The main legal point established in the judgment is the interpretation of Section 36 of the Elementary Education Act, which allowed the landholder to collect one half of the education tax from the occupancy tenant when added to the land cess.

Stodart, J.

1. The subject of this second appeal is a sum of Rs. 5-1-0, which was collected under the Estates Land Act from the plaintiff, who is an occupancy tenant in a proprietary estate. This sum was collected by the proprietor on the 23rd October, 1933, and it represents one half of the education tax which the proprietor had to pay in respect of the plaintiffs holding. The plaintiffs suit was under Section 144 of the Estates Land Act to recover back this money from the landholder on the ground that the latter was not legally entitled to collect it from him. Both the trial Court and the learned District Judge on appeal from it have held that the landholder was so entitled and the plaintiff now appeals against that decision. In order to understand how the education tax is assessed and levied it is first necessary to refer to the provisions of the Local Boards Act (XIV of 1920). In that Act provision is made for the collection of a cess which is called a land cess. This cess in proprietary estates is not paid by the occupancy tenants. It is assessed upon and levied from the proprietor of the estate. It is calculated on the rental value of the lands in his estate. The Act, however, provides that the landholder shall be entitled to reimburse himself to the extent of half the cess payable in respect of any holding by collecting it from the occupancy tenant. The question that now arises, put in its simplest form, is whether the landholder can collect from the occupancy tenant one half of the education tax which he has paid in respect of the holding of that tenant. In order to decide this question the provisions of the Elementary Education Act relating to the assessment and the mode of collection of the tax have got to be construed. These provisions so far as relevant to the present question are Sections 34 and 36, the latter section being anew section introduced by the Amending Act II of 1932. These sections are as follows, leaving out unnecessary words:

Section 34(2). - Any District Board may levy tax not exceeding 25 per centum of the taxation levied under the law for the time being in force governing District Boards under all or any of the following heads, namely, land cess, profession tax and house tax.

2. This section therefore empowers the Board to impose new taxation in one of several modes. It may declare that the new tax shall be 25 per cent, of the land tax or 25 per cent, of the profession tax or 25 per cent, of the house tax; or it may declare that the new tax shall be 25 per cent, of all these taxes combined or 25 per cent, of any two of them combined. Section 36 deals with the realisation of the tax and the relevant words of it are as follows:

Every tax levied under any head of taxation mentioned in Section 34 shall be deemed to be an addition to a tax levied under the same head under the law for the time being in force governing local boards.

Then the section goes on:

and all the provisions of such law relating to the incidence, assessment or realisation of such tax or in any manner connected therewith shall be applicable accordingly.

3. The first part of this section appears to mean that when under Section 34 the tax is imposed as a surcharge, say on the land cess, then it shall be deemed to be an addition to the land cess. If it is imposed as a surcharge under the terms of Section 34 as a surcharge on the profession tax, it shall be deemed to bean addition to the profession tax and so on; and by the latter part of the section the provisions of law relating to the incidence, assessment and realisation of the substantive tax are made applicable to the newly added surcharges. The lower Courts have interpreted this last provision as meaning that the proviso to Section 88 of the Local Boards Act is made applicable to the education tax when the education tax has been levied as in this case as a surcharge upon the land cess; and this amounts to finding that the landholder, just as he can recover from the occupancy ten