Secy. Of State vs Jitendra Nath Roy on 22 November, 1935
3. These two appeals have arisen out of suits instituted by the plaintiff appellant in this Court, for declaration that a cess revaluation in respect of properties mentioned in the plaints was illegal, ultra vires and not binding on the plaintiff. The question in controversy in the appeals relates to the assertion made by the plaintiff in the suits that the revaluation in question was made on the basis of a Note to Section 24, Cess Act, Bengal Act 9 of 1880, and Rule 66 of the Cess Manual, which the Board of Revenue had no authority under the law to frame, and which were inconsistent with the definition of "cultivating raiyat" as contained in the Cess Act. The Courts below give their decision on the question mentioned above against the plaintiffs in the suits, in which these appeals have arisen. The question to be considered is whether Note to Section 24, Cess Act, and Rule 66 made by the Board of Revenue were in consonance with the provisions of Section 106 of the Act. There can be no question that it was within the competency of the Board of Revenue to make rules and otherwise provide for the proper execution of the Cess Act, in respect of valuation of the assessment and of the levy of cesses. The question then was whether there was anything contained in the Note to Section 24 and in Rule 66 of the Cess Manual, inconsistent with or repugnant to the definition of a "cultivating raiyat" as contained in Section 4, Cess Act, inasmuch as so long as the Note and the rule in question are not repugnant to the provisions of the Act, they cannot be held to be ultra vires or in-operative. As has been repeatedly pointed out by this Court, a raiyat may be a tenure-holder within the meaning of the Cess Act, and thus in order to claim the privilege of a cultivating raiyat under the Cess Act, a person must be an actual cultivator of the soil, and the total rent payable by him for all his holdings must not exceed Rs. 100 per annum. A raiyat may be a tenure holder within the meaning of the Cess Act; and the distinction between a holder of a tenure and a cultivating raiyat, and not between a holder of a tenure and a raiyat, must be recognized: See Peary Mohan Roy v. Sarat Kumari Debi (1912) 15 C L J 428, Sarat Chandra Deb v. Dharani Mohan Roy 1928 Cal 508. In our judgment therefore, the Note to Section 24, Cess Act and Rule 66 in the Cess Manual, cannot be held to be ultra vires and inoperative, as made by the Board of Revenue without jurisdiction.