or assessment arises in the case of taxes other than 'taxes on the annual value of buildings or lands'; such questions arise in octroi, terminal tax, and a tax on vehicles. The second part of Section 164(1):
Nor shall the liability of a person to be assessed or taxed be questioned in any other mariner or by any other authority than is provided in this Act,
is said to relate to taxes on persons only, and it is argued that the house tax and water rate is a tax on buildings and lands and not on persons. It is argued that this part must correspond to the second part of Section 160(1):
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.
23. For the reason already given, that there has been no alteration in the language of what is now Section 164(1), although there has been alteration in the language of what is now Section 160(1), and the former section for appeals was perfectly general, I think this argument for dividing up Section 164(1) into two parts is unsound. Further I think it is unsound to say that it is the houses or lands which are taxed and not a person. The tax is merely calculated on the annual value of the buildings or lands, just as in the case of octroi a tax is calculated on the value of an article imported, but in each case it is a person who has to pay the tax. Section 149 provides for the persons who are liable for taxes on the annual value of buildings or lands. Ch. 6, 'Recovery of certain Municipal Claims,' provides for the recovery of taxes like the present on the annual value of buildings or lands by the issue of warrant and distraint, by the municipal officers of the moveable property of the defaulter. Section 176 provides for a suit by the Board, and Section 177 provides for the sums due being, after land revenue, a first charge on the buildings and lands. This chapter shows that a civil suit is not necessary for recovery, but the Board has the privilege of recovering its taxation by its own officers. Municipal taxation is therefore throughout clearly exempt from the Courts except when the Board chooses to ask for the assistance of the civil Court by a civil suit.
24. Another point is that it is logical to exclude all matters relating to taxation from the jurisdiction of the civil Courts, but it is not logical to exclude some and to include others. If some matters in regard to taxation were to be subject to the jurisdiction of the civil Courts, surely it would be the more important matters such as valuation and assessment, which under Section 145 ordinarily stand good for five years, and it would not be the less important matter, whether for a period of 90 days or more a proportionate amount of the annual tax should be remitted for non-occupation under Section 151. It was argued that such remission or refund did not come under any of the words in Section 164(1). Now as regards the word 'assessment' and the word 'valuation' it is true that there is the assessment list for five years under Section 145. But Section 151(1) in question does come under that part of Ch. 5 which has the sub-heading in italics 'Assessment and Levy of Taxes on the Annual Value of Buildings or Lands or both,' and therefore Section 151 must relate to such matters. As regards valuation, when the building is unoccupied it is of no value to anyone, and the claim to remission or refund is based on this ground. The question of Section 151(1) is therefore one of valuation and the section gives a right to a claim 'that the said building or land has remained vacant and unproductive of rent' and that the valuation entered in the assessment list is not correct for the period in question.
25. Assessment is not defined in the Act, but I may refer to a definition in Behari Lal Chatterji v. Commissioner of Income-tax (1934) ALJ 47. 'The word assessment in Section 23(4) means determining the total taxable income and the sum payable on it.' Applying this analogy from the Income-tax Act, assessment under Ch. 5, Municipalities Act, would mean 'determining the annual value of buildings or lands and the sum payable on it,' so far as the taxes in question are concerned. The question raised by Section 151(1) is therefore one of annual value and assessment. I am also of opinion that the question also comes under the words in the next clause of Section 164(1) 'the liability of a person to be assessed or taxed.' In my opinion the plaintiff desires to question his liability to be assessed or taxed for the period during which his house was unoccupied. I consider that these words do cover the owner of a house who has been assessed and taxed for a house and that the words are not confined to the case of a tax on persons, an argument which was also put forward. Ch. 6 shows that the remedy is against the person who is responsible for payment of house tax or water tax.
(3) Analogy.-The meaning of Section 164(1) in the U.P. Municipalities Act may be seen by comparison with other Acts, which also deal with Local Self-Government. This section appears in the same words in the U.P. District Boards Act, Act 10 of 1922, as Section 131(1) and (2) with the unimportant difference that after the words 'provided in this Act' follow the words 'or in the United Provinces Local Rates Act, 1914.' There are only two taxes mentioned by the Act in Section 108: (a) a local rate under Section 3, United Provinces Local Rates Act, 1914, as modified by this Act, and (b) a 'tax on circumstances and property.' The provision in this Act was for 'an appeal, against an assessment or any alteration of an assessment of a tax on circumstances and property' to the District Magistrate, in Section 128(1). These provisions appear perfectly general. The United Provinces Local Rates Act, Act 1 of 1914, provides for rates based on the annual value taken from double the land revenue. Such rates are recoverable under the Agra Tenancy Act and the Oudh Rent Act (Section 12) and under Section 14:
A suit shall not lie in any civil Court to set aside or modify any assessment of a rate imposed under this Act.
