1. The lands to which this suit relates are a part of Chur Mohun Sureswar, and are included within a permanently-settled estate of the plaintiffs. At the time when the first survey map was made, the whole chur had become diluviated ; when a second survey map was made under Act IX of 1847, the part of the chur now in question bad re-formed on the old site. The Revenue Authorities have assessed the land with land revenue under Act IX of 1847. This suit was brought to establish the plaintiffs right to hold the land as part of their permanently-settled estate, free from liability to any such additional assessment as has been imposed upon it. The first Court gave the plaintiffs a decree, the lower appellate Court reversed it. Against that reversal the present appeal has been brought, and the case has been referred to us by the Division Bench. The questions which we have to decide are substantially two: (1) Has a Civil Court jurisdiction to inquire whether the lands in question were assessable under Act IX of 1847 (2) If so, were these lands so assessable The answer to these questions must depend upon the construction to be placed upon the provisions of Act IX of 1847 ; but in order to-understand that Act it is necessary to examine the earlier legislation.
2. The first enactment which it is necessary to consider is Regulation II of 1819. The preamble to that Regulation states, amongst other things, that it 'appears to be necessary in order to obviate all misapprehension on the part of the public officers or of individuals, to declare generally the right of Government to assess all lands which, at the period of the decennial settlement, were not included within the limits of an estate for which a settlement was concluded with the owners, nor being lands for which a distinct settlement may have been made since the above period, nor lands held free of assessment under a valid and legal title and at the same time formally to renounce all claim on the part of Government to additional revenue from lands which were included within the limits of estates for which a permanent settlement has been concluded at the period when such settlement was so concluded.' Section 3 accordingly expressly declares that all lands not included within a permanently-settled estate, nor subsequently settled, nor held free of assessment under a valid title, are liable to assessment; and the section expressly says further that this principle is applicable 'to all churs and islands formed since the period of the decennial settlement, and generally to all lands gained by alluvion or dereliction since that period, whether from a retrocession of the sea, an alteration in the course of rivers, or the gradual accretion of soil on their banks.'
3. This preamble and this section contain the substantive law on the subject. All that follows in this and subsequent Regulations refers to procedure for giving effect to that law. That procedure falls under two heads--the determination of the question whether particular lands are or are not liable to assessment, and the assessment of lands found to be liable. These two matters have been dealt with quite separately; one group of enactments declared by whom and under what procedure the liability to assessment should be decided; another group of enactments gave the rules for assessment.
4. The Regulation II of 1819 deals almost entirely with the first head--the trial of the question of liability. By Section 5 things were to be set in motion when a Collector had reason to believe that lands within the sphere of his control were liabla to assessment. By Section 7 the Collector in such case was to 'institute a full and particular inquiry into the circumstances and AUG. condition of the land in question at the period of the decennial settlement,--and in cases of alluvial land, into the period of its formation.' By Section 20 the Collector 'having closed his proceedings' was to 'record his opinion in a Persian rubokari detailing the grounds on which it is founded, and whether the lands appear liable to assessment or otherwise.' He was to forward the proceedings to the Board of Revenue and to give a copy of his rubokari to the party. By Section 21 the Board in their turn were to record their 'opinion' in a rubokari, and give a copy to the party. The final rubokari of the Collector and the Board were to 'contain a distinct statement of the subject-matter of the case, the grounds on which the decision may be given,' and other matters. If the Board should 'pronounce' against the liability, the decision was final except on proof in a Court of fraud or collusion. In the event of the Board 'declaring the lands liable to assessment,' the Collector was to inform the party of 'the decision of the Board,' and then, and not before, he was to proceed 'to fix an assessment on the principle of the general regulations on such information as may be procurable.' Sections 22 and 23 provided for the suspension of the assessment proceedings, on certain conditions. pending a suit to be at once instituted in a Civil Court, and Section 24 gave a right to sue afterwards within certain limits of time. Section 31 asserts in general terms that 'it being left to the Courts of Judicature to decide, on all contested cases, whether lands assessed under the provisions of the Regulation were included at the period of the decennial settlement within the limits of estates for which a settlement has been concluded in perpetuity, and to reverse the decision of the Revenue Authorities in any case in which it shall appear that lands which actually formed, at the period in question, a component part of such an estate, have been unjustly subjected to assessment under the provisions of the Regulation, the zemindars and other proprietors of land will be enabled, by an application to the Court, to obtain immediate redress in any case in which the Revenue Authorities shall violate or encroach on the rights secured to them by the permanent settlement.'
