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Collector of Bombay Vs. Burjor Hormusji Poonegar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 559 of 1956
Judge
Reported inAIR1964Bom7; (1963)65BOMLR191; ILR1963Bom715
ActsCode of Civil Procedure (CPC), 1908 - Sections 80 - Order 6, Rule 17; Bombay City Land Revenue Act, 1876 - Sections 3(2), 3(3), 3(4), 8, 9, 10, 13, 14 and 17; East India Company Act, 1833 - Sections 2 and 39; India Councils Act, 1861 - Sections 36; Government of India Act, 1935 - Sections 100, 154, 172, 172(1), 172(2), 173 and 174; Government of India Act, 1858 - Sections 39; Foras Act, 1851; Land Acquisition Act, 1857; Conveyance of Land Act, 1854 - Sections 16; Railways Clauses Consolidation Act, 1845 - Sections 3; Adaptation of Laws Order, 1937; Andhra (Madras) General Sales Tax Act, 1939 - Sections 22 - Schedule - Article 286(1); Salsette Estates (Land Revenue Exemption Abolition) Act, 1951 - Sections 3(3); Statute Law
AppellantCollector of Bombay
RespondentBurjor Hormusji Poonegar and anr.
Appellant AdvocateAdv. General and ;Atul Setalvad, Adv., i/b., Little and Co. Attorneys
Respondent AdvocateS.V. Gupte, D.P. Madon, S.N. Vakil and K.D. Mehta, Advs., i/b., Payne and Co., Attorneys
Excerpt:
a) the case focused on the application for amendment that raised the wholly inconsistent plea and was applied for at a later stage - the court held that the said application should not had been allowed as per section 17 of the bombay city land revenue act, 1876. ; b) the case questioned as to who were the superior holder of the land - it was found that there was no merger of interests of crown with those of the east india company under the act of 1833, and in the port of bombay, the interest was held by the government of india since the act of 1858 - the over-lordship of the crown did not devolve on the provincial government under the indian councils act, 1861 and government of india act, 1935 - the court held that the persons to whom the lands in bombay were conveyed by the.....shah, j. 1. this is an appeal filed by the collector of bombay against the respondents who had filed a suit for the following declarations : (a) that there was a right on their part in limitation of the right of the government to assess the suit plots of land or, (b) in the alternative, that there was in any event a right on their part in limitationof the right of the government to assess the said plots of land in excess of the specific limit of assessment payable in respect of the said plots at the time when the foras act iv of 1851 first came into operation, viz., 1st july 1851, or to enhance the said assessment; (c) that the appellant had no right to fix or levy or recover the assessment of land revenue in respect of the said plots as intimated by him to them (the respondents) in his.....
Judgment:

Shah, J.

1. This is an appeal filed by the Collector of Bombay against the respondents who had filed a suit for the following declarations : (a) that there was a right on their part in limitation of the right of the Government to assess the suit plots of land or, (b) in the alternative, that there was in any event a right on their part in limitationof the right of the Government to assess the said plots of land in excess of the specific limit of assessment payable in respect of the said plots at the time when the Foras Act IV of 1851 first came into operation, viz., 1st July 1851, or to enhance the said assessment; (c) that the appellant had no right to fix or levy or recover the assessment of land revenue in respect of the said plots as intimated by him to them (the respondents) in his notices, all dated 29th June 1943; (d) that the decision and order of the appellant contained in the said notices were illegal, void and inoperative in law and not binding on them (the respondents) and that the same be superseded and set aside; and (e) that, in any event, the decision of the appellant in so far as it sought or purported to levy or recover an assessment for a period priorto the date of the said notices was illegal, void and inoperative in law.

2. The learned Revenue Judge at Bombaywho heard this suit passed a decree in favour of the respondents in terms of prayers (c) and (d) of the plaint and awarded costs of the suit to the respondents on the basis of capitalisation of the annual assessment fixed by the Collector at 25 years' purchase. It may be noted that the respondents had filed two suits under Section 14 of the Bombay City Land Revenue Act II of 1876. Suit No. 8 of 1943 was filed on 23rd July 1943 within 30 days of the service on them of a notice from the Collector of Bombay proposing to levy a certain assessment under Section 8 of the said Act, but before the expiry of the statutory period of notice under Section 80 of the Code of CivilProcedure. Inasmuch as; however, a doubt had arisen in the mind of the respondents as to whether a notice under Section 80 of the Code of Civil Procedure was necessary to be given before filing a suit under Section 14 of the aforesaid Act, the respondents as a matter of caution filed another suit being Suit No. 24 of 1943 on 24th September, 1943 after the expiry of the period of that notice. The parties to both the suits, however, were the same and both the suits related precisely to the same plots of land and the cause of action for both of them was also the same. They were, therefore, ordered by the learned Revenue Judge to be consolidated by an order dated 27th May 1955 and it was in these consolidated suits, which the learned Revenue Judge referred to 'as the suit' that the learned Revenue Judge gave a decree in favour of the respondents as aforesaid. It is against this decree that the appellant, the Collector of Bombay, has filed the present appeal in this Court.

