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The Bengal Drainage Act, 1880

The Bengal Drainage Act, 1880

Bengal Act 6 of 1880

bh195

[Dated 9th June, 1880]

An Act to provide for the drainage and improvement of lands.

Preamble. – Whereas it is expedient that provision should be made for the better drainage and improvement of lands in the territories administered by the Lieutenant Governor of Bengal; It is hereby enacted as follows:-

Preliminary

  1. Short title and extent.– This Act may be called the Bengal Drainage Act, 1880.

It extends to all the territories [* * *] under the administration of the Lieutenant Governor of Bengal.

[Repealed by Act 1 of 1903.]
  1. Repeal of Bengal Act 5 of 1871.– Bengal Act 5 of 1871 (the Hooghly and Burdwan Drainage Act) shall be repealedon and from the date upon which this Act comes into force; but, subject to the provisions of this Act, this repeal shall not affect the past operation of such Act, or anything duly done or suffered, or any right, privilege, obligation or liability acquired, accured or incurred thereunder.
  2. Interpretation clause.– In this Act, unless there be something repugnant in the subject or context,-

“the Collector” means the officer-in-charge of the revenue jurisdiction of the district within which the lands which form the subject of a scheme under this Act, or the greater portion of such lands, are situate. If any doubt arises as to whether the greater portion of the lands is situate within one or two or more districts, the Board of Revenue shall decide the point, and such decision shall be final;

[“Certificate Officer” means a Certificate Officer as defined in clause (2) of Section 4 of the [Public Demand Recovery Act, 1895]; ]

“the Commissioner” means the Drainage Commissioners to be appointed under this Act;

“estate” means land included under one entry in the general registers of revenue-paying lands and revenue-free lands, prepared and maintained [under the law] for the time being in force by any Collector of a district or a share of interest, in such land;

“proprietor” means a person who as owner is solely or jointly in possession of an estate;

“tenure” means-

(1) a permanent rent-paying interest in land immediately subordinate to that of proprietor and superior to that of raiyat, extending to not less than one hundred standard bighas, affected or to be affected by any works under this Act;

(2) a permanent revenue-free or rent-free interest in land affected or to be affected by any works under this Act, when there exists no rent-paying interest in the same land between the proprietary interest in the estate and such revenue-free or rent-free interest;

“under-tenure” means-

(1) a permanent rent-paying interest in land subordinate to that of a tenure-holder and superior to that of a raiyat, extending to not less than one hundred standard bighas, affected or to be affected by any works under this Act;

(2) a revenue-free or rent-free interest in land affected or to be affected by any works under this Act, when there exists a rent-paying interest in the same land between the proprietary interest in the estate and such revenue-free or rent-free interest;

Explanation – The term “permanent” is used with reference to the tenure or under-tenure itself, and not with reference to the person who happens to hold such tenure or under-tenure for the time being. A tenure or under-tenure is nonetheless permanent, although held by a Hindu widow, aSebait or a person subject so the Mitakshara Law.

“landholder” and “holder of land” means-

(1) any person who as owner of an estates solely or jointly in possession thereof;

(2) any person who as owner of a tenure or under tenure is solely or jointly in possession thereof;

where two or more persons are joint landholders they shall be jointly and severally liable under this Act, except as is otherwise expressly provided herein;

“reclaimed land” means land which was unfit for cultivation before the execution of any work under this Act, but which has been rendered productive by such works;

“improved land” means land which was more or less fit for cultivation before the execution of any work under this Act, but of which the productive powers have been increased by such work;

“Part” and “section” means, respectively, a part and Section of this Act.

Part I

Appointment of Commissioners and Conduct of Business

  1. State Government to appoint Commissioners.– Whenever it appears expedient to the [State]Government to carry out any scheme and plans for the drainage and improvement of any tract of land, the [State]Government may appoint any number of persons, not less than seven, of whom the majority shall be qualified by being holders of lands to be affected by the works mentioned in the said scheme and plans, or managers on behalf of such holders to be Drainage Commissioners for carrying out the provisions of this Act;

and the [State] Government may, from time to time, remove or accept the resignation of any such Commissioner, or may add to the number of the Commissioners, and may appoint another person in the place of any such Commissioner dying, resigning, being removed or ceasing to reside in the district in which lands are situate, but so as that the majority of the Commissioner shall always be persons qualified as aforesaid.

No Act done or proceeding taken by the Commissioners shall be invalid merely on the ground that at the time of doing such act or of taking such proceeding the majority of the Commissioners were not persons qualified as aforesaid.

  1. State Government to appoint Chairman.– The [State]Government shall from time to time appoint one of the persons so appointed Commissioners as aforesaid to be Chairman of the Commissioners, and may at any time, if [it] see fit, revoke such appointment and appoint another of such persons to be Chairman.

The Commissioners may sue and be sued in the name of their Chairman.

  1. Meetings of Commissioners and quorum.– The Commissioners shall ordinarily meet for the transaction of business once at least in every quarter.

Such meeting shall be held upon such day and at such hour as the Commissioners shall from time to time determine.

No business shall be transacted at any meeting unless at least three members are present at the commencement and close of such business.

  1. Extraordinary meetings.– The Chairman of the Commissioners, may whenever he thinks fit, and shall, upon request made in writing by three of the Commissioners, call an extraordinary meeting of the Commissioners.
  2. Presidency of meetings.– The Chairman shall preside at every meeting of the Commissioners; but in case of his absence at the time appointed for holding a meeting, the Commissioners present may choose one of their number to be President of such meeting.
  3. Transaction of business at meetings.– (1) All questions at any meeting, including the question of adjourning such meeting, shall be decided by a majority of votes of the members present. In case of an equality of votes the President for the time being of such meeting shall have a second or casting vote.

(2) Delegation of powers to Committee. – The Commissioners may delegate any of their powers to committees consisting of such member or members of the body as they think fit. Any Committee so formed shall, in the exercise of the powers delegated, conform to any regulations that may be imposed on them by the Commissioners.

(3) Election of Chairman of Committee. – A Committee may elect a Chairman at their meetings. If no Chairman is elected or if he is not present at the time appointed for holding any meeting, the members present at the time appointed for holding any meeting, the members present shall choose one of their number to be Chairman of same.

