Ranendra Narayan Sinha & Ors. versus State of West Bengal

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537

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RANENDRA NARAYAN SINHA & ORS.

v.

STATE OF WEST BENGAL

October 12, 1970

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[J. C. SHAH AN:D A. N. GROVER, JJ.J

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Ferries, in Zamindari-Revenue payable to Governnient s_eparatelr assessed-Ferrie.• resumed by Guvernrnent-Abatement of revenut-S11it for recovery of revenue collected-Jurisdiction of Civil CourtsLimitation.

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c The predecessors-in-interest of the appellant, who were zamindars of Pargana Goas were in posse~~ion of certain ferries and were reccivins income by letting out the right to transport passenger. and goods and by levying toll on the ferries. The revenue payable to the Government in respect of the ferries was separately assessed at Rs. 4800. The rigb't to the ferries was recognised as a right to property and, therefore, when between the years 1857 and 1860 the ferries were declared public ferries by the Government of Bengal, under Regulation VI of 1819, the then D zamindar was paid Rs. 53,QQO odci as compensation being ten times the income received from the ferries in the year next after the resumption hy the Government. Since on the resumption no abaten1cnt of revenue payable in respect of the ferries was granted, the then zamindar claimed such abatement. The claim was not refused by the Government but they collected the revenue under coercive process.

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The appellant's predecessor filed a suit in 1945 claitning the amount E Of revenue recovered from him in excess of the amount lawfully due from him, and also for a declaration that the revenues stood abated. The rcsponrl.ent contended that the compensation raid was nearly hundred times the amount of the net annual profits from the ferries and that. therefore, the amo.unt of compensation must have included the '.:apitalised value of the abatement of revenue payable for Jhe ferries. The respondent also contended that the suit was barred by limitation and that the F civil court had no jurisdiction.

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The trial court gave a decree for R'. 14,440/ - being the amount for three years immediately preceding the date of suit and also declared that there was a complete extinction of the'liability to pay revenue in respect of the ferries. The High Court, in appeal. reversed the decree.

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In appeal to this Comt.

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HELD : (l) There is nothing in the correspondence relating to the resumption of ferries to indicate that the compensation was to include the capitalised value for abntement of revenue. In the absence of any evidence to prove that the GoYernment took into account the value of abatement of revenue and that the zamindar received the compensation agreeing to pay the revenue in respect of ferries resumed, the· conclusion inevitably followed that on the resumption or aoquisition of the ferries H by the Government, the zamindar ceased to be liable to pay .the annual revenue assessed upon the ferries. No adverse inference against the appellant could be drawn from ~ delay in making the claim for abatement of revenue, [545 D-G]

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[1971J2 S.C.R.

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538

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SUPREME COURT REPORTS

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(2) A right to collec< revenue which is not due cannot be acquireJ hy prescription "nd if the appellant and his predecessors had been com· pelled to pay sums of money. which they were not liable to pay the claim for refund could properly be made within three years from the date on \.'hich the payment was made, and to the claim for a declaration of a right to abatement, there is no bar of limitation. Each .demand for re 4 covery by the Government confers a fresh cause of action. [546A-C]

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(3) Regulation 19 of 18/6, Regulation 6_of 1819, Act 1 of 1886 am! the rules i.n the Bengal Tauzi Mamml, 1940, do not indicate that the jurisdiction of the civil court was cxch1dcd in respect of matters Felatin¥ to abatement of revenue. The decision in Secretary of State for India in Council v. Maharajaclhiraja Kamesl11w1r Singh Bal111dur 1.L.R. 15 Pat. 146 has no hearing on the present case. 1547 E; ~48 D·F; 549 A-Fl

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CIVIL A PP ELLA TE JURISDICTION : Civil Appeal No. 1649 of 1966.

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Appeal from the .iudgment and Decree dated the January 24. 1962 of the Calcutta High Court in First Appeal No. 24 of 195 l.

