Inderjit Rai vs Bulak Chand and Others

Wort, J.—This appeal arises out of an action to set aside a sale for arrears of revenue. The appeal is by the plaintiff. It is not disputed that the last date of the payment of the revenue of the particular kist in question was 28th March 1933, nor is it disputed that the actual payment made by money order arrived on 1st April; this was the plaintiff''s own case. The money order arrived on 1st April although in fact it was taken out by the plaintiff on 24th March 1933 and should have, in the ordinary course of events, arrived in time. It appears from the evidence which the plaintiff himself adduced in the case that the delay was caused by the post office of origin. Now, it might have been the case of the plaintiff that, having regard to all the circumstances of the case, the Court ought to have assumed that the payment was made in time. But this was not his case; his case in the plaint and throughout in the Courts below had been that the last day of payment was not the 28th March 1933 within the meaning of Section 3 of Act 11 of 1859, but some later date presumably the 1st May. It was on that allegation that the action failed as I have already stated. Two or three points were raised in this case.

One is the objection to the suit by reason of Section 33 of the Act; this is raised by Mr. De who appears on behalf of the defendants respondents. In my judgment however that is not a bar to the suit if in fact there were no arrears of revenue. The view I have taken of Balkishen Das v. Simpson (1898) 25 Cal. 833 is that their Lordships of the Judicial Committee in the opinion expressed by Lord Watson held that in the case of there being no jurisdiction to sell in the sense that there were no arrears of revenue, Section 33 of Act 11 of 1859 would not stand in the way of the plaintiff even although he had not raised the question before the Commissioner. Lord Watson in the course of his judgment in that case made this observation:

The result is that the whole proceedings of the Collector, with a view to the sale of the 5 annas share, were beyond his jurisdiction, and are not entitled to the protection given him by the Act in cases where sale is authorized, although it may be attended with some irregularity or illegality.

The ''illegality'' as I understand the expression used by the learned Law Lord in that case, did not mean an illegality in the sense that there were no arrears of revenue, and therefore the Collector had no jurisdiction to sell. In my judgment therefore so far as Section 33 of the Act is concerned, there is no bar to the plaintiff''s suit. But in the view that I take of the matter that question does not strictly arise. Mr. Sushil Madhab Mullick relies upon the Board''s Touzi Manual, 1923, which purports to be a manual of instructions for the guidance of the establishment engaged in keeping the accounts of the ordinary land revenue and the local cess demands. Had the circumstances been otherwise, the plaintiff could have got great assistance from Rule 30 of those rules (at p. 32 of the Manual). Rule 30 provides inter alia:

If a remittance of land revenue by money order is received in the Treasury after the sunset of kist day (the latest date of payment) a note should similarly be made across the acknowledgment in red ink that the payment is ''too late for kist day'' (the latest date of payment).

In this case the acknowledgment was sent back and received by the plaintiff without this endorsement; and Mr. Sushil Madhab Mullick contends that, as they did not comply with their own rules, there was some form of estoppel. The only estoppel there could possibly be would in my judgment amount to this, that they would be estopped from asserting that the money was not received in time. But as pointed out in the earlier part of my observations, the plaintiff''s own case is that the money was received on 1st April. In those circumstances Mr. Sushil Madhab Mullick relies upon the decision in Bilas Chandra Roy Vs. Rajendra Chandra Das Roy and Another, . Newbould and Ghose JJ. in delivering the judgment of the Court there, came to the conclusion that the presumption would have to be that the money had been received one day before the last date of payment. They then said that apart from that point they would have to hold as a matter of law that the contract had been performed quite apart from the dates, because Government prescribed or sanctioned a certain method of payment and that that method of payment had been adopted by the estate-owner or the zamindar, and therefore as a matter of law, it would have to be held that the payment had been made in time. The learned Judges made this observation:

The question appears to us to depend, not on whether the post-office can be considered the agent of the Collector authorized to give a valid receipt for arrears of revenue, but on whether the payment was made in a manner and at a time prescribed or sanctioned by Government.

References were then made to Illus. (d) of Section 50, Contract Act, 9 of 1872, and to Rule 61, Touzi Manual which prescribes

payment by means of a revenue money order as one of the manners in which a payment of land revenue may be made.

It was held that

this rule must be read subject to the other rules as summarized in the ''instruction for the remittees'' guidance.

Reference was then made to the fifth instruction providing

Remittances of land revenue should be made a sufficient time before the kist day to ensure their reaching the Treasury on or before that day.

The learned Judges then proceeded to say as follows:

We are unable to hold that the condition prevents the plaintiff from establishing that his payment at the post office was a payment in the manner and time prescribed so that it would take effect from the time of payment there.

I have already indicated with great respect to the learned Judges that the observation on this point is a mere obiter having once come to the decision that the payment was in fact made in time, and with equal respect I would disagree with the conclusion that in the circumstances they were entitled to hold as a matter of law that the payment was made at the time that the money order was taken out to the office of origin. The learned Judges appear to consider the rules made in the Tauzi Manual as being a sort of contract between the parties. They do not forget the rule relating to the payment to be made in time.

But if one part of the rules of the Tauzi Manual is taken as a contract the other part of the rules must also be so taken. In no part of the rules could it be said that the Government have agreed that the post office should be the agent for the purpose of receiving payment and it is only in circumstances of that kind that it could be held that the taking out of a money order in the office of origin could be considered a payment to the Collector of the revenue. The difficulties of the plaintiff in this case are largely his own construction. He has asserted that the payment was made on 1st April. Had he left it to an assertion that the payment was made in time and relied upon the estoppel which Mr. Mullick now relies upon, the case might have been different.

But it is impossible in my judgment to hold that the payment was made in time having regard to what in my opinion are the plain facts of this case and the presumptions in law which could be raised from those facts. One of those presumptions is not a presumption that a payment made or a money order taken out at the office of origin is a payment of revenue.

That being so it seems to me that the appeal fails and must be dismissed with costs.

Agarwala J.

I agree.