Indian Kanoon - Search engine for Indian Law

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1649 of 1966.

Appeal from the judgment and Decree dated the January 24, 1962 of the Calcutta High Court in First Appeal No. 24 of 1951.

P. Chatterjee, S. C. Majumdar, Padam Bindu Chatterjee and R. K. Jain, for the appellants.

A. N. Sinha and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Shah, J. On December 17, 1945 Raja Bhupendra Narayan Sinha commenced an action in the Court of the Subordinate Judge, Murshidabad against the Province of Bengal, for an order de- claring that he "is entitled to abatement out of the revenue- payable by him for Pargana Goas Tauzi No. 523 of the Murshidabad Collectorate on account of resumption of 11 Ferries lying within Huda Alaipur to the extent of Rs. 4,800/,- per annum", and for a decree "refunding excess revenue realized by the Province of Bengal". Raja Bhupendra Narayan Sinha died during the pendency of the suit and his legal representative Rajendra Narayan Sinha prosecuted the suit. The suit was resisted, after the Indian Independence Act, by the State of West Bengal. The Subordinate Judge decreed the suit. He awarded to the plaintiff a decree for " abatement of revenue payable by the plaintiff in respect of the estate "bearing separate account No. 523-3 in consequence of resumption by the Government of 11 ferries referred to in the plaint to the extent of Rs. 4800/'- per annum", and a decree for Rs. 14,440/- being the amount of revenue recovered during three years immediately preceding the institution of the suit. In appeal the High Court of Calcutta reversed the decree and dismissed the plaintiff's suit. The plaintiff has appealed to this Court with certi- ficate granted by the High Court.

(1) 1. L. R. 18 Cal. 652.

After the time of the Permanent Settlement the same ferries were established by enactment. The first Regulation is XVIII of 1806, which, dealing with ferries in the same category as tolls on boats passing through canals, enacted that ferries should be established at places convenient for the public within the 24- Pargunnahs, and fixed the rates payable to the ferryman......... In 1816 the Government considered it expedient that all ferries should be placed under complete control of the Collectors of Land Revenue. Every owner of a ferry was licensed, and other person plying a boat for hire was liable to be convicted and fined . . . . . . . . I and the boat was to be confiscated. This Regulation continued till 1819, when it was repealed by Regulation VI of that year, and the ferries were then placed under the superintendence of the Magistrate. All important ferries were declared public, and these the Magistrate had the power to resume. Other ferries of an unimportant kind were not interfered with further than was necessary for the maintenance of the police and the safety of passengers and property." Two matters appear clear on the findings of the Trial Court and confirmed by the High Court : (1) that the revenue in respect of the ferries was separately assessed; and (2) that the right of ferry was recognised as a right to property for resumplion of which the Government of the day was liable to pay compensation. The ferries were appurtenant to the lands of the Zamindar each ferry being a connecting link between two highways on the lands of the plaintiff's predecessors. The right lo the ferries was resumed by the Government in exercise of the power conferred by Reg. VI of 1819 and the right of the Zamindari to receive compensation for loss of the right wis conceded. But on the resumption of the ferries no abatement of revenue payable in respect of the ferries was granted. The result was somewhat anomalous. Whereas the ferries in respect of which the revenue was separately payable were taken over by the Government by compulsory acquisition or by resumption, the Zamindar still remained liable to pay the revenue assessed thereon. To meet this argument, Counsel for the State of West Bengal urged that within the amount of compensation determined to be payable to the Zamindar consequent upon resumption of the ferries, was included the capitalized value of the abatement of revenue payable for the ferries. Counsel said that the Government paid to the Zamindar for resumption of the ferries Rs. 53,923.40 which was ninety one times the net profit 5 4 3 made by the Zamindar annually. He contended on that hypo- thesis that compensation computed on the basis of ten times the gross profit earned by the Zamindar, could only have been intended to be paid to compensate the Zamindar for the loss of the right to the ferries as well as the capitalized value of the revenue attributable to the ferries. The argument that a larger compensation was paid and on that account the plaintiff was not entitled to abatement of revenue appealed to the High Court. But, in our judgment, the record of the case does not support the conclusion reached by the High Court.

In letter dated January 8, 1858 from the Government of Bengal it was recited that in regard to the compensation for resumption of the ferries, the Government desired that as usual it may be fixed at 10 years' purchase of profit during the first year after resumption, unless any other scheme not more disadvantageous to Government was proposed or agreed to by the owners.

