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M.S. Gopalaswami Chettiar Vs. the Secretary of State for India in Council Represented by the Collector of Salem - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad525; (1931)61MLJ754
AppellantM.S. Gopalaswami Chettiar
RespondentThe Secretary of State for India in Council Represented by the Collector of Salem
Cases Referred and Rameswar Singh v. The Secretary of State
Excerpt:
- - 3. the first contention is whether the levy of the village-service cess under section 27, clause (2) of madras act ii of 1894 is really an enhancement of the peishkush fixed at the time of the permanent settlement so as to amount to a breach of the engagement entered into between the government and the proprietor at the time of the permanent settlement, and if so, whether section 27 of the act would be ultra vires of the local legislature, this question has been considered at some length by the learned district judge in his able and well-reasoned judgment. the aforesaid act was passed by the local legislature in order to make better provision for the appointment of the village-officers in permanently settled estates and for their remuneration and for securing better supervision and..........amounts from him by the defendant under section 27, clause (2) of the madras proprietary estates' village-service act ii of 1894 was ultra vires of the madras legislature and for a refund of those amounts to him.2. the plaintiff is the owner of three mittahs in salem district, namely, karamanur, pavitram and avatwadi. his contention is that the levy of the village-service cess from him in respect of these mittahs tantamounts to a breach of the contract concluded between the proprietors of permanently settled estates and the east india company and contravenes the statutory provisions in the permanent settlement regulation xxv of 1802, because the imposition of this tax or cess amounts to an enhancement of the peishkush already fixed. another contention put forward by him is, that the.....
Judgment:

Sundaram Chetty, J.

1. These are connected appeals preferred by the plaintiff and arise out of three suits filed by him against the Secretary of State for India in Council for a declaration that the collection of certain amounts from him by the defendant under Section 27, Clause (2) of the Madras Proprietary Estates' Village-service Act II of 1894 was ultra vires of the Madras Legislature and for a refund of those amounts to him.

2. The plaintiff is the owner of three mittahs in Salem District, namely, Karamanur, Pavitram and Avatwadi. His contention is that the levy of the village-service cess from him in respect of these mittahs tantamounts to a breach of the contract concluded between the proprietors of permanently settled estates and the East India Company and contravenes the statutory provisions in the Permanent Settlement Regulation XXV of 1802, because the imposition of this tax or cess amounts to an enhancement of the peishkush already fixed. Another contention put forward by him is, that the levy of the cess in question is illegal, because the aforesaid Act II of 1894 had not been properly extended to his mittahs before the collection of the amounts in question. A third objection raised is to the effect that the plaintiff's estates do not come within the purview of Section 27, Clause (2) of the Act. He obtained a decree in his favour in each of these suits in the First Court. But on appeal, all the contentions raised by him have been negatived and his suits were dismissed with costs. In these second appeals the same contentions have been pressed for acceptance.

3. The first contention is whether the levy of the village-service cess under Section 27, Clause (2) of Madras Act II of 1894 is really an enhancement of the peishkush fixed at the time of the Permanent Settlement so as to amount to a breach of the engagement entered into between the Government and the proprietor at the time of the Permanent Settlement, and if so, whether Section 27 of the Act would be ultra vires of the Local Legislature, This question has been considered at some length by the learned District Judge in his able and well-reasoned judgment. The aforesaid Act was passed by the Local Legislature in order to make better provision for the appointment of the village-officers in permanently settled estates and for their remuneration and for securing better supervision and control over them as the preamble would show. Section 27, Clause (2) is to the effect that if in any estate the cost of village-establishments was provided for by a deduction from the assets of an estate before its permanent assessment was fixed, it shall be lawful for the Government to require the proprietor to pay, along with the present permanent assessment, a sum equal to that by which it would have been increased had no such deduction been made on account of the remuneration of the classes of village-officers brought within the scope of this Act, and the proprietor shall no longer be liable for the payment of such classes of village-officers. The question for consideration is whether the village-service cess levied under the aforesaid clause really amounts to an enhancement of the peishkush amounting to a breach of contract or violation of the provision contained in Section 1 of Regulation XXV of 1802. That section no doubt contains a declaration that the amount of the petehkush so fixed shall never be liable to be increased under any circumstances. In the case of estates coming within the purview of Section 27, Clause (2), what was done at the time of the Permanent Settlement is this: on a due calculation of the assets of an estate according to the recognised principles, the permanent jamma payable by the proprietor of that estate as assessment due to the Government was fixed. One of the obligations of the proprietor was the maintenance of the village-establishments in his estate the cost of which he had to meet. In consideration of his 'fulfilling that obligation, a deduction was made from the assets of the estate on which the peishkush was fixed, with the result that a proportionate reduction in the peishkush payable by him was made and the balance was taken to be the permanent assessment due from him. If that obligation had not been undertaken by him, the amount of peishkush fixed as the legitimate permanent assessment for his estate would have become payable by him without any reduction whatever. If by means of this Act, the proprietor is made to pay that portion of the peishkush which was so deducted, without being relieved of the obligation of maintaining and paying for the village-establishments, it can very well be contended that an enhancement in the permanent assessment has been made resulting in a breach of the contract and violation of the declaration made in Section 1 of Regulation XXV of 1802. Such is not the case at all here. If what was deducted from the amount fixed as the proper peishkush due from the estate may be considered to be money left in the hands of the proprietor for the purpose of meeting the cost of the village-establishments, the levy of the village-service cess under Section 27, Clause (2) of the Act is virtually a demand of the amount deducted in his favour when the purpose for which that deduction was made no longer exists. The mere fact that this cess is made payable along with the present permanent assessment cannot amount to an enhancement of the amount of peishkush arrived at as the assessment properly due from the estate. It was by reason of the proprietor bearing the cost of the village-establishments that an amount less than the peishkush fixed as otherwise due from the estate came to be payable by him and it stands to reason that, when he is relieved of the obligation, he can no longer have the benefit of that deduction. The withdrawal of that deduction made in the amount fixed as the proper peishkush due on the estate, when the consideration for such deduction has ceased to exist cannot amount to an enhancement of the peishkush contrary to the contract or the statutory provision referred to above. No attempt has been made on the part of the Government Pleader to justify the village-service cess in question as a new tax which the Government may impose in exercise of its sovereign powers. His contention is that this is not an enhancement of the peishkush amounting to a breach of contract or violation of any statutory provision. It is rightly observed by the learned District Judge that the proprietor could have been made liable for an amount of peishkush higher than the present assessment at the time of the Permanent Settlement had he not accepted the obligation of maintaining and paying the village-establishment himself. I am therefore clearly of opinion that Section 27 of Madras Act II of 1894 is not ultra vires of the Local Legislature.

