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TMI Blog1886 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... has been referred to us by the Division Bench. The questions which we have to decide are substantially two: (1) Has a Civil Court jurisdiction to inquire whether the lands in question were assessable under Act IX of 1847 ? (2) If so, were these lands so assessable ? The answer to these questions must depend upon the construction to be placed upon the provisions of Act IX of 1847 ; but in order to-understand that Act it is necessary to examine the earlier legislation. 2. The first enactment which it is necessary to consider is Regulation II of 1819. The preamble to that Regulation states, amongst other things, that it "appears to be necessary in order to obviate all misapprehension on the part of the public officers or of individuals, to declare generally the right of Government to assess all lands which, at the period of the decennial settlement, were not included within the limits of an estate for which a settlement was concluded with the owners, nor being lands for which a distinct settlement may have been made since the above period, nor lands held free of assessment under a valid and legal title and at the same time formally to renounce all claim on the part of Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Collector and the Board were to "contain a distinct statement of the subject-matter of the case, the grounds on which the decision may be given," and other matters. If the Board should "pronounce" against the liability, the decision was final except on proof in a Court of fraud or collusion. In the event of the Board "declaring the lands liable to assessment," the Collector was to inform the party of "the decision of the Board," and then, and not before, he was to proceed "to fix an assessment on the principle of the general regulations on such information as may be procurable." Sections 22 and 23 provided for the suspension of the assessment proceedings, on certain conditions. pending a suit to be at once instituted in a Civil Court, and Section 24 gave a right to sue afterwards within certain limits of time. Section 31 asserts in general terms that "it being left to the Courts of Judicature to decide, on all contested cases, whether lands assessed under the provisions of the Regulation were included at the period of the decennial settlement within the limits of estates for which a settlement has been concluded in perpetui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision having been made with the intention that the decisions of the Collectors and of the Board should be held and considered to be judicial awards, and, that the suits preferred to the ordinary Courts being of the nature of appeals should be speedily disposed of." It goes on to show that speedy decisions bad for various reasons not been secured, and that it was "expedient to appoint Special Commissioners competent to decide finally all cases of the nature above described." Accordingly Section 2 empowered the Governor-General in Council to appoint in any district Special Commissioners for the final determination of all cases investigated by Collectors under Regulation II of 1819 as to the liability of lands to assessment, as well as certain other cases. It provided further, that in any district in which Special Commissioner were appointed, the powers of the ordinary Civil Courts in such cases should be suspended, and no appeal should lie to them from the decisions of Collectors or Boards of Revenue. By a. 5 the proceedings of the Collector were left much the same as under Regulation II of 1819, except that he might proceed to assess as soon as he had himself decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Regulation II of 1819 the finding of the Collector and of the Board of Revenue are spoken of in-differently as "opinions" and as "decisions," and the Board are said to "pronounce against the assessment" or to "declare" the lands liable (Sections 20, 21, 22). Regulation III of 1828 in the preamble says in plain terms that the Legislature had always intended those decisions to be "judicial awards," and the proceedings in the ordinary Courts to question them to be "of the nature of appeals." In this last mentioned Regulation the proceedings are frequently termed "suits," the findings are now called sometimes "decisions," sometimes judgments," and they have the force of decrees. For these reasons I think that both before and after 1828 the Collector and the Board of Revenue, just as much as the ordinary Courts and Special Commissioners, when trying the question of liability to assessment, were not doing an executive act as officers of the revenue, but were acting as Courts of Justice exercising a Special civil jurisdiction conferred upon them by the Regulations. 15. I now come to Act IX of 1847. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of any island as aforesaid, shall be at liberty to contest the same by a regular suit in the Civil Court." Section 9 says that, "except as regards the proprietary rights to islands, no suit or action in any Court of Justice shall lie against the Government, or any of its officers on account of anything done in good faith in the exercise of the powers conferred by this Act." 16. These are the sections which have to be considered, and the broad questions to be decided are, first, whether they have taken away from the Civil Courts all power of inquiring into the liability to assessment of alluvial lands which have been assessed ; and, secondly, whether they have made lands liable to be assessed which were not so before. I think it worthy of observation, in the first place that the Legislature of this country has always acted in these matters upon a clear policy, namely, that questions of title are for the Courts of Justice, questions of assessment for the Revenue Authorities. That principle had, prior to 1847, been acted upon for 50 years in the case of alluvial lands, and it is still applied, so far as I know, in all other cases. The construction contended for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch--and I think there is no doubt rightly held-that this is only a Procedure Act : Budrunnissa Chowdhrain v. Prosunno 1886 Kumar Bose 6 B.L.B. 255. 19. Secondly, it may be said, and has been said, that though this is only a Procedure Act and not intended to make any land subject to assessment which was not so before, yet it does, as a matter of procedure and evidence, make the former survey map conclusive as to the original limits of each permanently-settled estate, and therefore make the comparison of the two maps by the Revenue Officer conclusive on the question of addition to the estate. This view was acted upon in Dewan Ram Jewan Singh v. Collector of Shahabad 14 B L.R. 221 (note) : 18 W.R. 64 Ram Jewan Singh v. Collector of Shahabad 19 W.R. 127.; and Sarat Sundari Debi v. The Secretary of State for India 11C. 784. But this is a very strong effect to attribute to a survey map by ex post facto legislation. And a consideration of Section 7 seems to show that the view cannot be correct; the same words exactly are used with reference to an island chur that on inspection of the map appears to be the property of Government, but it is obviously impossible that any inspection of maps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad Das 6 B.L.R. 615. Of course the case would be otherwise if the Revenue authorities were empowered not only to assess but also to try the liability to assessment. But that power, I think, was taken away by the first section of the Act. 21. Stress was laid in argument upon the words in Section 7 expressly giving right of civil suit to any one aggrieved by the Government taking possession of an island chur. It was suggested that this tends to negative the right of suit in other oases. I do not think so. Under section. 