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Province of Bengal Vs. Commissioner for the Port of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 319 of 1943
Judge
Reported inAIR1951Cal271,55CWN350
ActsBengal Land Revenue Settlement Regulation, 1822 - Section 29; ;Bengal Alluvion and Diluvion Act, 1847 - Section 6; ;Bengal Land Revenue Assessment (Resumed Lands) Regulation, 1819 - Section 3(2); ;Bengal Alluvial Land Settlement Act, 1858 - Section 1; ;Calcutta Port Improvement Act, 1870 - Sections 6, 11 and 32; ;Calcutta Port Improvement (Amendment) Act, 1890 - Sections 38 and 39
AppellantProvince of Bengal
RespondentCommissioner for the Port of Calcutta and ors.
Appellant AdvocateChandra Sekhar Sen, ;Jajneswar Majumdar and ;Sudhir Kumar Acharjya, Advs.
Respondent AdvocateS.K. Gupta and ;Apurba Charan Mookerjee, Advs. for Nos. 1 and 8, ;Suresh Chandra Bose, Adv. for No. 8 and ;Binayak Nath Banerjee, Adv. for No. 7
DispositionAppeal dismissed
Cases ReferredSecretary of State v. Midnapur Zamindary Co.
Excerpt:
- g.n. das, j.1. this is an appeal by the defendant 1, province of bengal, against the judgment and decree dated 31-3-1943, passed by mr. s. c. dutta, learned subordinate judge, 1st court howrah.2. the plaintiffs are the commissioners for the port of calcutta, a body corporate, constituted under bengal act v [5] of 1870 hereinafter to be called the port commissioners.3. the case of the plaintiffs is that by a government notification dated 9-10-1880 the telkalghat landing stage and bathing ghat on the shores of the river hooghly were declared a public landing stage and a public bathing ghat under the calcutta port improvement act v [5] of 1870, hereinafter to be called the port act, 1870; that by an agreement dated 17-12-1884 and entered into with the sanction of the government, between.....
Judgment:

G.N. Das, J.

1. This is an appeal by the defendant 1, Province of Bengal, against the judgment and decree dated 31-3-1943, passed by Mr. S. C. Dutta, learned Subordinate Judge, 1st Court Howrah.

2. The plaintiffs are the Commissioners for the Port of Calcutta, a body corporate, constituted under Bengal Act V [5] of 1870 hereinafter to be called the Port Commissioners.

3. The case of the plaintiffs is that by a Government notification dated 9-10-1880 the Telkalghat landing stage and bathing ghat on the shores of the river Hooghly were declared a public landing stage and a public bathing ghat under the Calcutta Port Improvement Act V [5] of 1870, hereinafter to be called the Port Act, 1870; that by an agreement dated 17-12-1884 and entered into with the sanction of the Government, between Messrs. Burn and Co. Ltd., who are permanent lessees from the proprietors of the mainland estate, and the plaintiffs, the latter got 150' of the river frontage for improvement of the said landing stage; that for the said purpose the plaintiffs threw out a spur into the river to the north of the southern spur nearby and parallel to it and filled up the intervening space, which served as a commodious and convenient public landing stage and approach to the public bathing ghat and a public ferry station booking office and other structures, approaches and conveniences were put up thereon, that the said works were duly and properly carried out with the previous sanction of the Government under the Port Act, 1870, and the Calcutta Port Act, in [3] of 1890, hereinafter called the Port Act, 1890, at a considerable cost and later maintained by the Port Commissioners at heavy cost; that the plaintiffs have all along been in undisturbed possession free of all claims or demands by the Government or the proprietors of the mainland estate, who are said to be defendants 2 to 7; that the said land is shewn in the plan annexed to the plaint and marked 'A' and is delineated as dags 41, 42, 43, 50, 51 of Diara maps of proposed touzi No. 1108, Howrah, which formed the subject matter of resumption case No. 3/15 of 1933-1936. The plaintiffs' further case is that in 1930 assessment proceedings were commenced under the Bengal Tenancy Act which has no application to the land; that by a letter dated 10-1-1933 the Assistant Settlement Officer informed the plaintiffs that they have been recorded under the defendants 2-7 as occupiers but if they could prove that the land had been reclaimed by them at their cost, they would be recorded directly under the Government and settlement would be made with them; that in spite of evidence adduced to that effect the Assistant Settlement Officer by his order dated 7-8-1933, declared that the land was an accretion to the mainland touzi No. 839, Howrah, and recorded the plaintiffs as occupiers under the defendants 2-7 or their predecessors-in title; that in spite of plaintiffs' objections, the land was included in the assets of the said proprietors and valued at Rs. 1440 per bigha; that the plaintiff successively filed objections before the Assistant Settlement Officer, the Director of Land Records and the Board of Revenue. The latter finally disallowed the same without a hearing by an order dated 22-10-1937 except that the rate of assessment was reduced to Rs. 960 per bigha. The plaintiffs were informed of the said order dated 25-11-1937. In para (4) of the plaint, the plaintiffs allege that the land was wrongly recorded as an accretion; because the plaintiffs proved that they tilled up the land, as required by the Assistant Settlement Officer, and because there was no relationship of landlord and tenant between the plaintiffs and the proprietor at any time; and because the title, if any, of the proprietor had been extinguished by adverse possession of the plaintiffs.

4. In para (5) of the plaint, the plaintiffs allege that the land should be excluded from assessment because the plaintiffs are holding and administering the land as delegatees representatives, agents and/or trustees of the Crown or as a department of Government, because the land is generally dedicated for the use of the public and the income is derived under the Ports Act for the benefit of the public and for purposes of the Act and not for any private profit, and because the land is not an alluvial accretion but owed its origin to engineering operations undertaken by the plaintiffs under the Ports Act and at their own expense, and because the formation was made with the knowledge and sanction of Government and in spite of several surveys and comparative maps the Government refrained from settlement operations and waived and abandoned its right; because the Government sanctioned the scheme and approved the initial and recurring expenditure without informing the plaintiffs about the liability to assessment.

5. In para. (6) of the plaint, the plaintiffs allege that the land was wrongly included for purpose of valuation of the assets and because there was no agreement between the proprietors and Messrs. Burn & Co. Ltd., for increase of rent in case of accretion, because a presumption of rent-free title arose in favour of the plain-tiffs from long possession without any demand or payment of rent and because the land is spur land.

6. The plaintiffs' case further is that the assessment is illegal, ultra vires and opposed to principles of justice, equity and good conscience, that the acts and proceedings of the revenue authorities are ab initio defective, erroneous and the plaintiffs have been prejudiced thereby; that the annual assessment was excessive, that notice under Section 80, Civil P. C. was duly served on 19-11-1938. On the aforesaid allegations, the plaintiffs claim (a) a declaration that the said laud, in the pleadings mentioned, is not an accretion to and/or does not form part of the said estate No. 839 of the Howrah District or any estate at all, (b) a declaration that the plaintiffs are not occupiers or tenants of the said land under the proprietors of the said estate and that they have been wrongly recorded as such, (c) a declaration that the plaintiffs are entitled to hold and continue to hold the said land in their own right independently of and adversely to the proprietors of the said estate as before, (d) a declaration that the said land is not liable to be assessed or included for the purpose of valuation of any assets and that the plaintiffs are entitled to hold and continue to hold the same free of all claims or demands of rent or revenue and without any interference from the defendants, as before, (e) a declaration that the acts and proceedings of the revenue authorities relating to assessment, in so far as they affected the said land, were ab initio defective, erroneous, materially irregular and imperfect and that the same are not binding on the plaintiffs, (f) a declaration that the assessment, in so far as it affected the said land, is illegal, ultra vires and without jurisdiction and ft opposed to justice, equity and good conscience and that the same is not binding on the plaintiffs, (g) a declaration that the amount of assessment, in so far as it affected the said land, is unfair, excessive and oppressive and that the same was fixed arbitrarily and capriciously and the same is not binding on the plaintiffs, (h) an injunction restraining defendants 2 to 7, their servants, agents from making any demands on the plaintiffs, their servants, agents for rent in respect of the said land or compelling them to enter into any engagements pursuant to such demands or other, wise enforcing the same or in any way interfering or attempting to interfere with the plaintiffs' possession of the said land, (i) such further or other reliefs as to the Court may seem fit, (j) costs of and incidental to the suit and the assessment proceedings.