3. The suit that was so filed by the respondents was one of a group of 27 suits, all filed at or about the same time in the year 1943, and in all those suits the right of the Government to levy assessment on various plots of land which were originally held by the Central Government for the use of the B. B. and C. I. Rly. and the G. I. P. Rly, but which on being found no longer necessary for the use of the said Railways were sold or leased out by the Central Government to the plaintiffs in some of those suits by different instruments executed in 1938 or thereabout, was challenged. Out of the group of these suits, one suit being Suit No. 7 of 1943 with which suit No. 23 of 1943 was consolidated filed by Nusserwanji Ratanji Mistry and others against the Collector of Bombay was taken up first as a sort of a test case, it being agreed that the other suits should be postponed until the said suit was finally disposed of since the issues in the entire group of suits were more or less identical. Suit No. 7 (with Suit No. 23) was heard and disposed of by the learned Revenue Judge Mr. M.O. E. Brown on 17th March 1945. The learned Revenue Judge held that the Collector of Bombay was not entitled to assess the land in suit, and passed a decree in favour of the plaintiffs. From this decree the Collector of Bombay filed an appeal in the High Court at Bombay being First Appeal No. 274 of 1945. The High Court dismissed this appeal on 10th November 1948 and confirmed the decision of the learned Revenue Judge in favour of the plaintiffs. The Collector of Bombay then appealed to the Supreme Court. being Civil Appeal No. 74 of 1952 (Collector of Bombay v. Nusserwanji Rattanji Mistri : [1955]1SCR1311 . The Supreme Court allowed this appeal on 28th February, 1955 and dismissed the plaintiffs' suit with costs throughout.

4. After a copy of the Supreme Court judgment in Mistri's case : [1955]1SCR1311 was received, the other suits were taken up by the learned Revenue Judge for hearing and final disposal, This is how the suits, which were, filed as far back as in 1943, came to be finally disposed of as late as in 1955.

5. As regards the suit out of which the present appeal has arisen, the respondents' appliedfor certain amendments of the plaint and on the amendments being allowed, the appellant put in a supplementary written statement. The issues were thereafter settled and the suit was put up for final disposal before the learned Judge on 18th October 1955.

6. The plots of land concerned in this suit are II in number admeasuring 8,383.2 square yards, bearing C. S. Nos. IA/56, IB/56, IC/56, ID/56, IE/56, IF/56, IG/56, IH/56, II/56 and IJa/56 of the Tardeo Division in the City of Bombay lying between Sleater Road on the west, and the yard of the Grant Road Station of the B.B. and C. I. Ely. (now Western Railway). These plots are shown in the plan Exhibit C. Adjoining this group of II plots, there is another of 13 plots bearing C. S. Nos. IK/56 to IU/56 which were the subject matter of the aforesaid Supreme Court appeal.

7. By an indenture of conveyance dated 15th March 1938 (Exhibit B), this group of II plots was conveyed by the Governor-General of India in Council to the respondents' for a sum of Rs. 1,68,318-15-0. It may be noted that this conveyance is in similar terms to the one in Mistri's case : [1955]1SCR1311 .

8. By several notices some of which were dated 1st April 1942 (Exhibit D collectively) and others dated nth June 1942 (Exhibit C collectively) issued under Section 9 of the Bombay City Land Revenue Act, 1876, the Collector of Bombay, i.e., the appellant, informed the respondents that he proposed to levy assessment on the said II plots from 1st April 1938, the assessment being calculated at 5 per cent, of certain varying rates per square-yard for the different plots mentioned in the notices. The rates varied from Rs. 34 to Rs. 40 per square yard. The appellant requested the respondents to let him know what they had to state in the matter.

9. By their attorneys letters dated 14th April 1942 and 22nd June 1942 (Exhibits E and H respectively) the respondents intimated to the appellant that the lands were not liable to be assessee at all and that, even if they were so liable, they could not be assessee at rates higher than those which prevailed at the time of the passing of the Foras Act, VI of 1851, viz., 1st July 1851, and that the proposed assessment could not, in any event, be levied with retrospective effect. They also stated that the proposed assessment at 5 per cent of the value of the plots as calculated at different rates, was objectionable inasmuch as both the percentage as well as the rate per square yard were excessive.

10. The appellant by his letters in reply dated 14th May 1942 and 27th June 1942 (Exhibits F and I respectively) informed the respondents that he did not agree that the lands were of the Foras tenure and stated that he was unable to accept any of the contentions of the respondents against the levy of the proposed assessment.

11. By II notices, all dated 29th June, 1943 (Exhibit K collectively) issued under Section 8 of the Bombay City Land Revenue Act, 1876, the appellant informed the respondents that the Government of Bombay had been pleased, tosanction the assessment of various amounts in the notices, on the aforesaid II plots with a guarantee period of 50 years from 1st April, 1938 and that the appellant had, therefore, assessee the said plots accordingly. The assessments so fixed by the appellant for the said plots were Rs. 1,200, 1,200, 1,315, 1,910, 2,000, 1,200, 1,200, 1,200, 1,400, 1,375 and Rs. 1,375 per annum respectively. By the same notices, the appellant required the respondents to pay into his office at an early date the said assessments for five years, i.e., from 1st April, 1938, to 31st March, 1943, in respect of the said plots.

