1. These appeals arise with reference to certain suits brought by the plaintiffs for the recovery of cess from the defendant. Both the Courts below held that the defendant was liable in respect of the major part of the cess which had been claimed. The facts of the case appear to be briefly as follows: The lands in respect of which cess has been claimed by the plaintiffs are admittedly nishkar or rent free lands. Notices were issued in due course under Sub-section 14 and 16, Cess Act (Bengal Act 9 of 1880). After the issue of the notices under Section 16 of the Act, the landlords did not submit returns in the form prescribed in Schedule A to the Act, but, instead of doing so, sent some petitions to the Collector, in which they referred to the entries contained in the record of rights and suggested that the valuation for the purposes of the Cess Act should be made in accordance with those entries. The Collector thereupon proceeded to make a summary valuation of the rent free land under Sub-section 21 and 28, Cess Act. Subsequently the valuation roll was duly published and notices were duly issued under Sub-section 52 and 54 of the Act. It is admitted that the landlords have actually paid to the Collector the cess for which they are liable and they now seek to recover from the holders of the rent free lands that portion of the cess which according to their allegation, is payable to them under Section 56 of the Act. The main point which has been urged by the learned Advocate for the appellant in this case is that the landlords are not entitled to recover any cess from the holders of rent free lands, because the nishkardars' liability to pay cess to them depends upon the observance by the landlords of the procedure prescribed in Ch. 4, Cess Act, and, as this procedure has not been observed, they are under no liability whatsoever in respect of the cess which has been claimed.
2. According to the general scheme of the Cess Act, subject to certain statutory exceptions, cess must be paid on all immoveable property situate within any district, whether rent is paid in respect of such immoveable property or such property is rent free. Ch. 2, Cess Act, lays down the procedure to be observed generally in connection with the valuation of lands for the purposes of the Cess Act, and, under Section 16 of the Act read with Section 14, certain returns have to be submitted to the Collector by the holders of estates or tenures the gross annual rental of which exceeds one hundred rupees in the form prescribed in Schedule A to the Act. The Act further lays down that, if no return is lodged in accordance with the requirements of Section 16, the Collector may proceed to make a summary valuation under Section 21. Further, under Section 28 the Collector has summary powers of valuation in connection with small estates, but it appears that, in the present case, this section has no application as the gross rental of the estate with which we are concerned exceeds Rs. 100. Section 34 of the Act provides that:
Whenever any valuation or revaluation is made under this Part, the Collector shall cause to be prepared from the returns furnished to him and from the valuation made by him in accordance with this Act a valuation roll of each estate.
3. And there follow certain provisions with regard to the publication of the valuation roll. Ch. 3 contains certain provisions with regard to the mode of the amount of cess which has been assessed under the valuation roll. In the cases out of which these appeals arise the valuation of the lands in suit purports to have been made under Sub-section 21 and 28 of the Act although, as pointed out above, Section 28 is not applicable in view of the circumstances of the cases out of which these appeals arise. It is, however, contended by the learned Advocate for the appellant that even if it be admitted that any valuation was made by the Collector under Section 21 of the Act such valuation alone cannot be held to impose any liability on the defendant as regards the payment of cess because, when it is a question of valuing and assessing rent-free land, the procedure laid down under Ch. 4 of the Act must be followed, and the procedure prescribed by that Chapter is exhaustive as regards the valuation and assessment of rent free land.
4. Chapter 4 is headed: 'Valuation and Assessment of Lands held rent free and Payment and Recovery of Cess in respect thereof.' It is then provided under Sub-section 50 and 51, that in submitting their returns in the form prescribed in Schedule A, holders of estates or tenures must include all rent free lands contained within the boundaries of their estates or tenures in the returns relating to those estates or tenures as the case may be. It is then laid down that the holder of an estate or tenure
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.
5. It would therefore appear to have been the intention of the legislature that ordinarily cess due from rent free lands should be collected through the agency of the holders of estates or tenures within which such lands are situate and, provided such land had been included in, their returns, they would then be entitled to realize cess from the owners of the rent free lands concerned under Sub-section 56 and 58 of the Act. It was however necessary to provide that rent free lands which had been omitted from the landlords' returns should not escape liability to pay cess. It is therefore laid down in Section 66, Ch. 4, that:
Notwithstanding anything in this Chapter contained, the Collector may at any time cause a notice as mentioned in Section 16 to be served on the holder of any rent free land which he shall consider not to have been entered in the return of any estate or tenure in which such land ought to have been included under the provisions of Section 51.
6. This section goes on to state:
And on service of such notice, the provisions of this Chapter shall no longer apply to such lands; but the same consequences shall ensue and the same liabilities shall attach to the holder of such land as would have ensued and would have attached if such lands had constituted a revenue free estate.
