JUDGMENT : Mohapatra, J. - This is a Defendant's second appeal against the confirming judgment of the lower appellate court arising out of a suit brought by Plaintiff Narayan Nanda challenging the assessment made by the municipal authorities in respect of his holding no, 1082 consisting of a new double storeyed building The assessment was made under the old Bihar and Orissa Municipal Act which was in force at the time. But during the time where there was an appeal before the higher authority challenging the assessment, our Orissa Municipal Act had come into force and therefore the District Magistrate heard the appeal and fixed the assessment at the annual rental value of Rs. 1500/. on 20th January 1951. The Plaintiff's conention before the courts below was that the assessment which had been made under the provisions of Bihar and Orissa Municipal Act Section 98, Clause (1) was ultra vires inasmuch as the basis of the assessment was the cost of construction and not the annual 'rental value. This contention having prevailed over the courts below, they decreed the Plaintiffs suit. The lower appellate court found that the basis of assessment was wrong and illegal and he jumped into the conclusion that it being wrong and illegal it is bound to be declared ultra vires. 2. Two points have been raised on behalf of the Appellant by Mr. B.N. Das to the effect that (i) the courts below have gone wrong in law coming to the conclusion that the basis is wrong and illegal and (ii) even if it be found that the basis is wrong and illegal, still the Civil Court has no jurisdiction to go into the matter, because (simply because it is illegal) it cannot be declared ultra vires. Both the points appear to have great force. So far as the basis is concerned, the accepted position is that the assessment has been made under Clause (1) of Section 98 of the B. and O. Municipal Act. It will be pertinent to quote the section the two clauses: 98(1) The annual value of the holding shall be deemed to be the gross annual rental at which the holding may reasonably be expected to let. It will be pertinent to quote the section the two clauses: 98(1) The annual value of the holding shall be deemed to be the gross annual rental at which the holding may reasonably be expected to let. (2) If there be on the holding a building or buildings, the actual cost of erection of which can be ascertained or estimated and which is or are not intended for letting or for the residence of the owner himself, the annual value of such holding shall be deemed to be an amount which may be equal to, but not exceed, seven and-a-half per centum on such cost, in addition to a reasonable ground rent for the land comprised in the holding; The position that appears in the case is as follows: In the plaint it was mentioned that the basis for the assessment was the rental value. The municipal authorities, however, stated in the written statement that the basis was the value of construction which was given by the Plaintiff at Rs. 30, 000/-. The position became stilt worse when the Plaintiff came with the evidence that the basis of assessment was made on the value of construction white the municipal authorities led evidence to the effect that the assessment was made on the rental value. The matter was clarified that it the basis was the value of construction then the basis may be characterized as illegal as it will appear from the clear language of the two Clauses of Section 98. The learned lower appellate court however has pinned down the municipal authorities to their written statement where they have made the allegation that the basis of assessment was value of construction. But as I have indicated above, that when both parties had changed their fronts at the stage of evidence and had made different statements also at the stage of pleadings, it is a fit case where the Plaintiff, who is coming to challenge the basis of assessment as illegal and wrong, should make it clear in the pleadings how the basis has been attacked as wrong. It is not necessary to elucidate the point at greater length, because the position is very well known that it is incumbent upon the Plaintiff to prove that such an assessment is illegal and has been made on a wrong basis in my opinion, therefore, Plaintiff ought to have been pinned down to his own pleading which is of greater value as he made it clear, on a plain reading of the plaint itself, that the rental was the basis of assessment and not the value of construction which will appear from Plaintiff's evidence. The assessment seems to be in accordance with the provisions of Section 98 and the Plaintiff is not entitled to a declaration that the basis was wrong on account of the fundamental defect In his own pleading itself. 3. But the more important question is that even if accepting for the sake of argument that the basis was wrong, whether it is open for the Civil Court to entertain the suit and declare the assessment as illegal. In this connection the provisions of Section 119 of the B. and O. Municipal Act is pertinent to be considered. Section 119 runs thus that no objection shall be taken to any assessment or valuation in any other manner than in this Act is provided. But the more pertinent section is of our New Act i.e. Section 156 of the Orissa Municipal Act which has clarified the position more clearly and ousted the jurisdiction of the Civil Court more emphatically: 156. (1) No objection shall be taken to any assessment or valuation 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. (2) The order of the appellate authority confirming, setting aside or modifying an order in respect of assessment or valuation or liability to assessment or taxation, shall be final and binding: Provided that it shall be lawful for the appellate authority, upon application or his own motion, to review any order passed by him in appeal by a further order passed within three months from the date of his original order. It is made clear that an order in respect of assessment or valuation or liability to assessment or taxation shall be final and binding. It is made clear that an order in respect of assessment or valuation or liability to assessment or taxation shall be final and binding. I feel convinced therefore to come to the conclusion that merely because the assessment Is illegal it cannot be declared to be completely without jurisdiction of the municipal authorities. There is no dispute over the proposition that if in the circumstances of the facts reveal the authorities had no power or jurisdiction to make an assessment, such an assessment is liable to be attacked in a suit before the Civil Court. Except on the ground of absence of jurisdiction, the orders of the municipal authorities made whether on wrong basis or right basis must be taken to be final. The proviso to Section 150 makes it clear that an Assessee has a further remedy by way of review of the order passed in appeal. 4. Mr. Ranjit Mohanty, appearing on behalf of the Respondent, however relies upon two decisions of the Patna High Court. The case of Shiva Prasad Vs. Commissioner of Darbhanga Municipality was u/s 119 of the B. and O. Municipal Act. Their Lordships observed that Section 119 contemplated that the assessment was made in accordance with the provisions of the Act, and if the Assessee was to raise any objection to that assessment he must have recourse to the proceedings laid down in the Act. But where the assessment itself is ultra vires, the Assessee need not take any proceedings under the Act and can at once bring a suit in the civil Court. This was a clear case whether the municipal authorities' assessment was absolutely without jurisdiction, because of the provisions of Section 86 of the Act. u/s 86 a latrine tax on a holding which does not contain dwelling houses, latrines, urinals or cess pools can be imposed only if in the opinion of the Commissioners at a meeting a latrine, urinal or cess pool is required. Imposition of latrine tax without convening such meeting is ultra vires and can be questioned at once in a civil Court. In my opinion, this case has absolutely no application to the case before me in as much as the paint raised before me is only, if the assessment is illegal can it be declared to be ultra vires. The second case relied upon by Mr. Mohanty is reported In Chairman, Dhanbad Municipality Vs. In my opinion, this case has absolutely no application to the case before me in as much as the paint raised before me is only, if the assessment is illegal can it be declared to be ultra vires. The second case relied upon by Mr. Mohanty is reported In Chairman, Dhanbad Municipality Vs. Janeswar Bhakat and Others. There the position is stile clear. Their ;Lordships were of the opinion that no doubt the civil Court cannot Interfere with a taxation which is imposed within the power conferred by the law, but where under the clear provision of law a particular class of holding is exempted from taxation unless certain things are done without which the municipality has no jurisdiction to proceed with assessment, there is absolute want of jurisdiction and the civil Court can and must intervene in such a case. With great respect I must observe the proposition is indisputable. But the proposition has no application to the facts and circumstances of the present case, as discussed above. 5. In conclusion, therefore, the appeal is allowed and the suit Is dismissed. Parties are to bear their own costs throughout. Appeal allowed. Final Result : Allowed