12. By their attorney's letter dated 3rd July, 1943. (Exhibit L) the respondents gave to the appellant the statutory notice of their intention to file a suit in the Court of the Revenue Judge of Bombay within 30 days as required by Section 14 of the Bombay City Land Revenue Act, 1876, with a view to contest the legality of the decision of the appellant and validity of the notice of demand issued by him under Section 8 of the said Act. Further, the respondents also gave a notice out of abundant caution under Section 80 of the Code of Civil Procedure of their intention to file in the Court of the Revenue Judge, Bombay, against the appellant, a suit for a declaration that there was a right on the part of the respondents, in limitation of the right of the Government of the Province of Bombay to-assess the lands in question, and for other reliefs as mentioned in the said notice. Suit Nos. 8 and 24 were thereafter filed by the respondents against the appellant as already stated above.

13. The respondents contended in the plaints filed by them that the plots in question formed part of a larger plot of land which was originally of the Foras tenure. According to them, that larger plot was included in what was called 'Plan No. 1' in the Foras Act VI of 1851. By Section 2 of the said Act the rights of the East India Company in the lands mentioned in Plan No. 1 were extinguished from and after 1st July, 1851, in favour of the persons who then held the same respectively as the immediate rent-payers of the Company save and except the rights as to the rents then severally payable and recoverable by distress etc. They further contended that at the time of the passing of the Foras Act, 1851, some portions of the plots in suit were subject to a payment of six reason per burga, and some others to payment of nine reason per burga (400 reason make one rupee; and one burga equals 60 square yards. See Vaidya's Bombay City Land Revenue Act, 2nd Edition, 1948, page 14. See also Dandekar's Law of Land Tenures, Vol. I, page 563). This fixed rent, according to the respondents, became payable to the Crown when the rights of the East India Company in all lands became vested in Her Majesty on the transfer of the Government by the Company to the Crown, by Statute 21 and 22 Vict. C. 106 (the Government of India Act, 1858, Section 39).

14. Between 1865 and 1866, these plots of land along with several others were acquired by Government under the then Land Acquisition Act VI of 1857 for the purpose of the B. B. and C. I. Railway and awards were made pursuant tothe said Act for payment of compensation and for apportionment thereof among the parties interested in the said lands. The respondents contended that Government were 'interested' in the said' plots of lands in respect of their right to levy assessment of land revenue and that Government either received or must have received or ought to have received, under the said awards, their portion, of part of the amount of compensation awarded; The respondents contended that Government having been so paid, or having had a right to be so paid for their said interest in the land, it was not open to them to levy any further assessment on those lands. They further contended that by reason of the acquisition proceedings and the awards, the lands thereafter became free-hold lands, free from land revenue assessment, and the right of Government to levy any assessment became extinct. The respondents submitted that there was a right in them in limitation of the right of Government to assess. Without prejudice to the aforesaid contentions, the respondents submitted that there was a right in them in limitation of the right of Government to assess the said plots in excess of the specific limits obtaining on 1st July, 1851, when the Foras Act came into force.

15. Without prejudice to all the aforesaid contentions the respondents contended that both the percentage as well as the rate per square yard adopted by the appellant in arriving at the assessment imposed on the various plots, were excessive and that in any event the assessment could not be levied with retrospective effect.

16. As regards the notices which were issued by the appellant to the respondents under Section 8 of the Bombay City Land Revenue Act, the respondents contended that they were illegal, inoperative and void for these reasons:-- (1) that the lands in question had vested in the Secretary of State for India in Council up to 1st April, 1937, and thereafter up to 15th March, 1938 (being the date of the conveyance) in His Majesty for the purposes of the Government of India and as such the plots were exempt from all taxes and assessments; (2) that after the coming into force of the Government of India Act, 1935, i.e., as from 1st April, 1937, the appellant as representing the Government of the Province of Bombay, was not entitled under the Bombay City Land Revenue Act, 1876, to claim land revenue or assessment in respect of the said lands. Two more grounds were added by the amendment of the plaint and they were: (I) that the respondents were not 'Superior Holders' within the meaning of that expression, as defined in Section 3(4) of the Bombay City Land Revenue Act, 1876, and (2) that the Conveyance dated 15th March, 1938, was a Conveyance in the English form and that under Section 16 of the Conveyance of Land Act, 1854, the respondents had acquired an estate in fee simple absolute. In this connection, the respondents stated that at the time when the conveyance was at the draft stage Messrs. Crawford Bayley and Co., as attorneys for the Governor-General-in-Council had represented to the respondents that Section 16 of the Conveyance of Land Act, 1854 applied to the proposed conveyance and thatthe respondents accordingly had acquired by the said conveyance an estate in fee simple absolute and, therefore, free from the levy of land revenue.

17. By a further amendment of the plaint, which was allowed by the learned Revenue Judge by his order dated 31st May, 1955, the respondents added paragraph II-A to the plaint inwhich they stated that after the Supreme Court's judgment in Mistri's case, : [1955]1SCR1311 , the respondents had come to learn about certain correspondence between the G. I. P. Railway Administration and the Government of Bombay which had taken place in 1942 and in which the Government of Bombay had confirmed that, on payment of a capitalised assessment in respect of the lands acquired for Railways, at 30 times the assessment the Railway Administration would hold the lands as 'Revenue Freehold' as in the past.

