Uniyal, J.:— This is an appeal by Nagar Mahapalika, Varanasi, from the decree of the Additional Civil Judge affirming the decree of the Munsif and decreeing the plaintiff's suit for injunction restraining the appellant from enforcing the notices dated 30-9-53 and 2-8-54 whereby the appellant sought to reassess the Municipal tax of House No. S. 15/6-A situate in Mohalla Gausabad in the town of Varanasi.
2. The house in question is a cinema building. In or about 1947-1948 the said building was requisitioned by the State Government on a monthly rent of Rs. 40/-. When the premises were released by the State Government the plaintiff-respondent made considerable improvements in the building and fitted it with furniture, cinematograph machinery and other accessories at a cost of about Rs. 50,000/- and started using it as a cinema house.
3. The last quinquennial assessment was made by the appellant Board in 1951 and the building was assessed on the annual value of Rs. 720/-, but on appeal the assessment was reduced to Rs. 480/-. On 29-7-52 the plaintiff-respondent was permitted by the Municipal Board to construct four tin sheds and a cycle stand on the premises. After new additions to the building had been made the appellant assessed the building on 4-7-52 at the annual value of Rs. 3,560/-. Thereafter on 30-9-53 the appellant sent a notice to the respondent that the premises had been reassessed at the annual value of Rs. 16,080/-. Subsequently by another notice dated 2-8-54 issued under the signature of the Secretary, the respondent was intimated that the annual valuation of the said building was Rs. 7,200/-. The case of the appellant Board was that the second notice dated 2-8-54 was never acted upon and had been issued under some misapprehension. The respondent filed an appeal against the two notices aforesaid but the same was dismissed on 3-11-54. On 10-12-54 the Board sent a notice of demand to the respondent in respect of house and water tax of the building of the basis of the revised assessment given in the notice dated 30-9-53. The respondent thereupon served a notice on the Board and filed the present suit on 4-12-57.
4. The respondent challenged the validity of the aforesaid notices on the ground that one of the conditions contained in Clauses (c) or (d) of sub-Sec. (1) of Section 147 existed in the case so as to give jurisdiction to the Board to revise the assessment list prepared in 1951. It was alleged that there was no proof that the previous assessment had been incorrectly made by reason of fraud misrepresentation or mistake, nor was there any evidence to show that the value of the property was very much increased by subsequent additions to and alterations in the building. The respondent alleged that the notices were invalid as they were not signed by proper authorities and, in any case, could not be given retrospective effect. It was further alleged that the second notice dated 2-8-54 issued under the signatures of the Secretary of the Board must be deemed to have superseded the earlier notice dated 30-9-53 and, as such, the assessment of the premises on the annual valuation of Rs. 16,080/- was wholly ultra vires, illegal and ineffective.
5. The Board contested the suit and pleaded that the respondent had made extensive additions to and alterations in the premises and that the previous valuation and assessment of the building was wrong by reason of fraud committed by the respondent in suppressing material facts. It was alternatively pleaded that a mistake occurred in the previous assessment and the Board was entitled to rectify the mistake and enhance the assessment on being apprised of the true facts as to the valuation of the premises. It was further contended that the suit was barred under Secs. 164 and 326(3) of the Municipalities Act.
6. The learned Civil Judge upheld the findings recorded by the Munsif that there was no reliable evidence to prove that the previous assessment of the premises made on 4-7-52 was the result of fraud, misrepresentation or suppression of material facts on the part of the respondent. The courts below further held that the contention of the appellant that the previous assessment was due to mistake on the part of the Board was untenable and that there was no evidence in support of the allegation. The courts below were of the opinion that the suit was not barred under Sec. 326(3) of the Municipalities Act.
7. Mr. Yashoda Nandan, the learned counsel for the appellant Board, pressed two points in support of the appeal: (1) that the jurisdiction of the civil court to entertain a suit challenging the valuation or assessment made by the Board was barred under Sec. 164(1) of the Act; and that (2) assuming that the civil court had jurisdiction to entertain the suit, the same was barred inasmuch as it was not filed within six months next after the accrual of the cause of action within the meaning of Sec. 326(3) of the Municipalities Act. It was pointed out that according to the plaint allegations the cause of action for the suit arose on 3-11-54 when the plaintiff's appeal against the assessment was dismissed by the Additional District Magistrate.