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P. Chattetjee, S. C. Majumdar, Padam Blndu Chatter1ee and R. K. Jain, for the appella,nts.

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A. N. Sinha and G. S. Chatterjee, for the respondent.

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The Judgment of the Court was delivered by

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Shah, J. On December 17, 1945 Raja Bhupendra 1\YJrayan Sinha commenced. an action in the Court of the Subordinate Judge. Murshidabad, against the Province o.f Bengal, for an order declaring 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 A!aipur to the extent of Rs. 4,800/ - per annum", and fer a ·decree "refunding excess revenue realized by the Province of Bengal". Raja Bhupendra Narayan Sinha med during the pend.ency of the suit and his legal repr~entative Ranendra 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 re¥enue" payable by the plaintiff in respect of the estate "bearing sepefrate 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 I - per annum", and a decree for Rs. 14,440/- being the amount of revenue recovered during three years immediatecy preceding the institution of the suit. In appeal the High Court of Calcutta reversed the decree and dismissed the pfaintiff's suit. The plaintiff has appealed to this Court with certi·ficate granted by the High Court. •

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R· N. SINHA V. WEST BENGAL (Shah, J.)

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539

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A There is not much dispute about the facts which gave rise to the claim. By Regulation l of 1793 called 'The Bengal Permanent Settlement Regulation 1793", the Governor-General in Council gave legislative recognition to the Proclamation previously addressed to the zamindars, independent Talukdars and other actual proprietors of land paying revenue to Government in the ll Province of Bengal. Thereby, inler alia the Jamma assessed upon the lands under the permanent settlement was to be continued after the expiry of the period of the current decennial settlement, and to remain unalterable. The amount payable to the Government for the Pargana Goas was determined at the time of perma1nellt settlement at (Sicca) Rs. 99,160/11/ 11 3/4 Gondas. The Pargana consisted of I 2 Hudas or groups of Mouth, one ot which was c Huda Alaipur. Appertaining to Huda Alaipur are 11 ferries. The revenue of Alaipur estate was fixed at (Sicca) Rs. 10,052/6/5 including (Sicca) Rs. 4,500/- as the revenue payable in respect of the ferries. By Act 17 of 18 3 5 the Sicca Rupees of the Company in terms of which the revenue was assessed were converted into New Company's Rupees, and in view of the change ih the D coinage for every 15 Sicca Rupees 16 New Company's Rupees were payable. The revenue assessed in respect of the 11 ferries was accordingly fixed at Company Rs. 4,800/-. The Zamindars of Pargana Goas were before and after the permanent settlement in possession of the ferries and were receiving. income by letting out the right to transport passengers and goods and were levying tolls ~n the forries. Between the years 1857 and 1860 the ferries were in exercise of the power conferred by Reg, VI of 1819 declared public ferries by the Government of Bengal, and the then zamindars was paid as compensation Rs. 53,923/4/6 being teR times the income received from the ferries in the year next after resumption of the ferries by the Government. The l:amindar claimed abatement of revenue in respect of the ferries resumed F by the Government, but no reply was given thereto, and according to the plaintiff under threat of coercive action the plaintiff's predecessor-in-interest the Court of Wards which was m management for a long time since the year 1860, and Raia Bhupendra Narayana Sinha were made to pay (Sicca) Rs. 4,500/- per annum as revenue in respect of the ferries even after the ferry rights had G ceased to belong to the Zamindar.

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The olaintifI filed in · 1945 in the Court of the Subordinate Judge, Murshidabad, the suit out of which this appeal arises. The su!t was conteste~ by the State of West Bengal on the pleas, inter aba. that the fernes resumed by the Government during the yea rs I 857 to 1860 were not identical with the ferries described in :he Rokhabandi .l)apers of 1206 B.S. on which the olaintifI relied, that in any event the ferries appertaining to Huda Alaipur did not form part.of the assets of the estate bearing Ta1tzi No. 523 of ,the Mur-

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SUPREME COURT REPORTS

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[1971] 2 S.C.R.

