The Judgment of the Court was delivered by

Sir S. Subrahmania Ayyar, O.C.J:— The question raised in this case is indeed a very important one, though the amount in dispute is but a trifle—4 annas and 1 pie — being the amount collected by Government from the appellant in connection with his having erected a platform and a shed over a portion of a path by the side of which his house is situated in a village in the Kistna district. The effect of the findings by the lower Courts I take to be that the owners of the houses adjoining the path, inclusive of the appellant, have only a right of way over it, the freehold in the soil being vested in the Government.

The point for determination is, whether the levy of the amount in question as land revenue payable in respect of the site of the platform and the shed, is lawful. A levy of the kind under consideration is known in the language of Revenue Standing Orders as a “prohibitory assessment.” That the practice of making such collections has been allowed to prevail so long is to my mind entirely due to the phraseology adopted in describing it when it was introduced; and it strikingly illustrates how the true nature of a thing can be altogether obscured by a mere name unwittingly given to it and allowed to pass current without scrutiny.

The term “assessment” in the sense material to the present discussion means “the setting, fixing or charging a certain sum upon, as a tax.” At first sight, therefore, the phrase “prohibitory assessment” when applied to an impost by Government with respect to land strongly suggests the nation that such imposition is in the due exercise of the prerogative possessed in this country by the Crown, viz., that of exacting from a subject holding arable land the Crown's proper share of the produce thereof or the equivalent of such produce, which is the modern land revenue. When, however, the matter comes to be examined the erroneous character of this suggestion becomes apparent.

Now, it is indisputable that the prerogative or right referred to rests entirely on the assumption that the subject on whom the demand is to be made is, as between the Crown and himself, a lawful holder of the land, having a substantial and well marked description of interest in it by virtue of which alone he becomes liable to the tax. In support of this statement it is no longer necessary to refer to authorities other than the provisions of two statutes which contain the whole law bearing on the subject, so far as land outside the town of Madras is concerned, viz., the Revenue Recovery Act (Madras) Act II of 1864 and Madras Regulation XXVI of 1802.

Of the former, sections 1, 2, 3, 26 and 42 are alone material. The person who has to pay the land tax or revenue is referred to in the enactment as a “landholder” and section 1 explains the term as comprising “all persons holding under a Sannad-i-Milkeut istimrar, all other zamindars, shrotriemdars, jagirdars, inamdars, and all persons forming the land revenue under Government; all holders of land under ??? settlements or in any way subject to payment of revanue direct to Government.” Section 2 provides that “the land, the buildings upon it and its products shall be regarded as the security of the public revenue”; and the next section speaks of the land in respect of which the revenue is due as “his” (the landholder's) land. Section 26, which authorizes attachment and sale of the land on account of arrears of revenue, uses similar language and describes it as the “defaulter's” land. Lastly, section 42 provides that out of the proceeds of such a sale any balance remaining after the discharge of the arrears, shall be paid over to the defaulter or on his account.

As to Regulation XXVI of 1802, it entitles every landholder to have his name registered in the public registers directed by the Regulation to he kept of landed property paying revenue to Government and of transfers thereof from one proprietor to another; the effect of such registry, with reference to the Revenue Recovery Act being, on the one hand to secure to the proprietor the right of insisting on the observance in regard to him of the formalities to he attended to by the authorities engaged in the collection of the public revenue, and on the other, to entail on him certain responsibilities in respect of the revenue.

These various provisions show beyond the possibility of a doubt, that the land in respect of which land revenue is exigible is vested in some person or persons other than the Crown; and that the Crown possesses nothing more than a charge (though a first charge) in respect of the revenue due to it upon the interest of such person or persons, realizable by sale thereof. They absolutely preclude the supposition that any Crown demand is recoverable as land revenue, unless it be something due from one who is a landholder as defined by the Act.

It may not perhaps be superfluous to point out that in the actual exercise of the prerogative of the Crown above referred to, the Crown is not supposed to proceed without any regard to definite and well-established principles; for neither in olden times nor now, has the Crown been held entitled to more than a fixed share of the produce—be it the theoretical one-sixth of the Hindu writings or the half-nett again and again proclaimed by the present Government as the share it takes or some other; section 58 of the Revenue Recovery Act having been enacted in order to save the Crown from endless litigation in Courts to which but for such a provision it would be exposed, having regard to the intricate details necessarily incident to a system of assessment, involving in theory at least the ascertainment of the produce of every acre of land in the country and the commutation of the Crown's share thereof with reference to market prices for a definite period such as the usual thirty years for which settlement money rates are fixed.