(4) Adjournment voting etc., of Committee. – A Committee may meet and adjourn as they think proper. Questions at any meeting shall be determined by a majority of votes of the members present, and in case of an equal division of votes the Chairman shall have a second or casting vote.

  1. Power to appoint servants.– The Chairman of the Commissioners may, by an order in writing appoint and dismiss such servants and officers, other than engineers and their subordinates, as may be required for the purposes of this Act, and he may control them as he shall see fit.

There shall be paid to servants and officers, respectively, such salaries as may appear to the Commissioners to be proper.

  1. When objects of their appointment fulfilled, State Government may direct Commissioners’ powers and functions to cease.– The [State]Government may, when satisfied that the objects of their appointment have been fulfilled, direct that the powers and functions of the Commissioners shall cease.

Part II

Drainage Scheme

  1. Commissioners to cause a notification of the scheme to be, published.– The Commissioners shall, within three months after their appointment, cause a notification, in the language of the district, to be situate any portion of the lands to be affected by the works proposed in such scheme and plans.

Every such notification shall be in the form in Schedule A hereto annexed, and shall further be published by posting the same at the office of the Collector and of the Sub-Divisional Officer and in some conspicuous part of the village aforesaid, and at the Court of the Munsif within whose jurisdiction, and at the thana within the limits of which such village situate.

  1. List of persons assenting or objecting to be published.– After the date named in such notification a list of the persons who may have given their assent or made any objection in writing in accordance with such notification shall be prepared and published, in the manner provided in Section 12, for the information of all concerned.

Such list shall contain a specification of the land in respect of which such persons claim to vote as landholder, and of the titles in virtue of which they claim to vote, respectively; and there shall be appended thereto a notice that objections to the right of voting so claimed must be lodged with the Commissioners within one month after the publication of the said list.

  1. Commissioners how to ascertain that proprietors have assented.– (1) The Commissioners may, at some meeting to be held not less than one month after such list has been published under the provisions of Section 13, proceed to ascertain whether the holders of half of the lands to be reclaimed or improved have assented in writing to the adoption of the scheme.

For the purpose of so ascertaining, the Commissioners shall take into account the vote of not more than one landholder in respect of any one portion of the area affected; and whenever more than one landholder shall have given his vote in respect of the same portion of such area the Commissioners shall take into account the vote of the landholder who holds the lowest interest in respect of such area, and shall not take into account in respect of such area the vote of any superior landholder who may have voted.

Example-

A gives his vote as proprietor of 5,000 bighas;

B, as patnidar of 2,000 bighas included in A’s proprietary of 5,000 bighas;

C, as mukarraridar of 100 bighas included in B’s patni,

D, as holding a permanent jama of 500 bighas included in A’s proprietary of 5,000 bighas; but not in B’s patni of 2,000 bighas;

The Commissioner shall take into account the votes of the respective landholders in respect of the following areas:-

Bighas
D for 500
C for 100
B for (2,000-100-) 1,900
A for (5,000-2000-500) 2,500
Total 5,000

(2) Vote for estate, tenure, etc., held by two or more co-sharers. – One vote only shall be allowed in respect of an estate, tenure or under-tenure belonging to two or more co-sharers.

In order to ascertain whether this vote shall be taken as assenting or objecting to the adoption of the scheme, regard shall be had to the votes of the co-sharer individually, and account shall be taken of those only who actually vote.

If the majority assent, a vote of assent shall be deemed to have been given in respect of the estate, tenure or under-tenure.

If the majority object, a vote of objection shall be deemed to have been given.

If the number assenting and the number objecting are equal, no vote shall be deemed to have been given in respect of such estate, tenure or under-tenure.

  1. Persons voting to specify the extent of their lands.– The Commissioners may, in their discretion, refuse to take into account the vote of any person who, after being required to do so, fails to specify the extent of land held by him and the nature of the interest which he has in such land.
  2. Commissioners to decide who is entitled to vote.– Whenever the right of any person to vote as a holder of any land shall be disputed, the Commissioners shall determine whether the vote of such person shall or shall not be accepted in respect of such land; and their determination shall be final for the purpose of Section 17:

Provided that any “recorded proprietor,” as defined by Section 3 of the Land Registration Act, 1876, shall be entitled to vote in respect of any property of which he is the recorded proprietor.

(2) Vote for property held by a minor or lunatic. – In the case of a landholder who is a proprietor disqualified to manage his own property under the provisions of the Court of Wards Act, 1879 or any similar law for the time being in force, or who is a minor or a lunatic, the right to vote shall be exercised by any manager of the property of such disqualified proprietor or minor or lunatic appointed by the Court of Wards, or by the Civil Court under the provisions of any law for the time being in force, or, where no such manager has been appointed, by any person who, in the opinion of the Commissioners, duly represents the interests of such minor or lunatic.

(3) Case of landholder not found. – Where the holder of any land cannot be found, such land shall be altogether excluded in any commutation that may be made in order to determine whether the landholders of not less than half of the area to be reclaimed or improved have assented to the adoption of the scheme.

  1. If half of landholders agree, Commissioners to consider the scheme submitted.– If the landholders of not less than half of the area to be reclaimed or improved, ascertained as above provided, shall have assented to the adoption of the scheme, and not otherwise, the Commissioners shall proceed to consider such scheme, together with the plans and estimates for carrying out the same, and shall further consider such objections as have been made thereto; and may adopt such schemes, plans and estimates, or may alter and modify the same, and adopt the scheme, plans and estimates so altered or modified, or may disapprove or reject the same.
  2. Power to proceed with portion of scheme.– If the landholders of half of the area to be reclaimed and improved do not assent to such scheme, but the landholders of half of the area to be affected by some portion of such scheme assent thereto, the Commissioners may re-submit such portion of the scheme to the [State]Government and may, with [its] approval proceed thereupon in manner aforesaid.
  3. Scheme approved by Commissioners to be laid before the State Government.– If the Commissioners adopt such scheme, plans and estimates or any modification or alteration thereof, they shall, within one month after such scheme, plans and estimates, or some modification or alteration thereof have been adopted by them, cause the same to be laid before the [State]Government;

and the [State] Government may sanction the scheme, plans and estimates so adopted, or any portion thereof, as to [it] shall seem fit.

