JUDGMENT Mohammad Ismail, J.
1. The facts that have given rise to this litigation are not in dispute. The plaintiff is the owner of a house No. 25/60 within the limits of the Benares Municipality. It is alleged that the house, is not within a radius of 600 feet from the nearest standpipe nor has it got any waterpipe connexion. Some time in 1929 this house was assessed to water tax. On the receipt of notice, the plaintiff filed an objection under Section 143 of the Act praying exemption from water tax as his house was beyond the prescribed radius. It appears that the Municipal Board took no action on this objection and it remained pending, when on 19th May 1934 a distress warrant was issued against the plaintiff and the officer deputed by the Board, namely defendant 2, attached the plaintiff's cattle and other moveable properties. The plaintiff immediately made representations to the Municipal authorities and deposited the full amount together with. costs in the Municipal Treasury. His property was thereupon released on 21st May, 1934. The plaintiff failed to get any redress from the Municipal Board and therefore he brought the present suit on 8th December 1934 praying for the following reliefs:
(a) For a declaration that house No. 25/6o being; beyond the prescribed radius is not liable to be assessed to water tax amounting to Rs. 151-3-6, and the plaintiff is entitled to refund of the same, together with interest; (b) Rs. 200 damages on account of the illegal attachment of the plaintiff's property and damages caused to his crops in consequence of the illegal attachment; (c) costs of the Suit.
2. The defendant Board denied liability for damages and for refund of the amount-realized under the distress warrant and, pleaded that the suit was barred under the provisions of Section 164, Municipalities Act. It also pleaded that the tax was realized as the name of the plaintiff was found on the assessment register of the Board and that the Board was entitled to issue the distress warrant and realize the money that, according to the register, was found in arrears. It was not alleged that the house was liable to assessment. The trial Court examined the counsel for the defendant under Order 10, Rule 1, and the learned Counsel admitted that the plaintiff's house was beyond a radius of 600 feet from the nearest stand pipe, and that the plaintiff had no waterpipe connexion to his house. Under Section 129, Municipalities Act, the imposition of a tax under Clause (x) of Sub-section (1) of Section 128 shall be subject to the following restriction, namely,
(a) that the tax shall not be imposed on...a plot of land or a building as hereinafter defined, on any such plot or building of which no part is within a radius, to be fixed by rule in this behalf for each Municipality, from the nearest standpipe or other waterwork whereat water is made available to the public by the Board.
3. Under Rule 7 framed under this section by the Benares Municipality, the limit has been fixed at 600 feet. It follows therefore that the Municipal Board was not entitled to assess any tax on the house of the plaintiff. It also appears from the documentary evidence available on the record that the defendant Board had not proceeded with the assessment in accordance with the procedure laid down in the Act. It is the duty of the Board to prepare an assessment list under Section 141, and when the assessment list has been prepared the Board is required to give public notice to every person claiming to be either owner or occupier of the property included in the list (Section 142). Under Section 143 the proprietors of the house assessed under the foregoing section are entitled to file objections as to the valuation and assessment. Section 144 of the Act runs as follows:
When all objections made under Section 143 have tan disposed of, and all amendments required by Sub-section (3) of that section have been made in the assessment list, the said list shall be authenticated by the signature of the Chairman...and the person or persons so authenticating the list shall certify the consideration of all objections duly made and the amendment of the list so far as required by the decisions of such objections. (2) The list be authenticated shall be deposited in the Municipal Office, and shall, thereupon, be declared by notice to be open for inspection.
4. Under Section 146 an entry in an assessment list shall be conclusive proof (a) for any purpose connected with a tax to which the list refers, and the amount leviable in respect of any building or land during the period to which the list relates. In the present case there is no proof that the objection made by the plaintiff to the assessment was ever disposed of. The Board waited for nearly three years before issuing a distress warrant, and the explanation offered on behalf of the Board in the written statement is that the plaintiff was liable because his name appeared on the assessment register of the Board. In my judgment the assessment register of the Board did not contain an authenticated list which would give rise to a presumption of accuracy or may amount to conclusive proof of the liability of the house owner for the payment of the tax. The attachment of the plaintiff's cattle was illegal for another reason. By reference to Section 171(d) it would appear that when the defaulter is an agriculturist, his implements of husbandry, seed-grain, and such cattle as may be necessary to Ram his livelihood will not be distrained. For the above reasons, in my opinion, the distress warrant; and the attachment that followed it were altogether unwarranted and without any justification. The learned Counsel for the respondent has relied on Section 164, Municipal Act, and has argued that it is not open to a Civil Court to give any redress to the plaintiff as his remedy lay in filing an appeal to the District Magistrate as provided by Section 160. Section 164(1) runs as follows:
No objection shall be taken to a valuation or assessment, nor shall the liability of a person to be assessed or taxed be questioned in any other manner or by any other authority than is provided in this Act.
5. This sub-section may be divided into two parts. The first portion refers to the valuation or assessment of tax on a property and the second portion refers to the liability of a person. In the present case we are concerned with the first portion. Under Clause (2) of Section 164, the order of the appellate authority in respect of valuation or assessment shall be final. It is obvious therefore that the objections relating to matters of taxation must be made to the authorities mentioned in the section. In the present case however, it is not necessary to adjudicate on this question for the simple reason that is admitted by the defendant Board and the counsel representing the Board that the house of the plaintiff was beyond a radius of 600 feet and it follows therefore that it could not be assessed to water tax. In view of this admission, the only point that had to be decided by the Civil Court in this case was whether the plaintiff was entitled to a refund of Rs. 151-3-6 that was realized from him on account of water tax.
