1. The question raised in this Rule is whether the Munsif was right in holding that the assessment of tax on the defendant by the Municipality was ultra vires.
2. It is found that the defendant had property within the jurisdiction of the Municipality, the annual value of which is only Rs. 76, and that the tax on such property could not exceed Rs. 1, as was admitted by the officer of the Municipality examined in the case.
3. The Court below has come to the conclusion that the circumstances and property of the defendant outside the Municipality were taken into consideration by the Commissioners in assessing the defendant with a tax of Rs. 9.
4. Section 85 of the Bengal Act III of 1884 lays down that 'the Commissioners may, (to quote only so much of the section as is necessary) from time to time, at a meeting convened expressly for the purpose...impose within the limits of the Municipality....A tax upon persons occupying holdings within the Municipality according to their circumstances and property within the Municipality.'
5. It is clear, therefore, that it is only the circumstances and property within the Municipality, and not circumstances and property outside the Municipality, that are to be considered. This has also been clearly laid down in Kameshwar Pershad v. Chairman of the Bhabua Municipality 27 C. 894 : 14 Ind. Dec. (N.S.) 556, Chairman of Giridih Municipality v. Srish Chandra Mozumdar 35 C. 859 : 12 C.W.N. 709 : 7 C.L.J. 631. Deb Narain Dutt V. Chairman Bariupur Municipality 12 Ind. Cas. 32 : 39 C. 141. Deb Narain Datta v. Chairman Baruipur Municipality 20 Ind. Cas. 264 : 41 C. 168 : 19 C.L.J. 205 : 17 C.W.N. 1230. It was also held in those cases that the assessment of tax with reference to the circumstances and property outside the Municipality is ultra vires.
6. It is contended by the learned Pleader for the petitioner that the defendant in the present case objected to the assessment, and under Section 113 of the Municipal Act applied to the Commissioners to review the amount of assessment, that the application was heard by a committee under Section 114 and was disallowed, and that under that section the decision of the Commissioners in such cases is final. It is accordingly urged that no suit lies in respect of such assessment, as Section 116 lays down that no objection shall be taken to any assessment or rating in any other manner than is provided in the Acts. Reliance was also placed on the cases of Manessur Dass v. Collector and Municipal Commissioners of Chapra 1 C. 409 : 1 Ind. Dec.(N.S.) 256, and Chairman, Municipal Board, Chapra v. Basudeo Narain Singh 5 Ind. Cas. 321 : 37 C. 374 : 14 C.W.N. 437 : 11 C.L.J. 400.
7. There is no doubt that if the question relates to the amount of assessment of the holding according to the circumstances and property within the Municipality, then the decision of the Commissioners is final under Section 114, and the Civil Court has no power to re-open the question of the assessment of the holding which, has been heard and decided by the Municipal Commissioners. Here, however, it is found that the assessment was made not only with respect to the holding the defendant had within the Municipality, but also in respect of circumstances and property outside the jurisdiction of the Municipality. That being so, the assessment was ultra vires and this distinguishes the cases relied on by the learned Pleader for the petitioner.
8. It has been held in a number of cases that Section 116 of the Bengal Municipal Act does not take away the jurisdiction of Civil Courts in a case in which it is alleged and established that the assessment, the propriety of which is in controversy, is open to objection on the ground that it is ultra vires; in other words, it is only when the action of the Municipality has been exercised in conformity with the powers conferred upon it by the Act that the Civil Court has no authority to interfere: see Chairman of Giridih Municipality v. Srish Chandra Mozumdar 35 C. 859 : 12 C.W.N. 709 : 7 C.L.J. 631.
9. It may be pointed out that in the case of Deb Narain Dutt v. Chairman Baruipur Municipality 12 Ind. Cas. 32 : 39 C. 141, and Deb Narain Datta v. Chairman Baruipur Municipality 20 Ind. Cas. 264 : 41 C. 168 : 19 C.L.J. 205 : 17 C.W.N. 1230, a portion of tile property was situated within the Municipality, the annual value of which was Rs. 800 out of the total amount, of Rs. 6,000 upon which the plaintiff in that case had been assessed by the Municipality, and that the plaintiff took proceedings under Section 114. In the case of Kameshwar Pershad v. Chairman of the Bhabua Municipality 27 C. 849 : 14 Ind. Dec.(N.S.) 556, also the plaintiff took proceedings under Section 114.
10. The person who has taken exception to the assessment is the defendant in the present case but that does not make any difference. If the assessment was not in conformity with statutory provisions and was ultra vires, it is open to the assesses to raise the question by way of defence to an action for, recovery of the tax. See the case of Chairman of Giridih Municipality v. Srish Chandra Mozumdar 35 C. 859 : 12 C.W.N. 709 : 7 C.L.J. 631.
11. In the result, the Rule fails and is discharged with costs, one gold mohur.