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Echikan Charakare Kelu Nair Vs. the Secretary of State for India in Council Represented by the Collector of South Canara - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Reported inAIR1925Mad1134; (1925)49MLJ79
AppellantEchikan Charakare Kelu Nair
RespondentThe Secretary of State for India in Council Represented by the Collector of South Canara
Cases ReferredSrinivasa Aiyangar v. The Secretary of State
Excerpt:
- - m) and then from the government but met with no success. the secretary of state for india ilr (1903) m 386. 10. in the actual exercise of the prerogative of the crown above referred to, the crown is not supposed to proceed without any regard to definite and well-established principles such as that the crown is not entitled to more than a fixed share of the produce. the secretary of state, for india ilr (1903) m 386. the learned judge also refers to another well-established principle, namely, that the usual settlement period is thirty years [see madathapu ramaya v. 20. on a construction of the notification i am clearly of the opinion that it amounts to a grant in favour of the ryotwari holders of the taluq. the secretary of state for india ilr (1903) m 386. although the prerogative..........begins with the statement that the government had sanctioned the scheme for the revision of the land assessment of the south canara district and proceeds to say that the new rates will take effect from fasli 1312 corresponding to july, 1902. then follows the definition and classification of lands and sanctioned rates are set forth along with the data for the calculation. paragraph 20 is material.the settlement will be for a period of thirty years, during which period no extra charge will be made on ' dry ' converted into 'wet' or 'garden' or on 'wet' converted into ' garden ' or on ' single ' crop wet land converted: into ' double ' crop wet. unoccupied land will be assessed according to the existing classification when cultivated or brought under occupation. at the end of the.....
Judgment:

Ramesam, J.

1. The facts of this second appeal are stated by my learned brother whose judgment I had the advantage of perusing.

2. If the question before us is what is the proper rate of assessment on the suit land we are precluded from entering upon its consideration by Section 58 of the Revenue Recovery Act. The Civil Courts have no jurisdiction to do the work of the Settlement Department, whether that department has come to a correct or incorrect conclusion in respect of a particular plot of land. In my opinion this is the proper scope of Section 58. But when the question before us is whether Government, having entered into a binding engagement, by which the assessment is fixed at a certain rate for a certain period, can alter the rate during that period to say that that Section 58 is a bar to our consideration of the question is to say that the section enables the Government to avoid the binding nature of contracts relating to revenue. I do not think the words any question as to the rate of land revenue payable to Government1 were intended to support such a contention.

3. This leads me to the question whether there is any binding engagement on the part of the Government. On this point I see no reason to differ from my learned brother's conclusion, viz., that the notification of the Government, dated 6th November, 1902, supplemented by the Government Order, dated 17th April, 1903, as understood in the light of declarations of Government Policy, amount to a grant of rights on the ryotwari holders in the District of South Canara for a period of thirty years. Though there are facts in Secretary of State for India in Council v. Ramanujachariar : AIR1925Mad355 . which distinguish that case from the present, it supports our conclusion to this extent.

4. On the question of limitation it is true that I have always felt some difficulty in following the reasoning in Srinivasa Aiyangar v. The Secretary of State ILR (1912) M 92. After the recent amendment of the Limitation Act, the matter is not of practical importance. I am therefore content to follow that decision. I agree with the order proposed by my learned brother.

Venkatasubba Rao, J.

5. The question of law that has been raised in this second appeal is, can Government revise and enhance the land tax during the currency of the 30-year period of the settlement contrary to the notification introducing such settlement ?

6. The facts of the case may be shortly set forth. The plaintiff sues for a declaration that the assessment imposed by the Government on the suit kumris at the rate of eight annas per acre was illegal and that the Government could levy the tax only at two annas fixed at the time of the settlement. The kumris in question were 165 odd acres in extent and the plaintiff claims the recovery of Rs. 493-3-0 being the amount collected in excess of what was actually due. The lands are situate in Kasargod Taluq of the South Canara District and the Government published on the 6th November, 1902 in the District Gazette a notification of the introduction of a new settlement. The notification begins with the statement that the Government had sanctioned the scheme for the revision of the land assessment of the South Canara District and proceeds to say that the new rates will take effect from Fasli 1312 corresponding to July, 1902. Then follows the definition and classification of lands and sanctioned rates are set forth along with the data for the calculation. Paragraph 20 is material.

