SECY OF STATE Vs. RAMASRAY SINGH

JUDGEMENT

(1.) These are appeals by defendant 1, the Secretary of State for India in Council, against the decision of the District Judge of Saran confirming the decision of the Munsif and decreeing the plaintiffs suits for a declaration that the assessment of road cess made upon them under the Road Cess Act was ultra vires and without jurisdiction and the realisation of the cess so assessed was illegal and for a refund of the same. The plaintiffs are admittedly the cultivating raiyats of certain lands in village Anandpur which adjoins the lands of Sonepur where the Sonepur Fair is held annually. It appears that the plaintiffs allowed the dealers of cattle to hold a sort of hat upon their holdings for which they charged a certain fee per head of cattle from those dealers. These plaintiffs were called upon to submit a return under Section 24, Cess Act (Bengal Act 9 of 1880) and thereafter they were assessed with a certain amount of cess upon the income they derived from the dealers of cattle who hold the hat upon their land.

(2.) They protested that they were not liable to be assessed on the income they derived which could not be treated as the annual value of the land within the definition of the expression as given in the Cess Act. Their objections were disallowed up to the Board of Revenue. They then instituted the present suits for a declaration that they were not liable to assessment and for a refund of the cesses realized from them. The defence of the Secretary of State for India was that the plaintiffs were the holders of tenure within the definition of the term as given in the Cess Act and that therefore they were liable to assessment and they have been rightly assessed and the cesses have been legally recovered from them. Both the Courts below have held that the assessment on the basis of the income derived by the plaintiffs from the dealers of cattle was illegal and ultra vires and they made a declaration entitling the plaintiffs to a refund of the cess realized from them and granted them a decree as prayed for.

(3.) The argument advanced by the learned Government Pleader on behalf of the appellant is that under Section 5 Cess Act, an immoveable property is liable to the payment of local cess. Under Section 6 the local cess is to be assessed on the annual value of lands. Under Section 4 "annual value of any land, estate or tenure" means the total rent which is payable, or, if no rent is actually payable, would on a reasonable assessment be payable during the year by all the cultivating raiyats of such land, estate or tenure, or by other persons in the actual use and occupation thereof.