JUDGMENT D. P. Sinha J. Civil Revision No. 1273 of 1972 and Second, Appeal Nos. 428 and 429 of 1970 arise out of Title Suit nos. 132, 126 and 131 of 1964 respectively instituted by the Patna Municipal corporation against Hadi Ali Askari Imam for realisation of latrine tax for thee 1st quarter of 1958 to 4th quarter of 1963-64, in Title Suit No. 132 and in Title Suit nos. 126 and 131 for the period from the 1st quarter of 1959-60, to the 3rd quarter of 1963-64 in respect of holding Nos. 132/99, 318/24 and 320; 245 respectively, situate in circle no.6 within the Patna Municipal corporation (hereinafter referred to as 'the Corporation') Hadi Ali Askari Imam, the sole respondent, is the admitted owner of the three holdings. His contention in the suits was that at all relevant times, the holdings were in occupation of different tenants and that under the Municipal Corporation Act, the latrine tax was realisable from the persons in actual occupation of the holdings and not from him who was not in occupation of the holdings at any time. His defence was upheld and the suits were dismissed by the trial Court. The Corporation preferred appeals which were also dismissed on the same ground. 2. The appeal, having been dismissed the Corporation has filed the Civil revision and the two second appeals. In all these cases the only contention raised by the learned counsel for the Corporation was that the name of the respondent, Hadi Ali Askari Imam, having been entered in the assessment list prepared under the Municipal Corporation Act, 1951 (hereinafter referred to as "the Act") it is not open to him to dispute his liability for payment of the latrine tax and that the question as to whether or not he was in actual occupation of the holdings, could not be raised or agitated before the Civil Court. 3. According to the learned counsel. the assessment in question had been made in 1959-60 after proper notice and if the respondent was not liable to pay the tax by reason of the fact that he was not in occupation of the holding, he should have made an application for review under section 150 of the Act, and since he did not prefer to do so the assessment became final. He further argued that the respondent did not even resort to the provisions of section 139 of the Act, which provided for amendment and alteration of the assessment list and that, therefore, the decision of the Corporation contained in the assessment list with regard to the liability of the respondent to pay the latrine tax in respect of the three holdings was sacrosanct and it could not be challenged by the respondent in the suits instituted by the Corporation and that the courts below had fallen into error and exceeded their jurisdiction in holding that the tax was not payable by the respondent because he was not in actual occupation of the holding. 4. In view of the common question of law raised in all the three cases and the fact that the parties there to are the same, they have been heard together and this judgment will govern them all. 5. The three cases had been placed for hearing before a learned single Judge of this Court who has referred them for decision by a Division Bench in view of the above contentions raised by the learned counsel for the corporation who had cited before him the decisions in the case of Patna Municipal Corporation Vs. Raja, Ram Chandra Prasad, Gulabi Devi Vs. Commissioners of the Hazaribagh Municipality and Kamini Devi Vs. Chairman of Buxar Municipality, in support of his contention that it was the duty of the owner namely the respondent to resort to the provisions of the Act, for getting the name of the occupier entered and that as he had failed to do so, be could not be permitted to challenge his liability in the suits. Another contention raised before the learned Judge was that since the column in the Assessment list meant for showing the name of the occupier was blank, it must be assumed that the owner was the occupier. It may be mentioned that this contention was raised, though faintly before this Court also. 6. Another contention raised before the learned Judge was that since the column in the Assessment list meant for showing the name of the occupier was blank, it must be assumed that the owner was the occupier. It may be mentioned that this contention was raised, though faintly before this Court also. 6. I shall first consider the contention that the Civil Court had no jurisdiction to decide and it was not open to the respondent to raise in the suits, the plea that he was not liable to pay the latrine tax which had been duly assessed against him in accordance with the relevant provisions of the Act, on the ground that be was not in actual possession of the holdings in question. 7. The Act, has laid down in section 132(2) by whom the drainage tax is payable. Sub-section (2) of section 132 provides as follows: "2. The latrine tax or drainage tax shall, subject to the provisions of section 225, be payable by the person in occupation of the holding within the corporation." The provisions of section 225 are not relevant for the present purpose. It is manifest from the provisions of sub-section (2) that the Corporation has no power to impose on or levy latrine tax from a person even though he may be the owner of the holding if he is not in actual occupation of the holding. The idea behind the said provision is obviously to make the person in actual occupation liable for the latrine tax, whether or not he is the owner of the holdings. It is not in dispute rather it is admitted that at all relevant times the holdings in question were in actual occupation of tenants and not the respondents. As such, on a plain reading of sub-section (2) of section 132, the respondent cannot be held to be liable unless it be held that the assessment of the tax and the liability of the respondent to the tax even though he was not in actual occupation of the holdings, could not be challenged in a suit before the Civil Court. 