7. The suit was filed on 18-1-1939.

8. Defendant 5 filed a written statement but could not appear at the time of hearing.

9. Defendants 4 and 7 filed a separate written statement; their defences are similar and they support the regularity and correctness of the assessment proceedings.

10. The written statement of defendant I, province of Bengal, the main contesting defendant, is as follows : (1) The plaintiffs being subordinate holders under the mainland estate, have no locus standi to bring the suit. (2) The plaintiffs or their predecessors were never in possession of the lands within mouza Howrah up to the bank of the river Hooghly, their rights were limited towards the east, to the foreshore of the river as it existed at the time of the permanent settlement, that the river never encroached towards the west. (3) The agreement of 1881 was not binding on the Government and the sanction of the Government was given foe different purpose. (4) The land was not artificially filled up. In 1837 churs were thrown up by alluvion and the lands so formed were resumed and assessed to revenue as newly formed touzi estate no. 839, this is shewn in Wilson's line and Daimi survey line of 1846, that the land in suit is an accretion to this Daimi estate No. 839 and is liable to resumption and assessment of revenue under Act IX [9] of 1847; that the resumption proceedings of 1933 were started and carried on in accordance with law, the record of rights and the assessment of revenue is valid and binding on the plaintiffs.

11. On the aforesaid pleadings the following issues were framed by the learned Subordinate Judge :

1. Is the suit bad for defective parties?

2. Is the suit barred by limitation, either general or special?

3. Is the suit under-valued?

4. Is the suit bad for multifariousness and misjoinder of parties and of cause of action?

5. Have the lands in suit been wrongly treated as 'added land' for purpose of assessing the game as lands never assessed with revenue?

6. Is the assessment illegal, ultra vires and without jurisdiction and opposed to the principles of justice, equity and good conscience?

7. Is the claim of Government to assess the said land to revenue barred by the principles of waiver and abandonment?

8. Was the comparative map prepared by Government in accordance with law? Is it accurate?

9. Is the map annexed to the plaint correct?

10 What relief, if any, are the plaintiffs entitled to?

11. Was there any agreement between plaintiff and Messrs. Burn and Co., as alleged in the plaint? Was the said agreement made with the sanction and privity of Government? Were Messrs Burn & Co. legally competent to make such agreement without the sanction of the proprietors? To whit extent is the suit land covered by the said agreement?

12. Is the suit land 'spur land'?

13. Is the suit land an alluvial accretion within the meaning of Act IX [9] of 1847?

14. Was the title of proprietors, if any, to the suit land extinguished by adverse possession thereof by the plaintiffs?

15. Was there any relationship of landlord and tenant between the mainland proprietors (Defendants 2 to 7) and the plaintiffs at any time?

16. Were the acts and procedure of the Revenue Authorities ab initio defective, erroneous, irregular and imperfect?

17. Have the lands in suit been wrongly treated as an accretion to the touzi Estate No. 839? If so, have the plaintiffs been wrongly recorded as occupiers under the proprietors of the said estate?

12. The learned Subordinate Judge reached the following findings on the said issues.

13. Issues (1), (2). All the persons interested in this litigation are on records and the suit is not bad for defective parties. The cause of action arose on 25-11-1937 and is a continuous one. The suit is well within time.

14. Issue (3). The suit is not under valued.

15. Issue (4). The suit is not bad for multi-fariousuess or misjoinder of parties and causes of action. The plaintiffs have locus standi to bring the suit. The plaintiffs have cause of action and right to sue.

16. Issues (5), (16), (17)--These issues were answered in the affirmative i. e., the lands in suit were wrongly treated as 'added lands' for the purpose of assessing the same as lands never assessed with revenue. The acts and procedure of the Revenue Authorities are ab initio defective, erroneous, irregular and imperfect. The lands in suit were wrongly treated as an accretion to touzi No. 839. The plaintiffs have been wrongly recorded as occupiers under the proprietors of the said estate.

17. Issue No. (7). The Government is estopped from asserting that the agreement land should come under the assessment. Its claim to assess this portion of the disputed land is barred by the principle of estoppel, waiver and abandonment. The other portion of the disputed lands being under the permanent settled estate, must be deemed to have been assessed at the time of the permanent settlement.

18. Issue No. (8). There was a new survey of the banks of the river in connection with the resumption cases and new and comparative maps were made accordingly. The comparative map could not however be the basis of the assessment.

19. Issue No. (9)--No argument was advanced on this issue. As a pleader commissioner was appointed and a map prepared, the issue has no importance.

20. Issues (6), (11), (12), (18)-- The area referred to in the agreement dated 17-12-1884 is what has been shewn by the pleader commissioner in the case map No. 1 and the resumption authorities included the entire agreement area within the resumption proceedings complained of. There was an agreement between the plaintiffs and Burn & Co. as alleged with the sanction and privity of the Government and it is binding against the zemindars, Messrs Bum & Co., were legally competent to make the agreement without any sanction of the proprietors, that the land in suit is wholly covered by the agreement and is spur land and not an alluvial accretion within the meaning of Act IX [9] of 1847 and that the assessment made by the Revenue Authorities on the disputed lands is illegal, ultra vires, without jurisdiction, and opposed to the principles of justice, equity and good conscience.

21. Issues (14), (15)--The title of the proprietors, if any, to the suit land had been extinguished by the adverse possession thereof by the plaintiffs. There was no relationship of landlord and tenant between the mainland proprietors i. e., defendants 2 to 7 and the plaintiffs at any time.

22. Issue (10)--The suit was decreed on contest against defendants 1 and 7 and ex parte against defendants 2, 3, 5 and 6 with costs. The following declaration was made: Be it declared that the suit land is not an accretion to and does not form part of the Touzi estate No. 839 of the Howrah District or any Touzi estate, that the plaintiffs are not occupiers or tenants of the said land under the proprietors of the said estate and that they have been wrongly recorded as such; that the plaintiffs are entitled to hold the said land in their own right, independent of and adversely to the proprietors of the said estate, that the said land is not liable to be assessed for the purpose of valuation of any assets and the plaintiffs are entitled to hold the same free of any claim of rent or revenue, that the proceedings of the Revenue Authorities relating to assessment of the land were ab initio defective and that the assessment relating thereto is illegal, ultra vires, without jurisdiction and not binding on the plaintiffs. Defendants 2, 3 and 5 to 7 are restrained from demanding any rent or compelling the plaintiffs to enter into any engagement with them or interfering in anyway with plaintiffs' possession of the said land.

23. Part I of the Paper book has been marked as Book A. Part II Vol. 1 as Book B. Part II vol. II as Book C.

24. Defendant 1, Province of Bengal, has preferred this appeal.

25. The decision in Title Suit No. 1 of 1929 which was heard along with the present suit i. e. Title Suit No. 4 of 1939, was appealed from, giving rise to p. A. 318 of 1943. The appeal was however compromised and we are no longer concerned with the decision in that suit.

