Harendra Krishna Basu vs Province of Bengal

Das Gupta, J.—The question raised in this appeal is whether the Revenue Officer acted with or without jurisdiction in estimating fair rent at Rs. 410-15 on a plot of homestead land. In making this estimate, he was purporting to exercise power u/s 3 of the Bengal Non-Agricultural Lands Assessment Act, 1936, hereinafter referred to as the Act. The Plaintiffs'' case is that the land on which rent has been assessed is not non-agricultural land at all within the meaning of the Act and that consequently the Revenue Officer had no jurisdiction to assess rent at all. The Defendant''s contention was that the land was non-agricultural land within the meaning of the Act, that the suit was not maintainable and that it was barred under the provisions of the Bengal Non-Agricultural Lands Assessment Act.

Both the courts below rejected the defence contention that the land was non-agricultural land within the meaning of the Act. They held, however, that the Revenue Officer cannot be held to have acted without jurisdiction and that the position in law was that he acted with jurisdiction though in exercise of that jurisdiction he made an error. It was held further in view of this that the suit was barred u/s 17 of the Act.

The contention on behalf of the Appellants before us is that the courts below erred in thinking that the Revenue Officer acted with jurisdiction. It may be mentioned at the outset that it is not disputed that if it be found that the Revenue Officer did act without jurisdiction, the present suit would be maintainable. This is not one of the cases which fall within the class of cases mentioned in Lord Esher''s famous judgment in Reg. v. Commissioners of Taxes (1888) 21 Q.B.D. 313, 319 where a court which is given jurisdiction on the happening of certain facts is also given jurisdiction to decide finally whether those facts exist. In the present case, if the facts which would give jurisdiction are proved not to have existed, a suit will be maintainable in the civil court that the Revenue Officer acted without jurisdiction and for consequential relief.

The sole question, therefore, is whether in estimating fair rent, the Revenue Officer acted with or without jurisdiction. There are three statutory provisions from which Revenue Officers may derive their jurisdiction to assess rent. One of these is Section 104 of the Bengal Tenancy Act which provides that:

In every case in which a settlement of land-revenue is teabag, or is about to be made, the Revenue-Officer shall, after publication of the draft of the record-of-rights u/s 103-A, Sub-section (1),-

(a) settle fair and equitable rents for tenants of every clause....

Another provision is Section 105 of the same Act which provides:

(1) When, in any case in which a settlement of land-revenue is not being made or is not about to be made, either the landlord or the tenant applies, within four months from the date of the certificate of the final publication of the record-of-rights u/s 103-A, Sub-section (2), for a settlement of rent, the Revenue officer shall settle a fair and equitable rent in respect of the land held by the tenant.

The third provision is Section 3 of the Bengal Non-Agricultural Lands Assessment Act, 1936, which provides:

When an order has been made u/s 101 of the Bengal Tenancy Act, 1885, or u/s 4, in respect of any local area, estate, tenure or part there of which a settlement of land-revenue is being or is about to be made, the Local Government may make an order directing the Revenue Officer, after recording u/s 102 of the said Act or u/s 4 those particulars which are relevant, and after publishing the draft of the record-of-rights and disposing of any objections thereto in accordance with rules made by the Local Government under the Bengal Tenancy Act, 1885, or under this Act, as the case may be-

(a) to estimate fair and equitable rents-

(i) for all, or any class of, tenants of all or any non-agricultural lands, and

(ii) for all or any non-agricultural lands which are held khas by a landlord in such local area, estate, tenure or part, and

(b) to prepare in the prescribed form and manner a roll in which the rents so estimated, together with such other particulars as maybe prescribed, shall be specified.

Admittedly, in this case, there was no question of making any assessment under the provisions of Section 104 of the Bengal Tenancy Act, as this was not a case in which a settlement of land revenue was being, or about to be made, this being Khas Mahal land. It was also not a case u/s 105 of that Act as jurisdiction to assess rent therein is derived from an application by the landlord or the tenant and there was no such application in the present case. The only way, therefore, the Revenue Officer could have jurisdiction to assess rent was u/s 3 of the Bengal Non-Agricultural Lands Assessment Act, 1936. The provisions of that section, however, limit the jurisdiction only to cases of non-agricultural lands. This section does not give any jurisdiction to assess rent for agricultural lands. Prima facie, therefore, the Revenue Officer had no jurisdiction to assess rent for the lands in the present case which on the findings of the courts below must be held to be agricultural land and not to come within the definition of non-agricultural land under the Act.

It is contended, however,-and this contention appears to have found favour with the courts below-that once a notification is made u/s 101 of the Bengal Tenancy Act, so that under that Act as it stands after the amendment of 1928, the record-of-rights may be prepared as regards non-agricultural lands also, there is almost an automatic jurisdiction to assess rent u/s 3 of the Bengal Non-Agricultural Lands Assessment Act, 1936. As I understand the argument, as it has been placed before us by the learned Assistant Government Pleader, it is that once a record has been made that the land is non-agricultural, that must be held to be correct under the provisions of Section 103 and that itself brings the jurisdiction u/s 3 of the Bengal Non-Agricultural Lands Assessment Act, 1936, into operation. This argument proceeds on the wrong assumption that the presumption of correctness of the settlement record as regards non-agricultural land cannot be rebutted. In the present case, we find that it has been rebutted as the concurrent findings of both the courts is that the land is not non-agricultural land. As I understand the provisions of Section 3 of the Bengal Non-Agricultural Lands Assessment Act, it does give jurisdiction to Revenue Officers to assess rent on lands which are really non-agricultural lands and not on lands which he thinks to the non-agricultural lands. There is no doubt that the Revenue Officer acted in the bona fide belief that the land was non-agricultural land within the meaning of the Act but a wrong belief does not confer jurisdiction. The fact remains that it was not non-agricultural land within the meaning of the Bengal Non-Agricultural Lands Assessment Act, 1936, and I am unable to find anything in law or principle which could bring the jurisdiction u/s 3 of that Act into operation. It has to be remembered that the entry in the record-of-rights of agricultural land as non-agricultural land does not make agricultural land non-agricultural. If the land is in fact agricultural and not non-agricultural within the meaning of the Act, there is no means in law of attracting the operation of Section 3 of the Act.

I have, therefore, come to the conclusion that the Revenue Officer acted without jurisdiction in assessing rent on the Plaintiffs'' homestead land.

It is not disputed that once it is found that the act of the Revenue Officer was without jurisdiction, the provisions of Section 17 of the Bengal Non-Agricultural Lands Assessment Act will not stand in the way of the Plaintiffs getting their remedy by way of suit.

I would, accordingly, allow this appeal, set aside the judgment and decree passed by the learned court below and order that the suit be decreed and a declaration be made that the assessment of rent of the disputed homestead land is without jurisdiction and that the Defendant be permanently restrained from realising the rent thus assessed.

The Appellants will get their costs in all courts.

Guha, J.

I agree.