KAMESWAR SINGH MAHARAJADHIRAJ OF DARBHAHGA Vs. PROVAKAR MAHANTI

JUDGEMENT

(1.) Section 58 of the Cess Act entitles the bolder of an estate to recover a sum equal to double the amount due to him under sections 56 and 57of the Gets Act when such installment is not paid to him within one month of the date on which such instalment is payable. Basing his claim upon this section, the plaintiff who is the appellant in this appeal instituted a suit for the recovery of primary education cess for the years 1946 and 1947 due under the Bengal (Rural) Primary Education Act (Bengal Act VII of 1930). The plaintiff claimed the penalty to which, according to him, he was entitled under section 58 of the Cess Act on the allegation that the instalment due from the defendants had not been paid or tendered by them within the time allowed by section 58of the Cess Act. There is no dispute that the defendants are holders of a rent-free tenure under the plaintiff and that they failed to pay the education cess at the rate of Rs. 37|10|9 per year due to the plaintiff. If the dues of the plaintiff be calculated at the single rate of Rs. 37|10|9 his total claim will come up to Rs. 84|12|3 with interest at the rate of 61/4 per cent, per annum, but if they are calculated at the double rate under section 58 of the Cess Act the total claim will be double the amount. After the institution of the suit the defendants remitted a sum of Rs. 115.00 to the plaintiff towards his dues by postal money order which was accepted by the plaintiff; but the plaintiff prosecuted the suit for the recovery of the balance of his claim which was calculated at the double rate. The Courts below have held that the plaintiff is entitled to recover only at the single rate, and as the plaintiff had already received more than the amount to which he was legally entitled they have dismissed the suit, and against the decrees made by the Courts the plaintiff has brought this second appeal for the recovery of the balance to which, according to him he is entitled. The only question which requires consideration in this second appeal is whether the plaintiff is entitled to recover the penalty under section 58 of the Cess Act. Both the Courts below have rejected the plaintiff's claim to recover the penalty under section 58 of the Cess Act, 1880, on the ground that section 58 presupposes the publication of the notice and extract of valuation roll by the Collector under section 52 and publication of the notice by the holder of the estate under section 54, but no such formality is necessary under the Bengal (Rural) Primary Education Act of 1930 which only requires by section 31 that the Collector shall cause a notification to be published and a proclamation to be made announcing the imposition of Education Cess and a service to be effected on the holder of every estate of a notice showing the amount of primary education cess payable in respect of his estate and the date from which such primary education cess will take effect.

(2.) In other words, according to the view taken by the Courts below, the only notice required to be published for the imposition of education cess is the notice under section 31 of the Bengal (Rural) Primary Education Act and that the notices under sections 52 and 54 of the Cess Act are not necessary. I am entirely unable to accept this view as correct, and in fact, Mr. Apurbadhan Mukherjee appearing for the respondents has not also made any serious attempt to support it. The fallacy of this view is this: Education Cess is an additional imposition on immovable property which has already been assessed to road and public works cesses according to the provisions of the Cess Act and it is assessed on the annual value of land determined under the Cess Act--Vide section 29 of the Bengal (Rural) Primary Education Act, 1930. It is only after road and public works cesses have been assessed on the land in the manner contemplated by the Cess Act that the education cess can be imposed. For the assessment of road and public works cesses in respect of rent-free lands, publication of notices under sections 52 and 54 of the Cess Act is essential. Therefore, the publication of those notices is the essential pre-requisite of the imposition of the education cess The reasons given by the Courts below are, therefore, not sufficient, in my opinion, to exclude the application of section 54 of the Cess Act. I have, however, still to examine whether section 58 of the Cess Act is attracted by section 32 of the Bengal (Rural) Primary Education Act. Sec. 32 is in the following terms:

(3.) Upon a plain construction of this section, the application of the provisions of the Cess Act to the assessment, levy, payment and recovery of primary education cess is restricted by two phrases: (a) "Subject to the provisions of this chapter" (i.e. Chapter IV of the Primary Education Act) and (b) "As far as possible". Under the Cess Act the liability of an owner of rent-free land arises on the publication of the notice and the extract from the valuation roll by the Collector under section 52, and in cases to which section 54 applies, on the publication of the notice under that section by the holder of the estate (See section 56). Under section 57 the holder of rent-free land is liable to pay the cesses to the holder of the estate in two equal instalments or in one payment on such days or day as may be fixed by the Board of Revenue. By Rule 112, the Board of Revenue has fixed the latest dates of payment of such instalments or instalment. Then, section 58 of the Cess Act provides that if an instalment of cesses due on any rent-free land is not paid within one month of the date on which it is payable, the holder of the estate shall be entitled to recover a sum equal to double the amount of such installment "due to him under sections 56 and 57" with interest at the rate of 61/4 per cent, per annum. The penalty recoverable under section 58 of the Cess Act is, therefore, double the amount of the instalment due under sections 56 and 57 of the Cess Act. Sec. 30(1) of the Bengal (Rural) Primary Education Act provides amongst other things that primary education cess shall be paid at the same time as the road and public works cesses are paid under the Cess Act. As a result of this provision, primary education cess is payable according to the same instalments as are provided for by the Rule framed under section 57 of the Cess Act. The instalments in default in the present case can, therefore, be said to be due under section 57 of the Cess. Act. In order to come under section 58 of the Cess Act, however, it is not enough that the instalments should be due under section 57; it is also necessary that they should be due under section 56 of the Cess Act. Now, an instalment of primary education cess cannot, in my opinion, be said to be due under section 56 of the Cess Act because the assessment of primary education cess takes place not under the Cess Act but under sections 29 and 30 of the Bengal (Rural) Primary Education Act and it is therefore, due under sections 29 and 30 of the Bengal (Rural) Primary Education Act and section 57 of the Cess Act.