The main legal point established is the application of the Madras Local Boards Act in determining the basis for land cess calculation, considering the nature of income derived from different land uses and the occupation by the landholder or tenants.

Wadsworth, J.

1. These two appeals arise from the same judgment in a suit preferred by a zamindar to recover a sum of money alleged to have been illegally collected by the Government by way of land cess from the plaintiff. S.A. No. 161 is preferred by the Government with reference to the decree granted in respect of the cess calculated on fishery rentals. S.A. No. 177 is an appeal by the plaintiff against the dismissal of his suit so far as it relates to the cess calculated on income from quarries, grazing fees and sale of grass. The land cess in question is levied under Section 78 of the Madras Local Boards Act (XIV of 1920 as amended by Act XI of 1930), being calculated on the annual rental value of all occupied lands on whatever tenure held in the manner laid down in Section 79. With reference to zamindari lands such as those covered by the present suit, sub-Section 3 is applicable and the basis of the cess is (1) in case of lands occupied by a tenant, the annual rent payable to the landholder together with water rate; (2) in case of lands occupied by the owner himself, the rental value calculated according to the rates of rent paid by an occupancy ryot for similar land in the neighbourhood. The cess-has been levied by the Collector on the footing of the second part of Clause 3 of Section 79, namely, on the ground that the lands in question are in the occupation of the zamindar; and the revenue officers have found that if the zamindar had been taxed on the basis of the rental value of similar lands held on ryotwari tenure, the amount payable would have been considerably more than that which has been actually levied, the levy having been restricted to a rental value calculated on the basis of income actually received from those lands. Now, whether land used for quarrying or for grazing or for cutting grass is occupied by tenants or not, it seems to me fairly clear that the rental value of such land is liable to be taxed. If it is considered as being in the occupation of the person who takes a lease with grazing or grass-cutting rights or pays royalty for quarrying, then to my mind quite clearly all these payments would come within the term rent and land cess would be payable under the first part of Sub-clause 3. It has been argued that a royalty or seigniorage charge for quarrying cannot be rent because it is a payment for the removal of a portion of the land and not a contractual charge for the use of the land. This argument runs directly contrary to a line of English decisions summarised in Wood fall on Landlord and Tenant, 23rd Edn., page 491 and applied by a Bench of the Calcutta High Court in Manindra Chandra Nandi v. Secretary of State for India I.L.R. (1907) 34 Cal. 257 . The true way of regarding the matter really is that a royalty for minerals is not really the purchase price for the sale of the minerals, but a contractual payment for the use of land for a purpose which, involves the removal of the minerals and to that extent reduces the value of the land, but does not take away the land. If, owing to the unlocalised or unexclusive nature of the user granted in any of these cases, it were to be held there was no occupation by the tenant, then there would clearly be occupation by the landholder himself and the second part of Clause 3 of Section 79 would come into play. Whether the user is of such a character as to be reasonably described as occupation, must very largely be a question of fact. Since the plaintiff has taken upon himself the task of showing that a tax levied by the Collector, whose decision has been confirmed by the Board of Revenue under Section 86 of the Act, is unlawful, he cannot get any relief from the Court except by proving positively that the tax which has been imposed is unlawful; and for this purpose it is necessary for him to place before the Court facts which would justify the necessary inference. I have no hesitation in concluding that the lower appellate Courts decision is correct i