Such being the fundamental principles governing the assessment and collection of the land revenue, it will be plain that what is called prohibitory assessment rests on grounds diametrically and totally opposed to those principles. In the first place this kind of assessment is professedly imposed only in cases where the land is not lawfully occupied by the party assessed; and it is to compel the immediate abandonment of such occupation that the assessment is made prohibitive. In other words it is imposed not because the party assessed is a landholder, but because he is not. In the next place, the assessment is not with reference to the recognised half-nett principle applied in the case of a landholder, but avowedly in disregard thereof, it being often a hundredfold, for the obvious reason that the party has by his own wrong disentitled himself to invoke the application of that principle to his case.

In short, the levy is no assessment at all in the proper sense of the term, but a penalty and a fine under the misnomer of land revenue, and levied under such a guise by putting in force legislative provisions absolutely inapplicable to the collection of such a demand. The truth of this view can be easily realized if the matter be tested with reference to the cardinal principle that land revenue forms a charge on the land. To apply this principle to cases of prohibitory assessment must lead to the manifest absurdity of one's own land becoming charged with a debt due to himself. And a sale of the land can confer nothing on the purchaser as, ex hypothesi, the person assessed possesses no interest in the property. The learned Government Pleader stated that land, in respect of which such assessment is imposed, is never brought to sale, the demand invariably being enforced by proceeding against the person of the party assessed or his property. This is virtually as clear an admission as can be on the part of the revenue authorities of the invalidity of the demand.

It only remains to observe that the decision of the question can in no way be affected either by the circumstance on which the learned Government Pleader laid so much stress, viz., that the system of prohibitory assessment has on the whole operated effectually to check encroachments on land which public interests require should remain unoccupied; or by the consideration, urged not without foundation, on behalf of the appellant, that the system, apart from its invalidity, is often worked in a way never contemplated by its inventors and, not infrequently, is made use of by low paid village and other officials for purposes of exaction. If the remedies available under the law as it stands, with reference to encroachments on the property of the Government or the public be inadequate, that is a matter for the Legislature and not for the Courts to deal with.

Turning now to the facts of the present case, it is manifest that the appellant possessed no interest in the land such as would constitute him a landholder within the meaning of the Revenue Recovery Act, for his right over the path was merely that of passage and the erection by him of the platform and the shed was purely a wrongful act and a trespass.

Consequently the impost in question was not land revenue and the demand therefor as if it were such revenue was altogether unauthorised.

I would therefore allow the second appeal in so far as the claim to the refund of 4 annas and 1 pie is concerned and amend decrees of the lower Courts by directing payment to the plaintiff by the defendant of the said amount but without costs.

Boddam, J.:— This action was brought to have the plaintiff right declared to a certain piece of land and to recover 4 annas and 1 pie collected from the plaintiff by the Government as assessment for occupying the said land.

The plaintiff built a pial and shed to his house upon land which was part of a public road and the Government thereupon assessed him 4 annas and 1 pie for occupying the same and gave him notice to remove his pial and shed. They also informed him that in future they would charge enhanced cist.

In his action the plaintiff claimed that the land upon which he had built his pial was his own land, but it has been found that the site of the pial is part of a public road.

Both the lower Courts dismissed the plaintiff's suit and so far as the claim for a declaration that the land was the plaintiff's land their decree is right. The only question for our determination is whether the Government have any right to assess the defendant as an occupier of part of a public road.

The assessment of the plaintiff is said to be a penal assessment, but that is immaterial as Civil Courts are prohibited from going into the question of the amount of an assessment and can only deal with the general question of the liability to assessment. Penal assessment as such is unknown to the law, and the only rights the Government have, to impose assessment are under tatute or by virtue of the prerogative of the Crown.

The statutory right of Government to assess for revenue depends upon Act II of 1864 (Madras).

