Pakenham Walsh, J.
1. I have had the advantage of perusing the judgment which my learned brother is about to deliver and' I agree with him on both the points as regards the maintainability of the suit and as regards the construction to be put upon Section 79(iii) of the Madras Local Boards Act. I wish only to make a few remarks on the latter point, as the former becomes academic on the view we take as to the meaning of Section 79(iii), and the non-maintainability of the suit was merely urged by the respondent in case we differ from the finding of the lower Court with regard to the construction of this section.
2. As observed by my learned brother, the wording of Section 79(iii) has remained practically the same since the Local Funds Act of 1871, although the position of the landholder in relation to private lands has in the meanwhile undergone considerable change. In Section 2(iii) of the Rent Recovery Act of 1865 the wording was slightly different in describing how the rates of rent were to be determined. Where there was no special contract between the landlord and the tenant and when no money assessment has been fixed on the fields, it is there stated that rent is to be paid according to the rates established, or paid, for neighbouring lands of similar description and quality. The Acts of 1871, of 1884 and of 1920 omit the word 'description' and merely mention 'quality'; but it is difficult to see how any argument in favour of the appellant can be founded upon this alteration.
3. The really important point is that in construing the Act of 1920 we are dealing with, an Act in which the words 'landlord' and 'tenant' are defined for purposes of the Act in Section 3 Clauses (9) and (22). The definition of the term 'landlord' is much wider than that in the Madras Estates Land Act. As pointed out by Pandalai, J. in Bhupathi Raju v. Subba Rao I.L.R. (1931) 55 Mad. 646 : 62 M.L.J. 472:
The definition of the word 'landholder in the two Acts is entirely different In the Madras 'Estates Land Act the landholder is a person owning an estate, the term 'estate' being itself defined in the Act. In the Madras Local Boards Act the term 'landholder' includes a very much larger class of persons including inter alia holders of land under ryotwari settlement. In the Madras Estates Land Act the term 'ryot' means the holder of land in an estate for agriculture on payment of rent. This term is not used in the Madras Local Boards Act. But the term 'tenant' is used and defined as including all persons, who occupy land under a landholder or intermediate landholder whether or not they pay rent. These differences are due to the two Acts not being in pari materia and therefore the application of ideas derived from one Act to questions arising under the other is bound to be wholly misleading. The Madras Estates Land Act is designed to regulate the rights of landholders and ryots in an estate as defined by the Act. The taxation provisions of the Madras Local Boards Act are designed to raise a fund for the purpose of Local Self-Government.
4. Consequently a great deal of the argument on behalf of the appellant, which is founded upon a conception of a landholder under the Madras Estates Land Act is beside the point. There is however, as observed by my learned brother, a real difficulty in understanding why rent paid for irrigation by the tenants of Pannai lands to the landlord should be taken into account in fixing the cess and the difficulty is not lessened by the fact that under the Irrigation Cess Act II of 1913 the words 'landholder' and 'ryot' are stated to be as defined in the Madras Estates Land Act. The Madras Irrigation Cess Act VII of 1865 makes cess leviable, in accordance with the rules which may be framed, (a) from the land-holder; or (b) from the ryot; or (c) in shares from both. In spite of this additional complication, I agree with my learned brother that there is no justification for reading into the plain words of the first part of Section 79 (iii), viz., 'the annual rent value of the lands lield by such tenants' any such meaning as 'assessment due on ryotwari lands or which would be due if the lands are ryotwari. 'No doubt, in the second part of the section which deals with pannai lands occupied by the owner himself or by any person holding the same from him free of rent or at a favourable rent, the amendment introduced by the Act of 1930 is that the annual rent value shall be calculated according to the rates of rent so paid by occupancy ryots for similar lands in the neighbourhood, together with any water rate wich may be payable for the irrigation of the lands so occupied'. It is unnecessary to consider whether the interpretation is retrospective or not, because the first part of the section remains unaltered. There are no doubt expressions used by Wallace, J., in Thammiah Naidu v. Attili Musaliah : AIR1924Mad818 which support the appellant's contention but, as pointed out by the lower Court, that related to a case of ryoti land and the decision can therefore be supported on other grounds. In fact the learned Judge says:
The assessed land rate then still remains to provide the basis on which the tax leviable under this Act shall be calculated and the tax can be calculated legally on nothing else. The tax there had been calculated on a tree tax payable by a licensee and it was held that he was not a tenant within the meaning of Section 73 of Madras Act V of. 1884 so as to be liable to his licensor for the land-cess payable by the latter under the Act.
