Full Judgment Text
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PETITIONER:
FATMA HAJI ALl MOHAMMAD HAJIAND OTHERS
Vs.
RESPONDENT:
THE STATE OF BOMBAY.
DATE OF JUDGMENT:
05/02/1951
BENCH:
MAHAJAN, MEHR CHAND
BENCH:
MAHAJAN, MEHR CHAND
FAZAL ALI, SAIYID
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
1951 AIR 180 1951 SCR 266
ACT:
Bombay Land Revenue Code, 1879, s. 48--Rules under the
Code, r. 92--Agricultural land used for other purposes
--Collector’s duty to alter assessment--Mere confirmation of
Collector’s order refusing to re-assess--Whether amounts to
direction to act otherwise--Right to re-assessment.
267
HEADNOTE:
Rule 92 of the rules issued under the Bombay Land Reve-
nue Code, 1879, provided that when land assessed for pur-
poses of agriculture only is subsequently used for any
purpose unconnected with agriculture, the assessment upon
the land so used shall unless otherwise directed by the
Government be altered under s. 48 (2) by the Collector in
accordance with rr. 81 to 87: Held, that as the rule imposes
an imperative duty on the Collector to alter the assessment,
the power which has been given to the government to give
directions to the Collector not to act in accordance with
the imperative provisions of the rule has to be exercised in
clear and unambiguous terms as it affects civil rights of
the persons concerned and the decision that the power has
been exercised must be notified in the usual manner.
Where the Government did not pass any resolution or
issue any directions to that effect but merely confirmed on
appeal an order of the Collector rejecting an application to
assess nonagricultural assessment on agricultural lands
which had been used for building purposes: Held, that the
confirmation of the Collector’s order by the Government did
not amount to a direction to act otherwise within the mean-
ing of r. 92 and the applicant was entitled to have the
assessment on the lands altered under s. 48(2) in accordance
with rr. 81 to 87 as laid down in r. 92.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Appeal (Civil Appeal No.
28 of 1950) from a judgment and decree of the High Court of
Judicature at Bombay dated 19th March, 1945, in Appeals
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Nos. 68 and 190 of 1942.
H.D. Banaji (V. R. Desai, with him) for the appellants.
M.C. Setalvad, Attorney-General for India (G. N. Joshi,
with him) for the respondent.
1951. February 5. The judgment of the Court was deliv-
ered by
MAHAJAN J.--This is an appeal from a judgment of
the High Court of Judicature at. Bombay modifying the decree
of the trial court and decreeing partially the plaintiff’s
suit. The appellants are the legal
representatives of the original plaintiff Haji Ali
Mohamed Haji Cassum. The State of Bombay is the
respondent.
The facts giving rise to this Controversy, briefly
stated, are as follows ;--
35
268
Village Dahisar originally formed part of the Malad
Estate comprising in all eight villages. The said estate was
conveyed by the East India Company to two Dady brothers for
valuable consideration by a deed of indenture dated the 25th
January, 1819. By that conveyance all the lands in the
eight villages were conveyed absolutely to the said purchas-
ers and it was covenanted by the Company that the purchas-
ers, their heirs and assigns shall peaceably and quietly
enjoy the said villages and receive and take the rents and
profits thereof without any hindrance or interruption from
the said Company. By a sale deed dated the 13th December,
1900, Haji Cassum, father of the plaintiff, purchased the
village of Dahisar from its proprietors for a price of Rs.
1,30,000 and after his death the plaintiff became the pro-
prietor thereof and as such received rents and assessment
from the tenants and holders of the lands in the village
according to the rights prevailing under the survey settle-
ment which had taken place in the village about the year
1864-65.
In the year 1879 the Bombay Land Revenue Code was enact-
ed. Section 48 of the Code is in these terms :--
"48. (1) The land revenue leviable on any land under
the provisions of this Act shall be assessed, or shall be
deemed to have been assessed, as the case may be, with
reference to the use of the land--
(a) for the purpose of agriculture, (b) for the purpose of
building, and
(c) for a purpose other than agriculture or building.
(2) Where land assessed for use for any purpose is used
for any other purpose, the assessment fixed under the provi-
sions of this Act upon such land shall, notwithstanding that
the term for which such assessment may have been fixed has
not expired, be liable to be altered and fixed at a differ-
ent rate by such authority and subject to such rules as the
Provincial Government may prescribe in this
behalf ................ "
269
After the Act came into force, the Government drafted
rules under the provisions of section 214 for promulgation.
