AHMED MOHAMED AND ORS. Vs. THE STATE OF MADRAS REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT

JUDGEMENT

(1.) The petitioner is the owner of premises No. 10, Purasawalkam High Road, Madras. Originally, the property was the subject -matter of a deed of sale dated 19th November, 1917. Under that sale deed, the Secretary of State for Indian in Council, as vendor, conveyed the property in question along with a greater extent there to the Purasawalkam Hindu High School Board. In that sale deed itself it was made clear that the purchaser, namely, the Board, was obliged to pay the assessment and taxes that may from time to time be levied upon the conveyed land. By an order of the State Government, the Board was permitted to alienate 8 grounds and 87 sq. ft. of the land, conveyed by the Secretary of State, to the Board of Trustees of Sir M. Ct. Muthiah Chettiar's School for use as the site of the school. One of the conditions of the alienation was that the alienation would be free of ground rent, but subject to the condition that if any net income is derived from the land at any time thereafter, full ground rent shall be levied., Sir M.Ct. Muthiah Chettiar's High School after securing the land, sold a portion of it to one Mahomed Hajee Moosa Sait, after obtaining the permission of the Government to sell the same. The permission granted by the Government to the management of Sir M.Ct. Muthiah Chettiar's High School makes it clear that the property was subject to the payment of ground rent of Rs. 40 which was liable to be revised from time to time in accordance with the rules in force. Thereafter, the said Mahomed Hajee Moosa Sait bequeathed the property in favour of one Amna Bai Haji Issa, and it is claimed that the petitioner is the successor -in -interest of the said Amna Bai Hajee Issa. For the first time, a revision of the ground rent was effected in about 1952. It is not disputed that the power to revise the rate of ground rent was only available decennially. Probably, in exercise of such power, the ground rent was increased in or about 1952 to Rs. 200 per fasli. This was to be in force far a period often years commencing from 1952 -53. The petitioner objected to the said increase, and it is reported that the petitioner filed a suit in the City Civil Court, Madras, questioning the levy in all its aspects, and the City Civil Court is said to have given a declaration that the said levy was not regular because the prescribed procedure under the Board's Standing Orders was not followed. Thereafter, during the next decennial revision in 1962 -63 the ground rent was sought to be increased from Rs. 200 to Rs. 1,492.62 in the first instance and thereafter corrected to Rs. 1,659.50. When the petitioner was apprised of the same by a notice of demand issued as usual for the purpose he protested and laid objections thereto both before the Collector of Madras and before the Board of Revenue. The Board of Revenue, in the first instance, was of the view that the petitioner did not have an effective opportunity to contest the regularity of the levy and, therefore remanded the matter for consideration by the Collector. The Collector, after re -consideration, came to the same conclusion and was of the view that the ground rent in respect of the land bearing R.S. No. 800 of Purasawalkam belonging to the petitioner was to be re -fixed at Rs. 1,659.50 for the period from 1st July, 1962 to 30th June, 1963. This notice of demand is dated 10th May, 1965. It is as against this Order that the present writ petition has been filed. The petitioner challenges the levy on many grounds. Amongst them he lays stress upon three grounds which may be noticed as the only contentions raised before me.

(2.) The first contention of the learned Counsel for the petitioner is that in respect of this land, which was Originally freehold and assigned for consideration by the Secretary of State in Council, no ground rent at any time could be levied at all. Secondly, it is said that even under the provisions of the Madras City Land Revenue Act (XII of 1851) (hereinafter referred to as the Act of 1851) the Madras City Land Revenue (Amendment) Act (VI of 1867) (hereinafter referred to as the Act of 1867) and the various rules of procedure enacted for the purpose of Variation, levy and collection of such ground rent by the delegated authority, namely, the Board of Revenue, as would be seen from the Board's Standing Orders there is no express provision for increase of ground rent. It is said that as there is no express provision in all such enactments enabling the authority to increase the ground rent over and above the existing, rent such a power is not available and that, therefore, the increase is illegal. The third contention is that there has been violation of the principles of natural justice in that before the appropriate authority proposed to revise the ground rent decennially he Ought to have given a notice of such a proposal to increase the ground rent and in the absence of such a notice, the entire proceedings are hit by non -adhesion to the rules of natural justice. The learned Government Pleader, on the other hand, referring to the Act of 1851, the Act of 1867 and also to the Madras Revenue Recovery Act of 1864 says that the ground rent, which is also classifiable as revenue payable by a citizen in the State of Tamil Nadu to the State is analogous to the cess paid by a ryot for the use of ryotwari land and thus understood, the levy is authorised by ancient custom as being one which is inhered in the Sovereign in its prerogative power, and in exercise of such a prerogative, it has the elementary and annexed power thereto to vary the same by increasing it from time to time as prescribed. Such a variation of ground rent, which is revenue to the State, is authorised under the provisions of the Acts and is effected through the media of the Board of Revenue, which is the accredited delegated authority under the provisions of the Acts referred to.

(3.) The learned Counsel for the petitioner referred to a decision of Srinivasan, J., in W.P. No. 592 of 1961. There, the learned Judge did not go into the question whether or not there was a statutory power for enhancing the levy of ground rent. That decision, therefore, is not applicable to the facts of the present case.