P L D 1960 Dacca 590 (PLP)

AMIN AHMED, C. J.‑This appeal is on behalf of defendant No.

2. It is from a decision of the Subordinate Judge, 3rd Court, Chittagong, affirming a decision of the Munsif, 2nd Court, Chittagong.

2. The appeal arises out of a suit for a declaration that the sale of Taraf Sambhu Nishan bearing Touzi No. 2911 of the Chittagong Collectorate held in a revenue sale for arrears of Road cess and Education cess is without jurisdiction.

3. The plaintiff's case inter alia is that the revenue of the mahal is payable in two kists as follows: Revenue. Road Cess. Education Cess Rs. a. p. Rs. a. p. Rs. a. p. Sep. kist 4 4 2 2 0 0 2 5 0 March kist 12 12 4 1 8 6 2 5 9 The plaintiff used to pay his annual dues of both the kists usually in March, and he also sometimes made advance pay ments under the head revenue, and, as he received no notice of increment of cesses, the estate fell into arrear for a petty amount of annas thirteen under heads Road cess and Education cess, which was due and payable in respect of the September kiss of 1950, and the property at the instance of the Collector was sold on the 6th January 1951, on account of this arrear of annas thirteen though there was an advance payment in respect of the revenue, and it was purchased by defendant No. 2 appellant and the sale notice was published in the name of a dead person, the father of the plaintiff, who was the original proprietor. The plaintiff preferred an appeal before the Divisional Commissioner, but that appeal was held to be barred under section 33 of the Bengal Land Revenue Sales Act (XI of 1859), which we shall herein after call the Act. It is claimed by the plaintiff that the Collector had no jurisdiction to put up the mahal for sale for arrear of cesses in respect of the September kist as that was not the last kist as expressly mentioned in the last proviso to subsection (2) of section 2 of the Act, as amended by the Bengal Land Revenue Sales (East Bengal Amendment) Act (II of 1949), which we shall hereinafter call the Amending Act.

4. The defence of defendant No. 1, the Province of East Pakistan, was a total denial of all irregularities and illegality in respect of the sale, and that the Collector was right in putting up the mahal for sale for legal arrears under subsection (2) of section 2 of the Act.

5. Defendant No. 2, who purchased the mahal at the auction- sale, in his written statement stated that the Collector was not bound to serve notice under sections 5, 6, 6‑A and 7 of the Act, and, as he was granted; the sale certificate and took delivery of possession through the Collector, the plaintiff could not get any remedy, and was estopped from alleging any irre gularity, and that the Collector was right in putting up the mahal for sale in respect of the lost immediately preceding the sale, i.e., for September kist.

6. The trial Court decreed the suit and set aside the sale holding that although the word "last" before the word "instal ment" in the second proviso to subsection (2) of section (2) of the Act meant "immediately preceding", the mahal could not be sold for the September kist inasmuch as the sale notice was published in the name of a dead person as the proprietor, and as the Touzi ledger was not corrected, and notice was served on a dead person, there was a breach of duty on the part of the Collector, and, therefore, the sale was vitiated by such an illegality, and it was without jurisdiction.

7. Against this decision, an appeal was filed by the auction purchaser, defendant No. 2, and a cross‑objection as to the inter pretation of the second proviso to subsection (2) of section 2 of the Act was also filed by the plaintiff who is the defaulting pro prietor. The learned Subordinate Judge, who heard the appeal and the cross‑objection, dismissed the appeal and allowed the cross‑objection, and affirmed the judgment and decree of the trial Court, setting aside the sale on a different ground, that is, holding that the sale was without jurisdiction inasmuch as the mahal was sold on the 6th of January 1951, in respect of arrears of cesses of September kist, though September kist is not the last kist according to the second proviso to subsection (2) of section 2 of the Act. It is against this decision that the present Second Appeal has been preferred.

8. This appeal was first placed before Chowdhury, J., for disposal, and Chowdhury, J., has referred the same to this Division Bench stating that the point involved in the case being of certain importance it should be heard by a Division Bench.

9. Mr. Mofakher, who appears in support of this appeal, contends that the learned Subordinate Judge erred in holding that according to the provisions of subsection (2) of section 2 of the Act, as amended by the Amending Act, the word "last" before the word "instalment" in the said second proviso means the March kist which is the instalment immediately preceding the sale on the 6th January 1951, and not the September kist which is before the March kist, and is the last but one kist. It is claimed that the word "last" should be given its ordinary meaning, and should be taken as the latest, i.e., the very last, and not in the sense it is taken in the case of revenue kist for which latest day of payment is fixed by the Government as required by section 3 of the Act.

