JADUNATH BANERJEE Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff, and the suit was one for a declaration that the embankment described in the schedule to the plaint, was a D schedule embankment for which the Government was not entitled to realize costs from private proprietors, under the Bengal Embankment Act. It was also alleged that the order of apportionment passed by the Collector under Section 68, Bengal Embankment Act was illegal and ultra vires, and that as there was no notice served on the plaintiff in compliance with the provisions of the Act no liability attached to him under law The plaintiff further claimed a permanent injunction restraining the defendant from realizing the embankment costs from the plaintiff. The defence was really of a twofold character. The first defence was that the embankment in dispute was not a D schedule embankment; and it was con tended in the second place that notices were duly served on the plaintiff and other parties interested, and that the Collector was quite within his rights in making the order of apportionment under Section 68 of the Act and to this order no exception could be taken in a Civil Court. Both the Courts below have accepted the defences of the defendant and have dismissed the plaintiff's suit. It is against this concurrent decree of dismissal that the present second appeal has been preferred.

(2.) The first question that arises for our determination is as to whether or not the embankment in suit is one which is included in Schedule D , Bengal Embankment Act of 1873, and in which case it is admitted, the coats are to be borne by the Government and not by the proprietors or tenure-holders. The facts seem to be, that there was a D schedule embankment on the left bank of the river Piali which protected the major part of touzis 208, 1515 and 1124 of the 24-Perganas Collectorate, which are owned by the plaintiff. In 1901 one Brojendra Kumar Ghose applied to the Collector for shifting the embankment, so that a greater area might be protected, and he also proposed that the new embankment should be provided with sluices through which the area protected might be properly drained. It appears that the Collector took action on the application and the construction of the present embankment was started on the basis of a notification which is dated 11 August 1903. The notification runs as follows: The Lieutenant-Governor having considered the report and the Board's recommendation of the project, is pleased to order under Section 14 of the Act, that the embankment in question shall be removed and a new one with two drainage sluices constructed in its place at an estimated cost of Rs. 68,151 in accordance with the plan by the Executive Engineer.

(3.) Later on in 1907 by another notification the Government ordered that a portion of the original D schedule embankment should be removed from the D schedule. Under Section 43, Embankment Act, the Government is competent, at any time, to direct by notification published in the Official Gazette, that any embankment not mentioned in Schedule D be included therein, and the provisions of the Section shall apply in that case to such embankment. It is not disputed that in the present case, there was no such notification issued by the Government under Section 43. Mr. Bose on behalf of the appellant lays stress upon the words "in its place" which occur in the Government notification mentioned above. I am unable to accept his contention as sound. It is a new embankment altogether raised on a perfectly new site. The mere fact that it replaced a D schedule embankment does not necessarily mean that it must be included in the D schedule without any further notification. In my opinion the words "in its place" used in the notification of 11 August 1903 meant nothing more than that the new embankment was intended to serve the same purpose as was served by the old embankment. As in my opinion it is not a D schedule embankment, it is not necessary for the Government to rely upon Section 18 of the Act to realize its costs from private proprietors and it is not necessary for us to consider the question as to whether or not the area is a prohibited area within the meaning of Section 6. The next question raised by Mr. Bose is that under Section 42, Embankment Act, the Collector could have apportioned or charged the costs of repair only on lands not protected by the old embankment; but in the present case he has imposed the costs upon the entire lands of the three touzis including lands which were protected by the old embankment. The Courts below have overruled this point by saying that there was no evidence to show that the Collector has apportioned the costs on lands not liable to be charged. Mr. Bose has taken exception to this finding and he has placed before us several pieces of documentary evidence which would have a bearing on the point as to whether or not the lands protected by the old embankment were included in the present case.