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TMI Blog1947 (7) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... 1900, February 18, 1915, and December 21, 1924, for repayment of ₹ 606-7-0 illegally levied from him in the years 1928 to 1981 inclusive, and for other relief. 3. The Subordinate Judge and the District Judge held that the suit was barred Under Section 4(b) of the Bombay Revenue Jurisdiction Act (X of 1876), and that the three agreements were cancelled by an order of the Governor in Council dated April 11, 1930, levying assessment at the full standard rate on the entire holding of the respondent as from 1927-1928, and that the Governor in Council was competent to pass such an order under Section 211 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879), hereinafter referred to as the Code. 4. The High Court on second appeal and on the Letters Patent appeal reversed the decision of the lower Courts on both points of law, and held that the 1924 agreement was unenforceable and duly cancelled by the appellant, but held that the 1915 agreement was still enforceable as regards buildings erected before 1920, that the full standard rate should not be applied to such buildings, and that the appellant should refund to the respondent any altered assessment or penalty levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the following special terms and conditions, namely: 1. The applicant in lieu of the present assessment leviable in respect of the said plot of land shall pay to Government without deduction on the first day of January in each and every year an annual assessment of ₹ 27 only during the fifty years commencing on the first day of August 1903, and ending on 31st day of July, 1953, and thereafter such revised assessment as may from time to time be fixed by the Collector under the said Code and rules and orders thereunder:... (3) The applicant is hereby prohibited under the last paragraph of Section 48 of the said Code, from appropriating, without the previous permission in writing of the Collector, any part of the said plot of land to any purpose other than that for which permission to appropriate it is herein-before granted to the applicant: Provided that: (i) nothing in the above shall be deemed to prohibit the applicant: (a) from erecting or constructing, without such previous permission, in the portion (c)(i.e. appropriated for the purpose of an open compound only) boundary walls not exceeding four feet in height, garden-fountains, uncovered steps and similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attached to the Rules. This superseded form A, which had been used in the agreements of 1906 and 1915. 9. On November 12, 1922, the respondent applied for permission to further extend the factory, and a plan shewing the proposed construction work was submitted with the application. After correspondence, the Collector on July 27, 1923, granted permission and approved the plan, and stated that he would be given a sanad in form M. The respondent demurred to this, and asked for form A, to which the Collector agreed on June 9, 1924. Thereafter an agreement was executed on December 21, 1924, in form A, in similar terms to the 1915 agreement, except that the proviso (i) (c) of Clause 3 was struck out. Their Lordships do not trouble with this agreement, for both the appellant and the respondent accepted the finding of the High Court that it was unenforceable, as the Collector had no authority to act as agent of the Government in becoming a party to an agreement in the old form A. 10. On receipt of a circle-inspector's report that the respondent had been building on land not covered by the permission given to him and in a manner contrary thereto, as shewn in a plan attached to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt at the full standard rate shall be levied on the entire holding of the petitioner with effect from the year 1927-28 and that a sanad in form M appended to the Land Revenue Rules 1921 shall be issued. The petitioner should be referred to the Commissioner, N.D., for a reply to his petition. 14. On October 28, 1930, the Collector informed the respondent of the purport of the said order, and requested him to submit plans shewing the existing buildings to enable the Collector to grant him a sanad in form M. In terms of the said order rates to the amount of ₹ 702-7-0 were recovered from the respondent. 15. On October 13, 1931, the respondent brought the present suit, asking for the declaration already referred to, and repayment of ₹ 606-7-0 as illegally levied from him. 16. The appellant, in the first place, maintains that the jurisdiction of the civil Courts over the subject-matter of this suit is excluded by Section 4(b) of the Bombay Revenue Jurisdiction Act, 1876, which, so far as material, provides as follows. 4. Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters: * * ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 211. The Governor in Council and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate officer, for the purpose of satisfying himself as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. * * * * If, in any case, it shall appear to the Governor in Council, or to such officer aforesaid, that any decision or order or proceedings so culled for should be modified, annulled, or reversed, he may pass such order thereon as he deems fit. 17. In order to appreciate the true nature of the agreements founded on by the respondent, it will be convenient to refer to certain sections of the Code (as amended down to 1918), viz. Sections 48, 65, 66 and 67, the material provisions of which are as follows, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector being first obtained, or before the expiry of the period prescribed by Section 65, the occupant and any tenant, or other person holding under or through him, shall be liable to be summarily evicted by the Collector from the land so used and from the entire field or survey number of which it may form a part, and the occupant shall also be liable to pay, in addition to the new assessment which may be leviable under the provisions of section 48 for the period during which the said land has been so used, such fine as the Collector may, subject to the general orders of Government, direct. * * * * 67. Nothing in the last two preceding sections shall prevent the granting of the permission aforesaid on such terms or conditions as may be prescribed by the Collector, subject to any rules made in this behalf by the Governor in Council. 18. The agreement of 1924 being admittedly out of the case, their Lordships will confine their attention to the agreements of 1906 and 1915. In both cases the respondent required to apply under Section 65 for permission to use agricultural land for a non-agricultural purpose, as in 1915 the respondent had acquired the adjoining Survey No. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund to the plaintiff any sum either by way of altered assessment or penalty levied in excess of that stipulated in the agreement in respect to the buildings as they existed in 1920. The excess sum, if any, shall be determined in execution. As to buildings erected after 1920 the plaintiff is not entitled to any declaration, Government being entitled to levy such altered assessment as may be leviable in accordance with law. That decree was confirmed in the letters patent appeal. Their Lordships feel bound to express their difficulty in appreciating how such a decree can be reconciled with the established facts of the case, apart from the question whether it correctly states the legal position. 20. The agreement of 1924, and the permission thereby granted, being out of the case, it is correct to say that no permissions for alterations or extensions have been granted since those granted prior to 1920. The plan annexed to the 1915 agreement has not been forthcoming, but the plan submitted by the respondent with his application on September 21, 1920, for permission for alterations on the factory shews the 1915 plan with the proposed alterations in red. It is exhibit 20. A compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t certain agreements between the parties as to the levy of assessment on his land were binding upon Government. He did not directly question the legality of the orders of Government on any other ground or their power to levy full standard rates upon conversion of agricultural holding if the agreements did not operate as a bar. In terms he is asserting a right independently of the question of the legality of Government's right to recover altered assessment. Now such a suit could not be described as a suit objecting to the amount or incidence of any assessment of land revenue authorised by Government, or to the mode of assessment, or to the principle on which such assessment is fixed, within the meaning of clause (6) of Section 4. 23. The learned Judge relied on two cases, Lakshman v. Govind (1903) I.L.R. 28 Bom. 74 : S.C. 5 Bom. L.R. 694 and Damodar v. Kashinath , In the Letters Patent Appeal, Sen J., in whose judgment N. J. Wadia J. concurred, quotes a passage from the judgment of Chandavarkar J, in Lakshman's case as follows (p. 78): In one sense no doubt whenever an Inamdar sues an occupancy tenant to recover land revenue according to the survey rates and the tenant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless it otherwise appears from the language employed, that these exceptions were necessary, as otherwise the subject-matter of the exceptions would have come within the operative provisions of the section. There are four exceptions in the proviso to Section 4, which are clearly general exceptions to the operative provisions of the section,. If the construction adopted by Chandavarkar J. in Lakshman's case and adopted by the High Court in the present case be correct, these exceptions were unnecessary, and they are stronger instances for the application of that construction, for respondent's agreements are contracts fixing the amount of land revenue to be paid ; they are neither matters of title to, nor matters of tenure of, the land. Neither the present respondent, nor the defendants in the two inam cases, claimed to come within the proviso to Section 4, but Section 5 was held applicable in the inam cases, and their Lordships express no opinion as to Section 5. Their Lordships are of opinion that, apart from the question of ultra vires, the respondent's claim, as set out in the plaint, based on the agreements, did constitute objections to the amount or incidence of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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