5. At each point in the process for ascertaining the liability of land to assessment rules of procedure were given by this Regulation. These were modified in some respects by Section 5 of Regulation IX of 1825, but the provisions I have cited remained so far substantially unchanged.
6. The next Regulation to which it seems necessary to rater is Regulation VII of 1822. That is a long Regulation, containing an elaborate set of rules for conducting settlements and assessments. It applied only to the Ceded and Conquered Provinces and other districts in which the permanent settlement had never been introduced. It did not deal with the first of the two heads of inquiry to which I have referred, namely, the liability to assessment, but with the second, the assessment itself. It does, however, provide that in a variety of matters arising in the course of a settlement, the Revenue Officers should deal with questions of title and in every such case recourse to the Civil Courts is carefully provided for as in Sections 14, 15, 16 and 17.
7. Regulation IX of 1825 applied the last mentioned Regulation VII of 1822 to 'all lands not within the limits of estates for which a permanent settlemant has been concluded.' It also, as has been already mentioned by Section 5 modified in some respects the procedure for trying the liability to assessment provided by Ragulation II of 1819.
8. Regulation XI of 1825, which deals with the title to churs and accretions, by Section 4 reserves any right to assess such lands, which belonged to Government under Regulation II of 1819.
9. The next regulation is Regulation III of 1829. The preamble refers to the provisions of Regulation II of 1819 as to inquiries with a view to the resumption and assessment of all lands held free of rent or at an in-adequate rent under invalid tenures, adding : 'such provision having been made with the intention that the decisions of the Collectors and of the Board should be held and considered to be judicial awards, and, that the suits preferred to the ordinary Courts being of the nature of appeals should be speedily disposed of.' It goes on to show that speedy decisions bad for various reasons not been secured, and that it was 'expedient to appoint Special Commissioners competent to decide finally all cases of the nature above described.' Accordingly Section 2 empowered the Governor-General in Council to appoint in any district Special Commissioners for the final determination of all cases investigated by Collectors under Regulation II of 1819 as to the liability of lands to assessment, as well as certain other cases. It provided further, that in any district in which Special Commissioner were appointed, the powers of the ordinary Civil Courts in such cases should be suspended, and no appeal should lie to them from the decisions of Collectors or Boards of Revenue. By a. 5 the proceedings of the Collector were left much the same as under Regulation II of 1819, except that he might proceed to assess as soon as he had himself decided the question of liability. The award is spoken of as a 'decision' and as a 'judgment,' and it is declared to have the force of a decree. The decisions of the Special Commissioners were made final except in eases in which, if the decision had bean by the Sudder Court, an appeal would have lain to the Privy Council, in which case the appeal was preserved. Section 10 provided that suits in Civil Courts to contest decisions of Boards of Revenue should not stay execution, and that such suits should be heard as regular appeals. Other parts of the Regulation related to entirely different matters.
10. This was the state of legislation prior to the passing of Act IX of 1847. The result of that legislation appears to me to have been this.
11. The substantive law on the subject was clear. Any land alluvial or otherwise, included in a permanently-settled estate, was not liable to further assessment; any land not so included was liable to assessment.
12. The determination of the liability of land to assessment, and its assessment if so liable, were distinct questions dealt with by the Legislature in separate groups of provisions: the one was always treated as and declared to be a matter for Courts of Justice, the other for the Revenue Authorities as such.
13. The question of liability to assessment might be tried and decided--
First--By the Collector, subject to an appeal to the Board of Revenue and to the Civil Courts in districts where there were no Special Commissioners and to the Special Commissioners where there were such.
Secondly--By the Board of Revenue, on appeal from the Collector in districts where there were no Special Commissioners.
Thirdly--In the same districts, by ordinary Civil Courts on appeal from the Board of Revenue.
Fourthly--By Special Commissioners, when such were appointed on appeal from the Collector.
