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A B c D E F G H RANENDRA NARAYAN SINHA & ORS. v. STATE OF WEST BENGAL October 12, 1970 [J. C. SHAH AN:D A. N. GROVER, JJ.J 537 Ferries, in Zamindari-Revenuepayable to Governnient s_eparatelr assessed-Ferrie.• resumed by Guvernrnent-Abatement of revenut- S11it for recovery of revenue collected-Jurisdictionof Civil Courts Limitation. Thepredecessors-in-interest of the appellant,who were zamindars of ParganaGoas were in posse~~ion of certainferries and were reccivins income by lettingout the rightto transport passenger. andgoods and by levyingtoll on theferries.The revenuepayable to the Government inrespect of theferries was separatelyassessed at Rs. 4800. The rigb't to the ferries was recognised as arightto propertyand, therefore,when betweentheyears1857 and 1860 the ferrieswere declaredpublic ferries by the Governmentof Bengal,under Regulation VI of 1819,the then zamindar was paid Rs. 53,QQO odci as compensationbeing ten times the incomereceivedfrom the ferriesin theyearnext afterthe resumption hy theGovernment.Since on theresumptionno abaten1cnt of revenue payablein respectof theferries was granted,the thenzamindarclaimed such abatement.The claimwas not refused by the Governmentbut they collected therevenueunder coerciveprocess. Theappellant'spredecessorfiled a suit in 1945claitningthe amount Of revenuerecoveredfrom him in excess of theamountlawfully due from him, and alsofor a declarationthat the revenuesstood abated. The rcsponrl.ent contended that the compensation raid wasnearlyhundred timesthe amount of the net annualprofits from the ferriesand that. therefore,the amo.unt of compensation must have included the '.:apitalised value of theabatementof revenuepayable for Jhe ferries.The respon dentalso contendedthat the suit was barred by limitationand that the civil court had no jurisdiction. Thetrialcourtgave a decreefor R'. 14,440/ -beingthe amountfor threeyearsimmediatelypreceding the date of suitand alsodeclaredthat there was acompleteextinctionof the'liability to pay revenue in respect oftheferries.The High Court, in appeal.reversedthe decree. Inappealto thisComt. HELD: (l) There is nothing in the correspondencerelating to the resumptionof ferries to indicatethat the compensation was to include the capitalisedvalue for abntement of revenue. In theabsence of any evidence to provethat the GoYernment tookinto accountthe value of abatement of revenueand thatthe zamindarreceived the compensation agreeingto paythe revenuein respectof ferriesresumed, the· conclusion inevitablyfollowed that on theresumptionor aoquisition of the ferries by theGovernment,the zamindarceased to be liable to pay.theannual revenueassessedupon the ferries. No adverseinferenceagainst the appellant could be drawn from ~ delay in makingthe claimfor abate ment of revenue,[545 D-G] 538 SUPREME COURT REPORTS [1971J2 S.C.R. (2) A rightto collec< revenuewhich is not duecannot be acquireJ hy prescription "nd if theappellantand his predecessorshad been com· pelledto paysumsof money.which they werenot liableto paythe claim forrefundcould properlybe madewithinthree yearsfrom the dateon .'hich the payment was made, and to the claimfor a declaration of a right toabatement,there is no bar of limitation. Each .demand for re4 covery by the Governmentconfers a fresh causeof action.[546A-C] (3) Regulation 19 of 18/6, Regulation 6_of 1819, Act 1 of1886 am! therules i.n the BengalTauzi Mamml, 1940, do not indicatethat the jurisdictionof thecivilcourt was cxch1dcd in respectof matters Felatin¥ toabatementof revenue. The decision in Secretary of State for India in Council v. Maharajaclhiraja Kamesl11w1r Singh Bal111dur 1.L.R. 15 Pat. 146has no hearing on the presentcase. 1547 E; ~48 D·F; 549 A-Fl CIVIL A PP ELLA TE JURISDICTION : Civil AppealNo. 1649 of 1966. Appealfrom the .iudgment and Decreedated the January 24. 1962 ofthe Calcutta High Court in FirstAppealNo. 