DAMJI JAVERCHAND AND ORS Vs. PROVINCE OF BOMBAY

JUDGEMENT

(1.) THE plaintiffs appellants filed Suit no. 396 of 1940 in the Court of the First Glass Subordinate Judge of Thana against the Province of Bombay seeking to obtain a declaration that the levy of non-agricultural assessment at full rate on the entire area of the plaintiffs' survey NOS. 219, 220 and 281 of Ghatkopar ad-measuring 14,883 square yards was illegal and that the proper amount of assessment leviable should be calculated on the area actually built upon by structures and that it should be levied at concession rates. THE plaintiffs prayed for a refund of the amount of RS. 72-6-3 alleged to be wrongfully and illegally recovered "from him and also prayed for an injunction restraining the defendant from charging or recovering anything more than RS. 74-13-0 per year as non-agricultural assessment.

(2.) THE plaintiffs alleged that they were occupants of survey Nos. 219, 220 and 22l of Ghatkopar and that those lands were originally agricultural lands; that under the permission obtained from the Collector in June 1934 certain structures were put upon the land and later additional constructions were made; that the Collector ordered that non-agricultural assessment at concession rates should be charged on four times the area occupied by the structures; that it was assumed for the purposes of assessment that the area under the structures was 2,216 square yards; that in September 1936 the Collector permitted all the structures to be used as stables till 31st July 1938, but the assessment was directed to be levied at full rates on four times the area occupied by the structures which are then found on the lands; that by an order dated 23rd February 1939, the Collector declined to renew permission for the continuance of the stables and ordered that non-agricultural assessment at full rate be charged on the entire area of 14,883 square yards on all the survey numbers in which the structures stood scattered at different places; that the defendant demanded an amount of RS. 1,418 more which was an illegal demand; and hence the relief claimed.

(3.) MR. Murdeshwar, on behalf of the appellants, has contended that under the provisions of Section 48, Bombay Land Revenue Code, read with the provisions of Section 65 of that Code, an occupant of land is liable to pay non-agricultural assessment for that much area only as is actually used for non-agricultural purposes, i. e. is actually built over, and the Collector's order directing them to pay non-agricultural assessment for land not actually covered by the structures was ultra vires and illegal. MR. Murdeshwar's argument is that the "use of the land for the purpose of building" within the meaning of Section 48, Land Revenue Code, has to be judged by the area actually built upon and not on the incidental use which may be made for purposes of reasonable occupation of the building, and in so far as the Collector has directed the levy of assessment of non-agricultural assessment on an area larger than the area covered by the structures, that order is ultra vires. It is further argued that the buildings constructed by the plaintiffs on their lands having no compound wall, Rule 85, Bombay Land Revenue Rules, 1921, can have no operation and therefore the only governing statutory provision was contained in Section 48, Sub-sections (1) and (2), Bombay Land Revenue Code, 1879, under which the liability of the occupant must be limited to the area actually built upon.