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The State of Madras, Represented by the Collector of Ramanathapuram Vs. Sri Sathya Bodha Swamy, Utharathi Mutt, Trustee of Bridhavanam Agraharam-manamadurai, Through His Authorised Agent, Sri G.V. Gopalachar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1968)1MLJ312
AppellantThe State of Madras, Represented by the Collector of Ramanathapuram
RespondentSri Sathya Bodha Swamy, Utharathi Mutt, Trustee of Bridhavanam Agraharam-manamadurai, Through His Au
Cases ReferredState of Madras v. Sivasankara Mudliar
Excerpt:
- .....has been taken over by the government under the estates abolition act on 16th march 1953. the rent reduction act, madras act xxx of 1947, had been applied to the village by a notification on 24th february, 1950. on the averment that since the notification of the village under the rent reduction act the state which had been collecting melwaram from the ryots had not paid over to the plaintiff dev asthanam the amounts payable in terms of madras act xxx of 1947 for faslis 1359 and 1360, the suit came to be filedfor rendition of accounts of melwaram collections. a preliminary decree was passed in the case on 13th february, 1960. no doubt a ground has been taken before me that no decree for accounts ought to have been passed in the case, but the preliminary decree for accenting has.....
Judgment:
ORDER

M. Natesan, J.

1. This second appeal has been preferred by the State of Madras and arises out of a final decree in a suit for rendition of accounts filed by the respondent Devasthanam. The respondent is stated to be a religious institution entitled to 14 and 3/8th share out of 36 shares in the village of Vadakuchardanoor which has been taken over by the Government under the Estates Abolition Act on 16th March 1953. The Rent Reduction Act, Madras Act XXX of 1947, had been applied to the village by a notification on 24th February, 1950. On the averment that since the notification of the village under the Rent Reduction Act the State which had been collecting Melwaram from the ryots had not paid over to the plaintiff Dev asthanam the amounts payable in terms of Madras Act XXX of 1947 for Faslis 1359 and 1360, the suit came to be filedfor rendition of accounts of Melwaram collections. A preliminary decree was passed in the case on 13th February, 1960. No doubt a ground has been taken before me that no decree for accounts ought to have been passed in the case, but the preliminary decree for accenting has become final and it cannot now be challenged. However, it is open, to the defendant to plead even now on the merits of their liability to account to the extent it may be done without challenging the preliminary-decree. It is unfortunate that despite several opportunities which the appellants before me high they have not beer, able to satisfy the Courts below as regards the stand taken by the with reference to the actual accounting. 'Several versions as regards the figures were given. But none of them could stand scrutiny and ultimately the decree in favour of the plaintiff is for the land cess which ought to have been collected by the State and which they pleaded they had not collected. The plaintiff claims a sum of Rs. 260-9-0 on the basis of Exhibit A-4 dated 30th November, 1956, a copy of the Board of Revenue proceedings on the demand and. collection for Faslis 1359 and 1360 for the village in question. This statement of accounting the collections at the reduced rates under Section 3(4) of Madras Act XXX of 1947 and. the amount payable to the landholder which was sanctified, shows the Remand for the Faslis as Rs. 571-9-0. The collections are shown to be Rs. 311-0-0. For collection charges a sum of Rs. 26-14-6 is deducted. A sum of Rs. 263-13-0 is shown as total Government dues for pieshkush, cesses, etc., to be adjusted. A sum of Rs. 10 is sanctioned for payment to the landholder. A direction is given that the Collector should collect the balance quickly. The plaintiff would contend that the balance had been collected and he is entitled to payment of the balance, whereas it is stated for the defendant that the balance was not collected. Their case is that it was wrongly included in the demand and that nothing is payable to the plaintiff. I may at once state that the case for the State that the plaintiff himself never collected cess from ryots, has not been accepted by the Courts below. So the case has to proceed on the assumption that the plaintiff as a landholder could have realised also land cess from the ryots. For the plaintiff it has been rightly pointed that if in fact the ryots had refused to pay the cess for Faslis 1359 and 1360, due intimation would have been sent by the Collector to the Board of Revenue shortly after Exhibit A-4. The absence of any record for the State to show that the ryots were not obliged to pay the cess and so the cess was hot collected, goes against the evidence on record.

2. The second appeal was rested before me on two grounds (1) that the State was not bound to account for the cess when in fact they have not collected the cess; and (2) that the rent which the State could recover under the Rent Reduction Act would, not include cess.

