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

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal813
AppellantJitendra Nath Roy
RespondentMadan Mohan Das Mohanta Maharaja and anr.
Excerpt:
- .....of additional district judge of jessore khulna; it has arisen out of a suit for recovery of cess payable in respect of some rent-free lands appertaining to the zamindari of the plaintiff appellant. it appears that the trial court dismissed the plaintiff's suit. on appeal to the learned district judge, the decision of the trial court was reversed, and a decree was passed in favour of the plaintiff entitling him to recover the amount claimed in the suit as cesses payable by the defendants. there was then a second appeal to this court by the defendants, and in that appeal, the decision of the primary court dismissing the suit was restored. in this appeal the only question for consideration is whether the plaintiff appellant is entitled to recover cess at double the amount with.....
Judgment:

1. This is an appeal under Section 15, Letters Patent, and is directed against the decision of our learned brother Edgley, J. reversing the decision of Additional District Judge of Jessore Khulna; it has arisen out of a suit for recovery of cess payable in respect of some rent-free lands appertaining to the zamindari of the plaintiff appellant. It appears that the trial Court dismissed the plaintiff's suit. On appeal to the learned District Judge, the decision of the trial Court was reversed, and a decree was passed in favour of the plaintiff entitling him to recover the amount claimed in the suit as cesses payable by the defendants. There was then a second appeal to this Court by the defendants, and in that appeal, the decision of the primary Court dismissing the suit was restored. In this appeal the only question for consideration is whether the plaintiff appellant is entitled to recover cess at double the amount with interest from the defendants respondents, payable in respect of the years 1333 to 1336 B.S. under Section 58, Cess Act. On the findings arrived at by the lower appellate Court the notices required by Section 54. Cess Act had been duly served, and the question is whether those notices were such as strictly complied with the provisions contained in that section. There can be no doubt about the position, in view of the language of the statute, that the plaintiff was not entitled to recover cesses as claimed in the suit, unless there is compliance with all the items mentioned in Section 54.

2. There had been non-compliance, so far as the mention of 12th January, the date fixed by the Board of Revenue for payment of cess, the amount of which was less than Rs. 10 and most of the amounts involved in the case before us were less than Rs. 10; there was also no mention of the amounts payable in each instalment, where payments in more than one instalment were permitted. Regard being had to the position indicated above we have no hesitation in agreeing with Edgley, J. that the suit was bound to be dismissed on the ground that there was non-compliance on the part of the plaintiff, so far as the mandatory provisions of the Cess Act were concerned. As the learned Judge has observed, a taxation statute like the Cess Act must be strictly interpreted, and in view of the mandatory nature of the provisions contained in Sub-section 54 and 56, Cess Act, unless notices required by Section 54 of the Act have been properly published with all the details specified in Section 54, the zamindar in the position of the plaintiff was not entitled under the law to sue for recovery of cesses under Section 58. In our judgment, the omission to specify the exact amounts payable by the defendants, and the further omission or mistake in the matter of mentioning the dates fixed by the Board of Revenue, in the notices purported, to have been issued under Section 54, were not mere irregularities but were illegalities which vitiated the notices. The liability in respect of payment of cesses by persons in the position of the defendants was based upon the service of notice prescribed by law, and the provisions contained in Section 54, Cess Act, had to be strictly complied with in all particulars, before any statutory liability could arise, as claimed by the plaintiff in the suit.

3. The service of notice in the manner prescribed by law is the foundation of the party's claim to recover cesses by a suit like the one before us; and non-compliance of the provisions of the law as contained in Section 54 in any way whatsoever, cannot be treated as a mere irregularity which does not invalidate the notice, as it appears to have been held by the District Judge in the Court of appeal below. The equitable considerations that might arise in favour of the appellant before us, cannot be allowed to override the definite provisions of the law, creating rights and liabilities of the parties, so far as the present claim for recovery of cesses was concerned by a suit. The decision of our learned brother Edgley, J. against which this appeal is directed is in our judgment right and must be upheld. The appeal is dismissed. There is no order as to costs in the appeal.


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