is to be given to the expenses, and the apportionment is deHAR GOPAL Scribed as "formal" only. 1870 DAS v. RAM GOLAM How far these orders of the Board of Revenue were made with the concurrence or sanction of the Lieutenant-Governor of Bengal, does not appear from anything that is laid before us. I find the same difficulty about gathering from these orders the view which is taken by the Board of the respective duties of the Commissioner and Collector, as I do in ascertaining what view they take of their own. No evidence or statement as to the practice of the Revenue Courts has been laid before us, but I suppose I must assume it to be that which the Collector has adopted in this case, which, as I understand it, is this. He has treated his notices to the shareholders to pay their respective quotas of expenses as sufficient to constitute such a demand as will render defaulters liable; provided only that his report is subsequently adopted by the Commissioner. I am also inclined to think that this is the practice which the Board intended its officers to adopt. I am, however, of opinion that such a practice is not in conformity with the provisions of the law. As I have already said, section 4 of Regulation XIX of 1814 appears to me to treat the proceedings of the Collector, in ascertaining and apportioning the expenses, as undertaken solely for the information of his superior authorities. At any rate this is clearly the nature of his proceedings after the passing of Act XI of 1838, and they are so treated by the Board's Rules issued in 1854. The proceedings of the Collector, therefore, cannot in any way constitute a demand which will create a debt due from the shareholders; and under the orders which it has been thought fit to issue (though I do not at all intimate that a more simple and convenient course might not have been adopted), I think nothing is due until the remuneration of the Ameen has been sanctioned by the Board of Revenue, and by the Lieutenant-Governor of Bengal, and the time at which the expenses are to be levied, and the proportions have been sanctioned by the Board of Revenue. It seems to me that the Lieutenant-Governor has expressly reserved his control over these expenses by the Circular Order of July 15th, 1840, the Board of Revenue being authorized to sanction batwara establishments, but subject to the eventual 1870 DAS v. RAM GOLAM orders of Government, on the submission of a general half-yearly HAR GOPAL statement. I do not think any one has a right to treat the sanction of the Lieutenant-Governor, or of the Board of Revenue, as merely formal, so as to make it a matter of indifference whether that sanction has or has not been obtained. It is true that the powers possessed by the Board were transferred to the Commissioners by Regulation I of 1829, but it is only the powers then possessed by the Board of Revenue, and until otherwise provided by law. There was not, therefore, in my opinion, even until the date of sale, any such sanction of the demand on the plaintiff as would constitute a final determination of the amount, or date of payment or not, and therefore there could be no arrear. But I also think that even if the sanction of the Commissioner had been sufficient, and could be considered as having finally determined the amount due from the plaintiffs, and the date of payment, still there was no arrear until there had been a second demand of the amount from the parties liable, after this final determination had been come to. This claim on the part of Government is not like a claim for an arrear of revenue, the exact amount and date of payment of which the parties know before hand, but it is a matter of estimation and calculation, and I do not think that there can be said to be any default, until after the amount due from each person or set of persons is finally ascertained, the date of payment finally fixed, and a demand made in accordance therewith. It was contended that the proclamation of the 6th March 1868 was a sufficient demand; I do not think so. There is no information contained in it that the final determination of the Commissioner (even supposing it to be final) has been come to. Moreover I understand it to be the opinion of Mr. Justice Bayley, and in this I concur, that, before action can be taken under section 5 of Act XI of 1859, there must be an arrear, whereas when this proclamation was issued there was no arrear, this being the first demand after the amount had been finally ascertained. In addition to these grounds, it was contended that there was no evidence that the report of the Collector had been sanctioned 1870 HAR GOPAL RAM GOLAM by the Commissioner. The Subordinate Judge found that it was so sanctioned, and a memorandum to that effect appears upon the Collector's report. I should not be inclined to disturb the Subordinate Judge's finding on this point. It was also contended that the reasons given by the Commissioner and the Collector for refusing to accept payment when tendered under section 19 of Act XI of 1859 were altogether insufficient, and such as ought not to have influenced them in exercising their discretion. The facts of this part of the case as stated are, as it appears to me, not a little extraordinary, and I have had a good deal of hesitation in accepting them as true. They have, however, not been denied, though the Collector, and through him the Government, is a party to the suit. For the purposes of this case, therefore, I must accept them as true. As we are informed, long before