  1. Power to reconsider scheme and modify it.– (1) The Commissioners may, with the previous assent of the [State]Government at any time reconsider any scheme, plans or estimates adopted by them, and add to alter or modify the same;

and, when any addition, alteration or modification has been adopted by them, they shall cause the same to be laid before the [State] Government.

The [State] Government may sanction such addition, alteration or modification, or any portion thereof, as [it] may think fit;

and, henceforth the provisions of this Act shall apply to such addition, alteration or modification as if it had been a portion of the original scheme, plans or estimates; and every such addition, alteration or modification, after it has been adopted, shall be published by the Commissioners as to them shall seem fit.

No such addition, alteration or modification shall be adopted at a meeting at which the majority of the members present are not qualified as provided by Section 4.

(2) Publication of modified scheme. – No addition, alteration or modification, under clause (1), to or of any scheme which affects any lands other than those which would be affected by some scheme theretofore published, shall be adopted by the Commissioners until the same has been published, for not less than fifteen days, according to the provisions of Section 12, in every village in which may be situate any portion of the lands to be affected by such addition, alteration or modification;

nor shall any such addition, alteration or modification be adopted unless the landholders of not less than half the entire area to be affected by the scheme as so added to, altered or modified assent to the same.

  1. Power for the acquisition of land.– When the [State]Government has sanctioned any scheme, plans and estimates as aforesaid, or some portion thereof, [it] may direct proceedings to be taken under the provisions of the Land Acquisition Act, 1870, or any other law [for the time being in force] for the acquisition of land for public purposes in order to obtain any land likely to be required for the works mentioned in such sanctioned scheme, plan and estimates, or any portion thereof.
  2. State Government may order scheme to be carried out.– The [State]Government may, if [it]thinks fit, order the works specified in such sanctioned scheme, plans and estimates, or portion thereof, to be executed by an officer to be thereunto appointed by the [State] Government;

and may, [******] order the advance from the public funds of such sum of money as may be required for the purpose of making such improvement;

and such officer may cause the works specified in such scheme and plans to be executed, and for that purpose may by himself, his agents and workmen enter into or upon any lands and perform such works thereupon as may be required.

  1. Power to State Government to modify scheme.– The [State]Government may, at any time after the said works have been commenced, by an order sanction any alteration or modification of such scheme or plans suggested to [it] by the officer-in-charge of such works, if after communication with the Commissioners it shall appear to [it] that by such alteration or modification the general character and scope of the scheme will not be altered, nor greater expenditure incurred thereon than would be incurred in the scheme as originally sanctioned; and, after such sanction, such alteration or modification shall be taken to be a portion of the scheme adopted by the Commissioners, in substitution for the portion of such scheme thereby altered;

and every such alteration or modification shall be published by the Commissioners as to them shall seem fit.

  1. Claims to compensation for damage caused in carrying out scheme or works.– (1) Any person who alleges that damage has been caused to his property by any scheme or works commenced or carried out under this Act may, at any time before the expiry of the three years mentioned in clause (1) of Section 28, prefer to the Commissioners a claim for compensation in respect of such damage actually caused, and of all future damage likely to be caused, to such property by such schemes or works.

Compensation to be assessed by the Commissioners. – The Commissioners shall duly consider any such claim; and, if they are satisfied that such damage has been caused or is likely to be caused they shall assess such compensation as to them appears fair and reasonable.

If such person agrees to accept the amount so assessed the same shall be paid to him.

Reference to Civil Court if amount assessed be not accepted. – If he does not agree to accept such amount, the Commissioners shall make a reference to the Civil Court in the manner in which a Collector is empowered to make a reference by Section 15 of the Land Acquisition Act, 1870 and the provisions of Part III of the said Act shall apply to any reference so made.

(2) Reference to Civil Court where amount of compensation agreed to or settled by Court, but dispute as to its apportionment. – When the persons interested in such property, to which damage has been caused as aforesaid, agree to accept the amount of compensation assessed by the Commissioners, but a dispute arises as to the apportionment of the same or any part thereof;

or when the amount of compensation has been settled by the Court on a reference under clause (1) of this section, and a similar dispute arises;

the Commissioners shall refer such dispute to the decision of the Civil Court; and the provisions of Part IV of the said Land Acquisition Act shall apply to any reference so made.

(3) Reference may in certain cases be transferred to Subordinate Judge or Munsif for disposal. – When the amount of compensation assessed by the Commissioners does not exceed one thousand rupees, any reference made under the said clause (1) may be transferred by the principal Civil Court of original jurisdiction of the district to any Subordinate Judge in the same district; and such Subordinate Judge shall have power to hear and dispose of the same;

and any reference made under clause (2) of the section may be transferred by such principal Civil Court to any Munsif in the same district, and such Munsif shall have power to hear and dispose of the same.

Part III

Expenditure and Apportionment

  1. Cost of compensation, etc., to be deemed part of expense of construction. Such expense may be defrayed by advances from the public funds.– All amounts paid as compensation for any lands taken for the purposes of this Act, or for damage inflicted in carrying out any scheme or works under this Act, or as salaries of officers, servants or establishments, or for surveys or valuations (whether antecedent or subsequent to the preparation of the scheme and plans), and all amounts otherwise duly expended in carrying out the purposes of this Act, shall be included in and deemed to constitute the cost of, construction of the works, and may be defrayed by advances from the public funds as provided by Section 22.

[26. Interest to be charged on such advances. – Interest shall be charged on all such advances until the same have been recovered.]

26A. Rate of interest, and barring of compound interest. – (1) In every case in which the charging of interest in authorized by this Act, the rate chargeable shall be four per centum per annum.

(2) No compound interest shall be charged in any case.

Explanation. – The interest recoverable from a tenant under Section 42, clause (b), Section 43, clause (b), Section 44 or Section 44-A shall not be deemed to be “compound interest” within the meaning of this section although it includes simple interest upon interest which has been paid by a landholder or superior tenant in pursuance of this Act.

  1. Reports to be made and expenditure certified.– The officer-in-charge of the said works shall, until the same shall be finally completed, once in every three months make a detailed report to the Commissioners of the progress of such works and the expenditure thereupon from the day up to which the next preceding report shall have been brought down;

and the Examiner of Public Works Accounts to the Government of [Bengal], or some other officer authorized in that behalf by the [State] Government shall from time to time certify the sums advanced in accordance with the provisions of Section 25 and the dates of such advances;

and ever such certificate shall be final and conclusive evidence in a Civil Court, or in any proceedings under this Act, of the sums therein stated to have been advanced having been so advanced, and of the dates upon which they were respectively so advanced.

