Alfred Henry Lionel Leach, C.J.
1. The question involved in this appeal is whether the appellant as the owner of a tank in which there are fish is liable to land cess under the Madras Local Boards Act, 1920. The appellant let the right to catch the fish in the tank, whereupon the Collector of Kistna called upon him to pay land cess based upon the annual value of the fishery. Having been compelled to pay the sum demanded the appellant filed a suit to recover the amount with interest. There were other demands which the appellant had met under protest and the appellant asked for the repayment of all the sums recovered from him. The District Munsif of Bezwada who tried the suit held that it did not lie, and accordingly dismissed it. On appeal to the Subordinate Judge it was held that the appellant was not liable to pay land cess in respect of the fishery, but that he was liable for the other demands made by the Collector. In S. A. No. 161 of 1935 the Government appealed against that part of the judgment of the Subordinate Judge in which it was held that the appellant was not liable to be assessed to land cess in respect of the fishery and the appellant appealed in S. A. No. 177 of 1935 against the rest of the judgment of the Subordinate Judge. Both the appeals were heard by Wadsworth, J., who allowed the appeal filed by the Government, but dismissed that filed by the appellant. He granted a certificate in the former appeal, but refused a certificate in respect of S. A. No. 177 of 1935 and therefore the present appeal is only concerned with the appellant's case so far as it concerns the fishery.
2. Section 74-B of the Madras Local Boards Act, 1920, states that a land cess being a tax on the annual rent value of lands, shall be levied in accordance with the provisions of the Act. Section 78 says that the land cess shall be levied on the annual rent value of all 'occupied' lands on whatever tenure held, and Section 79 (iii) makes the landholder or the sub-landholder of a zamindari land liable to pay the land cess. The tank with which this appeal is concerned admittedly lies in the zamindari land of the appellant. It is quite clear from Section 78 that the land cess can only be levied in respect of lands which have a rental value. It has been said that the right to catch fish is an incorporeal hereditament, and that the Madras Local Boards Act does not permit of land cess being levied in respect of such a right, but it is admitted, that if the appellant is the occupier of the bed of this tank and the bed has a rental value the order of the Collector is correct.
3. The reasons given by the learned Judge for holding that the appellant is liable to land cess are these. The leasing of a fishery in England normally implies the grant of a right to catch fish with rod and line or with net in a river or a permanent sheet of water, but the leasing of a fishery in a South Indian tank involves nothing of the kind. He says that ordinarily the land is dry for a portion of the year and the fish, though they are denizens of the water in the cold weather are denizens of the land and the mud in the hot weather 'for they go down into the mud when the tank goes dry.' The fish *are caught when the water has almost gone and the fisherman drives the fish into a shallow muddy depression and catches them with his hands. Therefore, the tank is essentially land, though to some extent covered with water for a considerable part of the year.
4. I am unable to agree with the learned Judge that this description of a South Indian tank can be taken to have universal application so far as the Province of Madras is concerned. Some tanks may become dry owing to their shallowness, but many tanks in South India in which there are fish do not go dry and in such cases this method of catching fish cannot of necessity be resorted to. Moreover, there is no evidence on the record that this particular tank becomes dry in hot weather, and the court cannot decide the appeal on the, basis that it does. At the same time I am of the opinion that the judgment can be supported on other grounds.
5. The learned Judge did not think it was necessary to refer to English law, but it is manifest that the English law of rating can usefully be referred to for the purpose of deciding this appeal. By the Poor Relief Act, 1601, occupiers of 'lands, houses, tithes impropriate, propriations of tithes, coal mines, or saleable underwoods' were liable to be taxed for the relief of the poor. Under the Statute of Elizabeth the holder of an incorporeal hereditament was not liable to the tax, and it was not until the Rating Act, 1874, that the right of fowling, shooting, taking or killing game or rabbits, or fishing (referred to in the Act as a right of sporting) came within the rating law. Before the passing of this Act the land on which there was a fishery was assessable, but the owner paid the poor rate as the occupier of the land. By the passing of the Act of 1874 the owner of the land was assessable on the value of the land, if he had not parted with the right of sporting, but if he had severed the right of sporting from the occupation of the land, either he or the lessee could be rated as the occupier. There has been no such legislation in India and the appellant can only be assessed to land cess if he is in occupation of the bed of the tank within the meaning of the Act of 1920 and it has a rental value. There can be no doubt that the land which holds a tank in which there are fish (that is fish in quantity) has a rental value because the right to catch fish can be let. If the owner of the tank merely sells the right to catch for a period without any right in. the purchaser to use for this purpose the bed of the fishery the purchaser cannot be deemed to be in occupation of the land which holds the fishery. In such circumstances the occupation of the land must still be in the landholder.