4. The next contention is, that the necessary pre-requisites for the levy of the cess in question have not been complied with and therefore the levy is illegal. The principle enunciated in the decisions relied on by the learned Advocate for the appellant, namely, The Municipal Council, Cuddapah v. M. &. S. M. Ry. Co., Ltd. I.L.R. (1929) M. 779 : 57 M.L.J. 471. The Secretary of State for India in Council v. Nritya Gopal Adhikary I.L.R. (1900) C. 487 and Rameswar Singh v. The Secretary of State for India I.L.R. (1907) C. 470, is to the effect that taxing enactments should be strictly construed and the imposition of any tax would not be legal unless the conditions precedent to the imposition of that tax are strictly complied with. There is no question of this principle applying to the present case. It has to be seen whether the pre-requisites or conditions precedent, if any, have been sufficiently fulfilled or not. The learned District Judge has found that the requirements of the statute have been fully complied with. That finding is now challenged in these second appeals.

5. For this purpose, a reference to some of the sections in the Act and also to the notifications exhibited in these suits is necessary. Section 2 of the Act states that the Government may by notification extend this Act or any portion thereof to any estate within the Presidency of Madras, and to the office of any classes of village-officers in such estates, namely, (1) village-accountants; (2) heads of villages; and (3) village watchmen or police officers. Thus it is clear that, before the levy of the village-service cess under Section 27, Clause (2) of the Act, the Government should have extended this Act to the estates in question by notification. Ex. I is the notification in the Fort St. George Gazette, dated 25th March, 1919, which runs as follows:

Under Section 2 of the Madras Proprietary Estates' Village-service Act, 1894, His Excellency the Governor-in-Council hereby directs that Chapters I, II and V of the said Act shall come into force from and after 1st October, 1897, in the proprietary estates mentioned in the schedule hereto annexed in respect of (1) karnams; (2) monegars and shroffs, and (3) thottis and tindekars who are hereby declared to come under the class of (1) village accountants, (2) village headmen, and (3) village watchmen or police officers respectively.

6. The plaintiff's three estates now in question have been included in the schedule attached to this notification. It is admitted that even the earlier notification, dated 20th September, 1897, for which this notification was substituted, directed the extension of Chapters I, II and V of the Act to certain estates including the plaintiff's three estates now in question. But it is contended that, by reason of the partial extension of the Act by applying Chapters I, II and V alone to these estates, no levy of the cess contemplated in Section 27, Clause (2) contained in Chapter III of the Act could be legally made. In answer to this, reliance is placed by the learned Government Pleader upon the notification filed as Ex. XL It is G. O. No. 339, dated 10th August, 1909, and runs as follows:

Under Section 2 of the Madras Proprietary Estates,' Village-service Act II of 1894, His Excellency the Governor-in-Council is hereby pleased to direct that the said Act shall come into force from and after 1st October, 1909, in all the proprietary estates of the Presidency as defined in Section 4 of the Act to which the Act in its entirety has not hitherto been extended in respect of the village-officers appointed under the said Act.