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shidabad Collectorate and the assets of the ferries were never taken into account in assessing the revenue of the estate, that in any case the liability to pay revenue of the ferries had not been separately assessed at (Sicca) Rs. 4,500/-, that the suit was barred by the law of limitation and estoppel and that the Court had no jurisdiction to try the suit. In the opinion of the Trial Court, the Civil Court had jurisdiction to try the suit, that the suit was not barred by the Jaw of limitation or by es(oppel, that the ferries described in the Rokhabandi papers of Huda Alaipur were identical with the ferries resumed by the Government during 1857 to 1860, that the assets of the ferries were included in Huda Alaipur which was one of the 12 Hudas included in Tauzi No. 523 of the rshidabad Collectorate, that the revenue of the ferrie had been separately assessed at (Sicca) Rs. 4,500/aild that the plaintiff was entitled to abat~ment of revenue to the extent of (Sicca) Rs. 4,500/- i.e. Company Rs. 4,800/-. The learned Judge accordingly decreed the plaintiff's suit.

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The State of West Bengal appealed against that decree to the High Court. During the pendency of the appeal the rights of the Zaminda)r were extinguished. The dispute in the High Court was therefore restricted to the right of the plaintiff to recover the arrears of revenue decreed and a declaration of the right to obtain refund of the excess revenue paid by the plaintiff between date of the institution of the suit and· the extinction of the interest of the Zamindar. Before the High Court it was urged that the income of the ferries did not form part of the assets of Huda Alaipur at the time of the permanent settlement; that the ferries were not ,separately assessed to revenue at (Sicca) Rs. 4,500/-; that the ferries resumed by the Governrr,ent between 1857 and 1860 were not identical with the ferries mentioned in the Rokhabandi paper; that the suit filed by Raja Bhupeildra 1Narayan Sinha was not maintainable; that .in determining compensation for the ferries, the Government had included the value of abatement of the revenue; and that the c'aim for declaration of abatement was barred by the law of limitation. The High Court decided the first three contention~ in favour of the plaintiff, and the remaining in favour of the State. The High Court· held· that the compensation amounting to Rs. 53,923-4-6 whicli was ten times the gross collection from the 11 ferries in the year after resumption included the value of the right to abatement claim and that in any event the clain1 for a declaration of abatement of revenue was barred by the law of limitation. On the question of the maintainabilitv of the suit the two learned Judges differed. S. K. Sen, J .. held that the civil court had no jurisdiction to entertain the suit : Amaresh Roy, J., reached 1 contrary conclusion. But consequent upon

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R· N. SINHA V. WEST BENGAL (Shah, J.)

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541

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A the findings on the other two issues the High Court rewrsed the decree passed by the Trial Court and dismissed the suit.

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'Ferry' means "the right to keep a boat for ferrying passengers,

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to charge tolls for so doing, and to prevent other persons from setting up another ferry so near and in such a state of facts as

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B to diminish the custom, is a franchise.. It can be created only by grant from the Crown, by prescription o~ by statute" : Dictionary of English Law by Earl Jowitt. In India the right to ferry :, in the nature of a monopoly which entitles a ferrym~ to carry exclusively and to collect tolls for carriage of passengers, animals or goods carried over the line· of the ferry. The Calcutta High Court in lfltyabharl Roy and Ors. v. Dunne and

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c Others(') elaborately examined the origin of the right to ferry in Bengal. The Court observed :

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"One of the first rules which the Government pro-

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mulga(ed in 1772 was to suppress the. sayer duties levied in Bengal: On the 11th June 1790 a regula-

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D . tion was promulgated for the guidance of the Board of Revenue with reference to sayer or internal duties. That. Regulation was principally directed against such sayer duties as were levied in hats or bazars, and the Government, although it expressly declared in it that the imposition and collection of internal duties of any

