COLLECTOR OF BOMBAY Vs. KAMALAVAHOOJI MAHARAJ

JUDGEMENT

(1.) This is an appeal by the Collector of Bombay from the decision of the Bombay Revenue Judge. The plaintiff filed a suit praying for a declaration that there is a right on the part of the plaintiff in limitation of the right of Government to possess and hold her land mentioned in the plaint free from assessment for land revenue, or in the alternative, that it may be declared that the said land is liable to be assessed as of pension and tax or quit and ground tenure. The plaintiff is the present spiritual head of a Hindu Vaishnava temple situate at Cutch-Mandvi and as such is the owner of a piece of land situate at Bora Bazaar Street within the Fort, which is the piece of land in question in suit. So far as the title is concerned, the earliest title deed is dated 1788 and is a conveyance to two persons; then the property seems to have descended to the daughter of one of those persons, who in 1828 devised the land to her spiritual guru and the plaintiff claims under that guru.

(2.) The learned Revenue Judge in his judgment goes into the history of land tenure in the island of Bombay, and it is not, I think, necessary to deal with that matter at any length. It seems that when the island of Bombay was under the King of Portugal tenures were mostly of a feudal nature, that is to say, the land was held in return for sevices to be rendered to the Crown. In 1661 the island of Bombay was transferred by the King of Portugal to the King of England, and in 1669 by Letters Patent the King of England transferred the island with all his rights and powers in connection therewith to the East India Company, and it is, I think, clear that the East India Company thereby acquired the general right to assess lands to tax, that being a right which has always been possessed by the governing power in India. After that transfer there seem to have been disputes between the Company and various holders of lands who claimed to have acquired their lands from the King of Portugal. In 1672 an agreement was come to between the Government of Bombay and those various subjects, which is known as "the Aungier Convention". The effect of that was that the title of the persons who claimed the lands within the island was admitted subject to their paying an annual sum of 20,000 Xerphins and the lands subject to that tax are now known as pension and tax lands. There is no evidence that the land in question in this suit is pension and tax land, and there is no suggestion that any part of pension and tax has ever been paid in respect of that land. I think that we must assume that the land in question originally belonged to the King of Portugal and passed to the East India Company. It appears from the Dickinson survey which was made in 1813 that this land at that date did not pay any tax because it is mentioned in the survey as " paying no ground rent".

(3.) Mr. Vakeel has suggested that the English statutes of limitation have some bearing on the question at issue, but, in my opinion, that argument is untenable. Apart from the question of any express limitation on the rights of the Company, it seems to me that the only way that the plaintiff can put her case is to say that inasmuch as she or her predecessor-in-title have been in possession of this land since at any rate 1788, and inasmuch as no land revenue has been paid at any rate from 1813, we ought to presume a grant to the plaintiff or her predecessor- in-title free from liability to be assessed to land revenue. No authority has been cited in favour of such a presumption. No doubt the Court always presumes that a person entitled to property will assert his rights, and if it is shown that for a long period of years he has not asserted his rights, the Court will presume that those rights have been granted away. But, in my opinion, that presumption cannot be made in the case of Government's right to levy a tax. That right if vested in the Crown is clearly a prerogative right, and if vested in some body claiming through the Crown it may be a liberty or franchise, but is clearly in the nature of a prerogative right. Government are not bound to levy assessment every year on all the lands over which they have power to levy assessment. There may be very good reasons why Government for a long period think it undesirable to assess a particular piece of land, and I think that it would be altogether unreasonable to presume that because Government have not for many years assessed particular land therefore that land has been granted free from liability to assessment. In this particular case, Government may have taken the view that this land was used for charity, and that it was undesirable to assess it. But if subsequently the policy of Government, or the user of the land, changes, it would be unreasonable to hold that Government have lost their right to assess. I, therefore, agree with the learned Revenue Judge that apart from the question of express limitation the plaintiff's case must fail