JUDGMENT

Sulaiman, C.J. - In this case the plaintiff brought a suit for remission of certain water and house taxes alleged to have been illegally charged from him by the Municipal Board, Cawnpore. His case was that the premises were vacant for the period for which the amount had been charged and that he was entitled to a refund u/s 151, Municipalities Act. The Court below has held that the suit is not maintainable. The Bench before which the revision came up for disposal has referred to us the following question for answer:

Whether a suit, brought for remission or refund of certain house and water taxes charged by a Municipal Board for the period during which the plaintiff alleges the premises to have remained vacant, and claims remission u/s 151, Municipalities Act, is barred by Section 164 of the Act.

2. Ordinarily a suit for recovery of money due is a suit of a civil nature and would be cognizable by a civil Court u/s 9, Civil P.C., unless the claim is barred by any specific provision of the law. No doubt the amount claimed is what was recoverable by the Municipal Board as a tax, and it may be said that the Municipal Board is a part of the Local Self-Government and disputes relating to taxes recoverable by it should not be entertained by civil Courts. There are, however, numerous cases in which suits against Municipal Boards have been entertained and no such universal principle has been recognized. The main point to see is whether the Court below is right in holding that the suit is barred u/s 164, U.P. Municipalities Act (Act 2 of 1916). Now Chap. 5, and particularly Section 128, show that Municipal taxes are of several kinds: (1) Those which are imposed on buildings or lands; (2) those which are imposed on persons; and (3) other taxes, e.g., on animals, vehicles, octroi, etc. In the first case valuation and assessment may be necessary, and in the second case at least assessment would be necessary. House tax and water tax are assessed on buildings or lands based on their annual value. On the other hand there may be personal taxes, for example, on trades, callings, etc., and also on circumstances of inhabitants.

3. Chapter 5 uses various expressions relating to taxes, e.g., imposition and alteration, consolidation, assessment and levy, collection, composition, exemption, recovery and also "refund and remission." Obviously they all cannot mean the same thing. Sections 128-137 come under the heading, Imposition and Alteration of Taxes;" Sections 138 and 139 come under the heading, "Consolidated Taxes;" Sections 140-152 under the heading, "Assessment and Levy of Taxes;" Sections 153-159 under the heading, "Collection, Composition, etc;" Sections 160-164 under the heading, "Appeals against Taxation;" and lastly Section 165 under the heading, "Formal Defects in Assessments and Demands." Sections 149 and 150 have the marginal notes, "Liability for payment of Taxes," whereas Section 151 has the marginal note, Remission by reason of Non-occupation." The legislature has apparently drawn a distinction between liability for payment and remission on account of a certain reason. u/s 151 a statutory obligation is cast upon the Municipal Board, other than one constituted in a hilly tract, when a building or land has remained vacant and unproductive for 90 days or more,

to remit or refund so much of the tax of that year as may be proportionate to the number of days that the said building or land has remained vacant and unproductive of rent.

4. There is no discretion in the matter at all. The section is imperative and the Board has no option but to grant remission or refund in such cases. Now prima facie it would appear that where a statutory duty is cast upon a Board to remit or refund a certain amount of money to a tax payer, the Board should not be the sole judge in the matter whether or not it would discharge its statutory obligation. If this were so, then the imperative character of the provision would lose its force, and it would become mer