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.

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.

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 Assur