By letter dated April 4, 1860 from the Government of Bengal, the Commissioner of Rajshahye Division was informed that certain ferries which were resumed by the Government orders on the ground that those ferries were the only profitable ones out of the eleven which were situated upon the estate,, the amount of Jumma of Rs. 1,000/- which had been remitted was disproportionately small when compared with the profits derived from the resumed and unresumed ferries, and that the Government had "come to the conclusion" that the most advis- able course will be to declare the whole of the eleven ferries public under the provisions of Regulation VI of 1819 and to compensate the proprietor in the usual manner with ten years' purchase of actual collections during the first year of the resumption."

There is nothing in the correspondence to indicate that any part of the compensation was to include the capitalised value for abatement of revenue. The ferries were regarded as assets belonging to the Zamindari and were separately assessed to revenue. It was but just that the revenue assessed upon the ferries should, to the extent of resumption or acquisition of ferries, be abated. In the absence of any evidence to prove that the Government took into account the value of abatement of revenue and the Zamindar agreed to receive compensation, agreeing still to pay the revenue in respect of the ferries resumed, the conclusion inevitably follows that on the resumption or acquisition of the ferries the Zamindar ceased to be liable to pay the annual revenue assessed upon the ferries. There is no evidence of a written claim made by the Zamindar for abatement of revenue since 1860, and we are unable to infer from that circumstance anything adverse to the plaintiff For many years, the Pargana was in the possession of the Court of Wards and it is the case of the plaintiff that from time to time requests were made for abatement of revenue, but no relief was given and the revenue including the revenue from the ferries was recovered from the Zamindar under threat of coercive process. No inference from the delay in making a claim for abatement of revenue arises. The High Court was of the view that the claim made by the plaintiff was barred by the law of limitation. The plaintiff was claiming in this suit the amount of revenue recovered from him 5 4 6 in excess of the amount lawfully due from him and he claimed a declaration that the revenue stood abated. Right to collect revenue which is not due cannot be acquired by prescription, and if the plaintiff had been compelled to pay sums of money which he was not liable to pay the claim could properly be made within three years from the date on which the payment was made. The Trial Court was, in our judgment, right in holding that an amount of Rs. 14,440/- was properly recoverable. The Trial Court was also right in declaring that there was complete extinction of liability to pay revenue in respect of the 11 ferries. To the claim for declaration of the right to abatement there is, in our judg- ment. no bar of limitation. Each demand for recovery by the Government confers a fresh cause of action. In any event, there is nothing on the record which suggests that the claim for abatements was refused, before the suit. It was urged also that the suit as filed in the Civil Court for abatement of revenue was not maintainable. This plea was not raised in the Trial Court. It was submitted in the Trial Court that some of the ferries in question on partition of India fell within the District of Rajshahye in East Pakistan, and on that account the Court has no, jurisdiction to try the suit. It is common ground that the State of West Bengal was realising the. entire revenue from the plaintiff after the partition of India into the Dominion of India and the Dominion of Pakistan, in respect of Account No. 523-3 of the Murshidabad Collectorate, notwithstanding that some ferries formed part of territory of East Pakistan. In the view of the Trial Court the State of West Bengal adopted inconsistent defences. While realising the revenue, the State claimed that the entire revenue-paying estate was within its jurisdiction, but when the plaintiff claimed abatement of revenue the State pleaded that because some portion of the property in respect of which abatement was claimed had fallen within the Dominion of Pakistan, the Court had no jurisdiction. It was not urged before the Trial Court that it was incompetent to entertain the suit for abatement of revenue. Before the High Court the two learned Judges who heard the appeal differed. Amaresh Roy, J., observed that the State of West Bengal had never raised the plea that the Civil Court was incompetent to try the suit. The learned Judge observed that even after the atten- tion of the Government Pleader for the State was invited thereto lie declined to adopt that plea and it was not open to the Court of its own "to take up the contention and to non-)Suit the plaintiff." S. K. Sen, J., was of the view that the Civil Court was not competent to entertain the suit. Apparently the plea was never raised in the written statement and was not argued even after one of the Judges in the High Court invited counsel to argue it. It is undisputed that there is no express bar under any 5 4 7 of the statutes to the maintainability of the present suit, nor is our attention invited to any provisions of law or circumstances which may justify an inference to that effect. In deference to the view expressed by S. K. Sen J. we may briefly refer to the statutory and administrative orders on which reliance was placed by counsel for the State to support the view expressed by the learned Judges. Section 9 of Regulation XIX of 1816 provided :