14. All the authorities alike, the Collector and the Board of Revenue no less than the ordinary Civil Courts and the Special Commissioners, appear to me, when trying and deciding the question of liability to assessment, to have been judicial tribunals, making judicial investigations, and passing judicial decisions. So far as the nature of the question tried and determined affects the matter, this would certainly seem to be so; the question was as to the existence of a proprietary right expressly conferred by Statute. In Regulation II of 1819 the finding of the Collector and of the Board of Revenue are spoken of in-differently as 'opinions' and as 'decisions,' and the Board are said to 'pronounce against the assessment' or to 'declare' the lands liable (Sections 20, 21, 22). Regulation III of 1828 in the preamble says in plain terms that the Legislature had always intended those decisions to be 'judicial awards,' and the proceedings in the ordinary Courts to question them to be 'of the nature of appeals.' In this last mentioned Regulation the proceedings are frequently termed 'suits,' the findings are now called sometimes 'decisions,' sometimes judgments,' and they have the force of decrees. For these reasons I think that both before and after 1828 the Collector and the Board of Revenue, just as much as the ordinary Courts and Special Commissioners, when trying the question of liability to assessment, were not doing an executive act as officers of the revenue, but were acting as Courts of Justice exercising a Special civil jurisdiction conferred upon them by the Regulations.
15. I now come to Act IX of 1847. That is 'an Act regarding the assessment of lands gained from the sea or from rivers by alluvion or dereliction within the Provinces of Bengal, Behar and Orissa.' Section 1 enacts 'that such parts of the Regulations of the Bengal Code as establish tribunals and prescribe rules of procedure for investigations regarding the liability to assessment of lands gained from the sea or rivers, by alluvion or dereliction, or regarding the right of Government to the ownership thereof, shall cease to have effect within the Provinces of Bengal, Behar and Orissa, and that all such investigations pending before the Collectors and Deputy Collectors,...shall forthwith be discontinued, and that no measures shall hereafter be taken for the assessment of such lands, or for the assertion of the right of Government to the ownership thereof, except under the provisions of this Act.' Section 3 empowered the local Government, at any time after ten years had elapsed from a previous survey, to order a fresh survey of lands on the banks of rivers or on the sea-shore, in order to ascertain the changes that have taken place in the meantime, and to cause a new map to be made. Section 5 directed that if on inspection of the new map it appeared that land had been washed away from a revenue-paying estate a deduction should be made from the sudder jumma, as to which the orders of the Board of Revenue should be final. Section 6 says 'Whenever on inspection of any such new map, it shall appear to the local Revenue Authorities that land has been added to any estate paying revenue to Government, they shall, without delay, assess the same with a revenue payable to Government according to the rules in force for assessing alluvial increments, and shall report their proceedings to the Sudder Board of Revenue, whose orders thereupon shall be final.' Section 7 directed that when on a like inspection it appeared that 'an island has been thrown up in a large and navigable river liable to be taken possession of by the Government under Clause 3, Section 4, Regulation XI of 1825,' the local Revenue Authorities should take possession of it, and assess and settle it, and that the orders of the Board of Revenue 'in regard to the assessment' should be final : 'Provided, however, that any party aggrieved by the act of the Revenue Authorities in taking possession of any island as aforesaid, shall be at liberty to contest the same by a regular suit in the Civil Court.' Section 9 says that, 'except as regards the proprietary rights to islands, no suit or action in any Court of Justice shall lie against the Government, or any of its officers on account of anything done in good faith in the exercise of the powers conferred by this Act.'
16. These are the sections which have to be considered, and the broad questions to be decided are, first, whether they have taken away from the Civil Courts all power of inquiring into the liability to assessment of alluvial lands which have been assessed ; and, secondly, whether they have made lands liable to be assessed which were not so before. I think it worthy of observation, in the first place that the Legislature of this country has always acted in these matters upon a clear policy, namely, that questions of title are for the Courts of Justice, questions of assessment for the Revenue Authorities. That principle had, prior to 1847, been acted upon for 50 years in the case of alluvial lands, and it is still applied, so far as I know, in all other cases. The construction contended for reverses the settled policy in this one particular instance ; it involves a direct infringement of rights of property, amounting in the present case, on the facts found, to confiscation and it takes away from people their ordinary power of having their legal rights of property determined by Courts of Justice. I think we ought not to adopt such a construction unless the intention of the Legislature has been expressed in clear and unmistakable language; and I can find no clear expression of such an intention ; on the contrary, I think the language of the Act shows with reasonable clearness another intention altogether.