26. The learned Senior Government Pleader appearing on behalf of the appellant raised the following points: (1) Whether the land in suit is an accretion within Act IX [9] of 1847. (2) If so, have the assessing authorities taken the necessary steps as provided for in Regulation II [2] of 1819, Act IX [9] of 1847 and Act XXXI [31] of 1858? (3) Whether the Government has the power to assess the land in the hands of the plaintiffs? (4) Have the plaintiffs locus standi to maintain the suit? Have they any cause of action ?

27. I shall first take up point No. (1).

28. Before I deal with the meaning of the word accretion as used in Act, IX [9] of 1847, I have to determine a question of fact viz., whether the land in suit was formed by fluvial action or by artificial means. The appellant contended for the former view, respondent l for the latter. (His Lordship referred to the evidence and proceeded.)

29-36. I therefore, agree with the finding of the trial Court that the disputed land was reclaimed by the plaintiffs and was the result of engineering and other operations by the plaintiffs and are artificial accretions and are not natural accretions due to action of the river. Title to such formation goes with the ownership of the bed. In Hari Kishore Dutt v. Collector of Dacca, 3 Beng. L. R. App. 116 title to Nadi Bharati lands was held to be in the owner of the bed of the river.

37. At this stage, I propose to give a resume of the legislation dealing with the power of the Government in the matter of assessment of land to revenue.

38. As Baden-Powell observes in his treatise on Land Revenue in British India, Edn. 2, p. 49, a discussion of the oriental conception of land revenue, viz., whether it is a land-tax or rent or what, is profitless. One may content oneself by speaking of land revenue as a thing per se. It operates as a tax on agricultural income a contribution to the State out of the profits of land.

38a. Basing on the above notion, the preamble of Regulation XIX [19] of 1873 recited that by the ancient law of the country the ruling power is entitled to a certain proportion of the produce of every bigha of land unless it transfers its right thereto for a term or in perpetuity or limits the public demand upon the whole of the lands belonging to an individual.

39. In order to obviate all misapprehension Section 3 of Regulation II [2] of 1819 was enacted.

40. The first clause declared that all lands, which at the period of the decennial settlement were not included within the limits of any pergana, mouza, or other division of estates for which a settlement was concluded with the owners, not being lands for which a distinct settlement may have been made since the period referred to, nor being lands held free of assessment under a valid and legal title to the nature specified in Regulations XIX [19] and XXXVII [37] of 1793 and in the corresponding Regulations subsequently enacted are and shall be considered liable to assessment in the same manner as other unsettled mahals.

41. The second clause provided that the above principles would apply 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 an intercession of the sea, an alteration in the course of rivers, or the gradual accession of soil on their banks.'

42. The third clause provided for the applicability of the above rules to lands included within taluks held under special pottahs from Collector which were not permanently settled.

43. The provisions of the Regulations quoted above shew that all lands or churs or islands mentioned in Section 3 quoted above were assessable to revenue. Clause (1) of Section 3 exempted from assessment lands included within the decennial settlement or assessed to revenue since the decennial settlement or valid lakhiraj lands. All other lands or churs or islands referred to in Clause (2) are assessable.

44. The ambit of the assessment under the decennial settlement is set forth in Regulation VIII [8] of 1793. The decennial settlement was made permanent. Article 7 of the Permanent Settlement Regulation expressly reserved the right of the Governor-General in Council to all sayer collections or any other internal duties, to assess all lands which may be proved to be held under illegal or invalid titles and paying no revenue and to resume all thanadari lands.

45. Section 31 of Regulation II [2] of 1819 saved the rights of the holders of permanently settled estate to the full benefit of all waste lands within the boundaries of such estates at the time of the decennial settlement.

46. The limits of the permanently settled estates were not surveyed or ascertained at the time of the decennial settlement. The sanads granted merely mentioned a string of names of villages or perganas. Survey of the boundaries and limits of the estates was made much later.

47. In the case of Secy. of State v. Maharaja of Burdwan, 48 I. A. 565 : (A. I. R. (9) 1922 P. C. 6), the question whether churs formed after the decennial settlement in a river bed which at the date of the settlement was the property of the zemindar, were assessable or not was answered in the affirmative.

48. Their Lordships of the Privy Council held that

'while lands included in a permanent settlement were carefully excluded from further assessment, this protection was extended only to lands actually in existence at the time of the settlement and specifically included in the estate as settled,' pp. 575-576.

Their Lordships added that

'churs formed after the decennial settlement are to be treated as unsettled and that this express provision Section 3 (2) of Regulation II [2] of 1819) cannot be excluded merely by showing that the river bed from which the churs have been thrown up was at the date of the settlement the property of the zamindar, and that the settlement was imposed upon the zamindari as a whole. The ownership of the bed may determine the proprietary rights in the churs, but property is one thing and assessability is another,' p. 576.

49. Reference may also be made to Regulation VII [7] of 1822. The Regulation originally applied to the District of Cuttack, Pergana of Pataspur and its dependencies. It was later extended to all land not included in the estates permanently settled, khas mahals and other estates in Bengal, v de Section 2, Regulation IX [9] of 1825, Section 2, Act XXXI [31] of 1858, Section 60, Act XI [11] of 1859.

50. The Regulation is an enactment relating to settlement of revenue and not to settlement of rent and the assets of the estate are evaluated only for the purpose of fixing the revenue, The Regulation does not, however, deal with the question of the liability of lands, or churs to assessment of revenue. The learned Senior Government Pleader referred us to the decision of the Federal Court in Auckland Jute Co., Ltd. v. Tulsi Chandra, (1949) 11 F. C R. 201 : (A. I. R. (36) 1949 P. C. 153). The decision does not throw any light on the question before us.

51. It is also necessary to refer to Regulation XI [11] of 1825. The Regulation dealt with proprietary rights to accretions and churs formed within the limits of rivers or a sea. The proviso to Section 4 (t) merely stated that no exemption from assessment to revenue was conferred by the Regulation.

52. Reference may also be made to Act IX [9] of 1847. The Act merely altered the machinery by which lands gained from the sea or livers by alluvion or dereliction were to be assessed and did not subject to assessment any lands which would not have been liable thereto under the laws in force at the time when Act IX [9] of 1847 was passed : Secretary of State v. Fahamidunnessa, 17 I. A. 40: (17 Cal. 590 P. C.). The liability to assessment of churs must be determined by the pre-existing law.

53. Dr. Gupta for the respondents referred us to Act XXXI [31] of 1858, Act IV [4] (B. C.) of 1868, Act v [5] (B. C.) of 1920. These Acts do not help us in deciding the present question.

54. The learned Senior Government Pleader contended that an artificial formation abutting on a river bank comes within Section 3, Clause (2) of Regulation II [2] of 1819. In other words, such formation can be regarded as churs or lands gained by alluvion or dereliction. The last few words of the clause shew that the gain must be in any one of three ways viz., (1) introcession of the sea. (2) an alteration in the course of river, (3) the gradual accession of soil on their banks. The first two methods of gain do not clearly apply. For the third mode to apply, the formation must be the result of gradual accession of soil i. e. by fluvial action. This view is supported by preamble and the different sections of Regulation XI [11] of 1825, which speak of gift by the action of the rivers. The preamble to Act IX [9] of 1847 which provides the machinery of assessment also speaks of lands gained from the sea or from rivers by alluvion or dereliction. Section 5 of Act IX [9] of 1847 also refers to lands which have been washed away or lost. Section 6 also refers to rules for assessing alluvial formations.