3. To take up the second, contention first, land cess is levied under the Madras Local Boards Act of 1920, now referred to as Madras District Boards Act. Section 79 of the Act provides for the levy of land cess on the annual rent value of all occupied lands on whatever tenure held. Section 79 provides for the assessment of the annual rent value and the relevant part runs thus:

79. The annual rent value shall, for the purposes of Section 78, be calculated in the following manner:..

(iii) In the case of lands held en any other tenure, the annual rent payable to the landholder, sub-landholder or any other intermediate landholder holding on an under-tenure created, continued or recognized by a landholder or sub-landholder, as the case may be, by his tenants, together with any water rate which may be payable for their irrigation, shall be taken to be the annual rent value.

Section 88 of the Act provides for payment by the landholder of land, cess to the Collector. The material portion of the section reads:

Every landholder and sub-landholder shall pay to the District Collector or other officer empowered by him to receive it, the land-cess due in respect of lands held by him exclusive of the amount of such cess, if any, payable by the sub-landholder or landholder as the case may be and by the tenant, on or before such dates and in such instalments as the district collector under the general orders of the Board of Revenue may, by notification, declare......

Provided also that, in the case of lands occupied by tenants, it shall be lawful for the landholder, sub-landholder or any other intermediate landholder, as the case may be, to recover from his tenant one-half of the amount payable by such landholder, sub-landholder or intermediate landholder in respect of the lands so occupied.

Section 89 is also important. The material portion of the section states:

Every landholder, sub-landholder or any other intermediate landholder, as the case may be, shall in recovering any amount which may be due to him under the proviso to Section 88, be entitled to exercise the same powers as may, under any Act or Regulation which now is, or hereafter may be, in force, be exercised by any landholder in the recovery of rent, and shall be liable to all the penalties prescribed therein for the abuse of such powers.

The contention of the plaintiff is that once an estate comes to be held under the Rent Reduction Act, the landholder cannot recover any cess and it is the duty of the State to realise also the cess as part of rent and pay over the same to him. It is contended that the Government alone is entitled to collect the cess from the ryots, and deducting the collection charges they should pay the cess collected to him. The Madras Estates Land Act, 1908 defires 'rent' under Section 3(11) thus:

'Rent' means whatever is lawfully payable in money or in kind Or in both to a landholder by a ryot for the use or occupation of land for the purpose of agriculture and includes whatever is lawfully payable on account of water supplied by the landholder or taken without his permission for cultivation of land where the charge for water has not been consolidated with the charge for the use or occupation of the land.

4. For the purposes of Sections 5, 27, 28, 59 to 72, 77 to 131, 135, 136, 145 to 148 165, 210 and 211 and the Schedule, rent includes also-

(a) any local tax, cess, fee or a sum lawfully payable to a landholder by a ryot as such in addition to the rent due according to law or usage having the force of law and also money recoverable under any enactment for the time being in force as if it was rent.

Relying on these provisions, the Court below has held that cess has to be paid to the landholder by the tenant, that therefore the landholder is entitled to the cess that is liable to be collected and must be collected by the Government and he must be paid, irrespective of the fact whether the Government collected the amount or not. In the instant case it is found that the Government have to pay the plaintiff the, sum of Rs. 260-9-0 but finding some arithmetical mistake in the calculation, the decree is limited to Rs. 240-62 P. On the face of it there is one mistake in the decision of the Courts below. Under the proviso to Section 88 of the Madras District Boards Act the landholder can recover from the tenant only one half of the cess payable by him in respect of the land occupied by the tenant and not the entirety of the cess payable for the land, and it is not clear whether the amount, determined as a cess by the lower Court represents only the tenants' share. Normally the deduction should be presumed to be of the entire cess and if that is so the plaintiff cannot have a decree for his share of the liability also.

5. In my view the contention on behalf of the State that the land cess cannot be recovered by the State under the provisions of Madras Act XXX of 1947 appears to be urtenable. The point in this form was not taken in the Courts below and the only argument that was advanced was that in fact land cess was not payable by the tenants in the village, and that it was not actually collected by the State. Even in the memorandum of second appeal no ground has been taken in this regard the only ground being that the Courts below erred in holding that the State was liable to pay the plaintiff even when they had not in fact collected any amount towards cess from the ryots and that there was no accountable relationship between the State and the plaintiff in respect of the amount not actually collected by the State. The argument fop the State now is that for particular purposes only cess is deemed to be rent under the Estates Land Act and that it is not rent for all purposes. The Rent Reduction Act as such does not define rent, though it is applied to all estates, defined under Section 3(11) of the Madras Estates Land Act, 1908. My attention is drawn to Section 3(4) of Act XXX of 1947 which reads:

