Citation Codes

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Case Number

Appeal No. 819 of 1937

Judges

S.K Ghose
B.K Mukherjea, JJ.

Acts

provisions of the Cess Act of 1880. As Section 6 of the Bengal Sanitary and Drainage Act of 1895
Section 23 of the Bengal Sanitary Drainage Act of 1895.
provisions of the Cess Act, 1880.6. Taking the Section
Section 23 of the Bengal Sanitary Drainage Act, 1895.

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Smart Summary

Judgment Summary — S.K. Ghose, J. (concurring: B.K. Mukherjea, J.)

Factual and Procedural Background

This is a second appeal by some of the defendants in a suit for recovery of drainage cess. The chronology as stated in the opinion is:

15 April 1932: R.S. 94 of 1932 filed by zamindar Rani Harsamukhi in the Munsif's Court at Baruipur against the present defendants; the plaint claimed drainage cess under the Bengal Sanitary Drainage Act, 1895, for a period of four years before suit in respect of certain mouzas in Touji 109 R.S.
The plaint was returned and re-filed in the proper Court — the Subordinate Judge at Alipore.
8 July 1932: The Administrator-General of Bengal was made a co-plaintiff and advanced his own claim for drainage cess for a period of eleven years in respect of two additional mouzas not named in the original plaint.
5 November 1932: The entire claim was decreed ex parte.
The present appellants appealed to the District Judge, who on 18 April 1933 modified the decree by limiting the cess to a period of four years before suit.
The Administrator-General appealed to this Court (Second Appeal No. 1663 of 1933). On 9 January 1936 the Court (Henderson and Nasim Ali, JJ.) remanded the suit for a trial de novo to the Court of first instance, directing that both parties be given an opportunity to show when the drainage cess was actually ascertained.
At the new trial the appellants filed a written statement objecting (for the first time) to: (a) the Administrator-General's claim for the two mouzas not named in the original plaint, and (b) the claim for a period of more than four years.
The Courts below rejected the appellants' contentions. The present appeal is primarily pressed on the ground of limitation — that the plaintiff cannot recover more than four years' cess prior to institution of the suit.

Legal Issues Presented

Whether the plaintiff (zamindar/Administrator-General) is entitled to recover drainage cess for a period exceeding four years prior to the institution of the suit (i.e., whether the decree for eleven years was permissible).
Whether the remand judgment of 9 January 1936 had already decided the limitation question (i.e., whether it established entitlement from the time the cess was ascertained).
Whether the Administrator-General (or plaintiff) could claim cess in respect of mouzas not named in the original plaint (procedural objection raised by the appellants).
Whether, under Section 23 of the Bengal Sanitary Drainage Act, 1895, the landlord's right to recover from subordinate tenure-holders accrues only after the amount payable by those tenure-holders is determined or recorded by the Collector (i.e., whether the landlord's right is dependent on prior ascertainment by an authority).

Arguments of the Parties

Appellants' Arguments

The appellants objected (in their written statement at the retrial) to the Administrator-General's claim in respect of two mouzas that were not named in the original plaint of Rani Harsamukhi.
They also contended that the plaintiff was not entitled to claim drainage cess for a period of more than four years prior to institution of the suit.
Before this Court the appellants' counsel pointed out that the objection regarding the additional mouzas had been made in the written statement but stated he did not wish to press that point; accordingly that objection was not pressed on appeal.

Respondents' Arguments

Mr. Basu, for the respondents, argued that the zamindar (plaintiff) was not in a position to sue for drainage cess payable by the tenure-holders until the amount payable had been recorded by the Collector — i.e., the landlord's right to recover depended on official ascertainment / recording of the amounts payable by individual tenure-holders.
The lower courts took the view (as recited) that the remand judgment of 9 January 1936 effectively decided that plaintiffs were entitled to drainage cess from the time at which it was actually ascertained.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Second Appeal No. 1663 of 1933 — judgment of 9 January 1936 (Henderson and Nasim Ali, JJ.)	This judgment remanded the suit for trial de novo and directed that both parties be given opportunity to show when the drainage cess was actually ascertained.	The Court in the present opinion held that the remand judgment did not decide the question of limitation; it merely directed ascertainment of the time when cess was ascertained. Therefore the remand did not preclude raising the limitation point at retrial.
Case reported at 173 IC 334 — judgment of 9 April 1937 (bench including Jack, J.)	Held that where the amount due by tenure-holders had not been fixed when original assessment was made, that fact did not affect the limitation as regards tenure-holders and a suit could be decreed only for four years up to the date of institution of the suit.	The Court applied the reasoning of this decision (same facts as present case) and concluded that the plaintiff was limited to recovery for four years prior to suit; it followed the view that lack of prior fixation by the Collector does not extend the recoverable period beyond four years.

