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Ahmed Mohamed and ors. Vs. the State of Madras Represented by the Secretary to Government, Revenue Department - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1973)1MLJ48
AppellantAhmed Mohamed and ors.
RespondentThe State of Madras Represented by the Secretary to Government, Revenue Department
Cases ReferredRajagopalachariar v. State of Madras
Excerpt:
- .....could be levied at all. secondly, it is said that even under the provisions of the madras city land revenue act (xii of 1851) (hereinafter referred to as the act of 1851) the madras city land revenue (amendment) act (vi of 1867) (hereinafter referred to as the act of 1867) and the various rules of procedure enacted for the purpose of variation, levy and collection of such ground rent by the delegated authority, namely, the board of revenue, as would be seen from the board's standing orders there is no express provision for increase of ground rent. it is said that as there is no express provision in all such enactments enabling the authority to increase the ground rent over and above the existing, rent such a power is not available and that, therefore, the increase is illegal. the.....
Judgment:
ORDER

T. Ramaprasada Rao, J.

1. The petitioner is the owner of premises No. 10, Purasawalkam High Road, Madras. Originally, the property was the subject-matter of a deed of sale dated 19th November, 1917. Under that sale deed, the Secretary of State for Indian in Council, as vendor, conveyed the property in question along with a greater extent there to the Purasawalkam Hindu High School Board. In that sale deed itself it was made clear that the purchaser, namely, the Board, was obliged to pay the assessment and taxes that may from time to time be levied upon the conveyed land. By an order of the State Government, the Board was permitted to alienate 8 grounds and 87 sq. ft. of the land, conveyed by the Secretary of State, to the Board of Trustees of Sir M. Ct. Muthiah Chettiar's School for use as the site of the school. One of the conditions of the alienation was that the alienation would be free of ground rent, but subject to the condition that if any net income is derived from the land at any time thereafter, full ground rent shall be levied., Sir M.Ct. Muthiah Chettiar's High School after securing the land, sold a portion of it to one Mahomed Hajee Moosa Sait, after obtaining the permission of the Government to sell the same. The permission granted by the Government to the management of Sir M.Ct. Muthiah Chettiar's High School makes it clear that the property was subject to the payment of ground rent of Rs. 40 which was liable to be revised from time to time in accordance with the rules in force. Thereafter, the said Mahomed Hajee Moosa Sait bequeathed the property in favour of one Amna Bai Haji Issa, and it is claimed that the petitioner is the successor - in-interest of the said Amna Bai Hajee Issa. For the first time, a revision of the ground rent was effected in about 1952. It is not disputed that the power to revise the rate of ground rent was only available decennially. Probably, in exercise of such power, the ground rent was increased in or about 1952 to Rs. 200 per fasli. This was to be in force far a period often years commencing from 1952-53. The petitioner objected to the said increase, and it is reported that the petitioner filed a suit in the City Civil Court, Madras, questioning the levy in all its aspects, and the City Civil Court is said to have given a declaration that the said levy was not regular because the prescribed procedure under the Board's Standing Orders was not followed. Thereafter, during the next decennial revision in 1962-63 the ground rent was sought to be increased from Rs. 200 to Rs. 1,492.62 in the first instance and thereafter corrected to Rs. 1,659.50. When the petitioner was apprised of the same by a notice of demand issued as usual for the purpose he protested and laid objections thereto both before the Collector of Madras and before the Board of Revenue. The Board of Revenue, in the first instance, was of the view that the petitioner did not have an effective opportunity to contest the regularity of the levy and, therefore remanded the matter for consideration by the Collector. The Collector, after re-consideration, came to the same conclusion and was of the view that the ground rent in respect of the land bearing R.S. No. 800 of Purasawalkam belonging to the petitioner was to be re-fixed at Rs. 1,659.50 for the period from 1st July, 1962 to 30th June, 1963. This notice of demand is dated 10th May, 1965. It is as against this Order that the present writ petition has been filed. The petitioner challenges the levy on many grounds. Amongst them he lays stress upon three grounds which may be noticed as the only contentions raised before me.