17. The first thing I propose to examine is the meaning of the words in section which repeals 'such parts of the Regulations as establish tribunals and prescribe rules of procedure for investigations regarding the liability to assessment', of alluvial lauds. By the word tribunal, I understand simply a man or body of men constituting a Court of Justice, and I have already given my reasons for thinking that Collectors and Boards of Revenue were Courts of Justice when trying questions of liability to assessment. And the parts of Regulations dealing with this matter of liability are a branch of legislation which has always stood apart, so that understanding the words as I do, nobody could have the least difficulty in printing out the parts of Regulations referred to. In my judgment this section repealed everything in the Regulations which enacted by what officers and bow the question of liability should be tried, and therefore took away from Collectors and Boards of Revenue the power of giving any binding decision on the point. I am confirmed in this view by the words which follow, which directed Collectors to discontinue, not pending assessments, but pending investigations regarding the liability to assessment.
18. Then as to Section 6, it is said that under it the orders of the Board are conclusive of the question of title. There seem to me only three possible grounds on which this can be contended. The first is to say that this is a taxing section, and the words 'shall assess the same' render liable to assessment all lands which, on comparison of the two maps, the Revenue Officer thinks have been added in the interval between them, whether included in an estate already assessed or not. But it has already been held by a Full Bench--and I think there is no doubt rightly held-that this is only a Procedure Act : Budrunnissa Chowdhrain v. Prosunno 1886 Kumar Bose 6 B.L.B. 255.
19. Secondly, it may be said, and has been said, that though this is only a Procedure Act and not intended to make any land subject to assessment which was not so before, yet it does, as a matter of procedure and evidence, make the former survey map conclusive as to the original limits of each permanently-settled estate, and therefore make the comparison of the two maps by the Revenue Officer conclusive on the question of addition to the estate. This view was acted upon in Dewan Ram Jewan Singh v. Collector of Shahabad 14 B L.R. 221 (note) : 18 W.R. 64 Ram Jewan Singh v. Collector of Shahabad 19 W.R. 127.; and Sarat Sundari Debi v. The Secretary of State for India 11C. 784. But this is a very strong effect to attribute to a survey map by ex post facto legislation. And a consideration of Section 7 seems to show that the view cannot be correct; the same words exactly are used with reference to an island chur that on inspection of the map appears to be the property of Government, but it is obviously impossible that any inspection of maps can show whether the island when formed was or was not separated from the shore by a fordable channel. Moreover, this construction of the section does not appear to be the view ordinarily acted upon by the Revenue Authorities ; it certainly was not acted on by them in the present ease. I think that the comparison of the maps is not conclusive, but that what is meant is that the comparison is to set the Revenue Authorities in motion, and that they may then, on the best materials they can procure, proceed 'to assess what they deem to be assessable.
20. Thirdly, and this was the main contention before us, it is said that the words which say that the orders of the Board of Revenue 'shall be final' are conclusive. What is declared to be final is the order of the Board upon the Collector's assessment. The effect, in my opinion, is to make the assessment final in every case in which there is jurisdiction to assess, but to leave it open to the Civil Courts to enquire in each case whether there was such jurisdiction. There is jurisdiction to assess if the lands] assessed are liable to assessment; that question is therefore open to the Civil Courts. The case seems to me the same in principle as a number of cases decided upon other enactments containing similar clauses of finality. Thus by Section 33 of the Revenue Sale Act (Act XI of 1859). it was enacted : 'No sale for arrears of revenue or other demands realizable in the same manner shall be annulled by a Court of Justice' except upon certain specified grounds. It was held by a Full Bench that this did not preclude a Civil Court from inquiring whether at the time of a sale any arrear was due, and whether therefore there was any jurisdiction to sell--Baijnath Sahu v. Lola Situl Prosad 2 B.L.R.F.B. 1. So Section 20 of Regulation XIX of 1814, declared the determination of the Board pf Revenue upon a Collector's paper of partition to be final. It has been held more than once that that means final as to the matters which the Revenue Authorities are empowered to decide, the jumma and its division, and the mode of division of the lands, and that it is for the Civil Courts to try the title to the land and any question as to the shares--Spencer v. Puhul Chowdhry 6 B.L.R. 658; Kunj Behari Singh v. Bern Singh 6 B.L.R. 663 (note), Similar principles were acted on in Hargobind Has v. Baroda Prasad Das 6 B.L.R. 615. Of course the case would be otherwise if the Revenue authorities were empowered not only to assess but also to try the liability to assessment. But that power, I think, was taken away by the first section of the Act.