24 of 195 l. A II c P. Chattetjee, S. C. Majumdar,Padam Blndu Chatter1ee and D ' R. K. Jain, forthe appella,nts. A. N. Sinha and G. S. Chatterjee, fortherespondent. The Judgment ofthe Court wasdeliveredby Shah, J. On December17, 1945 Raja Bhupendra 1YJrayan Sinha commenced.an actionin the Court of theSubordinateJudge. Murshidabad,against the Province o.f Bengal,for an order de- claringthat he "is entitledto abatementout of the revenuepayable byhimfor Pargana GoasTauziNo. 523of theMurshidabad Collectorate on accountof resumptionof 11 Ferries lying within HudaA!aipurto the extent of Rs. 4,800/ -per annum", and fer a ·decree"refunding excess revenuerealized by theProvinceof Ben- gal". Raja BhupendraNarayan Sinha med during the pend.ency of thesuitand his legal repr~entative RanendraNarayan Sinha prosecutedthe suit.The suit wasresisted,after the Indian Inde pendenceAct, by the State of WestBengal.The Subordinate Judgedecreedthe suit.He awardedto theplaintiffa decreefor "abatement of re¥enue" payableby theplaintiffin respectof the estate "bearingsepefrate account No. 523-3 in consequence of resumptionby theGovernmentof 11 ferries· referred to in the plaintto theextentof Rs. 4800 I - per annum", anda decreefor Rs. 14,440/- beingthe amountof revenuerecoveredduring three years immediatecy precedingtheinstitution of thesuit. In appeal the HighCourt of Calcutta reversedthe decreeand dismissedthe pfaintiff'ssuit. The plaintiffhas appealedto this Court withcerti- ·ficate grantedby theHigh Court.• E F G H A ll c D F G R· N. SINHA V. WEST BENGAL (Shah, J.) 539 There is not muchdisputeabout the factswhichgave rise totheclaim. By Regulationl of1793called 'The Bengal Per manentSettlementRegulation 1793", the Governor-General in Councilgave legislativerecognitionto theProclamationpreviously addressed to the zamindars, independent Talukdars andother actualproprietorsof landpayingrevenueto Governmentin the Provinceof Bengal.Thereby, inler alia the Jamma assessed upon thelandsunderthe permanentsettlement was to becontinuedafter theexpiryof theperiodof thecurrentdecennialsettlement, and to remainunalterable.The amountpayableto theGovernment forthe Pargana Goas was determined at thetimeof perma1nellt settlementat (Sicca) Rs. 99,160/11/ 11 3/4 Gondas. The Par gana consistedof I 2 Hudas or groupsof Mouth, one ot which was Huda Alaipur.Appertainingto Huda Alaipur are 11 ferries. The revenueof Alaipurestate was fixed at (Sicca)Rs. 10,052/6/5 including(Sicca) Rs. 4,500/- as the revenuepayable in respect oftheferries. By Act 17 of 18 3 5 the Sicca Rupeesof the Com pany in termsof whichthe revenue was assessedwere converted into New Company'sRupees, and in view of thechangeih the coinagefor every 15 Sicca Rupees 16 New Company'sRupees were payable.The revenueassessedin respectof the 11 ferries was accordinglyfixed at CompanyRs. 4,800/-. The Zamindars of Pargana Goas were beforeand afterthe permanentsettlement inpossessionof theferriesand werereceiving.income by letting outthe rightto transportpassengersand goodsand werelevying tolls ~n the forries. Betweenthe years 1857 and 1860 theferries were in exerciseof thepowerconferred by Reg, VI of 1819 de claredpublicferries by theGovernmentof Bengal,and the then zamindars waspaid as compensationRs. 53,923/4/6 being teR times the incomereceivedfrom the ferries in the yearnextafter resumptionof theferries by theGovernment.The l:amindar claimed abatementof revenuein respectof theferriesresumed bytheGovernment,but no replywas giventhereto,and according totheplaintiffunder threat of coerciveaction the plaintiff's pre decessor-in-interestthe Courtof Wardswhich was m management fora longtimesincethe year 1860, andRaiaBhupendra Nara yanaSinhawere madeto pay (Sicca) Rs. 4,500/- perannum as revenuein respectof theferrieseven afterthe ferryrightshad ceasedto belongto the Zamindar. TheolaintifIfiled in · 1945 in the Courtof theSubordinate Judge,Murshidabad,the suitout of whichthis appealarises. The su!t was conteste~ by the State of West Bengal onthepleas, inter aba. thatthefernesresumed by theGovernment during the yea rs I 857 to 1860 werenot identicalwith the ferriesdescribedin :he Rokhabandi .l)apers of 1206 B.S.on whichthe olaintifIrelied, that inanyeventthe ferriesappertainingto Huda Alaipur did not form part.ofthe assetsof theestatebearing Ta1tzi No. 523 of ,the Mur- 540 SUPREME