Decided on June 28,1967



P.GOVINDAN NAIR,J. - (1.) THE two petitioners in this writ application have challenged the notices Ex.P 1 and P 2 issued to them by the Tahsildar of Chittur demanding irrigation cess said to be payable by the petitioners under the Travancore Cochin Irrigation Act,1956(hereinafter referred to as.the Act.).Ex.P 1 notice mentions the cess as Rs.1677.44 for eight years though at the bottom of the notice it is said that it is for the period from 20 -11 -1956 to 1964 -65 and thus for 9 years.The extent of the land with reference to which this claim is made is.said to be 27.90 acres.Ex.P 2 is the revenue recovery notice for the sum of Rs.135.86 said to be cess payable on the 10th May,1965.Apparently this cess is claimed for the lands mentioned above for the period subsequent to that for which the claim under Ex.P 1 was made.It is the case of the petitioners that they had no intimation whatever about the cess payable under the Act before these notices were served on them.
(2.) THESE notices have been challenged on various grounds.It will be enough however to state one of such grounds,the non compliance with R.7 of the Irrigation Rules,1958(hereinafter called the Rules)which are admittedly the Rules that are applicable,for setting aside these notices.
(3.) WE may refer to R.4,5 and 6 as well before we read R.7.Under R.4(a)the Executive Engineer in charge of a major irrigation work will have to send a report to the Board,of Revenue and the Collector of the District informing them the date of provision of the irrigation facilities ana the Secretary to the Board of Revenue shall publish in the Gazette a notice in Form A,In the case of works undertaken before the 1st January 1943,the Executive Engineer in charge will have to send a report in Form 1 to the Collector.The Collector after making enquiries has to forward to the Board of Revenue his recommendations as to the rate of cess to be levied.The Board of Revenue after making such enquiries as is deemed necessary will have to fix tentatively the annual cess per acre to be levied(R.5(A)).The decision of the Board of Revenue has to be published by the Collector in the Collector 's office,and publication will have to be made in the Taluk office and in the office of the Executive Engineer.R.6(1 ),as we read,it,applies to major irrigation works undertaken on or after the 1st January,1943.Since the works with which we are concerned in this case admittedly were constructed before 1.1.1943,we need not refer to the other details provided in R.6(a ).We shall now read R.7. 7(a)On receipt of the report in Form II,the Collector may order that the cess should be levied and recovered on the basis of the list tentatively. (b)On receipt of the orders under sub -r.( a)or under R.8 the Tahsildar shall prepare lists of persons in actual occupation or possession of the land and the amount of cess d or instalments of payment as the case may be.payable by each person and issue notice in Form C to each. (c)Appeal. - - Any person aggrieved by the notice may appeal to the Collector.R.7(a)has no application as it refers to the report under R.6.This report pertains only to construction which was undertaken on or after 1st January,1943,R.7(b)is not very clear.It refers to orders under R.7(a)as well as under R.8.But R.8 which is in these terms: 8.The cess under these rules shall be levied with effect from the financial year during which the irrigation facilities were provided and shall be payable in two instalments or otherwise on the dates prescribed in the rules made under S.16 of the Travancore Cochin Land Tax Act,1955. does not provide for any orders being passed.But reading all the relevant rules together it seems to be clear that R.7(b)is applicable not only in regard to irrigation works constructed after 1.1.1943 but those constructed before 1.1.1943 as well.In other words,there must be a Form C notice issued to every land holder whose land is subject to the cess leviable under the Act and who has to pay the cess imposed.He has the right to object to such a notice.His objections should be heard and orders passed.No notices as required by R.7(b)have been issued to the petitioner is admitted.Notices Exs.P 1 and P 2 cannot therefore stand. Before leaving this part of the case we must advert to the fact that the rules have been amended by a notification dated 17th November,1964 which has been published in the Kerala Gazette dated 1st December,1964.The old R.7 was deleted and an a new R.7 has been incorporated reading as follows: 7(a)On receipt of a copy of the decision of the Board of Revenue under R.5 or of the order under sub -r.( c)of R.6,the Tahsildar shall prepare lists of persons in actual occupation or possession of land and the amount of cess or instalments of payments as the case may be,payable by each person and issue notice in Form C which shall be duly served on the person in actual occupation or possession of the land. (b)Any person aggrieved by the notice may appeal to the Revenue Divisional Officer within 30 days of the date of receipt of the notice or within 30 days after these rules came into force. (c)If it is found after considering the appeal that the lands included in any Survey number or Survey sub number is not actually benefited by the Irrigation work,the Revenue Divisional Officer may exclude the survey number or survey sub number from the list.If he is not so satisfied,he may reject the appeal and inform the appellant and the Tahasildar accordingly. (d)The particulars of the land so excluded shall be communicated to the Tahsildar and the Tahsildar shall cause the levy of cess on the land so excluded being cancelled and the amount of cess already recovered being refunded. (e)If it is found after considering the appeal that any survey number or sub number included in any of the classes in the notices in Form C has to be grouped in another class,the Revenue Divisional Officer may reclassify the land accordingly.If he is not so satisfied.he may reject the appeal and inform the appellant and the Tahsildar accordingly. (f)The particulars of there classification shall be communicated to the Tahsildar and the Tahsildar shall arrange for the revision of the cess accordingly. (g)Any person benefited by a decision in appeal shall be entitled to the refund of any excess levy already collected from him. (h)The decision of the Revenue Divisional Officer shall be final. This leaves no room for doubt that a notice has to be issued even to persons who own lands which are benefited by the irrigation work constructed before 1.1.1943.The old R.11 has now been deleted completely.Any fresh notice under Form C will have to be issued under the present Rules.;

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