SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OFKISTNA Vs. CHELLASANI VENKATARATNAM

JUDGEMENT

(1.) In this case claim was made for water cess. The assessee paid under protest, gave notice claiming the amount he paid and commenced this suit seven months after the payment but within eight months of it. It is contended by the Crown that the suit is barred by limitation under Section 59 of the Revenue Recovery Act II of 1864. That section runs thus "Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act from applying to the Civil Courts for redress : provided that Civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action Unless such suit shall be instituted within six months from the time at which the cause of action arose." I will assume that that section applies to cases arising out of the collection or imposition of cess under the Madras Irrigation Cess Act VII of 1865. By Art. 16 of the Limitation Act a period of one year is given for suits "against Government to recover money paid under protest in satisfaction of a claim-made by the revenue authorities on account of arrears or revenue of on account of demands recoverable as such arrears." That section applies in terms to this case unless there is something in Section 59 of the Rent Recovery Act which prevents its applying. Section 29(1)(b) of the Limitation Act says, "Nothing in this Act shall affect or alter any period of limitation specially prescribed for any suit by any special or local law now or hereafter in force in British India." There is a further provision in Section 15 (2) of that Act that, in computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded, and under Section 80 of the Code of Civil Procedure, no suit can be instituted against the Secretary of State in Council unless two months notice is given. It has therefore to be contended for the Crown that Section 59 of the Revenue Recovery Act, by reason of Section 29 of the Limitation Act, not only excludes Art. 16, but also by reason of the same section, prevents the application of Section 15 of the Limitation Act so that the period of two months is not in this particular instance to be excluded. In my judgment, this is not a case under Section 59 of the Revenue Recovery Act at all, because it is not the case of a party deeming himself aggrieved by any proceeding under that Act. I doubt very much whether a demand of payment is a proceeding under the Act at all as contemplated by that section. I am quite clear that a person, who pays under protest when a demand is made and claims to recover back, is not a person aggrieved by any proceeding under the Act. He has taken a wise course, which prevent his having a grievance.

(2.) There is direct authority in support of this view in Ravula Vengala Reddi V/s. Secretary of State 15 I.C. 328, which followed a series of appeals, Second Appeals Nos. 838 and 844 of 1910 and 240 to 244 of 1911, the judgments in which, I regret, have not been published, because the point is fully discussed there and decided. The only authority to the contrary is the case of Orr V/s. Secretary of State (1899) I.L.R. 23 M. 571. In that case, without giving any reasons the Court expressed a view that, in the circumstances of that case, Section 59 applied where there had been a payment under protest, to the exclusion of Art. 16 of the Limitation Act. It was unnecessary for that decision (which no doubt explains why no reasons were given) because in that case, the Court held on the merits that there was no case. That case was considered by the Bench in Ravula Vengala Reddi V/s. Secretary of State 15 I.C. 328 and in the cases therein referred to, and distinguished. Ravala Nagamma V/s. The Secretary of State for India 18 I.C. 699, which was also referred to, does not touch this point.

(3.) In this state of authorities, sitting alone, I should have considered myself bound to follow the decision in Ravula Vengala Reddi V/s. Secretary of Stale 15 I.C. 328 : but it is open to me, sitting as I am now, to express my own views, and 1 agree with the decision in Ravula Vengala Reddi V/s. Secretary of State 15 I.C. 328 for the reasons given in that case and in the unreported cases referred to therein, and I disagree with that part of the judgment in 23 Mad. 571 which is to the contrary.