Madhuri Varma v. State of Uttar Pradesh — 1961 DIGILAW 70 (ALL)

JUDGMENT Kailash Prasad, J. - These are two connected petitions under Article 226 of the Constitution. They arise from proceedings under the U.P. Large Land Holdings Act. Writ petition No. 2706 of 1959 has been filed by Smt. Madhuri Varma and the Petitioner in writ petition No. 2707 of 1959 is Sri Lutfur Rahman. 2. These Petitioners hold land in the villages of Bhabar area. For the assessment year 1957-58, corresponding to agricultural year 1365 Fasli, the assessing authority assessed a tax of Rs. 489.31 nP. on Smt. Madhuri Verma and of Rs. 254.60 nP. on Sri Lutfur Rahman under the U.P. Large Land Holdings Act (hereinafter referred to as the Act). Being dissatisfied with the orders of the assessing authority, the Assessees filed appeals before the Commissioner u/s 11 of the Act. The Commissioner, by separate orders, allowed the appeals and set aside the orders of assessment. He found that the cases involved certain questions on which there was no evidence or material on record. He, therefore, framed two issues on those points and remanded the cases to the assessing authority with a direction to take all possible evidence for a proper decision on those points and also make a local inspection and, after determining those points, make an assessment afresh according to law. 3. Against the orders of the Commissioner the State filed revisions before the Board of Revenue. It appears that when the cases were received by the assessing authority on being remanded by the Commissioner, the assessing authority proceeded to decide them according to the directions contained in the orders of remand, as no orders staying the assessment proceedings were received by him from the Board. On rehearing the cases, the assessing authority fixed the amount of tax on Smt. Madhuri Varma at Rs. 143.20 nP. but in respect of Lutfur Rahman it found that the annual valuation of the land holding' of Lutfur Rahman was below the assessable minimum. It, therefore, held that no tax was to be assessed on Lutfur Rahman for the year 1957-58. If further ordered that Rs. 63.55 nP. which were paid by Lutfur Rahman on account of the first instalment of the tax originally assessed on him shall be refunded to him. The State filed revisions before the Board of Revenue against these subsequent orders of the assessing authority also. 4. If further ordered that Rs. 63.55 nP. which were paid by Lutfur Rahman on account of the first instalment of the tax originally assessed on him shall be refunded to him. The State filed revisions before the Board of Revenue against these subsequent orders of the assessing authority also. 4. It may be mentioned here that there was another Assessee, namely, Mirza Nizamuddin Ahmad. The assessing authority had originally assessed a tax of Rs. 50 on him. He, too, had filed an appeal before the Commissioner who had allowed it and remanded the case to the assessing authority for determination of two more points which were the same as had arisen in the case of Smt. Madhuri Varma and Sri Lutfur Rahman. In his case, too, the State filed a revision before the Board of Revenue against the order of the Commissioner remanding the case to the assessing authority and another revision against the subsequent order of the assessing authority made on the rehearing of the case after remand. Thus there were six revisions in all before the Board of Revenue. The Board of Revenue disposed of the six revisions by a common judgment dated 25-8-1959. The Board of Revenue allowed the revisions, set aside the orders of remand passed by the Commissioner and also subsequent assessment orders passed by the assessing authority and restored the original assessment orders of the assessing authority. The present petitions by Smt. Madhuri Varma and Sri Lutfur Rahman have been filed challenging the Board's order. 5. The main contention of the Petitioners is that in entertaining the revisions and reversing the orders of the Commissioner and in setting aside the subsequent order of the assessing authority the Board of Revenue exercised a jurisdiction not conferred upon it under the Act. 6. S. 12 of the Act contains provisions for revision by the Board of Revenue. The section runs to the following effect: 12. Revisions. 6. S. 12 of the Act contains provisions for revision by the Board of Revenue. The section runs to the following effect: 12. Revisions. (1) The Board of Revenue may, on their own motion or on an application, call for the record of any proceeding of the assessing authority or the appellate authority by whom the case or appeal was decided if it appears to nave exercised jurisdiction not vested in it by law or to have acted in the exercise of its jurisdiction illegally or with substantial irregularity and may pass such order in the case as they think fit: Provided that no such application shall be entertained in any case where an appeal lay against the order but the applicant failed to prefer it within the time prescribed therefor: Provided further that the Board of Revenue shall not pass any order prejudicial to any party without giving him a reasonable opportunity of being heard. (2) The application under Sub-section (1) shall be made within one year from the date of the receipt of the order complained of, but the Board of Revenue may on proof of sufficient cause entertain an application within a further period not exceeding six months. 7. It will be noticed that powers of revision conferred on the Board of Revenue u/s 12 of the Act are expressed in almost identical terms in which revisional powers are given to a High Court u/s 115 CPC, the only difference being that in Section 115 the word 'irregularily' has been qualified by the adjective 'material', but in Section 12 of the Act the word 'irregularity' has been qualified by the word 'substantial'. We do not think that this imports any real or substantial difference in the scope of the two sections. 8. The scope of Section 115 of the CPC stands well settled and clearly defined as a result of the decision of the Supreme Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, AIR 1953 SC 23 and in Chaube Jagdish Prasad and Another Vs. Ganga Prasad Chaturvedi, AIR 1959 SC 492 . In Keshardeo Chamria Vs. Radha Kissen Chamria and Others, AIR 1953 SC 23 case their Lordships quoted with approval the following observations of the Privy Council in Balakrishna Udaya v. Vasudeva Aiyar 44 I.A. 261. 