5. One other argument raised for the appellant may be noticed, i.e., that the expression, 'the annual rent value of the lands held by such tenants' in the first part of Section 79 (iii) indicates that it is the Government assessment and not the rental which is referred to. I do not think there is any force in this argument; in fact, I think it is rather against the appellant. Government cist or assessment is per se annual and there is therefore no reason to insert the word 'annual' if it were being referred to, but the rent to a landlord may be for a term of more than a year and hence it is necessary to indicate with regard to it that the cess is only leviable on the yearly rent and not on a larger sum payable for a longer period. To my mind, therefore the word 'annual', if any importance is to be attached to it, is against the appellant's contention. With the amended section as it stands there may arise the anomaly that the land-holder would be liable to a different rate of cess on his pannai lands according as to whether he cultivates them himself or leases them out. But, if that is not the intention of the Act, it is for the legislature to set matters right and we are not justified in departing from the natural meaning of the plain words used in the section.
6. On this view, as I have said above, the question of the maintainability of the suit does not arise for decision in appeal but I agree with my learned brother that the view taken by the lower Court that the suit is maintainable is correct.
7. The appeal must therefore be dismissed with costs and I agree that the memorandum of cross objections must also be dismissed with costs.
8. As only two questions of law were argued before us, it is sufficient to state a few facts to indicate how those questions arise. The appellant Zamindar sued for the recovery of a sum of money from the Government and for a declaration and injunction, on the ground that during faslis 1335, 1336 and 1337, the Collector has proceeded on a wrong basis in calculating the cess payable by the appellant under Section 79 of the Local Boards Act in respect of pannai lands in his estate. The claim for refund has now become unnecessary; and the appeal is confined to the relief by way of declaration and injunction which turns upon the construction of Section 79 of the Local Boards Act. The respondent, besides disputing the correctness of the appellant's construction of Section 79 of the Local Boards Act took objection to the maintainability of a civil suit in the matter. It was contended on behalf of the Government that under Section 86 of the Act the decision of the Board of Revenue is final and that in any event the question is not one which can be made the subject of a civil suit. The Court below held that the suit was maintainable but decided against the appellant on the question of the construction of Section 79 of the Local Boards Act. Hence this appeal by the plaintiff.
9. Three grounds were urged on behalf of the Respondent, in support of the objection to the maintainability of the suit; viz., (1) the finality declared by Section 86, Clause (3) of the Local Board's Act (2) the general principle that where statute indicates a particular mode of redress, the jurisdiction of the ordinary Courts is ousted and (3) the prohibition contained in Section 228 of the Local Board's Act (Act V of 1920). Taking these in order, the first is by no means conclusive, as is clear from the decision of the Privy Council in Secretary of State for India v. Srimati Fahamidunnissa Begum a statute may-attach finality to particular orders, in the sense of precluding further appeal to the statutory authorities; whether it was intended to go further and oust the jurisdiction of the Civil Courts as well, will depend not upon words of that kind but upon the general scheme of the particular legislation. In the present case Section 228 undoubtedly contemplates the existence of a remedy in the Civil Court and there is no reason why such remedy should be restricted to cases not falling under Section 86.