  1. Commissioners upon expiry of three years from completion report to classify lands benefited by the works, distinguishing between improved lands and reclaimed land.– (1) The officer-in-charge of the works shall, as soon as they have been completed certify such completion to the Commissioners;

and the Commissioners shall, upon the expiry of three years from such completion being so certified to them, proceed to classify all the lands benefited by the works according to the degree of benefit conferred; and in such classification they shall distinguish the improved lands from the reclaimed lands.

It shall be lawful for the Commissioners at anytime during such three years to make such inspections of the lands, and such surveys thereof, and otherwise to collect such information, as shall in their opinion conduce to the making of such classification and of the apportionment hereinafter mentioned.

(2) Cost of construction with interest, to be apportioned upon the improved lands and reclaimed lands. Amount payable for the improved lands not to exceed value of improvement. – The Commissioners shall, after making such classification, proceed further to apportion the total cost of construction, together with [interest] upon the improved lands and reclaimed lands, and shall draw up a statement showing the amount payable to the Collector by each landholder-

(a) in respect of his improved lands, if any, and

(b) in respect of his reclaimed lands, if any.

In making this apportionment the Commissioners shall, as far as may be possible, make payable in respect of each plot or field of improved land a sum not exceeding the amount of the increased capitalized value which, in the opinion of the Commissioners, has been conferred on such land by the works.

  1. [Omitted by Bengal Act 2 of 1902.]
  2. When the land is part of a tenure, etc., Commissioners may declare who shall be deemed liable as landholders.– Whenever any land, in respect which any sum is apportioned as payable under the provisions of Section [***]28, forms part of a tenure, and of a tenure and of an under-tenure, it shall be lawful for the Commissioners, to declare whether the holders of the estate, of the tenure or of the under-tenure shall be deemed to be the landholders liable to pay to the Collector the sum apportioned as payable in respect of such land.
  3. Amounts made payable to be a charge upon the improved lands and reclaimed lands, respectively.– The total sum so made payable in respect of the improved land of anyone landholder, and the total sum so made payable in respect of the reclaimed lands of anyone landholder with interest [***]from the date of apportionment, [* * *] shall a be first charge upon such improved lands and upon such reclaimed lands respectively.

Such charge shall not be avoided by the sale of such lands or of any estate, tenure or under-tenure within which they are included, for arrears of revenue or rent.

  1. Commissioners to report apportionment.– The Commissioners shall, so soon as conveniently may be after having apportioned the sums to be payable by the holders of the lands of any village respectively, make and publish a report describing the several lands in respect of which they have declared such sums to be payable, the names of the respective holders thereof who have been made liable to pay the same to the Collector, and the sum payable by each in respect of the same.

Every such report shall distinguish between the reclaimed lands and the improved lands, and shall classify the latter according to the extent of the improvement.

A copy of such report shall be sent through the Collector to the Commissioner of the Division, for confirmation by such Commissioner.

  1. In default of Commissioners, officer appointed by State Government to make apportionment and report.– If the Commissioners shall, for the space of three months after the completion of the entire works has been certified to them as aforesaid, neglect or refuse to proceed with the apportionment of the sums payable as aforesaid, or to make such report as aforesaid;

or, for the space of two months after any report and appointment shall have been returned to them for further consideration and revision under the provisions hereinafter contained, neglect or refuse to proceed to such further consideration and revision as is required;

the Collector may serve them with a notice requiring them to proceed as aforesaid;

and, if for one month after service of such notice they neglect so to proceed, the [State]Government may appoint such officer or officers as to [it] shall seem fit, to make or consider and revise such apportionment and report, and to do all or any-of the subsequent acts which the Commissioners are hereby required or empowered to do in respect of such apportionment and report;

and every apportionment and report so made or revised, and every such Act so done, shall have the same force and effect as if the same had been made, revised or done by the Commissioners.

  1. Reports to be published.– Whenever any apportionment and report have been made in pursuance of the provisions hereinbefore contained, the Commissioners shall cause such report to be published by affixing in every village in which any lands mentioned therein are situate a copy of so much thereof as relates to such lands, and also a like copy at the office of the Collector and of the Sub-Divisional Officer, and at every Munsif’s Court within whose jurisdiction, and at every policethanawithin the limits of which such village, or any part thereof, is situate.

The fact of such apportionment and report having been made, and such copies having been affixed, shall also be notified by beat of drum in every such village.

  1. Appeal against apportionment.– Any person who may deem himself to be aggrieved by any such apportionment may, within one month after such report has been published, prefer an objection before the Commissioners, and the Commissioners shall be bound to inquire into and decide upon such objection;

and any person who is dissatisfied with such decision may, within one month from the date of such decision, appeal to the Commissioner of the Division against such apportionment;

and such Commissioner shall cause notice of the day fixed for the hearing of such appeal to be published by affixing the same in the office of the Collector and of the Sub-Divisional officer and in a conspicuous place in every village;

and in the Court of every Munsif within whose jurisdiction, and at every police thana within the limits of which, any of the lands mentioned in such report are situate.

Such Commissioners shall hear such appeal and the objections thereto of all persons interested, and may confirm such apportionment,or may revise and alter the same as to him shall seem fit, or may return the same to the Commissioners for further consideration and revision:

Provided that the total sum apportioned by every appointment and report so revised and altered, as payable in respect of all the lands improved or reclaimed by the works shall not be less than the total cost of the construction of such works within the meaning of Section 25.

Every such apportionment and report, when revised or altered, shall, so far as the same has been altered, be published, and be liable to appeal, in like manner as the original apportionment and report.

The decision of the Commissioner of the Division upon any appeal under this section shall be final.

  1. Final determination of apportionment.– Whenever the Commissioner of the Division shall confirm any appointment and report, or whenever one month shall have elapsed from the publication of any report without any appeal therefrom having been preferred, he shall pass an order declaring the sums payable in respect of the lands respectively and the persons liable to pay the same to be determined, and shall cause such order to be published in such manner as to him shall seem fit.