The settlement will be for a period of thirty years, during which period no extra charge will be made on ' dry ' converted into 'wet' or 'garden' or on 'wet' converted into ' garden ' or on ' single ' crop wet land converted: into ' double ' crop wet. Unoccupied land will be assessed according to the existing classification when cultivated or brought under occupation. At the end of the settlement period the Government reserve: the right to introduce such changes in the classification and assessment of ' wet ', ' dry ' and ' garden ' lands as may then seem proper.

7. Kumri lands were by the notification excepted from the settlement and regarding them it was said that separate orders would be issued later. See paragraph 13.

8. Accordingly a Government order, dated the 17th of April, 1903, was issued approving of a notification fixing a rate of two annas per acre in respect of suit lands. This Government order is recited in the proceedings of the Board of Revenue, dated 27th April, 1903. A patta was issued to the plaintiff (appellant) in respect of certain lands and the kumris in question were then treated as Government kumris and omitted from the patta granted to him. On the 27th of May, 1906, he presented a petition to the Collector of South Canara asking that the said land might be included in his patta but an order was made to the effect that his claim would be disposed of under the Dharkast rules. Thereupon, the plaintiff filed two suits against the Secretary of State for India, O.S. No. 352 of 1911 and O.S. No. 3 of 1913 in the District Munsif's Court of Kasargod asking for a declaration that he was the owner of the kumris in question and that he was entitled to get a patta for them and these suits were ultimately disposed of in his favour. In respect of a portion of these lands, he got a declaration from the District Court of South Canara in the following terms:

There will be a declaration that the plaintiff is the absolute owner and proprietor of the marginally noted plots falling within the plaint boundaries, and that as such he is entitled to get a patta for the same subject to the payment of the Sovereign's share of the produce as assessment and there will be a permanent injunction restraining the defendant from interfering with his lawful possession and enjoyment of these properties.

9. In respect of the remainder of the lands he got a similar declaration from the High Court. After the plaintiff was thus declared to be the absolute owner of the kumris, the Government issued to him a patta charging an enhanced rate of assessment, namely, eight annas per acre, although the rate fixed in the notification was two annas per acre. The plaintiff first sought redress from the Collector of South Canara (see Ex. K), then from the Board of Revenue (see Ex. M) and then from the Government but met with no success. Thereupon, the present suit was filed. The Government's defence was twofold : first, they denied that the plaintiff was the owner of the kumris in question; secondly, they pleaded that Civil Courts had no jurisdiction to decide questions relating to rates of assessment and relied on Section 58 of the Madras Revenue Recovery Act II of 1864. They generally controverted the position that the Government had no right to vary the rates of assessment during the currency of the settlement period. The first defence in view of the result of the litigation that preceded the suit is obviously frivolous and was summarily rejected both by the District Munsif and the Subordinate Judge. In regard to the second plea, it must be said that the authority on the point is scanty and the question must be determined mainly with reference to general principles. It is now established that the proprietorship of the ryotwari holder in his holding is subject to the prerogative which the Crown has, according to the common law of India of imposing by an executive act, assessment on land and varying it from time to time. The right of the Government to assess land to land revenue and to vary it is not a right created or conferred by any, statute but, as stated above, the Crown possesses the prerogative of exacting from a subject holding arable land, its share of the produce or the equivalent of such produce. See observations of Bhashyam Aiyangar, J., in Bell v. The Municipal Commissioners for the City of Madras ILR (1902) M 457 : 12 MLJ 208 and Madathapu Ramaya v. The Secretary of State for India 14 MLJ 37 and of Subramania Aiyar, J. in Madathapu Ramaya v. The Secretary of State for India ILR (1903) M 386.

