Walter Salis Schwabe, K C , C J

[This Appeal came on for hearing on the 11th, 12th and 13th days of September, 1922 and 12th day of October, 1922 before Krishnan and Venkatasubba Rao, JJ.]

Krishnan, J.

The question that arises for decision in this case is one of limitation. Plaintiff sues the Secretary of State for India in Council for the refund of excess water cess collected from him for certain lands of his on the ground that he had unauthorisedly used Government water for their irrigation. He contends that he did not take any water unauthorisedly and that he was not liable for the cess so collected from him. The cess was imposed on him under Sect. 1 of the Irrigation Cess Act, VII of 1865, Sect . 2 of that Act provides that:

Water cess payable under this Act shall be realised in the same manner as arrears of land revenue are or may be realised by law.

The reference is to the Revenue Recovery Act II of 186

4. The water cess in question here was paid by the plaintiff under protest when a demand notice by the Collector was served on him under the latter Act; he now seeks by the present suit to get a refund of it with interest. The suit was filed within 8 months from the date of payment but beyond 6 months therefrom.

The District Munsif applied the six months rule in Sect. 59 of Act II of 1864 and rejecting the argument that plaintiff was entitled to deduct in his favour under Sect. 15, Cl

. (2) of the Limitation Act to the two months period of the notice he had to give under Sect. 80; Civil Procedure Code, before bringing his suit he dismissed the suit as barred by limitation. The Subordinate Judge on appeal took a different view and held, relying on Srinivasa Ayyangar v. The Secretary of State (I.L.R., 38 Mad., 92.), that plaintiff was entitled to the deduction claimed and that the suit was in time. He reversed the decree of the 1st Court and remanded the case for disposal on the merits. The present appeal to us is by the Secretary of State against that order.

Before deciding whether plaintiff is entitled to the deduction claimed or not, it is necessary to consider what rule of limitation applies, for it is argued that the limitation applicable is not the six months rule under Sect. 59 but the one years rule under Art. 16 of Limitation Act. If this argument is correct the suit is well within time. Though the lower Courts have decided this point against the respondent it is no doubt open to him to support the order of the Subordinate Judge on the ground urge d. It seems to me, however, that the argument is not sound; for in my opinion the suit is one falling within the very words of Sect. 59 and if that view is correct the application of Art. 16 will be excluded even if the suit fell within the words of that article also, for the former is the Special Law and as such it must prevail. Sect. 29 (b) of the Limitation Act, also expressly enacts so.

The water cess we are concerned with in this case was as already stated imposed on the plaintiff under Act VII of 186

