1. These two appeals arise out of proceedings taken by the Revenue Authorities under Act IX of 1847 for the assessment to revenue of lands which, at the time of the Thak and Revenue surveys, of 1859 and 1860, formed portion of the beds of certain rivers.
2. By decisions, dated the 14th November 1914, the 2nd January 1915, and the 11th March 1915, the Board of Revenue found that the lands were liable to assessment under the Act and disallowed the objections of the proprietors. The proprietors, who are the executors of the estate of the late Babu Kally Kishen Tagore, then brought two suits to contest these decisions, Suit No. 537 of 1915 and Snit No. 195 of 1916. Both suits were dismiss-by the Subordinate Judge and the proprietors have appealed to this Court. Appeal No. 143 relates to Suit No. 195 and Appeal No. 144 to Suit No. 537. In both appeals the Secretary of State is the respondent and it will be convenient to deal with them by one and the same judgment.
3. The lands have been assessed to revenue on the footing that they are accretions by fluvial action to villages included within estates belonging to the appellants which were permanently settled in 1793. The villages concerned are:
1. Syed Jafar | abutting on the River
2. Arazbegee | Arazbegee.
3. Aoliapur |
4. Kalaiya abutting on the River Kilaiya
5. Ghar Bukhainagar |Abutting on the
| River Bukhai-
6. Char Khanan | nagar.
4. As regards the accretions to villages 1, 2 and 3 in the list, the first plea taken on the Secretary of State's behalf was that the appellant's suit No. 537 of 1915, so far as it related to these accretions, was barred by limitation under Section 24 of Regulation II of 1819. Aoliapur is not expressly mentioned in the copy of the Board's decision of 14th November 1914, which has been printed, but both in the Court below and before us that decision was treated as covering all the accreted lands abutting on the River Arazbegee (see also the plaint in suit No. 537).
5. Section 24 of Regulation II lays down that 'persons whose lands may be assessed...shall...be entitled to sue any time within one year from the date of their being informed of the Board's decision; but after the above period shall have elapsed the decision of the Board shall be final and conclusive.'
6. A proviso is added, but it is not suggested, that the present case comes within it.
7. The decision of the 14th November 1914 was communicated to the appellants on the 6th December 1914. Suit No. 537 was instituted more than a year after on the 13th December 1915. If, therefore, the section applies, the Subordinate Judge is right in upholding the plea of limitation in regard to the accretions to these three villages. Section 15(2) of the Limitation Act of 1908 has no application to a period of limitation provided by a special or local law Kalimuddin Mollah v. Sahibuddin Mollah 54 Ind. Cas. 705 : 47 C. 300 : 30 C.L.J. 456 : 24 C.W.N. 4.
8. The question arises whether the rules contained in Section 10 of Regulation III of 1828 and Section 24 of Regulation II of 1819 govern a suit to contest an order of the Board of Revenue under Section 6 of Act IX of 1847 confirming an assessment under the Act and to obtain incidental relief such as recovery of possession of lands of which possession has been taken under Section 10 of the 1828 Regulation. The question was touched upon but not decided in R.A. No. 302 of 1918 (decided on the 12th April 1920). See Ante, p. 896--Ed.
9. The effect of Act IX of 1847 on the Regulations was considered by a Full Bench of this Court and then by the Privy Council in Fahamidannissa Begum v. Secretary of State 14 C. 67 (F.B.) : 7 Ind. Dec. (N.S.) 46, on appeal to Privy Council 17 I.A. 40 : 17 C. 590 at pp. 597, 699 : 5 Sar. P.C.J. 391 : 8 Ind. Dec. (N.S.) 933 (P.C.). The discussion turned on the true meaning of Sections 1 and 6 of Act IX, particularly the concluding words of Section 6 which enact that the orders of the Board of Revenue shall be 'final'. It is only necessary to premise that it had previously been decided by another Full Bench that Act IX. was only a procedure Act, which left the substantive rights of the Government and the proprietors of land to be governed by the Regulations. Budroonissa v. Prosunno Coomar Bose 6 B.L.R. 255, (F.B.) : 14 W.R. 25 (F.B.).
10. The judgment of the majority of the Fall Bench in Fahamidannissa's case 14 C. 67 (F.B.) : 7 Ind. Dec. (N.S.) 46, on appeal to Privy Council 17 I.A. 40 : 17 C. 590 at pp. 597, 699 : 5 Sar. P.C.J. 391 : 8 Ind. Dec. (N.S.) 933 (P.C.) was delivered by Wilson, J. As I understand, the majority of the learned Judges held that Section 1 of Act IX abrogated all rules of procedure or all mere rules of procedure contained in Regulations II of 1819, IX of 1825 and III of 1828 'for investigations regarding the liability to assessment of lands gained from the sea or rivers by allusion, or dereliction, or regarding the right of Government to the ownership thereof.' The investigations referred to were investigations by the Revenue Authorities directed to the purpose indicated. the Act did not touch the Regulations mentioned, or such a Regulation as VII of 1822, so far as they prescribed rules for assessment when once the liability to assessment or the right of Government to the ownership had been determined in the affirmative.