55. The word 'dereliction' has been defined in Oxford Dictionary Vol. III, p. 226 'action of leaving or forsaking (with the intention not to resume), abandonment etc.' In Stroud's Judicial Dictionary, vol. 1, Edn. 2, the word 'derelict' is said to mean 'abandon.' In Wharton's Law Lexicon Edn. 11, p. 325 the expression 'derelict lands' has been defined to mean lands suddenly left by the sea, as when the sea shrinks back below the usual water-mark XX.'

56. In the Law Lexicon of British India by P. Ramnatha Iyer p. 320 the word dereliction has been defined as

'Recession of the waters of the sea, navigable river, or other stream, by which land that was before covered with water is left dry; when the sea shrank back below the usual water-mark and remained there; land added to a front tract by the permanent uncovering of the waters; the laying bare of the bottom by the retirement of water as contradistinguished from the building up of the bottom by deposits causing the water to recede.'

57. In support of the definition reference is made to American Cyclopaedia of Law and Procedure Vol. 13 p. 1044.

58. In my opinion Section 8 (2) of Regulation II [2] of 1819 does not apply to artificial formations like the present case.

59. This view is in consonance with Rule 377, Bengal Grown Estates Manual, 1932, which says that where any artificial accretion has been made in the bed of a navigable river, being a public domain, and the Crown does not get it removed he shall treat it as a Government estate and assess revenue upon it.

60. The view of the Revenue authorities that Regulation XI [11] of 1825 applies to both natural and artificial accretions, Vide Ex. G Book C. p. 202, does not seem to be correct.

61. In my opinion, the land mentioned in the pleadings is not an accretion within Act IX [9] of 1847.

62. The first contention urged on behalf of the appellant, therefore fails.

63. In this view it is not necessary to decide the second point viz., whether the assessment authorities followed the steps required by Regulation II [2] of 1819, Act IX [9] of 1847, and ACT XXXI [31] of 1858. For the sake of completeness we propose to deal with the point.

64. I shall first set out the stages leading up to the suit.

65. By notification dated 6-9-1929 under Section 3 of Act IX [9] of 1847 as amended by notification dated 5-12-1930 a new survey was made of the lands on the banks of the river Hooghly and a new map was prepared. The trial Court found that there was a new survey of the river bank and comparative maps were prepared. This finding was not disputed before us. It having transpired from an inspection of the maps that land has been added to estate No. 839 viz., 5.084 acres in Howrah Mouza Revenue Survey No. 1089 and that such land has been gained by alluvion since the Daimi settlement of 1945-46 and that such land was liable to assessment under Section 3 (2) of Regulation II [2] of 1819, notice was given to the landlords and tenants and proceedings under Section 6 of Act IX [9] of 1847 were initiated by the Assistant Settlement Officer on 23-5-1933. Exhibit K. Book--C. P. 36.

66. Prior thereto, on 10-1-1933 a letter was written by the Assistant Settlement Officer to the Port Commissioners. Exhibit D Book B-II, p. 40. In this letter, the latter were informed that a draft record had been prepared recording them as occupiers under the proprietors of the mainland estate. It was also stated that if the lands were formed by the filling up of the fore-shore by the latter, then the proprietors would have no right, and it was suggested that in the latter event objections under Section 103 A, Bengal Tenancy Act, for correction of the record mast be filed.

67. The proceedings were registered as case No. New 3/Old 15 of 1933-1934. An appeal by Messrs. Barn & Co. Ltd., before the Settlement Officer was rejected in the view that the lands were an accretion and assessable as such. The proceedings were made final on 8-8-1934. A petition by Messrs. Burn & Co. Ltd., before the Board of Revenue was dismissed in November, 1934.

68. On 24-10-1934 the Port Commissioners wrote a letter Ex. C (2) Book B, p. 47 stating that they were long in possession without payment of rent or revenue for public purposes and were not assessable.

69. On 12-6-1936 the Port Commissioners filed a petition before the Assistant Settlement Officer Ex. A-(1) Book C, p. 177.

70. On 15-6-1936 the Assistant Settlement Officer fixed the rate at Rs. 1440 per bigha and apportioned the same between the Government and the proprietors in the ratio of 30 to 70, and directed a rent roll to be prepared. The Port Commissioners appealed to the Director of Land Records and then to the Board of Revenue, and the latter reduced the rate to Rs. 960 per bigha in place of Rs. 1440 per bigha. The rent roll is Ex. 21 Book C. P. 248. It recorded the area as 5.084 acres; the proprietors as Satyakripal Banerji 8 as.; Saifarunnessa Bibi 7 as; and Kishori Mohan Roy 1 anna; the possessors Messrs. Burn & Co. Ltd., 3.825 acres and Port Commissioners 1,259 acres, The rent payable by the latter was stated to be Rs. 5.494-8-0.

71. It is settled law that before the Government can assess the disputed land it must be 'added land' within Section 6 of Act IX [9] of 1847 : Secretary of State v. Fahamidunnessa Bibi, 17 I. A. 40: (17 Cal. 590 P. C.); Haradas Acharje v. Secretary of State, 26 C. L. J. 590 : (A. I. R. (4) 1917 P. C. 86).

72. The case of the Government is that the original touzi was Touzi No. 3992 (Hooghly)--Touzi No. 838 (Howrah). In 1830-1846 certain churs formed and these were constituted Daimi estate, Touzi No. 3993 Hooghly--Touzi No. 839, Howrah. The disputed land according to the appellant is a further accretion to Daimi chur Touzi No. 839, it was proposed to be assessed as Touzi No. 1108.

73. In the Court below, the following maps were filed so far as the case goes: 1792 Upjohn's map, 1841 Joseph's map, 1816 Wilson's map, (Daimi Map), 1869 Thak map, 1872 Revenue Survey map, 1932 Present New map.

74. In the Court below both Upjohn's map and Joseph's map were held to be inadmissible as the appellant failed to prove that they were prepared under the authority of the Government. The certified copies filed in that Court did not state this fact.

75. As regards Upjohn's map, after the case was opened, we asked the learned Senior Government Pleader that the original copy of Upjohn's map might be available in the Bengal Survey Office. As a result of further searches, the original map was produced in this Court. The original map contains the following statement: 'Printed and published according to the Act of Parliament by A. Upjohn 2-4-1794-.'

76. The line of the river Hooghly shewn in the map of the year 1794 which almost synchronizes with the date of the Permanent Settlement of Bengal, 1793, may be taken to be the line of the river at the date of the Permanent Settlement. As the map was prepared under the authority of Parliament, a presumption of correctness attaches to the map.

77. But a relay of the line of the river as shewn in that map will not help the Government; because the case of the Government is that the river threw up a chur after 1793. The chur was resumed and a new Daimi estate was created and assessed to revenue in 1846. The further case of the Government is that the disputed land is a new formation to the Daimi estate. This added land was the subject of the present proceedings which were based on a comparison of the river line shewn in the map of the Daimi Survey and the new map of the present survey.

78. The Government must therefore prove the river line of the Daimi Survey.

79. The information slip Ex. 14 (c) shows that there is no record to show when the Daimi estate was created. The order of the Diara Officer dated 30-6-1933, Ex. 27 (a) states that the records of the resumption proceedings and of the Daimi Settlement could not be traced in spite of diligent search. Failing in their attempt to produce these papers, the Government suggested that Wilson's map was the basis of the Daimi Settlement.

80. Wilson's map, however, was a condemned map, EX. 14 and Ex. 19 (k). It was not approved by the Government as required by Section 3, Act IX [9] of 1847. As such its accuracy cannot be presumed. There is no reliable evidence to prove that it was accurate.

81. Moreover, the map was not a revenue survey map but a topographical perganah survey map -- Exhibit 12 (z) 16, Ex. 12 (x) 17, Ex. 12 (z) 21 Ex. S. It is therefore of no help to the Government in assessment proceedings.