the day of sale, above half the expenses of the batwara had already been placed in the hands of the Collector. Notwithstanding this, however, nothing had been done towards the division of the estate, though it may be fairly supposed that there was sufficient in hand to carry that proceeding a good way towards completion. Even had there been any risk of exceeding that amount before notice could be given that the funds were exhausted, the Collector had always in reserve the power of recovering it by the sale of property, which was worth, as it turns out, sixty times the amount. I can conceive no reason, therefore, why this batwara should have been delayed a single day, and none is assigned by the Collector or Commissioner. It seems rather as if the plaintiff were treated as contumacious in not obeying the order for payment of his quota, and that the tender was refused by way of punishment as an example to others. I am most unwilling to adopt this view of the proceedings, but I can see no other interpretation of the words in which the decisions are expressed when taken with reference to the facts laid before us. It is of course quite clear that the very extraordinary powers put intot he hands of Revenue officers were never intended, even in the case of a default in payment of revenue, to be used for any other purpose than for the protection of Government from loss, and then only so far as was actually necessary; and in cases where nothing was really due to Government, as in this case, and Government is, as far as I can see, in no way interested one way or other in carrying on the proceedings, it is obvious that the powers ought to be exercised with still greater caution. But though the power of exemption given to the Collector and to the Commissioner, by section 18 of Act XI of 1859, no doubt makes it incumbent on these authorities to hear and decide upon any application for exemption which may be made by the defaulting parties; and though I cannot accede to the views taken. by those authorities as to the mode in which that application was to be considered, I do not think that the error complained of in disposing of such an application could be said to vitiate the sale. Lastly, it was contended that there never had been, even by the Commissioner, any such apportionment of the expenses as the law requires. I think there has not. In the tabular statement submitted to the Commissioner, and which is relied on as the apportionment, I find in the column headed" Names of Proprietors," the following:-"Gavind Sahaye, Kali Charan Sahaye, Dayal and Udit Narayan Sing, first petitioners; Mussamat Gangapat Koer, second petitioner; Ram Charan Sahaye, third petitioner; "Ram Golam Sahaye and others, defendants; Bandhu and others, "petitioners; Deon Roy and others, defendants." In the column headed" Shares of Oonda," I find the following:-"First share, "rupees 4-12-10; second share, rupees 33-11-9; third share, rupees "18-1-8; fourth share, rupees 471-6-10; first share, rupees, 4-6-3; "second share, rupees 24-13-9." From this it might possibly be inferred that the persons described as "Ram Golam Sahaye and "others, defendants" were to pay rupees 471-6-10. But in the notices issued, the sums required are altogether different, namely, rupees 376-14-11, rupees 15-9-5, rupees 14-6-4, rupees 53-13-0, rupees 33-11-8, respectively. In these notices, the name Ram Golam Sahaye appears twice. He is called upon, together with a number of other persons who are named, to pay two sums of rupees 376-14-11 and rupees 14-6-4. I cannot reconcile this with the apportionment in the Collector's report. Two other tabular statements were laid before us, which we have not been able to find upon the record, but which were suggested as recon 1870 HAR GOPAL V. RAM GOLAM 1870 DAS v. RAM GOLAM ciling the report with the notices issued. They do so to some HAR GOPAL extent, but not fully; and even if they did so fully, they would show either that the apportionment submitted to the Commissioner was incomplete, or that it had been subsequently modified. The defendants, therefore, have failed to satisfy me on the evidence before us that the sums actually demanded were sanctioned even by the Commissioner. I think therefore that this sale is absolutely void, on the ground that there never was any arrear for which the estate could be sold. I think the sanction of the Commissioner is not sufficient for a demand, which on default may be treated as an arrear of Government revenue; and even if the Commissioner's sanction were sufficient, I think there was no arrear when the sale proclamation of the 6th March was issued, and that disobedience to that proclamation did not create one; and further that the arrear which is alleged to be due by that proclamation is not any portion of a demand which had been sanctioned even by the Commissioner. It was contended that these objections were not taken in the appeal which the plaintiff made to the Commissioner after the sale had taken place, and therefore they could not be entertained by this Court by reason of the provisions of section 33 of Act XI of 1859. But I think, for the reasons stated, that there was no arrear; and it was hardly contended that in this view this case could be distinguished from the decision in Baijnath Sahu v. Lala Sital Prasad (1), where it was held that, as nothing was due, the Revenue authorities had no jurisdiction to proceed to a sale. For these reasons, I think, the appeal ought to be dismissed with costs. (1) 2 B. L. R., F. B., 1. |