1949 (1) TMI 5 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the non-agricultural assessment levied by the Government was valid.
2. Whether the decision of the Privy Council in Wadia v. Secretary of State for India (1928) rendered the issue res judicata in the "Vile Parle suit."
3. Whether the Government is estopped from contending that there was no survey settlement under the Bombay Land Revenue Code of 1879 in the "Juhu suit."
4. Whether the suit is incompetent due to non-compliance with Section 80 of the Civil Procedure Code in the "Juhu suit."
5. Determination of the period for which the plaintiffs are entitled to recover the non-agricultural assessment in the "Juhu suit."

Issue-wise Detailed Analysis:

1. Validity of Non-Agricultural Assessment:
The main question was whether a survey settlement as to agricultural land was introduced into the two villages under the provisions of the Bombay Land Revenue Code of 1879 prior to the levy of non-agricultural assessment. The non-agricultural assessment was introduced in "Vile Parle" in 1916, and in "Juhu" in 1923. The facts found or not disputed were that at the time of the grant, there was no survey settlement in these villages. The survey settlement was first introduced by Act I of 1865 and continued under the Act of 1879. The Government announced to the grantees in 1886 that a settlement had been introduced and recoveries were made according to that settlement until the introduction of the non-agricultural assessment. The burden of proving that a survey settlement under the Act had been made lay on the plaintiffs, which they failed to prove by direct evidence. However, the circumstances, including the fact that these assessments continued for about fifty years and an announcement of the introduction of the survey settlement was made to the grantees in 1886, justified the inference that the plaintiffs had discharged their burden. Thus, the levy of the non-agricultural assessments by the Government was held to be legal.

2. Res Judicata in the "Vile Parle Suit":
It was argued that the question whether a survey settlement had or had not been introduced was res judicata due to the decision of the Privy Council in Wadia v. Secretary of State for India (1928). The Privy Council had decided that the grant of 1848 was a grant of the villages subject to the conditions attached. However, the question of survey settlement was not directly put in issue in the previous suit because of an admission made in that case. The Government's admission in the previous case that survey settlement was introduced in 1885 precluded the argument that the issue was res judicata. The court concluded that Explanation IV of Section 11 of the Code of Civil Procedure could not be used to preclude the Government from raising the point.

3. Estoppel in the "Juhu Suit":
The Government contended that no survey settlement was introduced under the Code of 1879. The trial court held that since the villages were not "alienated villages" within the meaning of Act I of 1865, the survey settlement proceedings could be made without an application from the holder. The proceedings under Act I of 1865 were pending at the time of the introduction of the Code in 1879 and were deemed to have been commenced under the Code. Thus, the provision that an application in writing should be made by the holder under Section 216 of the Code to make a survey in an "alienated village" would not apply when proceedings had commenced under Act I of 1865. The High Court presumed that the necessary steps were taken under Section 103 to announce the settlement, and the Government continued to levy the assessment for fifty years without suggesting any legal difficulty.

4. Incompetence of the Suit due to Non-Compliance with Section 80 of the Civil Procedure Code in the "Juhu Suit":
The notice served on the Government did not comply with the provisions of Section 80 of the Civil Procedure Code. The notice must state the name, place, and residence of the plaintiff. The present plaintiffs Nos. 2 and 3 were appointed trustees after the notice was served, and no notice had been served on the Government on behalf of these plaintiffs. The court held that the provisions of Section 80 are imperative and should be strictly complied with. Therefore, the suit against the Government was held to be incompetent, and the appeal failed.

5. Period for Recovery of Non-Agricultural Assessment in the "Juhu Suit":
The determination of the period for which the plaintiffs are entitled to recover the non-agricultural assessment would only arise if the decision on the question of "notice" to the Government was set aside. Since the suit was held to be incompetent due to non-compliance with Section 80, no further question arose for decision in this appeal.

Conclusion:
The appeals were dismissed. The levy of the non-agricultural assessments by the Government was held to be legal, and the suit against the Government in the "Juhu suit" was held to be incompetent due to non-compliance with Section 80 of the Civil Procedure Code. There was no order as to the costs of these appeals, but the costs as between solicitor and client of the villagers who were added as respondents were to be paid by the Government.