That Act, after defining the word “landholder” as “all persons holding under a Sannad-i-Milkeut Istimrar, all other zamindars, shrotriemdars, jagirdars, inamdars and all persons farming the land revenue under Government, all holders of land under ryotwar settlements or in any way subject to the payment of revenue direct to Government” enacts that every “landholder” shall pay the revenue due upon his land and that the land and buildings upon it and its products shall be regarded as the security of the public revenue. It gives power to recover, arrears by distraint and sale of the defaulter's moveable and immoveable property and on a sale all lands purchased are free of all encumbrances.

It is clear that the plaintiff was not a landholder within this Act. He was improperly in possession of part of the surface of a public road and the Government had no right to impose any assessment upon him under this Act for such occupation.

The only other right which the Government have to assess land is the prerogative of the Crown to take their share of the produce of the land occupied under any such right as can give a saleable interest to the occupier in the land and such as will enable him to be registered under Regulation XXVI of 1802. This prerogative cannot, however, justify the Government in assessing a person in the position of the plaintiff. The plaintiff in derogation of the rights of the public to have the use of the whole surface of the road for passing and re-passing has monopolised a portion of the surface to the exclusion of the public. He is a mere trespasser. His act is an injury to the public and his erection is a nuisance. He is not an occupier with any present of prospective saleable interest in the land, and the fact that the freehold is in the Government can give them no right to interfere with the right of the public to the surface of the road so as to entitle them to raise revenue from one who obstructs that right or to any way recognize him otherwise than as a wrong doer and a nuisance. The acquisition of a right of way in the public presupposes that the right to the whole surface of the road is vested either by prescription or grant in the public free of any assessment for the use or occupation thereof as such so long as it exist as a public road and the fact that the freehold of the land is in the Government can only give them the right to deal with so much of the land as is not required by the public for the purposes of a road. It certainly cannot give the Government a right to derogate from its own grant or to limit the rights of the public by assessing a person wrongfully occupying the surface of the land or otherwise recognising the illegal occupation of a portion of the surface of the road to the curtailment of the right of the public to pass and re-pass over the whole of the surface thereof. So far therefore as the claim for 4 annas and 1 pie the plaintiff is entitled to a decree and to that extent, but to that extent alone, the decree of the Court below is wrong and should be reversed.

As, however, the plaintiff's suit was based upon his right to the land alone and the issues raised were practically confined to this question, I should allow no costs to the plaintiff.

Bhashyam Ayyangar, J.:— The case has been argued on both sides on the footing that the lane in question is according to the concurrent findings of the Court below, a highway or “public street” as defined by section 3, clauses ix and x of Act V of 1884 — corresponding to section 3, clause xxiii — substituting “road” for “street” — of the Act as amended by Act VI of 1900 — which under section 49 of that Act vested in the District Board of Kistna. The question for decision is whether it was legally competent for the Collector to levy from the plaintiff a “penal assessment” for this encroachment on the street by erecting two pials and a pandal. The penal assessment of Rs. 0-4-1 was levied and collected on the 13th April 1898 as if the same were an arrear of revenue due on the land encroached upon, and this action has been brought to recover the amount as having been illegally levied and collected (see Narayanasami Reddi…(Defendant) v. Osuru Reddi…(Plaintiff) .* (1).

The lane in question is apparently a portion of the “Gramanattam” or “village-site” and presumably the freehold in the soil is in the Government; and if, as was assumed during the argument, the lane or street had continued to vest in the District Board in 1898 — when the penal assessment was imposed — then according to the decision in Sundaram Ayyar v. The Municipal Council of Madura (2), the street, quâ-street, i.e, the surface and so much of the air space above and so much of the soil below the surface as is reasonably necessary to enable the District Board adequately to maintain and manage the street as a street, was vested in and belonged to the District Board. In Sundaram Ayyar v. The Municipal Council of Madura , the legal effect of the statutory vesting of a street in a municipality [by Act (Madras) IV of 1884 as amended by Act III of 1897] was considered and the conclusion arrived at; on a review of various English and some Indian decisions, was that such vesting did not transfer to the municipality the ownership in the site or soil over which the street exists. This conclusion is fortified by the recent decision of the Court of Appeal in Finchley Electric Light Company v. Finchley Urban District Council in which, after a review of all the English decisions, Collins, M.R, stated: “The conclusion to he derived from the authorities seems to me to he this; all the stratum of air above the surface, and all the stratum of soil below the surface which in any reasonable sense can be required for the purposes of the street as street, vest in and belong to the local authority” (at page 441).