5. Sect. 2 of that Act applies the procedure for the collection of land revenue to the collection of water cess. Now it was argued for the respondent that the wording of Sect. 2 does not apply all the sections of the Revenue Recovery Act to the collection of water cess but only such of the sections that deal with the method of collection or the procedure prescribed for it and it was contended that Sect. 59 did not fall under that description and was not attracted by Sect. 2 of the Cess Act. Reliance was placed for this argument on certain rulings under the Abkari and Income-tax Acts where it was held that similar provisions applying the procedure of the Revenue Recovery Act for collection of arrears under those Acts did not make Sect. 42 of the Act applicable to sales for such arrears. See Ramachandra v. Pitchaikanni (I.L.R., 1 Mad., 434) and Kadir Mohideer Marakkayar v. Muthukrishna Ayyar (I.L.R., 26 Mad., 230) [LQ/MadHC/1902/59] . The learned Government Pleader on the other side, pointed out that it has been held that these rulings are not applicable to the case of water cess in Vellappayal Ambalam v. Karuppiah Pillai (I.L.R., 37 Mad., 49) and Gunnam Dorayya v. Vadappalli Ayyamacharyulu (27 M.L.J., 295), the reason given being that the Revenue Recovery Act II of 1864 itself by the definition of the term Public Revenue in Sect. 1 made that term include water cess; so that all the provisions of that Act by their own force would apply to the collection of arrears of water cess. The respondent in answer has drawn our attention to the fact that Sect. 1 of Act II of 1864 deals only with water cess imposed for water supplied by the Government for irrigation and he has contended that it cannot therefore apply to water unauthorisedly taken and not so supplied. Assuming that the respondents contention is correct and that the view expressed in Gunnam Dorayya v. Vadapalli Ayyama Charyulu (27 M.L.J., 295), that Sect. 2 is a mere surplusage is incorrect, and that we must rely upon that section to make Act II of 1864 applicable to the collection of arrears of water cess charged for water unauthorisedly taken, I am still of opinion that the words of Sect. 2 are sufficient to make Sect. 59 applicable to this case, whether Sect. 42 applies or not, Sect. 59 applies by its own language to all suits brought by parties aggrieved by any proceedings taken under the Revenue Recovery Act, whether such proceedings were taken to collect arrears of water cess or dues authorised to be collected under it. As pointed out by Sadasiva Aiyar, J., in Ramaswami Iyer v. Secretary of State for India (1915) M.W.N., 154 at p. 156), the ambit of Sect. 59 is very different from that of Sect. 42. The period of limitation provided under Sect. 59 was applied in that case and not Art. 16, to a suit arising under the Kudimarmath Act, 1 of 1858, which authorised the Collector to recover the value of labour which the plaintiff had to contribute in accordance with the procedure prescribed under Act II of 1864. The same view was taken by the late Chief Justice Sir Arnold White and Mr. Justice Benson in Orr v. The Secretary of State for India in Council (I.L.R., 23 Mad., 571), with reference to fees payable to village servants collectable under Sect. 52 of Act II of 1864 itself in the same manner as arrears of land revenue. It will also be noticed in connection with the next argument that in that case money was paid under protest and no further proceedings were taken. The case in Sankarappa Naicken v. The Secretary of State (1910) M.W.N., 404), also takes the same view; following these rulings I hold that Sect. 59 applies.

It was next argued that as money was paid on demand being served on the plaintiff under Act II of 1864, and nothing further was done there were no proceedings under the Act about which plaintiff was complaining in this suit but he is only seeking to get a refund of his money under the general law and therefore Sect. 59 does not apply. Certain unreported decisions in S. A. Nos. 838 and 844 of 1910, and the rulings of this High Court reported in Ravula Vengala Reddi v. Secretary of State (15 I.C., 328), and Ravula Nagamma v. Secretary of State (18 I.C., 699), were cited in support of this argument. With all respect I am quite unable to follow these rulings. As against them there are the cases in Orr v. Secretary of State for India in Council (I.L.R., 38 Mad., 92), and Sankarappa Naicker v. The Secretary of State (I.L.R., 41 Mad., 169 [LQ/MadHC/1917/260] =7 L.W., 443 (F.B.), already cited. It seems to me the proceedings begin by the dis-training officer producing a demand in writing from the Collector giving the name of the defaulter and the amount of water cess payable by him, and showing it to the defaulter. That is a part of the proceeding under Sect. 8 of the Act; in fact it is the first step. I see no reason to hold that the proceedings mentioned in Sect. 59 refer only to subsequent proceedings after demand and not to the demand itself. There does not seem to be any justification for making such an artificial distinction. The cases referred to by the respondent have never been allowed or treated as good law. It is clear to my mind that the plaintiff in this suit is a person who deems himself aggrieved by proceedings under the Revenue Recovery Act by which he was compelled to pay water-cess for which according to his case he was not liable and that he is seeking redress in this suit by suing for a refund of the money. The case falls, in my view exactly within the language of Sect. 59 and the rule of limitation provided in it applies.