18. The respondents further stated in the plaint that since the Supreme Court decision in Mistri's case, : [1955]1SCR1311 they had come to learn that between 1941-49 an agreement had been arrived at between the Bombay Government and the Central Government as regards the claim of the former to assess the Railway lands belonging to the latter in the City of Bombay and transferred to third parties and that by virtual of the said agreement the Bombay Government had agreed to forgo its claim to assess such land on payment by the Central Government of 5 per cent of the purchase price. The respondents further stated that the Bombay Government's claim had thus been satisfied by payment of such a lump sum to them by the Central Government In regard to these statements, the learned Revenue Judge observed that no evidence whatever was produced by the respondents in support thereof and that, therefore, they should be dropped out of consideration.

19. The respondents raised a further contention with regard to the notices issued by the appellant and stated that in any event they were illegal and void and ultra vires inasmuch as they sought to levy assessments with retrospectives effect i.e., from a date prior to the date of the notices and required payment for a period to that date.

20. The respondents accordingly sought to establish in them a right in limitation of the right of Government to assess or in any event a. right in limitation of the right of Government to levy an assessment more than what obtained at the time of the passing of the Foras Act of 1851, i. e., 1st July, 1851, and prayed for an appropriate declaration in that behalf and also for a declaration that the notices issued by the appellant were illegal, void and inoperative in law.

21. Turning to the appellant's written statement, it was firstly urged that the respondents had not given security to the satisfaction of the appellant before instituting the suit as required by Section 14 of the Bombay City Land Revenue Act, 1876. In regard to this contention, however, the learned Revenue Judge in paragraph 22 of his judgment observed that it was not pressed or argued or made subject-matter of an issue andaccordingly, it was left out of consideration indetermining the suit.

22. The appellant then stated in his writtenstatement that the Conveyance dated 15th Match, 1938, (Exhibit B) was'subject nevertheless to the payment of allcesses, taxes, rates, assessments, dues and dutieswhatsoever now or hereafter to become payableIn respect thereof'and denied that the notices under Section 8 wereillegal, void or inoperative as alleged by the respondents. The appellant further stated that hehad no knowledge that prior to 1851, the land comprising, inter alia, the plots in suit, formed part of 'Plan No. 1' referred to in the Foras Act and he did not admit that they were subject to the payment of six reason per burga in some cases and nine reason per burga in others.

23. At the hearing of the suit, however, the learned Counsel for the appellant appears to have conceded that prior to the year 1851, the land comprising inter alia the plots in question formed part of the lands mentioned in Plan No. 1 referred to in the Foras Act and also that at the time of acquisition the Foras Rent was being paid at the rate of nine reason per burga in respect of allthe plots of land.

24. The appellant then denied in his writ-ten statement that at the time of the acquisition proceedings the Government received or must have received or ought to have received under the awards their portion or part of the compensation amount in respect of their right to a fixedassessment of land revenue as alleged by the respondents. The appellant denied that the interest of Government in the land was taken into consideration on the acquisition and that the capitalised value thereof was received or must have been received or should have been received by the Government. He also denied that as a result of the acquisition proceedings and the awards, the lands thereafter became revenue-free, or that the Government's right to assess them was extinguished. On the contrary, the appellant contended that on the acquisition, the said lands vested in the Government, and that not only the natureof the tenure thereof was thereupon extinguished but also any specific limit of assessment whichmight have existed by reason of the lands having been included in Plan No. 1 of the ForasAct. On acquisition, the appellant contended, the lands ceased to he governed by the Foras Act. As regards the percentage and the value per square yard, the appellant stated that the percentage as well as the value persquare yard as fixed by him were not subject to examination under the Bombay City Land Revenue Act, and denied that they were at all excessive. He also denied that the assessment could not be levied with retrospective effect.

25. The appellant further stated in the writ-ten statement that after 1st April, 1937, and until 15th March, 1938, the plots in question had been retained by His Majesty for the purpose of their more advantageous disposal by sale or otherwise. After 15th March, 1938, the plots ceased to vest in His Majesty and since that date, the appellant stated, 'they were not exempt from thetaxes or land revenue which might be imposed bythe Provincial Government.'

26. As regards the amendments, which were allowed to be made by the learned Revenue Judge in the plaint, the appellant in his supplementary written statement denied that the respondents were not 'Superior Holders' within the meaning of Section 3 (4) of the Act and also that they were outside the operation of Sections 8, and 9 of the Act. The appellant further denied that the conveyance of 15th March 1938 was a conveyance of an estate in fee simple absolute in the English form. He also denied that Section 16 of the Conveyance of Land Act, 1854, applied and that by virtue of that section there was transferred to the respondents any right to hold the lands free from any levy of land revenue. He pointed out that the Act of 1854 had been repealed in 1952 (sic) and that the said Section 16 no longer applied to the conveyance of 15th March, 1938.

27. As regards the representation alleged to have been made by the appellant's attorneys, the appellant did not admit that any such representation was ever made to the respondents at the time of the conveyance, but he added that the representation, if any, was one on a question of law and was, therefore, not binding upon the, Governor-General-in-Council or the President of the Union of India, or the Government of India, or the appellant,

28. With reference to the correspondence referred to in the plaint between the Government of Bombay and the G. I. P. Railway Administration, the appellant stated that he would rely thereon for its true construction and effect. He however, categorically denied the alleged agreement under which the Bombay Government agreed to forego its claim to assess Railway lands transferred by the Central Government to third parties on the Central Government paying 5 per cent, of the purchase price to the Bombay Government. The appellant further denied that any such payment had been made or received. The appellant accordingly submitted that the respondents had no right in limitation of the right of the Government to assess the plots in suit or to enhance the assessment beyond the limit mentioned in the Foras Act.

