Jyotirmoyee Nag, J. - (1.) This second appeal arises front the judgment and decree passed in Title Appeal No. 41 of 1968 by the learned Subordinate Judge, Asansol reversing the judgment and decree passed by the learned Munsif, Additional Court, Assansol, in Title Suit No. 85/110 of 1967/66. The case of tho plaintiff respondent is, in short, that he is the owner of the premises being municipal holding no 189 of GT Road which was formerly numbered as 182 G T Road. There is a one-storeyed building in this land consisting of three rooms, a privy, a staircase with a compound wall. It fetches a monthly rent of Rs. 35/-. The rating value of the premises was high in the municipal asses meat year 1959-60 which went up higher in 1964-65. The annual letting value has been fixed at a sum of Rs. 3600/- and it is alleged that this has been done arbitrarily without making proper enquiries as required under the law. The valuation was fixed without any basis. On review, no relief was granted to the assessee. Now, the Municipality is trying to realise the taxes and hence the suit Notice was served under Section 535 of the Bengal Municipal Act and another notice under Section 80 of the CP Code upon the defendant Municipality. The case of the defendant appellant is that the allegations made in the plaint ate unfounded that the law and rules in respect of assessment have been duly followed by the Municipality. The annual value has been fixed upon assessment in comparison with similar holding of the locality. As the disputed premises is situated in commercial centre its letting value is liable to be raised as the property is a valuable property. It is submitted also that the suit is not maintainable in view of Section 150 of the Bengal Municipal Act. The learned Munsif dismissed the suit on the ground of limitation only. Hence, the appeal before the lower appellate court. A cross-objection was also filed from tho finding of the learned Munsif by the respondent. The learned Judge found that after considering decisions placed before him, that the court can interfere as the finding is that the assessment made has no basis in fact or law. He relied upon AIR 1970 SC 1298, 1966(1) SC A 628: AIR 1966 SC 893, 62 CWN 717 and 68 CWN 949. The lower appellate court found that the court is certainly competent to investigate as to whether assessment has been done on tho basis prescribed by law and he quoted ruin 8(a) of the Bengal Municipal Rules which lays down how the letting value has got to be determined, namely, that the letting value may be determined by comparison with the rents of similar holdings in the vicinity and (2) regard must be had to the rent which might reasonably be expected in respect of the premises in question, in a year. If such an approach is not possible in a particular case than the assessee shall fall back upon rule 8(b). Rule 8(b) prescribes that the assessee shall determine the value of the building or buildings at the time of assessment having regard to the age, description, accommodation, environment etc. of the building and other factors Applying these two rules to the suit premises, the learned Judge found that the assessment was not made on the basis of rules 8(a) or 8(b) and hence such assessment must be struck down. He also dealt with the contention raised by the defendant in the suit regarding bar of limitation and found that the plaintiff had a recurring cause of action and hence the suit is not barred by limitation. Against this judgment and decree the instant second appeal has been filed by the Municipality. The first objection taken before me is that the suit is not maintainable in view of Section 150 of the Bengal Municipal Act Section 150 of tho Bengal Municipal Act reads as follows:- "No objection shall be taken from any assessment or valuation in any other manner than in this Act is provided and no valuation or assessment nude under this Act and or order passed in sub-Section (4) of S. (2) of 149-A shall be called in question in any court."