21. Stress was laid in argument upon the words in Section 7 expressly giving right of civil suit to any one aggrieved by the Government taking possession of an island chur. It was suggested that this tends to negative the right of suit in other oases. I do not think so. Under section. 6, if my view be correct, the Revenue Officers decide nothing as to proprietary rights, and their action in assessing does not necessarily interfere with the enjoyment of such rights; there was no necessity, therefore, for saying anything about a civil suit. But taking possession of an island chur under Section 7 would, if it were private property, be a direct infringement of private right; there was, therefore, reason for reserving the right to sue. So that the assertion of the right to sue in Section 7 seems to me only to show that the Legislature in 1847 intended to maintain, not to abandon, its traditional policy.
22. Section 9 was also relied upon as excluding such a suit as the present. That section is not very clear, and two constructions have been placed upon it. In Dewan Ram Jewan Singh v. Collector of Shahabad 14 B.L.R. 221 (note) : 18 W.R. 64. Couch, C.J. and Ainslie, J., held it to prohibit suits to establish title. In Collector of Moorshedabad v. Roy Dhunput Singh 15 B.L.R. 49, Phear and Morris, JJ., limited it to suits for damages. I prefer the latter view; the mention of good faith is strong in favour of it. The exception in the case of islands tends the other way, but not, I think, very strongly; there is a great difference between allowing a suit for damages for an actual ouster under Section 7 and for an assessment under Section 6. At any rate, unless the meaning be clear, we should not, I think, adopt a construction which infringes rights of property.
23. The general conclusion I have arrived at on the examination of this Act is, that the Legislature has abolished all the special provisions for trying the liability to assessment in the case of alluvial lands, has cast it upon the Revenue Authorities to form and act on the best judgment they can in the matter, and has left the question of liability to be decided by the Civil Courts as and when the question may arise. No doubt the Revenue Authorities are right in making the careful inquiries which I understand they do make before assessing such lands ; I think, however, that their conclusions are not of binding force, but that the Civil Courts have, in a suit like the present, jurisdiction to inquire into the question of liability. And this would not make any very great change from the previous law ; under Regulation II of 1819 it was entirely in the discretion of the party affected to apply to the Civil Courts before the assessment, or to wait till afterwards. Nor can I see any such obvious inconvenience in this view as to lead me to doubt its correctness. If the Revenue Authorities are sufficiently sure of their right to assess, I suppose they will, as I suppose they do, make an assessment, and, on the basis of that assessment, settle the land with some one according to the ordinary rules, unless a suit like the present is first brought, and then leave the rival claimants to fight the matter out between themselves.
24. If I be right in thinking that the Civil Courts can deal with the question, I think further, for the reasons already stated, that the lands in question in this case were not liable to be assessed.
25. I would only further notice a little more in detail certain cases bearing upon this question relied upon in the course of the argument, and to which I have already referred. The first is Dewan Ram Jewan Singh v. Collector of Shahabad 14 B.L. R. 221 (note) : 18 W.R. 64, decided by Couch, C.J., and Ainslie, J. Nothing is reported except the judgment, but it would seem from that judgment that the case was very similar to the present. The suit was dismissed on two grounds--that it was barred by Section 6 of Act IX of 1847 and that it was barred by Section 9. It is said : 'Since in this case there has been an addition to the estate appearing upon the inspection of the new map, although it is, as stated in the plaint, are formation upon the old site, it comes within Section 6, and is added to the estate.' And again, it is said : 'This is a case coming within Section 6, where power is given to assess the land which had been re-formed, and then the same section says expressly that the orders of the Sudder Board of Revenue shall be final. I have stated in detail the reasons which lead me not to agree in this view. As to Section 9, I am also unable to agree in thinking that it applies ; the view taken in the case already referred to seems to me preferable.
26. In Ram Jewan Singh v. The Collector of Shahabad 19 W.R. 127 id is impossible to say from the report what the case before the Court was. But the learned Judges (Couch, C.J., and Phear, J.) appear to have expressed approval of the case previously mentioned.
