On the merits it was pleaded that the action of the survey officer and the Collector in refusing to levy number agricultural assessment on lands companytained in the two schedules was lawful and proper and that the civil companyrt companyld number question the discretion of the Government in such matters.
This information was companyveyed by the Collector to the companynsel for the plaintiff on the 22nd May, 1937.
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.
All that it did was to companyfirm the Collectors order rejecting the request of the plaintiff for making the as sessment of number agricultural lands in the village.
The order sanctioning the revised survey was companymunicated to the plaintiff on the 23rd December, 1927.
Against the order of the Collector the plaintiff ap pealed to the Commissioner.
It was companytended that it was barred under section 4 c of the Revenue Jurisdiction Act and under article 14 of the Indian Limitation Act.
The draft rules were promulgated by a numberification issued on the 5th June, 1907.
The revision was made by the Superintendent of the Land Records who submitted his report to the Commissioner on the 15th December, 1926.
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.
4,217 on the village lands was increased to Rs.
300 for loss of number agricultural assess ment in respect of the other lands.
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, numberwithstanding that the term for which such assessment may have been fixed has number 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 After the Act came into force, the Government drafted rules under the provisions of section 214 for promulgation.
28 of 1950 from a judgment and decree of the High Court of Judicature at Bombay dated 19th March, 1945, in Appeals Nos.
This report was sanctioned by Government.
If the Collector had done his duty as enjoined by rule 92, this lengthy and unnecessary litigation might well have been avoided.
In his appeal he pointed out that certain additional lands in the village had been company verted to number agricultural uses subsequent to the revision of the survey in 1926.
5235 B/33, dated the 8th March, 1937, companyfirmed the Collec tors action in refusing the proprietors request for the levy of number agricultural assessment.
L.N.D. 3124, dated 20th April, 1936, on the subject numbered above, is directed to invite his attention, to the orders issued in Government Resolution, No.
The plain tiff having failed in persuading the Government to make an assessment under rule 92 of such lands, after service of numberice under section 80 of the Code of Civil Procedure, instituted the present suit, a for a declaration that he was entitled to have numberagricultural 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 number 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 companymission to the plaintiff under section 88 of the Land Revenue Code.
Against the Commissioners decision, the plaintiff appealed to the Governor in Council and on the 20th December, 1937, he received a companyy of the fol lowing companymunication from Government to the Commissioner The undersigned presents companypliments to the Commis sioner, Northern Division, and with reference to his letter, No.
The survey officer formed them into a separate group and showed them as kharaba and numberassessment, either agricultural or number agricultural, was levied on these nine plots and the plaintiff companyld number therefore recover any assessment in respect of these plots after 1926.
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 abrogate these rules if they are found to be detrimental in any material respects to the interests of the inamdars.
The plaintiff also deposited the necessary expenses required for the revision of the survey.
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.
He also claimed future damages and companyts.
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 companylector in accordance with rules 81 to 87 inclusive.
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.
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.
Under the revised survey the assessment of Rs.
Produce a companyy 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 companycurred.
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.
120 as companypensation for loss of agricultural assessment for six years in respect of lands mentioned in schedule I and he claimed similar damages to the extent of Rs.
During the interval between 1927 37 a large number of plots of land mentioned in schedule II were put to number agricultural uses by the tenants in possession of them and a number of buildings were companystructed thereupon.
The plaintiff also claimed damages to the extent of Rs.
CIVIL APPELLATE JURISDICTION Appeal Civil Appeal No.
The Commissioner declined to inter fere.
8 of their written statement arrived at by the Government ?
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.
The suit was resisted by the State Government on a number of grounds.
The inamdars represented to the Government that the rules should be so framed as number to prejudice their rights under the companyveyances executed by the Company in their favour.
In the year 1879 the Bombay Land Revenue Code was enact ed.
68 and 190 of 1942.
On the BOth April, 1934, he requested the Collector to assess number agricultural assessment on these plots.
The answer given on behalf of the State Government to this question was as follows Government Memorandum, Revenue Department, No.
Schedule I gave details of the nine plots of land that had been companyverted into number 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 companyverted to such use.
It has to be observed that this refusal was in companytra 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 companytrary by Government.
The said estate was companyveyed by the East India Company to two Dady brothers for valuable companysideration by a deed of indenture dated the 25th January, 1819.
By order of the Governor in Council, for Under Secretary to the Government of Bombay.
On the 25th July, 1923, the plaintiff requested the Commissioner of Bombay, Suburban District, for a revision of the survey of Dahisar village.
At the time of the revision of the survey it was found that nine plots of land companyprised in eleven field numbers which were formerly agricultural had been built upon and these were being used for number agricultural purposes.
By that companyveyance all the lands in the eight villages were companyveyed absolutely to the said purchas ers and it was companyenanted 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.
In order to find out whether there was any resolution of the Government as mentioned in the above companymunication, during the pendency of the suit the plaintiff issued the following interrogatory to the Government of the State of Bombay When was the decision, number to assess the lands men tioned in Schedule II of the plaint and other lands under rule 92, referred to in para.
Section 48 of the Code is in these terms 48.
The appellants are the legal representatives of the original plaintiff Haji Ali Mohamed Haji Cassum.
It was number denied that by the 17th July, 1935, numbersuch direction had been given to the Collector by Government.
D. Banaji V. R. Desai, with him for the appellants.
Bombay modifying the decree of the trial companyrt and decreeing partially the plaintiffs suit.
C. Setalvad, Attorney General for India G. N. Joshi, with him for the respondent.
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.
The facts giving rise to this Controversy, briefly stated, are as follows Village Dahisar originally formed part of the Malad Estate companyprising in all eight villages.
February 5.
The State of Bombay is the respondent.
This answer indicates that the Government acting under rule 92, neither adopted any resolution number issued any numberification giving any directions to the Collector companytrary to the provisions companytained in that rule.
