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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 ..... e 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 to additional revenue from lands which were include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 perpetuity, and to reverse the decision of the Revenue Authorities in any case in which it shall appear that lands which actually formed, at the period in question, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the question of liability. The award is spoken of as a decision and as a judgment, and it is declared to have the force of a decree. The decisions of the Special Commissioners wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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. That is an Act regarding the assessment of lands gained from the sea or from rivers by alluvion or dereliction within the Provinces of Bengal, Behar and Orissa. Section 1 enacts that such parts of the Regulations of the Bengal Code as establish tribunals and prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reverses the settled policy in this one particular instance ; it involves a direct infringement of rights of property, amounting in the present case, on the facts found, to confiscation and it takes away from people their ordinary power of having their legal rights of property determined by Courts of Justice. I think we ought not to adopt s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure 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 can show whether the island when formed was or was not separated from the shore by a fordable channel. Moreover, this construction of the section does not appear to be the view ordinarily acted upon by the Revenue Authorities ; it certainly was not acted on by them in the present case. I think that the comparison of the maps is not conclusive, but tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 such a suit as the present. That section is not very clear, and two constructions have been placed upon it. In Dewan Ram Jewan Singh v. Collector of Shahabad 14 B.L.R. 221 (note) : 18 W.R. 64. Couch, C.J. and Ainslie, J., held it to prohibit suits to establish title. In Collector of Moorshedabad v. Roy Dhunput Singh 15 B.L.R. 49, Phear and Morris, JJ., limited it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., 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 this view. As to Section 9, I am also unable to agree in thinking that it applies ; the view taken in the case already referred to seems to me preferable. 26. In Ram Jewan Singh v. The Collector of Shahabad 19 W.R. 127 id is impossible to say from the report what the case before the Court was. But the learned Judges (Couch, C.J., and Phear, J.) appear to have expressed appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a correct conclusion, regarding the interpretation of the provisions of Act IX 6f 1847, it is necessary to examine the previous legislation on the subject of the assessment of alluvion increments. 33. There is no special provision in the Code of 1793 regarding the assessment of alluvial increments. But, under Section 8 of Regulation III of 1793, the Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 investigations regarding the liability of the lands to assessment or the rights of the Government, and it was not intended to alter in any way the right which existed in the law before that Act was passed. 41. The first section expressly declares that no measures shall hereafter be taken for the assessment of such lands except under the provisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, because in some special matters they may be vested with judicial power. 45. There is another reason for thinking that the judicial functions of the Revenue Authorities under Regulation II of 1819 were not abolished by Section 1 of Act IX of 1847. 46. Section 8 of the Act, which evidently provides for the suits pending in the tribunals abolished under Section 1, shows that these were the Resumption Courts established under Regulation II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt 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 point--for inquiry is the real area of the estate regarding which the investigation takes place. The result of the decision in any particular case under Act IX of 1847, does not affect any title to land, but the amount of revenue payable to Government for the estate in respect of which the investigation takes place. 49. Then again Section 8 expressly says, that the order of the Board of Revenue in regard to the assessment shall be final. The absence of these words indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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