BHARATH BHUSHAN PRASAD SINGH Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The only question to be decided in this appeal is whether Section 4, Clause (2) Revenue Recovery Act, Act 1 of 1890, is applicable to the facts of the present case; or in other words, whether the present suit should have been instituted in the Civil Court at Mirzapore in the United Provinces, or in the Civil Court at Chapra in this province. It appears that on 30 May 1935, the Collector of Mirzapore issued a certificate for a sum of Rs. 14,399-9-0 and sent it to the Collector of Saran with a request to recover it from the appellant under the provisions of the Revenue Recovery Act and remit it to his office at Mirzapore. The sum mentioned above was said to be recoverable on account of the rent of a public ferry settled by the District Board of Mirzapore with the father of the appellant. On receipt of the certificate, the Collector of Saran sold certain properties of the appellant and on 31 October 1936, the appellant paid under protest the entire sum for which the certificate had been issued to save his properties. On 6 November 1937, he instituted the present suit in the Court of the Subordinate Judge of Saran at Chapra for recovery of the amount paid by him, on the ground that he was not liable to pay that amount or any part thereof. The suit was resisted by the Secretary of State and the District Board (who were defendants 1 and 2), on various grounds. One of them was that the suit was not tradable by the Subordinate Judge of Saran and should have been instituted in the Civil Court having jurisdiction in the local area in which the office of the Collector who made the certificate was situate. This last contention has been accepted by the learned Subordinate Judge of Saran who has directed the plaint to be returned for presentation to the proper Court. Hence this appeal. Section 7-A, Northern India Ferries Act (Act 17 of 1878), provides that: The Provincial Government may direct that any public ferry, wholly or partly within the area subject to the authority of a District Council or a District Board or a Local Board in the Province be managed by that Council or Board, and thereupon that ferry shall be managed accordingly.

(2.) As in the present case the ferry was settled by the District Board, it may be presumed that the District Board, had been authorized by the Provincial Government to manage it. Section 9 of the same Act provides that: All arrears due by the lessee of the tolls of a public ferry on account of his lease may be recovered from the lessee or his surety (if any) by the Magistrate of the District in which such ferry is situate as if they were arrears of land revenue. Section 3(l), Revenue Recovery Act (Act 1 of 1890) provides that: Where an arrear of land revenue, or a sum recoverable as an arrear of land revenue, is payable to a Collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of that other district a certificate in the form as nearly as may be of the schedule, stating: (a) the name of the defaulter and such other particulars as may be necessary for his identification, and (b) the amount payable by him and the account on which it is due. Sub-sections (2) and (3) of Section 3 run as follows: (2) The certificate shall be signed by the Collector making it (or by any officer to whom such Collector may, by order in writing, delegate this duty), and, save as otherwise provided by this Act, shall be conclusive proof of the matter therein stated. (3) The Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land revenue which had accrued in his own district.

(3.) Now it is not disputed that if the present certificate can be held to be issued under this Section the suit should have been instituted not at Chapra but at Mirzapore in view of what is provided in Section 4. This Section reads thus: (1) When proceedings are taken against a person under the last foregoing Section for the recovery of an amount stated in a certificate, that person may, if he denies his liability to pay the amount or any part thereof and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit for the re- payment of the amount or the part thereof so paid. (2) A suit under Sub-section (1) must be instituted in a Civil Court having jurisdiction in the local area in which the office of the Collector who made the certificate is situate, and the suit shall be determined in accordance with the law in force at the place where the arrear accrued or the liability for the payment of the sum arose.