26. The various Cantonments in these provinces are under the Cantonments Act, Act 2 of 1924, which provides for taxation in Ch. 5, and under Section 60 any tax may be imposed which may be imposed in a municipal area. In Section 84 it is provided:
84(1). An appeal against the assessment or levy of, or against the refusal to refund, any tax under this Act shall lie to the District Magistrate, etc.
27. Here we have a definite provision for an appeal against a refusal to refund, and the provision for remission or refund in Section 76 is similar to that in Section 151(1), Municipalities Act. It is to be noted that Section 88, which bars the jurisdiction of the civil Court, does not reproduce the provisions of Section 164(1), Municipalities Act, but only of Section 164(2) that the order of the appellate authority is final. This matter is of some importance in view of a ruling which I now proceed to discuss.
(4) Previous Rulings.- The Cantonment Board v. Kanhaiya Lal (1933) ALJ 162 by a Bench consisting of Niamatullah, J., and Kisch, J., is of importance because the ruling sets out that the same matter came before four other Judges of this Court, Banerji and King JJ., on one occasion and Mukerji and Bennet JJ. on another occasion, and all these six Judges took the same view of the law on this subject; and further because this is the only case similar to the present which has come before the Courts in which the question of jurisdiction has been raised. The ruling sets out that Kanhaiya Lal took a lease for 25 years from the Secretary of State which provided in para. 7, 'Taxation must be based upon the net profit of the lessee while in occupation of the Sarai.' Kanhaiya Lal sued to have it declared that it was binding on the Board to have house tax and water rate assessed on the net income and he got a decree to that effect from the Subordinate Judge. His claim for a declaration that conservancy tax should not be more than Rs. 2 p. m. was dismissed, and he appealed to the High Court against this dismissal. A Bench consisting of Banerji and King, JJ. dismissed the appeal holding that the civil Court had no jurisdiction to question the liability of a person to be assessed or taxed and that the only method by which the plaintiff could challenge the order of the Cantonment Board was as provided in the rules made under the provisions of the Act for the assessment and collection of conservancy tax. Rule 15 was similar to Section 164(1), Municipalities Act:
No objection shall be taken to an 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 prescribed under this rule.
28. Kanhaiya Lal then appealed to the District Magistrate against the taxation to house tax, and water rate not being in accordance with the decree of the Subordinate Judge, and the District Magistrate made a reference of the point to the High Court and the reference came before Mukerji, J. and myself. We held that the civil Court had no jurisdiction to interfere with the assessment made by the Cantonment Board. On p. 164 it is stated:
They considered that these provisions in the Act (Ss. 84 and 88) also impliedly barred the jurisdiction of the civil Court and that therefore the decision of the Subordinate Judge in the civil suit in question is a decision which is altogether without jurisdiction and of no effect.
29. Before this decision on an application for execution of the declaratory decree the Subordinate Judge had dismissed the objection of the Board and the Board brought the appeal before Niamatullah and Kisch, JJ. They took the same view and held on p. 164:
We are in entire agreement with the view already taken by two Benches of this Court that the jurisdiction of the civil Court is excluded in all matters relating to any valuation, assessment, liability to assessment or taxation by a Cantonment Board.
30. It was further held that the civil Court could not enforce the lease as a composition arrangement, as
to accept this contention would be to allow an evasion of the provisions of the Act by which the jurisdiction of the civil Court is excluded in matters relating to Cantonment taxation.
31. It was further held that as the decree was wholly without jurisdiction and ultra vires it should be ignored and could not be put into execution, and the appeal of the Board was allowed. Now the Cantonment Board, like the Municipality, maintains an assessment list for a fixed period (three years, Section 72). The claim of Kanhaiya Lal was that in a particular year the annual value of the Sarai was less than that in the list, and that he could sue on this account in the civil Court because of the clause in his lease. In the present case the plaintiff also claims that in a particular year the annual value of his house is less than that in the list and that he can sue in the civil Court because of the provision for remission or refund in Section 151(1).
32. I do not see any distinction to be drawn between the two claims; if any distinction were to be drawn the case of Kanhaiya Lal would seem to be stronger for the jurisdiction of the civil Courts because his claim was founded on a lease, and claims on leases are ordinarily matters for the decision of civil Courts; on the other hand the present plaintiff claims under a section occurring in a Chapter on Taxation, which contains a section barring the jurisdiction of civil Courts. The other point is that Ch. 5, Cantonment Act, does not contain an express provision barring the civil Courts like Section 164(1), but the various Benches held that because of the provision in Section 88, providing like Section 164(2), Municipalities Act, that the orders of the appellate authority are final, there was an implied exclusion of the jurisdiction of the civil Courts. If such an implied exclusion was deduced in that case it seems to me that an implied exclusion should be deduced in the present case from the fact that Section 164(1) does exclude valuation, assessment, liability of a person to be assessed or taxed' and that the refund or remission must also be impliedly excluded, because to decide whether refund or remission should be made the valuation, assessment, and liability to be taxed must be decided. Then there are four cases decided by the Hon'ble Chief Justice and myself as follows: S.A. 1166 of 1931, decided on Municipal Board Muttra v. Radha Rawan 20th February 1935, where the plaintiff brought a suit for an injunction to restrain the Board from selling his property attached for non-payment of water tax. The plaintiff claimed that the Board had not supplied him with a sufficient supply of water. It was held:
Learned Counsel for the respondent argued that Section 164 merely applied to the valuation or assessment to be made of a tax and ho argued that the question of liability to taxation was not exempted by that section. But the section not only refers to valuation or assessment but also refers to the liability of a person to be assessed or taxed. The argument was that the liability to be assessed or taxed meant only the question of the amount of tax. We consider that this expression includes the liability of a person to be taxed at all and we consider that Section 164 exempts any question in regard to the liability of the plaintiff to be taxed from the jurisdiction of the civil Courts.