82. Furthermore, its production in Court is open to serious comment. Information slips Exs. 14 (a), 14 (b) state that the office of the Director of Land Records had no copy of Wilson's map and that the office had no information of the purpose for which the map was prepared. Again, the Assistant Settlement Officer swore an affidavit that Wilson's map was destroyed after the District Settlement operations. These operations ended in 1939. The present suit was filed on 18-1-1939 after requisite notice on the appellant. It is inexplicable that in spite of the suit, the appellant destroyed the map. Curiously enough, the Government filed the map on 29-3-1941 : Vide order No. 258.

83. In the above facts, it is difficult to proceed on the basis of Wilsons map Ex. N (4).

84. In the Court below, the Government wanted to rely on Joseph's map which was published in 1841, i. e., close upon the Daimi Survey.

85. But Joseph's map is of no use for purposes of comparison envisaged in Act IX [9] of 1847. This map is a topographical survey map of the river Hooghly from Bandel to Garden-reach: Vide Markham's Memoirs of Indian Surveys, Edn. 2 (1878) p. 100. It is not a revenue survey and cannot form the basis of comparison under Act IX [9] of 1847.

86. It is well settled that what is liable to assessment with revenue is land not previously assessed, not land which has been formed since the revenue survey. When alluvial land has been settled as a separate estate with a separate jama, it shall thenceforward be regarded and treated as in all respects a separate estate. The fact that the proprietors of the original estate had a right to receive malikana does not affect the question : Saudamini v. Secy. of State : AIR1924Cal197 .

87. As the case of the Government is that a Daimi Settlement was made in 1846 and as the present proceedings were initiated by a comparison of the Daimi Survey map and the present new map, to find out the extent of the unassessed land, it is essential to fix upon the line of the Daimi Survey. The evidence on record is wholly insufficient for the purpose. The thak survey of 1863 or the Revenue Survey of 1872 is wholly irrelevant for finding out the said line. It is accordingly unnecessary to consider whether the thak Survey should be preferred to the Revenue Survey in this case.

88. As a result of the above discussion, the conclusion follows that it has not been established that the disputed land is 'added land' within Section 6 of Act IX [9] of 1847. The assessing authority did not take the necessary steps as prescribed by Regulation II [2] of 1819, Act IX [9] of 1847 and Act XXXI [31] of 1858, The second contention raised on behalf of the appellant accordingly fails.

89. I shall now deal with the third point urged on behalf of the applicant viz., whether the Government has power to assess the lands in the hands of the plaintiffs.

90. I have already held in concurrence with the Court below that the disputed land is an artificial formation.

91. The Court below also found that a portion of the disputed land was land which had been previously assessed to revenue ; and that the remaining portion was land put on the fore-shore of the river.

92. This finding was not challenged on behalf of the appellant and must be accepted.

93. As regards the portion already assessed, the new assessment is obviously invalid.

94. The question of liability to assessment relates to the remaining portion.

95. In our approach to this question, we must remember that the disputed land was not a lateral extension of the pre-existing river bunk but a vertical raising of the bed of the river by artificial means.

96. The learned Senior Government Pleader contended that as the disputed land was a gradual formation on the bed of the river the Regulations were applicable. It was immaterial whether the formation was natural or artificial.

97. In support of the contention, reliance was placed on the opinion of the Lord Chancellor in Attorney-General v. Chambers, (1859) 4 De G. & J. 55 : (7 W. R. 404), to the effect that the rule as to accretion is not affected by the nature and character of the operation employed to produce it. The Lord Chancellor, however, stated at p. 69 that an exception must be made when the operations are not only calculated but can be shown to have been intended, to procure the gradual acquisition of the foreshore .... obviously where, as in the present case, the formation is brought about on the river bed below the high water mark, the exception is brought into play.

98. Reliance was also placed on the decision in Deo Dem Shib Kristo v. East India Co., 6 M. I. A. 267 at p. 285 : (10 MOO P. C. 140), where it was observed that

'supposing the accretion (granting it to be gradual) had been contributed to or even purposely contributed to, by the act of the defendants that would not take the matter out of the ordinary law with respect to accretion. The Court below thought, and we think rightly, that that made no difference.'

99. This passage has to be read in the light of the findings of fact on that case at p. 288. These findings were that the defendant East India Co., were the owners of the bed of the river where the formation was made as well as of the land on the bank above the high water mark; as such title to the formation would, in any event, be in the East India Company, be it a lateral or vertical accretion. The case is therefore clearly distinguishable and the observations relied on, do not support the contention raised.

100. The decision of the High Court in that case was affirmed by the Privy Council, though on facts. The view of the High Court was thus stated by Sir Lawrence Peel C. J., at p. 273 :

'The waters retired gradually, it was not a case of derelict land, and though the withdrawal of the water was aided by the acts of the defendants in various parts of the river contiguous, yet the proximate and not the remote cause is alone to be looked to, and the lands were still gained by accretion, though the accretion was aided by human agency. If the waters had been bounded out, the character of an accretion would not have been given to the laud.'

101. The present case is more akin to the case referred to in the last sentence just quoted.

102. The decision in Secy. of State v. Kadiri Kuti, 13 Mad. 369, supports the view that the law of accretion, does not apply to artificial accretions.

103. On behalf of the appellant, reliance was also placed on the decision in Kamtaproshad Hajari v. Abdul Jamir, 8 C. w. N. 676. The facts of that case were that by reason of the excavation of a canal the land became dry but a portion of the land left dry had previously begun to form by alluvion; the excavation of the canal merely helped in raising the land. The case is thus clearly distinguishable.

104. Reliance was also placed on Attorney-General of Southern Nigeria v. John Holt and Co. (Liverpool) Limited, (1915) A. C. 599: (A. I. R. (2) 1915 P. C. 131). The case makes a distinction between the addition made by putting up of stakes and the natural accretions. The passages at pp. 611-612 do not assist the appellants.

105. It would appear from Ex. G, Book C, p. 202 that the view of the Revenue Authority was that Regulation XI [11] of 1825 applies to natural and artificial accretions. No reasons are given.

106. I have already held that the Regulations contemplate a gift by the river and not by human agency and an artificial accretion is outside the Regulation.

107. A further question falls to be discussed.

108. The artificial formation is no doubt land. Section 3 (1) of Regulation II[2] of 1819 declares all unassessed land assessable. As such, the formation, it is argued, is liable to assessment. Reference may be made to the case of Secretary of State v. K. Sarangapani Ayyangar : AIR1936Mad320 which held that all property is liable to assessment of revenue unless exempted by any statute, the onus to prove the exemption being on the owner.

109. Where the river bed is private property, any formation on the bed is assessable to revenue on the principle enunciated in Secy, of State v. Maharaja of Burdwan, 48 I. A. 565: (A. I. R. (9) 1922 P. C. 6).

110. Where, however, the river bed is public domain and vests in the Crown, assessment of the formation to revenue while in the ownership of the Crown is futile and meaningless.

111. In the present case, the river is a navigable river and its bed in any part of India, whether tidal or not, is vested in the Government unless it has been granted to private individuals: Maharaja, of Pattapuram v. Province of Madras .

112. Land revenue is assessed on proprietors of unassessed land and not on mere occupiers.

113. As the formation is an artificial one, the proprietors of the mainland estate defendants 2 to 7, did not acquire any title by Regulation XI [11] of 1825 ; even if they did, their rights had been barred by the open and uninterrupted adverse possession of the Port Commissioners for about 50 years without payment of rent. The entry in the Record of Rights recording the Port Commissioners as occupiers under the proprietors is incorrect.