COURT REPORTS [1971] 2 S.C.R. shidabadCollectorateand the assets of theferries were never takeninto accountin assessing the revenueof theestate,that in anycasethe liability to payrevenueof theferrieshad not been separately assessed at(Sicca) Rs. 4,500/-, thatthe suit was barredby the law of limitationand estoppeland thatthe Court hadno jurisdictionto trythe suit. In theopinionof theTrial Court,the CivilCourthad jurisdictionto trythesuit,thatthe suit was not barredby the Jaw of limitationor by es(oppel, that theferries described in the Rokhabandi papersof Huda Alaipur were identicalwith the ferriesresumed by the Government dur ing 1857to 1860, that the assets of the ferries were includedin HudaAlaipurwhich was one of the 12 Hudas includedin Tauzi No. 523 of the ~rshidabad Collectorate,that the revenueof the ferrie~ hadbeenseparately assessed at (Sicca) Rs. 4,500/ aild thatthe plaintiff was entitledto abat~ment of revenue to the extentof (Sicca) Rs. 4,500/- i.e.Company Rs. 4,800/-. The learnedJudge accordinglydecreed the plaintiff's suit. TheStateof West Bengalappealedagainst that decreeto theHighCourt.During the pendency of the appealthe rights ofthe Zaminda)r were extinguished.The disputein theHigh Court was thereforerestrictedto theright of theplaintiffto recoverthe arrearsof revenuedecreed and a declarationof the rightto obtainrefund of the excess revenuepaid by the plaintiff betweendate of theinstitutionof thesuit and· the extinctionof theinterestof the Zamindar. Before the HighCourtit was urg ed that the income of the ferriesdid notformpart of theassets of Huda Alaipurat thetimeof thepermanentsettlement;that theferrieswere not ,separately assessed to revenueat (Sicca) Rs. 4,500/-; thatthe ferriesresumed by the Governrr,ent bet ween 1857and 1860 were not identicalwith the ferries men tionedin the Rokhabandi paper;that the suit filed by Raja Bhupeildra 1NarayanSinha was not maintainable;that .in deter miningcompensationfor theferries,the Governmenthad in cluded the valueof abatementof therevenue;and thatthe c'aim fordeclarationof abatement was barred by thelaw of limita tion.The High Courtdecided the first three contention~ in favourof theplaintiff,and the remaining in favour of the State. TheHighCourt· held· that the compensationamounting to Rs. 53,923-4-6whicli was ten timesthe gross collection from the 11 ferriesin theyearafterresumptionincluded the valueof the right to abatementclaim and that in any eventthe clain1 for a declarationof abatementof revenue was barred by thelawof limitation. On thequestionof themaintainabilitvof thesuit thetwolearnedJudges differed. S. K. Sen, J ..heldthat the civilcourthad no jurisdictionto entertainthe suit: Amaresh Roy, J., reached 1 contraryconclusion.But consequentupon A 1 B c D E F G H A B c D E F G H R· N.SINHA V. WESTBENGAL (Shah, J.) 541 the findings on theother two issues the High Court rewrsed the decreepassed by the TrialCourtand dismissed the suit. 'Ferry' means "the right to keepa boatfor ferryingpassengers, tochargetolls for so doing,and to preventother persons from setting up anotherferry so near and in sucha state of facts as to diminishthe custom,is a franchise.. It can be createdonly by grant from the Crown,by prescription o~ by statute" : Dic tionary of English Law byEarlJowitt.In Indiathe right to ferry :, in thenatureof a monopolywhich entitlesa ferrym~ to carry exclusively and to collect tolls forcarriage of passengers, animalsor goods carried over the line· of the ferry. The Cal cuttaHigh Court in lfltyabharl Roy and Ors. v. Dunneand Others(') elaboratelyexamined the originof theright to ferry inBengal.The Courtobserved: "One of the first rules which theGovernment pro mulga(ed in 1772 was to suppress the. sayer duties leviedin Bengal:On the 11thJune 1790 a regula- .tion was promulgated for theguidanceof theBoardof Revenuewith referenceto sayer or internalduties. That.Regulation was principallydirected against such sayer duties as were levied in hats or bazars, and the Government,although it expressly declared in it that theimpositionand collectionof internalduties of any kind were exclusively its own privilegeand