11. The majority further held that, in plane of the procedure provided by the Regulations for determining such liability and such right, Act IX substituted a new and simpler procedure founded on a comparison of survey maps from time to time.
12. According to the majority, again, under the new procedure, the Revenue Authorities no longer exercised the judicial functions or powers vested in them by the Regulations.
13. Lastly, as to the finality attributed to the Board's order by Section 6 of Act IX, the majority held, in effect, that the Board's orders were final for the purpose of the jurisdiction conferred which extended only to the assessment of lands liable to assessment, and that the Board's order in any case might be contested in the Civil Courts on the ground that the land was not liable to be assessed.
14. Mitter, J, dissented from the opinion of the majority. That learned Judge held that the only tribunals' abolished by Section 1 of Act IX were the special tribunals created by Regulation III of 1828, that the judicial functions of the Revenue Authorities were left intact, that the jurisdiction conferred by Act IX embraced not only the question of the rate of assessment but also the question of the liability to assessment, and that, under Section 6 of Act IX, the orders of the Board of Revenue on both these questions were final and conclusive and not open to attack in the Civil Courts. An order of the Board might be attacked as ultra vires but only if it was outside the jurisdiction of the Board so understood.
15. As to the facts; lands included within the limits of an estate permanently settled in 1793 had been washed away by fluvial action and had afterwards reformed in situ. During the period of submersion, the revenue of the whole estate had been paid! without abatement. An order of the Board had confirmed an additional assessment imposed on, the lands by the local officers. The suit was brought to contest the order. All the learned Judges, including Mitter, J., were of opinion that the lands were not liable to assessment under the Regulations, and that Act IX had made no change in that respect. The result depended entirely on the effect of the Board's order.
16. According to the opinion of the majority of the Full Bench the suit succeeded and an appeal to England was taken by the Secretary of State. The Privy Council had no difficulty in accepting the view that Act IX dealt only with machinery Pahamidannissa Begum v. Secretary of State 14 C. 67 (F.B.) : 7 Ind. Dec. (N.S.) 46 on appeal to Privy Council 17 I.A. 40 : 17 C. 590 at pp. 597, 699 : 5 Sar. P.C.J. 391 : 8 Ind. Dec. (N.S.) 933 (P.C.). Their Lordships went on to review the Regulations and Act IX and on the question of the liability of the lands to assessment arrived at the same conclusion as the High Court had done (pages 47-52 Pages of 17 I.A.--Ed.;. Their Lordships then turned to Section 6 of Act IX and expressed themselves in no uncertain terms in general agreement with the opinion of the majority of the Judges. They said:
The provisions of Section 31 of the Regulation of 1819 are in no way repealed or affected by the Act of 1847. The action of the Revenue Authorities was, therefore, in their Lordships' opinion, wholly illegal and invalid.
17. They further said that the Act did not deprive the owner of a permanently settled estate of that right of appeal which is given to him in order that he may have determined in a Civil Court the 'justness of the demand' of the Revenue Authorities.'
18. As to the practice which has grown up under Act IX when a survey is made under the Act, the map is compared with the map of the preceding survey and, in accordance with Jagadindra Nath Roy v. Secretary of State 30 I.A. 44 at p. 53 : 7 C.W.N. 193 : 30 C. 291 : 5 Bom. L.R. 1 : 8 Sar. P.C.J. 412, the comparison is taken as the starting point for deciding whether any lands are subject to additional assessment. If action is contemplated in any particular case the local Revenue Officers are not precluded from making and do make further careful inquiries before the land is actually assessed. Up to the assessment the proceedings appear to be of an executive or administrative rather than of a judicial character, When the assessment is made, the proceedings are reported to the Board under Section 6 of the Act. If the party interested lodges an objection to the assessment, the Board gives him an opportunity of being heard, if he so please, by Counsel or Pleader. At that stage, therefore, the proceedings, beaten judicial or quasi-judicial in their character. The order of the Board, though issued in the form of a Resolution--the form employed by the Executive Authorities in important matters--is in substance the judicial order of the highest Revenue Court in the Province. There is no question, now, that the party interested, if dissatisfied with the Board's order, may contest it by suit in the Civil Courts. The question if, as I have said, whether Section 10 of Regulation III of 1828 and Section 24 of Regulation II of 1819 apply to such a suit. In my opinion that question should be answered in the affirmative.
