Jharia Water Board vs Jagdamba Loan Co. Ltd. and Others

Dhavle, J.—This is an appeal by the Jharia Water Board, defendant 1. The suit was for a declaration that assessments of royalty cess under the Jharia Water Supply Act, 1914, made by the appellant Board on three sums of money were ultra vires and for a permanent injunction against their realization.

The plaintiff, the Jagdamba Loan Co. Ltd, admitted receipt of two of these sums, but claimed to have received them only as mortgagee from the owner of the coal lands (represented by the pro forma defendants), the mortgage bond making the mortgagor liable to pay all taxes, rents, etc. and that the assessments were also illegal because no notice was served upon the plaintiff company u/s 58 of the Act. The receipt of the third sum was denied, and the denial was upheld by the trial Court; this part of the decision was not challenged in the lower Appellate Court and does not any longer concern us. As regards the other two sums of money both the lower Courts have held that the Company is not entitled to exemption from assessment because of the mortgage set up by it.

The trial Court also held that the assessment was not rendered invalid by reason of the failure of the Board to serve the notice u/s 58, but the District Judge held that the notice was imperative, with the result that the suit was decreed in respect of these sums also. The only contention advanced on behalf of the appellant Board is that the notice referred to in Section 58 of the Act is for the benefit not of the assessee but of the Board and that the failure to serve it does not render the assessments invalid. It has been contended on behalf of the plaintiff-respondent on the other hand that the notice goes to the root of the jurisdiction of the Board to assess, and that therefore the two assessments in question were invalid.

Section 56 of the Act imposes a cess on royalties payable by each person who receives royalty from any mine situated within the area to which the Act applies, and Section 58(b) provides that the Board shall cause a notice to be served on each receiver of royalty requiring him to lodge (in the office of the Board) a return of all royalty received by him. The Act does not seem to make any other provision regarding this notice, but provides in Section 61 that when the quantity of coal and coke despatched and the amount of royalties have been ascertained and determined, the Board shall cause to be served on the owner of every mine and the receiver of every royalty a notice showing the amount of tonnage cess or royalty cess respectively.

This offers a curious contrast to the notice which is to be served u/s 58(a) on each mine owner requiring him to lodge a return of the quantity of coal and coke despatched from his mine and of the royalties payable in respect of that quantity together with the names of the persons to whom they are payable. Section 59 provides that if this return be not furnished or be untrue or incorrect, the Board shall proceed to ascertain and determine by such ways or means as to them shall seem expedient the quantity of coal and coke despatched from the mine-concerned and for this purpose shall have power to require the production of any register kept by a mine owner. Under the next Section, so soon as the Board shall have ascertained and determined u/s 59 the quantity of coal and coke despatched, they shall cause to be served upon the owner of such mine a notice informing, him of the quantity so ascertained and determined.

It will be seen that this notice is different from the notice u/s 61 showing the amount of tonnage cess payable, and that the Act does not provide what the mine-owner and the Board are to do upon the issue of the notice u/s 60, while as regards the receiver of royalty (as I have already indicated) nothing at all is said after Section 58. Section 64(a) empowers the Local Government to make rules regarding "the manner of assessing and recovering the cesses .... payable under this Act." Rule 3 of these rules enables the Board to require the Deputy Commissioner to furnish lists giving the names of all persons who have received royalty on account of a mine or mines within the area of supply and the amount of royalty received by each such, person. Rule 4 provides that the Board shall, by means of such lists, when so required'' and furnished, and of the returns furnished by mine owners u/s 58, and by such other means and ways as to it may seem expedient, ascertain and determine the quantity of coal despatched from each mine and the amount of royalty received by each royalty receiver, and shall cause to be served upon each mine owner and upon each royalty receiver, respectively, a notice informing him of the quantity of coal or the amount of royalty, as the case may be, so ascertained and determined. We next have Rule 5 providing that any person upon whom a notice has been served by the Board may, within 15 days from the receipt of such notice, apply to the Board to revise the estimate as set forth therein.

The rules thus in some way supply an, apparent lacuna in the Act in respect of royalty receivers. But there is nothing in them or in the Act itself to show that the failure to issue a notice u/s 58(b) will invalidate the assessment.

It has been found by the lower Courts that the notice under Rule 5 was served upon the plaintiff Company and that the Company thereupon objected, though unsuccessfully, that being mortgagees in possession, they were not liable to pay any royalty cess and that, further, the mortgagor had covenanted with them to pay all taxes, rents, etc. Section 79 provides for an appeal against the assessment of tonnage cess or royalty cess to the Commissioner of the Division, but it is not the case of either party before us that the right of the assessee to apply to the Civil Court is in any way affected by this provision.