couldnot beexercised by any subjectwithoutexpress sanction; yet, in the interest of the landlords, it adjudged it ad visableto interfere as little as possiblewith the imposi tion they levied. This,therefore, is an express declara tionof Governmentthat the Dewani had neverre cognizedin privateindividualsthe right to levy any tolls of the denominationof sayer, and this is repeated inthepreambleto Regilation XXVII of 1793.When thePermanentDecennial Settlement was made,the revenueof such zamindari ghats as were allowed was taken as an item of the. assessment and granted to the Zamindar. In RegulationXIX of 1816. Section 9, there was a distinctadmissionof this practice. It enact ed that if theprofitsderived from any resumedferry may appear to havebeen , includedin thepermanent assessment of theestateto whichit hasbeen hereto fore annexed, the Board.or Commissioner,under whose orders the inquiryinto the natureof theferry was conducted,must reportthe , case for theordersof the Governor-Generalin Council..... (I) I. L. R. 18 Cal. 652. 542 SUPREME COURT REPORTS [1971] 2 S.C.R. 1 After the timeof thePermanentSettlement the same,ferrieswere establishedby enactment.The first Regulation i& XVIII of 1806, which,dealingwith ferries in thesamecategory as tolls on boatspassing throughcanals, ,enactedthat ferriesshouldbe establi shedat placesconvenientfor the publicwithinthe 24- Pargunnahs,and fixed the rates.payableto theferry man. .... ln 1816the Govermmmtconsidered it expedient that allferriesshouldbe placedunder com plete controlof theCollectorsof I.:andRevenue.Every ownerof n ferry was licensed,and otherperson plying u "boat for hirewas liableto be ,convictedand fined .. . • .... , and the boat was to beconfiscated. . This Regulation continued tm 1819,when it was repealed 'by Regulation VI of thatyear, und the fefrieswere thenplacedunder the superintendence.of the Magis trate.All importantferries were. declared public, and thesethe Magistratehad the power t.o, resume. .Other ferriesof anunimportantkind werenot interferedwith furtherthan was necessaryforthe maintenanceof thepoliceand ihe safety of passengersand property." Two matters appear clear on thefindingsof theTrialCourt andconfirmedby theHighCourt:( 1)thatthe revenue in respectof theferries,was separatelyassessed; and (2) that the rightof ferry was recognised as a rightto propertyfor resump ·tion of whichthe Governmentof thedaywasliable, to pay com pensation.The ferrieswere appurtenantto thelandsof the Zamindar each terry beinga cqnnecting link betweentwo bighwavson the· lands of theplaintiff'spredecessors.The right to the ferries ·was resumedby theGovernmentin. exerciseof the powerconferredby Reg. VI of 1819 and therightof the Zamindar to receive compensationfor Joss of theright ,was conceded. 'But on theresumptionof theferriesno abatement ofrevenuepayable in respect of theferrieswas granted.The resultwas somewhatanomalous.Whereas the ferriesin res pectof whichthe revenuewas separatelypayable were taken overby theGovernment by · compulsoryacquisition or by -resumption, the Zamindar still remainedliable to paythe revenue assessedthereon. · To meet this argument,Counsel for the State ·of West,Bengalurged that withinthe amountof compensation determinedto be payable to the Zamindar consequentupon resumptionof ,theferries,was includedthe capitalizedvalue of the abatementof revenue payable for the ferries.Counsel said thatthe Governmentpaid to the Zamin1.dar forresumptionof the fet.fies Rs. 53,923.40 which was ninetyonetimes the net profit A B .C D E F G H A B c D E ' G H R. N. SINHA V. WEST BENGAL (Shah, J,) 543 made by ,the Zamindar annually. He :('ntended on that hypo thesisthat compensation computed on thebasisof ten times the grossprofitearnedby the Zamindw, couldonly,havebeen intend ed to bepaidto compensatethe Z'«mindar for the lossof th.: right to the ferriesas wellas thecapitalized value of ihe revenue attributableto theferries. The argument thata larger compen sation was paidand on thataccountthe plaintiffwas not entitled toabatementof revenueappealedto theHighCourt.But, in ourjudgment,the recordof thecasedoesnot supportthe conclu