STATE OF BOMBAY Vs. MULJI JETHA AND CO

JUDGEMENT

(1.) These two are appeals on leave granted by the High Court of Bombay under Art. 133(1) (c) of the Constitution against its common judgment in Second Appeals Nos. 936 and 937 of 1947. The appellant in each of these appeals is the State of Bombay and the respondent is Mulji Jetha and Company. The respondent owned three survey numbers at Jalgaon in the State of Bombay being Survey Nos. 253-A, 254-A, and 253-B, which, prior to the year 1911, were used and assessed as agricultural lands. In the year 1911, the respondent made an application under S. 65, Bombay Land Revenue Code, 1879 (Bombay Act V of 1879) (hereinafter referred to as the Code), to the Collector of Jalgaon for permission to divert the lands comprised in Survey Nos. 253-A and 254-A from agricultural to non-agricultural use for the purpose of constructing thereon a structure in accordance with a plan submitted along with that application. In the year 1912, he made another similar application in respect of Survey No. 253-B. The Collector after referring the plans to the Municipality and obtaining their views, granted the necessary permission, on 1-8-1911, in respect of Survey Nos. 253-A and 254-A, and on 1st August, 1912, in respect of Survey No. 253-B, for diversion of the lands in these three survey numbers to non-agricultural use in accordance with the plans so approved. The assessment of these survey numbers was thereupon revised by enhancing the pre-existing rate from Rs. 1-9-0 to Rs. 20 per acre, under Section 48 of the Code and Rule 56(2) framed by the Government in exercise of the payers under S. 214 of the Code. Thereupon three 'sanads' (Exs. 38, 39 and 40) were issued on 24-7-1914, by the collector in favour of the respondent under the said rules in respect of the three survey numbers specifying the enhanced assessment in respect of each of the survey numbers for a period of 50 years commencing from the date of the grant of the permission. Pursuant to the permission granted and in accordance with the plans approved, the respondent constructed buildings on the said survey numbers and had been paying the revised assessment. Survey Nos. 253-A and 254-A were consolidated into one City Survey No. 2113 and Survey No. 253-B was changed into City Survey No. 2114. In the year 1941, the respondent wanted to build two more bungalows on City Survey No. 2113. He wanted also to dismantle the structures on City Survey No. 2114 and to set the land comprised therein in convenient plots for building purposes in accordance with the Municipal Building bye-laws. He accordingly wrote two letters to the Collector dated 7-11-1941, one in respect of each of the two survey numbers, intimating his intention and added in each of the letters as follows:

(2.) The case of the plaintiff-respondent is that the permission to divert the lands from their original agricultural user to building purposes having been granted in 1911-1912 and the assessment for the entire area comprised in these survey numbers having been enhanced on that basis, the Collector has not right to insist on his permission being obtained for any further alterations or additions to the buildings or for parceling out the land as building sites and selling them. He also contended that since the lands are situated within the limits of Jalgaon Municipality he was bound to comply only with the Municipal bye-laws relating to building constructions and that the Collector had no authority in this behalf. The main defence on behalf of the State was set out in paragraph 4 of the written statement and is as follows:

(3.) The correctness of this view has been canvassed before us by the learned Attorney-General and we have heard elaborate arguments as to the scheme of the Code and of the relevant provisions thereof contained in Chapters V and VI. In particular our attention was drawn to Sections 45, 46, 65 to 68, and 73 of the Code. We have been furnished with a copy of Rule 56(2) under which the 'sanads' were issued as also the prescribed form for the 'sanads'. We have also been taken through the contents of the 'sanads' actually issued in these cases as well as through the concurrent findings of the first appellate court and the High Court as regards the substance of the correspondence contained in Exs. 41 to 43. A forceful argument has been advanced to us with reference to all the above material, that the view taken by the learned Judges of the High Courts erroneous. It is unnecessary, however, to deal with the argument thus advanced since the appeals can be disposed of on a very short ground. For this purpose it is sufficient to notice Ss. 48, 65 and 67 as they stood prior to 1913, which admittedly applied to the present case in view of the fact that the permission was granted in the years 1911 and 1912. The relevant portions of these three Sections as they stood prior to their amendment in 1913 were as follows: