SOUDAMINI DASYA CHOUDHURANY, EXECUTRIX TO THE ESTATE OF HER HUSBAND, LATE RAGHUNATH DAS Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for declaration that the disputed lands are included in a permanently settled Taluk Mohammad Hayat held by her, and that the proceedings taken by the Secretary of State for India in Council for assessment of revenue thereon are ultra vires. The Court of first instance dismissed the said on the merits. Upon appeal that decree has been affirmed by the Subordinate Judge. On the present appeal, that decree has been assailed on three grounds: First, that the proceedings under Act IX of 1847 were ultra vires, because they were not based on a special and new survey carried out, as contemplated in Section 3; secondly, that the proceedings under Act IX of 1847 were ultra vires, because the notice which was at first served upon the appellant was subsequently modified, and the quantity of land which was ultimately held liable to assessment with revenue was much larger than the quantity mentioned in the initial notice, and thirdly, that the Courts below have not given due effect to the entry in the thak map, which shows that the river by the reassign of which the disputed lands have been formed was included within the boundaries of the taluk held by the plaintiff. In our opinion there is no foundation for these contentions.

(2.) As regards the first point, it is clear that Section 3 of Act IX of 1647 empowers the Government to direct new surveys of riparian lands at intervals of not less than ten years, and Section 6 contemplates assessment of increments of land to revenue paying estates. But there is no provision in the Act which requires that before an assessment is made, there must be a special survey carried out under the terms of Section 3. There is nothing to show that the assessment contemplated by Section 6 could not be based upon a survey carried out for a purpose other than that contemplated by Section 6. In the present instance there was a survey for the purposes of Settlement under the Bengal Tenancy Act. It would be, in our opinion, unreasonable to hold that the result of that survey could not be utilised to form the foundation of assessment under Section 6. We find that this view was adopted by both the Judges who decided the case of Secretary of State for India in Council v. Kumar Narendra Nath Mitter from which an appeal was subsequently preferred under Clause 15 of the Letters Patent on a different point (Letters Patent Appeal No. 1 of 1920), Secretary of State for India in Council v. Kumar Narendra Nath Mitter 61 Ind. Cas. 91 : 32 C.L.J. 402.

(3.) As regards the second point, no authority has been cited in support of the proposition that a notice served for the purposes of assessment under Section 6 cannot be amended. No doubt Section 3 contemplates periodical surveys at intervals of ten years or longer periods of time, but before an assessment has actually been completed, there is no reason why an error, if any, committed in the first instance should not be rectified. It is obvious that if a contrary view were taken, it might in some instances prejudice the Secretary of State for India in Council and in other instance prejudice the person to be assessed with rent, because it is conceivable that the entry in the initial notice might by an error be smaller or larger than the area which is actually in his possession and liable to assessment of rent.