6. In the Liverpool Corporation v. Charley Union Assessment Committee and Withnell Overseers (1912) 1 K.B. 270, the Court of Appeal had to consider whether a municipal corporation was in occupation of land forming the catchment area of its water supply, the land being used for no other purpose. It was held that the use of this land for this purpose was sufficient to make the land assessable to poor rate. Vaughan Williams, L.J., said:
I assume, in accordance with the observations of Lord Atkinson in Winstanley v. North Manchester Overseers (1910) A.C. 7, that, although the ownership of a hereditament does not necessarily imply occupation for the purpose of rating, and although a person or company may be an occupier within the meaning of the Statute of Elizabeth who has no proprietary interest in the soil, as was decided in Holywell Union Assessment Committee v. Halkyn Drainage Co. (1895) A.C. 117 yet owners in possession are prima facie occupiers...'in possession' there does not mean physical possession, it means who are in possession by title--unless it be shown that the occupation is in some one else; see per Buller, J., in Rex v. Mayor of London (1790) 4 T.R. 21 : 100 E.R. 872.
7. In the same case Buckley, L.J., said:
The fact that the alleged occupier is not physically upon the property either in person or by works done or chattels placed upon the property is not necessarily the test. . . . An owner who retains property in land, and gets benefit from it, is rateable to the extent pi that benfit (per Blackburn, J., in Harter v. Salford Overseers (1865) 6 B. and Section 591, 597 : 122 E.R. 1313.
8. That case went to the House of Lords and the judgment of the Court of Appeal was upheld : Liverpool Corporation v. Chorley Union Assessment Committee (1913) A.C. 197. The judgment was delivered by Lord Atkinson who referred to Rex v. Mersey and Irwell Navigation & Co. (1829) 9 B. C. 95 : 109 E.R. 36, in this connection and said:
In the first mentioned case'--Rex v. Mersey and Irvoell Navigation & Co. (1829) 9 B. and C. 95 : 109 E.R. 36,--' the undertakers, the respondents, were empowered by statute to deepen and straighten the bed of portions of the rivers Irwell and Mersey so as to make them navigable. The exclusive right (a most valuable one) of navigating the portions of these rivers where those works were effected was conferred upon them, subject only to this, that the riparian owners of land abutting on the streams had also the right to navigate the rivers, but only with pleasure boats. The respondents had acquired for the purpose of this navigation certain towing paths and locks in respect of which they were admittedly rateable. The point at issue was whether they were also rateable as occupiers of the subaqueous soil, the bed of the river. They were held not to be so, because they were not the owners of the bed and soil, but only entitled to an easement over it. It is quite clear, however, from the judgments of Bayley, J., and Parke, J., that, had they been owners of the bed and soil, they would have been held to be rateable as the occupiers of it, though the only way in which they used the soil was to navigate the waters lying above it.
9. I fail to see any difference in principle between that case and the present one. Lord Atkinson here clearly indicated that if those who had the right to navigate the river, had been the owners of the bed they would have been in occupation of the land forming the bed for the purpose of assessment to the poor rate. In the present case the appellant is admittedly the owner of the bed of the tank and the right to the fish in the tank is his. Therefore it seems to me that there is no escaping the conclusion that the appellant is in beneficial occupation of the land forming the bed of his tank and that the Collector was acting in accordance with law in levying land cess on the value of the land, which is to be gauged by the value of the right to fish in the water lying above the land.
10. For these reasons the, appeal fails and must be dismissed with costs.