The next question is whether plaintiff is entitled to the deduction he claims. No doubt the ruling in Srinivasa Ayyangar v. The Secretary of State for India (I.L.R., 38 Mad., 92) is exactly in point in his favour but after the ruling in the Full Bench case reported in Lingayya v. Chinna Narayana (I.L.R., 41 Mad., 169 [LQ/MadHC/1917/260] =7 L.W., 443 (F.B.)) that case cannot be considered to be good law, though it was not formally overruled. The principle adopted in that Full Bench case is directly against the reasoning on which Srinivasa Ayyangar v. The Secretary of State for India (I.L.R., 38 Mad., 92) is based. It has now been taken as settled that the application of the general provisions of the Limitation Act in Sects. 5 to 25 to the limitation prescribed by special or local laws would affect or alter the periods so prescribed and is therefore prohibited by Sect. 29 of the Limitation Act. The distinction sought to be made in Srinivasa Ayyangar v. The Secretary of State for India (I.L.R., 38 Mad., 92) between Special Acts which do not contain a complete body of provisions with regard to limitation of suits coming within their purview and other acts which do contain them was rejected in the Full Bench case and I have therefore no hesitation in holding that plaintiff was not entitled to the deduction he claims under Sect. 15, Cl. (2). The Calcutta High Court has taken the same view in The Secretary of State for India v. Shib Narain Hajra (I.L.R., 16 Cal., 199). The point is however of little importance hereafter as the amending Act X of 1922 has made provision for it. But it is not argued that that Act applies to the present case for the suit here was barred before that Act came into force. In the view I take, the plaintiffs suit is barred by limitation. I would therefore reverse the order of the Subordinate Judge and restore the decree of the District Munsif with costs here and in the lower Appellate Court.

Venkatasubba Rao, J. The Government recovered from the plaintiff penal assessment under the Madras Irrigation Cess Act (VII of 1865) for unauthorized use of water and the plaintiff claimed in this suit refund of the amount so recovered from him. The Government pleaded that suit was barred by limitation. The District Munsif accepted the contention and dismissed the suit. On appeal the Subordinate Judge reversed the decision of the District Munsif on the question of limitation and remanded the suit for disposal on the merits . The present appeal is by the Government against the order of remand.

On behalf of the plaintiff it is argued.

1. That the provision of law applicable is Art. 16;.of the Limitation Act under which the period of limitation is one year and not Sect. 59 of the Madras Revenue Recovery Act (II of 1864) under which the period is six months.

2. Where there was a mere demand by the Government and money was paid and no further proceeding was taken that Sect. 59 of the Revenue Recovery Act is not applicable because there was no proceeding under that Act.



3. Should the period of limitation be held to be six months under Sect. 59 of Act II of 1864, that the plaintiff is entitled to exclude the period of notice prescribed by Sect. 80, Civil Procedure Code in computing the said period of six months.

In my opinion, the provision of law applicable is Art. 16 of the Limitation Act and not Sect. 59 of the Revenue Recovery Act. I shall presently state my grounds for this opinion and as I entertain no doubt on the point. I consider it unnecessary to deal with the other two contentions urged before us. As already stated the penal assessment was collected from the plaintiff under the Irrigation Cess Act (VII of 1865). Sect. 1 of the said Act, so far as it is relevant for the present purpose enacts.

(a) Whenever water is supplied or used for purposes of irrigation from any river * * * * belonging to or constructed by Government and also,

(b) Whenever water by direct or indirect flow or By percolation or drainage from any such river, irrigates any land under cultivation or flows into a reservoir, and is thereafter used for irrigating any land * * * it shall be lawful for the Government * * * to levy * * * a separate cess for such water.

Sect. 2 provides:

Arrears of water-cess payable under this Act shall be realised in the same manner, as arrears, of land revenue are, or may be realised by law in the Madras Presidency.

Arrears of land revenue are realised under the Madras Revenue Recovery Act (II of 1864) and the reference in the section above quoted is to the provisions of the said Act.

Sect. 2 may be rendered thus

Arrears of water-cess payable under this Act shall be realised in the manner prescribed by the Revenue Recovery Act in regard to arrears of land revenue.

In my, opinion, the meaning of Sect. 2 is, that all the sections of the Revenue Recovery Act, that relate to the manner of realising arrears of land revenue, shall be read as if they form part and parcel of the Irrigation Cess Act.

Sect. 59 of the Revenue Recovery Act runs as follows:

Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act from applying to the Civil Courts, for redress, provided that Civil Courts, shall not take cognizance of any suit instituted by such parties for any such cause of action unless such suit shall be instituted within six months from the time at which the cause of action arose.

The learned Government Pleader argues that Sect. 59 is applicable to this case and this argument implies that the said section deals with the manner of realising arrears of revenue. Sect. 59 does nothing of the kind. It pre-supposes that the revenue has been realised and it prescribes the remedy to an aggrieved person against the Government. It refers to parties aggrieved by any proceedings under this Act that is under the Revenue Recovery Act. It refers to a suit instituted by such parties and for such cause of action, such parties being, parties deeming themselves aggrieved by any proceedings under the Revenue Recovery Act and such suit and such cause of action can only refer to what is contemplated by the section.

