1. We are of opinion that the decision of the lower appellate Court in this case is correct, and that this appeal must fail.
2. The plaintiffs sued the defendants for arrears of road and public works cesses alleged to be due on account of certain rent-free land, and they claimed to recover double the amount due under Section 58 of the Cess Act (Bengal Act IX of 1880). The first Court found that, inasmuch as notice of the valuation had not been published in accordance with Section 52, the provisions of Section 58 were not applicable to the ease; bat that, although the plaintiffs were not entitled to recover double cesses under that section, they were entitled to recover the cesser with interest under Section 62 of the Act. On appeal by the defendants the District Judge has held that under Section 56 the plaintiffs are not entitled to recover the cesses at all.
3. It is contended before us that the Judge is wrong, and that the plaintiffs are entitled to recover the cesses under Section 62 of the Act. It becomes necessary, therefore, to examine the provisions of the Act on this subject.
4. Chapter IV of the Act (Sections 50--71) deals with the 'valuation and assessment of lands held rent free and the payment and recovery of cess in respect thereof.' After providing in what estates or tenures rent-free lands shall be included for the purposes of the Act, Section 51 proceeds to say that the holder of an estate or tenure in which rent-free lands are included shall be bound to include such lands in his return, and to pay the ceases thereon at half rates. Section 52 then provides that, on publication of the valuation-roll of such estate or tenure, a notice to the owners and holders of such lands with extracts from the valuation-roll shall be published in a prescribed form. Section 53 provides for objections to the valuation by the holders of rent-free lands. Sections 54 and 55 provide for the issue of notices in certain cases by the holder of the estate or tenure in which the rent-free lands are included. Then Section 56 says: 'After publication of the extracts from the roll as provided in Section 52, and in cases in which publication of the notice mentioned in Section 54 is required, after publication of such notice, and not otherwise, every owner and holder of any rent-free land included in such extracts, and every person in receipt of the rents and profits or in possession and enjoyment of such land shall be bound to pay year by year to the holder of the estate or tenure, in the return of which such land has been included, the amount of the road cess and public works cess which may thereafter become due to such holder, calculated, on the annual value of such land as entered in such extracts, or on any other annual value which may have been determined by the Collector under Section 53, at the full rate or rates which may have been fixed under this Act for the levy of such cesses respectively in the district generally for the year.' From this section, therefore, it is clear that it is only after publication of the notices required by Sections 52 and 54, and riot otherwise, that the owner or holder of rent-free lands becomes liable to pay the cesses assessed thereon ; and it is no more than consonant with reason that such owner or holder should not be called on to pay until he has had notice of the amount assessed upon his lands and an opportunity of objecting to that assessment.
5. Omitting Section 57 as immaterial to the present case, Section 58 goes on to lay down that, if an installment of the cess is not paid by the holder of the rent-free lands within one month from the date on which it is due, the holder of the estate or tenure may recover double the amount due with interest and costs, provided always that he has paid to the Collector the cesses due from him under Section 51. Sections 59 and 60 relate to supplementary returns, and are not material in the present case. Then come two important sections, which prescribe in what cases the provisions of Section 58 relating to the levy of double cesses in case of default shall be applicable. Section 61 says that those provisions shall be applicable to every amount which, as provided in Section 56, may become payable after the fulfillment of the requirements of Sections 52 Section 54.
6. Section 62, on the other hand, says that the provisions of Section 58 shall not be applicable to any amount that may have become payable (under Bengal Act X of 1871 or under this Act) before the fulfillment of the requirements of Sections 52 Section 54. But the section goes on to say that such amount may be recovered with costs and interest, provided that the owner of the estate or tenure has paid the cesses due by him to the Collector.
7. Now it is contended before us that the latter clause of this section gives the holder of the estate or tenure a right to recover an installment of cess payable under Section 56 even before publication of notice. But this is not so, and to hold that it is so would be to say that Section 62 contradicts Section 56. Section 56 distinctly says that cesses only become payable under that section after publication of the notices required by Sections 52 and 54, and Section 62 would contradict the provisions of that section if it said that such cesses could be realised before publication of the notices.
8. To understand the latter part of Section 62 aright it must be remembered that under Bengal Act X of 1871 rent-free lands were made liable to pay the cess, though the elaborate provisions regarding the assessment of such lands contained in the present Act are not to be found in that Act. By Section 3 of the present Act all cesses imposed under the previous Act3 are to be deemed to have been imposed under this Act. It is clear, therefore, that an installment of cess might be due under the Act without being due under Section 56. It might be due under a former assessment, and before any proceedings were taken under Chap. IV of this Act. Such an installment, Section 62 says, may be recovered in the ordinary way, but the special provisions of Section 58 (as to damages for default) will not apply to it. Or, again, we may suppose the case of a new assessment or re-valuation of the estate or tenure including the rent-free lands. Section 56 provides that the new rates shall not become due till after the due publication of the required notices; but under Section 62 (read with Section 56), the holder of the estate or tenure could recover the cess at the old rates.
9. In the present case it is not contended that any cess has become payable otherwise than in pursuance of the provisions of Section 56 of Bengal Act IX of 1880; and we think the Judge is right in holding that, the required notices not having been published, no cess has become payable under that section.
10. The Judge remarks that the case is a hard one for the zemindar, as it not his duty either to serve the notices or to preserve the evidence of the service; but the Judge has apparently overlooked the provisions of Section 54, which requires notices to be published by the- holder of the estate as well as by the collector in cases like the present. The appeal must be dismissed with costs.