8. In view of the provisions of sub-section (2) of section 132 the jurisdiction of the Corporation to impose latrine tax on a person depends upon the fact that the said person is in actual occupation of the holding. 8. In view of the provisions of sub-section (2) of section 132 the jurisdiction of the Corporation to impose latrine tax on a person depends upon the fact that the said person is in actual occupation of the holding. It is on the existence of this basic or jurisdictional fact that the power to tax arises. If the Corporation imposes the tax on a person other than the person in actual occupation of the holding, the imposition is ultra vires the provisions of the said sub-section (2) and there is no reason why an imposition cannot be challenged in a suit before a competent civil Court. If by a wrong assumption of finding of that jurisdiction at fact which in reality does not exist, the authority assumes jurisdiction and taxes the owner not in occupation not the person in actual occupation, it undoubtedly acts without jurisdiction and against the express provisions of the law. Such an Act, being ultra vires the exprets provisions of the law (section 132(2) of the Act) it is open to such an owner to institute a suit for a declaration that the imposition of the tax is without jurisdiction and that it cannot be realised from him,. He may also raise that plea by way of defence in a suit instituted by the Corporation for realisation of the tax from him and the Civil court will be competent to investigate the fact. It has already been pointed out that there is no provision under the Act, which expressly or by necessary implication debars a Civil Court from determining the existence or otherwise of the jurisdictional fact, that is, the fact whether the assessee was in actual occupation of the holding at relevant time. 9. Learned counsel for the Corporation has relied upon three decided cases of this Court in support of his contention that the Civil Court has no jurisdiction. They are the Patna Municipal Corporation Vs. Raja Ramchandra Prasad, Gulabi Devi Vs. The Commissioners of Hazaribagh Municipality, and Rai Brij Raj Krishna and another Vs. Messrs S.K. Shaw and brothers. The first two cases related to the Bihar & Orissa Municipal Act, 1922 (hereinafter referred to as the B. & O. Act') and the third was a case under the Bihar Buildings Lease, Rent and Eviction Control Act, 1947) Bihar Act, III of 1947 (hereinafter referred to as the Control Act). 10. Messrs S.K. Shaw and brothers. The first two cases related to the Bihar & Orissa Municipal Act, 1922 (hereinafter referred to as the B. & O. Act') and the third was a case under the Bihar Buildings Lease, Rent and Eviction Control Act, 1947) Bihar Act, III of 1947 (hereinafter referred to as the Control Act). 10. The B. & O. Act, in section 100 (2) provides as follows: "(2) The latrine tax shall, subject to the provisions of section 135, be payable by the person in actual occupation of holding within the Municipality." 11. In the case of Patna Municipal Corporation Vs. Raja Ramchannra Prasad, which was decided by Division Bench of this Court reliance has been placed on the following observations at page 805. "There is no doubt under section 130 of the Act, the liability for latrine tax rests upon the occupier of the holding. The question is if the occupier does not approach the Corporation for assessment of the latrine tax in his name, or if the owner does not make a similar prayer, what should be the duly of the Municipal Corporation in such a case. It is plain, I think, that the occupier can not be sued for a latrine tax unless his name is also mentioned in the assessment list. When the tax alteration was made in the assessment list pursuant to the provisions of section 107 of the Act, in presence of defendant no.1 it was his duty to contest his liability to pay the latrine tax, and, for this there is a clear provision in section 115 of the Act. When the assessment was made in his presence and after hearing him, and he did not dispute his liability to ray the latrine tax and allowed the assessment list to be made in his name in respect of all the liabilities, he cannot subsequently turn round and challenge the assessment on the ground of lack of liability on his part. It is true that the occupier is liable for latrine tax, but if the occupier or owner does not raise this question and allow the assessment list to be altered or amended in the name of the owner himself, I think, the matter is concluded and that cannot be heard subsequently, as it is not a question of jurisdiction of the Commissioners. The commissioners had jurisdiction to make the assessment and fix the liability also, and, if once that liability has been determined, that question cannot be re-agitated in a Court of law, as it cannot be said that the amendment or the alteration of the list was without jurisdiction. I think, therefore, that in this particular case, the owner was liable for payment of the latrine tax." 12. It, however, appears that in the above case the principle decided by a Division Bench in the case of Commissioners of Darbhanga Municipality Vs. Jyotindra Nath Sen and another, and by a Full Bench of this Court in the case of Patna Municipal Corporation Vs. Ram Bachan Lal, had not been noticed. 