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E kind were exclusively its own privilege and could not be exercised by any subject without express sanction; yet, in the interest of the landlords, it adjudged it advisable to interfere as little as possible with the imposition they levied. This, therefore, is an express declara tion of Government that the Dewani had never re

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F cognized in private individuals the right to levy any tolls of the denomination of sayer, and this is repeated in the preamble to Reg\ilation XXVII of 1793. When the Permanent Decennial Settlement was made, the revenue of such zamindari ghats as were allowed was taken as an item of the. assessment and granted to the Zamindar. In Regulation XIX of 1816. Section 9,

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G there was a distinct admission of this practice. It enacted that if the profits derived from any resumed ferry may appear to have been , included in the permanent assessment of the estate to which it has been heretofore annexed, the Board. or Commissioner, under whose orders the inquiry into the nature of the ferry

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H was conducted, must report the , case for the orders of the Governor-General in Council . . . . .

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

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[1971] 2 S.C.R.¹

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542

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SUPREME COURT REPORTS

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After the time of the Permanent Settlement the same, ferries were established by enactment. The first Regulation i& 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 24Pargunnahs, and fixed the rates. payable to the ferryman. . . . . ln 1816 the Govermmmt considered it expedient that all ferries should be placed under complete control of the Collectors of I.:and Revenue. Every owner of n ferry was licensed, and other person plying u "boat for hire was liable to be ,convicted and fined .. . • . . . . , and the boat was to be confiscated. . This Regulation continued tm 1819, when it was repealed 'by Regulation VI of that year, und the fefries were then placed under the superintendence. of the Magistrate. All important ferries were. declared public, and these the Magistrate had the power t.o, resume . .Other ferries of an unimportant kind were not interfered with further than was necessary for the maintenance of the police and ihe safety of passengers and property."

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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 resump·tion of which the Government of the day was liable, to pay compensation. The ferries were appurtenant to the lands of the Zamindar each terry being a cqnnecting link between two bighwavs on the· lands of the plaintiff's predecessors. The right to the ferries ·was resumed by the Government in. exercise of the power conferred by Reg. VI of 1819 and the right of the Zamindar to receive compensation for Joss of the right ,was 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 Zamin1.dar for resumption of the fet.fies Rs. 53,923.40 which was ninetyone times the net profit

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R. N. SINHA V. WEST BENGAL (Shah, J,)

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543

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A made by ,the Zamindar annually. He :('ntended on that hypothesis that compensation computed on the basis of ten times the gross profit earned by the Zamindw, could only,have been intended to be paid to compensate the Z'«mindar for the loss of th.: right to the ferries as well as the capitalized value of ihe revenue attributable to the ferries. The argument that a larger compenB sation 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

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The correspondence in relati,on to resumption of the ferri~ c may be summarised. Exhibit C dated June 9, 1854 is a petition filed by ,Rani Phu! Kumari who was then the owner of Paragana Goas. It is recited in the petition that the ferries had ceased to be public felTies when, they were restored to tlie appii· cant's ancestors in the year 1819 under the orders of the Gover· nor-General in · Council, and, , the ferries had since beein con·· D tinued in her occupation and possession. But by an order of the Magistrate of . Rajshahye which was confirmed by the Superintendent of Police the rate .or neerick of the ferries had been considerably lowered and the result of the interference was that the ferries instead of being , a source of profit were onerous and a source of expense and trouble. The applicant requested that the complaint be investigated and if the complaint be found E true, the applicant may be relieved of paymeirit of the Suddur Jumma i.e. revenue. In a letter dated August 7, 1854 to the Secretary to the Board of Revenue, the Commissioner of Nuddea Division, stated that the statements made ,by Rani Phul Kumari were substantially correct, but the revenue authorities had no power of interference, and that the report of the Collector of ' Murshidahad pensation under Reg. was that the petitioner could not XIX of 1816 since the provisions of that claim any comenactment had not been enforced against her and she was not deprived of the ferry rights.