7. To my mind, it should be deemed that the entire Act has been extended to the plaintiff's estates now in question from 1st October, 1909, by reason of this general and comprehensive notification. When the whole Act has been so extended, Chapters III and IV also should be deemed to have been applied to these estates. In this view, the contention raised on the appellant's side must be discountenanced. However, a strenuous attempt was made by the learned Advocate for the appellant to show that the extension of the entire Act to all the estates in the Presidency by mean's of this notification should be considered to have been made only in respect of officers appointed under the said Act. If this construction be sound, the result would be rather a startling one. If the extension of the Act is only in respect of those officers who have been appointed under the Act, then a necessity will arise for a further extension of the Act by means of fresh notifications from time to time as vacancies arise in the estates on account of death, resignation or dismissal of those officers in respect of whom alone the notification Ex. XI was extended. Further comment is unnecessary to demonstrate the untenability of the construction sought to be put upon the notification by the appellant's Advocate. What the notification states is that to all the estates in the Presidency to which the Act has not been hitherto fully extended in respect of officers appointed under the Act, the whole of this Act is now extended by means of this notification. It is argued that, if the notification Ex. XI should be understood in this sense, there would be no need for issuing the subsequent notification, dated 19th March, 1919 (Ex. I). But it must be remembered that the notification Ex. I had to be issued for quite a different purpose. Section 2 of the Act has specified three classes of village-officers. It provides that, in case of doubt whether a village-officer in any estate falls under any of those classes, the Government shall have power to decide whether such village-officer comes under any of the above classes and if so, under which of them. In exercise of that power, the Government issued a notification Ex. I in 1909 declaring that karnams, monegars, shroffs, thotties and tindekars in certain estates come under the classes of village-officers specified in Section 2 of the Act. The issue of the notification Ex. I does not in any way militate against the construction placed by me as to the meaning and scope of Ex. XI.

8. Another argument put forward by the learned Advocate for the appellant is, that the requisition for payment of the village-service cess should be made by the Government under Section 27 of the Act on or after the date notified under the provisions of Chapter III, and therefore the levy of the cess in question would be illegal in the absence of the issue of such a notification. As Chapter III now stands, it consists only of two sections, namely, 17 and 27, the other sections having been repealed by the Amending Act III of 1914. Under Section 17 the Government may enfranchise village-service-inams by imposition of quit-rent and such enfranchisement will take effect from such date as the Government may notify. It may be that the date notified by the Government as the date from which the enfranchisement shall take effect under Section 17 is the date contemplated in Section 27, on or after which it shall be lawful for the Government to require the proprietor to pay the village-service cess. A perusal of Exs. A, B and XIII would show that in respect of Karamanur and Avatwadi, the enfranchisement of the service-inams was notified under Section 17 and the date on which the revised system of remunerating the village-establishments was introduced into each of them was also notified in 1915. Similarly in respect of Pavitram there were notifications to the same effect as would appear from Exs. XII and I-A. There is no doubt that, before the levy of the village-service cess from the plaintiff which is now the subject-matter of these suits, there had been an extension of the entire Act to these estates and also the publication of the notifications as required by Sections 17 and 27 of the Act. I find that the conditions precedent or the necessary pre-requisites have been fulfilled by the Government and the second contention put forward by the appellant should also be overruled.

9. Lastly, it is contended that the estates in question should be proved to have come within the purview of Section 27, Clause (2) of the Act. As to this there is ample proof supplied by the documentary evidence which has been carefully considered by the learned District Judge in paragraph 5 of his judgment. It is unnecessary for me to refer to those documents again, and suffice it to say that I am in complete agreement with the view taken by the District Judge that the plaintiff's estates do come within the purview of Section 27, Clause (2). The extract made by the District Judge from Salem District Manual by Mr. Le Fanu and quoted in paragraph 5 of his judgment clearly shows that the peishkush or permanent assessment in respect of these estates was the balance struck after making a deduction on account of the pay of the village-servants which the proprietor had to meet. The figures appearing in Exs. V-A, VI-A and VIII-A appear to have been adopted by the Special Deputy Collector for assessing the amount of the village-service cess to which the plaintiff would be liable. There is, therefore, no reason to hold that the plaintiff is now-made to pay more than what was deducted from the peishkush on account of the obligation of maintaining and paying the village-officers.

10. For the foregoing reasons, I must hold that the levy of the village-service cess in question is legal and the plaintiff cannot, not, therefore, claim a refund of the same.

11. As the plaintiff's claim fails on the merits, it is unnecessary to consider the plea of limitation with respect to the amounts levied for faslis 1328 and 1329. It seems to me that, in view of the allegations made in the plaint, those payments can reasonably be deemed to have been made by the plaintiff under protest. If so, the proper article applicable to the present suits would be Article 16 of the Limitation Act which provides a period of one year. The claim as regards the refund of those amounts would, therefore, be barred.

12. In the result, these second appeals fail and are dismissed with costs.


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