Now, as was said by Denman, J., in Caldow v. Pixell (1877) C.P.D. 562 the rules for ascertaining whether the provisions of a statute are directory or imperative are very well stated in Maxwell on the Interpretation of Statutes; the scope and object of a statute are the only guides in determining whether its provisions are directory or imperative, and in the absence of an express provision the intention of the Legislature is to be ascertained by weighing the consequences of holding a statute to be directory or imperative.

The learned District Judge thus correctly referred to a passage from Maxwell, Chap. 12, Section 3, "imperative or Directory" (Edn. 7, p. 316) which in effect says that the question is in the main governed by considerations of convenience and justice, and that in arriving at a conclusion upon it we are not to impute to the Legislature such intention as would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect." He also referred to the distinction drawn between cases where the prescriptions of the Act affect the performance of a duty and cases where they relate to a privilege or power. He proceeded to apply to the present case what Maxwell has said about prescriptions which "relate to a privilege or power."

In my opinion this was entirely erroneous. The Jharia Water Board is not a company for earning dividends while carrying on a public utility service but a public authority created by statute for the construction and maintenance of water works and for the supply of water for domestic purposes to the Jharia coal fields, and financed from a tonnage cess and a royalty cess, which it is empowered to levy, and from water rates which it is empowered to charge. We are thus plainly dealing here with a provision of law which affects not the exercise of a privilege or power but the performance of a duty; and the rule applicable in such cases is thus stated in Maxwell:

When a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative.

As illustrations of this rule we may refer to the following passages from the same work which are supported by the cases cited in the foot-notes:

To hold that an Act which required an officer to prepare and deliver to another officer a list of voters on or before a certain day, under a penalty, made a list not delivered till a later day, invalid, would, in effect, put it in the power of the person charged with the duty of preparing it to disfranchise the electors, a conclusion too unreasonable for acceptance.

* * * * The regulations for the conduct of elections under the Ballot Act 1872 were held to be so far directory only that an election was not invalidated by the non-observance of them, unless the non-observance was of a character contrary to the principle of the Act, or might have affected the result of the election.

* * * * The Parochial Assessments Act 1836 (c. 96), after requiring that every poor rate should set forth a number of particulars given in a form respecting the persons and properties rated and that the churchwardens and overseers should sign a declaration at the foot of the form, added that "otherwise the rate shall be of no force." It was held that those last words were confined to the signatures and did not affect the validity of the rate when the other requisites were neglected, because a different construction would have led to inconveniences which the Legislature must be presumed not to have intended. The Public Health Act 1848, (c. 63), in requiring that rates made under it should be published like a poor rate, was also held directory only on the ground of the great inconvenience which would result from nullifying a rate whenever any of the particulars and forms required were not accurately given and followed.

It is plain from this that the question is not whether injustice will result to the Board if the provision of a notice u/s 58(b) were to be regarded as essential and imperative, for, as the learned District Judge himself has remarked, if the Board fails to do so (that is, carrying out the pre scribed procedure which there is no difficulty in carrying out), it has only itself to blame. It is also not the question whether the Board is entitled to disregard the provision concerning the notice u/s 58, Clause (b): The law has said that the Board shall issue the notice, and it is impossible for the Courts to hold that the Board need not issue it. The sole question is whether an assessment made by the Board in disregard of this provision is on that account invalid even if it should be in conformity with all the other requirements of the law, and the answer to this question depends on whether injustice or inconvenience to others who have no control over those exercising the duty would result if the notice were considered essential and imperative. The learned District Judge thought that

it would cause some injustice to the royalty receivers not to insist on the notice, because the result would be that the assessment could be prepared behind their backs and they would be presented with a demand u/s 61 without having had any opportunity to be heard as to the assessment.

But this overlooks the fact that neither the Act nor the rules entitle the royalty receiver "to be heard as to the assessment", and the circumstance that where, as in the present case, Rule 4 has been complied with and the assessee has preferred his objection, it cannot be said that the assessment was made behind his back. To hold that even in such cases the notice u/s 58(b) is essential and imperative, as we have been asked by the plaintiff-respondent to do, would plainly cause injustice and inconvenience to others who have no control over those exercising the duty of assessment, namely the colliery public who have to pay for the water which the Board has been constituted to supply. The assessee is in such a case not a whit the worse for the failure of the Board to issue the notice u/s 58(b), for he gets the notice under Rule 4 while the Act does not restrict the Board to any particular source of information as regards the receipt of royalties. Just as Section 59 empowers the Board to ascertain and determine by such ways and means as to it may seem expedient the quantity of coal and coke despatched, Rule 4, authorizes the Board to adopt means and ways other than those specified to ascertain and determine the amount of royalty received by each royalty receiver., A breach of Section 58(b) by itself leaves not the assessee but the public with a tangible grievance; the provision cannot on a consideration of the scheme of the Act and the rules be regarded as enacted for the benefit of the assessee. The function of the Board in making assessments is not judicial or quasi-judicial, but seems to be purely ad. ministrative and subject to an appeal to the commissioner and an ultimate resort to the Civil Court. And even in matters judicial there are breaches which do not go to jurisdiction: see Section 537, Criminal P.C., Section 99, Civil P.C., and decisions on jurisdiction mentioned in Sukh Lal Sheikh v. Tara Chand Ta (1906) 33 Cal. 68 which was referred to in Hriday Nath Roy v. Ram Chandra A.I.R.1921. Cal. 34. Had the assessment been a judicial matter, I am by no means clear that we could have interfered merely on the ground of want of notice u/s 58(b), when the notice under Rule 4 was served.