sion reachedby theHighCourt Thecorrespondence in relati,on to resumptionof the ferri~ maybe summarised.Exhibit C datedJune 9, 1854is a peti tionfiledby ,Rani Phu!Kumariwho was thenthe ownerof Paragana Goas. It is recitedin thepetitionthat the ferrieshad ceasedto bepublic felTies when, theywererestoredto tlie appii· cant's ancestorsin theyear1819underthe ordersof the Gover· nor-Generalin · Council, and, , the ferrieshad since beein con·· tinuedin heroccupationand possession.But by an order of theMagistrateof . Rajshahye which was confirmed by the Superintendentof Policethe rate.or neerick of theferrieshad beenconsiderablylowered and the result of theinterferencewas thatthe ferriesinsteadof being , a sourceof profitwere onerous anda source of expenseand trouble.The applicantrequested thatthe complaintbe investigatedand if the complaintbe found true,the applicantmay be relievedof paymeirit of the Suddur Jummai.e. revenue.In a letter dated August7, 1854 to the Secretaryto theBoardof Revenue,the Commissionerof Nuddea Division,stated that the statementsmade ,by Rani Phul Kumari weresubstantiallycorrect, but the revenueauthoritieshad no powerof interference,and that the reportof theCollector of Murshidahad was thatthe petitionercould not claim any com pensation underReg. XIX of 1816since the provisionsof that enactmenthad not beenenforcedagainst her andshe was not deprived of theferryrights. On March15, 1855the revenueauthoritiesprepareda listof ferriesin DistrictMurshidabadto bedeclaredpublic: In aletterdated September 16, · 1857 the MagistrateRajshahye in fonned theCommissionerof Rajshahyethat the ferries in Alai purbelongingto theplaintiff'spredecessorsdid formpart of the estate at thetimeof decennialsettlementand that out. of ( Sicca) Rs. 4,500/-, Rs. 1,000/- mayfairly repre5ent the portionof Koodalghatee(one of the elevenferries).It appearsthat ·it was then recommendedthat onlvthe Koodalghateealone may be resumedand the revenueattributablethereto was ·estimated atRs. 1,000/-. 544 SUPREME COURT REPORTS (1971] 2 S.C.R. By letterdatedNovember 25, 1857 of theGovernmentof Bengalthe Commissioner of Rajshahye was askedto intimate t9 theZamindarthat the LieutenantGovernor was willing to allow abatement .of theJummaof theestatein whichthe ferry was situated to theextentof Rs. 1,000/- as compensationfor loss of theferry. In letterdatedJanuary 8, 1858 from the Governmentof Bengalit wasrecitedthat in regardto thecompensationfor resumption of the ferries, the Governmentdesired that as usual it may be fixed at I 0 years'purchase of profit duringthe firstyearafter Yesumption, unless.any otherschemenot more disadvantageousto Governmentwas proposedor agreedto by theowners. ByletterdatedApril 4, 1860 from the Governmentof Ben gal, theCommissionerof RajshahyeDivision was informed thatcertainferrieswhich wereresumedby theGovernment orderson thegroundthat thoseferrieswere the onlyprofitable onesout of the elevenwhich were situatedupon the estate,the a1nount of Jwnmaof Rs. 1,000/- whichhad been remitted· was disproportionatelysmall when comparedwith the profits 9eriv ed fromthe . resumedand unresumedferries, and thatthe Governmenthad "come to the conclusion" thatthe mostadvis able coursewill be to declarethe wholeof theelevenferries pub.lie under the provisionsof RegulationVI of 1819 andto compensate the proprietorin theusualmannerwith ten years' purchaseof actualcollectionsduring the firstyearof there sumption." By his JetterdatedSeptember 20, 1860 to the Government ofBengalthe Commissionerof RajshahyeDivision stated that totalcompensationpayable to theZamindarfor the l l ferries 1tggregated to Rs. 53,923-4-6 accordingto •he principlesdeter minedby theGovernment,and thattheZamindar of Pargana Goashad petitionedthe Collectorof Murshidabadon September 3, 1860 thatshe shouldbe allowedthe annualremissionof re venueto theextentof (Sicca)Rs. 4,500/- for all theferries and solicitingthat the mattermay be adjusted as soon as possible. Finallyby .letterdated. November 3, 1860, the qovernment sanctionedpayment of Rs. 53,923-4-6 as compensation forthe elevenferries of Pariana Goas, and thatthe arrangementcancelled