Back
1921 Supreme(SC) 66
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT CAVE, LORD SHAW, AND MR. AMEER ALI.
SECRETARY OF STATE FOR INDIA IN COUNCIL - Appellant
Versus
MAHARAJA OF BURDWAN - Respondents
On appeal from the High Court at Calcutta.
Decided On : July. 19. 1921.
Solicitor for appellant:Solicitor, India Office. Solicitors for respondents: T. L. Wilson & Co.
Proprietary ownership of a river-bed does not exempt newly formed chars (sandbanks) from revenue assessment. Under the relevant regulations, chars formed after the permanent settlement are treated as unsettled land and are liable to assessment, regardless of the ownership of the bed.
Headnote:(A) Act IX of 1847, Section 6 - Regulation I of 1793, Section 3 and 6 - Regulation XIX of 1793 - Regulation II of 1819, Section 3 and 31 - Regulation XI of 1825 - Permanent Settlement - Revenue assessment of chars - Newly formed sandbanks and islands in river-beds - Distinction between proprietary rights and assessability - It is held that while the ownership of a river-bed may determine the proprietary rights in the chars formed thereon, property is distinct from assessability. Regulation II of 1819 declares that chars formed after the decennial settlement are to be treated as unsettled land and are liable to assessment, regardless of whether the river-bed from which they emerged belonged to a settled estate.
(B) Regulation XI of 1825 - Alluvion and dereliction - The rule that sandbanks thrown up in small and shallow rivers belong to the proprietor of the bed is subject to the provisions of Regulation II of 1819, confirming that such newly formed land remains liable to revenue assessment.
(C) Distinction between reformed land and newly formed chars - Lands that were specifically included in a permanent settlement, became submerged, and subsequently reappeared (reformation in situ) are exempt from additional assessment as they were already part of the settled estate. This is distinct from new land formed for the first time since the date of settlement, which is treated as unsettled land.
Facts of the case:
Zamindars of permanently settled estates claimed that the beds of rivers flowing through or bounding their estates, and any chars (sandbanks) formed therein, were part of their settled property and thus exempt from additional revenue assessment. The government, acting under the relevant Act and Regulations, surveyed these chars and assessed them for revenue. The zamindars challenged this, asserting that the permanent settlement covered the entire ambit of their estates, including the river-beds.
Findings of Court:
The court accepted that the zamindars owned the river-beds and the chars formed upon them. However, it found that the right of ownership does not preclude the government's right to assess newly formed land to revenue. The court held that the specific provisions of Regulation II of 1819 and Regulation XI of 1825 make all chars formed after the decennial settlement liable to assessment as unsettled land.
Issues: Whether newly formed chars in a river-bed belonging to a permanently settled estate are liable to additional revenue assessment under Act IX of 1847 and Regulation II of 1819.
Ratio Decidendi: The court reasoned that Regulation II of 1819 explicitly categorizes all chars and islands formed since the decennial settlement as unsettled and liable to assessment. This express provision is not overridden by the fact that the river-bed was the property of the zamindar or that the settlement was imposed on the estate as a whole. Furthermore, Regulation XI of 1825 explicitly subjects the proprietary rights of the bed-owner in a newly formed char to the assessment rules of Regulation II of 1819. The court distinguished this from cases of land that was previously settled and assessed, then submerged, and later reappeared, as the latter constitutes the recovery of already settled land rather than the creation of new land.
Result: Appeals allowed and the suits dismissed.
Legal Category Hierarchy
-
land revenue
-
permanent settlement
- assessment of alluvion and chars
-
permanent settlement
-
property law
-
riparian rights
- ownership of river-beds
-
riparian rights
Judgement
Consolidated Appeals (Nos. 187 and 188 of 1919) from a judgment and four decrees of the High Court (May 22, 1918), [@ page LRIA 566] modifying, in favour of the first respondent, three decrees of Subordinate Judge of Burdwan (July 9, 1913) and reversing a decree of the District Judge of Bankura (July 14, 1913) the second respondents suit.
The consolidated appeals arose out of four suits, of which three were instituted by the first respondent, the Maharaja of Burdwan, in the Court of the Subordinate Judge of Burdwan; the fourth suit was instituted by the second respondent in the Court of the Subordinate Judge of Bankura.
By his plaints in the first three suits the Maharaja contended that his zamindari, comprising the districts of Burdwan, Hooghly and Bankura, included the bed of the river Damodar from Theraut to Gurchumbook; that he was the owner of the whole bed of that river as well as of all the chars that have been or might be formed therein ; that the entire Government revenue had been permanently settled in respect of the whole of his zamindari by the permanent settlement, and that the Crown has no right or title to the chars. The same case was made by the second respondent in respect of the chars formed in the river Damodar, where it flowed through his zamindari. The Maharaja also made the same claim to chars formed in the river Darakeshwar within the ambit of his village Khatnagar. The plaintiffs asserted that the Government had no right under Act IX. of 1847, or under any other law, to survey and settle the chars which have been formed in the beds of the two rivers, and that settlements so made by the Government were void and inoperative.
The defence in each suit was substantially the same and reference to the written statement filed in the Burdwan suit is sufficient to indicate it. It was contended that neither the bed of the river Damodar, nor any portion of it, was included within any estate or zamindari held by the plaintiff at the time of the permanent settlement; that the plaintiff had no title to the bed of the river or to the chars in question, and that the settlement made by the Government under Act IX. of 1847 was valid and binding on the plaintiff. It was [@ page LRIA 567] admitted that the river Darakeshwar was not navigable, but it was pleaded that the river Damodar was navigable in all seasons of the year, and consequently its bed could not have been included in the permanently settled estate of the plaintiffs. It was pleaded that even if the plaintiffs were held to be the owners of the chars in question, the Government was entitled to assess them to revenue, and to make settlements in respect of them in case the plaintiffs refused to pay the revenue assessed. There were further pleas not material to the present report.
The material facts appear from the judgment of the Judicial Committee.
The Subordinate Judge of Burdwan heard together the three suits brought by the Maharaja. He held that the beds of the rivers and the chars formed thereon were the property of the Maharaja where the rivers flowed through the zamindari, and ad medium filum aquae where the Damodar formed the boundary of the zamindari. In his opinion the zamindari had been settled as one compact estate. He held that the Government was not entitled to assess the chars formed where the rivers flowed through the zamindar, but that the Government was entitled to assess the chars formed in the river where it was the boundary, since it was only by implication that the bed ad medium filum was part of the estate. He found that the river Damodar was and always had been non-navigable. He made decrees accordingly.
The fourth suit was tried by the Subordinate Judge of Bankura, who decided it in favour of the plaintiff, but his decision was reversed on an appeal to the District Judge and the suit dismissed. The District Judge was of opinion that the plaintiff had failed to establish that the bed of the river Damodar, which formed the northern
