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Madan Mohan Das Mohanta Maharaj and anr. Vs. Jitendra Nath Roy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal781
AppellantMadan Mohan Das Mohanta Maharaj and anr.
RespondentJitendra Nath Roy
Cases ReferredBhuneshwari Kuer v. Gopal Saran Narayan Singh
Excerpt:
- .....court. this decree appears to have been passed against defendants 1 and 2 personally but it is admitted on both sides that the intention must have been that the decree should be passed against them in their capacity as shebaits. having regard to the consideration mentioned above with reference to the interpretation of section 54, cess act, this appeal must be allowed. the judgment and the decree of the lower appellate court are set aside and those of the court of first instance are restored. the appellants are entitled to get their costs in all the courts. having regard to the importance of the main legal point involved in this case, permission is granted to file an appeal under the letters patent.
Judgment:

Edgley, J.

1. The defendants are the appellants in this case. The plaintiff in the suit, out of which this appeal arises, sought to recover cesses under Section 58, Cess Act, in respect of certain rent-free lands for the years 1333 to 1336 inclusive. The defendants were the holders as shebaits of certain rent free lands within the plaintiff's touzi No. 132. The plaintiff's case was that there had been a cess revaluation and after due publication of the requisite notices, he had called upon the defendants to pay the cesses due from them but they had failed to do so. The defendants contended that their holding fell within touzi No. 203 and that they had already paid the cesses due from them to the patnidar under the touzi. It was further contended on their behalf that the plaintiff was not entitled to collect cesses from them as he had not observed the mandatory requirements of the Cess Act.

2. The learned Munsif dismissed the plaintiff's suit. In doing so he found that there was nothing to establish any connexion between the payments made by the defendants and the lands in respect of which cesses were claimed, but at the same time he held that it had not been proved that there was any publication of the notices required by Section 54, Cess Act. When the matter came before the learned Additional Judge on appeal on 31st July 1933, the lower appellate Court decreed the plaintiff's suit. In this connexion it may be noted that the learned Additional Judge accepted the finding of the Court of first instance with regard to the payments alleged to have been made by the defendants to the patnidar holding touzi No. 203. He held however that the notices required by the law had been duly served and that although the notices required under Section 54, Cess Act, did not strictly comply with certain provisions of that section he was nevertheless of opinion that the defendants should not be allowed to take advantage of this irregularity in order to repudiate their liability to pay the cesses. The first point which has been urged before me by the learned advocate for the appellants is that the lower appellate Court should have held that the defendants had actually paid the cesses due from them for the lands for which the claim was made. With regard to this contention there is a clear finding in the judgment of the lower appellate Court to the effect that there is nothing to connect the receipts filed by the defendants with the lands for which cesses are claimed by the plaintiff. There is a similar finding in the judgment of the Court of first instance and both the lower Courts appear to have based their conclusions on this point on satisfactory evidence. I see no reason for disagreeing with his finding.

3. The most important point however which has been urged in connexion with this appeal is that having regard to the language of the statute, the plaintiff cannot recover the amount of cesses claimed by him under Section 58, Cess Act, because there has been substantial noncompliance with the provisions of Section 54 of the Act. Admittedly the demand for cesses in this case is based upon a revaluation and it is clearly provided by Section 54, Cess Act, that, whenever such revaluation takes effect in any district or part of the district, the holder of the estate or tenure to whom cesses are payable in respect of the lands held free of rent shall cause a notice to be published. It appears from Clause 3, Section 54 that the purposes for which this notice must be published are twofold: (1) to inform all concerned of the rate which has been fixed for the levy of the cesses and (2) to require the persons concerned to pay the amount of the specified cesses as it falls due. The section goes on to specify certain details which must be mentioned in the notice and item 6 of these details reads as follows:

The dates fixed by the Board of Revenue under Section 57 for the payment of each instalment together with the amount for each instalment.

4. Admittedly in the case out of which this appeal arises there has been a noncompliance with item 6. The dates fixed by the Board of Revenue under Section 57, Cess Act, are to be found in Rule 112 of the Statutory Rules published under the Act. Most of the amounts involved in the case out of which this appeal arises are admittedly less than Rs. 10. This being the case, the date to be mentioned in the notices under Section 54 should have been 12th January whereas the dates actually mentioned in the relevant notices are 1st May and 1st November. Further as remarked by the learned Additional Judge in those cases in which more than one payment is allowed, the amounts payable in each instalment are not mentioned. Obviously the intention of item 6 was that the persons concerned should be informed of the actual dates upon which tho cesses fell due and the exact amounts they would have to pay. If this is not done it may be argued that the persons who are liable to pay the cesses may be seriously prejudiced. These persons usually live in remote country villages and it is hardly to be expected that they would be acquainted with the notifications of the Board of Revenue under Section 57, Cess Act, which may be published in the Calcutta Gazette from time to time. It is therefore a matter of some importance that they should know the procise details regarding the payment of tho cesses. It seems to me that, if such details are not mentioned in the notices, there is a substantial non-compliance with the provisions of Section 54, Cess Act. Taxation statutes of this nature must be strictly interpreted and having regard to the mandatory nature of the language used in Section 54, Cess Act, read with Section 56 of the same Act, it would appear that unless the notices required by Section 54 have boon properly published with all the details specified in Section 54, it is not legal for the holder of the estate to sue for cesses under Section 58 of the Act. I must therefore hold that the mistake with regard to the dates fixed by the Board of Revenue which appears in the notices under Section 54, Cess Act, and the omission to specify the exact amounts payable constitute not merely an irregularity but an illegality which vitiates the notices. In these circumstances it is clear that the plaintiff's case must fail owing to noncompliance on his part with the mandatory provisions of the Cess Act.

5. The next point urged is that, in any case, the plaintiff is not entitled to sue for cesses for four years as he has done in this case and, in support of this contention, reliance is placed upon a decision of the Patna High Court in Bhuneshwari Kuer v. Gopal Saran Narayan Singh 1929 Pat 331, where it was held that a suit for the recovery of a penal sum under Section 58, Cess Act, is not a suit for the recovery of an arrear of rent, and that the claim is only an ordinary money claim governed by the rule of three years' limitation. Having regard to the circumstances of the present case I agree that this principle should be applied and that even if it could be held that the plaintiff's claim was maintainable, he would only be entitled to recover cesses for three years. A further point of minor importance has been mentioned to me with reference to the decree of the lower appellate Court. This decree appears to have been passed against defendants 1 and 2 personally but it is admitted on both sides that the intention must have been that the decree should be passed against them in their capacity as shebaits. Having regard to the consideration mentioned above with reference to the interpretation of Section 54, Cess Act, this appeal must be allowed. The judgment and the decree of the lower appellate Court are set aside and those of the Court of first instance are restored. The appellants are entitled to get their costs in all the Courts. Having regard to the importance of the main legal point involved in this case, permission is granted to file an appeal under the Letters Patent.


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