I fail to see how Sect. 59 can come within the group of sections which refer to the manner in which land revenue is realised. If the legislature instead of merely saying arrears shall be realised in the same manner as arrears of land revenue are under the Revenue Recovery Act, had reproduced embolic all the sections of the latter Act which deal with the mode of realising revenue and re-enacted them in the Irrigation Cess Act, could it for a moment be contended that Sect. 59 of the Revenue Recovery Act would be applicable to suits filed for the refund of penal assessment collected under the Irrigation Cess Act To my mind, I have no doubt whatever, that Sect. 2 of the Irrigation Cess Act merely incorporates by reference only those sections of the Revenue Recovery Act that deal with the manner of realising land revenue. Sect. 59 is clearly not one of those sections.

Let me now turn to Art. 16 of the Limitation Act against Government to recover money paid under protest in satisfaction of a claim made by the revenue authority, on account of arrears of revenue or on account of demand recoverable as such arrears one year when the payment is made.

This article in terms applies to the present suit. The only argument advanced on behalf of the Government against its applicability, is that a special rule is enacted in Sect. 59 of the Revenue Recovery Act and that an article in a general Act should not be applied when a section of a Special Act is applicable.

It will be noticed that the article of the Limitation Act is quite general in its terms. It refers to arrears of revenue Land revenue alone is removed from the scope of the said article by reason of the fact that a special provision is enacted in respect of it by Sect. 59 of the Revenue Recovery Act.

Sect. 66 of the Madras Forest Act (V of 1882) provides that all money payable to the Government under that Act may be recovered as if it were an arrear of land revenue. Similarly Sect. 84 of the Madras Salt Act (IV of 1889) provides that all sums recoverable under that Act, may be recovered as if they were arrears of land revenue. Again Sect. 28 of the Madras Abkari Act (1 of 1886) enacts that certain sums due to the Government may be recovered as if they were arrears of land revenue. It is unnecessary to refer to various other acts in which similar provisions occur. Does it then mean that Sect. 59 of the Revenue Recovery Act applies to suits instituted for recovery of money paid to Government on account of alleged arrears of revenue under any of these Acts If this view should be taken, Art. 16 of the Limitation Act would practically be a dead letter. I fail to see why the plain provisions of Art. 16 of the Limitation Act should not be given effect to and why a forced construction should be placed upon Sect. 2 of the Irrigation Cess Act for the purpose of enabling the Government to plead a rule of limitation in bar of an admitted right to sue.

Land revenue being the most important item of revenue due to the Government, the legislature has in the Revenue Recovery Act enacted in detail the procedure for realising it. When the legislature came to deal with other sources of revenue like Salt, Abkari, Income-tax, Irrigation cess, the legislature thought it sufficient to enact that all sums payable to the Government in respect of each particular head of revenue could be recovered as if it were an arrear of land revenue. The legislature could not have intended by mere reference to the procedure for realisation of land revenue, that a provision of the Revenue Recovery Act which does not deal with such procedure should be incorporated in the Special Acts.

The District Munsif refers to Sect. 1 of the Revenue Recovery Act, and by some argument which I am unable to follow, comes to the conclusion that by reason of the wording of that section, Sect. 59 applies to this case. The material portion of Sect. 1 is as follows:

Public revenue due on land shall for the purposes of this act be taken to include cesses or other dues payable to Government on account of water supplied for irrigation

Whether Sect. 1 of the Revenue Recovery Act and Sect. 2 of the Irrigation Cess Act overlap each other or not, it is unnecessary for me to discuss. But one thing is certain; in this case water-cess was not levied for water supplied for irrigation. On the other hand as the District Munsif remarks at the close of his judgment, it was the unauthorised use of water that entailed penal assessment. The Revenue Recovery Act refers not only to water supplied but also to water used. In this suit we are concerned only with water used and not with water supplied and the reference by the District Munsif to Sect. 1 of the Revenue Recovery Act seems altogether irrelevant.