10. The second ground must be understood in the light of well established limitation. The ordinary rule is that where a person's liberty or property is interfered with, under colour of statutory powers, he has a cause of action which the Civil Courts are bound to entertain unless a bar to such entertainment has been enacted expressly or at least by necessary implication. Where there is no question of a common law right and an infringement thereof, the position may be different, for in such cases, the ordinary Courts had prima facie no jurisdiction and therefore there is no question of any ouster of their jurisdiction. Decisions like Bhaishankar v. The Municipal Corporation of Bombay I.L.R. (1907) 31 Bom. 604 and Nataraja Mudaliar v. Municipal Council of Mayavaram I.L.R. (1911) 36 Mad. 120 : 21 M.L.J. 878 fall under this category, where the right or status was itself the creation of the statute. Even where rights of property are involved, the legislature may point to particular modes of redress. But in dealing with this class of distinction has to be borne in mind between the general right of resort to the Civil Court and any particular form of procedure in seeking the aid of the Civil Court. So long as a statute provides for a decision by a Civil Court, it is immaterial whether the Civil Court is approached by means of a suit or by an appeal or petition. This is the basis of the decision in Ramachandra v. The Secretary of State I.L.R. (1888) 12 Mad. 105 as explained in Balvant Ramchandra v. Secretary of State I.L.R. (1905) 29 Bom. 480 at 509. The decision in Iswarananda Bharathi Swami v. Commissioners, Hindu Religious Endowments Board, Madras I.L.R. (1931) 54 Mad. 928 : 61 M.L.J. 117 is also explicable on the same ground. It will be scarcely right to speak of the Revenue Board in a case like the present as a 'special tribunal' (see the observations in Valliammal v. The Corporation of Madras (1931) (1912) 38 Mad. 41 : 23 M.L.J. 591; the Board acts only as part of the executive machinery and not as an independent body settling a dispute between the tax-payer and the taxing authority.
11. Before passing on to the third ground, it may also be pointed out that the way in which Section 228 of the Local Board's Act is framed is itself significant. The negative phraseology which the legislature has here adopted as in several other Acts in pari materia, e.g., the District Municipalities Act, the Revenue Recovery Act, is a clear indication that such legislation in this country has proceeded on the footing that the party aggrieved is entitled to seek redress in the Civil Courts, except in so far as the same is barred in clear terms and it is on this basis that numerous decisions of the Indian High Courts have proceeded.
12. With reference to Section 228, the learned Government Pleader contended that the assessment could be questioned in a Civil Court only if the assessing authority has not complied with the formalities prescribed by the statute, but not on the ground that the assessment is excessive. The omission to observe formalities may sometimes afford a basis for a civil suit but there is no reason for restricting Section 228 to such cases. In the words of Curgenven, J., in The Municipal Council, Kumbakonam v. Ralli Brothers (1930) 6 M.L.J. 748 . 'Had the purpose of the section been to bar any suit so long as the provisions of the Act had been formally complied with, the proviso relating to substance and effect would not have been added'. The real question is whether or not the provisions of the Act have been in substance and effect complied with. A recent decision of Madhavan Nair and Jackson, JJ., (in A.S. No. 356 of 1931) has construed Section 228 in favour of the existence of a right of suit where lands allowed to lie waste by a ryot were charged to cess, though according to the custom of the Zamindari, the landholder could not claim any ' cist' in respect of such land. The learned Government Pleader questioned the correctness of that decision and further contended that it was distinguishable as an instance of taxation of property not liable to tax cf. The Municipal Council of Cocanada v. The Standard Life Assurance Company I.L.R.(1900) 24 Mad. 205 : 10 M.L.J. 401. Here again, the answer is that non-taxability is not the only basis for a suit. It may be that a miscalculation or even other kind of error in arriving at the amount of assessment may not be examinable by the Civil Court; but the levy of assessment on a basis not warranted by the statute cannot be assimilated to such cases. This distinction was recognised in The Municipal Council of Mangalore v. The Codial Bail Press I.L.R.(1903) 27 Mad. 547 : 14 M.L.J. 410 when dealing with a similar provision in the District Municipalities Act. See also Balasurya Prasad Rao Pantulu v. Taluk Board of Chicacole A.I.R. 1931 Mad. 822 and the cases there cited. As observed in some of the cases already referred to, the question whether there has been substantial compliance with the Act is one of fact which has to be determined with reference to the circumstances of each case.
