SOURENDRA MOHAN SINHA Vs. SECYOF STATE

JUDGEMENT

(1.) This is an appeal against a decree of the District Judge of Bhagalpur confirming that of the Munsif of that place whereby the appellants suit for a declaration that a certain assessment of local cess was illegal and ultra vires and for other incidental reliefs was dismissed. The facts are these: The plaintiffs are the sixteen annas proprietors of Lakhiraj Punsia bearing tauzi Nos. 1183-C and 1044-B, in thana Amarpur. It appears that a hat is held twice a week on their land, and as is usual collections are made on their behalf from traders who resort to the hat for selling goods. The Revenue Authorities have included the income so derived in assessing the cess on the plaintiffs.

(2.) The plaintiffs instituted the suit for a declaration that under the law the assessment was ultra vires as no local cess could be assessed on that income and asked for a refund of Rs. 9-15-0, which they had paid by way of local cess and also for an injunction against the defendant not to realise the assessed amount in future. Both the Courts below have dismissed the suit on two grounds: first, that the notice served upon the defendant under Section 80, Civil P.C., was at variance with the plaint and therefore insufficient; and, secondly, that the assessment was not ultra vires. The plaintiffs have appealed. The learned Government pleader has supported the decrees of the Courts below on these grounds.

(3.) I take up the second point first. The learned Government pleader has contended that there is a finding of fact that the assessment was on the ground rent and not on the profit from the hat. I however do not think that there is any finding of fact that the assessment was really on the ground rent or that any ground rent was being realized by the plaintiffs from the traders who resorted to the hat. Had there been any such finding it would have been vitiated on account of the fact that there is not an iota of evidence on the record to support that finding. The only evidence on the record is that of the plaintiffs circle officer who has described the nature of the collections made and this shows that it is not rent. People go to the hat, some of them spread their merchandise on the ground and sell it; others roam about in the hat and hawk the articles which they have for sale. Both classes of traders pay some money to the plaintiffs for carrying on their business on their land.