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On March 15, 1855 the revenue authorities prepared a G list of ferries in District Murshidabad to be declared public: In a letter dated September 16, · 1857 the Magistrate Rajshahye infonned the Commissioner of Rajshahye that the ferries in Alaipur belonging to the plaintiff's predecessors did form part of the estate at the time of decennial settlement and that out. of ( Sicca) Rs. 4,500/-, Rs. 1,000/- may fairly repre5ent the portion of H Koodalghatee (one of the eleven ferries). It appears that ·it was then recommended that onlv the Koodalghatee alone may be resumed and the revenue attributable thereto was ·estimated at Rs. 1,000/-.

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(1971] 2 S.C.R.

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SUPREME COURT REPORTS

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By letter dated November 25, 1857 of the Government of Bengal the Commissioner of Rajshahye was asked to intimate t9 the Zamindar that the Lieutenant Governor was willing to allow abatement .of the Jumma of the estate in which the ferry was situated to the extent of Rs. 1,000/- as compensation for loss of the ferry.

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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 I 0 years' purchase of profit during the first year after Yesumption, unless. any other scheme not more disadvantageous to Government was proposed or agreed to by the owners.

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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 a1nount of Jwnma of Rs. 1,000/- which had been remitted· was disproportionately small when compared with the profits 9erived from the . resumed and unresumed ferries, and that the Government had "come to the conclusion" that the most advisable course will be to declare the whole of the eleven ferries pub.lie 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."

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By his Jetter dated September 20, 1860 to the Government of Bengal the Commissioner of Rajshahye Division stated that total compensation payable to the Zamindar for the l l ferries 1tggregated to Rs. 53,923-4-6 according to •he principles determined by the Government, and that the Zamindar of Pargana Goas had petitioned the Collector of Murshidabad on September 3, 1860 that she should be allowed the annual remission of revenue to the extent of (Sicca) Rs. 4,500/- for all the ferries and soliciting that the matter may be adjusted as soon as possible.

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Finally by .letter dated. November 3, 1860, the qovernment sanctioned payment of Rs. 53,923-4-6 as compensation for the eleven ferries of Pariana Goas, and that the arrangement cancelled the offer of a remission of Jumma to the extent of Rs. 1,000/- per annum made in the letter stated November 25, 1857, for <he Koodalghatty Ferry.

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It is clear ~hr.t originally it was proposed to resume only one or some but not all the eleven ferries, and abate !he revenue by Rs. 1,000/Later it was decided to resume all the krries

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WEST BENGAL (Shah, J,)

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R. N. SINHA V.

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A in Huda Alaipur and to pay compensation at ten times the amount of profit determined "on the basis of one year's working of the ferries" after they were taken over.'

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It was urged, however, that the Zamindar was receiving out of the 11 ferries a gross income of only Rs. 5,392/they were liable to pay Rs. 4,800/- l;>eing the revenue payable B to the Government, only the balance of Rs. 592/- remained on hand with the Zamz'ndar. Unless the abatement of revenue was taken into account the Zamindar, Counsel for the State urged, could not have been given as compensation nearly a hundred times the amount of the net annual profit fr.om the ferries. But the argument proceeds upon several assumptions which are not c supported by evidence. There is no evidence that the plaintiff's predecessors were making only Rs. 5,392/- gross out of the ferries. It cannot be assumed that because the Government collected from the 11 ferries Rs. 5,392/- in the first year after the ferries wer.e taken over and the Zamindar was liable to pay Rs. 4,800/- that the net annual profit of the Zamindar from the ferries was Rs. 592/0 l·r.:y.

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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 Goverment took into account the vah1e 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 F ferries the Zamindar ceased to be liable to pay the annual revenue assessed upon the ferries.