19. Dealing with Section 6 of Act IX, the Privy Council in Pahamidannissa's case 14 C. 67 (F.B.) : 7 Ind. Dec. (N.S.) 46, on appeal to Privy Council 17 I.A. 40 : 17 C. 590 at pp. 597, 699 : 5 Sar. P.C.J. 391 : 8 Ind. Dec. (N.S.) 933 (P.C.) speak of a suit to contest the Board's order as an appeal to the Civil Courts, thus adopting the language of Section 10 of the Regulation of 1828 which their Lordships had quoted in the earlier part of their judgment. If that section be applicable, it would follow from its terms that Section 24 of the Regulation of 1819 is also applicable.
20. It is suggested that the suits contemplated by Section 31 of Regulation II of 1819 should be distinguished from suits under Section 24, I can find no ground for such distinction and the language of the Privy Council is opposed to it. A suit under Section 24 followed the decision of the Board under Section 21 declaring the liability of the land to assessment and if it was not brought within the time limited the decision of the Board was to be 'final and conclusive.' The words of Section 31 referring to the jurisdiction of 'the Courts of Judicature to decide on all contested cases' are words of recital only. They do not give a right of suit in addition to the right of suit given by Section 24. Section 10 of Regulation III of 1828 is applicable at the same stage of the proceedings as Section 24 of the Regulation of 185 9. It lays down that, as soon as the Bcaro has declared the land liable to assessment, the derision is to be carried into immediate execution, that's, subject of course to the result of any suit instituted under Section 24. It also prescribes rules for such suits with the object of our tailing, rather than of lengthening, the proceedings. The result was that, unless a suit of the nature indicated by clause third of Section 10 of the later Regulation was brought within the time limited by Section 24 of the earlier Regulation, the decision of the Board declaring the land liable to assessment became final and conclusive for all purposes.
21. The place of such a decision is now taken by an order of the Board under Section 6 of Act IX. The only difference is that, under Act IX, the land is assessed before the case comes to the Board under that section. But the actual assessment is not a matter with which the Civil Courts have ever had any concern. Their concern is with the question of the liability to assessment. An order under Section 6 corresponds with a decision of the Board under Regulation II declaring liability to assessment. At that stage, Act IX is silent and the Regulations again speak. The statutory remedy is to be found in the Regulations and a proprietor who desires to have recourse to the Courts is bound by the prescribed conditions.
22. It follows that such suits as the present are governed as to limitation by Section 24 of Regulation II of 1819 and that, under Section 10 of Regulation III of 1828, they should be 'heard and determined' by the trial Courts 'in the same manner as regular appeals.' The fourth Clause of the latter section saves the appeals to the High Court admissible under Section 26 of Regulation II of 1819 as modified by Section 6 of Regulation XIV of 1825.
23. A comparatively short period of limitation in these oases is no particular hardship. Presumably, all materials bearing on the subject have been collected during the course of the revenue proceedings and have been brought to the attention of the Board. Under the Limitation Act, the period of limitation would probably be one year under Article 14.
24. The result is that as, regards the lands in the three villages on the River Arazbegee. I agree with the learned Subordinate Judge that the plaintiff's claim is barred by limitation.
25. As to the lands on the other two rivers, the suits are in time and the position is this. It has been assayed on both sides that there was no material change in the channels of these rivers between 1793 and 1859. Portions of the beds adjoining the villages named have now silted up. The Board has found that the rivers were and are still navigable. On the materials before as, such as Major Rennell's map of 1765 or thereabouts, the Thak and Revenue survey maps of 1859-1860 and the maps of the recent diara survey on which the proceedings under Act IX were founded. I can see no reason to doubt the correctness, of the Board's findings. Fritna fazie, therefore, the presumption is that in 1793 the beds of the river were public domain and were not included within the estates then permanently settled. To rebut the presumption, the plaintiffs rely on the Thak and Survey maps of 1851-1861 according to which the whole width of the rivers was included in the plaintiff's estate. But the plaintiffs offer no other evidence, and the Thak and Survey maps are not in themselves sufficient to justify us in saying that the Board's orders are wrong and ought to be reversed. Jagadindra Nath Roy v. Secretary of State 30 I.A. 44 at p. 53 : 7 C.W.N. 193 : 30 C. 291 : 5 Bom. L.R. 1 : 8 Sar. P.C.J. 412. The area of the villages as entered in the Thak and Survey maps, is of little assistance without some indication of their area in 1793.
26. I may add that the question whether a river or water course is navigable or not does not depend on its name. It is immaterial whether a particular map describes it as a 'river' or a 'nadi' or a 'khal' or a 'dune.' The word 'khal' or the word 'done' may denominate a water way of great importance to river boats and river steamers.
27. It was said that in previous oases relating to similar lands, the Government had not pressed their claims and had either dropped the proceedings or not appealed from an adverse decision in the trial Court. That may be so. The Government may not have been at the time as confident of their rights as they are now, or they may have had some other reason for acting as they did. Nothing occurred which affects the claim of the Government to additional revenue for the lands now in question.
28. In my opinion these appeals should be dismissed with costs.
29. I agree.