Rai Harendra Nath Choudhury vs Naba Krishna Roy Choudhuri

Das Gupta, J.—In execution of a certificate for arrears of rent and cesses, a sum of Rs. 3,111-7-0 was realised from Rai Dhirendra Nath Choudhuri, predecessor of some of the Appellants, and Rai Harendra Nath Choudhuri, in Certificate Case No. 12-P.W. of 1941-42 of the Alipore Collectorate. This suit was first instituted by Rai Dhirendra Nath Choudhuri alone with Rai Harendra Nath Choudhuri impleaded as a pro forma Defendant. Later Rai Harendra Nath Choudhuri was transposed to the category of the Plaintiff, and Rai Dhirendra Nath Choudhuri having died his son and widow were substituted in his place. The case of the Plaintiffs is that nothing was payable at all for the rents and cesses alleged to be in arrears-nothing was payable as rent as the tenure with a rent of Rs. 51-9-3 in respect of which rent was claimed had no existence at all and nothing was payable as cess as the Chingrighata Hat for which cess was said to be in arrears was not in the Defendant''s estate, but was within the estate of which Sen Babus were the proprietors. The Plaintiffs asked for a declaration that the tenure did not exist and that no cess of Rs. 357-13-3 was payable by the Plaintiffs to the Defendant and for refund of the amount of Rs. 3.111-7-0 realised in the certificate proceedings.

We, are no longer concerned with the case that there was no tenure for which the rent claimed to be in arrears was said to be payable as the decision of the Court below rejecting this part of the Plaintiffs'' case is not challenged before us at the time of hearing of the appeal. The Court below also rejected the Plaintiffs'' case that they were not liable to pay to the Defendant, the cess of Rs. 357-13-3. As regards this part of the Plaintiffs'' case, the trial court held that the valuation-roll as prepared by the Collector remained in force and that the liability to pay cess on the basis of the valuation-roll remains until the roll has been decided to be ultra vires by a competent court. On appeal the learned District Judge also held the valuation-roll to be binding on the Plaintiffs. He further pointed out that the Plaintiffs had not availed themselves of the provisions in the Cess Act itself against the incorrect entry. He thought further that the Plaintiffs had no reasonable grievance as all that had taken place was that instead of paying to the Sen Babus, which he would have to if the Collector had not made the mistake, he paid the equivalent sum to the Respondents.

As regards this last point which impressed the learned District Judge, I am clearly of opinion that the Court cannot refuse to give the Plaintiffs relief merely because they had not to pay anything more than what they would have to pay, if the Collector had prepared the valuation-roll correctly. If there was no liability to pay to the Respondents, the Plaintiffs are entitled to have that declaration and such other relief that follows from that legal position.

It is necessary therefore to consider first the question whether there was in law any liability of the Plaintiffs to pay cess at the rate of Rs. 357-13-3 for Chingrighata Hat to the Defendant. The Plaintiffs'' case that the Chingrighata Hat is included in the Sen Babus'' estate and not within the Defendant''s estate is not disputed. In preparing the valuation-roll u/s 34 of the Cess Act. however, the Collector mentioned Chingrighata Hat as one of the tenures within the Defendant''s estate. The question is whether this action of the Collector produced the legal consequence that the Plaintiffs are liable to pay cess in respect of these lands to the Defendant.

Section 5 of the Cess Act provides that all immovable property-with certain exceptions with which we are not concerned-shall be liable to the payment of a road cess and a public works cess. Section 6 provides that these cesses shall be assessed on the annual value of lands and the rates at which they shall be levied shall also be determined. Part II of the Cess Act contains the provisions for determining the annual valuation and the rates and also the manner of realisation. As in the case of the first valuation so in all cases of revaluation the valuation-roll has to be prepared by the Collector for each estate. Section 34 provides for the preparation of the valuation roll and Section 35 for the publication thereof. Section 34 is in these words:

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 valuations made by him in accordance with this Act a valuation-roll of each estate within his district and of the tenures therein comprised, noting thereon for each estate the amount of revenue annually payable to Government on which the deduction specified in Section 41 is to be calculated.

