R. Dayal, J. - (1.) MESSERS G.F. Kellner and Co., Ltd., instituted a suit against the District Board of Banaras for a declaration that they were not liable to pay any circumstances and property tax to the Defendant and that the Defendant's levying such a tax on the Plaintiff was ultra vires and illegal and for the recovery of the amount that had been realised by the Defendant from the Plaintiff, such amount being said to be Rs. 1391/1/4 for the years 1941 to 1945. Amongst various grounds, that were urged for the basis of the Plaintiff's claim, was the ground that the Plaintiff was a caterer and refreshment room keeper at the Moghalsarai Railway Station and, as such, held a service under the Crown and did not carry on business there within the meaning of the U.P. District Boards Act (Act No. X of 1922).
(2.) IT may be mentioned that, before instituting the suit, the Plaintiff had objected to the assessment of the tax by the District Board of Banaras and had appealed to the District Magistrate under Section 128 of the District Boards Act against the assessment of the tax. The objection and appeal were unsuccessful. The Defendant contested the suit on various grounds. One of the grounds was that the Plaintiff did not hold a service under the Crown, as contemplated by Section 114 of the District Boards Act and the other was that the suit, as framed, was not maintainable in the civil court in view of Section 131 of the District Boards Act. Other contentions need not be mentioned as they are not material for the disposal of the appeal.
(3.) THE Plaintiff further alleged that in case it was liable to the tax, the amount of tax could not have exceeded Rs. 50/ - a year in view of Section 142 -A of the Government of India Act, 1935, and the Professions Tax Limitation Act (Act No. XX of 1941). The trial court decreed the Plaintiff's suit in full. The Defendant District Board of Banaras has filed this first appeal.;