theofferof a remissionof Jummato theextentof Rs. 1,000/- per annummade in the letter statedNovember25, 1857, for eing the revenuepayable totheGovernment,only the balanceof Rs. 592/- remainedon handwith the Zamz'ndar. Unless the abatementof revenuewas taken into accountthe Zamindar, Counselfor theStateurged, couldnot havebeen givenas compensationnearly a hundred timesthe amountof the net annualprofit fr.om the ferries.But theargumentproceeds upon severalassumptionswhich are not supportedby evidence.There is no evidencethat the plaintiff's predecessors were makingonly Rs. 5,392/- gross out of theferries. It cannot be assumedthat becausethe Governmentcollected from the 11 ferriesRs. 5,392/- in thefirstyearafterthe ferries wer.e takenover and the Zamindar was liable to pay Rs. 4,800/- thatthe netannualprofit of the Zamindar fromthe ferries was Rs. 592/ l·r.:y. There is nothingin thecorrespondenceto indicatethat any partof thecompensation was to includethe capitalisedvalue forabatementof revenue.The ferrieswere regarded as assets belongingto the Zamindari andwereseparatelyassessed to revenue. It was but justthatthe revenueassessedupon the ferries should, to theextent. of resumptionor acquisitionof ferries, be abated. In theabsenceof anyevidenceto provethat the Gover menttook into accountthe vah1e of abatementof revenueand the Zamindar agreed to receivecompensation,agreeing still to paythe revenuein respectof theferriesresumed,the conclusion inevitablyfollows that on theresumptionor acquisitionof the ferriesthe Zamindar ceased to beliableto paythe annual re venueassessedupon the ferries. There is noevidenceof a writtenclaim made by the Zamin dar forabatementof revenue since 18 60, and we are unableto inferfromthat circumstanceanything adverse to the plaintiff.For manyyears,the Pargana was in thenossessionof theCourtof Wardsand it is the caseof theplaintiffthat fromtime to time requestswere madefor abatement of revenue,but no relief was given and therevenueincludingthe revenuefrom the ferries was recoveredfrom the Zamindar 'underthreat of coerciveprocess. No inferen~e from the delayin makinga claimfor abatementof revenueanses. TheHighCourt was of the view thatthe claimmade by the plaintiff was barred by thelawof limitation.The plaintiff was claimingin thissuit the amountof revenuerecoveredfrom him 54~ SUPREME COURT REPORTS [1971] 2 S.C.R. in excessof theamountlawfullydue frnm him and -he claimed adeclarationthatthe revenue stood abated.Right to collect revenuewhich is not duecannotbe acquiredby prescription,and iftheplaintifthad b~en compelled to pay sumsof moneywhich hewasnot liableto paythe claimcouldproperlybe madewithin threeyearsfrom tji.e date Qn whichthe payment was made.The TrialCourtwas, in ourjudgment,right in holdingthat an amount ofRs. 14,440 / - was properlyrecoverable.The TrialCourt was also rightin declaringthat therewas completeextinctionof liabilityto payrevenuein respectof the 11 ferries.To theclaim for' declarationof therightto abatementthere is, in our judg ment,no barof limitation.Each demandfor recovery by the Governmentconfers a freshcauseof action.In anyevent, thereis nothingon therecordwhich suggeststhat the claimfor abatementwas refused,before the su;t. It wasurgedalso thatthe suit as filed in theCivilCourtfor abatementof revenuewas not maintainable.This plea was not raised in the Trial Court.It wassubmittedin theTrial Court· thatsomeof theferriesin questionon partitionof India fell with in.theDistrict.of Rajshahye in EastPakistan,and onthal accountthe Courthas no jurisdictionto trythesuit. It is commonground that the State of WestBengal was realising theentire.revenuefrom the plaintiffafter the partitionof India intothe Dominionof Indiaand the Dominion· of Pakistan, in respectof AccountNo. 