The Secretary of State for India in Council vs C.N. Narayana Chettiar through his Authorised Agent S. Sesha Aiyangar

Abdur Rahim, J.—This case involves the interpretation of some of the provisions of Act V of 1884, that is, the Madras Local Boards Act.

The Local Board levied certain road and railway cesses on the plaintiff''s land for faslis 1323 to 1325. These cesses were duly paid by the plaintiff.

It was discovered afterwards, that is, sometime before December 1916 that what had been realised for faslis 1323 to 1325 was not the full

assessment for which the land was liable and that by some mistake, apparently of the karnam, the entire occupied area had not been taken into

account. Therefore the President of the District Board determined to realise the balance and under penal processes enforced under the Act of

1884, the money demanded was actually paid by the plaintiff, and he now seeks to recover it back. Both the lower courts have decided in favour

of the plaintiff and given him a decree on the ground that under the Act no assessment can be levied for any fasli prior to the date when the

assessment is actually made or notification is issued as required by the Act. It is not necessary to consider that question for it has been brought to

our notice that no notification at all was issued as required by the Act u/s 73. It is only when a notification is issued under that section by the

collector or by any other officer empowerd in that behalf fixing the date or dates from which the cesses should be paid, and a default in payment on

the days mentioned is made that steps could be taken u/s 76 to realise that amount by enforcement of the summary procedure, applicable to the

realization of the land revenue. Section 76 is in these words. "" When any land holder shall, on the date fixed by the Collector u/s 73, have failed to

pay either in whole or in part, the tax due by him in respect of lands held by him as aforesaid, the said tax. or such part of it as remains unpaid shall

be recovered in the same manner as if it were an arrear of revenue under Madras Act 11 of 1884."" The condition precedent therefore to the

application of the provisions of Section 76 is the issuing of a notification in accordance with Section 73, fixing the dates on which the payment is to

be made. There can be no doubt in this case that u/s 60 a general notification was issued making occupied lands in the village liable to these cesses,

and therefore under provisions of that section and Section 74 the plaintiff''s land was liable for the cesses. But the Local Boards Act provides a

summary remedy; and in accordance with the well established canons of interpretation, before such remedy, which is in substitution of the ordinary

remedy by suit can be availed of, the rules of procedure laid down in the Act must be complied with. Here it is on default of payment on a date or

dates duly notified that the summary provisions of the Act will become applicable, and where no date has been notified it follows that there was no

such default as would justify the use of the procedure laid down in Section 76.

The second appeal must therefore be dismissed with costs.

Odgers, J.

I am not at present prepared to subscribe without further argument to the observations of the lower appellate court that the scheme and policy

of the act appear to be against the impositions of assessment after the expiry of the fasli for which it was imposed, or "" that it was not open to

Government in a subsequent fasli to assess road cesses and railway cesses due in respect of a fasli which had already expired. "" It appears to me

that the analogy of the case in Raja Rama Chandra Appa Rao Bahadar Garu v. Secretary of State ILR (1911) Mad. 197 is not only erroneous,

but it is also open to question whether the case referred to is now good law.

This, however, it is not necessary to decide, as the appeal is concluded by the terms of Sections 73 and 76 of the Local Boards Act. It now

appears that the order made by the Collector for additional assessment did not contain the requisite essentials u/s 73. These are "" every landholder

shall pay...the local tax due...on or before such dates and in such instalments as the collector, under the general orders of the Board of Revenue

may by notification declare "". All that was in fact declared by the Collector was that a certain sum should bo charged in addition on the village for

the triennium beginning from fasli 1323, no date or instalment being declared. It is obvious from the wording of Section 73 that the liability to pay

does not arise till this date has been fixed, and it is therefore essential that such date in every case should be fixed Section 76 provides for the

recovery of the tax "" in the same manner as if it were an arrear of revenue"" i.e., by summary procedure, ""when any landholder shall, on the date

fixed by the Collector u/s 73 has failed to pay etc."" As no date was fixed by the Collector u/s 73, it is obvious that the landholder in the case

cannot have failed to pay u/s 76 in manner to make his land liable for distraint under the terms of that section. In this case the landholder after

distraint has paid under protest. It therefore seems to me that the second appeal must fail and I agree that it should be1 dismissed with costs.