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The Secretary of State for India in Council Vs. Chellasami Venkatratnam - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtMumbai
Decided On
Judge
Reported in(1923)ILR46Bom488
AppellantThe Secretary of State for India in Council
RespondentChellasami Venkatratnam
Excerpt:
.....protest--demand whether a proceeding under former act--suit for recovery of amount paid against secretary of state after six months from date of payment--limitation--applicability of section 59 of revenue recovery act--limitation act (ix of 1908), sections 15 and 29, and article 16, applicability of. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5) is appealable under the provisions of the act..........section 29 (1) (6) of the limitation act says:nothing in this act shall affect or alter any period of limitation specially prescribed for any suit by any special or local law now or hereafter in force in british india3. there is a further provision in section 15 (2) of that act that, 'in computing the period of limitation prescribed for any suit of which, notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded,' and under section 80 of the code of civil procedure, no suit can be instituted against the secretary of state in council unless two months' notice is given. it has therefore to be contended for the crown that section 59 of the revenue recovery act, by reason of section 29 of the.....
Judgment:

Walter Salis Schwabe, Kt., K.C., C.J.

1. In this case claim was made for water cess. The assessee paid under protest, gave notice claiming the amount he paid and commenced this suit seven months after the payment but within eight months of it. It is contended by the Crown that the suit is barred by limitation under Section 59 of the Revenue Recovery Act (II of 1864). That section runs thus:

Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act from applying to the Civil Courts for redress : provided that Civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action unless such suit shall be instituted within six months from the time at which the cause of action arose.

2. I will assume that that section applies to cases arising out of the collection or imposition of cess under the Madras Irrigation Cess Act (VII of 1865). By Article 16 of the Limitation Act a period of one year is given for suits 'against Government to recover money paid under protest in satisfaction of a claim made by the revenue authorities on account of arrears of revenue or on account of demands recoverable as such arrears.' That section applies in terms to this case unless there is something in Section 59 of the Revenue Recovery Act which, prevents its applying. Section 29 (1) (6) of the Limitation Act says:

Nothing in this Act shall affect or alter any period of limitation specially prescribed for any suit by any special or local law now or hereafter in force in British India

3. There is a further provision in Section 15 (2) of that Act that, 'in computing the period of limitation prescribed for any suit of which, notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded,' and under Section 80 of the Code of Civil Procedure, no suit can be instituted against the Secretary of State in Council unless two months' notice is given. It has therefore to be contended for the Crown that Section 59 of the Revenue Recovery Act, by reason of Section 29 of the Limitation Act, not only excludes Article 16, but also by reason of the same section, prevents the application of Section 15 of the Limitation Act so that the period of two months is not in this particular instance to be excluded. In my judgment, this is not a case under Section 59 of the Revenue Recovery Act at all, because it is not the case of a party deeming himself aggrieved by any proceeding under that Act. I doubt very much whether a demand of payment is a proceeding under the Act at all as contemplated by that section. I am quite clear that a person, who pays under protest when a demand is made and claims to recover back, is not a person aggrieved by any proceeding under the Act. He has taken a wise course, which prevents his having a grievance.

4. There is direct authority in support of this view in Ravula Vengala Reddi v. Secretary of State (1912) 15 I.C. 328. Second Appeal Nos. 1451 and 1452 of 1910., which followed a series of appeals, Second Appeals Nos. 838 and 844 of 1910 and 240 to 244 of 1911, See next page the Judgments in which, I regret, have not been published, because the point is fully discussed there and decided. The only authority to the contrary is the case of Orr v. Secretary of State for India in Council I.L.R. (1900) Mad., 571. In that case, without giving any reasons the Court expressed a view that, in the circumstances of that case, Section 59 applied where there had been a payment under protest, to the exclusion of Article 16 of the Limitation Act. It was unnecessary for that decision (which no doubt explains why no reasons were given) because in that case, the Court held on the merits that there was no case. That case was considered by the Bench in Ravula Vengala Reddi v. Secretary of State (1912) 15 I.C., 328., and in the cases therein referred to, and distinguished. Ravula Nagamma v. Secretary of State (1913) 18 I.C., 699., which was also referred to, does not touch this point.

5. In this state of authorities, sitting alone, I should have considered myself bound to follow the decision in Ravula Vengala Reddi v. Secretary of State (1912) 15 I.C., 328., but it is open to me, sitting as I am now, to express my own views, and I agree with the decision in Ravula Vengala Reddi v. Secretary of State (1912) 15 I.C., 328., for the reasons given in that case and in the unreported cases referred to therein, and I disagree with that part of the judgment in Orr v. Secretary of State for India in Council I. L. R. (1900) Mad., 571., which is to the contrary.

6. That being my view, it is enough to dispose of the case: but although I have not heard the matter fully argued, I think it right to say that I should find it very difficult to hold that Section 29 of the Limitation Act, even if it has any application in this case, operates to exclude the two mothers' time given by Section 15 of that Act, for there is nothing in Section 59 of the Revenue Recovery Act to suggest that the six months limited there is to include the period which is by the general law excluded.

7. The appeal will be dismissed with costs, including the costs of this reference.


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