The inamdars represented to the Government that the rules
should be so framed as not to prejudice their rights under
the conveyances executed by the Company in their favour.
The draft rules were promulgated by a notification issued on
the 5th June, 1907. On that date, the Government adopted a
resolution ordering that the rules be promulgated and also
giving an assurance to the inamdars to the following effect
:-
"Government will, however, be prepared to amend or
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abrogate these rules if they are found to be detrimental in
any material respects to the interests of the inamdars."
Rule 92 is one of the rules promulgated under the provisions
of the Act and it runs thus :-
"When land assessed for purposes of agriculture only is
subsequently used for any purpose unconnected with agricul-
ture the assessment upon the land so used shall, unless
otherwise directed by Government, be altered under sub-
section (2) of section 48 by the collector in accordance
with rules 81 to 87 inclusive."
On the 25th July, 1923, the plaintiff requested the
Commissioner of Bombay, Suburban District, for a revision of
the survey of Dahisar village. He executed an agreement
under the provisions of section 216 of the Bombay Land
Revenue Code and made a formal application in that behalf as
required by the Code and the rules made thereunder. The
Commissioner by his letter dated the 14th March, 1925,
authorised the extension of the provisions of chapters 8 and
9 of the Land Revenue Code to the village in question. The
plaintiff also deposited the necessary expenses required for
the revision of the survey. The revision was made by the
Superintendent of the Land Records who submitted his report
to the Commissioner on the 15th December, 1926. This report
was sanctioned by Government. The order sanctioning the
revised survey was communicated to the plaintiff on the 23rd
270
December, 1927. Under the revised survey the assessment
of Rs. 4,217 on the village lands was increased to Rs.
6,057-3-2, and the plaintiff from that date started recover-
ing the increased assessment from the tenants of the lands
in the village.
At the time of the revision of the survey it was found
that nine plots of land comprised in eleven field numbers
which were formerly agricultural had been built upon and
these were being used for non-agricultural purposes. The
survey officer formed them into a separate group and showed
them as kharaba and no assessment, either agricultural or
non-agricultural, was levied on these nine plots and the
plaintiff could not therefore recover any assessment in
respect of these plots after 1926. On the BOth April, 1934,
he requested the Collector to assess non-agricultural
assessment on these plots. This request was refused by the
Collector on the 17th July, 1935, in these terms:--
"With reference to your letter dated 30-4-1934, I have
the honour to state that I regret your request cannot be
granted."
It has to be observed that this refusal was in contra-
vention of the provisions of rule 92 which imposes on the
Collector a duty to make alteration in the assessment,
unless he has been directed to the contrary by Government.
It was not denied that by the 17th July, 1935, no such
direction had been given to the Collector by Government. If
the Collector had done his duty as enjoined by rule 92, this
lengthy and unnecessary litigation might well have been
avoided.
Against the order of the Collector the plaintiff ap-
pealed to the Commissioner. In his appeal he pointed out
that certain additional lands in the village had been con-
verted to non-agricultural uses subsequent to the revision
of the survey in 1926. The Commissioner declined to inter-
fere. This information was conveyed by the Collector to the
counsel for the plaintiff on the 22nd May, 1937. Against the
Commissioner’s decision, the plaintiff appealed to the
Governor in Council and
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on the 20th December, 1937, he received a copy of the fol-
lowing communication from Government to the Commissioner
:--
"The undersigned presents compliments to the Commis-
sioner, Northern Division, and with reference to his letter,
No. L.N.D. 3124, dated 20th April, 1936, on the subject
noted above, is directed to invite his attention, to the
orders issued in Government Resolution, No. s235/3a, dated
8th March, 1937, and to state that Government confirm
the action of the Collector, Bombay Suburban District, in
refusing the Khot’s request for the levy of nonagricultural
assessment in the village of Dahisar.
By order of the Governor in Council,
for Under Secretary to the Government of Bombay."
In order to find out whether there was any resolution of
the Government as mentioned in the above communication,
during the pendency of the suit the plaintiff issued the
following interrogatory to the Government of the State of
Bombay :--
"When was the decision, not to assess the lands men-
tioned in Schedule II of the plaint and other lands under
rule 92, referred to in para. 8 of their written statement
arrived at by the Government ?
Produce a copy of the said decision which may have been
embodied in a Government resolution along with the opinion
of the Government officers with which Government may have
concurred."