The assumption, however, on which the argument proceeded, viz., that in 1898, the lane in question continued to vest in the District Board of Kistna, seems to be open to doubt. The proviso to section 49 of Act V of 1884 empowers the Governor in Council from time to time (by notification) to exclude any road or street from the operation of the Act. Though the wording of this proviso is somewhat inartistic and not sufficiently precise to give the notification the effect of divesting the District Board of roads or streets already vested in it under the Act, yet there can be little doubt that such was the intention of the Legislature and the proviso should be so construed. On reference to the list of ‘Local Rules and Orders’ I find that a notification (L. and M. No. 503, dated the 21st July 1896,—Fort St. George Gazette, 1896, Part. I-A, p. 182) has been issued by the Local Government excluding from the operation of the Act all streets and roads then existing in the District of Kistna other than those specified therein, and I have little doubt that the lane in question is not among those thus specified, though there is nothing on the record to show what the name of the lane in question is if it at all has any name. If so, it must he taken that in 1898, when the penal assessment was levied, the lane or street did not continue to be vested in the District Board.

In the view I take of the case, it is however immaterial whether or not at the time in question the lane vested in the District Board of Kistna, nor is it even material whether it was in reality a “street” in the sense of being a highway. Neither the Settlement Register for the village nor the Ayacut or Pymash Register has been produced in the case, which would show whether or not the lane in question has been excluded as “road” (or “Bhatai Poramboke”); and I am not sure that the finding of the Courts below that the lane in question is a “public lane” is correct. A street in a “Gramanattam” between two rows of houses is not necessarily a highway and it may merely be—as it generally is in rural tracts—land belonging to Government, over which however there is a right of way to the houses or buildings on either side. Assuming, as found by the Courts below, that the freehold in the soil of the lane belongs to Government, the lane is either a highway—whether or not it was in 1898 vested in the District Board of Kistna—or land over which there was merely a right of way to the houses on either side. If it is a highway,—though not vested in the District Board, any obstruction or encroachment may be dealt with under the provisions of Chapter X of the Code of Criminal Procedure; if it is a highway vested in the District Board it will he competent to the District Board, under sections 98, 98A and 98B of Act V of 1884 (as amended by Act VI of 1900), to take measures for the removal of encroachments thereon. But whether it is a highway or merely Crown land over which there is a right of way in favour of the inhabitants of the street, it is in the very nature of things land exempted from assessment; and any person encroaching thereon is a trespasser (civil) and in no sense a “landholder” either within the meaning of Act II of 1864 or otherwise. The Standing Orders of the Board of Revenue under which a “penal charge” or “prohibitory assessment” is imposed on and levied from such a trespasser expressly declare that the amount imposed should “be sufficiently heavy to compel the immediate surrender of the land” encroached upon and this amount is increased from year to year till such surrender. This practice though one of long standing, has no legal origin, and it is impossible to uphold its legality. It is in truth and fact what it candidly purports to be, viz., an effective mode of ejecting supposed trespassers, not in due course of law but by imposing a crushing fine and realizing the same summarily under Act II of 1864, as if it were land revenue due to Government by a not holding assessed land. The custom is also unreasonable as it will equally compel a person who is in or has taken possession of his own land and is not really a trespasser—though supposed to be such by the village or other Revenue authorities—to relinquish or vacate the land rather than pay a crushing assessment, which, if paid for some years, will even exceed the full value of the land.

It is assumed and argued that such nation of Revenue Officers cannot be questioned in Civil Courts, which by section 58 of Act II of 1864, are prohibited from taking into consideration or deciding any question as to the rate of land revenue payable to Government or as to the amount of assessment to be fixed or to be hereafter fixed on the portions of a divided estate. Civil Courts do have full jurisdiction to decide whether or not the land or person is at all under liability to be assessed to land revenue (see Sri Uppu Lakshmi Bhayamma Garu v. Purvis , Secretary of State for India in Council v. Ram Ugrah Singh and Government, of Bombay v. Sundarji Savram (3). If such liability does exist, the rate or amount of assessment fixed by Government cannot be questioned or revised by a Civil Court.