10. In the actual exercise of the prerogative of the Crown above referred to, the Crown is not supposed to proceed without any regard to definite and well-established principles such as that the Crown is not entitled to more than a fixed share of the produce. See Subramania Aiyar, J. in Madathapu Ramaya v. The Secretary of State, for India ILR (1903) M 386. The learned Judge also refers to another well-established principle, namely, that the usual settlement period is thirty years [see Madathapu Ramaya v. The Secretary of State for India ILR (1903) M 386 This feature of ryotwari settlement is referred to over and over again in the judgments of the Judicial Committee and of the High Court and in works of authority.

11. In Sankaravadivelu Pillai v. The Secretary of Slate for India in Council ILR (1904) M 72. Subramania Aiyar, J. refers to this incident.

12. In Maclean's Manual of the Administration of the Madras Presidency, Vol. 1, the following passage occurs at page no:

The term of the Madras ryotwari settlement is according to the present intentions of Government 30 years from the date of completion of each particular local settlement at the end of which time not only the commutation money rates but the grain values themselves now assigned to the land are liable to revision.

13. Again at page 121:

The most important item in the yearly demand, namely the normal land tax, is fixed in advance and is liable to revision according to present arrangements only once in every thirty years from the time of first settlement.

14. Baden-Powell in Vol. III of his Land Tenures at page 75 says:

The duration of settlement is thirty years. During that period neither the grain values nor the commutation prices are altered.

15. The Board's Standing Order on the subject runs thus:

At each settlement or re-settlement of a district, Government will fix at their discretion the period for which such settlement or re-settlement shall be in force. The Collector shall then notify the period in the District Gazette and explain to the ryots that the new rates will not be liable to alteration during the currency of the settlement period.

16. Referring to ryotwari settlements, their Lordships of the Judicial Committee observe in Bala Surya Prasad Rao v. The Secretary of State for India ILR (1917) M 886.:

It has, however, long been the practice on Government estates to make periodical settlements with the ryots whereby the Government's share in the produce is commuted for a fixed annual payment in assessing which the wet lands are separately classified. The annual payment is incapable of increase during the period for which the settlement is made.

17. I have shown that the notification in question contains a definite undertaking that the rate fixed will not be varied during the thirty-year period of the settlement. From the Standing Order referred to above, it is clear that not only was this notification published in the District Gazette but that its clauses were explained by the Collector to the ryots in the taluq.

18. The reason for imposing a higher rate appears extremely curious. The Government have discreetly refrained from referring to it in their statement. The plaintiff has discovered that a notification, dated 26th January, 1913, was published in the District Gazette over the signature of the Revenue Divisional Officer, to the effect that the kumri areas to which claims may be established in Courts of Law may be assessed at the full dry rates instead of kumri rates. The action is thus intended to penalise persons who challenge in Courts of Law the Government's decision in regard to the ownership of the land. The Government having wrongfully denied the plaintiff's title seek to take advantage of their own wrong to render nugatory the decision of the Court by imposing an arbitrary rate and thus treating the land contrary to the finding, as land belonging to them and at their absolute disposal. That the act of the Government in going back upon their promise is impolitic, oppressive and indefensible can scarcely be denied. It is opposed to repeated declarations of the Government and accepted notions of established usage. The act constitutes a clear breach of faith. The question, however, remains is the claim of the Government not merely unjust but also illegal and can Courts of Law deal with the question and protect the aggrieved party? In Kandukuri Bah Surya Rao v. Secretary of State for India ILR (1917) M 886 the case referred to above, their Lordships of the Judicial Committee held that the Government could not impose upon a Zemindar a cess for the use of water, the right to use which was appurtenant to the land in respect of which the jamma was payable, without increasing the amount of the jamma and thus committing a breach of the obligation undertaken at the time of the permanent settlement. The Irrigation Cess Act conferred on the Government a right to levy a water cess and purporting to act under this Act, the Government levied the cess in question. Independent of and apart from the Act, the Government did not claim any such right, but the Government contended that the settlement with the Zemindar did not amount to an engagement within the meaning of the Act and in the absence of it they could exercise the right conferred by the statute. The question in the present case is, is there any such engagement between the Government on the one hand and the ryotwari holders on the other. If there is, the Government's action is illegal for they do not rely upon any statute in their favour. The observations of their Lordships in this case referring to ryotwari tenure were in a sense obiler, but they are entitled to great weight as an argument based on them was used to support the conclusion at which they arrived with reference to the position of the Zemindar which was then directly under consideration.