29. On these pleadings, the learned Revenue Judge raised as many as 19 issues. On the issue as regards the legality or otherwise of the notices issued by the appellant to the respondents, the learned Revenue Judge held that the notices were illegal void and inoperative and not binding on the respondents.

30. Te second issue related to the alleged right of the respondents in limitation of the right of the Provincial Government to assess the plots in question (a) at all, (b) in excess of the specific limit to assessment which wag in existence on the 1st July, 1851. The learned Revenue Judge answered this issue in the negative on the assumption that the respondents were 'Superior Holders' and for this finding he relied upon the Supreme Court decision in Mistri's case, : [1955]1SCR1311 . He, however, held that if the respondents were not 'Superior Holders' thenthe issue would not arise, because, in that event, the Provincial Government would have no right whatever to assess the lands in the possession of the respondents.

31. As regards the third issue which related to the alleged interest of the Government in the plots in suit, it was held by the teamed Revenue Judge that it was not proved that the interest of Government in those plots was taken into computation of their acquisition or that the capitalised value thereof was received by the Government.

32. The fourth issue that was raised by the learned Revenue Judge was as to whether the respondents who held the said plots of land under the Conveyance dated the 15th March, 1938 were entitled to rely on the acquisition proceedings and awards mentioned in paragraphs 7 and 8 of the plaint and the answer that he gave was that in view of the decision of the Supreme Court in Mistri's case, : [1955]1SCR1311 the said proceedings and awards did not help the respondents in claiming a right in limitation of the right of the Government to assess.

33. Again in view of the judgment of the Supreme Court in Mistri's case, : [1955]1SCR1311 , the learned Revenue Judge answered in the affirmative issue No. 5 to the effect as to whether on the acquisition of the said plots of land, the tenure of the said plots of land was extinguished and they vested in the Government as free-hold lands.

34. The sixth issue,, namely, 'whether the said plots of land have, after the 15th March, 1938, ceased to vest, and are not vested, in His Majesty for the purposes of the Government of India', was answered by the learned Revenue Judge in the affirmative.

35. The 7th issue was as to whether the said plots of land were exempt from all taxes and/or assessments and /or land revenue that might be imposed by the Provincial Government and the learned Revenue Judge gave a two-fold answer thereto. His general answer to the issue was in the negative, but on the assumption that the plots were held by a person who was not a 'Superior Holder', the learned Revenue Judge held that the settlement of this assessment under Section 9 of the Bombay City Land Revenue Act, 1876, could not be made with him and the assessment under Section 8 could not be levied on him. In other words, the learned Judge held thatthe said plots of land were not exempt from anytaxes or assessment or land revenue that might be imposed by the Provincial Government unless they were held by a person who was not a 'Superior Holder'.

36. The 8th issue that was raised in the case was tire most important one for the decision of the case and that was as to whether the respondents were 'Superior Holder' within the meaning of that expression as defined in Section3 (4) of the Bombay City Land Revenue Act, II of 1876. This issue was raised in consequence of the amendment of the plaint by which the respondents contended that they were not 'Superior Holders' and therefore, the lands held by them were not liable to be assessee under the Bombay CityLand Revenue Act. This issue was answered by the learned Revenue Judge in the negative. Consequent upon the finding on this issue, the learned Revenue Judge held on issue No. 9 that the respondents and/or the lands held by them were outside the operation of Sections 8 and g of the said Act.

37. As regards issue No. 10, 'whether the conveyance dated 15th March, 1938, is a conveyance of an estate in fee simple absolute in the English form?', the learned Judge answered it in the affirmative. He also answered the next issue in the affirmative and held that Section 16 of the Conveyance of Land Act, 1854, applied to the Conveyance dated 15th March, 1938.

38. On the issue whether the attorneys for the Governor-General-in-Council had represented to the respondents at the time of the taking of the Conveyance dated 15th March, 1938, that Section 16 of the Conveyance of Land Act, 1854, applied to the said Conveyance, the learned Revenue Judge held that they had.

39. The next issue being issue No. 12 was as to whether the respondents had taken the said Conveyance on the said representations and it was answered in the affirmative by the learned Revenue Judge. It was, however, held on issue No. 14 that the said representation was not binding on the appellant.

40. On issue No. 15, which involved an answer as to the true effect of the conveyance dated 15th March, 1938, read with Section 16 of the Conveyance of Land Act, 1854, the learned Revenue Judge held that the question whether the respondents had got what might be called 'an estate in fee simple absolute' was merely academic inasmuch as the conveyance did not itself give the right to hold the lands free from the levy of land revenue which might be imposed by the Provincial Government.

41. Issue No. 16 related to the alleged agreement between the Bombay Government and the Central Government as regards the former's claim to assess Railway lands transferred by the Central Government to third parties and it was held that no such agreement had been established. In view of this finding on issue No. 16 the next issue as to whether the Bombay Government's claim had been satisfied by payment as alleged in paragraph II-A of the plaint did not obviously arise.

42. Issue No. 18 was again an important one and the learned Revenue Judge held on that issue that the appellant, as the representative of the Government of Bombay had no right to levy and recover assessment in respect of the plots of land in question, because the respondents were not 'Superior Holders' and also because the notices (Exhibit K) were invalid.

