JORAVARSINHJI HIMATSJNHJI RANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The plaintiffs 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 nonagricultural use of this land as being against the provisions of sec. 48 of 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 sec. 48 and sec. 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 plaintiffs therefore sought refund of the amount of Rs. 1 758.32 recovered from them under protest. There is no dispute as to the aforesaid amount which was recovered from the plaintiffs because of the Saurashtra rule 86(1)(a). There is equally no dispute that during this relevant period the plaintiffs had not started the non-agricultural 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 courts have upheld the vires of this rule 86(1)(a) and therefore the plaintiffs have filed this appeal.

(2.) The Bombay Land Revenue Code 1879 (hereinafter referred to as the Bombay Code) was applied to the Saurashtra area from September 9 1948 with its rules. The original Bombay rule 86(1)(a) was in different terms before its present amendment and it has now been brought in conformity with sec. 48. The present rule 86(1)(a) is as under :-

(3.) Mr. Chhaya 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 sec. 48(2) creates this additional tax liability after a condition precedent is satisfied and if rule provides a liabiliy of tax to arise when the condition precedent is not satisfied it is obvious that these two provisions cannot stand together. Therefore rule 86(1)(a) which provides for the tax liability even from a date before the actual non-agricultural use begins is clearly inconsistent with sec. 48(2). In B. C. Banerjee v. State of M. P. A.I.R. 1971 S.C. 517-at p. 520 their Lordships in terms held that no tax could be imposed by any bye-law or rule or regulation unless the statute under which the subordinate legislation was made specially authorised the imposition even if it was assumed that the power 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 no plenary power granted to it.