[36A. Power to add to or alter declaration as to names of persons liable to pay. – (1) If any order passed under Section 36, so far as it declares what persons are liable to pay any sum under this Act in respect of any land, appears at any time to require revision,-

(a) by reason of the omission of the name of any co-sharer of such land, or

(b) by reason of any change having taken place in the ownership or joint ownership of such land, or

(c) for any other substantial reason,

the Collector may, on the application of any holder of the land, or of his own motion, and after such inquiry and upon such conditions (if any) as he may think proper, add to or alter such order:

Provided that every person whose name is so added or who is materially affected by any such alteration has had an opportunity of being heard by the Collector.

(2) Any person who is dissatisfied with any addition or alteration made under sub-section (1) may, within one month after the same was made, appeal to the Commissioner of the Division.

(3) The Commissioner shall cause notice of the day fixed for the hearing of such appeal to be published in the manner prescribed by Section 35; and shall, on the day so fixed, hear such appeal and all objections thereto advanced by persons interested and may confirm or revise the addition or alteration, or may remit the case to the Collector for further consideration and revision.

(4) The decision of the Commissioner on any such appeal shall be final.

(5) Every addition and alteration made under this section shall be published, in such manner as to Collector may deem fit, after the expiration of one month-

(i) from the time when the addition or alteration was made, or

(ii) if any appeal has been preferred under sub-section (2), from the decision of the appeal;

and the addition or alteration shall take effect from the date of such publication; and proceedings may thereupon be taken under this Act, in respect of such addition or alteration, as if a new order embodying it had been made under Section 36.]

Part IV

Recovery of sums due to the Collector

  1. Collector to serve notice of apportionment, requiring payment or engagement to pay.– As soon as any apportionment has been determined as aforesaid, the Collector may cause a notice in the form in Schedule B hereto annexed to be served upon any landholder who has not paid the sum payable by him.

Such notice shall require such landholder, within one month from the date of [the service thereof]upon him, to pay such sum, with interest [up to the day of payment] or to enter into an engagement for the payment, by instalments extending over a period of not more than ten years, of such sum, together with interest [* * *] on all instalments remaining unpaid at the date of such payment.

  1. If amount not discharged, the Collector may recover it as a public demand.– If any landholder fails to discharged the sum made payable in respect of his improved lands or in respect of his reclaimed lands, or fails to enter into an engagement for the payment thereof as in this Act hereafter provided, or, having entered into such an engagement, fails to discharge any instalment payable thereunder, such sum or such instalment, together with interest [* * *]shall be recoverable under the provisions of any law for the time being in force for the recovery of public demands.
  2. Collector may also with sanction of Board of Revenue raise unpaid amount by leasing or mortgaging the improved or reclaimed lands.– If the Collector thinks it inexpedient to proceed under the provisions of Section 38, or, having so proceeded shall have failed to realize the sum due, he may, with the sanction of the [Commissioner of the Division]raise the amount necessary to discharge the sum or instalment remaining unpaid-

(a) by letting in perpetuity or for a term, on payment of a premium equivalent to such amount, the whole or any part of such improved land or reclaimed lands;

(b) by mortgaging the whole or any part of such improved lands or reclaimed lands;

(c) by letting in farm or managing by himself or another the whole or any part of such improved lands or reclaimed lands; or

(d) partly by one of such modes and partly by another or others of them. For the purposes of this section, the Collector may exercise all the powers of the owner of such improved or reclaimed lands; and his signature shall be a good and sufficient signature to any document necessary to carry into effect the said purposes.

  1. Recovery of unrealised portion of charge.– In case the Collector certifies that any sum payable as hereinbefore provided cannot be realized as provided by Section 38 or 39, so much of such sum as shall not have been so realized shall be a charge upon any profits that may accrue from the property vested in Collector under the provisions of Section 47.
  2. Power to repay advances.– Any landholder who has entered into an engagement for the repayment of any sum apportioned as aforesaid may at any time repay to the Collector the entire amount of the principal sum which shall be then remaining due, and interest thereupon up to the day of payment; and henceforth the said engagement shall be terminated, and all liabilities in respect thereof for principal or interest shall determine.

[Part IV-A

Recovery of share of payments from co-sharers

41A. Power to recover share of payments from co-sharers. – When any landholder has made any payment under the foregoing provisions of this Act in respect of land which he holds jointly with other persons, and such payment exceeds the amount which is proportionate to his individual interest in the land, he may-

(a) recover from his co-sharers, respectively, such contributions towards such payment as are proportionate to their individual interests in the land, either-

(i) in the same manner in which arrears of rent are recoverable under the Bengal Tenancy Act, 1885, and under similar penalties, or

(ii) if such co-sharers have been declared by any order passed under Section 36 or revised under Section 36-A to be liable to pay upon application to the Collector as hereinafter provide; or

(b) take credit for such contributions as aforesaid in any adjustment of accounts between himself and his co-sharers.]

Part V

Recovery by Landholders or Superior Tenants of the cost of the works from persons Holding Land under them

  1. Proprietor may recover from subordinate tenants.– Every landholder who has been charged with any sum by a report published as aforesaid may, after he has paid or engaged to pay the same-

(a) proceed under any law for the time being in force to enhance the rents of any person holding immediately from him any land the productive powers of which have been increased by any works carried out under this Act: provided that any such person may at his option elect to pay under clause (b) of this section; or

(b) recover such sum or any part thereof according to the proportions hereinafter provided, with interest [* * *] from the date of payment by him of any portion thereof, from the persons holding immediately from him lands in respect of which such sum has been declared payable, and which have been benefited by any scheme of works carried out under this Act;

(c) The sum recoverable by such landholder from each such person under clause (b) in respect of the lands of each class shall bear the same proportion to the sum charged upon such landholder in respect of all lands of that class as the area of the lands of that class which are held by such person bears to the area of the lands of the same class in respect of which the landholder has been charged. No person from whom a landholder is authorised to recover any sum under this section shall be liable to pay in any one year more than one-tenth part of the sum so recoverable from him, and no person shall be liable to pay in one year more than the increased annual value of the lands in respect of which the payment is made.