The learned advocate for the respondent company has invited us to regard the notice as essential on the analogy in In Re: Kajori Mal Kalyan Mal of General Ganj, , Chairman of the Tikari Municipality v. Alam Ara Begum A.I.R.1926. Pat. 547 and Chairman, Dhanbad Municipality v. Janeswar Bhakat A.I.R.1934. Pat. 83 but these cases are easily distinguishable on principle. What was held in the case in In Re: Kajori Mal Kalyan Mal of General Ganj, was that a full 30 days notice u/s 22(2), Income Tax Act, 1922, was essential to a valid assessment u/s 23(4) of the Act but this was be. cause under the proviso to Section 30(1) of the Act, no appeal lies in respect of such an assessment, while Section 67 of the Act bars'' suits in the Civil Court to set aside or modify any assessment made under the Act. In the case of the Giridih Municipality it was held that when an application u/s 113, Bengal Municipal Act, 1884, disputing liability to assessment, made according to law, is not disposed of in the manner provided by law, all subsequent proceedings with regard to assessment and realization of taxes are ultra vires. This was because the Municipality was only empowered to act in conformity with the powers given by the Act, and Section 116 of the Act provided that "no objection shall be taken to any assessment or rating in any other manner than in this Act is provided."

In the Dhanbad case in Chairman, Dhanbad Municipality Vs. Janeswar Bhakat and Others, it was held that the imposition of a latrine tax on certain shops was ultra vires for breach of Section 86(a), Bihar and Orissa Municipal Act, 1922, which provides that

the tax shall be imposed only on holdings containing dwelling houses...and on holdings containing shops or places of business in which, in the opinion of the Commissioners at a meeting, a latrine, urinal, or a cesspool is required.

The requirement of the law regarding "the opinion of the commissioners at a meeting" was too plainly imperative on the very wording of the Section to admit of any serious argument to the contrary. In my opinion the learned District Judge was in error in holding that the assessment of the royalty cess was invalid merely because the notice u/s 58(b) was not issued and that the Court can interfere with it even though there is no dispute about the amount of royalty received or about the quantum of cess payable on it under the law.

The learned advocate for the plaintiff, respondent has urged by way of cross-objection that the two amounts admittedly received by the company were not liable to be assessed in the hands of the company as royalty. In support of this contention he has referred to the terms of the mortgage bond whereby on the one hand the mortgaged property is conveyed to the mortgagee inclusive of all rents and royalties payable to the mortgagor from the tenants, and on the other the mortgagor appoints the Managing Director and manager of the mortgagee company jointly and severally to be the attorney of the mortgagor to recover, receive, and give effectual discharges for all rents and royalties which may become due and payable to the mortgagor from the tenants, and also stipulates that he, the mortgagor, would pay all taxes, rents, etc. The provision about the appointment of the attorney does not seem to have been understood in the lower Appellate Court.

It is common enough in English mortgages and is designed to save the mortgagee from the liability of accounting on the footing of wilful default as a mortgagee in possession : see Janaki Nath Ray and Others Vs. Asad Reza, . But it is unnecessary to pursue that point because, as the learned District Judge has pointed out, the plaintiff company brought suits for the royalties in question in its own name and recovered them in that way; and indeed that was the case of the plaintiff company itself in para. 4 of the plaint. On the pleadings, therefore, the moneys have rightly been treated as royalties in the hands of the plaintiff, respondent. The cross, objection, therefore fails.

I would accordingly allow this appeal, set aside the decree of the District Judge and restore that of the Subordinate Judge. The result would be a decree in favour of the plaintiff in respect of the sum regarding which there has been no dispute in this or the lower Appellate Court, and a dismissal of the suit in respect of the other two sums. In respect of the former sum the plaintiff company should get costs of the trial Court, but in respect of the other two sums, it should pay costs of all the Courts to the appellant Board.

Agarwala, J.

I agree.