Court's Reasoning and Analysis

The Court's analysis proceeds in two principal strands: (A) whether the remand of 9 January 1936 decided limitation and (B) statutory interpretation of Section 23 of the Bengal Sanitary Drainage Act, 1895 and its effect on limitation.

Remand judgment — the Court examined the scope of the January 1936 remand and concluded that it "mainly directed that the time at which the drainage cess was actually ascertained should be found" and did not decide any question of limitation. The Court therefore held that the limitation issue remained open for determination at the retrial.
Reliance on a later like case (173 IC 334, 9 April 1937) — the Court observed that the facts in that decision were "exactly the same" as in the present matter: an original assessment was made in 1920 but the amount due by the tenure-holders was not ascertained until the Record of Rights was finally published in 1930; the proprietor sued in 1932 claiming cess from 1920 to 1932; the earlier decision held that the lack of prior fixation by Government/Collector did not affect limitation and limited recovery to four years before suit. The present Court regarded that decision as controlling on the limitation question and concluded there was no reason to reach a different conclusion here.
Statutory interpretation — Section 23 of the Bengal Sanitary Drainage Act, 1895 was pivotal. The Court (and the concurring judge) analyzed the text of Section 23 (quoted in the opinion) and its relationship with other provisions:
- One strand of analysis (S.K. Ghose, J.) notes that Section 23 lays down the method of recovering half the amount paid by the landlord from subordinate tenure-holders "in the same proportion and in the same manner as ... road cess or public works cess" under the Cess Act, 1880.
- The Court contrasted the 1895 Act with the later Act (Act 6 of 1920), which expressly provided (S.19) for Collector determination and entry of amounts recoverable from landlords and tenants; such an express provision is absent in the 1895 Act. From this the Court inferred that the 1895 Act did not make the landlord's right to recover contingent on an official prior determination by the Collector.
- B.K. Mukherjea, J., in concurring reasoning, emphasized that the right to recover under Section 23 accrues when the landlord has paid the amount determined by the Collector as payable by him under Section 22; however, he rejected the submission that recovery from subordinate tenure-holders must await a separate apportionment by the Collector for each tenant. He reasoned that the 1895 Act provided no machinery for apportionment and instead adopted the procedure of the Cess Act, 1880 — thus the proportions between tenure-holders are to be recovered in the same manner as under the Cess Act, not by requiring a prior Collector determination under the 1895 Act.
Synthesis and conclusion — applying the statutory interpretation and the authority of the 9 April 1937 decision, the Court concluded the plaintiff was not entitled to recover drainage cess for eleven years; the appropriate limitation is four years prior to institution of the suit. The Court therefore modified the decree of the lower Appellate Court accordingly.

Holding and Implications

Holding: The Court modified the decree of the lower Appellate Court and held that the plaintiff is entitled to recover drainage cess for a period of four years only prior to the institution of the suit; the decree for eleven years was set aside and re-modified to four years.

Implications and immediate consequences:

The decree is re-modified to limit recovery to four years before suit.
Costs: "Having regard to the circumstances of the case, parties will bear their own costs in this Court." The appellant's (Mr. Deb's client's) legal representative is entitled to costs in proportion to his success in the Courts below.
The Court followed existing case law (specifically the 9 April 1937 decision, 173 IC 334) and statutory construction of Section 23 of the Bengal Sanitary Drainage Act, 1895; the opinion does not purport to lay down a novel principle beyond applying and following that precedent and the statutory text. In short, the decision resolves the dispute between these parties but does not assert a broader new precedent beyond the positions applied from authority mentioned in the opinion.

Source limitation: This summary is derived exclusively from the provided opinion and does not add facts or inferences beyond the text of that opinion.

