K. Srinivasa Rao, J.
1. This second appeal has been preferred by the Udipi Municipal Council whose suit for the recovery of Rs. 103-5-9 as arrears of property tax due from the three defendants has been dismissed by the Courts below. The tax is sought to be levied under Section 81(3), Madras District Municipalities Act (hereinafter referred to as the Act) on 6 acres and 88 cents of vacant land belonging to the defendants and situate within the limits of the municipality. The defendants, here respondents, resist the claim on the grounds that they should: have been assessed to property tax under Section 81 (i) of the Act and not under Section 81 (3) and they should have been separately and individually assessed on the share of the property held by each of them. Their contentions were accepted by the Courts below. It is unnecessary to set out Other defences which are not now material.
2. The appellant urged two points before me: (i) the assessment in this case was rightly made under Section 81 (3) of the Act, and (ii) even otherwise, it is not open to the civil Court to decide on the propriety of the assessment in this case. Lands which are not used exclusively for agricultural purposes are taxable on a percentage of their capital value under Section 81 (3), while lands used exclusively for agricultural purposes are taxable on a proportion of their annual value under Section 81 (4). The burden of the tax is lighter in the latter cases than in the former. The property in question is a vacant land overgrown with a few wild plants and shrubs of spontaneous growth whose leaves are said to be used as manure for cultivable lands. The question is whether when the vacant site in question has never been ploughed, tilled or sown at any time and no tree or shrub has been planted by the owner, it could be said that the land has been used exclusively for agricultural purposes merely because the leaves of the shrubs growing on the plot are used for manuring other lands.
3. It has been held that income derived from forest trees of spontaneous growth and jungle fruits is not 'agricultural income' within the meaning of the Income-tax Act. Yuvarajah of Pitapuram v. Commissioner of Income-tax : (1946)1MLJ120 , Province of Bihar v. Pratap Udainath Sahi Deo : AIR1941Pat289 . Under the Income-tax Act, 'agricultural income' means income derived from land which is used for agricultural purposes. In Kaju Mal v. Saligram, 5 Lah. 50 : A. I. R. 1924 P. C. 1 the Judicial Committee affirmed a decision of the Lahore High Court to the effect that a bit of natural forest which did not lie within a village site was exempt from pre-emption as it was not agricultural land or land used for purposes subservient to agriculture. In Kesho Prasad Singh V. Sheo Prakish Ojha, 46 ALL. 831 : A. I. R. 1924 P. C. 247, it was held that a mango tope was not land used for agricultural purposes within the meaning of Section 79, Agra Tenancy Act, 1901. 'Agriculture' in its ordinary and primary sense implies the tillage or cultivation of the soil by human effort with or without the aid of animal or mechanical power. It is also used in a wider sense to cover the allied pursuits of harvesting and gathering in the crops and the rearing of live stock, see c). An anthology of Indian decision on this topic will be found in Sarojini Devi v. Srikrishna : AIR1944Mad401 , where this Court held that a mango grove was 'agricultural land, within the meaning of the Hindu Women's Eights to Property Act'. The meaning of the expressions 'agricultural' 'agricultural land' and 'agricultural purposes' would depend upon the definitions of these terms in various enactments and the object and purpose of such enactments. In Emparor v. Alexander Allen, 25 Mad. 627 : 12 M. L. J. 393, it was held that pasture lands must be considered to be lands used solely 'for agricultural purposes' within the meaning of Section 63, Madras District Municipalities Act of 1884 as amended in 1897 which was then in force. The language of Section 81 (4) of the Act is similar and applies to land used 'exclusive for agricultural purposes.' If a piece of urban vacant site is exclusively used as a granary for storing the produce of agricultural land or as a cattle shed for plough bulls or as a storehouse for manure or agricultural implements or even for the purpose of growing plants to be used as manure for agriculture, it must be held to be used for 'agricultural purposes' within the meaning of Section 81 (4). See Murugesa Chetti v. Chinnathambi Goundan, 24 Mad. 421. The land itself need not be tilled or cultivated nor need any produce be raised therein by human effort. Section 88 (4) is not confined to cultivable or agricultural land and applies to land exclusively used for agricultural purposes. In this case, it is in evidence of P. W. 1 that dried leaves of the shrubs on vacant plots like the present one are collected and used as fuel while green leaves are used as bedding for cattle and manure for cultivable lands. D. W. 1 admits that the shrubs and plants on this land may grow into trees fit for firewood and that the dry leaves of the plants are used as fuel. On this evidence it cannot be said that the land now sought to be assessed is used exclusively for agricultural purposes.