2. The first contention of the learned Counsel for the petitioner is that in respect of this land, which was Originally freehold and assigned for consideration by the Secretary of State in Council, no ground rent at any time could be levied at all. Secondly, it is said that even under the provisions of the Madras City Land Revenue Act (XII of 1851) (hereinafter referred to as the Act of 1851) the Madras City Land Revenue (Amendment) Act (VI of 1867) (hereinafter referred to as the Act of 1867) and the various rules of procedure enacted for the purpose of Variation, levy and collection of such ground rent by the delegated authority, namely, the Board of Revenue, as would be seen from the Board's Standing Orders there is no express provision for increase of ground rent. It is said that as there is no express provision in all such enactments enabling the authority to increase the ground rent over and above the existing, rent such a power is not available and that, therefore, the increase is illegal. The third contention is that there has been violation of the principles of natural justice in that before the appropriate authority proposed to revise the ground rent decennially he Ought to have given a notice of such a proposal to increase the ground rent and in the absence of such a notice, the entire proceedings are hit by non-adhesion to the rules of natural justice. The learned Government Pleader, on the other hand, referring to the Act of 1851, the Act of 1867 and also to the Madras Revenue Recovery Act of 1864 says that the ground rent, which is also classifiable as revenue payable by a citizen in the State of Tamil Nadu to the State is analogous to the cess paid by a ryot for the use of ryotwari land and thus understood, the levy is authorised by ancient custom as being one which is inhered in the Sovereign in its prerogative power, and in exercise of such a prerogative, it has the elementary and annexed power thereto to vary the same by increasing it from time to time as prescribed. Such a variation of ground rent, which is revenue to the State, is authorised under the provisions of the Acts and is effected through the media of the Board of Revenue, which is the accredited delegated authority under the provisions of the Acts referred to.

3. The learned Counsel for the petitioner referred to a decision of Srinivasan, J., in W.P. No. 592 of 1961. There, the learned Judge did not go into the question whether or not there was a statutory power for enhancing the levy of ground rent. That decision, therefore, is not applicable to the facts of the present case.

4. Under the provisions of the 1851 Act, all assessable lands, which are not the property of the Government and which are within the limits of the Ordinary original civil jurisdiction of the High Court of Judicature at Madras, of which the rate of assessment is not known, shall be assessed at the rates customarily charged upon lands of a similar description in the neighbourhood. We have seen that even in the deed of sale executed by the Secretary of State as early as 1917, which purports to be a sale of freehold land, there is an express covenant which enjoined the predecessor in interests of the land to pay the assessment and taxes that may from time to time be levied on the land. Therefore, this covenant gives the impression that the lands were not at any time considered as freehold lands. In the light of Section 1 of the Act of 1851 it was capable of being assessed in the customary manner and in accordance with the practice availing in the neighbourhood. Section 3 of the Act of 1851 enables the Collector of Madras to determine the rate of assessment, and a right of appeal is provided to the Board of Revenue against the decision of the Collector. Section 9 of the said Act says that the claim of the Government for land revenue or rent has priority over all other claims upon the land, Or to which property distrained upon the land may be liable. Section 16 runs thus:

The ground rents payable to the Government from lands in Madras are revenue within the meaning of the Act of Parliament, 21 Geo. III, cap. 70.

This Act was followed by subsequent legislation known as the Madras City Land Revenue (Amendment) Act (VI of 1867). Under the provisions of this Act, this Act shall be read with and taken as part of the Act XII of 1851. Under this amending Act, 'revenue' has been defined as meaning any assessment, quit rent, ground rent or other charge upon the land payable to the Government. The Board of Revenue is constituted the authority under this Act as the duly delegated authority for implementing the purpose of the Act and particularly in the manner of levy and collection of revenue, which includes ground rent. The Board of Revenue has made orders from time to time which are popularly known as the Board's Standing Orders. In the Board's Standing Orders, rules are made for revision of ground rent in the City of Madras on Government lands rented to private parties. That the land in question is one such land granted by the Government to a private party and situate within the City of Madras cannot be disputed. The rules so framed provide that ground rent shall be liable for revision in the 11th Fasli following that in which it was first imposed and thereafter at intervals often years. For the purpose of revising the ground rent, a particular procedure is prescribed. The Tahsildar shall submit proposals to the Collector specifying the amount of ground rent which in his opinion may be substituted for that already in vogue in case a revision is thought of. The proposals submitted to the Collector would be scrutinised by the Collector who shall approve the same either in to or modify the same. Thereafter, the Tahsildar shall issue a notice in Form B to the occupant of the land giving intimation of the revision that has been made. Any aggrieved person is enabled to object to the proposal as made out in Form B by a petition to the Collector as prescribed. And again any one feeling aggrieved by the Collector's decision may appeal to the Board of Revenue and the decision of the Board shall be final.

5. I have dealt with at length the various provisions of the statutes governing the levy, imposition and collection of ground rent and the statutory machinery contemplated in such enactments for the finalisation of such levy and the ultimate collection thereof only for the purpose of showing that at no point of time the aggrieved person's right was ever sought to be affected without giving him an effective opportunity to raise his objections to such a revision of ground rent and other charges.

