BASALINGAPPA SANGAPPA NESARGI Vs. PROVINCE OF BOMBAY

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff and it raises a short and interesting question of law. The land in suit is survey No. 46. It measures 6 acres and 17 gunthas and was assessed at Rs. 7 -12 -0 as land held for agricultural purposes. It came to the notice of the Revenue authorities that the whole of this land was being used for the purpose of holding a cattle market for 6 months on every Wednesday. That is why an enquiry was made and it was found that the land was being used for non -agricultural purposes. On that finding, the Prant Officer passed an order on September 27, 1943, directing that the holder should pay non -agricultural assessment on this land at the rate of Rs. 40 -8 -0 for 10 years past. This came to Ra. 405. The Prant Officer further directed that the holder should pay a fine of Rs. 202 -8 -0. This order was challenged by the holder by an appeal to the Collector, but the Collector confirmed the order passed by the Prant Officer and dismissed the appeal on January 31, 1944. In the present suit, the plaintiff claimed that the order passed by the Prant Officer and confirmed by the Collector was ultra vires and he asked for an injunction restraining the Province of Bombay from giving effect to the said order. This suit has failed in both the Courts below. That is how the plaintiff has come to this Court in second appeal.

(2.) ON behalf of the plaintiff Mr. Lokur has contended that it was erroneous in law to have held that penalty could be imposed in respect of part of the land in any case. Mr. Lokur concedes that the finding recorded by the Courts below that the whole of this area was used for non -agricultural purposes cannot be challenged by him in second appeal. He also concedes that, with regard to a substantial part of this land with the exception of two gunthas, non -agricultural assessment was properly levied and penalty was properly imposed. But his argument is that the order passed by the Revenue authorities in respect of two gunthas of land which was pot kharab is illegal and ultra vires, and that is the short question of law which has to be considered in the present case.

(3.) IN support of his argument Mr. Lokur has invited my attention to a decision of this Court in Rasulkhan v. The Secretary of State : AIR1915Bom72 . In this case, Heaton and Shah JJ. had to deal with the validity of an order passed by the District Deputy Collector that the building and the wood kept on a certain piece of land should be removed forthwith and the land should be forfeited. This land was assessed in 1871 and was entered into Revenue registers as waste land. The contention of the occupant was that the order for pulling down the structure and for removing the wood as well as directing the eviction of the occupant was ultra vires inasmuch as Sections 65 and 66 did not apply to that land. This argument was upheld and the order was held to be ultra vires. Mr. Lokur says that the decision in this case should apply to the penalty imposed in respect of the pot kharab in the plaintiff's land. I do not think that this argument is well -founded. In the case in which Heaton and Shah JJ. considered the effect of the provisions of Sections 65 and 66 of the Land Revenue Code, it was established on the evidence that the plaintiffs who were in lawful occupation of the land for several years were in such occupation as persons entitled to be in charge of the graveyard which existed on the land. The land no doubt was shown in the revenue record as waste land, but the evidence of its user indicated that the land must have been assigned for the purpose of a graveyard under Section 38 of the Land Revenue Code. No doubt, no documentary evidence was forthcoming in support of this view and Heaton J. remarked that in their ignorance it would be profitless to conjecture. But in considering the validity of the order made under Section 66, the learned Judge had to bear in mind the fact that the land had never been assessed nor was it shown to have been used for the purpose of agriculture. In fact, it was shown to have been always used for the purpose of graveyard. The inference, therefore, was irresistible that the land was wholly exempt from assessment. In any event, it is perfectly clear from the observations made by Mr. Justice Heaton that this land had never been assessed and had never been held for the purpose of agriculture. In such a case, it would obviously be inappropriate to apply the provisions of Section 65 or Section 66. This land could not have been described as held by an occupant for the purpose of agriculture, nor was it assessed for the purpose of agriculture. In fact, that is exactly how Mr. Justice Shah has dealt with this matter when he observed that in the case before him the plaintiffs could not be regarded as occupants of the land within the meaning of the Code and their rights could not be held to be limited to the agricultural use of the land. Therefore, in my opinion, the decision in Rasullkhan's case can be of no assistance to Mr. Lokur in view of the fact that it is not disputed that the whole of survey No. 46 measuring 6 acres and 17 gunthas is a part of the plaintiff's holding and that this land is held by him for the purpose of agriculture.