27. In the Collector of Moorshedabad v. Roy Dhunput Singh 15 B.L.R. 49, before Phear and Morris, JJ., a portion of the plaintiff's zemindari had been washed away and re-formed. Being then found in contact with, and an apparent addition to, the estate of one of the defendants, the Revenue Officers assessed it under Act IX of 1847 and settled it with the latter. The plaintiff sued that defendant, with another who claimed under him, and the Government, to recover the land on the strength of his original title. The Court held he was entitled to recover, that the assessment under Act IX of 1847 was no doubt binding on the defendant who had accepted a settlement under it, but that it bound no one else. In this decision I wholly concur.
28. The last case is Sarut Sundari Debi v. The Secretary of State for India 11 C. 784. I was a party to the judgment in that case with Beverley, J, The suit was the same in character as the present, and the facts alleged by the plaintiff were similar; and it was held that the suit was barred by Section 6 of Act IX of 1847. It was held, first, that the Civil Court bad power to inquire in such a suit; whether the Revenue authorities had jurisdiction to make the assessment they had done; and I thick it was rightly so held. It was held, secondly, following the earlier cases, that the former survey map was conclusive as to the boundaries of the estate, and that, therefore, the Revenue authorities had acted within their jurisdiction in making the assessment; in this I think, for reasons I have stated, that we were wrong.
29. I should set aside the decree of the District Judge by which he reversed that of the Subordinate Judge, and I should affirm the decree of the Subordinate Judge with costs in all Courts.
30. I would answer the first question in the negative. The provisions of Act IX of 1847 are applicable to lands gained from the sea or from rivers by alluvion or dereliction. But land re-formed on the site of an estate, the proprietary right in which is vested in a private individual, does not fall under the category of lands gained from the sea or from rivers by allusion or dereliction.
31. The second question referred to us is substantially this--whether a Civil Court is competent to entertain a suit, the object of which is to establish that land assessed by the Revenue Authorities as an alluvial in Crement under Act IX of 1847 is not liable to assessment, on the ground that it does not fall under the category of lands gained from the sea or from rivers by alluvion or dereliction. The decided oases bearing upon the question are all one way, laying down that the jurisdiction of the Civil Court was taken away by Section 6, Act IX of 1847. Dewan Ram Jewan Singh v. Collector of Shahabad 14 B.L.R. 221 (note) : 18 W. R. 64.; Ram Jewan Singh v. Collector of Shahabad, 19 W. R. 127 Collector of Moorshedabad v. Roy Dhunput Singh 15 B.L.R. 49; and Sarat Sundari Dabi v. Secretary of State for India 11 C. 784.In this last mentioned case, it was also held that Civil Courts have power to try, whether the Revenue Courts have jurisdiction under Section 6 of Act IX of 1847.
32. In order to arrive at a correct conclusion, regarding the interpretation of the provisions of Act IX 6f 1847, it is necessary to examine the. previous legislation on the subject of the assessment of alluvion increments.
33. There is no special provision in the Code of 1793 regarding the assessment of alluvial increments. But, under Section 8 of Regulation III of 1793, the Civil Courts were authorized to take cognizance of all suits respecting revenues, &c.; It follows, therefore, that, if any demand for assessing alluvial increments had to be enforced, it had to be enforced by a suit in a Civil Court. That this was the law is declared in the preamble of the following Regulations: viz., Regulations VIII of 1811, V of 1813, XI and XXIII of 1817.
34. By this last mentioned Regulation, the Revenue Officers were, for the first time, authorized, in certain specified districts, to try summarily the question of liability to assessment of alluvial increments'. But by Section 12 a party aggrieved by the decision of the Revenue Authorities could 'institute a suit in the Courts of Judicature against Government to try the merits of the said decision.'
35. Then came Regulation II of 1819 by which all the previous Regulations were repealed, and an elaborate procedure was laid down for the investigation, by the Revenue Officers, of the question of the liability of lands held revenue free to be assessed with Government revenue. But the right of the party aggrieved by the decision of the Revenue authorities to contest the correctness thereof was preserved.
