The main legal point established in the judgment is that the Civil Courts have jurisdiction to entertain a suit when the levy or assessment of any tax by the Committee is alleged to be ultra vires.

Dhoble—The plaintiff non-applicant is a resident of Malkapur and carries on money lending and other business at that place. He has similar business also at Buldana. The Municipal Committee, Malkapur levies a professional tax on the inhabitants of the town at the rate of one per cent, on the income.

2. The plaintiff alleged that in his case the Committee took his total income from both his shops at Malkapur and at Buldana as the basis and thus wrongfully realized from him excessive amounts during the years 1914-15, 1915-16 and 1916-17. According to him his income from his business at Malkapur alone should have been assessed and thus the levy of the tax on his income from both his shops was ''unjust, illegal and unwarranted by law.'' His suit therefore was for the recovery of the excess sums realized from him.

3. The principal defence put forward in the lower Court and repeated here was that under S. 53 of the Berar Municipal Law, 1886, the suit was not cognizable by a Civil Court, In order to decide this question it is necessary to refer to another section of the Berar Municipal Law and it is S. 51. It reads as follows:

51(1). An appeal against the assessment or levy of any tax under this law shall lie to the District Magistrate unless he is a member of the Committee, in which case the appeal shall lie to the Commissioner or other officer empowered by the Chief Commissioner in this behalf.

(2) The order of the appellate authority shall be final.'' S. 53 relied upon by the defendant reads thus : 53. No objection shall be taken to any valuation or assessment nor shall the liability of any person to be assessed or taxed be questioned in any other manner or by any other authority than in this law is provided.

4. It is thus contended for the Committee that the plaintiff's remedy lay by an. appeal to the District Magistrate and that the present suit was expressly barred under the provision of S. 53. A number of cases were quoted during the argument and we have a very simitar case of this Court; Great Indian Peninsula Railway Company v. Amraoti Municipality,1912 16 IndCas 1049, which lays down that the jurisdiction of the Civil Courts is not ousted when the question is whether a particular tax purporting to have been imposed under this law has any legal existence.

5. When the levy or assessment of any tax by the Committee purporting to be done under the authority of the Berar Municipal Law is alleged to be ultra vires the Civil Courts have jurisdiction to en. certain the suit. The cases of the Municipal Council, Coconada v. The Standard Life Assurance Company, 1901 24 ILR(Mad) 205 and Municipal Council of Mangalore v. The Codial Bail Press,1904 27 ILR(Mad) 547 are under the Madras District Municipalities Act, S. 262(2) of which is similar to S. 53 of the Berar Municipal Law.

6. It is to the effect that no suit can be brought in any Court to recover any sum of money collected under the authority of the Act, provided that its provisions have been in substance and effect complied with. In the first case it was held that the exaction of a tax illegally imposed and also the exaction of a tax from a per. son who is not legally taxable amounted to a substantial disregard of the Act and that the Civil Courts had jurisdiction to remedy the wrong in either case.

7. In the Municipal Council, Mangalore v. Codial Bail Press the tax had been levied on the gross income while it should have been levied on the net income and it was held that the above mentioned section did not oust the jurisdiction of the Civil Courts to refund the tax illegally recovered. These cases mainly proceeded upon the express condition mentioned in S. 262 of the Act and as that condition is not to be found in our Law, the above decisions are not of much use to us in the present case.

8. There are certain useful observations made in the case of Taluq Board, Bandar v. Mallikarjuna Naidu,1921 AIR(Mad) 92. Where a local authority is invested with discretionary powers, it is not fo