The right of Government to assess land to land revenue and to vary such assessment from time to time is not a right created or conferred by any statute, hut, as stated in my judgment in Bell v. Municipal Commissioners for the City of Madras (4) is a prerogative of the Crown according to the ancient, and common law of India. The prerogative right consists in this, that the Grown can by an executive act determine and fix the “Rajabhagam” or King's share in the produce of land, and vary such share from time to time. This necessarily implies and presupposes that the occupant of the land has an interest in the land and is entitled to the occupant's or ryot's share of the produce as distinguished from the King's share. The same idea is often expressed in the words that the Crown is entitled to the melvaram in the land and the ryot to the kudivaram. It therefore necessarily follows that the Crown cannot impose land revenue upon lands in which according to its own case, the person in occupancy has no title or interest or kudivaram right. That such is the nature and extent of the prerogative right of the Crown is fully borne out by Regulation XXVI of 1802 and the provisions of (Madras) Act II of 1864. The definition of the term “landholder” in section 1 of the Act (II of 1864) would be inapplicable to persons in possession of land merely as trespassers and to cases in which the land is not subject to the payment of revenue to Government Section 2, which declares that the land, the buildings upon it and its products shall be regarded as the security for payment of the public revenue, necessarily implies that the occupant of the land who has to pay the revenue has a right in the land and its products. Section 3 imposes upon the landholder the obligation to pay the revenue due upon the land and section 42—which provides for the sale of the defaulting ryot's land free of incumbrauces created by him and for payment to him of the balance of the sale-proceeds after deducting the arrears of revenue—clearly shows that he has a Substantial interest in the land.

The learned Pleader for the Crown says that when penal assessment is imposed, the land encroached upon is not brought or sale, but that the moveable and immoveable properties of the person on whom the penal or prohibitive assessment is imposed are distrained and brought to sale under the Revenue Recovery Act. This is a virtual admission that the so-called “prohibitive assessment” is not really revenue assessed upon the land but a fine imposed on and levied from the trespasser by the machinery of the Revenue Recovery Act. Under section 52 of Act II of 1864, all arrears of revenue due to Government—besides land revenue — and advances made by the Government for cultivation or other purposes connected with the revenue and all fees or dues payable to or on behalf of village servants employed in revenue or police duties and all cesses lawfully imposed upon land may be recovered under the Act in the same manner as arrears of land revenue. But the liability to pay these dues must be legally established. If, as already stated, the penal charge or prohibitory assessment cannot be legally regarded as the King's share of the produce or land revenue, much less can it be regarded as coming under any of the heads of dues mentioned in section 62 which can be collected in the same way as arrears of land revenue.

It is unnecessary to refer to other legal objections to the imposition of a penal charge of prohibitory assessment on trespassers in the various cases mentioned in the Standing Orders of the Board of Revenue as I consider it sufficient to base my conclusion on the following broad grounds:—

First, that highways and other poramboke lands set apart for public or communal purposes are not liable to he assessed to land revenue so long, at any rate, as they continue such and have not been lawfully transferred to the head of “Ayan” and thus incorporated with lands to be cultivated and assessed to public revenue;

Secondly, that a person encroaching upon highways or poramboke lands set apart for public purposes can in no sense be regarded as a “landholder” or ryot in respect of the land encroached upon;

Thirdly, that in the case of all lands, whether poramboke or Ayan, any demand which on behalf of the Crown may be made on the occupant thereof with the avowed object of compelling him to surrender or vacate the land is not the imposition of land revenue and the machinery provided by Act II of 1864 for the realization of arrears of revenue cannot be resorted to for enforcing such demand by Revenue officers choosing to give it the name of “assessment” (penal or prohibitory) and crediting it to the head of land revenue in the public accounts; and

Fourthly, that the immemorial and common law prerogative of the Crown in India is only to the Rajabhagam or King's share in the produce of the land and the land revenue or assessment now levied on land presents the King's share in the produce and the Courts have no jurisdiction to question the rate or share that the executive Government may fix at the periodical revision of assessments but ??? share of the produce—however high the share or rate may be in relation to the total produce—cannot exceed the produce. An assessment, therefore, which is prohibitive and manifestly in excess of what the land may produce and is professedly out of all proportion to such produce is clearly ultra vires of Government and such action of the executive is not exempted from the jurisdiction of the Civil Courts.