10. Subsection (2) of section 2 of the Act, as amended by the Amending Act, runs as follows: "An arrear of road cess or public works cess levied under the Cess Act, 1880, or of primary education cess levied under the Bengal (Rural) Primary Education Act, 1930, which is payable to the Collector in respect of any estate shall, notwith standing anything contained in those Acts, be deemed to be an arrear of revenue: Provided that the provisions of this subsection shall be in addition to, and not in derogation of, the provisions in those Acts for the realisation of such arrears: Provided further that the provisions of this subsection shall not apply to any arrear of any such cess other than the arrears due in respect of the last instalment or, where the annual demand of any such cess is payable in one annual payment, in respect of the last year."

11. Mr. Guha, who appears for respondent No. 1, supports the, judgment of the lower Appellate Court, and argues that the word "last" which occurs in the second proviso to sub section (2) of section 2 of the Act before the word "instalment" should be taken in the same sense as in the case of a kist under the Act. It is urged that instead of "latest" the word "last" has been advisedly used by the Legislature, and it connotes that the instalment which was last due and payable and fell into arrear according to the Act before the sale took place, and the words "other than the arrears in respect of the last instalment" make that clear. It is also pointed out that section 3 or section 55 of the Act does not speak of latest instalment, but only of the latest day of payment of instalment. The learned Advocate also points out that the words "last year" in the concluding sentence of the said proviso just after the words "last instal ment or" make it further clear that where the kist is an annual one, the mahal can be sold only on account of the default of payment of the kist of the year preceding the year in which the mahal is sold and' not in respect of the defaulting kist of the year in which the mahal is sold. Similarly, the learned Advocate goes on to argue, in a case where there are two kists, e.g., September and March, as in the present case, the last kist or instalment will not be the March kist, but the September kist as although subsection (2) of section 2 of the Act says that the arrears of cesses should be deemed as arrears of revenue, in the last proviso to the subsection it is stated that the mahal cannot be sold in respect of any arrears of cesses other than those of the last kist, and so now after the Amending Act of 1949 came into force, the last instalment in case of arrears of cesses will be the same as in the case of the last instalment of arrears of revenue for which the latest day of payment is fixed.

12. Mr. Jane Alam, who appears on behalf of the Province of East Pakistan, contends that, in order to ensure speedy payment of the arrears of cesses due, the Legislature introduced this amendment in section 2 of the Act in 1949, and the object is to enforce payment of cesses strictly. The learned Assistant Government Pleader has also been good enough to place before us the proceedings of the East Pakistan Legislature when the Bill relating to this enactment was introduced in the said Legislature. He lays stress on the word "last" before the word "instalment" in the second proviso of subsection (2) of section 2 of 'the Act, and claims, like Mr. Mofakher, that the Legislature meant by the words, "last instalment" the "latest instalment", i.e., the instalment preceding the date of the sale, and that this the Legislature might have done in order to give relief to those who were liable to pay huge arrears of prior kists of cesses, and were unable to pay them all at a time when the Amending Act came into force, and so exempted the sale of the estate on account of any arrear in respect of all prior instal ments except that which was the most recent.

