NAVROJI N VAKIL Vs. GOVERNMENT OF BOMBAY

JUDGEMENT

(1.) IN this case an issue was sent for a finding by the lower Court. The issue was whether the order of the Collector dated June 20, 1933, was illegal and ultra vires. The lower Court has, after taking evidence, returned the issue with the finding that the order was not illegal and ultra vires. If that finding is correct, the plaintiff's suit would be barred by limitation under Article 14 of the INdian Limitation Act. That is common ground. The only question is whether the finding of the lower Court is correct.

(2.) THE plaintiff's case was that the Government had wrongly issued a notice under Section 66 of the Bombay Land Revenue Code for levying enhanced non-agricultural assessment on the whole area of his land, viz. 14 acres and 14 gunthas, plus a fine of Rs. 50. It appears from the evidence, and it is conceded also, that out of this total area an area of 7 acres and 8 gunthas was used by the plaintiff for non-agricultural purposes. His case, however, was that the remaining area of 7 acres and 6 gunthas was used for agricultural purposes, and that therefore the Government had no power to charge enhanced non-agricultural assessment for the whole of the area, and in any case, it had no power to levy it retrospectively from 1928 up till 1933 when the order was made. THE plaintiff paid under protest the enhanced assessment for the eight years from 1928 to 1936, and this suit was filed to recover back the amount so paid under protest. THE only question that now survives is whether the Collector's order to levy non-agricultural assessment on the whole of the land and that too for the whole period from 1928 to 1936 is valid. THE determination of that question depends upon the evidence which has been led after remand. That evidence consists of two revenue servants examined on behalf of the Government and one ex-circle inspector who has been examined on behalf of the plaintiff. THE lower Court has placed reliance upon the evidence of Chimanlal Gopallal, Exh. 73, who is a surveyor. He has deposed that he visited the land in dispute in 1928, and that although it was used for agricultural purposes before, he found that from 1928 onwards the land was occupied partly by a chawl, partly by a dhobi ghat, and the remaining open land was used for drying clothes and for the passage of waste water. He accordingly made a report in December 1929 to the Collector, which is Ex. 75. In the report he has stated that clothes were being dried in the open space measuring 12 acres and 16 gunthas apart from the land occupied by the dhobi ghat. As against that the plaintiff relies on the deposition of the ex-circle inspector, exh. 67, and the plan alleged to have been prepared by him in April 1928 in which it is alleged that the land, which was used for non-agricultural purposes, was demarcated from the rest of the land used for agricultural purposes. THE plan, however, by itself does not throw any light on that question. It appears to have been sent to the Municipality, and at the most it shows the proposed manner in which the land was sought to be used. Witness Chimanlal says that he did not see any hedge between the two plots of the land and that the land was promiscuously used for drying clothes or the passage of waste water. We do not see any reason to disbelieve this witness especially as he made his report as early as in 1929. We have no doubt, therefore, that practically the whole of the land has been used for non agricultural purposes.

(3.) THE result is that the suit is barred by limitation under Article 14 of the Indian Limitation Act and fails also on the merits. THE appeal is, therefore, dismissed with costs.