- (1.) THE petitioner holds lands under opposite party No. 1 under two leases dated the 7th June, 1926 and 5th May, 1937 comprised of lands under Touzi Nos. 215 and 217 respectively, within the Collectorate of Jalpaiguri in the State of West Bengal, commonly known as the Western Dooars. These are khas-mahal lands for the purpose of cultivation and growing of tea and other ancillary purposes. The petitioner grows tea in these lands and carries on the business of a tea-estate known as the Magulkata Tea Estate, which of course includes other lands as well with which we are not concerned in this application. The question that arises in this application is a short one and it is this: According to section 33 of the Cess Act, 1880, which section appears in Part II, in the case of lands held directly under Government and used for the cultivation of tea, coffee or cinchona, the annual value of such lands shall be fixed at ten rupees in respect of every acre therein entered as cultivated, unless the Board of Revenue shall, in any particular case, prescribe a lower rate. There is no dispute that in this case the petitioner held lands directly from Government and used it for cultivation of tea. Therefore, prima facie, it appears that the valuation must be made in accordance with section 33 and the annual value cannot be fixed at more than ten rupees, but the Board of Revenue can fix a lower rate. In July/august 1951 notices were issued by the Director of Land Records and Survey upon the petitioner to submit a return under section 107j of the Cess Act and to show cause why assessment should not be determined under Chapter VIIA of the Cess Act. The petitioner preferred objection on the ground that Chapter VIIA did not apply, but it was Chapter II which applied. On the 27th March, 1952 the Director of Land Records rejected the objection. Thereupon an appeal was preferred to the Commissioner, Presidency Division. By his order dated the 30th December, 1952 the Commissioner allowed the appeal and set aside the order of the Director of Land Records and held that it was Chapter II which applied and not Chapter VIIA. On the 31st May, 1954 the Board of Revenue issued suo motu a show cause notice upon the petitioner to show cause why the appellate order should not be revised in terms of sections 107-A (1) (a) and 107-A (2) of the Cess Act. On the 26th August, 1954 the order of the Commissioner was set aside by the Board of Revenue. It is against this order that this application has been made. The short point that arises in this case is as to whether Chapter II or Chapter VIIA applies to the facts of this case. Mr. Meyer appearing on behalf of the petitioner has taken a preliminary objection that the Board of Revenue had no power to act suo motu in issuing a show-cause notice. He has referred me to section 105 (b) of the Cess Act which lays down that all proceedings of the Commissioner under Part II shall be subject to the general control and supervision of the Board of Revenue. The revision application to the Commissioner is itself under this Part and therefore it cannot be disputed that the Board of Revenue exercises general control and supervision over proceedings of the Commissioner. Mr. Meyer has however drawn my attention to a note appended to the official publication,-"the West Bengal Cess Manual, 1953", under section 105. wherein it is stated that the decision of the Commissioner being final under section 102, the action of the Board of Revenue would be limited to laying down general rules and instructions for the Commissioner's future guidance if the Board should be of the opinion that the Commissioner had proceeded upon wrong principles. In my opinion, this is merely a departmental note and cannot assist in the interpretation of the section. Since proceedings before the Commissioner is subject to the general control and supervision of the Board of Revenue, I do not see any impediment in the issue of a show cause notice as was done in this case.
(2.) COMING now to the merits of the case, I find that the Board of Revenue has come to the opinion that the provision laid down in the body of section 107a applies, and that this is in conflict with the heading of the Chapter and therefore the provision in the body should prevail. Coming to the body of section 107a, the Board considers that as the district of Jalpaiguri is mentioned in Schedule G, the tea-estates in every part of that district will come within the mischief of this section, irrespective of the fact as to whether the record of rights had been finally published or not. In my opinion, this is an erroneous interpretation of the law on the subject. The relevant part of Chapter VIIA runs as follows:
(3.) VALUATION and revaluation of lands in a district or part of a district in respect of which a record-of-rights has been finally published, and payment of cess on such lands. 107-A (1 ). Notwithstanding anything contained in this Act- (a) the valuation or revaluation of lands in a district included in Schedule G or in a part of such district shall be made in accordance with the provisions of this Chapter. Provided that if at any stage of the operations regarding valuation or revaluation of lands under this chapter, the State Government is of opinion that the valuation or revaluation of such lands should be made in accordance with the provisions laid down in Chapters II, III and IV, the State Government shall, by notification in the official gazette, make an order to that effect, and on the publication of such notification-The relevant part of Schedule G runs as follows:-Schedule G. Names of districts in which, or in parts of which valuation or revaluation shall be made under Chapter VIIA: -. . . . . . . . . . . . (10) Jalpaiguri. ";