13. We cannot say we have got much assistance from the proceedings, but it seems to us that there is substance in the argument advanced by Mr. Guha. We find that although the Act in its last proviso to subsection (2) of section 2 of the Act expressly mentions the word "last" before the word "instal ment", the same word "last" has not been used in any other section of the Act though there has been consequential amend ment of several sections of the said Act. Section 3 of the Act, which deals with the latest day of payment, remains just the same except that the words "at Calcutta" have been omitted. In section 5 of the Act, the only amendment that has been introduced are the words" or cesses" after the words "land revenue", and section 37‑A of the Act has been amended by the Amending Act by converting the full stop at the end of clause (b) thereof into a semi‑colon and inserting the word "and", and a new clause i.e., clause (c) thereafter, so that section 37‑A of the Act after this amendment runs as follows: "Where any estate or share of an estate has been sold under this Act, the defaulting holder of the estate or of a share thereof or any person who holds an interest therein by virtue of a title acquired before such sale or any person whose interests are affected by the sale may, at any time within thirty days from the date of the sale, apply to the Collector to have the sale set aside on his depositing with the Collector‑ (a) for payment to the purchaser, a sum equal to three per cent of the purchase money, but not less than one rupee ; and (b) for payment to the Provincial Government, a sum equal to the amount specified in the notification of the sale as that for the recovery of which the sale was ordered together with such costs, if any, as the Provincial Government may have incurred subsequent to the issue of such notification of sale ; and (c) for payment to the Collector either the whole works or any portion of the arrears of road, public works and primary education cesses, which are due in respect of such estate or share of an estate, and not included in the amount specified in notification of sale as that for the recovery of which the sale was ordered, as the Collector may, in his dis cretion, direct." . And section 55 of the Act has been amended only by the words "or cesses" after the words "arrears of rent", and the amended section 55 runs as follows: "Arrear of rent or cesses which on the latest day of payment may be due to the defaulter from his under‑tenants or raiyats shall, in the event of a sale, be recoverable by him after the said latest day by any process except distraint which might have been used by him for that purpose on or before the said latest day." It may be noticed in passing that this section expressly refers to " the latest day of payment", and section 3 of the Act deals with the last date of payment of instalment ; but the words "latest instalment" do not occur anywhere in the Act. There seems, however, to be no difficulty or doubt as to what the latest day of payment of kist means in case of arrears of revenue. From the Act it seems the works kist is not what it is ordinarily taken to mean in common parlance. We may quote the following passages from Notes 3 and 4 to section 3 of the Act: "Note 3.‑ . . . accordingly by Act I of 1845 another change in the Sale Law was made. The proprietors were allowed a period of grace after every instalment of the revenue fell due in which to pay up their arrears. The end of this period of grace was called the latest date of pay ment, and, on the failure to clear all arrears before sunset of that day, the estate was notified for sale which would take place not less than 30 days from the publication of the sale notification. The Board was authorised to fix the latest dates of payment' and adopted by Notice 2 of 22nd February 1845, the sale date notified under the previous Act of 1841. By a further instruction the Board ordered that the sales for any quarter were to be held before the next latest dates of payment. The effect of the new Act therefore, was to postpone the sales for three months ; and, as the financial year remained the same, the accounts of the sales, could be closed before the end of each quarter of the financial year. By a natural process the original and legal significance of the word kist meaning an instalment was lost in common parlance, and the word was used to denote `the period between one latest date of payment of arrears of revenue and the next'. The quotation is from the minutes of Sir Charles Eiliot, Lieutenant‑Governor (1890‑93) criticising the proposals for the reform of Touzi procedure. Up till 1890, the Touzi Roll contained details of the instalments of revenue, whether these were monthly, quarterly or annual, and the Touzi Ledger was maintained in the form of a `Zamindari account' which showed the instalments of revenue, and the latest dates of payment as well as the collections. When the system of paying revenue and cesses was overhauled between 1892 and 1895, the details of the monthly instalments were omitted from the new Registers, and only the demand, for arrears of which an estate became liable to sale after one of the latest dates of payment, was entered. A rule was inserted in the Touzi Manual to the effect that the word kist was used in the Manual to indicate the latest date of payment under Act XI of 1859, and not the kist of the settlement Doul while at the same time the latest dates of payment were entered in the instalment columns of both Touzi Ledger and Roll. These alterations in the rules, unhappily worded as they were, sometimes led to serious misunderstanding regarding the dues for which estates were sold. It is probably too late to change the loose usage of the word kist to which the Touzi Manual has unfortunately given currency, but in all proceed ings under the Sale Law it must be used in its legal sense of an instalment of revenue, the restricted meaning assigned to it in section 2 of the Revenue Sales Act of 1859, and the sale notices must clearly describe the kist for arrears of which the estate is advertised for auction (C. O. No. 2 of October 1931, Sales Branch File No. 28 of 1931). Note 4.‑Reading sections 2, 3, 5 and 6 together, it would seem that latest date of payment, as mentioned in section 3, is the turning point and all the machinery of the Act for sales seems to hinge on that (Jahnavi Choudhurani v. The Secre tary of State for India in Council 7 C W N 377)."

14. It is now settled that a mahal cannot be sold for an instalment of revenue immediately after its latest date of payment fixed by the Government, and it can be sold only after such last date of payment provided the said instalment is not paid just before the latest date of payment of the next instalment, that is to say, although the date of payment of an instalment is fixed in the sense that its latest date of payment is announced by the Government, e.g., as in the case of quarterly instalments, if an instalment of revenue is due and payable on the 28th September, the estate cannot be sold until the expiry of latest date of payment of the next instalment, that is, the 28th December, when the next quarterly instalment is due and payable. Hence, as the instalments of cesses are payable along with the instalments of revenue, it can (sic) be said that the Legis lature meant to enforce payment of cesses more strictly or earlier than that of revenue, and this will also appear from the various amendments of the sections of the Act mentioned above.