4. Further I consider that the Court had no power to interfere with the assessment levied by the Municipal Council or its executive authority in this case. Section 854 (1) of the Act, omitting portions not now relevant, is as follows :
'No assessment or demand made, and no charge imposed, under the authority of this Act shall be impeached or affected by reason of any mistake is respect of the amount assessed, demanded or charged; provided that the provisions of this Act have been, in substance and affect, complied with.'
It has no doubt been held by this Court that where the basis of the assessment is itself erroneous, the levy of tax on that basis is illegal and it is open to the Court to interfere and prevent the unauthorised levy or order a refund if the tax has been collected under compulsion. Municipal Council, Mangalore v. The Codial Bail Press, 27 Mad. 547, Sankaranarayana Reddi v. Taluk Board, Aruppukottai : AIR1938Mad211 . Balasuryaprasadarao v. Taluk Board, Chicacole : AIR1931Mad822 , Kamaraja Pandia Naicker v. Secretary of State, 69 M. L. J. 695: A. I. R. 1936 Mad. 269. But these cases have, in my opinion, no application to the facts of the present case. The Municipal Council was empowered to levy an assessment under Section 81 (3) and (4) of the Act on vacant land. If the land was used exclusively for agricultural purposes, the assessing authority had to proceed under Section 81 (4) and if not, under Section 81 (3). It has power to determine and determined the question of fact on the evidence and materials available and its conclusion was that the land in question was not used exclusively for agricultural purposes. It may be that a different view on the facts is possible. All that can be said for the respondents is that the executive authority of the Municipal Council came to a wrong conclusion on a matter of fact which it was within its competence to decide. If so, their remedy was by way of an appeal to the Municipal Council. The civil Court cannot assume the powers of the assessing authority and investigate the facts afresh to find out whether its conclusion on the facts is correct. If on the facts found, assumed or admitted by the assessing authority, the assessment is found to have proceeded on an erroneous basis, the civil Courts can step in and declare the invalidity of the assessment on the ground that the provisions of the Act have not been in substance and effect complied with. No statutory body can give itself power to impose a tax on citizens by on erroneous interpretation of the taxing provisions in the statute and if it does so, the aggrieved tax-payer has a right to get redress in the ordinary Courts. In the present case, however, I am of the opinion that the assessment cannot be assailed on this ground. The error, if any, related to the appreciation of the materials available for arriving at a conclusion on a question of fact which the assessing authority had to determine in the course of making an assessment.
5. Lastly there remains the question of the liability of the different defendants in respect of the tax demanded by the Municipality. It has been found by the Courts below that respondents 1, 2 and 3 have distinct and separate shares in the lands sought to be assessed and they have been separately assessed to property tax for many years in the past. The lower appellate Court has held that the clubbing together of the three assessments into one and the removal of the names of respondents 2 and 3 from the assessment register without notice to them was improper and that there was no demand in respect of the property tax on respondents 2 and 3. On these grounds, respondents 2 and 3 have been exonerated from liability by the lower appellate Court irrespective of the correctness of its conclusion on the other points in the case. Mr. K. Kuttikrishna Menon, the learned counsel for the appellant, could not dispute the correctness of the decision of the lower appellate Court on this last point.
6. I reverse the decision of the lower appellate Court and remand the appeal for disposal on the merits. There will be no order as to costs in this second appeal.
7. It is represented that respondent 1 has deposited the amount payable by him and that a remand is unnecessary. I therefore direct that the second appeal be dismissed.