JOGESH CHANDRA RAY Vs. SHARFUDDIN AHAMAD

JUDGEMENT

(1.) The substantial question in controversy in this appeal is whether Rs. 28 mentioned in the respondents kabuliyat or the price of two he goats which are annually deliverable at the time of the Dusserah puja is an abwab.

(2.) The relevant provisions of the statute are the following : Section 54, Regulation 8, 1793, laid down that all existing abwabs should be consolidated with the asil jama into one specific sum; Section 55 prohibited the imposition of any new abwab or mahtut upon the raiyats upon any pretence whatever upon pain of a penalty of three times the amount imposed for the entire period of the imposition; and Section 61 enacted that in the event of any claim being preferred by proprietors of estates.... On engagements wherein the consolidation of asil, abwab etc., shall appear not to have been effected they are to be nonsuited with costs. Section 3, Regulation 5, 1812, which altered some of the provisions of Regulation 8, 1793, declared that nothing therein contained should be construed as sanctioning or legalizing the imposition of arbitrary or indefinite cesses whether, under the denomination of abwab, mahtut or any other denomination. By Act 10, 1859, Section 10, and Act 8 (B.C.), 1869, Section 11, exactions beyond the rent specified in the patta subject the landlord to damages not exceeding double the amount of such taxation. Section 61, Regulation 8, 1793, and Section 3, Regulation 5, 1812, were repealed by Section 1, Act 16, 1874. Section 74, Act 8, 1885 says: All impositions upon tenants under the denomination of abwab, mahtut or other like appellations in addition to the actual rent shall be illegal, and all stipulations and reservations for the payment of such shall be void.

(3.) It should be remembered that this Act repeals Secs.54 and 55, Regulation 8, 1793 (vide Schedule 1), without enacting any provision about the consolidation of rent of the whole with the asil into one entire sum. The position then, apart from authorities, is that now in all cases about illegal cesses, the question will primarily turn about the meaning of the words "actual rent" used in Section 74.