13. Gulabi Devi’s case had been decided by a learned single judge of this Court. Reliance has been placed on the observations at page 862 of the report which supports the contention that the assessment of latrine tax had become final under the B. & O. Act, and that the liability to pay the tax could not be challenged collaterally in a suit before the Civil Court. It appears that neither the decision in A.I.R. 1945 Patna 153 nor that in A.I.R. 1961 Patna 142 had been noticed by the Division Bench in 1962 B.L.J.R. 801. Of the said two cases only A.I.R. 1945 Patna 153, had been brought to the notice of the learned Judge who had decided Gulabi Devi’s case and it had been pointed out that in that case the Division Bench bad held that the Civil Court did have jurisdiction to inquire as to whether the person concerned was an occupier of the holding within the Municipality and that if the Civil Court came to the conclusion that the person who had been assessed to personal tax was not an occupier of the holding in the sense of the word, then the assessment of the personal tax on him under section 82 (1) (a) of the B. & O. Act, was without jurisdiction. The learned Judge declined to follow that decision because in his opinion that principle decided in that case had no application to the facts of the case before him. The learned Judge declined to follow that decision because in his opinion that principle decided in that case had no application to the facts of the case before him. The distinction had been made presumably because the name of the owner was entered in the column meant for entering the owner's name as well as in the column meant for entering the name of the occupier. An the same, the question involved in both the cases was as to whether the assessee could prove before civil Court that he was not an occupier within the meaning of section 82(1) (a) in so far as it related to the case in A.I.R. 1945 Patna 153 and within the meaning of section 100 (2) of the B. & O. Act, in the other case. As such with great respect to the learned Judge I am of the view that the distinction made was without a difference as would appear from the following details of case in A.I.R. 1945 Patna 153. 14. In A.I.R. 1945 Patna 153, the plaintiff assessee had brought a suit for a declaration that the assessment of personal tax on him under section 82 (1) (a) of the B. & O. Act, by the Darbhanga Municipality was ultra vires as the plaintiff was not in occupation of the holding within the Municipality where as under the express provision of the said section the liability to pay the tax rested on the person or persons in occupation of the holding within the Municipality. One of the contentions raised on behalf of the Municipality was that the civil Court had no jurisdiction to decide whether the assessment on the person concerned was ultra vires on the ground that he was not an occupier of any holding within the municipality. It was held that the Civil Court did have such jurisdiction. It was pointed out that the mere fact that the plaintiff did not seek the remedy of review under section 116 of the B. & O. Act, which was an alternative remedy, could not clothe the Municipality with any jurisdiction which it otherwise did not possess to assess the plaintiff and deprive the plaintiff of his right to seek redress in Civil Court or oust the jurisdiction of the civil court to entertain the suit. It will further observed that the finality given under section 117 (3) of that Act, to the decision of the committee was the finality between the commissioners and the committee and that section 117 (3) did not bar the jurisdiction of the Civil Court to entertain a suit to set aside the assessment made under section 81 (1) (a) on the ground that the assessee did not occupy the holding within the municipality. 15. The third case relied upon by the learned counsel was that of Rai Brijraj Krishnu, a case relating to the Control Act. The question which had arisen for decision was whether the Civil Court could 4uestion the order of the Controller directing eviction of the defendant for non-payment of rent. It was held vide paragraph 7 of the report that the Act, had entrusted the controller with a jurisdiction which included the jurisdiction to determine whether there was non-payment of rent or not, as well as the jurisdiction, on finding that there was non-payment of rent, to order eviction of a tenant and that therefore even if the Controller wrongly decided the question of non-payment of rent and ordered eviction of the tenant, his order could not be questioned in a Civil Court. 16. The decisions in A.I.R. 1945 Patna 153 and Rai Brijraj Krishna's case, had been considered along with a number of other decisions in the Full Bench case of Patna Municipal Corporation Vs. Ram Bachan Lal. That was also a case under the B. & O. Act, as in A.I.R. 1945 Patna 153. It is necessary to state a few relevant facts of that case for a proper appreciation of the principles decided therein. At the time of the general assessment of 1959, a house standing in holding no.137 of Circle No. 44 was unoccupied. A Deputy Magistrate assessed it to a quarterly municipal tax of Rs. 48/12,-. The plaintiff who was the owner thereafter made improvements in the house by providing water and electric connections and let it out on rent to an advocate on a monthly rent of Rs. 75/-. Thereafter he received a notice from the Patna Municipality (as it then was) under section 107 (2) read with section 107 (1) (c) of the B. & O. Act, stating that it was proposed to enhance the valuation of the holding and that the plaintiff could file objection. 