The answer given on behalf of the State Government to
this question was as follows :--
"(8) Government Memorandum, Revenue Department, No.
5235-B/33, dated the 8th March, 1937, confirmed the Collec-
tor’s action in refusing the proprietor’s request for the
levy of non-agricultural assessment. ’ ’
This answer indicates that the Government acting under
rule 92, neither adopted any resolution nor issued any
notification giving any directions to the Collector contrary
to the provisions contained in that
272
rule. All that it did was to confirm the Collector’s order
rejecting the request of the plaintiff for making the as-
sessment of non-agricultural lands in the village.
During the interval between 1927-37 a large number of
plots of land mentioned in schedule II were put to non-
agricultural uses by the tenants in possession of them and a
number of buildings were constructed thereupon. The plain-
tiff having failed in persuading the Government to make an
assessment under rule 92 of such lands, after service of
notice under section 80 of the Code of Civil Procedure,
instituted the present suit, (a) for a declaration that he
was entitled to have nonagricultural assessment made on all
lands in the village of Dahisar which were used or which may
thereafter be brought into use for purposes other than
agricultural, and (b)for an order that the Collector of
Bombay, Suburban District, be directed to determine the
amount of non-agricultural assessment on the lands mentioned
in schedules I and II of the plaint and to levy the same
under clause 2 of rule 96 and pay it to the plaintiff, or
in the alternative, to direct the defendant to issue a
commission to the plaintiff under section 88 of the Land
Revenue Code. Schedule I gave details of the nine plots of
land that had been converted into non-agricultural use
before the survey of 1926, while schedule II gave details of
those lands which since 1926 up to the date of the suit had
been converted to such use. The plaintiff also claimed
damages to the extent of Rs. 120 as compensation for loss of
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agricultural assessment for six years in respect of lands
mentioned in schedule I and he claimed similar damages to
the extent of Rs. 300 for loss of non-agricultural assess-
ment in respect of the other lands. He also claimed future
damages and costs.
The suit was resisted by the State Government on a
number of grounds. It was contended that it was barred
under section 4 (c) of the Revenue Jurisdiction Act and
under article 14 of the Indian Limitation Act. On the merits
it was pleaded that the action of the survey officer and the
Collector in refusing to levy non-agricultural assessment on
lands contained in the
273
two schedules was lawful and proper and that the civil court
could not question the discretion of the Government in such
matters.
The trial Judge negatived all the technical objections
raised by the defendant and on the merits held that the
Collector’s action in refusing to levy nonagricultural
assessment on the lands in question was wrongful. He, there-
fore, granted the declaration prayed for. He, however,
refused to give further relief to the plaintiff and disal-
lowed the prayer for a direction for levying non-agricultur-
al assessment on the lands given in the two schedules and
for paying it to the plaintiff. He observed that the Govern-
ment would be well advised if it levied such assessment and
paid it to the plaintiff.
Two appeals were taken to the High Court against the
decree of the trial Judge. That Court modified this decree
and granted a declaration to the plaintiff that he was
entitled to receive non-agricultural assessment on all lands
which are and which may hereafter be used for non-agricul-
tural purposes. It ordered the defendant to levy such
altered assessment on the lands mentioned in schedule I and
decreed consequential damages to the plaintiff in respect to
these lands. As regards the lands in schedule II, the plain-
tiff’s suit for a direction to assess and levy non-agricul-
tural assessment on them was dismissed. The court drew a
distinction between lands that had been converted to non-
agricultural use before the survey of 1926 and those which
had since then been converted to such use. As regards the
former, it was held that the survey officer had erroneously
declined to make non-agricultural assessment on those lands
and his action was ultra vires. Relief was given to the
plaintiff regarding those lands as prayed for. As regards
the latter, it was held that it was within the discretion of
the Government to order an alteration of the assessment on
such lands and this discretion could not be questioned in a
court of law. The plaintiff being dissatisfied with this
part of the decision made an application for leave to appeal
to. the Privy Council on the 15th
274
September, 1945. During the pendency of the application
the plaintiff died and his heirs and executors were implead-
ed as his legal representatives. A certificate for leave to
appeal to the Privy Council was granted on the th February,
1947, and the appeal preferred under the certificate is now
before us for decision. There is no controversy in this
appeal as regards the reliefs that have been given to the
plaintiff by the High Court. The appeal concerns the fur-
ther relief refused to the plaintiff in respect to the lands
mentioned in schedule II. It was contended on behalf of the
appellant that under the terms of the conveyance dated 25th
January, 1819, and of the covenants contained therein it was
not open to the Government or the Collector to refuse the
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alteration of the assessment claimed by the plaintiff and
that the Government could not give any direction under rule
92 which would be contrary to these covenants and assur-
ances. It was said that the Government was bound to use its
power to levy assessment as trustee for the transferee and
that the exercise of this power could not be arbitrarily
refused by it. It was urged that the Government Resolution
dated 5th June, 1907, clearly indicated that the rules
framed under the Land Revenue Code were not intended to
affect adversely the owners of alienated lands and the
Collector was bound to make an assessment as required by the
plaintiff. Lastly, it was argued that as a matter of fact
Government never exercised its power under rule 92 and never
gave a direction to the Collector to a contrary effect and
that the mere affirmation of the erroneous order of the
Collector by Government did not amount to a direction con-
templated by the provisions of rule 92.