13. The observations of Pandalai, J., in Bhupathi Raju v. Subba Rao I.L.R.(1931) 55 Mad. 646 : 62 M.L.J. 472 would seem to relate to the finality of the Board's order in respect of the amount where no question of the principle of assessment was involved. The case was not one between the Government and the tax-payer but between the Zamindar and a person holding land under him and the question was whether the landholder was entitled to recover the whole amount of cess from the person in occupation or only a half. When the defendant attempted in the course of that suit to raise a dispute as to the amount of cess, the learned Judge observed that the decision of the Board of Revenue in that matter was final.
14. Proceeding now to the merits, the contention in the plaint was that in the case of homefarm landor pannai lands of a landholder, whether in his actual possession or in his constructive possession through his lessees, the annual rent value must, under Section 79(3) of the Local Board's Act, be taken to be ' the assessment fixed on them or similar ryoti lands in the neighbourhood at the permanent settlement'. This contention is open to two obvious objections. There is no reason for going back to the rates fixed at the time of the permanent Settlement. If, as is generally the case, the cist payable to the Zamindar has been increased since the Permanent Settlement, the rates now prevailing must undoubtedly be the basis of calculation. This was apparently the contention urged by the Madura Zamindars before the Government in their memorial of November 1926, (see Ex. I) and must be taken to be the meaning of the reference to ' rates of rent usually paid by occupancy ryots for ryoti lands in the neighbourhood ' in the section as amended in 1930. Further, it is very doubtful whether any assessment was fixed on pannai lands at the time of the Permanent Settlement. As will be seen from the observations in Lakshmayya v. Raja Varadaraja Appa Row : (1912)23MLJ624 some of the categories of land which have latterly become merged in the head of private lands, were originally held by Zamindars free of assessment, and it is hardly likely that they bore anything like faisal rates even for purposes of Zamindari accounts.
15. The position taken up in the written statement, that in the case of pannai lands the annual rent value must be taken to be the actual income or the lease amount (as the case may be) derived by the proprietor, cannot be said to do violence to the language of the section; but there are certain obvious considerations against it. The difficulty arises from the fact that even in the year 1920, the legislature has adopted the language of the corresponding provisions in the Act of 1884 (Section 64) and the Act of 1871 (S. 38), while the position of the landholder in relation to private lands has in the meanwhile undergone considerable change, partly by reason of the measures adopted by landholders between 1865 and 1898 and partly as the result of the Estates Land Act, 1908. When enacting section 38 of the Local Funds Act of 1871, using therein 'landholder', 'tenant' and 'rent' the legislature had in mind the state of things obtaining under the Rent Recovery Act of 1865. The definition of 'landholder' and 'tenant' in the Act of 1871 were substantially taken from the Rent Recovery Act. Though as pointed out in Cheekati Zamindar v. Ranasooru Dhora I.L.R.(1899) 23 Mad. 318 certain differences were well known in several Zamindaries between transactions relating to seri lands and those relating to homefarm lands, neither the legislature nor the Courts had then sufficiently crystallized the distinction. Even in respect of what will now be described as ryoti lands, the Zammdar was believed to own both the kudivarm and the melwarm, except when a tenant was actually in occupation; and even where a tenant was in occupation, he had only the presumption of occupancy rights in his favour; his rates were liable to be increased certainly whenever a new tenant was put in, and even in other cases, by contract between the parties. In these circumstances, there was little reason for placing the rent paid by a tenant of homefarra land in a different legal category from the rent paid by a tenant of other land in a Zamindari. The legislature seems therefore to have adopted a classification based not on legal categories but on the method of culivation; hence the grouping in Section 38 of the Local Funds Act of 1871 was into lands helds by tenants paying rent and lands occupied by the owner himself or by a person paying a favourable rent or no rent. The legal category of the land or the status of the tenant was not then regarded as a material factor. In this view the proper interpretation of Section 79, Clause (3) of the Act of 1920 which merely reproduces the language of the Act of 1871 will be that in the case of all lands held by tenants who pay rents, the rent which they pay must be the basis of calculation, irrespective of the question whether it is ryoti land or private land; and in the case of lands occupied by the Zamindar or by non-paying tenants, the rent must be fixed with reference to neighbouring lands in the occupation of tenants, having regard only to their similarity in physical properties and independently of the question of their legal category. It is difficult to see how or why in applying the test of 'neighbouring', land, the Collector should go in for neighbouring land of the same legal category, if in applying the language of the first half of the clause the distinction based upon legal categories is to be ignored.
