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Rai Kiron Chandra Boy Bahadur and ors. Vs. Sudhansu Sekhar Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal352
AppellantRai Kiron Chandra Boy Bahadur and ors.
RespondentSudhansu Sekhar Banerjee and ors.
Excerpt:
- .....an easy one and for that purpose the act in a general way provides that certain lands which are rent-free and small in area shall be deemed to be comprised within larger estates and that the owners of those larger estates shall make returns to the collector of those smaller rent-free lands lying generally, roughly speaking, within their boundaries. provision is made that the owners of those smaller rent-free estates shall be apprised of the valuation put upon their lands and they shall have an opportunity of appealing to the collector against that valuation and raising any objection that they may legitimately have. further the act provides that the cess shall be collectable from the owners of those larger estates and they, in turn, shall collect cess-not the same amount it is true-at.....
Judgment:

Derbyshire, C.J.

1. These are four appeals under Section 15, Letters Patent, from a decision of Edgley, J., wherein he reversed the judgments and set aside the decrees which had been granted in the first instance in the Court of the Second Munsiff of Jhenidah and on appeal in the Court of the Additional District Judge of Jessore. The claim is made under the Cess Act of 1880, which is an Act passed and designed to secure that certain public works shall be carried out, and to pay for them certain moneys shall be collected from the owners of immovable property in the area concerned. The general scheme of the Act is that the land in the area shall be valued and shall contribute the rate or cess in proportion to the value so ascertained. The process of valuation of the land and collection of the cess is not an easy one and for that purpose the Act in a general way provides that certain lands which are rent-free and small in area shall be deemed to be comprised within larger estates and that the owners of those larger estates shall make returns to the Collector of those smaller rent-free lands lying generally, roughly speaking, within their boundaries. Provision is made that the owners of those smaller rent-free estates shall be apprised of the valuation put upon their lands and they shall have an opportunity of appealing to the Collector against that valuation and raising any objection that they may legitimately have. Further the Act provides that the cess shall be collectable from the owners of those larger estates and they, in turn, shall collect cess-not the same amount it is true-at a specified rate from the owners of those smaller rent-free lands within their areas. One of the provisions of the Act is that the owners of the larger estates shall make a return of those smaller rent free lands in a particular form which is prescribed in Sch. A, Part 4, of the Act That form sets out the parganas in which the land is situate, the name of the village and the thana in which it is situate, the name of the holder and the owner, the name of the village, thana and district in which the owner resides, the area of the land if known and the annual value of the land in question. That return is to bo made to the Collector and, thereafter, the Collector is to prepare a valuation roll, publish it in a certain specified form, give notice to the owner of the land and give him an opportunity to object to the valuation before being required to pay his cess.

2. In this particular instance the appellants who are the owners of the larger estate have paid the cess that they are liable to pay under the Act. They have requested the defendant-respondent to pay to them the cess which he, the defendant, respondent, is liable for under the Act as the owner of the smaller rent free land. The defendant-respondent has refused to pay that cess and the appellants claim double the cess under Section 58 of the Act. The defendant-respondent's contention is that the Act has not been strictly complied with in that the form in Sch. A Part 4 was never rendered by the appellants to the Collector, that by reason thereof there is a fundamental defect in the procedure prescribed by the Act on the part of the appellants and that the appellants thereby are disentitled to recover cess from the defendant-respondent.

3. In order to see whether that contention is sound one has to examine the various sections of the Act. Section 14 prescribes that 'whenever the Board of Revenue has ordered that a valuation or a re-valuation of any district or part of a district be made for the purposes of this Act, the Collector shall cause a proclamation to be issued requiring every holder of an estate or tenure which is liable to pay an annual amount of revenue or an annual amount of rent exceeding Rs. 100 and every holder of a revenue free estate or rent free tenure, the gross annual rental of which exceeds Rs. 100 severally to lodge at the office of the Collector within one month a return of all lands comprised in his estate or tenure, in the form contained in Sch. A giving the particulars in such form. The second part of that section prescribes how the Collector shall cause that proclamation to be made.

4. Section 15 provides that the Board of Revenue may order a re-valuation of a district or part of a district. Section 16 provides that whenever any proclamation has been published as provided by Section 14 and whenever the Board of Revenue has made an order under Section 15 that a re-valuation of particular estates and tenures only shall be made, the Collector shall cause a notice to be served in respect of every estate and tenure which is to be valued or re-valued and in respect of which no return shall have been lodged in accordance with the requirement of such proclamation, requiring every holder of such estate or tenure severally to lodge at the office of the Collector the return mentioned in Section 14. Section 18 provides that all holders of estates or tenures in respect of which such notice has been served who shall without sufficient cause being shown to the satisfaction of the Collector, refuse or omit to lodge the required return in the office of such Collector within the time allowed shall be liable to a certain penalty which may extend to Rs. 50. Section 21 provides that if no return shall have been lodged in respect of any lands for which notice under Section 16 has been issued, the Collector may, after the expiration of the time allowed by the notice, or an extended time, ascertain and fix, by such ways and means as to him shall seem expedient, the annual value of any estate, tenure or lands mentioned in such notice. Section 34 provides that whenever any valuation or re-valuation is made under Part 2 of the Act, the Collector shall cause to be prepared from the returns furnished to him and from the valuation made by him in accordance with the Act a valuation roll of each estate within his district and of the tenure therein comprised, noting thereon for each estate the amount of revenue annually payable to Government on which the deduction specified in Section 41 is to be calculated. Section 35 prescribes that on the completion of every roll prescribed under this Part, the Collector shall cause a copy thereof to be posted up at the malcutchery of the estate to which such roll refers, and shall cause extracts of such portions of any such roll as refer to any tenure to be posted up at the malcutchery of such tenure. Then there are provisions as to what is to be done if there is no such malcutchery. Ch. 4 of the Act deals with the valuation and assessment of lands which are held rent free. Section 50 provides:

