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TMI Blog1934 (12) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... n Section 2(iii) of the Rent Recovery Act of 1865 the wording was slightly different in describing how the rates of rent were to be determined. Where there was no special contract between the landlord and the tenant and when no money assessment has been fixed on the fields, it is there stated that rent is to be paid according to the rates established, or paid, for neighbouring lands of similar description and quality. The Acts of 1871, of 1884 and of 1920 omit the word 'description' and merely mention 'quality'; but it is difficult to see how any argument in favour of the appellant can be founded upon this alteration. 3. The really important point is that in construing the Act of 1920 we are dealing with, an Act in which the words 'landlord' and 'tenant' are defined for purposes of the Act in Section 3 Clauses (9) and (22). The definition of the term 'landlord' is much wider than that in the Madras Estates Land Act. As pointed out by Pandalai, J. in Bhupathi Raju v. Subba Rao I.L.R. (1931) 55 Mad. 646 : 62 M.L.J. 472: The definition of the word 'landholder in the two Acts is entirely different In the Madras 'Estates Land Act the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt introduced by the Act of 1930 is that the annual rent value shall be calculated according to the rates of rent so paid by occupancy ryots for similar lands in the neighbourhood, together with any water rate wich may be payable for the irrigation of the lands so occupied . It is unnecessary to consider whether the interpretation is retrospective or not, because the first part of the section remains unaltered. There are no doubt expressions used by Wallace, J., in Thammiah Naidu v. Attili Musaliah AIR1924Mad818 which support the appellant's contention but, as pointed out by the lower Court, that related to a case of ryoti land and the decision can therefore be supported on other grounds. In fact the learned Judge says: The assessed land rate then still remains to provide the basis on which the tax leviable under this Act shall be calculated and the tax can be calculated legally on nothing else. The tax there had been calculated on a tree tax payable by a licensee and it was held that he was not a tenant within the meaning of Section 73 of Madras Act V of. 1884 so as to be liable to his licensor for the land-cess payable by the latter under the Act. 5. One other argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, besides disputing the correctness of the appellant's construction of Section 79 of the Local Boards Act took objection to the maintainability of a civil suit in the matter. It was contended on behalf of the Government that under Section 86 of the Act the decision of the Board of Revenue is final and that in any event the question is not one which can be made the subject of a civil suit. The Court below held that the suit was maintainable but decided against the appellant on the question of the construction of Section 79 of the Local Boards Act. Hence this appeal by the plaintiff. 9. Three grounds were urged on behalf of the Respondent, in support of the objection to the maintainability of the suit; viz., (1) the finality declared by Section 86, Clause (3) of the Local Board's Act (2) the general principle that where statute indicates a particular mode of redress, the jurisdiction of the ordinary Courts is ousted and (3) the prohibition contained in Section 228 of the Local Board's Act (Act V of 1920). Taking these in order, the first is by no means conclusive, as is clear from the decision of the Privy Council in Secretary of State for India v. Srimati Fahamidunni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (see the observations in Valliammal v. The Corporation of Madras (1931) (1912) 38 Mad. 41 : 23 M.L.J. 591; the Board acts only as part of the executive machinery and not as an independent body settling a dispute between the tax-payer and the taxing authority. 11. Before passing on to the third ground, it may also be pointed out that the way in which Section 228 of the Local Board's Act is framed is itself significant. The negative phraseology which the legislature has here adopted as in several other Acts in pari materia, e.g., the District Municipalities Act, the Revenue Recovery Act, is a clear indication that such legislation in this country has proceeded on the footing that the party aggrieved is entitled to seek redress in the Civil Courts, except in so far as the same is barred in clear terms and it is on this basis that numerous decisions of the Indian High Courts have proceeded. 12. With reference to Section 228, the learned Government Pleader contended that the assessment could be questioned in a Civil Court only if the assessing authority has not complied with the formalities prescribed by the statute, but not on the ground that the assessment is excessive. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the Zamindar and a person holding land under him and the question was whether the landholder was entitled to recover the whole amount of cess from the person in occupation or only a half. When the defendant attempted in the course of that suit to raise a dispute as to the amount of cess, the learned Judge observed that the decision of the Board of Revenue in that matter was final. 14. Proceeding now to the merits, the contention in the plaint was that in the case of homefarm landor pannai lands of a landholder, whether in his actual possession or in his constructive possession through his lessees, the annual rent value must, under Section 79(3) of the Local Board's Act, be taken to be the assessment fixed on them or similar ryoti lands in the neighbourhood at the permanent settlement . This contention is open to two obvious objections. There is no reason for going back to the rates fixed at the time of the permanent Settlement. If, as is generally the case, the cist payable to the Zamindar has been increased since the Permanent Settlement, the rates now prevailing must undoubtedly be the basis of calculation. This was apparently the contention urged by the Madura Zam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, he had only the presumption of occupancy rights in his favour; his rates were liable to be increased certainly whenever a new tenant was put in, and even in other cases, by contract between the parties. In these circumstances, there was little reason for placing the rent paid by a tenant of homefarra land in a different legal category from the rent paid by a tenant of other land in a Zamindari. The legislature seems therefore to have adopted a classification based not on legal categories but on the method of culivation; hence the grouping in Section 38 of the Local Funds Act of 1871 was into lands helds by tenants paying rent and lands occupied by the owner himself or by a person paying a favourable rent or no rent. The legal category of the land or the status of the tenant was not then regarded as a material factor. In this view the proper interpretation of Section 79, Clause (3) of the Act of 1920 which merely reproduces the language of the Act of 1871 will be that in the case of all lands held by tenants who pay rents, the rent which they pay must be the basis of calculation, irrespective of the question whether it is ryoti land or private land; and in the case of lands oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As is well known the word 'rent' was used in the early Madras Regulations and Acts to signify even the assessment payable to Government on the land. (See Venkatanarasimha Naidu v. Dandamudi Kotayya I.L.R.(1897) 20 Mad. 299 : 7 M.L.J. 251 and the preamble to Regulation IV of 1822). 17. These considerations lend support to the contention that the rental value of homefarm lands should, for the purpose of Section 79, be calculated not on the actual income or rent but on a hypothetical basis of 'assessment' payable thereon to the Government or to the Zamindar as representing the Government, and in this view, the addition of water rate will be intelligible. It however seems to me too much for the Court to read these considerations into the language of the section when it cannot be said that its words cannot fairly bear the interpretation sought to be put upon them by the respondent. It will be for the legislature to determine how far the scheme of sub-clause (3!) of Section 79 requires modification in view of the existing state of the law under the Estates Land Act. Even the amendment made in 1930 does not seem sufficient to avoid anomalies; because according to it the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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