(2.) It is submitted on behalf of the Municipality by Mr. Dasgupta that the question of correctness of assessment apart from its constitutional bar, from the decision of the authority set up is a question fact and a civil suit cannot lie against the orders of those authorities and the Act gives finality to such decisions inasmuch as the Act creates a special jurisdiction Under the Act, there is only review from assessment order and there is no provision for proceeding by way of a suit in a court even on any point of law. In this connection, Mr. Dasgupta cited several decisions of the Supreme Court, namely, AIR 1966 SC 249 and AIR 1970 SC 100. In 66 SCA 628 the Supreme Court laid down two tests in determining the question regarding the bar of jurisdiction of the civil court by any provision in the statute. They are (1) whether the statute has used clear unambiguous words indicating the intention to exclude such jurisdiction and (2) whether the statute provides for an adequate and satisfactory alternative remedy under its material provisions to a party who may be aggrieved. But the bar created by the provisions of the statute excluding the jurisdiction of the civil courts cannot operate in cases where the pica raised before the civil court goes to root of the matter and could, if upheld, lead to the conclusion that the impugned order is a nullity. In the case of Ballabhdas Mathuradas Lakshavi and others v. Municipal Committee, Malkapur reported in AIR 1970 SC 1002 , the question that was raised in that appeal is whether in respect of the recoveries, which ate in contravention of the prohibitions contained in sub-s (2) of Section 142-A of the Government of India Act, 1935, and clause (2) of Article 276 of the Constitution, the provisions of Section 48(2) of the C P. Code and Berar Municipality Act, 1922 apply. The High Court, following the judgment of the Supreme Court in Bharat Kala Bhandar v. Municipal Committee of Dhamangaon (AIR 1966 SC 240) answered the question in the negative. The High Court set aside the decree in favour of the appellants for refund of tax and confirmed the injunction restraining tho Municipality from recovering the tax and a certificate was granted by the High Court under Article 133(1)(c) of the Constitution. It was held in that case that Notifications issued under the Berar Municipal Act and the Central Provinces Municipalities Act in force at the commencement of Act 15 of 1941 applied to the Municipalities in the former Berar area. In the meanwhile Section 142-A was incorporated in the Government of India Act, 1935, by India & Burma (Miscellaneous Amendment) Act, 1940 from April 1, 1939 imposing limit upon taxes, professions, trades and callings. But by the proviso to sub-section (2) of Section 142-A levy, by the Provinces or Municipal bodies of tax on profession, trade, calling or employment at rates exceeding the rates prescribed by the Government of India Act were to remain in operation until provision to the contrary was made by the Parliament. To give effect to the limitation imposed by Section 142-A, the Parliament enacted the Professions Tax Limitation Act XX of 1941. No Claim to recover the tax could therefore, be founded on that Notification Hence, it was held that the rate of tax prescribed by the notification of 1982 alone could be enforced, subject to the limit prescribed by Article 276(2) of the Constitution. The Municipality was therefore incompetent to levy a tax at a rate exceeding Rs. 250,/- for the whole year. On this ground the appeal was allowed. Here, it was clearly laid down that the Municipality exceeded its jurisdiction in levying the taxes and hence a suit lay. The decision reported in the case cited in 66 SCA 628 together with the decision in AIR 1970 SC 1002 lay down the principle that the courts can only interfere by way of a suit if it is alleged that the decision of Municipality is a nullity and not otherwise. This principle has been laid down also in the earlier case of this High Court which is reported in 62 CWN 727 (The Commissioners of the Krishnanagar Municipality v. Kalidhan Chatterjee). That is a decision by Renupada Mukherjee, J. There it was held that Section 150 of the Bengal Municipal Act, 1932, expressly lays down that no objection shall be taken to any assessment or valuation in any other manner than in the Act is provided. Accordingly where a person objected to enhancement of assessment of a holding purporting to have been made under Section 138(1) (d) of the Act but without any success, it was not open to him to come to the could after the Municipality had finally disposed of his objection. As the action of the Municipality in that case, was not ultra vires the suit was not maintainable. The case reported in 1981(1) Calcutta High Court Notes 21 (The Chairman and Commissioners of the Assansol Municipality v. Mannalal Marwari) also supports the decision cited above. There a complaint was made that the new assessment