  1. Recovery by superior tenant.– Any superior tenant who has made any payment to a landholder under the provisions of clause (b) of Section 42, may-

(a) proceed under any law for the time being in force to enhance the rents of any person holding directly from him lands the production powers of which have been increased by any works carried out under this Act: provided that any such person may at his option elect to pay under clause (b) of this section; or

(b) recover the sum or part of the sum which has been so paid by him according to the proportions and subject to the rules laid down in clause (e) of Section 42, with interest [* * * *] from the date of payment by him of any portion thereof, from the persons holding directly from him lands in respect of which the payment has been made, and which have been benefited by any scheme or works carried out under this Act.

  1. Mode and time of payment.– (1) The sum payable to a landholder or superior tenant in any one year under clause (b) of Section 42 or under clause (b) of Section 43 shall be payable by equal instalments upon the days appointed for the payment to such landholder or superior tenant of the rent of the lands concerned, and shall be recoverable as if the same were an arrear of rent.

(2) Provision in case of dispute as to the amount to be paid. – If such landholder or superior tenant and any person holding lands directly from him cannot agree as to the amount which such person shall pay, such landholder or superior tenant may serve person through the Collector, with a notice setting forth the amount which the claims, and requiring such person, within one month after the service of notice, to pay the amount claimed or enter into an engagement for the payment thereof by instalments extending over a period of not more than ten years, or appear before the Collector and object.

(3) Collector to decide objections. – If such person do not within the said period of one month appear and object, the amount set forth in such notice shall be recoverable with interest [* * *].

If such person appear and object, the Collector shall dispose of such objection and his decision shall be final.

The Collector may direct that any sum of money payable under his decision, together with any cost awarded by him, be paid by instalments extending over a period of not more than ten years.

The provisions of clause (1) of this section shall apply to every sum payable according to an order of the Collector passed under this section.

[44A. Recovery, under the certificate procedure, of payments made in respect of land held by tenants. – (1) If any landholder or superior tenant has made any payment under the foregoing provisions of this Act in respect of lands which are or were held by tenants immediately from him and which have been benefited by any scheme or works carried out under this Act;

and if he has not enhanced the rent of such tenants under Section 42, clause (a), or Section 43, clause (a), or recovered under Section 42, clause (b), Section 43, clause (b), or Section 44 the sum due to him;

he may, upon application to the Collector as hereinafter provided, but subject to the provisions of sub-section (1) of Section 44 as to instalments, recover from such tenants such sums as he may be entitled to according to the proportion order the rules laid down in clause (c) of Section 42, with interest from the date of such payment.

(2) An application in respect of a payment may be made under this section by a landholder who was declared by an order passed under Section 36 to be liable to make such payment, although his name has been removed, by an order made under Section 36-A, from the list of persons declared liable to make payments.

(3) If any tenants referred to in sub-section (1) have transferred their tenancies, the sums referred to in that sub-section may be recovered thereunder.

(a) from the said tenants for the period during which they occupied the benefited land since the carrying out of the said scheme or works, or

(b) from the tenants in possession.

44B. Bar to recovery of money from tenants in certain cases. – Notwithstanding anything hereinbefore contained, no sum shall be recoverable under Section 42, clause (b), Section 43, clause (b), Section 44 or Section 44-A, in respect of any lands which have been benefited by any scheme or works carried out this Act, when in consequence of such scheme or works:-

(a) the rent of such lands has been increased, or

(b) rent has for the first time been imposed on such lands.]

  1. Proviso.– No person from whom any sum has been recovered under clause (b) of Section 42 or under clause (b) of Section 43 [or under Section 44-A]shall be subject to any claim for enhanced rent an account of the benefit caused by the works to his lands.

Part VI

Miscellaneous

  1. Drainage work to be subject to the laws relating to embankments.– All outlets and water-channels, natural or artificial, which shall be altered, enlarged, excavated or cut under the provisions of this Act, and the construction and maintenance of embankments and of dams and works therein or connected therewith, shall, save as hereinafter provided, be subject to the law for the time being in force regulating the construction and maintenance of public embankments and public rivers, channels and outlets.
  2. Lands and works to be vested in Collector on behalf of Government.– All lands which are taken under the provisions of this Act for the purpose of the construction of works therein or thereon, and all works constructed under the provisions of this Act, as well as all outlets, water-channels, embankments and dams so constructed, altered, enlarged, excavated or cut shall be vested in the Collector of the district for the time being, on behalf of the [Government]in order to effectuate and maintain the objects of this Act;

and, to assist the Collector in the management of the same, the [State] Government may appoint, or authorise the election by the landholders aforesaid of a Committee consisting of not less than four or more than six persons, being themselves holders of the lands reclaimed or improved.

  1. Cost of maintenance of works.– (1) The expense of keeping inefficient order and repair any improvements or works effected under this Act shall be charged to the profits from the property vested in the Collector under Section 47;

and, if such profits shall not suffice, the balance shall be paid to the proportions of the original contribution by the holders for the time being of the land which have been benefited by such works;

and all sums payable to the Collector under the provisions of this section shall be recoverable in the manner provided by Section 38, or in the manner provided by Section 39;

and every proprietor or other person who has paid any such sum may recover the same, or any part of the same, in the proportion and subject to the rules laid down in Section 42 or 43, as the case may be [and for that purpose the procedure prescribed by Section 41-A or Section 44-A and Sections 51-B and 51-C shall be applicable.]

(2) Recovery of items omitted from apportionment. – Any such amount as is specified in Section 25 which, from oversight or other cause, has been omitted from the apportionment and report made under Section 32 or Section 33, may be charged and recovered under the provisions of clause (1) of this section.

(3) Surplus property vested in Collector under Section 47 to be appropriated to payment of debt to Government. – If, on the first day of January next before the last instalments payable under the provisions of Section 36 are due, there is, after providing for the expense of keeping in efficient order and repair the improvements and works executed under this Act, a surplus of the profits from the property vested in the Collector under 47, such surplus, or as much thereof as will suffice, shall be appropriated to the liquidation of the said last instalments.

Any landholder who has paid any such instalment in advance under the provisions of Section 41 shall be entitled to a refund in proportion with interest at [four] per cent per annum.

(4) Cost of maintenance may be capitalized and the capitalized amount levied. – The [State]Government may at anytime [* * * *] direct that the total average annual expense, which over and above such profits as aforesaid is necessary to keep such improvements and works in efficient order and repair be estimated, and that there be levied from such landholders, in lieu of all future contributions to the maintenance of such improvements and works, such amount, as, being invested in Government securities at the current rate of interest, shall yield a sum equal to such average annual expenses.The provisions of Sections 31, 38 and 39 shall apply to such capitalized amount.

