1. The subject of this second appeal is a sum of Rs. 5-1-0, which was collected under the Estates Land Act from the plaintiff, who is an occupancy tenant in a proprietary estate. This sum was collected by the proprietor on the 23rd October, 1933, and it represents one half of the education tax which the proprietor had to pay in respect of the plaintiff's holding. The plaintiff's suit was under Section 144 of the Estates Land Act to recover back this money from the landholder on the ground that the latter was not legally entitled to collect it from him. Both the trial Court and the learned District Judge on appeal from it have held that the landholder was so entitled and the plaintiff now appeals against that decision. In order to understand how the education tax is assessed and levied it is first necessary to refer to the provisions of the Local Boards Act (XIV of 1920). In that Act provision is made for the collection of a cess which is called a land cess. This cess in proprietary estates is not paid by the occupancy tenants. It is assessed upon and levied from the proprietor of the estate. It is calculated on the rental value of the lands in his estate. The Act, however, provides that the landholder shall be entitled to reimburse himself to the extent of half the cess payable in respect of any holding by collecting it from the occupancy tenant. The question that now arises, put in its simplest form, is whether the landholder can collect from the occupancy tenant one half of the education tax which he has paid in respect of the holding of that tenant. In order to decide this question the provisions of the Elementary Education Act relating to the assessment and the mode of collection of the tax have got to be construed. These provisions so far as relevant to the present question are Sections 34 and 36, the latter section being anew section introduced by the Amending Act II of 1932. These sections are as follows, leaving out unnecessary words:
Section 34(2). - Any District Board may levy tax not exceeding 25 per centum of the taxation levied under the law for the time being in force governing District Boards under all or any of the following heads, namely, land cess, profession tax and house tax.
2. This section therefore empowers the Board to impose new taxation in one of several modes. It may declare that the new tax shall be 25 per cent, of the land tax or 25 per cent, of the profession tax or 25 per cent, of the house tax; or it may declare that the new tax shall be 25 per cent, of all these taxes combined or 25 per cent, of any two of them combined. Section 36 deals with the realisation of the tax and the relevant words of it are as follows:
Every tax levied under any head of taxation mentioned in Section 34 shall be deemed to be an addition to a tax levied under the same head under the law for the time being in force governing local boards.
Then the section goes on:
and all the provisions of such law relating to the incidence, assessment or realisation of such tax or in any manner connected therewith shall be applicable accordingly.
3. The first part of this section appears to mean that when under Section 34 the tax is imposed as a surcharge, say on the land cess, then it shall be deemed to be an addition to the land cess. If it is imposed as a surcharge under the terms of Section 34 as a surcharge on the profession tax, it shall be deemed to bean addition to the profession tax and so on; and by the latter part of the section the provisions of law relating to the incidence, assessment and realisation of the substantive tax are made applicable to the newly added surcharges. The lower Courts have interpreted this last provision as meaning that the proviso to Section 88 of the Local Boards Act is made applicable to the education tax when the education tax has been levied as in this case as a surcharge upon the land cess; and this amounts to finding that the landholder, just as he can recover from the occupancy tenant half of the land cess which he has paid in respect of that tenant's holding, can recover from him also half the amount of the education tax. Learned Counsel for the. appellant argues that that is not the meaning of Section 36. His-contention is that the latter part of Section 36 relates only to the incidence, assessment and realisation of the education tax and that that tax is neither assessed upon, nor to be realised from the occupancy tenant.
4. I think, however, that the lower courts are correct in their interpretation of Section 36. That section attracts the provisions of the Local Boards Act not only in matters relating to the incidence, assessment or realisation of the tax but also the provisions of the Local Boards Act in any manner connected therewith. In other words the meaning of Section 36 in my opinion is that the education tax levied under this Act being added, say, to the land cess levied under the Local Boards Act, both shall be collected as one unit, and all the provisions of the Local Boards Act applicable to the land cess shall be applicable to the consolidated sum levied as land cess and education cess. The provisions of the Local Boards Act contained in the proviso to Section 88 of that Act is a provision connected with the incidence of the land cess. The tax falls in the first instance on the landholder and by reason of this proviso it is transferred in part to the shoulders of the occupancy tenant.
5. In the course of the argument a certain previous decision of this Court has been cited by learned Counsel for the appellant. That decision is that under the Madras Elementary Education Act, 1920, before it was amended by Madras Act II of 1932, the landholder had no statutory power to collect from his occupancy tenant one half of the education tax. The decision is reported at Nagabushanam v. Venkanna : AIR1930Mad21 , and it is discussed and explained in an unreported case, L.P.A. No. 135 of 1929. The law then in force was different from the present Section 36 of the Elementary Education Act. Section 36 then read simply:
The assessment and realisation of the tax leviable under Section 34 shall be in accordance with the procedure prescribed,
that is to say, prescribed within the meaning of Section 3(11) of the Act by rules made under the Act by the Governor in Council. And a rule had been made by the Governor in Council under this section. That rule was,
The tax levied by a local authority under Section 34 of the Madras Elementary Education Act, 1920, under any head of taxation specified therein shall be treated as an addition to the tax levied under that head and shall be assessed and recovered along with the said tax as an integral part of it.
6. The difference between this rule and the new Section 36 is obvious. The former does not make applicable to the Elementary Education tax, the provisions of law relating to the incidence, assessment or realisation, for instance, of the land cess 'or in any manner connected therewith.' The learned Chief Justice Sir Owen Beasley and Mr. Justice Bardswell who decided the Letters Patent Appeal held that the provisions of Section 88 of the Madras Local Boards Act and its proviso were not by this rule imported into the Elementary Education Act and with respect I think that that is obvious. But the amending section has changed the situation. As I have said, I think that section must be interpreted in the sense in which it has been interpreted by the lower Courts. The second appeal is dismissed with costs.