We are not concerned here with the second paragraph of Section 34. It is important to note that the valuation-roll has to be prepared for each estate and of the tenures comprised in the estate. Sections 38 and 39 provide for the determination of the rate at which road cess and public works cess will be levied. Before, however, Section 41 is reached there is nothing in the Act providing for the payment by either the holder of the estate or the holder of the tenures of the cess that is assessed. The relevant portion of Section 41 is in these words:

(1) every holder of an estate shall yearly pay to the Collector the entire amount of the road cess and public works cess calculated on the annual value of the lands comprised in such estate, at the rate or rates which may have been determined for such cesses respectively for the year as in this Act provided, less a deduction to be calculated at one-half of the said rates for every rupee of the revenue entered in the valuation-roll of such estate as payable in respect thereof;

(2) every holder of a tenure shall yearly pay to the holder of the estate or tenure within which the land held by him is included the entire amount of the road cess and public works cess calculated on the annual value of the land comprised in his tenure at the rate or rates which may have been determined for such cesses respectively for the year as in this Act provided, less a deduction to be calculated at one-half of the said rates for every rupee of the rent payable by him for such tenure;

There can be obviously no difficulty about the payment which the holder of an estate has to make to the Government. The valuation of the estate is already there shown in the valuation-roll duly prepared and published; the rate has been fixed; as soon as Section 41(2) says therefore that every holder of an estate shall yearly pay to the Collector, the entire amount of the road cess calculated on the annual value of the lands comprised in such estate, at the rate or rates which may have been determined minus certain prescribed deduction, the amount be has to pay is known and the person to whom the payment has to be made is known. The time of payment is provided in. Section 42.

The second Sub-section of Section 41 provides for the recoupment by the holder of the estate-for the whole or part of the cess, he has to pay-from the holders of the tenure within the estate. As was pointed out in the case of Gorachand Barhal v. Mohitkrishna Kundu I.L.R.(1932) Cal. 145, the policy of the Act is to apportion the liabilities of the various parties on the basis of the valuation-roll, and the superior is merely a sort of a conduit-pipe through which the contribution of the inferior ultimately passes to the Government. This is clear from the different provisions as regards payment in Section 41. The consequence of Sub-section (2) of Section 41 is that for each tenure included within an estate, the value being as stated in the valuation-roll prepared u/s 34, the rate being as determined u/s 38, it is a matter of simple arithmatic to ascertain the amount payable, after making the deduction as provided in Section 41(2). The time for payment in this case is provided in Section 42.

What is to happen, however, where in making the valuation-roll the Collector wrongly shows a tenure within Estate A, as being within Estate B? It seems clear to me that in preparing the valuation-roll, the Collector has authority to show in the roll, the valuation of the estate and the valuation of all the tenures within the estate, but no authority in law, to show in a valuation-roll, after the valuation of the estate has been shown the valuation of a tenure outside that estate. The preparation of the valuation-roll in respect of a tenure not within an estate is therefore an act without jurisdiction. The necessary consequence must be that there can be no liability to pay on the basis of the entry in the valuation-roll with respect to such tenure.

Even if, however, it was possible to hold that the preparation of a valuation-roll in respect of a tenure, on the wrong basis that it is included within a particular estate, is an error in the exercise of jurisdiction and not a nullity, it is to be remembered that the liability of the holder of the tenure is only to pay the cess on the valuation as mentioned in the valuation-roll to the holder of the estate within which it actually is. There is no such liability to pay the cess to the holder of the estate, within which, the Collector wrongly mentions it. The act of the Collector in showing within Estate A, the tenure which is actually in Estate B, does not create the legal position of the tenure becoming "included in Estate A" within the meaning of Section 41(2). When this Sub-section says therefore that every holder of a tenure shall yearly pay to the holder of the estate or tenure "within which the land held by him is "included", it means in my opinion that the payment has to be made to the holder of the estate, within which the tenure is in fact included and not the holder of the estate within which it is thought to be included or wrongly shown to be included.