  1. Powers for taking evidence.– The Commissioners, the Commissioner of the Division and every officer appointed by the [State]Government under Section 33, shall have the powers conferred on Civil Courts by the Code of Civil Procedure for compelling the attendance of witnesses and the production of evidence, and for examining witnesses in any inquiry or appeal which they or he may be empowered to make or entertain under the provisions of this Act.
  2. Rent-free lands may be deemed subordinate tenures.– Any land held free of rent or revenue, being less than one hundred standard bighasin extent, and not being a property entered on the Collector’s general register of revenue-free lands, may, for the purposes of this Act, be deemed to form a tenure or under-tenure held immediately from some landholder; and the Commissioners shall determine who shall be deemed to be the landholder in respect of such tenure:

Provided that any holder of such land, who may deposit the cost of survey of his land at a rate to be approved by the Commissioners and calculated on the area claimed by him, shall be entitled to be deemed a landholder, in respect of such lands, within the meaning of this Act.

  1. Sum payable by holder of rent-free land to be payable in two instalments.– Wherever any land, as mentioned in the last preceding section, shall be deemed to form a tenure or under-tenure held immediately from a landholder as therein provided, every sum payable to the landholder in respect of such land in any one year shall be payable in two equal instalments on such dates as the Commissioner of the Division may fix.

Such Commissioner shall cause due notice to be given in the villages concerned of the dates so fixed by him.

[51A. Recovery, under the certificate procedure of payments made in respect of land held free of rent or revenue. – Any person who has been determined under Section 50 to be the landholder in respect of land, held free of rent or revenue, which has benefited by any scheme or works carried out under this Act, and who has made any payment under the foregoing provisions of this Act in respect of such land, may, upon application to the Collector as hereinafter provided, but subject to the provisions of Section 51, recover the amount of such payment from any person holding such land immediately below him.

51B. Further provisions as to applications under Sections 41-A, 44-A or 51-A. – (1) Every application to the Collector under Section 41-A for recovery of contributions from co-shares towards a payment made by a landholder under the foregoing provisions of this Act must:-

(a) be made within six months after such payment was made, and

(b) specify the amount of such payment, and the amount of such contributions due from each co-sharer,

(2) Every application to the Collector under Section 41-A or Section 51-A for the recovery of sums due, from tenants of or persons holding lands benefited by any scheme or works carried out under this Act, on account of any payment made by the applicant under the foregoing provisions of this Act, must:-

(c) be made within six months after such sums became due,

(d) specify the amount of such payment, and the date on which it was made,

(e) specify the amount of such sums due from each tenant or person holding land, land the date on which it became due, and

(f) be accompanied by a declaration, signed by the applicant and stating:-

(i) that he has not, on account of the said scheme or works enhanced the rent, if any, payable in respect of the said lands or any of them, and

(ii) that he has not taken from such tenants or persons holding land, or any of them any premium on account of such scheme or works.

(3) Every application under Section 41-A, Section 44-A, or Section 51-A must:-

(g) be signed and verified in the manner provided by Sections 51 and 52 of the Code of Civil Procedure for the signature, and verification of plaints,

(h) be accompanied by a court-free of eight annas, and

(i) request the Collector to make a certificate authorizing the recovery of the said contributions or sums as the case may be, under the Public Demands Recovery Act, 1895,

(4) Every declaration made under clause (f) shall, for the purposes of Section 199 of the Indian Penal Code, be deemed to be a declaration which the Collector is authorized by law to receive as evidence.

(5) If the Collector, at any time, has reason to believe that any declaration accompanying an application as aforesaid, or any part thereof, is false, he may reject the application and leave the applicant to pursue his claim in a Civil Court.

51C. Grant of certificate and effect thereof. – (1) Upon receiving any such application, the Collector may if he thinks fit, make a certificate as aforesaid.

(2) Every such certificate shall have the same effect as a certificate made under Section 7 of the said Public Demands Recovery Act, 1895; and the same notices shall be issued, and the same proceedings may be taken, with respect thereto, by the Certificate Officer, as in the case of a certificate made under that section.

(3) The person in whose favour any such certificate is made shall be deemed to be the decree-holder for the amount mentioned in the certificate, and the person against whom the certificate is made shall be deemed to be the judgement-debtor for the said amount; and all proceedings taken by the Certificate Officer for the recovery of such amount shall be taken at the instance of the first mentioned person and at his cost and on his responsibility, and not otherwise.

(4) If any person against whom any such certificate is made objects that the contribution or sums claiming by the person who applied for the certificate are not legally due, or exceed the sums which the applicant could recover from him in a Civil Court as being payable in respect of his individual interest in the land, and if the Certificate Officer considers there is probable ground for such objection, the Certificate Officer may modify the certificate or, if he thinks fit, cancel the certificate and leave the applicant to his claim in a Civil Court.

51D. Power of Collector to suspend recovery of dues in cases of failure of crops. – (1) If, in any area benefited by any scheme or works carried out under this Act, there has occurred in any year a total or serious failure of crops, then, notwithstanding anything hereinbefore contained, the Collector may,

after such inquiry (if any) as he deems necessary, and with the previous sanction of the Commissioner of the Division.

by written order, suspend, for the whole or any part of that year, the recovery of all or any sums which are recoverable from landholders and tenants, respectively, in respect of such area under the foregoing provisions of this Act.

(2) Every such order shall be published in the manner prescribed in Section 12 for the publication of the notification referred to in that section.

(3) When any such order has been duly published, all proceedings under the Public Demands Recovery Act, 1895 and all suits by landholders or tenants, for the recovery of any sums to which such order relates, shall be stayed during the period specified in the order.

51E. Bar to jurisdiction of Courts in respect of order of suspension – An order duly made and published under Section 51-D shall not be questioned in any Civil or Revenue Court.

51F. Procedure when landholder or tenant collects dues during period of suspension. – If any landholder or tenant, during any period specified in an order duly made and published under Section 51-D, collects any sums payable to him which such order relates, then all sums payable by him to which such order relates may be recovered from him as if such order had been made.