33. It is exactly the same argument which is now put forward which was not accepted in that ruling. The next ruling is Municipal Board Benares v. Krishna & Co. 1935 ALJ 635 and on p. 637, after quoting Section 164, the learned Chief Justice observed:
The marginal note added to the section is 'Bar to jurisdiction of civil and criminal Courts in matters of taxation.' Both the marginal note as well as the language of the two subsections indicate that it is the intention of the Legislature that matters of this kind are to be decided finally in accordance with the provisions laid down in the Municipalities Act and not otherwise, and that they should not be re-opened in any civil or criminal Court in any manner other than that which is provided in this Act. It is obviously intended that all objections to the valuation or assessment as well as the liability or assessment of taxes shall be made either to the Board or appellate authority and that the ultimate decision of the appellate authority shall be absolutely conclusive and incapable of being re-opened in any other Court except in accordance with the provisions of the Act itself.
34. It is true that that case dealt with octroi duty, and the Court held on p. 637:
No suit for a refund of octroi which has been assessed by the Municipal Board on goods imported lies in a civil Court on the ground that the goods were not in fact assessable or that the amount of assessment was excessive.
35. It seems to me that as this ruling treated the question of refund as coming under assessment, the same reasoning applied to the question of the refund in the present case coming under the term assessment. The third case is Sheo Narain v. Town Area Panchayat Chhabramau, Since reported in 1936 All 117 unreported, decided on 18th October 1935. The plaintiff, a mukhtar residing outside Chhabramau, was taxed as an occupier of land because he practised in Chhabramau tahsil and sat on the ground in the tahsil compound. He sued for a declaration that the assessment was illegal and that an injunction be granted against the defendant. The U.P. Town Areas Act, Act 2 of 1914, provides in Section 14 for a tax to be assessed on the occupiers of houses or lands within the limits of the town area according either to their circumstances or to the annual value of the houses and lands occupied by them.
36. Section 15 provides for the panchayat to prepare an assessment list which is confirmed by the Town Magistrate. Section 18 provides for an appeal to the District Magistrate 'against the assessment or levy of any tax.' Section 18(4) provides that:
The decision of the appellate authority prescribed in Sub-section (1) of this section shall be final and shall not be called in question in any Court.
37. In this case the plaintiff had appealed to the District Magistrate and had lost his appeal. In agreement with the view of the learned Single Judge (Young, J.) it was held in the L. P. A. 'Clearly by these provisions the jurisdiction of the civil Court is barred.' Reference was made to the rulings already quoted for Cantomnent Boards and Municipal Boards or the proposition, and it was held that she provisions of Section 164, Municipalities Act, were similar to the provisions of the U.P. Town Areas Act and in both Acts the jurisdiction of civil Courts was barred is regards the assessment or levy of taxation by a local self-governing body. The last of these four rulings is Town Area Committee Mahaban v. Sohan Lal, S.A. No. 248 of 1933, decided on 30th October 1935, unreported, decided on 30th October 1935. The Court below had granted the plaintiff an injunction restraining the committee from realizing a tax by attachment and sale of the property of the plaintiff. The plaintiff did lot appeal to the District Magistrate. The plaintiff was a school teacher who lived outside the Town Area but attended a school inside the Area. He claimed that the was not liable to the tax. The Court held:
In our opinion a civil suit which aims at challenging the liability of the plaintiff to pay his tax or the assessment of such a tax does lot lie.
38. There are two Bombay rulings in which a similar view has been taken: Municipality of Wai v. Krishnaji (1899) 23 Bom 446 and Morar v. Borsad Town Municipality (1900) 24 Bom 607. In the after ruling it was held on p. 609 in a suit for refund of alleged excess house tax paid to a Municipality:
Thus the valuation in the first instance is placed in the hands of a committee. By a subsequent rule a remedy against over-valuation by this committee is provided in the shape of an appeal to the general committee. It is, we think, clear that a civil Court cannot put itself in the place of, or over, either the committee or the general committee and revise the valuation made by them.
39. On a consideration of all these reasons I would answer the question referred in the affirmative and hold that the suit of the plaintiff is barred by Section 164, U.P. Municipalities Act.
40. The answer to the question referred is in the negative.