I have, therefore, come to the conclusion that the holder of a tenure has no liability in law to pay cess to the holder of the estate within which it has wrongly been shown to be included and that the Plaintiffs, as the holders of the tenure of Chingrighata Hat which is within the Sen Babus'' estate, had no liability to pay cess to the Defendant within which this estate did not lie. In Harendra Kumar Roy Chowdhury v. The Secretary of State for India I.L.R.(1928) Cal. 1355, Page and Mallik, JJ. held that if at the time when the certificate for arrears was issued there were no arrears, the certificate was ultra vires and all proceedings thereon were null and void and the party injured by such certificate had a right to seek relief in the Civil Court.

There remains for consideration the contention which apparently found favour with the learned District Judge that the Cess Act itself contains provisions for relief against the error now complained of, and no other remedy is open to the Plaintiffs. The provisions which are said to prescribe the mode in which the Plaintiffs ought to have sought his remedy are those contained in Section 101 and 102 of the Cess Act. Section 101 provides:

The Collector may, with the sanction of the Commissioner, delegate all or any of his powers and functions under this Part to be exercised, under the control and supervision of the Collector, by any Deputy Collector, Assistant Collector, Sub-Deputy Collector or other officer of like rank.

Provided that every order passed by such Deputy Collector, Assistant Collector, Sub-Deputy Collector or other officer shall be appealable to the Collector within fifteen days of such order being passed.

It appears that in the present case, the valuation-roll was prepared by the Deputy Collector. It may be presumed that the Collector of the District had delegated his functions u/s 34 to the Deputy Collector. Assuming that the preparation of the valuation-roll was "an order passed by the "Deputy Collector", an appeal lay to the Collector. Clearly, however, the section contemplates an appeal against an order passed under the Act and not against an order which the Deputy Collector is not authorised to do under the Act. An act which the officer is not authorised to do is a nullity and such an act does not require to be negatived by anybody either by a suit or by an appeal. The fact that no appeal was preferred u/s 101 of the Cess Act does not make the act which was without jurisdiction an act with jurisdiction. The fact that no appeal was preferred u/s 101 cannot, therefore, make the valuation-roll binding on the Plaintiffs.

Section 102 of the Act provides that every person who shall deem himself to be aggrieved by any valuation made by a Collector may prefer his objection to the Collector and on such objection being disallowed may appeal to the Commissioner and the decision of the Commissioner shall be final. It is important to notice that Section 102 has nothing to do with the act of including within the valuation-roll of an estate a tenure which is situated within another estate and deals with only the actual question of the valuation made.

In my opinion, the presence of these provisions in the Cess Act do not in any way affect the right of the Plaintiffs to show that they were not legally liable to pay the cess in question.

For the reasons already mentioned, I have come to the conclusion that the Plaintiffs have succeeded in proving that there was no such liability. They are, therefore, entitled to a declaration that they are not liable to pay these cesses to the Defendant. They are also entitled to get a refund of what was actually realised from them on account of cesses in the certificate case. The certificate that was filed appears to have been destroyed. The Appellants have produced before us a copy of the entries in the register of certificates from which we are satisfied that this certificate included the cesses at the rate of Rs. 357-13-3 and also the interest at the rate of 6 1/4 per cent, and must have included the amount of Rs. 1,599-2. The Appellants are, therefore, entitled to a refund of this amount.

We; therefore, allow the appeal in part and set aside that part of the judgment and decree of the Court below which deals with the question of liability for cesses for Chingrighata Hat and the question of refund of the cess that has been paid and order that it be declared that the Plaintiffs are not liable to pay cess at the rate of Rs. 357-13-3 to the Defendant for Chingrighata Hat and that the Defendant do refund to the Plaintiffs a sum of Rs. 1,599-2.

In view of the divided success of the parties, there will be no order as to costs in this Court.

Guha, J.

I agree.