51G. Extension of period for payment of instalments, when order of suspension made. – When an order has been made and published under Section 51-D, suspending the recovery of any sums for any period, then if such sums form part of a sum which is, in pursuance of this Act, payable by instalments, the period remaining for the payment of such instalments shall be extended by the period specified in such order, and no more than one instalment of the sum remaining due shall be payable in any succeeding year.

51H. Extension period of limitation, when order of suspension made. – When an order has been duly made and published under Section 51-D, suspending the recovery of any sums for any period, such period shall be excluded in computing the period of limitation prescribed for a suit or application for the recovery of such sums.

51I. Interest not to accure during period of suspension. – When an order has been duly made and published under Section 51-D suspending the recovery of any sums for any period, then notwithstanding anything hereinbefore contained, no interest shall accrue on such sums during such period.]

  1. Service of notices.– All notices under this Act required to be served, may be served by delivering the same to the person to be served or by posting the same upon the door of his dwelling-house, or, if such person cannot be found and his dwelling house is not known, then by posting the same conspicuous part of the land to which such notice relates, and copies thereof at the Munsif’s Court within whose jurisdiction, and the police thanawithin the limits of which, such land is situate.
  2. Proceedings not to be invalidated by formal errors.– No proceeding under this Act shall be defeated or invalidated by reason of any defect in the number of property of assenting landholders, nor by any defect of omission in the publication or service of any notification, notice or order, unless material injury is done to any person by such defect or omission;

and every order and report of the Commissioners, of the Collector and of any officer appointed by the [State] Government under Section 33 shall be conclusive evidence that all notifications and notices hereby required as preliminary thereto had been duly published and served, and that all other preliminaries thereunto had been duly performed, and, save as is hereinbefore provided, shall be final and conclusive.

  1. Portion of scheme may be deemed separate scheme.– The [State]Government may, by an order in writing, direct that any portion of a scheme adopted and ordered to be executed under this Act shall, for the purposes of this Act or for any such purpose, be deemed to be a separate scheme.
  2. State Government may empower other person to act for Collector.– The [State]Government may specially empower any person to do all or any acts, to discharge all or any, functions, and to exercise all or any powers which may be done, discharged or exercised by a Collector under this Act;

and, on any person being so specially empowered, such person may do all or any of such acts, discharge all or any of such functions and exercise all or any of such powers, and such person shall be deemed to be the Collectors for the purposes of the scheme in respect of which he is so especially empowered.

  1. Collector may delegate authority.– The Collector may, with the sanction of the Commissioner of the Division, delegate to any Deputy Assistant or Sub-Deputy Collectors, or to any similar officer, the performance of any Acts and the discharge of any functions which the said Collector may perform or discharge under this Act;

and upon such delegation such Deputy Collector or other officer may do any such acts and discharge any such functions, and may exercise any power for the performance of the same which the Collector may exercise under this Act:

Provided that all Acts done, functions discharge powers exercised by such officer shall be done, discharged or exercised subject to the control and supervision of the Collector.

  1. Control of Commissioner.– Notwithstanding anything hereinbefore contained, all the proceedings of the Commissioners and of the Collector under this Act shall be subject to the general control and supervision of the Commissioner of the Division.
  2. Power to make, alter and cancel Rules.– The [State]Government may, from time to time, make rules to regulate the following matters;-

(a) the proceeding of any officer who, under any provision of this Act, is required or empowered to take action in any matter;

(b) the person by whom, the time, place or manner at or in which anything for the doing of which provision is made in this Act shall be done;

(c) and generally to carry out the provisions in this Act.

The [State] Government may from time to time alter or cancel any rules so made.

Such rules, alterations and concealment shall be published in the [Official Gazette], and shall thereupon have the force of law.

Part VII

Special Provisions for Works Carried out Under [Bengal Act (5 of 1871)]

  1. Portions of this Act applicable to works carried out under Bengal Act (5 of 1871).– The following portions of this Act shall apply to any scheme or work carried out under the provisions of Bengal Act (5 of 1871), [ ] that is so say:-

(a) as to the method of realizing sums due on account of the cost of the works-Sections 31, 38, 39 and 40;

(b) as to the recovery by landholders or superior tenants of the cost of the works from persons holding land under them-Part V.

(c) as to other matters-Part VI.

60.-63. [Sections 60-63 repealed by Act 1 of 1903]

Schedule A

(Referred to in Section 12)

Bengal Drainage Act, 1880

To all whom it may concern

Take notice that it is proposed to drain and improve certain lands in the village of…………., pargana…….., Plans all provisions estimates of the works proposed are now lodged in……… and may be inspected by any person interested on any of the days and at any of the times specified below till the day of………. next. (Here specify the days and hours at which the plans and the estimates will be open to inspection.)

All proprietor of estates paying revenue direct to Government of which any lands may be affected by the proposed drainage and improvement;

all owners of revenue-free lands borne on the Collectors’ general register of revenue-free lands, which may be so affected;

and all persons having permanent rent-free interests in tenures, under-tenures, or lands extending to not less than one hundred standard bighas to be so affected;

and all persons having permanent rent-free interests in tenures, under-tenures and lands to be so affected;

are hereby called upon to inspect the said plans and estimates.

Those who wish the works to be carried out and are willing to bear their proportion of the cost thereof are requested to send to the Drainage Commissioners their assent in writing, signifying therein, so far as possible, the nature and extent of their interest in such land, on or before the………. day of 18…………

Those who have any objection to the execution of the said works are required to send in their objection in writing to the said Commissioners on or before the said day.

All persons who are hereby called upon to give their assent or express their objections in writing are warned that under the law the Commissioners are not bound to recognize any such assent or objection unless the person making the same specifies the extent and portion of the land which he holds and the tenures or interest which he has in the same.

Collector, for the Drainage
Commissioners

Schedule B

(Referred to in Section 37)

Bengal Drainage Act, 1880

Take notice that the…………. Drainage Commissioners have apportioned against you the sum of………. as your contribution in respect of the lands of……… and that you are hereby required; within one month from the date of the service of notice, to pay to me the said sum of Rs. ………… together with interest at the rate of [four] per centum per annum from the…………. day of……….. or to enter into an engagement for the payment of the same by instalments extending over a period of not more than ten years [together with simple interest, at the rate of four per centum per annum; on all instalments remaining unpaid at the date of each such payment].

Collector

 

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