1. This second appeal arises out of a suit brought by the Commissioner of the Municipal Council, Vizagapatam, for the recovery of the land tax alleged to be due for a certain site for the years 1940-41, 1941-42 and 1942-43 and for the first half-year of 1943-44 at Rs. 76-4-0 a year. It appears that up to 1940 a house and site of about 4 acres had been assessed as if the whole of the 4 acres was adjacent and appurtenant to the house. In 1940, however, on the report of a Special Officer some 3 acres out of the 4 were excluded from the site held to be appurtenant to the house and were separately taxed. It was in respect of the tax due on the land held not to be appurtenant to the house that the suit was brought, and the defendants maintained that they were not liable to pay the tax, because this part of the site was appurtenant to the house. On the question of fact both the lower Courts have held that the land in question was appurtenant to the house so that a separate tax should not have been levied and the suit has been dismissed. In the lower appellate Court it was argued for the Municipality that by reason of the provisions of Section 354 of the Madras District Municipalities Act it was not open to the defendants to impeach the assessment made, because in making it the provisions of the Act had been in substance and effect complied with, and this is the contention on which the second appeal has been supported. The learned Subordinate Judge repelled that contention on the ground that, as the defendants questioned' the liability of the land to be assessed as a separate entity from the building, this went to the root of the assessment so that it was not a mere defect in form or ' of conforming to the provisions of the Act.' There is clearly a great deal more in the contention than the learned judge has seen.
2. Section 354(1) of the Madras District Municipalities Act reads:
No assessment or demand made, and no charge imposed, under the authority of this Act, shall be impeached or affected by reason of any clerical error or by reason of any mistake (a) in respect of the name, residence, place of business or occupation of any person, or (b) in the description of any property or thing, or (c) in respect of the amount assessed, demanded or charged : provided that the provisions of this Act have been, in substance and effect complied with. And no proceedings under this Act shall, (merely) for defect in form, be quashed or set aside by any Court of Justice.
For the appellant it is argued that an assessment can only be impeached in a Civil Court where the assessment is based on a mistaken view of the provisions of the Act or some express provision of the Act has been contravened. In the present case, it is said, there can be no question of a misinterpretation of the provisions of the Act or a contravention of its provisions. Under Section 81(3) a Municipal Council can impose a property tax on lands which are not adjacent or appurtenant to buildings, and it is argued that the question whether the particular land on which the tax now in question has been levied is appurtenant to the house or not is a question of fact, so that even if the Municipal Council should have been wrong in holding that this particular site is not appurtenant to the house it would still in substance and effect have complied with the provisions of the Act within the meaning of Section 354 and the assessment could not be impeached in a Civil Court. In my opinion, this contention must be accepted. No doubt the question whether the jurisdiction of a Civil Court is ousted by virtue of Section 354 will depend on the facts of each case, and some cases will be nearer to the line of division than others.
3. All the cases, however, cited in support of the defendants' contention that the Civil Court has jurisdiction seem to me to involve something more than a mere mistake of fact on the part of the Municipal authorities. In Municipal Council, Cocanada v. The Standard Life Assurance Co. : (1900)10MLJ401 , there was no dispute about the facts, and it was admitted that on the facts the Assurance company was not doing business within the limits of the Municipality. That being so, to tax the company was to do something which the Act did not permit. In Municipal Council, Cocanada v. Royal Insurance Co. Liverpool I.L.R. (1897) Mad. 5, it was held that the tax had been illegally levied. There was no dispute about the facts. Again in Municipal Council of Mangalore v. The Cordial Bail Press (1903) 14 M.L.J. 410 : I.L.R. 27 Mad. 547, it was held that the plaintiffs were entitled to maintain the suit against the Municipality for recovery of the sum collected under the Act, because the assessment was made on the estimated gross income whereas by the provisions of the Act itself it could only be made on the estimated net income. On the other hand, in Kamayya v. Leman I.L.R. (1878) Mad. 37, where a suit was brought to recover profession tax levied by the Municipal Commissioners of Guntur on the plaintiff on the supposition that he carried on business as an agent whereas he carried on no such business it was held that the Court had no jurisdiction to adjudicate on the matter, because, the provisions of the Act had been complied with and, in cases of an error of fact, the only remedy was an appeal under Section 85 to the Municipal Commissioners themselves. A similar case was decided by Jackson, J., in Pattarani Purnachandra Mala Jamna Devi v. President, Taluk Board, Chicacole 113 Ind.Cas. 560. There again, a suit was brought to recover the amount collected on the ground that a person practiced a profession within the limits of the Taluk Board whereas, in fact, she had not done so. It was held that a Civil Court had no jurisdiction. Cases could be multiplied, but it seems to me that the two Madras cases are on all fours with the present case. Where there has been or there is alleged to have been a mistake of fact, the remedy is by way of an appeal to the Municipal Council, and the Civil Court has no jurisdiction, provided that the provisions of the Act have been in substance and effect complied with. It is not suggested in the present case that the provisions of the Act have not been in substance and effect complied with, and even if the site in question or some of it should have been held to have been appurtenant to the house, that is merely an error of fact in making the assessment. The assessment was one which the Municipality had the power to make and it seems to me clear that there has been no contravention of any express provisions of the Act and no mistaken view of the provisions of the Act. In this view it was not open to the lower Courts to go into the question whether the assessment was correct or not. The only remedy of the defendants was to appeal to the Municipal Council within one month, and as that was not done, they have become liable to pay the tax according to the assessment that has been made.
4. The appeal must therefore be allowed with costs throughout. There will be a decree in favour of the plaintiff on the basis of the findings of the trial Court with regard to the liability of the parties.
5. Leave to appeal is refused.