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There is no evidence of a written claim made by the Zamindar for abatement of revenue since 18 60, and we are unable to infer from that circumstance anything adverse to the plaintiff. For many years, the Pargana was in the nossession 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 inferen~e from the delay in making a claim for abatement of revenue anses.

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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

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[1971] 2 S.C.R.

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SUPREME COURT REPORTS

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in excess of the amount lawfully due frnm 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 plaintift had b~en compelled to pay sums of money which he was not liable to pay the claim could properly be made within three years from tji.e date Qn 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 judgment, 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 abatement was refused, before the su;t.

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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 thal 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 1^{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. lt 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 attention of the-Government Pleader for the_ State was invited thereto he 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

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R. N. SINHA V. WEST BENGAL (Shah, J.)

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A of the statutes to the maintainability of the present suit, nor is our attention invited to any provisioqs of law or circumsances which may .iustify an inference to that effect.

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Jn deference to the view expressed by S. K. Sen J. we may briefly refer to the statutory and administrative ord~rs on which B reliance- was placed by counsel for the State to support the vie\: expressed by the learned Judges. Section 9 of Regulation XIX - of 1816 provided:

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"In the event of its appearing that the profits derived from any resumed ferry may have been included in the permanent settlement of the estate to which it has heretofore been annexed, the Board or Commissioner, under whose orders the inquiry may be conducted, shall report the circumstances, with an opinion on the merits of the claim, for the consideration and orders of the Governor-General in Council; and the courts of judicature shall not take cognizance of any claim to deductions or compensations on account of the tolls levied at any ferry or ghaut."'

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This section does not exclude the jurisdiction of the Civil Court to entertain a claim for abatement of revenue separately assessed· in respect of a ferry which has been resumed or has been com' E pulsorily acquired. RegulatiOrr 19 of 1816 was repealed by Regulation VI of 1819 by which the management of the ferries. was transferred from the Cotrector to the Magistrate. Clause Ill of Regulation VI of 1819, insofar as it is relevant, provided :

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"First. No ferries shall be hereafter considered public ferries, except such as may be situated at or near the Sadr Stations of the several Magistrates or Joint Magistrates, or such as may intersect the chief military routes or other much freque.nted roads, or such as from special considerations it may appear advisable to place under the more immediate management of the Magistrates and Joint Magistrates.

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Second. The Government reserves to itself the power of determining from time to time what ferries shall under the preceding rule be deemed public ferries and as such shall be subject to the immediate control of the Magistrates and Joint Magistrates,

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Third. It will be the duty of the Several Magistrates and Joint Magistrates to prepare lists of the ferries which in their judgment should' und~r the foregoing. rules be

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(1971] 2 S.C.R.

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SUPREME COURT. REPORTS

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considered to be public ferries, and transit them as soon prepared through the Superintendents of Police for the information and orders of Government."

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Clause IV dealt with the power of appointing proper persons to the charge of the public ferries, for the purpose of regulating the number and description of boats to be maintained for preventing el!9ctions and generally for promoting the efficiency of the Police and the safety and convenience of the community. Clause VI declared that the exclusive right to ply public ferries shall belong to Government and no person shall be allowed to employ a ferry boat plying for hire without the previous sanction of the Magistrate. The other clauses dealt with the procedure and powers of the Magistrate with regard to public ferries. This Regulation dealt with the power of the Government· of Bengal to declare a particular ferry to be a public ferry and to manage it. There is nothing in the Regulation which excludes the jurisdiction of the Civil Court in the matter of revenue qua a private ferry resumed or acquired.