6, if my view be correct, the Revenue Officers decide nothing as to proprietary rights, and their action in assessing does not necessarily interfere with the enjoyment of such rights; there was no necessity, therefore, for saying anything about a civil suit. But taking possession of an island chur under Section 7 would, if it were private property, be a direct infringement of private right; there was, therefore, reason for reserving the right to sue. So that the assertion of the right to sue in Section 7 seems to me only to show that the Legislature in 1847 intended to maintain, not to abandon, its traditional policy. 22. Section 9 was also relied upon as excluding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lands in question in this case were not liable to be assessed. 25. I would only further notice a little more in detail certain cases bearing upon this question relied upon in the course of the argument, and to which I have already referred. The first is Dewan Ram Jewan Singh v. Collector of Shahabad 14 B.L. R. 221 (note) : 18 W.R. 64, decided by Couch, C.J., and Ainslie, J. Nothing is reported except the judgment, but it would seem from that judgment that the case was very similar to the present. The suit was dismissed on two grounds--that it was barred by Section 6 of Act IX of 1847 and that it was barred by Section 9. It is said : "Since in this case there has been an addition to the estate appearing upon the inspection of the new map, although it is, as stated in the plaint, are formation upon the old site, it comes within Section 6, and is added to the estate." And again, it is said : "This is a case coming within Section 6, where power is given to assess the land which had been re-formed, and then the same section says expressly that the orders of the Sudder Board of Revenue shall be final. I have stated in detail the reasons which lead me not to agree in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an estate, the proprietary right in which is vested in a private individual, does not fall under the category of lands gained from the sea or from rivers by allusion or dereliction. 31. The second question referred to us is substantially this--whether a Civil Court is competent to entertain a suit, the object of which is to establish that land assessed by the Revenue Authorities as an alluvial in Crement under Act IX of 1847 is not liable to assessment, on the ground that it does not fall under the category of lands gained from the sea or from rivers by alluvion or dereliction. The decided oases bearing upon the question are all one way, laying down that the jurisdiction of the Civil Court was taken away by Section 6, Act IX of 1847. Dewan Ram Jewan Singh v. Collector of Shahabad 14 B.L.R. 221 (note) : 18 W. R. 64.; Ram Jewan Singh v. Collector of Shahabad, 19 W. R. 127 Collector of Moorshedabad v. Roy Dhunput Singh 15 B.L.R. 49; and Sarat Sundari Dabi v. Secretary of State for India 11 C. 784.In this last mentioned case, it was also held that Civil Courts have power to try, whether the Revenue Courts have jurisdiction under Section 6 of Act IX of 1847. 32. In order to arrive at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or regarding the right of Government to the ownership thereof, shall from the date of the passing of this Act, cease to have effect within the Provinces of Bengal, Behar, and Orissa, and that all such investigations pending before the Collector and Deputy Collector in the said Provinces at the said date, shall be forthwith discontinued, and that no measure shall hereafter be taken for the assessment of such lands or for the assertion of the right of Government to the ownership thereof except under the provisions of this Act. 39. It seems to me that the scope of the Act, so far as it my be gathered from the title of the Act and the 1st section, is, that it lays down rules for the investigation regarding the liability to assessment of alluvial increments, abolishing tribunals and rules of procedure created and prescribed by parts of the Regulations of the Bengal Code for holding such investigation. 40. The same view was taken by Couch, C.J., in the Full Bench decision--Budrunnissa Chowdhrain v. Prosonno Kumar Bose 6 B.L.R. 255 (267) He says : "Now looking at the first section, the Act does not appear to have been intended to do more than make different provisions for the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity attaches to the whole order, i.e., the whole order dealing with both these questions. 44. Now it has been said that there was no procedure laid down in the Act for judicially investigating the question of liability to assessment, the whole of the previous procedure under Regulation II of 1819 and Regulation III of 1828 having been swept away by Section 1 of the Act. But it seema to me that only the "tribunals" established by Regulation III of 1828 and the procedure prescribed for their guidance were abolished by that section. The procedure referred to in Section 1, is the specified procedure laid down for " tribunals" abolished. These tribunals are the Special Commissioners and the Officers vested with the power of resumption under Regulation III of 1828, and do not include Collectors and Officers deciding under Regulation II of 1819 the question of the liability of land held revenue-free to be assessed with Government revenue. The word "tribunals" ordinarily means officers whose chief function is judicial. The chief function of a Collector or a Revenue Officer is executives They, in my opinion, cannot properly be called "tribunals," be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word "final" used in it. But Sections 5 and 7 afford material help in determining this question. It. has been conceded, in the course of the argument (and rightly conceded, I think), that the orders of the Board of Revenue under Section 5 cannot be questioned in a civil suit. A person may be aggrieved by the order of the Board of Revenue, but still he has no remedy by a civil suit. An owner of an estate may claim reduction of revenue to a larger amount than what he would be entitled to upon the inspection of the new survey map only, and the Board of Revenue may disallow such claim. It is admitted that the owner would not be permitted in that case to establish his right in a civil suit. In other words, the order of the Board of Revenue under Section 5 shall be final in all respects. If the word "final" in Section 5 has this meaning, the same word used in the next following section should not have a more limited signification. The enquiry under either of these sections is of a similar nature. In the one case the amount of revenue to be added and In the other the amount of revenue to be deducted have to be determined. One of the points--and in fact the chief po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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