8. As regards the power of the court to entertain the suit, it is not disputed that if the assessment of tax was not in conformity with the statute or was in excess of the Board's powers the civil court would have jurisdiction to interfere. In Secretary of State v. Mask and Company A.I.R 1940 P.C 105 at p. 110., the Judicial Committee stated the law on the subject as follows:—
“It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.”
9. The finding recorded by the learned Civil Judge was that there was no credible evidence to show that the appellant Board was misled by fraud, misrepresentation or mistake in making an incorrect valuation of the property which resulted in the preparation of wrong assessment list of 1951 or 1952. It would thus appear that the revised assessment was not in accordance with Sec. 147(1)(c) or (d) of the Act, and was illegal. I am, therefore, of the opinion that the suit was cognizable by the civil court.
10. The second contention of learned counsel that the suit was barred under sub-Sec. (3) of Sec. 326 raises a question of some importance. Sub-Sec. (3) of Sec. 326 has to be read along with sub-Sec. (1) of that section in order to find out whether the act complained of was an act done, or purporting to have been done by the Board in exercise of the power conferred by Sec. 147. The test as to whether the act of a public servant was done or purported to have been done in exercise of his official duty was laid down by the Judicial Committee in H.H.B Gill v. King A.I.R 1948 P.C 128. in these words:—
“A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving bribe, though the judgment which he delivers may be such an act; nor does a Government Medical Officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office.”
11. The view expressed by the Privy Council in the above case has been accepted by the Supreme Court in Matajog Dobey v. H. C. Bhari A.I.R 1956 S.C 44..
12. The point for consideration is whether the notices amending the assessment list was an act done in pursuance of the statute, i.e, in accordance with Sec. 147(1)(c) or (d). Clause (c) of sub-Sec. (1) of Sec. 147 empowers the Board to enhance the valuation or assessment only when the previous valuation or assessment was the result of fraud, misrepresentation or mistake. The courts below have found as a fact that the allegation of fraud, misrepresentation or mistake had not been established by the appellant and that there was no evidence in support of it. Cl. (d) of that section gives the Board power to re-value or re-assess any property the value of which has increased as a result of additions to the building. It is common ground that the plaintiff put up four tin sheds and one cycle stand on the premises in 1952. It would have been noticed that whereas in 1952 the annual valuation of the building for purposes of assessment was Rs. 1,560/- it was enhanced to Rs. 18,050/- in 1953 after the new constructions had come into being. The appellant Board did not adduce evidence as to the true value of the new constructions. In any case, it would be absurd to believe that the new constructions were of such character as to make the building ten times more valuable than before.
13. There was no raison de'otra for the revised assessment which was, on the face of it, arbitrary and unreasonable. The said assessment could not, therefore, be regarded as an act done or purporting to have been done in exercise of the power conferred under Sec. 147 and the bar of Sec. 326 would not operate.
14. My attention was invited to the observations made by Lord Compbell in Richand Spooner v. Joodo 1850, 4 Moores I.A 353. that:—
“If a party bona fide and not absurdly believes that he is acting in pursuance of a statute and according to law, he is entitled to the special protection which the legislature intended for him, although he has done an illegal act.”
15. It cannot be easily accepted that the appellant could ‘bona fide’ believe that the new constructions had appreciated the value of the building to such an extent as to justify a ten times increase in its valuation. The second notice dated 2-8-1954 issued by the appellant intimating that the annual valuation of the building was Rs. 7,200/- belies the contention that the assessment of the property at the annual value of Rs. 16,080/- was in conformity with the statute. No explanation was forthcoming as to how the second notice dated 2-8-54 came to be issued, and it has not been shown that it was issued under some misapprehension. The fact that the appellant did not withdraw the second notice goes to confirm that the revised assessment was not made in accordance with law and the procedure laid down in the Act. In my opinion, the provisions of Sec. 326 are not attracted to the case and the suit is not barred.
16. I accordingly uphold the decree of the Civil Judge and dismiss the appeal with costs.
Appeal dismissed.