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Jogendra Krishna Banerji And Others v. Administrator-General, Bengal And Others

S.K Ghose, J.:— This is a second appeal by some of the defendants in a suit for recovery of drainage cess. The following facts are relevant to this appeal. R.S 94 of 1932 was filed by a zamindar named Rani Harsamukhi in the Court of the Munsif at Baruipur on 15th April 1932 against the present defendants making the Administrator-General of Bengal as executor to a certain estate of the pro forma defendant. The claim was for cess under the Bengal Sanitary Drainage Act of 1895 for a period of four years before suit in respect of certain Mouzas in Touji 109 R.S This plaint was returned and subsequently filed before the proper Court, namely the Court of the Subordinate Judge, Alipore. On 8th July 1932 the Administrator-General of Bengal was made a co-plaintiff on his application. He then put forward his own claim, namely cess for a period of 11 years in respect of two other mouzas not mentioned in the original plaint of Harshamukhi. The entire claim was decreed ex parte on 5th November 1932. The present appellant then appealed to the District Judge. The District Judge modified the decree of the first Court by limiting the cess to a period of four years before suit. This judgment was passed on 18th April 1933. The Administrator-General appealed to this Court being Second Appeal No. 1663 of 1933. This appeal was heard by Henderson and Nasim Ali, JJ., who passed judgment on 9th January 1936 remanding the suit for trial de novo to the Court of first instance after giving both parties opportunity of showing that the drainage cess was actually ascertained. At the new trial the present appellants for the first time filed written statement objecting to the claim of the Administrator-General for cess in respect of two mouzas not named in the original plaint of Harsamukhi and also objecting to the claim for a period of more than four years.

2. The Courts below have decided against the present appellants. As regards the objection regarding the mouzas not named in the original plaint, the learned District Judge has held that the appellants are not entitled to raise this question as it was not raised before. As regards the point of limitation, the Courts below have taken the view that by the remand judgment passed by this Court on 9th January 1936, there was a decision to the effect that the plaintiffs were entitled to the drainage cess from the time at which it was actually ascertained. As regards the objection to the claim of cess in respect of mouzas not named in the original plaint of Harsamukhi the learned advocate for the appellant in this Court has pointed out that the objection was made in the written statement filed by the appellants. At the same time, he has stated that he does not wish to press this point. Therefore the decision of the lower Appellate Court on this point must be accepted. The present appeal has been pressed on the ground of limitation and it is contended that the plaintiff is not entitled to claim drainage cess for a period of more than four years. As mentioned already, the Court below took the view that the matter was concluded by the remand judgment of 9th January 1936, but it seems to us that this was not the effect of that judgment. That judgment mainly directed that the time at which the drainage cess was actually ascertained should be found, but it did not decide any question of limitation. No doubt, it was possible for the parties to raise the question of limitation expressly and this Court might then have taken a view which would have made the remand unnecessary. The fact remains that the question of limitation was not decided.

3. Since this judgment, there has been another judgment passed by a Bench of this Court on 9th April 1937: see the case in 173 IC 334.1 In that case the facts are exactly the same as in this case. The amount due by the tenure-holders in respect of drainage cess was not ascertained when the original assessment was made in 1920. The Record of Rights was finally published in 1930 and therein the amount payable by the tenure-holders was recorded. The suit by the proprietor for the recovery of drainage cess was instituted in 1932 for the recovery of the cess for the period from 28th September 1920 to 14th April 1932. Jack, J. pointed out that although the amount due from the tenure-holders had not been previously settled, this could not affect the question of jurisdiction. As a matter of fact, in 1924, the Administrator-General brought a suit for a declaration that he was not liable to pay drainage cess and this suit ended in a compromise in 1926 when an agreed sum was found to be payable. It was held that the fact that the amount due from the tenure-holders had not been fixed by the Government would not affect the limitation as regards the tenure-holders and the suit could be decreed only for a period of four years up to the date of the institution of the suit. It is contended by Mr. Basu for the respondents that the zamindar was not in a position to sue for drainage cess payable by the tenure-holder until the amount payable had been recorded by the Collector. In the previous suit, Jack, J. pointed out that it was possible for the zamindar to bring a suit against the tenure-holders for the amount which was considered to be due from him. The ratio of calculation is laid down by Section 23 of the Bengal Sanitary Drainage Act, 1895. It is pointed out that the provisions of the drainage scheme as laid down in Ch. 1, Part 2 of that Act show that once a cess valuation has been made it is not specially provided that amount payable by the tenure-holder for drainage cess would be settled by the Collector and by nobody else. In the later Act (Act 6 of 1920) there is a provision, namely S. 19 which lays down that the Collector has to determine the amount recoverable from each landlord or tenant and enter such amount in a detailed statement. Such express provision does not occur in the Act of 1895. In the present case, I see no reason why the same conclusion should not be reached as in the case which was decided by this Court on 9th April 1937 to which I have already referred.