For these reasons I have come to the conclusion that the suit is not barred by limitation and I would therefore dismiss the appeal with costs.

By the Court. As we have differed on a point of law viz. , whether the suit is barred by limitation or not, we refer the point under Sect. 98, Civil Procedure Code to the decision of a third Judge.

[This Appeal came on for hearing in pursuance of the order of reference dated 12th October, 1922, before Sir Walter Salis Schwabe, K.C., C. J.]

Judgment:

In this case claim was made for water cess. The assessee paid under protest, gave notice claiming the amount he paid and commenced this suit seven months after the payment but within eight months of it. It is contended by the Crown that the suit is barred by limitation under Section 59 of the Revenue Recovery Act II of 186

4. That section runs thus "Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act from applying to the Civil Courts for redress : provided that Civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action Unless such suit shall be instituted within six months from the time at which the cause of action arose." I will assume that that section applies to cases arising out of the collection or imposition of cess under the Madras Irrigation Cess Act VII of 186

5. By Article 16 of the Limitation Act a period of one year is given for suits "against Government to recover money paid under protest in satisfaction of a claim-made by the revenue authorities on account of arrears or revenue of on account of demands recoverable as such arrears." That section applies in terms to this case unless there is something in Section 59 of the Rent Recovery Act which prevents its applying. Section 29(1)(b) of the Limitation Act says, "Nothing in this Act shall affect or alter any period of limitation specially prescribed for any suit by any special or local law now or hereafter in force in British India." There is a further provision in Section 15(2) of that Act that, in computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded, and under Section 80 of the Code of Civil Procedure, no suit can be instituted against the Secretary of State in Council unless two months notice is given. It has therefore to be contended for the Crown that Section 59 of the Revenue Recovery Act, by reason of Section 29 of the Limitation Act, not only excludes Article 16, but also by reason of the same section, prevents the application of Section 15 of the Limitation Act so that the period of two months is not in this particular instance to be excluded. In my judgment, this is not a case under Section 59 of the Revenue Recovery Act at all, because it is not the case of a party deeming himself aggrieved by any proceeding under that Act. I doubt very much whether a demand of payment is a proceeding under the Act at all as contemplated by that section. I am quite clear that a person, who pays under protest when a demand is made and claims to recover back, is not a person aggrieved by any proceeding under the Act. He has taken a wise course, which prevent his having a grievance.

There is direct authority in support of this view in Ravula Vengala Reddi v. Secretary of State 15 I.C. 328, which followed a series of appeals, Second Appeals Nos. 838 and 844 of 1910 and 240 to 244 of 1911, the judgments in which, I regret, have not been published, because the point is fully discussed there and decided. The only authority to the contrary is the case of Orr v. Secretary of State (1899) I.L.R. 23 M. 571. In that case, without giving any reasons the Court expressed a view that, in the circumstances of that case, Section 59 applied where there had been a payment under protest, to the exclusion of Article 16 of the Limitation Act. It was unnecessary for that decision (which no doubt explains why no reasons were given) because in that case, the Court held on the merits that there was no case. That case was considered by the Bench in Ravula Vengala Reddi v. Secretary of State 15 I.C. 328 and in the cases therein referred to, and distinguished. Ravala Nagamma v. The Secretary of State for India 18 I.C. 699, which was also referred to, does not touch this point.

In this state of authorities, sitting alone, I should have considered myself bound to follow the decision in Ravula Vengala Reddi v. Secretary of Stale 15 I.C. 328 : but it is open to me, sitting as I am now, to express my own views, and 1 agree with the decision in Ravula Vengala Reddi v. Secretary of State 15 I.C. 328 for the reasons given in that case and in the unreported cases referred to therein, and I disagree with that part of the judgment in 23 Mad. 571 which is to the contrary.

That being my view, it is enough to dispose of the case : but although I have not heard the matter fully argued, I think it right to say that I should find it very difficult to hold that Section 29 of the Limitation Act, even if it has any application in this case, operates to exclude the two months time given by Section 15 of that Act, for there is nothing in Section 59 of the Revenue Recovery Act to suggest that the six months limited there is to include the period which is by the general law excluded.

The appeal will be dismissed with costs, including the costs of this reference.