43. Consequent upon the several findings asgiven above, the learned Revenue Judge passeda decree in favour of the respondents in termsof prayers (c) and (d) pf the plaint. It is againstthis decree that the Collector of Bombay has filedthe present appeal in this Court.

44. Before dealing with the contentions raised by the learned Advocate General in supportsof this appeal it may be convenient to state some of the facts which are not in dispute. The plots in suit were not originally Foras lands and they fell within the area delineated in Plan No. 1of Foras Act VI of 1851. Some portions of the plots in suit were part of the land acquired by the Government under the award dated 25th March, 1863 and other portions thereof were part of the land acquired under the award dated 25th April, 1864, and all these plots were acquired for the purposes of the B. B. and C. I. Railway. In respect of the land comprising the plots in suit the annual assessment that was being paid to Government was the Foras Kent of nine reason per burga up to the time of acquisition and after the acquisition no Foras rent and no other assessment of any kind was paid to the Government either under the Bombay City Land Revenue Act, 1876, or under any other law. On 1st April, 1937, when Part III of the Government of India Act came into force the land comprising the plots in suit stood vested in His Majesty for the purposes of the Government of India (Central Government) and was either being used for such purposes or was retained for the purposes of more advantageous disposal by sale or otherwise as contemplated by Section 172, sub-sections (1) and (2), of the Government of India Act, 1935. In 1936, the land comprising inter alia the plots in suit was offered for sale by the B. B. and C. I. Railway which was owned by the Government of India and after some exchange of correspondence a draft conveyance was prepared and approved and the said land was granted and transferred to the respondents by the Governor-General-in-Council of India by the indenture of conveyance dated 15th March, 1938. For the first time, the Collector of Bombay proposed to assess the plots in suit by issuing notices under Section 9 of the Bombay City Land Revenue Act, 1876. Some of these notices were dated 1st April, 1942, and others were dated nth June, 1942. After exchange of some correspondence, the Collector of Bombay, the appellant, by notices under Section 8 of the same Act issued on 29th June, 1943, purported to levy assessment of varying amounts per annum on all the II plots in suit with a guarantee period of 50 years from 1st April, 1938, and required payment of the assessment of the rates fixed by him for five years from 1st April, 1938, to 3rst March, 1943. The Collector of Bombay, the appellant at or about the same time also issued notices under Section 9 of the said Act upon persons who were the lessees of the various plots from the respondents and by notices under Section 8 dated 29th June, 1943, the Collector of Bombay purported to levy assessment in respect of all those plots on the respective lessees thereof the assessment being for the same amounts as were claimed from the respondents with the same guarantee period of 50 years from 1st April, 1938, and required payment from each lessee for five years from 1st April, 1938, to 21st March 1943.

45. It may be observed that some of the is-sue which were raised by the learned Revenue Judge in this case were almost identical with those raised and decided by the Supreme Court in Mistri's case, : [1955]1SCR1311 . It was adoringly held by the learned Revenue Judge inthis case, in out opinion quite rightly, that the respondents had not established a right in limitation of the bright of the Government to assess nor had they established a specific limit to the Government's right to assess the lands in question within the meaning of Section 8 of the Bombay City Land Revenue Act, 1876. The questions that were hotly discussed before the learned Revenue Judge, however, were firstly, as to whether the respondents were not 'Superior Holders' within the meaning of Section 3 (4) of the Bom bay City Land Revenue Act, 1876 and, therefore, Sections 8 and 9 of the said Act were not applicable to them, and secondly, whether the notices issued by the appellant being retrospective were invalid and the assessments founded thereon were accordingly also invalid.

46. The question as to 'Superior Holder' was sought to be raised for the first time in the Supreme Court in Mistri's case, : [1955]1SCR1311 . But the learned Counsel for the Collector of Bombay objected to the same being so raised. The Supreme Court upheld the objection observing as follows: --

'This objection must be upheld. In view of the fact that the respondents have at all stages claimed immunity from assessment on the basis of Section 8, we do not consider that it would be proper to allow them how to change their front and take a stand wholly inconsistent with what they had taken, when that involves an investigation into facts which has not been made. We must, therefore, proceed on the footing that the respondents are 'Superior Holders' as defined in Section 3 (4) of Act II of 1876, and that their rights are to be determined in accordance with Section 8 of the Act.'

47. After the decision in Mistri's case, : [1955]1SCR1311 the respondents in this caseapplied to the learned Revenue Judge for amendment of the plaint so as to enable them to raise acontention that they were not 'Superior Holders'within the meaning of Section 3 (4) of Act II of1876 and that therefore, the tends in their possession were not liable, to assessment. This application was stoutly resisted by the learnedCounsel for the appellant before the learned Revenue Judge on the ground that the plea sought tobe raised by the amendment was utterly inconsistent with the pleas already raised in the plaintas originally filed, that the amendment, if allowed, would cause serious prejudice to the Government and that the application for amendment wasmade at a time when the fate of this suit as wellas other suits which were stayed pending the decision in Mistri's case, ( (S) AIR 1955 SC 208) wasvirtually decided by the decision of the SupremeCourt in Mistri's case, : [1955]1SCR1311 .The learned Revenue Judge, however, allowed'the application for amendment and the two questions which have been stated above arose on theseamendments.