4. I must hold therefore that the Courts below were not right in decreeing cess for a period of 11 years and the plaintiff is entitled to a decree for cess for a period of four years only before suit. The decree of the lower Appellate Court is therefore re-modified accordingly. Having regard to the circumstances of the case, parties will bear their own costs in this Court. The appellant (Mr. Deb's client) will be entitled to his costs in proportion to his success in the Courts below.

5. B.K Mukherjea, J.:— I agree with my learned brother that the view taken by the Courts below is wrong and that the plaintiff is not entitled to recover drainage cess beyond four years from the date of the institution of the suit. The whole controversy centres round the point as to when the plaintiff's right to recover the amount of drainage cess from the tenure-holders under him accrued under Section 23 of the Bengal Sanitary Drainage Act of 1895. The Section, runs as follows:

Any holder of an estate or tenure who shall pay to the Collector any installment of such rate payable under the last preceding Section shall be entitled to recover half the amount of instalment so paid from the holder of a tenure or cultivating raiyat holding lands within the local area under such holder of an estate or tenure in the same proportion and in the same manner as he is entitled to recover road cess or public works cess, payable under the provisions of the Cess Act, 1880.

6. Taking the Section as it is, it seems that the right of the plaintiff to recover the amount stated in the Section from the subordinate tenure-holders accrued at the same time when he paid the amount determined by the Collector as payable by him under Section 22 of the Act. Mr. Basu for the respondents argued that the amount can be recovered by the plaintiff only from those tenure-holders who hold lands within a certain local area and further the proportions in which the various tenure-holders are to pay these amounts have got to be determined by the Collector or certain other local authority and unless that is done, the sum recoverable by the plaintiff cannot be said to be ascertained and no suit can possibly be instituted for recovery of that amount. There is some apparent force in this contention but I think that it was not within the contemplation of the Sanitary Drainage Act of 1895 to make the landlord's right to recover half the amount paid by him from the subordinate tenure-holders dependent on the ascertainment of the dues of the latter by any other authority. The Act itself does not provide for any machinery for apportioning the amount amongst the different tenure-holders, and there is no provision in this Act though undoubtedly there is one in the subsequent Act of 1920, for determining the amount of cess payable by the tenants. It seems to me that the Legislature did not think it proper to make any provision whatsoever for determination or ascertainment of the amount which is payable by the different tenure-holders but allowed the landlord to follow the same provision as is laid down in the Cess Act of 1880. In other words, the proportion in which the different tenure-holders are to pay the amount recoverable from them under S. 23 would be exactly the same as are recoverable from them under the provisions of the Cess Act of 1880. As Section 6 of the Bengal Sanitary and Drainage Act of 1895 shows, where the preliminary scheme is submitted to the Collector for his approval, the Collector before he embarks upon the scheme would prepare a statement showing the valuation for cess purposes of all the land included in the tract affected and it must be taken that both the landlord and the tenants knew perfectly well what the cess payable in respect of the lands under the Cess Act was and what were the different proportions in which the different tenure-holders had to pay the same.

7. For these reasons, I agree with my learned brother that the plaintiff will be entitled ta recover only four years' cesses and no more.

D.S/R.K

8. Decree modified.

Jogendra Krishna Banerji And Others v. Administrator-General, Bengal And Others

Judgment Summary — S.K. Ghose, J. (concurring: B.K. Mukherjea, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jogendra Krishna Banerji And Others v. Administrator-General, Bengal And Others

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