36. By Regulation III of 1828 the jurisdiction of Civil Courts to -entertain suits of the above description was taken away in the districts where, under Section 2 of the Regulation, the Governor-General in Council appointed Special Commissioners, who were vested with the power of the final determination of all cases which had been or might be investigated by Collectors and Deputy Collectors or other officers exercising the powers of a Collector under Regulation II of 1819.
37. In this state of things Act IX of 1847 was passed.
38. The 1st section of the Act is as follows:
It is hereby enacted that such parts of the Regulations of the Bengal Code as establish tribunals and prescribe rules of procedure for investigations regarding the liability to assessment of lands gained from the sea or from rivers by alluvion or dereliction, or regarding the right of Government to the ownership thereof, shall from the date of the passing of this Act, cease to have effect within the Provinces of Bengal, Behar, and Orissa, and that all such investigations pending before the Collector and Deputy Collector in the said Provinces at the said date, shall be forthwith discontinued, and that no measure shall hereafter be taken for the assessment of such lands or for the assertion of the right of Government to the ownership thereof except under the provisions of this Act.
39. It seems to me that the scope of the Act, so far as it my be gathered from the title of the Act and the 1st section, is, that it lays down rules for the investigation regarding the liability to assessment of alluvial increments, abplishing tribunals and rules of procedure created and prescribed by parts of the Regulations of the Bengal Code for holding such investigation.
40. The same view was taken by Couch, C.J., in the Full Bench decision--Budrunnissa Chowdhrain v. Prosonno Kumar Bose 6 B.L.R. 255 (267) He says : 'Now looking at the first section, the Act does not appear to have been intended to do more than make different provisions for the investigations regarding the liability of the lands to assessment or the rights of the Government, and it was not intended to alter in any way the right which existed in the law before that Act was passed.'
41. The first section expressly declares that 'no measures shall hereafter be taken for the assessment of such lands except under the provisions of this Act.' The first step in the' measures for the assessment must necessarily be the establishment of the right to assess. That step, according to the first section, must be taken under the provisions of the Act. The Revenue Officers acting under it must therefore first investigate the question regarding the liability to assessment. This investigation is consequently within the jurisdiction vested in them by the Act, and the word 'assessment' used in the title of the Act and in the latter part of Section 1 and also in Section 6 therefore, in my opinion, includes an inquiry or investigation into the question regarding the liability to assessment.
42. Passing over for the present the intermediate sections, we come to Section 6 of the Act. It is to the following effect:
And it is hereby enacted that whenever on inspection of any such new map, it shall appear to the local Revenue Authorities that land has been added to any estate paying revenue directly to Government, they shall, without delay, assess the same with a revenue payable to Government according to the rules in force for assessing alluvial increments, and shall report their proceedings forthwith to the Sudder Board of Revenue, whose orders thereupon shall be final.
43. Now the 'proceeding's' of the Revenue Authorities mentioned in this section would, as shown above, embrace an inquiry upon two questions, viz., the question of the liability to assessment and the question of the rate of assessment. Therefore the 'orders' of the Sudder Board of Revenue mentioned in it would also deal with both these questions, and the section says in its concluding part that the said orders shall be final. The language of the section does not, in my opinion, warrant us to curtail the force of the word 'final,' so as to make it applicable to one part of the order only, viz., that relating to the rate of assessment and not to the other. It seems to me that under the express wording of the section, the 14. finality attaches to the whole order, i.e., the whole order dealing with both these questions.
44. Now it has been said that there was no procedure laid down in the Act for judicially investigating the question of liability to assessment, the whole of the previous procedure under Regulation II of 1819 and Regulation III of 1828 having been swept away by Section 1 of the Act. But it seema to me that only the 'tribunals' established by Regulation III of 1828 and the procedure prescribed for their guidance were abolished by that section. The procedure referred to in Section 1, is the specified procedure laid down for ' tribunals' abolished. These tribunals are the Special Commissioners and the Officers vested with the power of resumption under Regulation III of 1828, and do not include Collectors and Officers deciding under Regulation II of 1819 the question of the liability of land held revenue-free to be assessed with Government revenue. The word 'tribunals' ordinarily means officers whose chief function is judicial. The chief function of a Collector or a Revenue Officer is executives They, in my opinion, cannot properly be called 'tribunals,' because in some special matters they may be vested with judicial power.
45. There is another reason for thinking that the judicial functions of the Revenue Authorities under Regulation II of 1819 were not abolished by Section 1 of Act IX of 1847.
