P L D 1958 Dacca 507 (PLP)

AKBAR, J.‑The only point which arises for determination in this second Appeal is whether Touzi No. 7193 of Bakarganj Collectorate was legally and properly attached under section 99 of the Bengal Cess Act (Bengal Act IX of 1880).

2. The material facts lie within a short compass and are for the most part undisputed. In the Saidpur Zamindari, Rai Bahadur Behari Lal Mitra had 13‑anna share and Babu Shyam Lal Das had the remaining 3‑anna share. The said zamindari, bearing Touzi No. 3856, was partitioned and the 3‑anna share of Shayam Lal Das Babu after partition bore Touzi No. 7193. The 13‑anna share of Rai Bahadur bearing Touzi No. 3856 was managed by the Administrator‑General of Bengal as Exe cutor to the estate of the said Rai Bahadur. Rai Bahadur had several tenures and under‑tenures within the 3‑annas estate of Shyam Lal Das Babu. Similarly, the latter held same tenures and under‑tenures under the 13‑anna estate of Rai Bahadur. Generally, the claims of these estates against each other were adjusted by set‑off leaving a balance of over Rs. 5,000 in favour of Shyamlal Das Babu. As Touzi No. 7193, i.e., the 3‑anna estate of Shyam Lal Das Babu, fell in arrears, the Collector started Certificate cases against the said estate under the Public Demands Recovery Act and the properties were advertised for sale. Shyam Lal Das Babu's application for garnishee proceeding against the Administrator‑General was allowed and hence the Administrator‑General paid some of the dues of Shyam Lal Das Babu, and thereafter successfully challenged the propriety of the garnishee proceedings up till the High Court. On Shyam Lal Das Babu's prayer that if his estate was attached under section 99 of the Cess Act he would make a trust of his property for the benefit of Barisal Sadar Hospital, the Collector in 1941 attached his 3‑apna estate (Touzi No. 7193). After attachment, 26 Certificate cases were started against the Administrator‑General, but later 9 of them were abandoned. The Administrator‑General then filed a suit, being Title Suit No. 45 of 1953, challenging the validity of the said attachment and the Certificate cases. The said suit was decreed and the decree was eventually upheld by the High Court.

3. On 7‑8‑45, the Collector again attached the said 3‑anna estate of Shyam Lal Das Babu under section 99 of the Cess Act and 46 Certificate cases were started by the Manager of the attached Estate against the Administrator‑General. He then filed the suit under appeal challenging the propriety and legality of the attachment and the Certificate cases.

4. The Province of Bengal and Collector of Bakarganj contested the suit by filing a joint written statement. Their contention was that the attachment was valid and proper. They further contended that the estates having been acquired by the Government, the plaintiff's suit was not maintainable.

5. The learned Munsif found (1), that the suit was main tainable ; (2) that the mere fact that the certificates which were filed against the proprietor under section 98 were pending would not make attachment under section 99 bad. In other words, according to him, the Collector had authority to proceed simultaneously under sections 98 and 99 of the Cess Act ; and (3) that the Collector was, therefore, entitled to file the 46 Certificate ' cases against the plaintiff.

6. In view of the above findings, he dismissed the suit of the plaintiff.

7. On appeal by the Administrator‑General, the learned Additional District Judge found (1) that the suit was maintainable ; and (2) that no proceeding under section 98 was pend ing on 7‑8‑45 when the estate was attached under section 99 of the Cess Act and, as such, the attachment was valid and proper. The learned 'Judge was, however, unable to agree with the learned Munsif that the Collector had power to proceed simultaneously under sections 98 and 99 of the said Act. He, therefore, observed: " In my opinion, the Collector can proceed all at once under section 99 without having taken any action under section 98 but if he had taken any action under section 98 all the processes under that section must first be exhausted before he can proceed under section

99. A decision on that point after all appears to me to be an obiter dictum in view of the fact, as already stated above, that this is nobody's case and this is not a fact that any proceeding was pending on the date of the order in question. The Collector has begun proceedings quite afresh apparently in view of the decree passed in Title Suit No. 25 of 1943 ". He, therefore, dismissed the appeal. The Administrator‑General has now filed this appeal.