After such an order (an order under Section 3(2) fixing rent in the village) has taken effect in respect of any estate or portion of an estate, the rents due in respect of ryoti lands in such estate or portion with effect from the commencement of Fasli year 1357 as well as the rents which have fallen or may fall due in respect of such lands for any Fasli subsequent to Fasli 1357 until the commencement of the Fasli year in which the estate may be finally taken over by the State Government and any interest payable on such rents under Sub-section (6) shall be recovered by the State Government as if such rents and interest were arrears of land revenue due to them; and the amount so recovered in respect of each Fasli, after deducting therefrom the cost of such recovery as determined, in accordance with such rules as may be made by the State Government in that behalf, and also the peishkush, cesses, and other moneys due from the landholder to the State Government and constituting a charge on the estate shall be paid to the landholder....

Section 3(7) is important and it runs:

The landholder shall not be entitled to collect, and the provisions of Chapters V and VI of the Madras Estates Land Act, 1908 shall cease to apply to any rents or interest recoverable by the State Government under Sub-section (4).

Learned Counsel for the State contends that there is nothing in these provisions which necessarily require that rent under this Act should be construed so as to include cess also as provided for under Section 3 (11) of the Estates Land Act. The matter in my view cannot be disposed of by mere absence of any definition of rent in the Rent Reduction Act. Two things must be borne in mind. Firstly, the Rent Reduction Act is generally a prelude to the taking over of the estate under the Abolition Act (XXVI of 1948). Secondly, once the village is notified under the Rent Reduction Act, even the arrears of rent can be realised only by the State and the landlord is interdicted from collecting any rent from the tenants. The provisions of Chapters V and VI of the Madras Estates Land Act which deal with the payment of arrears of rent and the recovery of rent by suit or by distraint and sale of movable property or of the holding, cease to apply to any rent recoverable by the State Government under the Rent Reduction Act. Now cess is included in the definition of rent in the Estates Land Act inter alia for making it first charge upon the holding and in the provisions relating to the recovery of arrears of rent found in Chapter V and VI of the Estates Land Act. Section 89 of the Madras District Boards Act empowers the landholder in the recovery for cess to exercise the powers as he may be given under any Act for the recovery of rents due to him. That is the Estates Land Act would include cess in the definition of rent for the purpose of giving a charge to the landholder for the same and also for the purpose of recovering it. While the Rent Reduction Act does not define rent, it takes away from the landholder the power of recovering rent. On the abolition of an estate the Government is entitled to take possession with the estate of all accounts, registers, Muchalikas, etc., relating to the estate which the Government may require for administration thereof. If, in such circumstances, the landholder is to be left to his own resources to recover the cess, the practical difficulties and inconvenience will be insurmountable. It is a rule of interpretation to presume the intention which appears to be most in accord with convenience, reason, justice and legal principles, particularly when there is doubt as to the true one. There are provisions in the Rent Reduction Act which make it plain that where the context so require even as in the Estates Land Act the rent would include cess. Section 3(4) of tie Rent Reduction Act provides for deducting from the arrears of rent realised by the Government besides the cost of the recovery as prescribed, peishkush, cesses and. other moneys due from the landholder to the State Government and constituting a charge on the estate. The Rent Reduction Act does away with the landholder's power of realisation of rent from the estate, the State taking upon itself the realisation of rents from the tenants and the Abolition Act, when it comes into effect, dogs away with intermediaries. Can it be said in the circumstances that the landholder can foceed against the tenants for the recovery of cess due which has been treated as part of rent for the purpose of recovery under the Estates Land Act? The landholder is entitled to recover from the tenants half the cess due on the land, and the Government from the total recovery, deducts the entirety of the cess due by the landholder. Is the landholder to file suits for the recovery of arrears of cess, after the estate has been taken away from him? Even his account books vest in the Government on the abolition. It stands to reason that the Act contemplates that the State itself shall collect the cess also due from the tenants as rent. There is a faint suggestion that there can be no reduction in cess if it is treated as rent. But if the rents are reduced, cesses where proportionate to the rents proper payable, they also automatically get reduced. I may also refer to the fact that under the Abolition Act all expressions in the Estates Land Act shall have the same respective meaning as in that Act with modifications, if any, found in the Abolition Act. Section 55 of that Act provides for the collection of arrears of rent for the Faslis now in question which accrued before the notified date and payment of the same to the landholder after deduction inter alia of the arrears of peishkush, quit rent, jodi and other amounts, if any of a like nature due from the landholder to the Government.