Having considered this case in all its aspects, we have
reached the decision that the High Court’s decision have
in so far as it refused relief to the plaintiff in respect
to the lands mentioned in schedule II should be reversed.
Rule 92 cited in the earlier part of this judgment in imper-
ative terms directs the Collector to alter the assessment in
case agricultural lands are Converted to non-agricultural
use. The Collector has
275
no option in the matter and as soon as an application is
made to him he should proceed to make an assessment and levy
it on the non-agricultural lands. When the Collector de-
clined to accede to the request of the plaintiff he acted in
contravention of the clear provisions of the rule, because
admittedly at that time no "directions to the contrary" had
been given to him by the Government. There was no resolu-
tion of the Government in existence and no notification had
been issued under the provisions of rule 92 directing the
Collector not to make an alteration in the assessment when
required to do so. The Commissioner, in dismissing the
plaintiff’s appeal, also contravened the provisions of rule
92. When the matter went up in appeal to the Governor in
Council, no decision was taken under the provisions of rule
92. The High Court assumed that the confirmation of the
action of the Collector by the Government amounted to a
direction by the Government to the contrary in respect of
the lands in question.
We are unable to agree with this conclusion. When Gov-
ernment has been given the power to give directions to the
Collector not to act in accordance with the imperative
provisions of a rule which enjoin upon him to make the
altered assessment, that power has to be exercised in clear
and unambiguous terms as it affects civil rights of the
persons concerned and the decision that the power has been
exercised should be notified in the usual manner in which
such decisions are made known to the public. It was conceded
by Mr. Joshi that no such decision was taken by Government
and no direction was issued by Government under rule 92
Dismissal by the Government of the plaintiff’s appeal and
affirmation by it of an erroneous order of the Collector
could not be held to amount to action under the provisions
of rule 92. In these circumstances, the plaintiff was
clearly entitled to further relief in respect to lands
mentioned in schedule II and a direction should have been
issued to the State Government for making altered assessment
on non-agricultural lands and levy it on them and pay it to
the plaintiff.
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276
Mr. Joshi contended that the true effect of the provi-
sions contained in section 48 (2) and rule 92 was that the
Government was not bound to levy altered assessment on lands
converted to non-agricultural use, that the section merely
provided that the persons in possession of land were liable
for such assessment but it did not say that it was obligato-
ry on the Government to make it and that the court had no
jurisdiction to interfere with the discretion of the Govern-
ment in the matter. We think that when a liability is
imposed by a statute, that liability cannot be defeated by
the exercise of any discretion by Government or by making
rules which may negative that liability, but it is not
necessary in this case to finally decide the point as the
appeal stands decided otherwise. It is also unnecessary to
express an opinion as to the precise scope of the power
conferred on Government by the language of rule 92.
The plaintiff’s learned counsel very properly did not
press his appeal in respect to the claim of damages concern-
ing lands mentioned in schedule II. Plaintiff’s suit to that
extent fails.
For the reasons given above the appeal is allowed and
the plaintiff’s suit is decreed with costs except in regard
to the claim for damages in respect to the lands mentioned
in schedule II. The defendant is directed to make an assess-
ment on lands mentioned in schedule II in the same way as in
respect of the lands mentioned in schedule I and levy the
same and pay it to the plaintiff.
Appeal allowed.
Agent for the appellants: K.J. Kale.
Agent for the respondent: P.A. Mehta.
277