523-3of theMurshidabadCollectorate, notwithstandingthat someferriesformed · part of territoryof East Pakistan. In theviewof theTrialCourtthe State of West Bengaladoptedinconsistentdefences. While realisingthe re venue the State claimedthat the entirerevenue-payingestate was · within its 1 jurisdiction,but whenthe plaintiffclaimedabatement ofrevenuethe State pleadedthat becausesome portionof the propertyin respectof whichabatement was claimedhad fallen within the Dominionof Pakistan, the Courthad no jurisdiction. lt was noturged before the TrialCourtthat it was incompetent toentertainthe suitfor abatementof revenue.Before the High Court the two learnedJudges who heardthe appealdiffered. AmareshRoy, J., .observedthat the State of WestBengal-had neverraisedthe plea that the CivilCourtwas incompetentto try the suit. ThelearnedJudge observedthat evenafter the atten tionof the-Government Pleader for the_ State wasinvitedthereto hedeclinedto adoptthat pleaand it was not open to theCourt ofits own"to take up thecontentionand to non,Suit the plain tiff." S. K. Sen, J., wasof theviewthat the CivilCourtwas notcompetentto entertainthe suit.Apparentlythe pleawas neverraised in the writtenstatementand wasnot arguedeven afterone of the Judges in the HighCourtinvitedcounselto argueit. It is undisputedthat there is no express bar underany A l B c D E F G H '•/ ' A B c D E F H R.N. SINHA V. WESTBENGAL (Shah, J.) 547 of thestatutes to the maintainabilityof thepresentsuit, nor is our attentioninvited to anyprovisioqsof lawor circumsances whichmay .iustify an inferenceto thateffect. Jn deferenceto the view expressedby S. K. Sen J. we may brieflyrefer to the statutoryand administrative ord~rs on which reliance- was placedby counselfor the State to supportthe vie: expressed by the learnedJudges. Section 9 ofRegulationXIX - of1816provided: "In the event of its appearingthat the profitsderived from any resumedferry may have been included in the permanentsettlement of theestateto whichit has heretoforebeen annexed,the Boardor Commissioner, under whose ordersthe inquiry may beconducted, shallreportthe circumstances,with an opinionon the meritsof the claim, forthe considerationand orders oftheGovernor-Generalin Council;and the courtsof judicatureshall not takecognizanceof any claim to deductionsor compensationson accountof the tolls leviedat any ferry or ghaut."' This section does not excludethe jurisdiction of the Civil Court to entertaina claimfor abatementof revenueseparately assessed· in respectof a ferrywhichhas beenresumedor hasbeen com' pulsorilyacquired. RegulatiOrr 19 of 1816 was repealed by Regulation VI of 1819by whichthe managementof the ferries. was transferred from the Cotrectorto theMagistrate.Clause Ill of Regulation VI of1819,insofar as it is relevant,provided: "First. No ferries shall be hereafterconsidered publicferries,except such as may be situatedat or nearthe Sadr Stations of theseveralMagistratesor JointMagistrates,or such as may intersectthe chief militaryroutes or othermuch freque.nted roads,or such as from specialconsiderationsit mayappear ad visableto placeunderthe moreimmediatemanagement oftheMagistratesand JointMagistrates. Second. The Governmentreserves to itself the powerof determiningfrom time to timewhatferries shallunderthe precedingrule be deemed public ferries and as suchshallbe subject to theimmediatecontrol of the Magistratesand JointMagistrates, Third.It will be the duty of the Several Magistrates andJointMagistratesto preparelists of theferrieswhich intheirjudgmentshould' und~r the foregoing.rules be 5~8 SUPREME COURT. REPORTS (1971] 2 S.C.R. consideredto bepublicferries,and transitthem as A soonprepared through the Superintendentsof Police fortheinformationand ordersof Government." Clause IV dealtwith the powerof appointing proper personsto thechargeof thepublicferries,for thepurposeof regulatingthe numberand descriptionof boats to bemaintainedfor preventing el!9ctions andgenerallyfor promotingthe efficiencyof thePolice and the safetyand convenienceof thecommunity. Clause VI de claredthat the exclusive right to plypublicferriesshall belong toGovernmentand no personshall be allowedto employa ferry boatplyingfor hirewithoutthe previoussanction of the Magis trate.The otherclausesdealt with the procedureand powersof theMagistratewith regardto publicferries.This Regulation dealtwith the powerof the Government· of Bengal to declarea particularferry to bea publicferry and to manageit. There is nothingin theRegulationwhich excludesthe