75/-. Thereafter he received a notice from the Patna Municipality (as it then was) under section 107 (2) read with section 107 (1) (c) of the B. & O. Act, stating that it was proposed to enhance the valuation of the holding and that the plaintiff could file objection. The plaintiff, accordingly, filed an objection which was heard by the Special Officer of the Municipality who inspected the holding and came to the conclusion that an incorrect valuation and assessment had been made by reason of fraud and misrepresentation. He, accordingly, rejected the objection and assessed the holding on the basis of a monthly rent of Rs. 155/- to a tax of Rs. 151/4/- per quarter. The case of the Corporation was that the holding was let out to the advocate on a monthly rental of Rs. 155/- and not Rs. 75/- The Additional Munsif who tried the suit held that the advocate paid a rent of Rs. 75/- per month, and that there was no fraud, misrepresentation or mistake at the time of general assessment of 1950 and that the Municipality was not justified in taking action under section 107 (1) (c). He, therefore, decreed the suit. The Municipality took an appeal to the District Court which was heard by an Additional Subordinate Judge who agreed with the finding of the Munsif that the Municipality had not made out a case of fraud or misrepresentation which alone would have entitled it to revise the assessment and that it had not even pleaded any mistake. He further held that the plaintiff’s objection should have been disposed of by a Committee constituted under section 117 of the Act, and not by the Special Officer alone who could, under section 386, merely exercise and perform the powers and duties of the Commissioners. On these findings he dismissed the appeal. Against the order of dismissal the Patna Municipality took an appeal to the High Court. The appeal was placed for hearing before a learned single Judge it was argued before him that the authorities of the decisions of this Court in the cases of Darbhanga Municipality Vs. Jyotindra Nath, Arrah Municipality Vs. Jatendra Chandra and Ran Chor Prasad Vs. Bakshi Ram Krishna Sinha, had been weakened by the decision of the Supreme Court in Rai Brijraj Krishna Vs. S.K. Shaw and brothers. Jyotindra Nath, Arrah Municipality Vs. Jatendra Chandra and Ran Chor Prasad Vs. Bakshi Ram Krishna Sinha, had been weakened by the decision of the Supreme Court in Rai Brijraj Krishna Vs. S.K. Shaw and brothers. The learned Judge thought that this raised an important question of law and therefore he referred the case to a division Bench which in its turn referred it to a larger Bench. That was how the matter came before the Full Bench. 17. The learned Advocate General who appeared on behalf of the Corporation raised two points before the full Bench. First that it was entirely within the jurisdiction of the Municipality or the Special Officer who was in charge of it to decide all the facts which required determination for exercise of the power to enhance the valuation or assessment of any holding under section 107 (1) (c), and that his decision on these facts was final and the Civil Court had no jurisdiction to investigate these facts or to interfere with the decision. The second point urged was that an objection filed in pursuance of a notice issued under sub-section (2) of section 107 had, under sub-section (3) to be disposed of by a Committee constituted as provided in section 117, but the Special Officer appointed under section 386 alone took the place of the Committee referred to in that section when the Municipality was superseded under section 385 of the Act. Dealing with the first point the Full Bench pointed out that the first principle which must be kept in view was that the Civil Court was a court of plenary jurisdiction and as competent under section 9 of the Code of Civil Procedure to try all suits of a civil nature except suits of which cognizance had either expressly or impliedly been barred. A number of English decisions were also referred to and the decision of the Court of Appeal in R.V. Sharenditch Assessment Committee (1910) 2 KB 859 was held to have very clearly and succinctly laid down the correct principle in the following paragraph. "No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction. "No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction. Such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which it has and ought to exercise. Subjection in this respect to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction: for the existence of the limit necessitates an authority to determine and enforce it; it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited rower to determine such limit at its own will and pleasure such a tribunal would be autocratic, not limited and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non-existence of its own jurisdiction is founded on law or fact a court with jurisdiction confined to the city of London cannot extend such jurisdiction by finding as a fact that Piccadilly Circus is in the wards of Chepe." 