19. This case was treated by a Bench of this Court as an authority for the position that the assessment is incapable of increase in regard to ryotwari tenures during the period for which the settlement is made. Secretary of State for India v. Ramanujachariar : AIR1925Mad355 . Incidentally, I may mention that this is the only direct ruling on the point.

20. On a construction of the notification I am clearly of the opinion that it amounts to a grant in favour of the ryotwari holders of the taluq. The State was possessed of the right. I shall assume of levying any assessment it pleased. By the notification it gives up the right to levy any tax over and above that fixed at the settlement. Its right was indefinite. It was at liberty to fix a high or a low rate. By the notification the right which was indefinite was made definite and whatever right it possessed to fix a rate in excess of what was actually fixed, it released in favour of the ryotwari holders. In other words, assuming that the Government had a right to a share of the produce above what was fixed at the settlement, that right was by the notification granted by virtue of the settlement to the holders of the lands. The act of the Government might be described as a release, grant or an engagement, but by whatever word it may be described, the clear effect is that the Government irrevocably undertook not to enhance the assessment during the currency of the settlement.

21. I have not the slightest doubt that their Lordships of the Judicial Committee in Kandukuri Bala Surya Rao v. Secretary of State for India ILR (1917) M 886. understood the position in this sense when they observed, dealing with the ryotwari holders, that the annual payment was incapable of increase during the period for which the settlement was made.

22. There thus being a grant or release in favour of ryotwari holders, Section 58 of the Revenue Recovery Act cannot oust the jurisdiction of the Civil Courts. Section 58 runs thus:

No Court of Civil Judicature shall have authority to take into consideration or decide any question as to the rate of land revenue payable to Government or as to the amount of assessment fixed or to be hereafter fixed on the portions of a divided estate.

23. The Courts are prohibited from deciding any question as to the rate of revenue or as to the amount of assessment. But they have full jurisdiction to decide whether or not the land or person is at all under liability to be assessed to land revenue. See Madathapu Ramaya v. The Secretary of State for India ILR (1903) M 386 : 14 MLJ 37. Similarly if there is a binding engagement or a grant or a release, the section does not deprive the Civil Courts of their undoubted jurisdiction to give effect to and enforce its terms. Section 58, therefore, is not a bar to the action. As Subramania Aiyar, J. points in Madathapu Ramaya v. The Secretary of State for India ILR (1903) M 386. although the prerogative of the Crown is to be exercised in accordance with definite and well-established principles, Section 58 has been enacted in order to save the Crown from litigation to which but for such a provision, it would be exposed, that is to say, the Crown cannot be compelled by Courts of Law to act in accordance with those principles however well settled they may be. The question assumes an entirely different aspect when the matter passes out of the region of ethics and State policy into the domain of law. When the obligations of the State have taken the form of an arrangement which Courts can recognise, the bar of Section 58 ceases to have operation. In my opinion, therefore, the plaintiff is entitled to the declaration that the defendant cannot collect more than two annas per acre in respect of the kumris which are the subject of this suit.

24. There remains only the question of the recovery of the amounts actually paid. The appellant's learned vakil concedes that the payments made in 1918 are barred by limitation.

25. In regard to payments of 1919, it is sufficient to say that I am willing to follow Srinivasa Aiyangar v. The Secretary of State for India ILR (1912) M 92, where it was held that the period of two months (the period of notice) should be deducted in computing limitation. If this period is deducted all the payments of 1919 are in time and the plaintiff will be entitled to a decree to that extent. In the result the decree of the Lower Appellate Court is set aside and the plaintiff's suit is decreed with hill costs here and in the Courts below to the extent indicated above.


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