6. The lower Appellate Court relied on Municipal Board, Benaras v. Krishna & Co. (1935) 22 A.I.R. All. 760 and held that the Civil Court was not competent to grant any relief to the plaintiff. The facts of this case however are distinguishable. In this case a suit was brought for refund of certain octroi duty charged from the plaintiff, on the ground that the goods were not, in fact, assessable, and it was held that in view of the provisions of Section 164, Municipalities Act, such a suit does not lie in the Civil Court. In the present case however we find that the Municipal Board does not contend that it was entitled to levy a tax. All that is urged on behalf of the Board is that having realized that money, however illegally, the Board is entitled to retain it. I am unable to subscribe to a proposition like this. Once it is conceded that the defendant Board was not authorized to levy tax on the plaintiff's building, any money that was realized by the Board from the plaintiff cannot be retained by the Board under any provision of the Municipalities Act. In order to recover the money illegally realized from the plaintiff, he is entitled to go to the Civil Court and a suit for a refund of the money will be entertainable by the Civil Court. Under Section 160 or Section 164, Municipalities Act, a suit of this nature is not prohibited. In Munna Lal v. Municipal Board, Cawnpore (1936) 23 A.I.R. All. 676 it is held that a suit brought for remission or refund of certain house and water taxes charged by a Municipal Board for a period during which the plain, tiff alleges the premises to have remained vacant, was not barred by Section 164 of the Act. Ordinarily a suit for refund of money is a suit of a civil nature and would be cognizable by a Civil Court under Section 9, Civil P.C., unless the claim is barred by a specific provision of the law. My attention has not been drawn to any provision of law, except Section 164, which may bar the claim of the plaintiff for a refund of the money illegally realised from him. In my judgment therefore the suit for recovery of: Rs. 151-3-6 is maintainable.
7. The next point that has to be deter, mined is whether the plaintiff is entitled to damages. Both the Courts below have found that the plaintiff did suffer damages to the extent of Rs. 200. It is however contended on behalf of the defendant Board that no suit for damages would lie against it. It is admitted in the written statement of the Municipal Board that the distress warrant was issued to the tax inspector under the authority of the Board. I have already held that the action of the Municipal Board in issuing a distress warrant and attaching bullocks in contravention of the provisions of Sections 129 and 171, Municipalities Act, was extremely negligent. A corporation is liable to be sued for any tort, provided that (1) it is a tort in respect of which an action would lie against a private individual; (2) the person by whom the tort is actually committed is acting within the scope of his authority and in the course of his employment as agent of the corporation; and (3) the act complained of is not one which the corporation would not, in any circumstances, be authorised by its constitution to commit: see Halsbury's Laws of England, Vol. 8, Para. 174, p. 105. In this case there can be no doubt that if a private individual had been guilty of the irregularities that have been proved to have been committed by the defendant Board, he would have been liable in damages. Again, it is not disputed that defendant 2 was deputed by the Board to execute the dis. tress warrant, and lastly the act complained of is certainly one of the acts which by its constitution the Board is authorized to do, namely to realise taxes due to the Board. That being so, I see no reason why the Board should be exempted from liability in this case for causing loss to the plaintiff. The following passage from Salmond on the Law of Torts, page 78 (Edn. 7) may be quoted:
A body corporate which is created by a statute is subject only to the liabilities which the Legislature intended to impose upon it. But in the absence of anything to the contrary, it is presumed that the Legislature intended the corporation to in our the same liabilities that would be incurred by an individual doing the same thing.
8. My attention has not been drawn to any such section in the Municipalities Act or to any authority in which it has been held that a corporate body like the Municipal Board is entirely exempt from liability, however irregular and illegal the action of its servants might be : see Citizen's Life Insurance Co. v. Brown (1904) A.C. 423, Chhaganlal v. Thana Municipality (1932) 19 A.I.R. Bom. 259 and Municipality of Ahmedabad v. Panubhai Laljibhai (1935) 22 A.I.R. Bom. 355. It is again contended on behalf of the Board that in the present case there is no proof of malice. In the first place, if anything is done without due care and caution, malice may be presumed in law:
Except in the case of an action for malicious prosecution, evil motive is not an essential ingredient in tort, but its presence may defeat a claim of privilege : Underhill's Law of Torts (Edn. 8, Article 4, p. 12).
9. Having regard to all the circumstances of this] case and the negligent manner in which the servants of the Board conducted themselves in the discharge of their duties, I think it is only fair that the plaintiff is compensated for his loss and inconvenience. I accept the amount assessed by the Courts below and hold that the defendant Board is liable to pay Rs. 200 by way of damages to the plaintiff. The plaintiff's claim for a declaration however cannot be decreed in view of the clear provisions of Section 164, Municipalities Act. Apart from the legal bar, it is unnecessary because it is not alleged that the defendant Board was entitled to levy a tax on the building of the plaintiff. The learned Counsel for the appellant has pressed his case against defendant 'A who is employed as tax inspector by the defendant Board and was deputed to execute the distress warrant. No notice was served upon him as required by Section 326, Municipalities Act. It is urged that the notice served on the Municipal Board should be deemed to be sufficient compliance with the requirements of Section 326. I am not prepared to accept this contention and I hold that the suit against defendant 2 is barred for want of notice. In the result 1 allow the appeal and set aside the decree of the Court below and decree the plaintiff's suit against defendant 1 only for recovery of Rs. 151-3-6 paid by him on account of tax and Rs. 200 on account of damages. The plaintiff will be entitled to costs against the defendant Board throughout. The plaintiff's suit is dismissed against defendant 2 and the plaintiff will be liable to pay the costs of defendant 2 throughout. Leave to appeal under Letters Patent is granted.