Suit by owner of house challenging the assessment not barred.

The interesting question argued in this second appeal is the maintainability of a suit by the owner of a house in a municipality questioning the assessment in respect thereof by the Municipality and seeking a refund of the amount collected by the municipality on the basis of such assessment. The plaintiff is the owner of a house property bearing door No. 5/7, in the Imperial Bank Road, Coimbatore The defendant is the Municipality of Coimbatore represented by its Commissioner. The case of the plaintiff is that the property is liable to a house tax only of Rs 124-14-0 per half year on the basis of an annual rental value ot Rs 1,665. That was the value fixed by the Deputy Inspector of Municipal Councils on the basis of the monthly rental of Rs. 150 fixed as the fair rent for the house by the District Collector of Coimbatore under the House Rent Control Order. The plaintiff attacks the value of Rs.4,440, adopted by the Municipality for determining the house-tax as being capricious and unreasonable in view of the orders of the Deputy Inspector of Municipal Councils and of the District Collector of Coimbatore aforesaid The defendant pleaded that it was not bound by such orders and that the levy was justified under section 82 of the Madras District Municipalities Act, which will hereinafter be referred to as the Act It also raised the contention that since the provisions of the Act had been complied with the jurisdiction of the Court stood excluded, and that the plaintiff had accordingly to be non-suited. The learned Subordinate Judge of Coimbatore by whom the suit was tried upheld the pleas of the Municipality and dismissed the action. The learned District Judge on appeal has reversed him and decreed the suit.

It is argued for the municipality in this second appeal that however erroneous the levy of tax under section 82 of the Act may be, section 354 interposes a bar in the way of a suit to question it. It is also contended that the only remedy of the plaintiff was to appeal against the assessment under the Act.

Section 82 of the Act so far as material provides in sub-section (2) that the annual value of buildings shall be deemed to be the gross annual rent at which they may reasonably be expected to let from month to month or from year to year. Section 354 so far as material provides as follows:

“(1) No assessment........under the authority of this Act shall be impeached or affected by reason of any clerical error or by reason of any mistake........in respect of the amount assessed........provided that the provisions of this Act have been, in substance and effect, complied with.

(2) No suit shall be brought in any Court to recover any sum of money collected under the authority of this Act or to recover damages on account of any assessment, or collection of money made under the said authority:

Provided that the provisions of this Act have been, in effect, complied with.”

The learned District Judge in appeal held that in view of the order of the District Collector under the House Rent Control Order the amount of assessment charged by the defendant was not on the basis of the annual rent at which the premises could reasonably be expected to let from month to month or from year to year within the meaning of section 82(2) of the Act, and that in view of the order of the Deputy Inspector of Municipal Councils based upon the fair rent fixed by the Collector the annual value of the lands for the purpose of that section and that sub-section could not be what the municipality adopted in disregard of that order. It followed in the opinion of the learned District Judge that the Civil Court “has jurisdiction to entertain the suit as the action of the defendant was arbitrary and capricious.” Section 354 of the Act did not, according to the learned District Judge, create a difficulty in the way of the plaintiff apparently because the provisions of the Act relating to assessment were not, in substance and effect, complied with and the proviso