114. So far as the Government is concerned, the possession of the Port Commissioners is short of 60 years and is insufficient to bar the rights of the Government. The title to the formation is in the Government and as such no revenue can be assessed on it.

115. Dr. Gupta contended that the Port Commissioners were entitled to occupy the river bank free of payment of rent by an agreement with Messrs. Burn & Co. Ltd., as such on the principle of ad medium filum, they were entitled to occupy free of rent formations upto the middle of the river. Reliance was placed on the decision in London Tax Commissioners v. Central London Railway, (1913) A C. 364: (82 L J. Ch. 274) where on the principle of ad medium filum an owner of redeemed land adjoining a public highway was held to be exempted from payment of land tax as regards underground railway up to the middle of the highway. Here the river bed belongs to the Government unlike a highway where the public has only certain rights over the land forming the highway.

116 Dr. Gupta also contended that the Regulations have no application to a tame river like the Hooghly but applied only to formation in violent streams in the Gangetic delta. Reference was made to the case of Srinath Roy v. Dinobandhu Sen 41 I. A. 221 at pp. 238, 241: (A. I. R. (1) 1914 P. C. 48). There is no foundation for this submission. In fact in the case of Secretary of State v. Maharaja of Burdwan, 48 I A. 565; (A. I. R. (9) 1922 P. C. 6) the Privy Council applied the Regulations to the rivers Damodar and Dwara Keshar which were normally tame rivers.

117. The Revenue Authorities were also of the opinion that the disputed land was an island chur Ex. g. Book B. p. 202. The disputed land is attached to the river bank and it is a misnomer to call it an island chur.

118. The Revenue authorities also opined that the disputed land should be assessed on equitable grounds. The Court below agreed with this view and further observed that the rules of justice, equity and good conscience were to be found in the rules of English Law: Waghela Rajsanji v. Sk. Masludin, 14 I. A. 99 (11 Bom. 551 P. C.); Meherbux Khan v. Makhana, . The liability of land to revenue however roust be decided by a reference to the Regulations and laws in force in Bengal, to the construction of which, the decisions on English or Canadian law are inappropriate: Secy. of State v. Maharaja of Burdwan, 48 I. A. 565: (A. I. R. (9) 1922 P. C. 6).

119. I have thus reached the conclusion that the Regulations and Acts governing liability to assessment of revenue do not entitle the Government to assess the disputed land to revenue in the facts and circumstances of the present case.

120. One of the grounds on which the plaintiffs claimed exemption from the liability to assessment was that the plaintiffs are holding: and administering the disputed property as delegates, representatives, agents and/or trustees of the Crown or as a department of the Government charged with the duty of improvement and conservancy of the Port of Calcutta. Vide Section 5 (a) of the plaint.

121. This question was discussed by the Subordinate Judge under issue No. 6.

122. The findings of the Subordinate Judge are: (1) that the Port Commissioners are the agents, delegates and employees of the Crown, (2) that the bed of the river Hooghly which is a tidal navigable river vested by statute in the Port Commissioners from the Crown, (3) that the Port Commissioners as grantees from the Crown are also not rateable.

123. The learned Senior Government Pleader disputed all these findings.

124. The first finding depends on the status of the Port Commissioners. Dr. Gupta for the respondents invited us to a historical resume of the Port legislations.

125. The earliest piece of legislation is Act XXII [22) of 1853 which was a Central Act.

126. It was a fragmentary statute. It defined the limits of a Port and directed the appointment of conservators for maintaining free navigation. Vide Sections 4, 6 and 24.

127. This Central Act was followed by several local Acts in Bengal.

128. The first local act was Act X [10] of 1866, designated as an Act for the Improvement of the Port of Calcutta.

129. Section 1, defined the word 'land' as including 'the bed of the river below high water mark' and the word 'wharf' as including 'any bank or wall adjoining the river'.

130. Section 2 vested the administration and the Port property in the Justices of the Peace for the Town of Calcutta incorporated under Act VI [6] (B. C.) of 1863. Section 28 conferred on the Justices the power to acquire and hold property, to lease and, with the sanction of the Lieutenant Governor, to sell Jmmovable property. Section 32 provided for compulsory acquisition of land and building for the purposes of the Act. Section 33 dealt with the general nature of the works under the Act, which in Clause (1) includes, wharves, quays, stages, jetties, piers, etc., and in Clause (iv) includes 'the reclaiming, enclosing, and raising any part of the river bed within the Port and below high water mark' which may be necessary for the execution of the works authorised by this Act. Section 34 required the justices to submit a general scheme of proposed works for the approval of the Lieutenant Governor and provided that no such work could be commenced except with his express sanction. Section 38 empowered the raising of loans by issue of debentures with the approval of the Lieutenant Governor. Section 43 provided for the framing of the budget. Section 46 provided for audit of the accounts by the auditor appointed by the Lieutenant Governor. Section 56 provided for the levy of tolls, dues, rates. Section 74 further provided that the Lieutenant Governor, may, by giving six months' notice, supersede the justices if it appears to him that the aforesaid scheme has not been and is not likely to be properly maintained by the justices.

131. Act III [3] of 1867 deals with merchant-ships lying in Ports and is not relevant for our purpose.

132. Act IV [4] of 1869 substituted the Lieutenant Governor of Bengal in Council for the justices of the peace for the Town of Calcutta and directed that the property of Port Fund would be vested in the Secretary of State for India in Council and applied for the purposes of the Act of 1866.

133. This Act was followed by Act V [5] of 1870.

134. Dr. Gupta referred us to various sections of the Act viz., 1, 6, 11, 31, 32, 38, 39, 41, 45, 48 50, 52 54, 56 58, 78, 90, 91, 92, 97 for the purpose of showing the extent of the control by the Government.

135. I shall now deal with these and some other sections.

136. Section 1 defines the word 'land' to include 'the bed of the river below high water mark' the word 'wharf' to include any bank of the river which may be improved to facilitate the loading and unloading of goods and any wail adjoining the river.

137. Section 5 created 'the Commissioners for making improvements of the Port of Calcutta' a body corporate having a common seal. Section 6 vested the Port property and fund in the Commissioners to be held in trust and applied for purposes of the Act, Section 11 vested the administration in the Commissioner's subject to the powers and authority conferred by the Act on the Lieutenant Governor. Section 31 conferred on the Commissioners powers to acquire and hold property and to lease or sell property subject to previous sanction of the Lieutenant Governor in case of sale or lease in excess of 10 years. Section 32 provided for automatic vesting of property vested under Act IV [4] of 1869 in the Secretary of State in the Commissioners. Section 34 required the assent in writing of the Lieutenant Governor to enter into a contract involving a likely payment of a sum in excess of Rs. 50,000. Section 35 required sanction of the Lieutenant Governor to a new work costing more than Rs. 2,000. Section 38 provided for compulsory acquisition of land and building for the purposes of the Act which would be deemed public purposes. Section 39 defined the general nature of the works under the Act, Clause (1) refers to wharves, quays, stages, jetties etc., and piers. Clause (2) refers to tramways, warehouses and churs. Clause (4) refers to

'reclaiming, enclosing and raising any part of the river bank or of the river bed within the Port which may be necessary for the execution of the works authorised by the Act, or otherwise for the purposes of the Act.'