48. The learned Advocate-General who appeared for the appellant, strongly urged that the learned Revenue Judge was in error in allowing the belated application for amendment of the plaint by the respondents. He pointed out that Mistri's case, : [1955]1SCR1311 was taken up as a test case, because it was agreed by theparties in all other suits that the issues in Mistri's case : [1955]1SCR1311 and in all other suits were common and that the decision of all other suits would depend upon the final decision in Mistri's suit and contended that the learned Revenue Judge ought not to have allowed the respondents to back out of that position and permitted them to introduce new and inconsistent pleas by way of amendment of that plaint. He further urged that a serious prejudice would be caused to the Government by allowing the respondent's application for amendment so late in the day in the sense that in the event of the respondents succeeding in the suit on the basis of the new pleas raised by them by way of amendment, the Government would have to amend the Bombay City Land Revenue Act, 1876, which could have been done very much earlier if the application for amendment had been made soon after the suits were filed or at any rate after the decision of the learned Revenue Judge in Mistri's case. He urged that the Government would be losing a considerable amount by way of land assessment not only in respect of the lands in suit, but also in respect of several other lands in the city of Bombay if they were compelled to amend the Bombay City Land Revenue Act, 1876, after the decision of this suit not only by this Court in appeal but also by the Supreme Court in the respondent's favour which might take another four to five years. The learned Advocate General accordingly submitted that both on the ground of inconsistency of the pleas raised by the respondents by amendment of the plaint with the pleas raised by them in the plaint as originally filed and also in view of the serious prejudice that would be caused to the Government, the respondents application for amendment of the plaint should have been disallowed by the learned Revenue Judge.

49. Mr. Madon, the learned Counsel for the respondents on the other hand, urged that it was not uncommon that a plaintiff could base his claim on inconsistent pleas and that no prejudice would be at all caused to the Government by allowing the respondents application for amendment. He submitted that the Government could get the Act amended to their liking even if the decision in this suit ultimately went against the Government and that in the interest of justice it was necessary that the respondents should be allowed to amend their plaint by raising even inconsistent pleas, if on the basis of such pleas, they were ultimately found not to be liable to pay any assessment in respect of the lands held by them. He further submitted that the subject is entitled to approach a Court of Law to seek protection against a taxing statute if he could get it and that, therefore, if the respondents in this case could escape assessment in respect of those lands by showing that they were not 'Superior Holders' within the meaning of Section 3 (4) of the Bombay City Land Revenue Act, 1876, they should be allowed to amend their plaint at any stage of the proceedings irrespective of any prejudice that might be caused to the Government. It was contended by Mr. Madon that it was not correct to say that the parties to all other suits including the present one had agreed to the stayof all the suits pending the decision in Mistri's case : [1955]1SCR1311 . According to him, Mistri's case was undoubtedly taken up as a test case, but that did not necessarily mean that all other suits irrespective of their respective merits had to be decided in accordance with the final decision in Mistri's case. He further urged that the respondents could not possibly apply for amendment of their plaint at any earlier time because, it was only in the Supreme Court that Mistri had lost and the Government had succeeded. Besides, Mr. Madon argued that it was in course of the hearing before the Supreme Court that Mistri was not allowed to raise the point of his being not a 'Superior Holder' within the meaning of Section 3 (4) of the 'Bombay City Land Revenue Act, 1876. Accordingly, Mr. Madon urged that the only time when the respondents in this case could apply for amendment of the plaint and raise the plea as to their being 'Superior Holder' or otherwise, was only after the decision of the Supreme Court in Mistri's case, : [1955]1SCR1311 . According to Mr. Madon, therefore, the application for amendment was not a belated one and the learned Revenue Judge was not in error in allowing the same.