jurisdictionof the Civil Court inthematterof revenue qua a privateferry resumed or acquired. RegulationVI of 1819 was repealedby ActI of1866.By s. 2 of Actl of1866Act it wasprovidedthat everyferry which ha.s been or may be declared to bepublicferry under the provi sions of RegulationVI of 1819shall belongexclusivelyto the Government.By s. 4 it was providedthat all claimsfor com pensationwhich may be preferred by anypersonor personsfor losswhichmay be sustainedby them in consequenceof any ferryhavingbeen declaredpublic as aforesaidshall be inquired into by· suchMagistrate,who shallawardcompensation to any suchpersonor persons who mayappearjustly entitledthereto. 'But Act I of1866has no application because the f~rries of plain tiff'spredecessorwere resumedby the Governmentbetween the years 1857 and 1860. Inanycasethere is nothing to showin anyof theprovisionsto whichour attention was invitedthat a suit for abatementof revenuefor resumptionof theferries is excludedfrom the jurisdictionof the Civil Court. In Secretaryof State for India in Co1'11ci/ v. Maharajadhiraja Kameshwar Singh Bahadur( 1 ) ·on which Counsel forthe State re liedit was heldby theHigh Court of Patna thatthe jurisdiction of the CivilCourt was barred ty implication in respectof a suit filed onthegroundthat compansationawarded was inadequate and was basedon wrongprinciple.That case has. in our jud~ ment.no bearingon thepresentcase. The methodfor determ_ii; ing the compensation is providedby ActI of1885and the CIVIi Court'sjurisdiction ""to determinecompensationmay pro tanto may be deemedexcluded. it) !. L. R. 15 Pat.246. B c D E G H j A B c D F G H R· N, SINHA v. WEST BENGAL (Shah,/.) 549 Reliance was also placed upon ~· 159 in the BengalTauzi Manual, 1940, whichcontainsrules for thecollectionof and accountingfor land revenue and cesses in. Bengal.Rule 159, insofaras it is relevant,provided : "The power of S!l11Ctioning abatementof the re venue or rentdemandof anestateduringthe currency of a settlement will be- exercisedby Collectors, Com missioners,and theBoardof Revenue as shown below:- " Thediverseclausesof r. 159 vestedpower in differentclasses of officers to sanctionabatementof rent orrevenue.For inst!lllco, the Collectorhad power to sanctionabatementof rentor revenue uptoa totalof Rs. l,500/- in a singleyear in allestates manag eddirectby the ProvincialGovemmvnt : theCommissionerhad powerto sanctionabatementof revenueupto Rs. 5,000/. Again theCollectorhad powerto sanctionabatementof revenuein temporarily•settledestates bearinga revenuenot exceedingRs. 500/-. It wasalsostatedthat .the Collectorhad powerto sanc tion in allestatesabatements in consequenceof theacquisitionof landunderthe LandAcquisitionAct I of1894,and the Board ofRevenuealone had powerto sanctionabatementsdue to diluvion,ascertainedafter a surveyconductedunder. Act IX ot 184 7. TheBoardalone had powerto sanctionabatementof rentor revenuein othercasesnot specifiedin r. 159. The Ben gal TauziManual 1940 does not disclo~ the authorityunder whichit waspublished,and the sanctionbehind the rules. . The Boardof Revenuefrom time to time publishedinstructionsrelating totheadministrationof revenuelaws. The rules and instructions setoutin theManualare apparf!ltly not statutory.Even assumingthat theyare statutorythere is-nothingto indicatethat theyexcludethe jurisdictionof lhe Civil Courtin respect·of matters relatingto abatementof revenuein thecivilsuits,and as rightlyconcededby counselfor the State of WestBengal, there: h: no evidence th.at any ru~e like r. 159 was in operationat the time whenthe femesbelongmgto the Zamindar were resum ed oracquiredby theGovernmentof the Province of Bengal. S._ ~· Sen, J., was, ~ our_iu.dgment, in err.or in holdingthat the Cm! Courthad no 1unsd1ctlonto entertamthe claimfor abatem~n.t of revenueand f?r .a declarationthat the plaintiff was nN hableto payrevenue 1n respect of the ferrieswhich were resumed by the Government. . The ~ppeal is allowed.The orderpassedby theHighCourt 1s set aside and the orderpassedby theTrialCourt is restored withcostsin thisCourtand in the HighCourt. V.PS. 8-L436 Sup CI/71 Appealallowed. |
