T P KAPADIA Vs. STATE OF BOMBAY

JUDGEMENT

(1.) A sanad in respect of the village of Khasbag situated in the Belgaum -District was granted to one Mootoo Koomar Moodliar on March 2, 1860. It is not disputed that as a result of this sanad all proprietary rights of Government in this village vested in the grantee. The petitioners purchased this village from the successor-in-title of the original grantee by a sale-deed dated March 27, 1947. This village of Khasbag is a surveyed and settled village. Some time prior to December, 1947, the inferior holders of survey Nos. 68 and 69 of this village converted these survey numbers to non-agricultural purpose. Originally agricultural assessment was levied upon these survey numbers and that assessment was collected by the petitioners under their right under the sanad. When these survey numbers were converted to non-agricultural use, the petitioners called upon the Collector of Belgaum to levy upon these numbers non-agricultural assessment and a fine under Section 66 of the Bombay Land Revenue Code. The Collector having declined to do so, the petitioners have preferred this petition for a writ against the State of Bombay compelling it to levy non-agricultural assessment and also a fine, and the question that we have to consider is whether there is any obligation upon the State Government when land which is originally used for agricultural purpose and upon which agricultural assessment is levied to impose a non-agricultural levy when the land is converted for non-agricultural purpose. In order to decide this question we must first turn to the relevant provisions of the Bombay Land Revenue Code and the first section which we have to consider is Section 48. Sub-section (2) of that section provides: "where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf". It is clear that under this sub-section there is a liability of the rate of assessment being altered if the land is used for a different purpose. But whether the holder of the land is in fact liable or not would depend upon the rules framed by Government under this sub-section. Then Section 66 provides:

(2.) NOW, turning to the rules, Rules 80 to 90 deal with imposition and revision of non-agricultural assessment in the case of unalienated lands and Rules 92 onwards deal with alteration of assessment in surveyed and settled alienated villages, and the rule which is relied upon is Rule 95 sub-rule (1) of that rule provides:

(3.) NOW, turning to the merits, there is considerable force in what Mr. Jahagirdar contends on behalf of the petitioners. It is surprising that the only affidavit filed by Government on this petition is the affidavit of the Collector Mr. Joshi, and Mr. Joshi has shown in this affidavit a commendable fairness; when in para. 6 of the petition the petitioners say