6. I shall take up the next contention that as the State has not realised the cess it is not bound to account for any portion of it to the landholder. In the State of Madras v. Sivasankara Mttdaliar A.A.O. 108 of 1960, Ganapatia Pillai, J., observed:

All the same, the duty imposed upon the State Government by the Rent Reduction Act of collecting the rent due to the landholder in which till the estate was notified under the Abolition Act the State had, no beneficial interest, carries, with it the liability to account for money had and received. In order to effectuate this remedy which is available to the landholder it would be necessary for him to be informed of the amount actually collected by the State, and for this purpose, he can call for an account. To this limited extent alone the State exposes itself to the liability of rendering account to the landholder whose estate was notified under the Rent Reduction Act. In my opinion, beyond this, no further liability was cast upon the State by reason of its undertaking the duties imposed upon it by the Rent Reduction Act.

The learned Judge refers to the decision in Rajah of Bobbili v. State of Madras (1952) 1 M.L.J. 174, where it has been observed that the Government is, as it were, a statutory agent of the landholder for collection, and proceeds

He did not equate the position of the State under the Rent Reduction Act to that of an agent Under the common law. To the extent to which the State collected the money belonging to the landholder the State is exposed, as already observed by me, to the liability of rendering an account for the money had and received. Beyond this I am unable to hold that this decision is an authority for contending that any other duty which an agent has to perform like handing over papers and account books, to vouch for items in the accounts, to be liable for neglect of duty, or to take directions from $he principal in the matter of performance of duty, would attach to the Government merely because it is described as a statutory agent.

7. The lability of the State that is declared, is the liability to account only for money had and deceived. In the present case the cesses have not been colledcted by the State from the tenants. But the State has deducted the cesses due on the lands from the rent proper realised from the tenants. It is pointed out for the State that this is perfectly order, as the primary liability for the cesses is that of the landholder and he becomes entitled to recover cesses only when the cesses have been paid by him to tae State. My attention is drawn to the decision of this Court in Mutkuramalinga Sethupathi v. Mahalinga Rajus (1919) 9 L.W. 287, where it has been held that the liability of the tenant is that imposed by the proviso to Section 73 of the Local Boards Act, 1884, corresponding to the present District Boards Act, and that the tenant is liable to the landlord only in respect of the portion of cess which the latter has actually paid and contingently on his having made the payment. It is no doubt the duty of the State to collect the cess due to the landholder as rent and pay such collections to the landholder less the prescribed, deductions. It is pointed out for the State that the arrears are recoverable by the State as arrears of land revenue and that so far as the State is concerned there is no question of any bar of limitation. While in the light of the ruling of Ganapatia Pillai, J., in the State of Madras v. Sivasankara Mudliar (1919) 9 L.W. 287, referred to a landholder cannot seek to recover from the State moneys not collected, alleging negligence or default against the Government, he would in my view be entitled to call upon the Government to discharge the obligation which it has taker, upon itself and to do its statutory duty. In Maxwell's Interpretation of Statutes, 11th Edition, at page 235 it is stated:

The Supreme Court of the United States similarly laid it down that that which public officers are empowered to do for a third person the law requires shall be done whenever the public interest or individual rights call for the exercise of the power, since the latter is given, not for their benefit, but for his, and is placed with the depository to meet the demands of right and to prevent the failure of justice.

The Board of Revenue had in Exhibit A-4 directed the Collector to realise the balance quickly and that was in the year 1956. The position now is that the plaintiff may have other remedies to compel the State to do its duty but the State cannot be called upon to account in the suit for the moneys not realised, the liability to account being limited to the moneys actually collected by the Government and not paid over to the landlord after lawful deductions there from. It is suggested for the plaintiff that it is a religious institution and special provisions are made for religious institutions, the State being under an obligation to make good, the loss by enforcement of the Rent Reduction Act. That question is not germane to the claim in the manner now put forward. To the extent the moneys have been collected they are accounted for duly as found in Exhibit A-4, Looking from this angle, it is immaterial as to the nature or character of the collections and as to how the balance of demand shown in Exhibit A-4 still to be collected is made up of. The moneys realised having been accounted for the suit has to fail.

8. In the result the second appeal is allowed. Having regard to the fact that there has been considerable confusion in the Courts below as to the nature of the liability and in view of the fact that the State has not been able to make out its contention that the demand as in Exhibit A-4 is erroneous and the demand must have been only for Rs. 26343-0 this is not a case for ordering costs. The suit O.S. No. 59 of 1959 is dismissed. The parties will bear their respective costs throughout. No. leave.


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