HEM CHANDRA DAS CHAUDHURY Vs. SECYOF STATE

JUDGEMENT

(1.) This appeal asises out of a suit which was instituted by the plaintiffs for a declaration that the assessment of cess by the Cess Revaluation Officer on the income from the stalls of a certain market or hat of which the plaintiffs are tenure-holders was illegal and ultra vires, and also for refund of the amount of cess which they had paid under protest. The Courts below have dismissed the suit.

(2.) The plaintiffs are tenure-holders in respect of the lands on which the market or hat holds its sittings. The exact particulars are not available, but, as far as may be gathered, there are some stalls and also some open space on which the dealers come and sit and do their work. The hat meets two days in the week, The plaintiffs have taken kabuliyats from several ijardars who under the terms thereof collect tolls from the stall keepers and dealers of various descriptions and out of the sums so collected pay certain sums as jamas per year to the plaintiffs. The jamas just mentioned have been treated as "rent" and the annual value being found on the basis thereof the reassessment has been made, We are told that prior to the reassessment cesses had to be paid on the annual value calculated on the basis of the rents of such tenants as were actually on the land and also on the average of such raiyati rents as might be held to be realisable from the portion of the land which was untenanted. The market or hat was also in existence at the time.

(3.) Reading Section 4, Cess Act (Beng. Act 9 of 1880) it is found that the annual value 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 cultivating raiyats or by other persons in actual use and occupation, There are several difficulties in interpreting this definition, but they need not concern us here because the point in controversy is a limited one. It has been formulated by the Subordinate Judge in these words: Whether the ijardars in the present case are in use and occupation of the lands and whether the amounts paid by them can be treated as rent within the meaning of Section 4, Cess Act.