ARUN CHANDRA SINHA BAHADUR Vs. MANMOHAN SINHA ROY

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of money paid by them as proprietors of an estate under the Bengal Embankment Act, 1882. The defendants are tenure- holders under the plaintiffs, and the question in controversy is, whether the plaintiffs are entitled to recover the disputed amount in one sum from the defendants. The Courts below have held that the plaintiffs are entitled to recover only a portion of the sum claimed. The payment was made by the plaintiffs pursuant to an order made by the Collector under the provisions of the statute. There is no room for dispute that the order of the Collector was erroneous, inasmuch as it did not specify the instalments in which the same was payable to the Government. What we have to consider is whether the validity of the order of the Collector can be questioned before the Civil Court in this litigation; for this purpose, we must refer to the relevant sections of the Bengal Embankment Act.

(2.) Section 54 provides that the costs are to be paid by the proprietor to the Collector. Section 55 provides that the proprietor is entitled to recover, from the tenure-holders under him, the sum apportioned to each tenure-holder. Section 59 authorises the Collector to make the apportionment among the several tenure-holders under the proprietor. Section 61 then lays down an important principle in the following terms. "The amount charged to or apportioned on any estate or tenure shall be payable in equal instalments on such days as the Lieutenant-Governor shall direct; provided no instalment shall exceed four annas for every acre of land in respect of which the same is payable, and that not more than four instalments shall be payable in any one year." Section 68 deals with the final order of apportionment and provides that the Collector shall make an order specifying the tenures in respect of which any sum apportioned is payable and the sums payable in respect of each of the instalments of such sums and the dates on which such sums are payable. Section 69 deals with the publication of the final order of apportionment, and provides that the Collector shall cause a copy of such order to be published either in a general notice stating the amount apportioned or cause special notices to the same effect to be served in respect of every tenure on or among the zemindars of tenure-holders of which any sum is charged or apportioned. Section 74 deals with the recovery by proprietors to whom any sum of instalment is payable under an order made in pursuance of Section 68. Section 84 provides for an appeal from orders passed by the Collector under various sections including Section 68. Section 85 provides for the general control of the Commissioner and Local Government. Lastly Section 86 lays down that subject to the provisions of Secs.84 and 85 every order passed by the Collector in respect of applications under Section 18 and every order passed under Secs.11, 50, 52 or 68 and every order passed by a controlling authority in respect of such order of a Collector shall be final and not liable to be modified or altered otherwise than as expressly provided in the Act.

(3.) Now in the case before us there was an order for apportionment made by the Collector as between the proprietors on the one hand and the tenure holders on the other. This order was made after due service of notice on the tenure-holders. This order was defective inasmuch as it specified merely the amount payable by the tenure-holders and the proprietors, but did not specify the instalments and the dates on which the sum included in each instalment was to be made payable. This final order was served upon the tenure-holders. It is remarkable that no exception was taken to this order, though it was manifestly erroneous, either by the proprietors or by the tenure-holders. The proprietors paid the amount due to the Collector in one instalment in accordance with that order. They then instituted the present suit for recovery of the amount from the tenure-holders. The tenure-holders objected that they were not liable to pay the entire amount in one instalment. The Courts below have made a decree in favour of the plaintiffs, only in respect of such sums all would have been payable by the tenure-holders if an order for payment by instalments had been correctly made by the Collector under Section 68. The Courts below have in substance replaced the actual order of the Collector by an order which should have been made by him. We are of opinion that it was not open to the Courts below to adopt this method of granting relief to the plaintiffs.