18. The observations of Lord Esher in (1888) 21 QBD 318 at page 319-20 had also been considered by the Full Bench. It had been pointed out that of the two types of cases referred to by Lord Esher at the said pages, the first type was the ordinary type in which the jurisdiction of a local authority or a tribunal of limited jurisdiction depended upon the existence of some preliminary or jurisdictional facts. In such a case, while the tribunal must arrive at its own conclusion on those facts for the purpose of deciding whether it is necessary for it to exercise the jurisdiction vested in it, its decision on those facts is not final. The Civil Court or the High Court can undoubtedly enquire into the correctness of its decision in order to determine whether the tribunal had acted in excess of its powers or had refused to exercise its jurisdiction where it was necessary for it to exercise it. The Civil Court or the High Court can undoubtedly enquire into the correctness of its decision in order to determine whether the tribunal had acted in excess of its powers or had refused to exercise its jurisdiction where it was necessary for it to exercise it. It was pointed out that once it was held that the tribunal's decision on the jurisdictional facts was correct, the Civil Court could not enquire into the correctness of its decision on the merits of the matter within its jurisdiction and that even the High Court could interfere by issue of a writ on such matter only in some special circumstances like the existence of manifest error apparent on the face of the record. 19. As to the second type of cases envisaged by Lord Esher, it was pointed out that the said type referred to those cases in which the tribunal of limited jurisdiction had not only been given power to do certain thing or to pass certain order but bad also been given the power exclusively to decide the facts on which its jurisdiction depended. In such cases the existence of facts which attracted its jurisdiction was also final and was not open to inquiry by the Civil Court. The Full Bench further pointed out that the Supreme Court itself. After a consideration of the aforesaid observations of Lord Esher, had held in Rai Brijraj Krishna's case that the case fell within the second category mentioned by Lord Esher because the Control Act, had entrusted the Controller with a jurisdiction which included the jurisdiction to determine whether there was non-payment of rent or not as well as the jurisdiction, on finding that there was non-payment of rent to order eviction of a tenant and that therefore, even if the Controller could be assumed to have wrongly decided the question of non payment of rent his order could not be questioned in a Civil Court. The Full Bench held that the case of the Patna Municipality fell within the first category referred to in Lord Esher's observation. In support of that view a number of other decisions including the decision of the Supreme Court in Choube Jagdish Prasad Vs. The Full Bench held that the case of the Patna Municipality fell within the first category referred to in Lord Esher's observation. In support of that view a number of other decisions including the decision of the Supreme Court in Choube Jagdish Prasad Vs. Ganga Prasad alias Ganga Prasad Chaturvedi (A.I.R. 1959 Supreme Court 492) were considered and it was held that the Civil Court did have jurisdiction to investigate the correctness of the Special Officer's decision on jurisdictional facts upon which his power to enhance the valuation of assessment of holding in question under section 107 (1) (c) of the B. & O. Act, depended. It was held that it was clear that the point under consideration had been rightly decided in A.I.R. 1945 Patna 153 and A.I.R. 1951 Patna 536 and that the decision of the Supreme Court in A.I R. 1951 Supreme Court. 20. In the case on hand the jurisdiction of the Corporation to assess the respondent to latrine tax depended upon the existence of the jurisdictional fact, that is, whether the holding was in actual occupation of the respondent. Its decision, if any, on that fact was not final as this was a type of case which fell within the first category of cases pointed out by Lord Esher and the Full Bench. As such, the Civil Court did have the jurisdiction to investigate and determine that jurisdictional fact on the basis of which the Municipality could impose and levy the latrine tax under section 132 (2) of the Act. Moreover, it appears that the Municipality or the assessing authority did not apply its mind to that preliminary fact, i.e. as to whether the respondents was or was not in actual occupation. The respondent's name was not entered in the assessment register in the column meant for entering the name of the occupier His name stood recorded only in the column meant for entering the name of the owner. Learned counsel for the Corporation argued that incase of owner it had to be presumed on the basis of the entry of his name in the owner's column that he was in actual occupation of the holding, if no other person was mentioned as occupier in the column meant for entering the name of the occupier. I do not think this argument is sound. The owner mayor may not be in actual occupation. I do not think this argument is sound. The owner mayor may not be in actual occupation. If he is not in actual occupation of a holding the latrine tax cannot be realised from him in view of the express provisions of sub-section (2) of section 132 of the Act, according to which the incidence of the tax must fall on the person in actual occupation of the holding. Both the Courts have concurrently held and it is not disputed that at all relevant times persons other than the respondent were in occupation of the building as tenants. 21. It would thus appear that there is no merit either in the Civil Revision or in the two Second Appeals. They are accordingly, dismissed with costs. Hearing fee Rs. 50/- in each of the three cases. Appeal & Revision dismissed.