7. In this connexion therefore it is to be noted that, after service of a notice under Section 66, one of the consequences would be that, if no cess return were lodged by the nishkardar, the Collector would be empowered to value rent free lands summarily in accordance with procedure laid down in Section 21 of the Act, and further, a valuation roll of such lands would be prepared and published in the manner provided by Section 34 and the following sections of the Act. In Section 70 provision is made for the liabilities of holders of rent free lands after the issue of notices under Section 66 and it is further provided in Section 71 that:
No owner or holder of rent free land on whom a notice has been served by the Collector under Section 66 or in respect of whose land an order has been made by the Collector under Section 68, shall be liable to have the land to which such notice or order refers included in any return of an estate of tenure, or to pay any amount as road cess or public works cess otherwise than to the Collector or to some person appointed by him in that behalf.
8. It follows from what I have already stated that, if Ch. 4 of the Act cannot be exactly described as containing a Code of exhaustive procedure relating to the valuation and assessment of rent free lands for the purposes of the Cess Act, it nevertheless prescribes certain essential conditions which must be observed as regards such lands before the general procedure prescribed in ChSection 2 and 3 can be brought into operation with reference thereto. In particular the provisions of Ch. 4 indicate that the valuation roll which is published by the Collector under Section 52 can only be prepared under Section 34 as regards rent free lands which such lands have been included in the landlords' cess returns, that, unless they have been so included the owner or holder of rent free land is not bound to pay cess to the holder of the estate or tenure: see Section 56- and, if the Collector wishes to realize cess from rent free lands ommitted from the returns and value such lands under the provisions of Ch. 2, he should issue a notice under Section 66.
9. It is however argued by the learned advocate for the respondents that the petitions Exs. 23-A to 23-E should be regarded as valid returns under Section 14 read with Section 16, Cess Act. I am not prepared however to hold that these petitions can possibly be regarded as return as required by the law. They merely refer to certain particulars contained in the record of rights and suggest that the assessment should be made on the basis of these particulars. Admittedly they are not in the form required by Schedule A to the Act and, in any event, they furnish no particulars relating to the annual value of the land. This is one of the most important details required to be furnished in the returns in the prescribed form as it is upon the basis of these returns that the valuation roll is prepared by the Collector under Section 34. The Cess Act is a taxing statute and should therefore be strictly construed and, this being the case, I must hold that in no event, can the petitions Exs. 23-A to 23-E be regarded as returns under Section 16 read with Section 14 of the Act. It is said that the Collector treated these petitions as returns for the purposes of the Act. In that case it is curious that he should have proceeded to ascertain the annual value of the nishkar lands partly, at any rate, under Section 21 of the Act which can only be brought into operation, if no return has been made. It is however clear that, in view of the mandatory requirements of the Act as to the form of the returns and the particulars that they should contain, the Collector had no jurisdiction to treat these petitions as valid cess returns under Sub-section 14 and 16 of the Act.
10. It is then urged on behalf of the respondents that the Collector was competent to ascertain the annual value of the rent free lands under Section 21 even without issuing a notice under Section 66 of the Act. This part of the argument of the learned advocate assumes that no return was actually made, and it is therefore somewhat inconsistent with his contention to the effect that the petitions Exs. 23-A to 23-E should be deemed to be valid returns. I have already indicated that in my view the general scheme of the Act demands that as regards rent free lands, the special conditions prescribed by Ch. 4 should be observed before the procedure laid down in Ch. 2 can be brought into operation and, in this view of the case, the issue of a notice under Section 66 would be a condition precedent to the valuation under Section 21 of rent free lands which had been omitted from the landlord's cess returns. If however it be assumed that the Collector was competent to make the valuation under Section 21 without issuing a notice under Section 66 such valuation would not enable the landlords to realize cess from the defendants in view of my finding that the rent free lands had not been included in their cess return. If such valuation were intended as a preliminary step to enable the landlord to collect cess in respect of rent free lands it would be merely a work of supererogation on the part of the Collector. It would not give him jurisdiction to issue the notice required by Section 52 nor would it render the nishkardar liable to pay cess to the landlord under Section 56 as these sections expressly require that the rent free lands should have been included in the landlord's cess returns. It would appear therefore that the inclusion of the rent free land in the landlord's return under Sub-section 14 and 16 of the Act is a condition precedent to any liability which is imposed upon the holder of rent free land to pay cess in respect thereof.
11. In the case out of which these appeals arise I have already said that the petitions Exs. 23-A to 23.E cannot be regarded as returns which comply with the requirements of the Cess Act. This being the case, as the landlords must be deemed to have failed to include the nishkar lands in suit in their returns in the form in Schedule A as required by Section 51 of the Act, the defendant does not appear to be under any liability to pay cess to the landlords. In this view of the case these appeals must be allowed with costs throughout. The judgments and decrees of the lower appellate Courts are set aside and the plaintiffs' suit will stand dismissed. Permission to file an appeal under Section 15, Letters Patent, is granted.