made by the assessor was arbitrarily fixed per quarter That assessment was illegal, ultra vires and without jurisdiction and a suit was filed for a declaration that such assessment was illegal and not binding on the plaintiff and also for an injunction to restrain the defendants from realising the tax from him on the footing of such assessment. The defendants contested the suit and alleged that the suit is not maintainable as it is barred by time and also that the court has no jurisdiction to entertain the suit. In that ease, Mr. Sudhis Dasgupta who has argue for the appellant here referred to several other decisions, namely, those I reported in AIR 1948 Cal 150, AIR 1977 SC 955. In the latter case, the assessment was challenged according to the provisions of CP and Berar Municipal Act. The suit was decreed But the Supreme Court allowed the appeal on a finding that jurisdiction of civil court was barred. Hence it is a case of only irregular exercise of jurisdiction the allegation being there was an infraction of rules. This is not a case where the assessment could be f challenged on the ground of jurisdiction or of violation of any constitutional provision B. N. Maitra, J relied upon Dhulabai's case reported in AIR 1969 SC 78 in which the test laid down in Kamla Mils case reported in AIR 1965 SC 1942 has been applied, namely, that while exercising its jurisdiction and powers under the relevant provisions of Act, if the appropriate authority holds erroneously that an assessment already made can be corrected or that an assessee is liable to pay double duty, it cannot be said that the decision of the authority is without jurisdiction. The question of correctness of the assessment apart from its constitutionality cannot be questioned in civil court if the orders of those authority are given finality, and it was held that a suit was not maintainable as the civil court had no jurisdiction to try the suit. Other cases of this court have been cited but I do not think it is necessary to discuss them as the principle laid down therein is the same as in the cases discussed earlier.
(3.) On behalf of the plaintiff respondent Mr. Saktiuath Mukherjee has mainly relied upon a Division Bench decision reported in 1978 (1) CJL 280 (P.K. Mondal v. Commissioner of Krishnagar Municipality) which was an appeal from a proceeding under Article 226 of the Constitution filed by some rate payers of Krishnagar Municipality challenging the municipal assessment which was to take effect from first quarter of 1972-73. After discussing various rules under the Municipal Act relating to assessment and mode of proceeding in such assessment, their Lordships relying upon 68 CWN 877 (Corporation of Calcutta v. Royal Calcutta Club) , AIR 1961 SC 1358 (Lokmanya Mills v. Brasi Borough Municipality) AIR 2963 SC 1742 Gordhandrs v. The Municipal Commissioners, Ahmedabad) and AIR 1967 SC 1831 (N.M.C.S. v. Ahmedabad) and held that infirmities affecting the assessment a as whole and rendering the same ultra vires can be challenged successfully by one of the rate-payers for the benefit of all rate-payers similarly situated. In that case no review application was filed under Section 148 of the Bengal Municipal Act. Their Lordships held that remedy under Section 148 of the Act is contemplated in cases where there is a bona fide assessment in accordance with law and the substantial compliance with the requirements thereof, there arises errors, irregularities or illegalities in regard to individual cases. In the case under discussion, it was found that there was no assessment in the true sense of the term or in a case where assessment as a whole was ultra vires, the remedy contemplated by Section 148 is no remedy at all. It was also held that in such case even remedy by way of a suit can be availed of. Reading the judgment in between the lines I must hold in following this decision that when the assessment is challenged as being ultra vires or without jurisdiction, that can always be entertained by way of a suit in spite of Section 150 of the Bengal Municipal Act and, further, most of the decisions particularly one under discussion relate to writs issued under Article 226 of the Constitution. Here Section 150 of the Bengal Municipal Act was not specifically discussed but stress was laid upon want of jurisdiction and not irregular exercise of jurisdiction by the municipal authority. In the former case, the decision being ultra vires may be challenged id any forum even by way of a suit but in the instant case before me is not one of that type. The other cases cited by Mr. Mukherjee do not relate, however, to the question under discussion. Accordingly, I hold that the remedy by way of suit is barred under Section 150 of the Bengal Municipal Act. In the result, the appeal is allowed without any order as to costs. The judgment and decree of the lower appellate court are set aside and those of the learned Munsif are affirmed. Appeal allowed. ';