All lands held without payment of rent, other than lands mentioned in Section 33, and other than estate entered on the general register of revenue free lands of the district shall for the purposes of this Act, be deemed to form a part of any tenure within the local boundaries of which they are contained; and if they are not contained within the local boundaries of any tenure, then to form a part of any estate within the local boundaries of which they are contained; and if they are not contained within the local boundaries of any estate, then to form a part of the estate in which they were included at the original settlement of such estate.

5. Section 51 provides:

Every holder of an estate or tenure who is required by this Act to submit a return in the form in Sch. A contained shall be bound to enter in such return all lands of the nature of those specified in Section 50, according to the tenor thereof; and shall be bound to pay road cess and public works cess on the annual value of such lands at one-half of the rates fixed under this Act for the levy of such cesses respectively in the district generally for the year.

6. Section 52 provides:

Whenever any lands held rent free shall have been included in the return of any estate or tenure as provided in the last preceding section, the Collector shall on publication of the valuation roll of such estate or tenure as provided in Section 35, cause to be published a notice, in the form in Sch. D contained to which notice shall be annexed such extracts from the valuation roll of such estate or tenure as relate to such lands.

7. Then there are provisions as to how such publication shall be made. Section 52-A provides:

Whenever any notice has been duly published under Section 52, the Collector shall sign a certificate to that effect, and such certificate shall be conclusive proof that the publication has been duly made.

8. Section 53 provides:

Within a reasonable time, not exceeding 30 days after the issue of any process for the recovery of any sum due from him as cess under this chapter, the owner, holder or occupier of any such land may make before the Collector an objection to the valuation of his land as entered in the valuation roll so published, and on such objection being made the Collector shall by such ways and means as to him shall seem expedient, ascertain and fix the annual value of the land in the possession of such owner, holder or occupier and may alter such roll accordingly, and shall give notice of any such alteration to the holder of the estate or tenure to which such roll relates.

9. Section 54 provides for a notice to be published by the holders of the estates whenever a new valuation is made in the district or whenever the rate fixed for the levy of the road cess or of the public works cess is changed or whenever the date fixed by the Board of Revenue for payment of the cesses is changed. Section 56 enacts:

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.

10. Section 58 provides that if instalments are not paid within the month double the amount may be recovered. In this case the owners of the larger estate did not render a return in the form in Sch. A, Part 4. By agreement with the Collector it was arranged that in lieu thereof extracts of the Record of Eights relating to rent free lands lying within the estate of the zamindars should be accepted by the Collector. Thereafter the Collector proceeded to do his duty as laid down by the Act on the basis of the information which he had received from the zemindars who got it from the Record of Rights. Was he wrong in so doing? Was the Collector not acting according to law in so doing? In my opinion, Sections 14,15 and 16 provide for preliminary steps being taken to make up the valuation roll mentioned in Sections 34 and 35 thereafter to be used with the necessary alterations in the procedure set out in Ch. 4. I am of opinion that Sections 18 and 21 make it clear that the Collector can dispense with the return which is prescribed under Sch. A, Part 4. If sufficient cause for so doing is shown to his satisfaction he may then make the valuation under Section 21 which would enable him with the Record of Rights to ascertain the information which the Act says shall be provided in Sch. A, Part 4 by the zemindars.

11. In this case, in my opinion, there was nothing wrong in the Collector proceeding as in fact he did proceed. One may assume that sufficient cause under Section 18 was shown to his satisfaction for taking the steps that he did. Thereafter under Sections 34 and 35 he proceeded to make up the valuation roll. He was thus in possession of the information which would come to him in the ordinary way under Sections 50 and 51 of the Act. He then had and presumably did publish the extracts of the valuation roll in respect of the rent free lands which were comprised with the larger estate. We must assume that, because the judgments of the two earlier Courts could only have proceeded on that basis. Having done that it was open to the defendant-respondent as the holder of the rent free land comprised within the larger estate, if he thought fit, to object under Section 53 to the valuation of his land, and if there was any valid objection and he established it to the satisfaction of the Collector as prescribed by Section 53 the annual value of his land would consequently be assessed. He could have no cause for complaint either against the Collector or against the zemindars, in this case, the appellants and the pro forma respondents. When that stage is reached, by Section 51, the zemindars, the appellants, were bound to pay the road cess and the public works cess to the amount prescribed, that is to say, on the annual value of the rent free lands in question at half the rate fixed under the Act and thereafter the defendant-respondent, the owner of the rent free lands, was bound to pay cess at the full rate to the zemindars, that is to say, the appellants, under Section 56. He failed to do so within the period prescribed by Section 58 and the result is that by virtue of the same section he became liable to pay a sum equal to double the amount of cess with interest thereon at 12 per cent. per annum from the date the cess was payable.

12. In those circumstances I am of opinion that these appeals must succeed and that the decrees of the first two lower Courts must be restored with costs (two sets) in this Court and before Edgley, J. payable by the defendant, respondent.

D.N. Mitter, J.

13. I agree.


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