15. In construing the last proviso to subsection (2) of sections 2 of the Act, we should have in the forefront the pro visions of the Cess Act, 1880, and those of the Bengal (Rural) Primary Education Act, 1930, to both of which subsection (2) refers, and it is also mentioned in the first proviso that subsection (2) is not in derogation of but is in addition to the provisions of these two Acts. Under section 40‑A of the Cess Act, arrears of road and public works cesses due in respect of any transferable tenure directly held under the Government estate are recoverable as arrears of land revenue by the sale of the tenure under the Act, but the arrears of such cesses due from any estate held by a private proprietor are not recoverable in the same manner, and section 42 (1) of the Cess Act makes the payment of road and public works cesses due obligatory on the days fixed for the payment of arrears of revenue in case of revenue‑paying estates. Under section 32 of the Bengal (Rural) Primary Education Act, 1930, the provisions of Cess Act, 1880, are applicable in respect of payment and recovery of Primary Education cesses.

16. It seems to us that to ensure speedy payment of cesses the first paragraph of subsection (2) of section 2 of the Act, as introduced by the Amending Act, says that in spite of what is contained in the Cess Act and the Bengal (Rural) Primary Education Act the arrears of cesses will be all treated as arrears of revenue, and; as already stated, consequential amendment has been made in the various sections, particularly, in section 37‑A of the Act, the latter being significant. The first proviso to sub section (2) of section 2 of the Act clearly states that its provisions are in addition to, and not in derogation of, the provisions of the two Acts, relating to cesses, and the second proviso says that the said subsection (2) will not apply to any arrears of cesses except the arrears due in respect of the last instalment, or, in case of one annual instalment, will be applicable only in case of the instalment of the last year. These provisions indicate that they were made to get over the difficulty with which the Government were faced in realising the arrears of cesses before the Amending Act was passed. Before the Amending Act came into force, according to section 42 (1) of the Cess Act, 1880, only the holder of a revenue‑paying estate was required to pay the cesses due in respect of such estate on the days fixed for the payment of arrears of revenue of such estate under, the Act. Because of the provisions of section 37‑A of the Act, as they stood till the passing of the Amending Act of 1949, even the above provisions of section 42 (1) of the Cess Act were not sufficient in cases where it applied, to ensure prompt realisation of cesses like that of revenue, for, a defaulting proprietor or any other interested party could apply within 30 days of the date of sale to the Collector for setting aside the sale after depositing certain amount towards the purchase money and the costs of sale incurred by the Government, and there was no provision enabling the Collector to insist on payment of arrears of cesses as a condition precedent to the setting aside of such a sale. Such a provision has now been made by the Amending Act by inserting clause (c) in section 37‑A set out above, and now discretion is given to the Collector to make the payment of either of the entire or a portion of the arrears of cesses a condition precedent to the setting aside a sale under section 37‑B of the Act, and this ensures realisation of arrears of cesses.

17. I have discussed all these in extenso and have also quoted the above notes from the Bengal Sale Law Manual to indicate what the latest date of payment of an instalment of revenue is under the Act. From what I have already said, it will be clear that for the purpose of recovery of arrears of revenue and sale thereof the word "latest' is not understood, as it is done in ordinary parlance, as being the very last or the most recent ; on the other hand, in one sense it means last instalment but the latest or the most recent one, that is, the last instalment in respect of which the latest day of payment has run out and not paid even till the latest day of payment of the subsequent instalment, and, therefore, with reference to the sale, the word "last" has been used just before the word "instalment" in the last proviso to subsection (2) of section 2 of the Act. Further, as rightly pointed out, the Legislature could not possibly mean that in case of sale in respect of an annual kist it will be in respect of one of the last year, and in case of quarterly or two instalments it will be in respect of the one immediately preceding the sale. There is no doubt that the amendment of section of the Act by the Amending Act only means that a mahal or an estate may be sold for arrears of cesses in the same manner as in the case of arrears of revenue only in respect of the last instalment with reference to the sale which was due and payable and not paid till the latest day of payment of the subsequent instalment.

18. So we cannot accept the argument of the appellant or Mr. Jane Alam's argument that the sale has reference to the very last or the instalment immediately preceding the sale. Although, it is true that on account of accumulated cesses at the time the amended section 2 of the Act came into force, the second proviso to subsection (2) of that section has excepted all arrears of cesses prior to that of the last instalment, it has at the same time provided by inserting clause (c) to section 37‑A of the Act that in the event of interested party applying for setting aside a sale held on account of last instalment of arrears of revenue and/or cesses under the Act the Collector may in his discretion insist on the deposit of the who or part of arrears of cesses other than those which are "due in respect of such estate or share of an estate, and not included in the amount specified in the notification of sale as that for the recovery of which the sale was ordered".

19. The result, therefore, is that this appeal is dismissed. We, however, do not award any costs because it involved a novel point of some intricacy. ASIR, J.‑I agree with my lord the Chief Justice. K. B. A. Appeal dismissed.