Section 41 provided for the raising of loans. Under an order of the Lieutenant Governor Section 45 provided for the application of surplus income under the direction of the Lieutenant Governor. Section 46 provided for payment of debentures by fresh mortgage of rates with the approval of the Lieutenant Governor, Sections 48, 50 required the estimate of income and expenditure to be in the form directed by the Lieutenant Governor and to be approved by him. Section 52 required the assent in writing of the Lieutenant Governor to the incurring of expenditure on any unapproved sum in excess of Rs. 2000. Sections 68, 64 provided for a biennial audit by auditors appointed by the Lieutenant Governor. Sections 64, 55 required the Commissions to provide for public landing places and ghats and bathing places. Section 56 required the previous consent in writing of the Lieutenant Governor to the making of wharfs, quays, etc. Section 58 required the Commissioner to set apart wharfs, etc., appointed by this Lieutenant Governor under a Customs Act. Sections 65, 66 provided for levy of tools, rates on goods. Section 78 empowered the Lieutenant Governor to specify the limit of the Port of Calcutta. Sections 83, 84 required the approval of the Lieutenant Governor by the framing of bye laws, and empowered the Lieutenant Governor to revoke and annul bye-laws. Section 90 empowered the Lieutenant Governor to take possession and revoke the powers of Commissioners in case of dereliction of dag by giving 6 months' notice. Section 93 empowered the Lieutenant Governor to repeal the Act. Section 97 empowered the Commissioners to exercise powers of conservation.

138. The Port Act V [5] of 1870 was replaced by the Port Act III [3] of 1890.

139. It substituted the Local Government for the Lieutenant Governor. The material provisions are mainly similar. The definitions of She words 'land' and 'wharfs' are re-enacted. Sections 6, 11, 31, 39, 41, (44, 45), 50, 52, 54, 55, 56, 89, 91 of the Act of 1870 practically correspond to Sections 3, 57, 4 (55, 66), 35, 18, (57, 21) (70-72) 50, 81, 86, 83, 37 (38, 89).

140. The Subordinate Judge was of the opinion that the bed of the river Hooghly vested in the Port Commissioners as trustees 1 p. 209 C. 22. He rested this conclusion on the provisions of Sections 6, 11 and 32 of Act V [5] of 1870. In my opinion this is not correct.

141. Section 32 of the Port Act, 1870 merely vested in the Port Commissioners the property which had vested in the Secretary of State under Act IV [4] of 1869. The latter Act vested the Port Fund in the Secretary of State. Thus the effect of Section 32 was to vest the Port Fund in the Port Commissioners. Sections 6 and 11, Port Act, 1870, vested the Port property and administration in the Port Commissioners. These sections do not vest the title to the river bed in the Port Commissioners.

142. The effect of the Port Acts is to empower the Port Commissioners to use the foreshore land for the purposes of the Act, the bed of the river remains vested in the Crown. This view is stated in Ex. C. (7) a letter dated 3rd May, 1920 written by the Government to the Port Commissioners.

143. The Subordinate Judge was further of the opinion that as the effect of the Port Acts was to automatically vest the foreshore on which the suit land mainly stands [in the Crown ?] the suit land vested in the Port Commissioners with all the legal incidents of the foreshore, that one of such legal incidents of the foreshore which vested in the Crown was non-assessibility to revenue, that, as such, in the absence of any specific provision in the Port Acts, imposing a liability to assessment of revenue, the Port Commissioners cannot be subjected to payment of revenue in respect of the suit land. As I have already held that there is no vesting of the title to the foreshore land in the Port Commissioners, hence the basis of the above opinion of the Sub-ordinate Judge is taken away.

144. It was further contended that the Crown is not liable to assessment of land and as the Port Commissioners hold the land as delegates, agents and/or trustees of the Crown they will also be exempt from payment of land revenue.

145. In support of the first branch of the contention, reliance was placed upon the decision in Governor General of India in Council v. Corporation of Calcutta : AIR1948Cal116 .

146. In that case, the question related to the liability of new buildings erected by the Crown to assessment of Municipal rates and taxes. This Court construed Section 154, Government of India Act, 1935, and held the Crown as exempt. The view taken by this Court has been affirmed by the Supreme Court in Supreme Court Report, C. W. N. No. 5 P. 92.

147. Section 154 speaks of exemption from payment of taxes. It is doubtful if the word taxes covers land revenue. It is not however necessary to decide the point, because I am of opinion that the second branch of the contention is not sound.

148. In the present case, the assessment proceedings started before the commencement of the Government of India Act, 1935, when the rule of English Law that the Crown was not affected by a statute unless specially mentioned was differently answered. The Bombay High Court in the case of Secretary of State v. Mathura Bhai, 14 Bom. 213 answered the question in the affirmative; the Madras High Court in Bell v. Municipal Commissioners, Madras, 25 Mad. 457 (12 M. L. J. 208), gave a negative answer.

149. The Port Acts, to which I have referred at length, no doubt empowered the local Government to exercise controls, financial or otherwise, over the discharge of their duties by the Port Commissioners. The Port Acts also conferred on the Local Government powers of supersession in oases of gross dereliction of their duties by the Port Commissioners.

150. These restrictions do not, however, make the Port Commissioners agents or delegates of the Government. Sections 38, 39, Port Act, 1890, limit the remedy of the creditors of the Port Commissioners to the property of the Port Commissioners and not to Government property generally. This would shew that the Port Commissioners are not the agents etc., of the Gov. eminent.

151. In various Municipal Acts, the Local Government is authorised to exercise control and supervision. But the existence of such provisions does not exempt these Corporations for liability to assessment of revenue. In Sabju Sahib v. Malabar District Board A. I. R. (17) 1930 Mad. 16: (53 Mad. 54), it was held that the local Boards under the Madras Local Boards Act are not agents of the Crown.

152. Under the Port Acts, the Port Commissioners can own and possesses property. Such property vests in them absolutely and not merely as trustees for the Government.

153. In my opinion, the Port Commissioners cannot be regarded as delegates, agents and/ or trustees for the Government for purposes of assessment of land revenue.

154. It was further contended by DC. Gupta that as the Port Commissioners possess the disputed land not for any gain but for public purposes, the lands held by them are not liable for payment of land revenue. In support of his submission, he referred us to various decisions in England which dealt with rateability under the Statute of Elizabeth.

155. In my opinion the liability of land to assessment of revenue has to be decided according to the statute laws to which I have already referred. In matters concerning assessment of land revenue, it is not apposite to refer to English cases.

156. For the sake of completeness, however, I refer to the cases cited by Dr. Gupta.

157. Most of the cases cited turned on the effect of 43 Eliz. C. 2 S. I. which authorised the overseers of every parish to tax

'every inhabitant, person, vicar and other persons and every occupier of various binds of real property, and inter alia lands in the parish.'

The Crown was not expressly named in this statute.

158. The first case cited was Lord Amherst v. Lord Sommers, (1788) 2 Term Rep. 372 : (1 R. R. 497). In that case the Colonel of a regiment rented stables for the use of the regiment, by order of the Crown. The Colonel did not himself occupy the stables or keep his own horses. It was held that the stables were not rateable. Reference was made to the following observation at p. 575 :

'It is admitted that neither the possessions of the Crown or of the public are liable to be vested to the poor .... This property must be considered as in the occupation of the public, and is not rateable to the poor.'

159. The case next cited is that of the King v. Terrot, (1803) 3 East 506 : (7 R. R. 502) where Lord Ellenborough L. C. at p. 513 laid down the principle to be that where the party rated has the use of the building

'as a mere servant of the Crown, or of any public body, or in any other respect for the mere exercise of the public duty therein and have no beneficial occupation of or emolument resulting from it in any personal and private respect then he is not rateable.'

160. The next case cited is that of Attorney General v. Hill and Morris, (1986) 2 Meeson and welsby's Rep. 160. This case related to the liability of His Majesty's Dockyard at Deptford to land tax under the statute 38, Geo. III C. 3. Lord Abinger C. B. at pp. 170-171 held that the lands in question were in the occupation of the Crown--for the Crown and the public are the same for this purpose and were not rateable.

