JORWARSINHJI HIMATSINHJI RANA Vs. GUJARAT STATE

JUDGEMENT

(1.) The plaintiff in this appeal challenge the recovery of the non-agricultural assessment for their land for the period from July 31, 1963 to July 30, 1964 before the actual commencement of the non-agricultural case use of this land, as being against the provisions of Section 48 the Bombay Land Revenue Code. 1879 and on the ground that rule 86 (1) (a) of the Saurashtra Land Revenue Rules. in that connection was ultra vires Section 48 and Section 214 of the Code and also because it violated the guarantee of Article 14 of the Constitution, as, only in the Saurashtra area, the repugnant rule would continue in force. The plaintiff therefore, sought refund of the amount of Rs, 1,758.32 recovered from them under protest. There is no dispute a to the aforesaid amount, which was recovered from the plaintiff, because of the Saurashtra Rule 86 (1) (a). there is equally no dispute, that during this relevant period, the plaintiff had not started the nonagricultural user of the land although permission for such user had been granted by the order of the Deputy Collector dated November 13, 1962 as the plans etc, were not finalised. Both the Court have upheld the vires of this R. 86 (1) (a) and therefore the plaintiff have filed this appeal.

(2.) The Bombay Land Revenue Code. 1897 (hereinafter referred to as the Bombay Code) was applied to the Suarashtra area from September 9, 1948 with its rules. The original Bombay Rule 86 (1) (a) was in different terms, before its present amendments, and it has now been brought in conformity with Section 48. The present Rule 86 (1) (a) is as under:--

(3.) Mr. Chhava vehemently argued that the two provisions cannot be said to be inconsistent. The test of inconsistency or repugnancy is that both cannot stand together. When Section 48(2) creates list this additional tax liability after a condition precedent is satisfied and if rule provides a liability of a tax to arise when the condition precedent is not satisfied, it is obvious that there two provisions cannot such stand together. Therefore rule 86 (1) (a) which provided for the tax liability even from a date before the actual non-agricultural use beings is clearly inconsistent with State of M. P. AIR 1971 SC 517 at p. 520 . there Lordships, in terms, held that no tax could be imposed by any bye-law or rule or regulation unless the statue under which the subordinate legislation was mad especially authorised the imposition even if it was assumed that the poser to tax could be delegated to the executive. Their Lordships held that the basis of the statutory power conferred by the statute could not be transgressed by the rule-making authority. A rule making authority had not plenary power it had to act within the limits of the power granted to it.