Raja Raghavaraju Yerramraju (died) and Others vs Revenue Inspector Sugar Firca Venkatapuram, Magur Taluk, and Another

Chandra Reddy, C.J.—This is an appeal against the judgment of Ansari, J. dismissing W. P. No. 66 of 1957 filed by the appellant for quashing the order of the Dy. Tahsildar confirming that of the Revenue Inspector levying a surcharge on the peshkush payable by the appellant.

The appellant is the proprietor of Nagur estate now situated in the East Godavari District. It was formerly in the Chanda District of the then Central Province but subsequently transferred to the Madras Presidency from 1st July 1909, now forms part of the State of Andhra Pradesh. By virtue of the Central Regulation I of 1909, the Madras Estates Land Act, 1908 was made applicants to the appellant''s estate and it is now taken over by the Government under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, (XXVI of 1948). It is the case of the appellant that as a proprietor be used to collect the land revenue on behalf of the Government from the ryots and pay to the Government after keeping a part of the revenue, the payment payable to the Government being known as peishkush which was fixed and settled by agreement with the Government.

While so, pursuant to the power conferred by Andhra Land Revenue (Surcharge) Act, 1956 (II of 1956), the Revenue Inspector, by his order dated 4th April 1957, called upon the appellant to pay a surcharge of Rs. 3,535-3-0 on the Peishkush of Rs. 7,071-9-0 payable by him to the Government.

The appellant carried this matter in appeal to the Dy. Tahsildar without any success.

It is to remove the order of the Revenue inspector as confirmed by the Dy. Tahsildar on certiorari that the jurisdiction of this court under Article 226 of the Constitution was invoked.

Several grounds were taken in the petition questioning the legality of the surcharge, namely, that peishkush was not ''land revenue'' within the sweep of the Act, that any attempt to increase what had been find under the permanent Settlement was beyond the competence of the State legislature, that the tax was outside entries 45, 46, 49 and 60 of list II of the VII schedule to the Constitution and, lastly, that the Provision of Regulation XXV of 1802 (Permanent Settlement Regulation) under which the undertaking not to increase had been given, was a special enactment and was not repealed by Act II of 1956 under which the increase was claimed. The learned Judge negatived all these contentions and dismissed the writ petition. It is this order that is now further appeal.

In this appeal, learned counsel for the appellant has confined himself to ground No. 1 already referred to and raised a fresh objection namely, that since the levy of surcharge amounts to wiping out the rights of the appellant in the property and since no compensation was provided by the Act, it should be struck down as being repugnant to Article 31 of the Constitution.

Before we consider the soundness of these contentions it is useful to refer to the relevant sections of this Act (II of 1956). Section 2 gives the definitions and by sub-section 2 ''land revenue'' is defined as follows:

2(2) : ''land revenue'' means -

a) in the case of an estate (notified under the Madras Estates (Abolition and Conversion, into Ryotwari) Act, 1948 (Madras Act XXVI of 1948)) the land revenue payable u/s 23 of that Act; (b) in the case of an inam on which assessment is leviable u/s 3 of the Andhra Inams (Assessments) Act 1955 (Andhra Act XVII of 1955), the quit rent, Jodi, kattubadi or other amount of a like nature which would have been payable but for the levy of assessment under the said section 3 and (c) in every other case, the public revenue due on land, and includes in all the cases aforesaid, the water cess payable in respect of the land but does not include the land cess payable under sec. 7of the Madras Dt. Boards Act, 1920 (Madras Act, XIV of 1920) and the education tax payable u/s 34 of the Madras Elementary Education Act, 1920 (Madras Act VIII of 1920).

Section 3 is the charging section and enacts that every person, who is liable to pay land revenue to the Government for the fasli year commencing on the 1st July, 1955, shall pay to the Government for the fasli a surcharge on the land revenue payable by him in respect of the land held by him in any revenue firka at the rates given in the section. The authority to determine the amount of surcharge is vested in the Revenue Inspector of the concerned firka and the amount so fixed should be payable in two equal monthly Instalments in the two months following the last month of the kistbandi according to which land revenue was payable. Section 5 provides for appeals. It is not necessary to refer to the other sections of the Act.

It is clear from the scheme of the Act that the intendment of the legislature was to collect surcharge on land revenue in whatever form it was payable to the Government. The first question that falls for decision is whether the payment made by the land-holder of an estate within the meaning of the Madras Estates Land Act is ''land revenue" within the ambit of Secs. 2and 3 of Act II of 1956. It must be mentioned at the outset that the payment payable by a landholder comes within the connotation of land-revenue u/s 2(2). In view of this definition it is difficult to postulate that peshkush payable by a land holder falls outside the purview of the Act. Even otherwise, we do not think that this poses a difficult question.

The very pronouncement of the Privy Council in Surya Prasada Row v. Secry. of State, I. L. R. 40 Mad 886, at p. 896 : (AIR 1917 PC 42 at p. 45) called in aid by the learned counsel for the appellant furnishes an answer to this contention. The following observations of Lord Parker are apposite :

Now the Permanent land settlement in the Madras Presidency (as in the Presidency of Bengal) proceeded on the footing that whatever may have been the interest of the Zamindars and other land-holders prior to the British occupation, the Government would grant to them and their heirs a permanent property in the land for all time to come and would fix forever a moderate assessment of public revenue on such land and the amount of which should never be liable to be increased under any circumstances..... The Government therefore come under an obligation not to raise the jama or as it is sometimes called ''the peshkush'' fixed at the permanent settlement in respect of the land then granted. Under these circumstances, the Government could not impose a cess for the use of the water, the right to use which was appurtenant to the land in respect of which the jama was paid, without in fact, if not in name, increasing the amount of such jama and thus committing a breach of the obligation undertaken at the time of the permanent settlement.

It is seen that Peshkush is variously described as ''assessment'', ''public revenue'' or ''jama''. If it is similar to ''jama'' there can be little doubt that it would amount to land revenue within the scope of Act II of 1956. Further it is stated that permanent property in the lands was granted to Zamindars and other land-holders on payment of moderate assessment of public revenue. It is this payment that is known as peishkush.

Our opinion that it is land-revenue is also strengthened by the provisions of the Madras Revenue Recovery Act (II of 1864). u/s 1 of this term ''land-holder'' is defined to include all persons holding sanads, Istlmar and persons farming the land revenue under the State. Section 6 also recites that if the defaulters hold under a sanad Istimrar, the mode of recovering the arrear shall be in accordance with the terms of such sanad. The extension of the statute relating to the recovery of the land revenue to payments by the land-holders popularly called Peshkush means that the payment is in the nature of land revenue. Indisputably, the Madras Revenue Recovery Act was applicable to all holders of estates including the appellant.

Apart from all these considerations, the ordinary meaning of the word ''revenue'' is the income of a State''. It is not disputed that peishkush forms part of the revenue of the Government. It Is not also of much doubt that the income is for the Government.

In Ramanatha Ayyar''s Law Lexicon, peshkush is defined as :

Every sum annually payable to Government by the proprietor of any estate or tenure in respect thereof sod every sum payable to Government in respect of takkavi, or of any money advanced by Government to proprietors of law for making or repairing embankments, reservoirs or water-courses, or other improvements on the land held by them.

In this connection, reference is made to the meaning of the word ''revenue'' in the Bengal Act 7 of 1868. Reliance is also placed on Buksh Ilahi v. Durlay Chandra Kar, 16 Cal. W. N. 842 (PC). It is, therefore difficult to contest the position that peshkush is land revenue within the meaning of Act 11 of 1956. It follows that the levy of surcharge was properly made and the appellant could not make a grievance of it. In this connection, we may refer to the very allegation in the affidavit filed in support of the writ petition in which the appellant describes what he pays to the Government as land revenue. The affidavit itself proceeds or the assumption that peshkush is land revenue.

The next contention presented by Sri Satyanarayana is that as a result of the appellant being required to pay an additional sum of Rs. 3,500 and odd the rights which he possessed in the property are extinguished and, consequently, the provisions of Article 31 of the Constitution are attracted. The argument of Sri Satyanarayana is that if he has to pay the sum demanded, there could be nothing left to him out of the revenue to be collected by him and this would amount to wiping out his rights in the property. In other words, his argument is that this levy is very burdensome and, consequently, the provision of law which permits the levy of such tax should be held to be unconstitutional. It is hardly necessary to say that the point whether a particular tax is burdensome and whether it would cause hardship to the tax-payer cannot be decided by courts, if the taxing statute is constitutional and its legality cannot be questioned. We cannot, therefore, give effect to that branch of the argument of Sri Satyanarayana.

We shall then consider whether the statute in question is in any way governed by Article 31 of the Constitution. We are not persuaded that this article is applicable to this case because the property of the appellant is not sought to be acquired. The mere enhancement of land revenue does not amount to acquisition of property nor could it be contended that the rights of the appellant in the property are destroyed or that he is prevented from enjoying the property. He is at liberty to enjoy the property and to exercise his rights therein and they are not in any way affected. Merely because by reason of levy of surcharge he cannot enjoy as much income from the lands as before, it could not be postulated that he is deprived of his rights in the property or in the enjoyment thereof.

That apart, Article 31(5)(b) of the Constitution furnishes an answer to this argument. It reads :

Nothing in clause (2) shall affect.......... (b) the provisions of any law which the State may hereafter make -

for the purpose of imposing or levying any tax or penalty.

In view of this provision, no complaint can be made that the levy of tax would amount to acquisition of the property. It follows that this argument is unsubstantial and has to be repelled.

No other point is raised before us.

In the result, the order of our learned brother is affirmed and the appeal is dismissed with costs. Advocate''s fees Rs. 100/- C. M. P. No. 7192 to 7294 of 1960: Ordered.