It is significant that in section 58 the word “rate” is used in the first part of the section and not “amount” which is used in latter part of the section.

It is unnecessary to consider here the decision of this Court in Muthayya Chetti v. Secretary of State for India cited on behalf of the Crown in which this Court upheld the legality of a levy of penal assessment upon some lands situate in the Town of Madras, which was found in the case to be the property of the Crown and at its absolute disposal. That decision is based ??? upon the construction of the two Acts XII of 1851 and VI of 1867 relating to the Town of Madras and it is inapplicable to the present case as the said Acts do not apply to it and the land in question is not land at the disposal of Government, but is either a public road or at any rate land subject to a right of way in favour of the inhabitants of the street.

It is however strongly urged on behalf of the Government that the imposition of a penal assessment is necessary and justifiable in the interests of the State and of the public as the most effective mode of checking encroachments on Crown lands, highways and poramboke lands set apart for public or communal purposes. As against this it is pointed out that this practice is highly oppressive and liable to considerable abuse—especially at the hands of village officers and other subordinate revenue officials; and attention is drawn to the facts of the case of Sappani Asari v. Collector of Coimbatore in which it appears a prohibitory assessment of Rs. 100 a year was imposed on a village site of 4 cents with the object of ejecting the occupant therefrom, notwithstanding that—as was eventually decided in Sappant Asari v. Collector of Coinbatore —the occupant had a valid grant of the same under the Darkhast rules and had erected a pucca building on the site relying on such grant.

Such considerations pro and con can carry no weight in deciding whether the imposition and levy of prohibitory assessment is or is not legal. But having regard to the importance of the question I think it right to make the following remarks with reference to the considerations that were pressed upon us. If the existing provisions of law contained in the Municipal and Local Boards Acts, the Code of Criminal Procedure, and other enactments, if any, are found inadequate to check the evil complained of, recourse must be had to special legislation for effectually checking enchroachments and obstructions on or wrongful use or alienation of Crown lands and poramboke lands set apart for public or communal purposes both in Government, villages and zamindaris — whether such encroachment, obstruction, wrongful use or alienation be by private individuals—including “landholders” specified in section 3 of Madras Act VIII of 1865 or by Municipal Councils or other local authorities. Any such legislation, if deemed necessary, will of, course proceed on lines consistent with the just and constitutional principles of British legislation. I may add that for the effectual protection of public rights and claims in this country, provision must be made in the Code of Civil Procedure enabling two or more persons, with the previous sanction of a principal Civil Court of original jurisdiction or the Collector of the district to institute a suit for the vindication of such right or claim when infringed, whether by a private individual or by a Municipal Corporation or other local authority or by the Crown. Such provision has been made in the case of Hindu and Muhammad in religious institutions by section 18 of the Religious Endowments Act (XX of 1863) and a similar provision is made by section 539. Civil Procedure Code, in regard to public, religious or charitable trusts.

The law of limitation as regards public rights and claims as distinguished from Crown rights and claims is equally defective Section 17 of Act XIV of 1859 saved from the operation of that Act “any public right, property or claim.” When that Act was repealed by Act IX of 1871, care was taken to fix a period of 60 years in respect of any suit by or on behalf of the Crown, but no section was inserted in the Act corresponding to section 17 of Act XIV of 1859. The present Indian Limitation Act (XV of 1877) is the same in this respect except that by Act XI of 1900, a new article 146A was added prescribing a period of 30 years for a suit by or on behalf of any local authority for possession of any public street or read or any portion thereof of which it has been dispossessed or has discontinued possession, for the reasons mentioned in my judgment in the case of Sundaram Ayyar v. The Municipal Council of Madura it is desirable to raise this period also to 60, years. A fresh article should he added prescribing a like period of 60 years for any suit to establish a public right or claim.

In the result I would allow this second appeal and reversing the decrees of the Courts below decree the plaintiff's claim for the refund of 4 annas and 1 pie but without costs, as the plaintiff has failed to establish the title which he set up to the land covered by the pials and the pandal.