PARSHOTTAM CHHAGANLAL Vs. KUBERDAS HARGOVANDAS

JUDGEMENT

(1.) THESE three appeals arise out of the three suits filed by the landholders of the inam village Shahijpur Bogha against the inamdar of that village for a declaration that they are entitled to hold their respective lands in dispute as vechan salami lands subject to the payment of salami only and not liable to the levy of altered assessment or fine for being put to non-agricultural use and for an injunction restraining the inamdar from recovering any such altered assessment or fine from them. The trial Court decreed their claim, but the) lower appellate Court set aside the decrees and dismissed the suits.

(2.) THE lands involved in these three appeals are Survey Nos. 2|4, 46|3 and 1|1 respectively. THEy were put to non-agricultural use in 1919 by the construction of buildings on them, but the inamdar did not claim to levy altered assessment or fine and continued to recover only the salami as fixed at the survey settlement of 1912. THEse lands were purchased by the respective plaintiffs for Rs. 800 in 1925, for Rs. 2,975 in 1913 and Rs. 6,500 in 1933 respectively. In all the three sale deeds the lands were described as the ancestral vechan salami lands of the respective vendors. THE present inamdar Kuberdas purchased the village on November 18, 1930, for Rs. 59,999 and began to put forward various claims to increase the income of the village. In 1934 he moved the Collector to fix the non-agricultural assessment and fine leviable on the three lands in suit under Sections 48 and 66 of the Bombay Land Revenue Code. Accordingly the Collector ordered that Rs. 552-11-0 should be levied as altered assessment for the years 1926-27 to 1933-34 and Rs. 165 as fine on survey No.2/4, Rs. 566-8-0 as altered assessment for the same years and a fine of Rs. 170 on survey No.46/3 and an altered assessment at the rate of Rs. 26-4-0 per year and a fine of Rs. 26-4-0 on survey No.111. This led to the institution of these three suits by the purchasers of those lands.

(3.) SECTION 48(2) of the Bombay Land Revenue Code, 1879, provides that where land assessed for use for any purpose is used for any other purpose, the assessment fixed upon such land shall be liable to be altered and fixed at a different rate by such authority and subject to such rules as may be prescribed. SECTION 65 provides that if any occupant wishes to use his holding or any part thereof for any other purpose, the Collector's permission shall in the first place be applied for by the occupant, and that when any such land is thus permitted to be used for any purpose unconnected with agriculture, it shall be lawful for the Collector to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of SECTION 48.SECTION 66 provides that if any such land be so used without the permission of the Collector being first obtained, the occupant shall be liable to be summarily evicted from the land and shall also be liable to pay in addition to the assessment such fine as the Collector may direct. An " occupant", to whom only SECTIONs 65 and 66 apply, is denned in SECTION 3(16) as meaning "a holder in occupation of unalienated land other than a tenant." Hence SECTIONs 65 and 66 in terms apply to unalienated lands only. Similarly under SECTION 214(1) (d), referred to in SECTION 48(4), the Provincial Government is empowered to make rules prescribing the purpose for which unalienated land liable to the payment of land revenue may or may not be used and regulating the grant of permission to use agricultural land for non-agricultural purposes. It is clear that no such rules can be made in respect of alienated lands. SECTION 217 provides that when a survey settlement has been introduced into an alienated village the holders of all lands to which such settlement extends shall have the same rights and be affected by the same responsibilities in respect of the lands in their occupation as holders of land in unalienated villages have or are affected by, under the provisions of the Act, and all the provisions of the Act relating to holders of land in unalienated villages shall be applicable, so far as may be, to them.