9. Ganga Prasad Chaturvedi, AIR 1959 SC 492 . In Keshardeo Chamria Vs. Radha Kissen Chamria and Others, AIR 1953 SC 23 case their Lordships quoted with approval the following observations of the Privy Council in Balakrishna Udaya v. Vasudeva Aiyar 44 I.A. 261. 9. 'It will be observed that the section (S. 115 of the CPC) applies to jurisdiction alone, the irregular exercise or non exercise of it, or the illegal assumption of it. This section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.' 10. In Chaube Jagdish Prasad and Another Vs. Ganga Prasad Chaturvedi, AIR 1959 SC 492 case their Lordships of the Supreme Court observed that if a subordinate court bad jurisdiction to make the order it made and had not acted in breach of any provision or law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere u/s 115, CPC. 11. As the Board's powers u/s 12 of the Act are the same as that of a High Court u/s 115 CPC the Board of Revenue can interfere in revision only if the Commissioner or the assessing authority has failed to exercise jurisdiction or has acted in excess of jurisdiction or has made an order against the provisions of any law or has committed any error of procedure which has substantially affected the decision. 12. S. 3 of the Act lays down that a tax shall be charged, levied and paid for each agricultural year on the annual value of each land holding. Section 5(l)of the Act provides that the annual value of a land holding shall be deemed to be an amount equal to the rent payable for the land or lands included in the holding multiplied by a prescribed multiple. Thus for purposes of assessment of a tax it was necessary to determine that was the rent payable for the land holding of the Petitioners. 13. The assessing authority found the amount of rent payable in respect of the land holding of the Petitioners and on that basis worked out the annual value and fixed the tax. Thus for purposes of assessment of a tax it was necessary to determine that was the rent payable for the land holding of the Petitioners. 13. The assessing authority found the amount of rent payable in respect of the land holding of the Petitioners and on that basis worked out the annual value and fixed the tax. On appeal by the Assessees the Commissioner was of the view that the rate of rent used by the assessing authority for working out the tax 'included water charges for irrigation where water was available for irrigation.' The Commissioner therefore, framed the following two issues: '1. Whether irrigation from Government canal is available for this land holding. 2. Whether the rent rate applied by the A.O. includes irrigation charges as contended by the Appellant; if so what is the amount of irrigation charges and what is the rent payable for the land included in the land holding.' and remanded the cases with a direction to make fresh assessment. The assessing authority, accordingly, took more evidence and decided the cases again in the light of observations in the Commissioner's order. 14. The Board of Revenue held that the rate applied by the assessing authority in its original orders of assessment was correct and no deduction could be made from it on account of water charges. The Board also found that the Commissioner failed to appreciate the facts of the case and was misled by the various letters and rules of management which have no judicial basis and which are not relevant for purposes of determining the real matter in issue. The Board of Revenue set aside the orders of the Commissioner. As a consequence of the setting aside of the Commissioner's orders, the subsequent orders of the assessing authority could not stand. The Board, therefore, set aside the subsequent orders of the assessing authority also. 15. The parties are not at variance on the point that the Commissioner, in deciding the appeals, committed no error of procedure. u/s 11 of the Act an application can be tiled by any Assessee as respects the amount or rate at which the land holding has been assessed or as respects the liability. As the rent payable in respect of a holding forms the basis for calculating the tax, it was within the competence of the Commissioner to decide the points hearing on the determination of rent rate. As the rent payable in respect of a holding forms the basis for calculating the tax, it was within the competence of the Commissioner to decide the points hearing on the determination of rent rate. 16. The counsel, appearing for the opposite parties urged that the Commissioner had no power to go behind the amount described as rent in revenue papers and he could not break up that amount to see if it included any water charges. The Commissioner, therefore, acted illegally in the exercise of his powers. 17. We have not been referred to any provision of law which requires that the amount shown in revenue papers as rent cannot be questioned and must be accepted for purposes of the assessment of tax under the Act, as rent payable for the land holding. So the Commissioner cannot be said to have acted illegally in breach of any provision of law. 18. It appears that the Commissioner in his orders mainly relied upon the contents of para. 5 of the Final Report of 1924 of Settled Villages of Kumaun Bhabar. The Board of Revenue, in coming to a different conclusion from that of the Commissioner, seems to have taken into consideration another portion of that Report. None of the parties placed that report before us; nor was the other material on the record of these cases brought so our notice. Consequently we are not in a position to say which of the two views is correct, and so we refrain from expressing any opinion on merits. Even if we assume, as observed by the Board of Revenue, that the Commissioner did not properly appreciate the facts of the case and was misted by the various letters and rules of management produced before him and came to a wrong conclusion, it cannot be said that he acted in excess of his jurisdiction. The determination of the question of rent was within his jurisdiction. As he had the jurisdiction to decide the question, he could decide it wrongly as well as correctly, and the Board could not interfere with that order in the exercise of its revisional powers as conferred upon it u/s 12 of the Act. In setting aside the order of the Commissioner, the Board exceeded its jurisdiction. 19. The petitions are allowed with costs. In setting aside the order of the Commissioner, the Board exceeded its jurisdiction. 19. The petitions are allowed with costs. The order of the Board of Revenue dated 26-8-1959 is quashed in respect of the assessment cases of the Petitioners.