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1938 Supreme(SC) 17
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD ROCHE, LORD ROMER, SIR SHADI LAL, AND SIR GEORGE RANKIN.
SARDAR MOHAMMAD NAWAZ KHAN - Appellant
Versus
BHAGATA NAND (GURDWARA COMMITTEE PANJA SAHIB AT HASSAN ABDAL SINCE SUBSTITUTED) - Respondents
On appeal from the High Court at Lahore.
Decided On : May 27, 1938.
Solicitors for appellant:Sharpe, Pritchard & Co. Solicitors for respondent: Hy. S. L. Polak & Co.
A suit for a declaration of non-liability to pay a village-cess is a "dispute or matter" over which a recovery suit could be instituted; therefore, under the Punjab Tenancy Act, 1887, such matters fall under the exclusive jurisdiction of Revenue Courts, ousting civil court jurisdiction.
Headnote:(A) Punjab Tenancy Act, 1887 - Sections 4(12) and 77(3)(j) - Village-cess - Jurisdiction of Revenue Courts vs. Civil Courts - A suit for a declaration that a person is not liable to pay a village-cess is a matter with respect to which a suit for recovery of sums payable on account of village-cesses might be instituted - Such disputes fall within the exclusive jurisdiction of Revenue Courts - The prohibition in Section 77(3) prevents parties from bypassing Revenue Court jurisdiction by altering the form of the action from a recovery suit to a declaratory suit.
(B) Jurisdiction - While a civil court may determine the limits of a court of special jurisdiction, once a due is established as a village-cess under the Act, any dispute regarding the liability of a specific individual to pay such cess is excluded from civil court jurisdiction.
Facts of the case:
A proprietor of a village sought to recover a customary door-tax, classified as a village-cess, from a resident. The proprietor initiated recovery proceedings in a Revenue Court. Simultaneously, the resident filed a suit in a civil court seeking a declaration that he was not liable to pay the said tax due to his specific status. The civil court's jurisdiction was challenged on the basis that the matter fell exclusively under the purview of Revenue Courts under the relevant tenancy legislation.
Findings of Court:
The court found that the tax in question was a village-cess. Under the relevant statute, suits for sums payable on account of village-cesses must be determined by Revenue Courts, and no other court shall take cognizance of any dispute or matter with respect to which such a suit might be instituted. A suit for a declaration of non-liability is the counterpart of a suit for recovery and thus falls under the same jurisdictional bar.
Issues: Whether a civil court has jurisdiction to entertain a suit for a declaration that a person is not liable to pay a village-cess, given the exclusive jurisdiction granted to Revenue Courts for suits regarding sums payable on account of such cesses.
Ratio Decidendi: The phrase "any dispute or matter with respect to which any such suit might be instituted" in Section 77(3) of the Act is intended to prevent the use of civil courts to decide matters that the legislature intended for Revenue Courts. A declaratory suit regarding liability for a village-cess is essentially the same "dispute or matter" as a suit for the recovery of that cess. Therefore, the civil court's jurisdiction is ousted.
Result: Appeal allowed, and the suit dismissed with costs throughout.
Legal Category Hierarchy
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practice and procedure
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jurisdiction
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exclusive jurisdiction
- revenue courts
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exclusive jurisdiction
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jurisdiction
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land law
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tenancy law
- village-cess
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tenancy law
Judgement
Appeal (No. 135 of 1936), by special leave, from a decree of a Division Bench of the High Court (May 16, 1934), reversing a decree of a single judge of the High Court (October 28, 1930), which had affirmed a decree of the District Judge of Attock (October 24, 1928) affirming a decree of the Subordinate Judge of Attock (November 25, 1927).
On August 9, 1925, the appellant, Sardar Mohammad Nawaz Khan, the principal proprietor of the village Kot Fat eh Khan, in the district of Attock, in the Punjab, instituted a suit in the Court of the Assistant Collector of Attock (the Court of the Revenue Assistant) to recover from one Mahant Parkasha Nand, the mahant of an old shrine known as Deri Baba Than Singh, the sum of Rs.28 in respect of haq buha (door tax) which he claimed to be due as a village-cess payable to him by non-proprietors in the village in accordance with the wajib-ul-arz prepared at the time of the settlement in 1904. The defence was (inter alia) that the Revenue court had no jurisdiction; and that he (the mahant) was not a non-proprietor within the meaning of the wajib-ul-arz. On June 13, 1927, the Revenue Assistant made a decree in favour of the appellant for the amount claimed. Against that decree an appeal was lodged in the Court of the Collector of the Attock District. That appeal was dismissed on December 9, 1927.
In the meantime the mahant, on January 5, 1926, had filed the suit out of which the present appeal arose in the Court of the Subordinate Judge of Attock, asking for a declaration that he was not liable to pay haq buha to the appellant because (inter alia) he did not belong to the class from whom haq buha within the meaning of the wajib-ul-arz could be demanded.
On November 25, 1927, the Subordinate Judge held that haq buha was a customary due and a village-cess within the meaning of s. 4 (12.) of the Punjab Tenancy Act, 1887, leviable by the appellant alone as the proprietor from all non-pro prietors of the village personally and individually. He further held that the mahant was a non-proprietor, and as such liable to pay. The suit for a declaration was accordingly dismissed.
The mahant then appealed to the Court of the District Judge of Attock, who held that the appellants suit was rightly filed in the Revenue court which had exclusive jurisdiction to decide not only whether the suit was for a sum payable on account of a village-cess, but also whether the mahant was liable to pay that cess. The District Judge thus affirmed the decree of the Subordinate Judge; he added, however, that mahants hold a peculiar position rendering it unlikely that they would have been treated similarly to private non-proprietary residents in the village.” In the result he dismissed the appeal. The mahant had died during the pen dency of the appeal to the District Judge, and one Bhagata Nand was substituted on the record in his place.
A second appeal against the decree of the District Court was dismissed by the High Court (Johnstone J.), who confirmed the judgment of the District Court that the civil court had no jurisdiction.
On a further appeal under cl. 10 of the Letters Patent to a Division Bench of the High Court (Tek Chand and Monroe JJ.) it was held that the civil court had jurisdiction to entertain the suit, and that in view of the finding of the District Judge that the mahant was treated differently from other residents and was never asked to pay haq buha, they granted the declaration sought and decreed the suit. The appeal is reported at ( 1934) I. L. R. 16 Lah. 204.
1938. May 3, 5. J. M. Gover K.C. and J. E. Godfrey for the appellant. There are two issues involved
(a) Whether the Subordinate Judge of Attock ever had jurisdiction at all to determine the case; and (b)
4 Law. Rep. 65 Ind. App. 301 ( 1937- 1938) Sardar Mohammad Nawaz Khan V. Bhagata Nand
96
the question of res judicata. The substantial question is that of jurisdiction. The mahants action for a declaration that he was not liable to pay haq buha t
