SURJA KANTA ROY CHOUDHURY Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The plaintiff appeals against the judgment and decree of the learned District. Judge of 2l- Parganas dated 6 June 1935. The learned Subordinate Judge by his judgment and decree dated 30 January 1935, had decreed his claim, but the learned District Judge dismissed his suit entirely. The facts are not in controversy, but the question raised is, we believe, one of first impression, and is of general interest so far as the lotdars of the Sundarbans are concerned. The question is whether a lotdar who is holding under a grant on the terms hereinbelow noted is entitled to get abatement of the amount payable by him to Government under his engagement, on account of some portion of his grant being diluviated, under the provisions of Section 52, Ben. Ten. Act.

(2.) In the year 1854 the Sunderbans Commissioner acting on behalf of the Government granted to one Bazlar Rahman a large block of waste land under the Waste Lands Rules of 1853. This grant is known toy the name of Abad Dwarik Jangal, being Sunderban lot no. 106 of Captain Hodge's Map and touzi no. 1419 of the Collectorate of 24-Parganas. The area was then estimated to be 20,900 bigbas. The potta which was executed on 7 September 1860 was in the standard form printed at pp 93 and 94 of the Revenue History of the Sundarbans by Mr. Pargiter. One-fourth of the area was to be for ever free from assessment, the remaining three, fourths to remain "free of revenue" for the first 20 years, from the 21 to the 30 year assessment was to be at the rate of one half anna for every standard bigha, for the 31 to the 40 year at the rate of one anna per bigha, from the 41 to the 50 year at the rate of one anna and a half per bigha, and from the 51 to the 99 year at the full rate of two annas per bigha. Clause 3 of the potta provided that between the 20 and the 30 year either the Government or the grantee could have a survey and measurement with the view of ascertaining the exact area of the lands contained in the grant and the revenue thereafter was to be fixed on the said measurement at the rates mentioned above. Clause 4 of the potta is in these terms: That after the 99 year, the grant shall be liable to Burvey and resettlement and to such moderate assessment as may seem proper to the Government of the day, the proprietary right in the grant, and the right of engagement with the Government remaining to the grantee, his heirs, executors or assigns under the conditions generally applicable to owners of estates not permanently settled and that revenue equal to the amount anually paid from the 51 to the 99 year shall be paid annually by the grantee, his heirs, executors or assigns until such survey and resettlement or reassessment as described above be effected.

(3.) The next clause made it obligatory on the grantee to clear and render fit for cultivation within stated periods certain proportions of the grant under the penalty of the grant being resumed on failure to do so. It is only necessary for us to state that one half of the area was to be cleared within the first 20 years, and three fourths of the area (i.e. the whole of the area liable to assessment) was to be cleared within 30 years from the date of the grant. Clause 6 deals with the manner of paying "the revenue", and provides that it shall be recoverable by the Government by the process that now is or hereafter may be in force for recovery of arrears of "Government revenue". An analysis of the potta establishes the following: (1) The Government demand is fixed on the basis of area; (2) the area was, at the date of the potta, stated only by guess; it was only a rough estimate, as it must be, as the grant was then a forest area; (3) the grant was to be surveyed and measured between the 20 and the 30 year, when it was expected that the forest would be cleared substantially so as to render accurate measurement possible; (4) there was no provision for resurvey and remeasurement at any other period within the period of the grant which was to last for 99 years, but after the 99 year the grant was liable to be resurveyed and remeasured with a view to resettlement at a new rate; (5) the grant was a proprietary grant the grantee being entitled to have a resettlement under conditions applicable to owners of temporarily settled estates, and (6) the Government demand is described as revenue and made recoverable by the same process by which revenue can be recovered.