8. The learned Advocate for the appellant has not chal lenged before us the finding of the learned Judge that on 7‑8‑45 no proceeding under section 98 was pending. We find that in the plaint it is stated that on 7‑8‑45 a proceeding under section 98 was pending; but curiously enough, they led no evidence in support of the above allegation. The learned Judge has, however, given cogent reasons for holding that no proceeding was pending under section 98 at the time of attachment under section

99. In any event, this finding has not been challenged before us by the learned Advocate.

9. The only contention of the learned Advocate for the appellant is that the Collector, without first exhausting processes under section 98, was not entitled to proceed under section 99 of the Cess Act. We are unable to accept this con nection. Sections 98 and 99 are as follows: "

98. Every amount due or which may become due, to any Collector under the provisions of this Act in respect of any arrears of cess, of any expenses incurred, of any fee of costs payable, of any notices served, of any fines imposed, or on any other account, may be realized by such Collector by any process provided by any law for the time being in force for the realisation of public demands; and shall be deemed to be a public demand under such law: . . . . . . . . . . . . . . . . . . . . . . .

99. Instead of proceeding as provided by last preceding section for the recovery of any sum due under this Act, or if after so proceeding the Collector shall have failed to find property belonging to the person from whom any such sum is due, by the sale of which such sum may be fully recovered, the Collector may, if he see fit, after recording his opinion to that effect, cause a notification in form in Schedule contained to be issued for the estate or tenure in respect of which any such amount is due. . . . . . . . . . . . . . . . . . . . . . . .

10. Now, while dealing with those two sections, Edgley, J., in the case of Dalip Kumar Dutta Gupta and others v. Sridhar Dalui and another (44 C W N 259), observed as follows: " According to the general scheme of the Cess Act with regard to the realisation of arrears of cess, it appears that the Collector is empowered (a) under section 98 to realise arrears of cess as a public demand or (b) to proceed under section 99 of the Act. The policy of the Legislature in enacting section 99 of the Act appears to have been to provide a less drastic method for ensuring the payment of Govern ment dues in respect of arrears of cess than that which has been provided by the Revenue Sale Law, under which estates in arrears may be sold free of encumbrances and under section 99 of the Cess Act, the only way in which intermediate tenures would be affected would be by reason of the payment of rent due to such intermediate tenures to the Collector instead of to the tenure‑holders until such time as the total amount of arrears of cess due in respect of the defaulting estate or tenure had been fully recovered ". We respectfully agree with the above observation. We may further point out that the first sentence in section 99, namely‑ " Instead of proceeding as provided by last preceding section for the recovery of any sum due under this Act " makes it clear that the Act empowers the Collector either to proceed under section 98 or under section

99. Furthermore, the second sentence in the said section 99, namely :‑ " ..if after so proceeding the Collector shall have failed to find property belonging to the person from whom any such sum is due, by the sale of which such sum may be fully recovered ". also show that even after starting a proceeding under section 98 the Collector may proceed to attach the estate under section

99. All that could be said is that after starting a proceeding under section 98 he must abandon that proceeding before taking action under section 99 ; but we are unable to accept the argument of the learned Advocate that the Collector must first exhaust all the processes under section 98 before attaching the estate under section

99. The following passage in section 99, namely- " . . . if after so proceeding the Collector shall have failed to find property belonging to the person from whom any such sum is due by the sale of which such sum may be fully recovered, the Collector may, if he sees fit, after recording his opinion to that effect, cause a notification in form, in Schedule F . . . . . " also indicates that even after starting a proceeding under; section 98 he can abandon that proceeding and take recourse to section 99.

11. If he wants to proceed under section 99 after starting a proceeding under section 98, he must however, be satisfied that the dues of the defaulting Zamindar cannot be fully recovered by sale of his properties and record an opinion to that effect.

12. This was done as would appear from the following obser vation in the Notification and whereas the amount due from the proprietor together with interest thereon and costs of certificates could not be realized during the long years and whereas it further appears that the above‑named Touzi is under mortgage debt to Babu Abinash Chandra Guha Choudhury for a heavy amount as stated in the petition of the proprietor dated 10‑6‑41 and that his properties are heavily encumbered and whereas I am satisfied that the defaulting proprietor has not sufficient property by the sale of which the amount due from him may be fully recovered . . . . . ". The above also implies that he has abandoned the proceedings, if any, under section

98. We, therefore, agree with the lower Appellate Court that as no proceeding under section 98 was pending, the Collector was entitled to attach the estate under section 99 of the Cess Act. No other point was urged in this appeal.

13. In view of the above findings, we are of opinion that the decision of the lower Appellate Court is correct. We, therefore, dismiss this appeal with costs. MURSHED, J.‑‑I agree. K. B. A. Appeal dismissed.