46. Section 8 of the Act, which evidently provides for the suits pending in the 'tribunals' abolished under Section 1, shows that these were the Resumption Courts established under Regulation III of 1828. It is true that Section 1 says, that proceedings before the Collectors and Deputy Collectors shall be discontinued, but there is no provision for cases pending before the Board of Revenue. I am therefore of opinion that the procedure laid down in Regulation II of 1819 was not abolished.
47. That being so, and it being provided in Section 6 that the Revenue authorities shall assess alluvial lands added to an estate 'according to the rules in force for assessing alluvial increments,' it was intended by the Legislature that the investigation into the question of liability should be conducted by the Revenue authorities under Regulation II of 1819 and on that investigation the Revenue authorities should be guided by the provisions of Regulation XI of 1825 in determining whether the subject-matter in dispute is land gained from the sea or from rivers by alluvion and dereliction. The survey maps are not to be deemed final upon the question. The words whenever on inspection of any such new map in Section 6 and the other sections of the Act indicate, in my opinion, the condition precedent to the institution of a proceeding under the Act, i.e., that no proceeding under the Act shall be instituted unless it appear on inspection of the new survey map that lands have been added to, or lost from, an estate, or that an island has been thrown up in a large and navigable river liable to be taken possession of by Government under Regulation XI of 1825. But the investigation shall be completed upon the whole evidence that may be adduced, and is not to be limited to the inspection of the new survey map only. In the case of an island, it would be impossible to form any opinion upon the inspection of the map only ; because it would not necessarily show whether a channel between it and a neighbouring estate is fordable or not.
48. Hitherto I have confined my attention to the language of Section 6 only in construing the word 'final' used in it. But Sections 5 and 7 afford material help in determining this question. It. has been conceded, in the course of the argument (and rightly conceded, I think), that the orders of the Board of Revenue under Section 5 cannot be questioned in a civil suit. A person may be aggrieved by the order of the Board of Revenue, but still he has no remedy by a civil suit. An owner of an estate may claim reduction of revenue to a larger amount than what he would be entitled to upon the inspection of the new survey map only, and the Board of Revenue may disallow such claim. It is admitted that the owner would not be permitted in that case to establish his right in a civil suit. In other words, the order of the Board of Revenue under Section 5 shall be final in all respects. If the word 'final' in Section 5 has this meaning, the same word used in the next following section should not have a more limited signification. The enquiry under either of these sections is of a similar nature. In the one case the amount of revenue to be added and In the other the amount of revenue to be deducted have to be determined. One of the points--and in fact the chief point--for inquiry is the real area of the estate regarding which the investigation takes place. The result of the decision in any particular case under Act IX of 1847, does not affect any title to land, but the amount of revenue payable to Government for the estate in respect of which the investigation takes place.
49. Then again Section 8 expressly says, that the order of the Board of Revenue in regard to the assessment shall be final. The absence of these words indicates, in my mind that the Lgislature intended to make the order of the Board of Revenue under Section 5 or 6 final upon both the points dealt with by such order.
50. I have already said that the decided cases bearing upon the point under consideration are all one way, and have taken the view that no civil suit will lis. The last case upon the subject--Sarat Sundari Debi v. Secretary of Stale for India 11 C. 784--makes, however, this reservation, that where the Revenue Authorities are shown to have exceeded their jurisdiction under Act IX of 1847, the Civil Courts can declare the order of the Board of Revenue to be ultra vires. I feel no hesitation in Assenting to that view. But in order to ascertain whether the jurisdiction has been rightly exercised or not, the Civil Courts have no power to question the finding of the Board of Revenue. If it appears, upon the face of the proceedings of the Revenue Authorities, that they have rightly exercised jurisdiction under Act IX of 1847, the Civil Courts have no power to question their final decision. It appears upon the face of the proceedings of the Revenue Authorities held in this case, that they had jurisdiction under Act IX of 1847, to assess the land in suit as an alluvial increment.
51. I would therefore return this answer to the second question, that it appearing upon the face of the proceedings that the Revenue Authorities had jurisdiction to assess the lands in suit under Act IX of 1847, a Civil Court has no power to make a decree declaring that the proceedings of the Revenue Authorities in respect thereof are ultra vires.