COLLECTOR OF BOMBAY Vs. BURJOR HORMUSJI POONEGAR

JUDGEMENT

(1.) THIS is an appeal filed by the Collector of Bombay against the respondents who had filed a suit for the following declarations : (a) that there was a right on their part in limitation of the right of the Government to assess the suit plots of land or, (b) in the alternative, that there was in any event a right on their part in limitation of the right of the Government to assess the said plots of land in excess of the specific limit of assessment payable in respect of the said plots at the time when the Foras Act IV of 1851 first came into operation, viz. , 1st July 1851, or to enhance the said assessment; (c) that the appellant had no right to fix or levy or recover the assessment of land revenue in respect of the said plots as intimated by him to them (the respondents) in his notices, all dated 29th June 1943; (d) that the decision and order of the appellant contained in the said notices were illegal, void and inoperative in law and not binding on them (the respondents) and that the same be superseded and set aside; and (e) that, in any event, the decision of the appellant in so far as it sought or purported to levy or recover an assessment for a period prior to the date of the said notices was illegal, void and inoperative in law.

(2.) THE learned Revenue Judge at Bombay who heard this suit passed a decree in favour of the respondents in terms of prayers (c) and (d) of the plaint and awarded costs of the suit to the respondents on the basis of capitalisation of the annual assessment fixed by the Collector at 25 years' purchase. It may be noted that the respondents had filed two suits under Section 14 of the Bombay City Land Revenue Act II of 1876. Suit No. 8 of 1943 was filed on 23rd July 1943 within 30 days of the service on them of a notice from the Collector of Bombay proposing to levy a certain assessment under Section 8 of the said Act, but before the expiry of the statutory period of notice under Section 80 of the Code of Civil Procedure. Inasmuch as; however, a doubt had arisen in the mind of the respondents as to whether a notice under Section 80 of the Code of Civil Procedure was necessary to be given before filing a suit under Section 14 of the aforesaid Act, the respondents as a matter of caution filed another suit being Suit No. 24 of 1943 on 24th September, 1943 after the expiry of the period of that notice. The parties to both the suits, however, were the same and both the suits related precisely to the same plots of land and the cause of action for both of them was also the same. They were, therefore, ordered by the learned Revenue Judge to be consolidated by an order dated 27th May 1955 and it was in these consolidated suits, which the learned Revenue Judge referred to "as the suit" that the learned Revenue Judge gave a decree in favour of the respondents as aforesaid. It is against this decree that the appellant, the Collector of Bombay, has filed the present appeal in this Court.

(3.) THE suit that was so filed by the respondents was one of a group of 27 suits, all filed at or about the same time in the year 1943, and in all those suits the right of the Government to levy assessment on various plots of land which were originally held by the Central Government for the use of the B. B. and C. I. Rly. and the G. I. P. Rly, but which on being found no longer necessary for the use of the said Railways were sold or leased out by the Central Government to the plaintiffs in some of those suits by different instruments executed in 1938 or thereabout, was challenged. Out of the group of these suits, one suit being Suit No. 7 of 1943 with which suit No. 23 of 1943 was consolidated filed by Nusserwanji Ratanji Mistry and others against the Collector of Bombay was taken up first as a sort of a test case, it being agreed that the other suits should be postponed until the said suit was finally disposed of since the issues in the entire group of suits were more or less identical. Suit No. 7 (with Suit No. 23) was heard and disposed of by the learned Revenue Judge Mr. M. O. E. Brown on 17th March 1945. The learned Revenue Judge held that the Collector of Bombay was not entitled to assess the land in suit, and passed a decree in favour of the plaintiffs. From this decree the Collector of Bombay filed an appeal in the High Court at Bombay being First Appeal No. 274 of 1945. The High Court dismissed this appeal on 10th November 1948 and confirmed the decision of the learned Revenue Judge in favour of the plaintiffs. The Collector of Bombay then appealed to the Supreme Court. being Civil Appeal No. 74 of 1952 (Collector of Bombay v. Nusserwanji Rattanji Mistri, AIR 1955 SC 298 ). The Supreme Court allowed this appeal on 28th February, 1955 and dismissed the plaintiffs' suit with costs throughout.