¶148

Regulation VI of 1819 was repealed by Act I of 1866. By s. 2 of Act l of 1866 Act it was provided that every ferry which ha.s been or may be declared to be public ferry under the provisions of Regulation VI of 1819 shall belong exclusively to the Government. By s. 4 it was provided that all claims for compensation which may be preferred by any person or persons for loss which may be sustained by them in consequence of any ferry having been declared public as aforesaid shall be inquired into by· such Magistrate, who shall award compensation to any such person or persons who may appear justly entitled thereto. 'But Act I of 1866 has no application because the f~rries of plaintiff's predecessor were resumed by the Government between the years 1857 and 1860. In any case there is nothing to show in any of the provisions to which our attention was invited that a suit for abatement of revenue for resumption of the ferries is excluded from the jurisdiction of the Civil Court.

¶149

In Secretary of State for India in Co1'11ci/ v. Maharajadhiraja Kameshwar Singh Bahadur(¹ ) ·on which Counsel for the State relied it was held by the High Court of Patna that the jurisdiction of the Civil Court was barred ty implication in respect of a suit filed on the ground that compansation awarded was inadequate and was based on wrong principle. That case has. in our jud~ ment. no bearing on the present case. The method for determ_ii;ing the compensation is provided by Act I of 1885 and the CIVIi Court's jurisdiction ""to determine compensation may pro tanto may be deemed excluded.

A

B

c

D

E

G

H

j

it) !. L. R. 15 Pat. 246.

¶159

R· N, SINHA v. WEST BENGAL (Shah,/.)

¶160

549

¶161

A Reliance was also placed upon ~· 159 in the Bengal Tauzi Manual, 1940, which contains rules for the collection of and accounting for land revenue and cesses in. Bengal. Rule 159, insofar as it is relevant, provided :

¶162

"The power of S!l11Ctioning abatement of the revenue or rent demand of an estate during the currency B of a settlement will be- exercised by Collectors, Commissioners, and the Board of Revenue as shown below:-

¶163

"

¶164

The diverse clauses of r. 159 vested power in different classes

¶165

of officers to sanction abatement of rent or revenue. For inst!l\llco,

¶166

c the Collector had power to sanction abatement of rent or revenue upto a total of Rs. l,500/- in a single year in all estates managed direct by the Provincial Govemmvnt : the Commissioner had power to sanction abatement of revenue upto Rs. 5,000/. Again the Collector had power to sanction abatement of revenue in temporarily•settled estates bearing a revenue not exceeding Rs.

¶167

D 500/-. It was also stated that .the Collector had power to sanction in all estates abatements in consequence of the acquisition of land under the Land Acquisition Act I of 1894, and the Board of Revenue alone had power to sanction abatements due to diluvion, ascertained after a survey conducted under. Act IX ot 184 7. The Board alone had power to sanction abatement of rent or revenue in other cases not specified in r. 159. The Bengal Tauzi Manual 1940 does not disclo~ the authority under which it was published, and the sanction behind the rules. . The Board of Revenue from time to time published instructions relating to the administration of revenue laws. The rules and instructions set out in the Manual are apparf!ltly not statutory. Even

¶168

F assuming that they are statutory there is-nothing to indicate that they exclude the jurisdiction of lhe Civil Court in respect· of matters relating to abatement of revenue in the civil suits, and as rightly conceded by counsel for the State of West Bengal, there: h: no evidence th.at any ru~e like r. 159 was in operation at the time when the femes belongmg to the Zamindar were resumed or acquired by the Government of the Province of Bengal.

¶169

G S._ ~· Sen, J., was, ~ our_iu.dgment, in err.or in holding that

¶170

the Cm! Court had no 1unsd1ctlon to entertam the claim for abatem~n.t of revenue and f?r .a declaration that the plaintiff was nN hable to pay revenue 1n respect of the ferries which were resumed by the Government.

¶171

G

¶172

. The ~ppeal is allowed. The order passed by the High Court

¶173

H 1s set aside and the order passed by the Trial Court is restored with costs in this Court and in the High Court. V.PS.

¶174

Appeal allowed.

¶175

8-L436 Sup CI/71

Ranendra Narayan Sinha & Ors. v. State of West Bengal

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Ranendra Narayan Sinha & Ors. v. State of West Bengal

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