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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 271

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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. 36

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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