16. The introduction of water rates as an additional factor in the calculation has led to an incongruous situation. In cases where the ryot owns the Kudiwaram right, he pays to the Zamindar what corresponds to the assessment on the land and where he pays an additional water rate, the rent and the water rate together may be taken to represent the fair assessment on the land; the inclusion of the water rate in the basis for calculating the cess is intelligible in such a case. But in the case of homef arm land which must be deemed to be leased by the Zamindar for what may be described as 'economic rent' and not merely for a sum representing the assessment, it is difficult to see the justification for adding the water rate to the amount of the rent and calculating local cess with reference to the aggregate. Presumably, the Zamindar must pay the water rate to the Government in respect of private land and as the land must in such cases be fit for irrigation, the leasing would be on the basis of wet cultivation and the rent must have been fixed accordingly. This is what makes it difficult for me to believe that the legislature intended the full rent to be taken into account in the case of private lands. There is very little difference in principle between a ryotwari pattadar or inamdar leasing his patta land or inam land and a Zamindar leasing his private land. If, in the first case, local cess is to be calculated only with reference to the assessment payable to Government on the land and not the rent realised by the pattadar or the inamdar, why should there be an altogether different basis when we come to the Zamindar's homefarm land. This is apparently what Wallace, J. had in mind when making the observations in Thammiah Naidu v. Attili Musaliah : AIR1924Mad818 which have been relied on before us by the Appellant. As is well known the word 'rent' was used in the early Madras Regulations and Acts to signify even the assessment payable to Government on the land. (See Venkatanarasimha Naidu v. Dandamudi Kotayya I.L.R.(1897) 20 Mad. 299 : 7 M.L.J. 251 and the preamble to Regulation IV of 1822).
17. These considerations lend support to the contention that the rental value of homefarm lands should, for the purpose of Section 79, be calculated not on the actual income or rent but on a hypothetical basis of 'assessment' payable thereon to the Government or to the Zamindar as representing the Government, and in this view, the addition of water rate will be intelligible. It however seems to me too much for the Court to read these considerations into the language of the section when it cannot be said that its words cannot fairly bear the interpretation sought to be put upon them by the respondent. It will be for the legislature to determine how far the scheme of sub-clause (3!) of Section 79 requires modification in view of the existing state of the law under the Estates Land Act. Even the amendment made in 1930 does not seem sufficient to avoid anomalies; because according to it the assessment on neighbouring occupancy lands is made the basis only where lands are occupied by the landholder himself or by non-paying tenants. Where homefarm lands are leased out in the ordinary course, the case will be governed only by the first part of clause (3) and cess will have to be calculated on the basis of the full rent and added water rate. The contention that homefarm lands even when leased must be deemed to fall under the latter part of the clause by reason of the theory of 'constructive possession' ignores the scheme of the section.
18. An argument was advanced before us with reference to the second proviso to Section 88. It was assumed on behalf of the appellant that 'tenant' in that proviso can reasonably mean only occupancy tenants and not ordinary lessees. There is a decision in Mailthi Hengsu v. Soma (1915) 29 M.L.J. 452 to the contrary. Here again, there is much to be said in favour of restricting that proviso to persons who pay only what corresponds to the assessment on the lands and not economic rent. But in view of the language of the proviso and the view expressed in the case referred to, there is little help to be derived from that argument for the present purpose.
19. A memorandum of objections has been filed by the respondent against so much of the decree of the lower Court as refused to allow costs to the defendant, but no reason has been shown for interfering with the lower Court's exercise of discretion in the matter. Apart from the construction of Section 79 of the Local Boards Act, the levy of the amount sued for was admittedly irregular in certain other respects, but even after receipt of suit notice from the plaintiff, no communication was made to him to inform him of any proposal to refund the money so levied. It was only some time after the institution of the suit that the plaintiff was informed of the Government's intention to refund the amount. In these circumstances, the lower Court rightly held that the plaintiff ought not to be directed to pay the defendant's costs.
20. The appeal and the memorandum of objections are therefore both dismissed with costs.