G.N. Das, J.
1. This appeal is on behalf of the defendants and arises out of a suit for recovery of arrears of road cess for the years 1343 to 1350 B. S. and education cess for the last half year of 1317 B. S. together with the penalty provided for in Section 58 of the Cess Act.
2. The defence of the defendants was that neither the road cess nor the education cess is recoverable because notice under Section 51 of the Cess Act was not served according to law.
3. The trial Court dismissed the plaintiff's suit in so far as it concerned the claim for recovery of road cess inasmuch as the service of notice under Section 54 of the Cess Act was not proved. The claim for recovery of education cess was however decreed. The judgment does not give us any indication of the reasons which led the trial Court to decree this part of the claim. Against the decision of the trial Court, the plaintiff preferred an appeal in so far as the trial Court dismissed the claim for recovery of road cess. The defendants preferred a cross appeal. The appeal and the cross appeal were both dismissed by the lower appellate Court. The appeal was dismissed on the ground that notice under Section 54 of the Cess Act was not proved to have been served. The cross appeal was dismissed by the lower appellate Court on the ground that the liability to pay education cess was determined under Section 30 of the Bengal Primary Education Act (Act, VII(7) of 1930). The plaintiff has not preferred any appeal. The defendants have preferred this appeal challenging their liability to pay education cess as claimed in the plaint.
4. Mr. Chatterji appearing for the defendants appellants has contended in the first place that as no road cess is payable in the present case education cess is not recoverable in view of the provisions of Section 29 (1), Bengal Primary Education Act of 1930. In the second place it is contended that Section 32 of the said Act makes the provisions of the Cess Act applicable in the matter of assessment, levy, payment and recovery of education cess. As road cess is not recoverable in the present case education cess is also irrecoverable. In the third place it is contended that the decrees of the Courts below imposing a penalty under Section 58, Cess Act are not in accordance with law on the grounds already mentioned.
5. The first contention depends on an interpretation of Section 29 (1) of the said Act. The Sub-section runs as follows:
'In any district or part of a district in which the provisions of this Chapter are in force all immovable property on which the road and public works cesses are assessed according to the provisions of the Cess Act, 1880, shall be liable to the payment of a primary education cess.'
The disputed lands are niskar lands lying within the ambit of a zemindari, belonging to the plaintiff. The Zemindari itself is assessed to the payment of road and public works cess. It cannot therefore be said that the disputed lands are such immovable property on which road and public works cess was not assessed. Section 39 (1) of the Act declares the liability of all immovable property, on which road and public works cesses have been assessed, to be further assessed to the education cess. The fact that the niskardar was not liable to pay road cess to the Zemindar does not lead to the conclusion that the property, itself was not assessed to road and public works cesses. The first contention raised on behalf of the appellants must therefore be overruled.
6. The second contention has to be answered by a reference to the different sections of the Bengal Primary Education Act 1930 as also of the Cess Act, 1880. I have already referred to Section 29 (1), Bengal Primary Education Act, 1930 which makes all immovable property on which road and public works cesses have been assessed to be further subject to a liability to pay the primary education cess. Section 29 (2) of the Act prescribes the rate of levy of education cess which in the case of land is fixed at 5 per cente per rupee on each rupee on annual value of the land. Section 30 of the Act provides for the mode of payment of education cess by the holders of different grades of interests in land and for apportionment of the same between the holder of an estate or a tenure or a cultivating raiyat. Section 31 of the Act provides that when primary education cess is levied for the first time a notification and proclamation in the manner pro-vided for by Section 41 of the Cess Act and a notice on the holder of an estate showing the amount of cess payable in respect of the estate and specifying the date from which such primary education cess will take effect, shall be served subject to the proviso that defect in the service of notice shall not effect the liability of any person or proprietor to the payment of cess. Section 32 of the Act then states :
'Subject to the provisions of this chapter the provisions of the Cess Act, 1880, shall apply so far as possible to the assessment, levy, payment and recovery of the primary education cess.'
It is contended that as the levy of education (road?) cess in the present case is not possible because of the non-service of the requisite notification under Section 54 of the Cess Act primary education cess is also irrecoverable. In order to deal with this contention we have to refer to Section 54 of the Cess Act. Section 54 provides that in cases where a new valuation or re-valuation takes effect in a district or where the rate of cess is changed or where the dates fixed by the Board of Revenue for payment of cesses under Section 57 of the Cess Act are altered, the holder of the estate will cause a notice in the prescribed form to be published in the places mentioned in Section 54. Section 56 then provides that if such a notice under Section 54 is not published cesses cannot be recovered. In the present case, there is no question of a new valuation or re-valuation of the estate or a change in the rate on which cesses are payable or any change in the dates fixed by the Board of Revenue for payment of an instalment under Section 57 of the Cess Act. The education cess, as I have already stated, is payable at certain rates on the annual value of land. The annual value of the land is defined in the Cess Act. As such, in order to entitle the holder of an estate to recover primary education cess no special notice under Section 54 of the Cess Act was required to be served. It has been found that notice under Section 52 of the Cess Act was properly served. In this view, the defendants niskardars cannot escape liability from the payment of education cess as claimed in the plaint. The second contention on behalf of the appellants must therefore fail.
7. The third contention raised on behalf of the appellants relates to the imposition of a penalty under Section 58 of the Cess Act. As I have already held that the primary education cess was properly leviable and as the same has not been paid according to the instalments fixed by the Act the plaintiff was entitled to recover penalty as stated in Section 58 of the Cess Act. This contention must also be overruled.
8. The result therefore is that this appeal fails and must be dismissed but as there is no appearance on behalf of the respondent there will be no order for costs.