161. The next case cited is that of The Mersey Docks Harbour Board Trusts v. William Gamer on, (1861-65) 11 H. L. CC. 443 : (35 L. J. M. C. 1). The facts were that by the Acts of Parliament, from 8th Queen Anne to 21st Victoria, the dock estates in the parish of Liverpool were vested in the Mayor etc. of the borough of Liverpool as trustees for the docks and harbour of the towns, the property and privileges were to be held in trust for the purposes of the Act, accounts were to be rendered to Parliament every year, and no member was to derive any private advantage or emoluments and all revenue was to be held for the purposes of the Act. Certain questions were framed for the opinion of the Judges. The majority of the Judges was in favour of exemption of the Board from the tax. This view was affirmed by the House of Lords. I may quote an extract from the speech of Lord Westbury, L. C. at p. 501 :

'The only occupier exempt from the operation of the Act is the King, because he is not named in the statute, and the direct and immediate servants of the Crown, whose occupation is the occupation of the Crown itself, also comes within the exemption. But this ground of exemption does not warrant many decisions which have held that property used for public purposes is not rateable; so also trustees who are in law the tenants or occupiers of valuable property upon trust for charitable purposes such as hospitals or lunatic asylums, are, in principle, rateable notwithstanding that the buildings are actually occupied by paupers who are sick or insane.'

162. The view of Lord Westbury was concurred in by Lord Cranworth, Lord Chelmsford and Lord Kingsdown.

163. The next case cited is that of The Queen v. McCann, (1868) 3 Q. B. 141 : (37 L. J. M. C. 25). The facts were that the Commissioners of Works and Buildings were incorporated under 9 and 10 Vict C. 50 and were empowered to construct a bridge at Chelsea, and to borrow from the treasury to levy tolls, to borrow moneys for meeting the expenses, of the bridge and to repay the loan. It was held that the Commissioners were servants of the Crown and were not rateable. The learned Judges observed that the Corporation created there were the servants of the Crown for erecting a public work out of public funds and which was really a private estate of the Crown.

164. The decision has been commented upon in Ryde on Bating at pp. 141, 145.

165. The last case cited is that of Richard Coomber v. Justices of the Country of Berks, (1888) 9 A. C. 61 : (53 L. J. Q. B. 239). In this case, the subject was land occupied by the Court of Assizes and a police station. It was held that as both were maintained for the purposes of the administration and hence for Crown purposes the lands were not rateable.

166. The law on the point is thus summed up in Ryde on Bating Ch. VI Section 123 p. 127. (1) The Crown not being named in the Statute of Elizabeth is not bound by it. (2) No rate can be imposed in respect of property in the occupation of the Crown by itself or its servants whose occupation amounts to the occupation of the Crown. (3) No rate can be imposed in respect of property occupied by persons who occupy for public purposes, which are required and created by the Government of the country, and are, according to the theory of the Constitution administered by the Crown. Edinburgh University case; Greig v. University of Edinburgh, (1868) L. R. 1 H. L. (Sc.) 348 at p. 364. (4) The exemption attaches although the property be used for purposes of imperial Government in a particular locality only and athough it be provided and maintained by means of fund raised by local rates. (5) Property acquired for 'public purposes' is not exempt unless it comes within me foregoing propositions.

167. Conceding that the liability to assessment to land revenue may be determined by the principles of English law discussed above the Fort Commissioners cannot, in my opinion, claim exemption from the liability to assessment of revenue merely on the ground that they hold the disputed land for public purposes, they must also shew that their possession was in effect possession of the Crown. I have held already that it cannot be said that their possession is as delegates or agents or trustees for the Crown and their possession does not amount to possession of the Crown. I hold that the view of the Subordinate Judge on this point is not correct.

168. For the reasons given in the first part of the discussion on the third contention the net result, however, is that the Government has no power to assess the disputed lands in the hands of the Port Commissioners. The third contention urged on behalf of the appellant accordingly fails.

169. In this view, it is not necessary to discuss the plea of estoppel on which no argument was advanced before us.

170. I shall now deal with the fourth contention of the appellant viz., the correctness of the decision of the Court below on issue 4. The issue was not happily worded. The finding of the Court below was that the plaintiffs have locus standi to bring the suit and have cause of action.

171. The learned Senior Government pleader challenged the propriety of this finding.

172. Dr. Gupta for the respondents contended that in view of the terms of issue 4 it was not open to the appellant to raise this point.

173. I cannot give effect to this contention. The issue is no doubt not clearly worded but the parties led evidence on the point. The facts bearing on this point are more or less admitted. The point was argued in the Court below without any objection on the part of the plaintiffs;

174. On the merits, however, I agree with the findings of the trial Court.

175. I have already stated the facts leading up to the suit. The plaintiffs were recorded as occupiers under the proprietors of the main land estate and were assessed to rent. The plaintiffs were served with notice by the Assistant Settlement Officer. They filed objections which were heard by the Settlement Officer etc., and the Board of Revenue. They got only partial relief.

176. It was contended that the proprietors did not bring a suit. This is not correct. One of the proprietors, Kishori Mohan Boy did move in the matter and filed Title Suit No. 27 of 1939 which has been stayed pending this suit. Moreover, the record of rights which recorded the Port Commissioners as occupiers under the proprietors was prepared under chap. X Part II, Bengal Tenancy Act, and this fact undoubtedly threw a cloud upon the plaintiffs' title: Chandra Singh v. Midnapore Zamindary Co., Ltd., 46 C. W. N. 802: (A. I. R. (29) 1942 P. C. 8). Even if the record be taken to have been prepared under Regulation VII [7] of 1822, a right of suit challenging the record has been preserved by Section 292, Regulation VII [7] of 1828.

177. In these circumstances, the plaintiffs had ample cause of action for the present suit.

178. As regards the locus standi of the plaintiffs to file the suit, the learned Senior government Pleader contended that they have no locus standi. It was contended that the plaintiffs have no concern with the creation of the Diara Estate and the assessment of revenue on such estate. These matters were entirely for the proprietors who have not filed any suit, that the fixation of cent and the preparation of the rent roll under Regulation VXI [T] of 1822 were necessary for the purpose of assessment of revenue and do not touch the pre-existing rights of the plaintiffs: Auckland Jute Mills v. Tulshi Chandra Goswami .

179. I have already pointed out that Section 29, Regulation VII [7] of 1822, provides for a suit for correction of the record.

180. It cannot be disputed that the plaintiffs are vitally interested in the Record of Rights as occupiers under the proprietors and liable to pay rent as such. One of the facts on which this was based is that the disputed land was an accretion to the Daimi Touzi and was added land within Section 6 of Act IX [9] of 1847. To displace the record, they have to show that the disputed land was not an accretion, that it was not added land and that the entire proceedings were invalid. In a suit contesting the validity of the resumption proceedings, the Province of Bengal is vitally interested and an adjudication on this point should properly be made in their presence: Jogendranath Singh v. Secretary of State, 17 C. W. N. 835 at p. 839: (17 I. C. 921) In the case of Secretary of State v. Midnapur Zamindary Co., Ltd.. , a patnidar was held to be entitled to challenge the resumption proceedings. It is true that the plaintiffs have been recorded as mere occupiers, but the plaintiffs claim a proprietary or permanent title to the disputed land by adverse possession and by agreement with Messrs. Burn & Co., Ltd.

181. The forth contention raised on behalf of the appellant must therefore be overruled.

182. I have dealt with all the contentions raised on behalf of the appellant.

183. As a result of my findings on these points, I hold that the decree passed by the Court below is correct. The appeal accordingly fails and is dismissed with costs to the plaintiffs-respondents.

Guha J.

184. I agree.


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