6. I am unable to agree with the learned Counsel for the petitioner that the revenue including ground rent is an unauthorised collection. I am equally unable to agree with him that there is no provision in the Acts and the Board's Standing Orders referred to above which would not enable the authorities to undertake the decennial revision if the circumstances warrant. As a matter of fact, similar questions arose in our Court when the right to levy assessment of land revenue on ryotwari lands was questioned. In an elaborate but instructive judgment Ramachandra Ayyar, J., (as he then was) in Gopalan v. State of Madras : AIR1958Mad539 , held, after noticing the earlier decision of our Court, that the Crown, according to the Common Law of India has certain prerogatives which it may exercise in India notably the prerogative of imposing by an executive act assessment on lands and varying the same from time to time. The learned Judge adopt ed the observations of Subramanya Ayyar, J., in Madathapu Ramayya v. Secretary of State for India in Council 14 M.L.J. 37 : I.L.R. (1904) Mad. 386. '' The right of the Government to assess land to land revenue and to vary such assessment from time to time is not a right created or conferred by any statute but as stated in my judgment in Bell v. Municipal Commissioners for the City of Madras 12 M.L.J. 208 : I.L.R. (1902) Mad. 457, is a prerogative of the crown according to the ancient and common law of India.

7. After stating that the State had the prerogative right to impose an assessment on ryotwari land, the learned Judge referred to several enactments and ultimately came to the conclusion:

It can, therefore, be said that the levy of assessment on lands has been made by sanction of the Legislature. Thus, though in origin the assessment was on the basis of a prerogative right, it was recognised as lawful by custom and statutes, the assessment procedure was codified, as it were, in the Board's Standing Orders, and there was, therefore, a valid legal sanction prior to the Constitution for ' the levy, assessment and recovery of land revenue'.

After observing thus, the learned Judge justified the imposition under Article 372 (1) of the Constitution. To a similar effect is the decision of our High Court in Rajagopalachariar v. State of Madras : (1959)2MLJ344 this Court said dealing again with the right of the State to impose the tax under the Madras Land Revenue Surcharge Act:

The origin of the right to levy such a tax was the prerogative of the Crown. That prerogative right has been followed by legislation, viz., the Madras Revenue Recovery Act II of 1864. The actual levy was the subject-matter of delegation to the Board of Revenue. But such delegation was within permissible limits. The delegated authority, viz., the Board of Revenue fixes the assessment on the basis of the income from lands....

8. Adopting the ratio in both these cases I am of the view that the levy of ground rent on lands secured as free hold lands from the State in the first instance but later on subjected to revenue such as round rent, is authorised not only by custom but also under the various enactments which I have already referred to, such as the Act of 1851, the Act of 1864 and the Act of 1867. May be that the origin of the right or power is traceable to the prerogative of the Crown which later on metamorphosed into a custom and still later was crystallised by express provisions of statutes already referred to. Nevertheless, it cannot be said that at any point such a levy was not authorised and much less unauthorised and illegal.

9. The second contention of the learned Counsel is that there are no express provisions either in the parent Act or in the processual system adopted which enabled the appropriate authorities to increase or vary the ground rent. This is far from correct. I have already referred to the fact that the Board of Revenue has been recognised as an accredited delegated authority or agency for the due implementation of the purport of the three Acts referred to above and they have in fact framed rules in their Standing Orders and set down the method by which such ground rent could be revised a decennially.

10. The third contention is that principles of natural justice have been viola-led in the instant case because the Tahsildar or whoever the authority who proposes to increase the ground rent at the appropriate point of time has not intimated the aggrieved party in advance. This contention is a peculiar extension of the doctrine of the principles of natural justice. Such principles so far understood and applied by Courts of law are limited to circumstances where the aggrieved party demands a fair hearing, a fair opportunity and a fair trial. But in the instant case, the petitioner wants an opportunity to be given to him even at the stage when the Tahsildar proposes to increase the ground rent once in 10 years. I am unable to see the purpose behind such a demand. It is clear that the procedure makes it incumbent upon the statutory authority to give notice of such finalised proposals as approved by the Collector and give an opportunity to the owner of the land to state his objections to the increased ground rent. If such an opportunity is given as is contemplated under the Act, then I do not see that any facet of the doctrine of natural justice has either been or can ever be violated. I am, therefore, unable to agree with the third contention of the learned Counsel for the petitioner. In the instant case, when he was given an opportunity to state his objections and when he was also furnished with the working sheets on which the increase was made, the petitioner, cannot complain that there has not been an effective or fair opportunity afforded by the statutory authority to state his objections to the levy.

11. The petitioner should also fail because he has not availed of the opportunity to prefer an appeal against the order of the Collector which is challenged herein to the Board of Revenue, which remedy is expressly provided for under the Board's Standing Order. As such an effective alternative remedy has not been availed of, I am unable to issue a rule of certiorari in my discretion, under Article 226 of the Constitution. The petitioner fails in all his contentions. The petition is dismissed. There will be no order as to costs.


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