50. In our opinion, the learned Revenue Judge should not have allowed this application for amendment of the plaint. It is obvious that the reliefs that the respondents had sought in the plaint as originally filed were based upon the footing that they were 'Superior Holders'. The same reliefs are now, sought to be obtained on the footing that they were not 'Superior Holders'. As the Supreme Court has pointed out these pleas are obviously inconsistent with each other and we do not accept Mr. Madon's contention that the plaintiff is always entitled to ask for any relief in any suit on thoroughly inconsistent pleas. Vide Ma Shwe Mya v. Maung Mo Hnaung, 48 Ind App 214 : AIR 1922 PC 249. On the mere ground, therefore, that the plea that was sought to be raised by the respondents by their amendment application was wholly inconsistent with the pleas already raised by them in the plaint as originally filed, the learned Revenue Judge, in our opinion, should have disallowed the respondents' application for amendment. Secondly, it is obvious that the Government would be put to a very serious loss of revenue in the event of the respondents succeeding on this new plea. It would be losing the revenue for all the years at any rate from 1943 onwards up to the time they are compelled to amend the Bombay City Land Revenue Act so as to enable them to levy assessment upon these lands. If the amendment application had been made earlier, soon after the suit was filed, the learned Revenue Judge could have taken up this case as well for disposal and in that event the suit could have been finally disposed of even by the Supreme Court in appeal just about the time when Mistri's case, : [1955]1SCR1311 was decided. If the respondents on this plea had succeeded before the Supreme Court the Government would have seen their way to amend the Bombay City Land Revenue Act, 1876, suitably by about 1955 or 1956. In that case as also in the case of respondents losing on that plea, although the Government would havelost its revenue for about 12 or 13 years, they would not have lost the same for the subsequent years. For this reason also the learned Judge should have disallowed the respondents application for amendment. On the ground of delay also, we are of the opinion that the learned Revenue Judge should have disallowed the respondents application for amendment. Unless the respondents thought that their suit would be decided in the same way as Mistri's suit, there was no reason for them to wait for the disposal of their suit until Mistri's case, : [1955]1SCR1311 was decided by the Supreme Court in 1955. If at all they wanted to raise a plea which they sought to raise by the amendment application, we do not think they should have really waited until the decision of the Supreme Court in Mistri's case, : [1955]1SCR1311 because, they knew very well that Mistri's case, : [1955]1SCR1311 did not involve the question as to whether. Mistri and others who had purchased the land from Government, just as the respondents had done in this case, were or were not 'Superior Holders' within the meaning of Section 3 (4) of the Bombay City Land Revenue Act, 1876. They should have really raised this plea by amending the plaint within a reasonable time after the filing of the suit. Besides, the Bombay City Land Revenue Act, 1876, by Section 17 requires such a suit to be filed within 30 days from the date when the decision of the Collector was made known to the respondent. This provision clearly shows the anxiety of the Legislature that revenue matters should be disposed of as expeditiously as possible. With the new plea that was allowed to be introduced by the amendment of the plaint, the suit can be said to have been filed more than 12 years after the assessment was fixed and accordingly, the very purpose for which Section 17 of that Act was designed can well be said to have been set at nought. Besides, it seems to us that in view of Section 17 of the said Act, the suit was clearly barred by time at the date of the application for amendment of the plaint. We, therefore, hold that the respondents' application for amendment of the plaint in this case should not have been allowed by the learned Revenue Judge.

51. Inasmuch as however, the learned Advocate-General did not content himself with his arguments only on this question of amendment, and invited us to give our decision also on the questions that were raised by the amended plaint, we do not think that we should dispose of this appeal only on that ground.

52. As regards the question as to whether the respondents were or were not 'Superior Holders' in respect of the lands held by them, the learned Advocate-General contended that they were, firstly, on the ground that the over lordship over all the lands in the City of Bombay including the land in question, which was retained by the Crown ever since the Crown by its Charter of 1668 granted the Port and Island of Bombay to the East India Company, continued with the Crown up to 1st April, 1937, on which date the Government of India Act, 1935, came into force and devolved on the Province of Bombay by virtue of the provisions of that Act, andtherefore, all the lands in the City of Bombay were held under the Provincial Government as contemplated by Section 3 (4) of the Bombay City Land Revenue Act, 1876, and secondly on the ground that all lands, situated within the territory of the British Crown belonged to the Crown and that, by virtue of the devolution of this prerogative right of the Crown on the Provincial Government all lands situated within the Port and Island of Bombay including the suit lands were held under the Provincial Government. He urged that on both these grounds or either of them, the respondents were 'Superior Holders' in respect of the lands in suit and that, therefore, they were liable to pay assessment in respect of those lands.

53. It was urged by Mr. Madon, the learnedCounsel for the respondents, on the other hand,that the over-lordship of the Crown which thelearned Advocate-General referred to in his arguments, merged with all other interests which theCrown had created in favour of the East IndiaCompany by virtue of Socage Tenure when theAct of 1833 (3 and 4 William IV C.A.P.LXXXV) was passed or at any rate when the Actof 1858 (21 and 22 Victoria C. A. P. CVI) waspassed by the British Parliament and that, therefore, there was no over-lordship remaining in theCrown which, as the learned Advocate-Generalcontended, could devolve upon the ProvincialGovernment by virtue of the provisions of theGovernment of India Act, 1935. He furtherurged that although it was true that all lauds within the territory of the British Grown belonged tothe Crown as a matter of prerogative right of theCrown, there was no provision in the Government of India Act, 1935, by which this prerogative right of the Crown could be said to have beentransferred to the Provincial Government. Healso urged that the expression 'Superior Holder'as defined in Section 3 (4) of the Bombay CityLand Revenue Act, 1876, meant a person havingthe highest title derived from the Provincial Government, which was the literal meaning of the expression 'under the Provincial Government asused in that section.

54. In support of his contention that the over-lordship of the Crown in the lands in the City of Bombay continued in the Crown until it devolved upon the Provincial Government by the Government of India Act of 1935, the learned Advocate-General invited our attention to the Charter granted by Charles II in 1668 in favour of the East India Company in respect of the Port and Island of Bombay. This Charter recited the Charter of 3rd April, 1661, and also the treaty of 23rd June, 1661, and provided:

'Charles II, did give, grant, transfer, and confirm' to the London Company the Port and Island of Bombay, 'with all the rights, profits, territories, and appurtenances thereof whatsoever, and all and singular royalties, revenues, rents, customs, castles, forts, buildings and fortifications, privileges, franchises, pre-eminences, and hereditaments whatsoever, etc., in as large a manner as the Crown of England enjoyed or aught to enjoy them under the grant of the King of Portugal in the treaty of 1661 and not further or otherwise and created the London Companythe true and absolute Lords and Proprietors of the Port 'and Island and premises aforesaid, and of every part and parcel thereof, which appertained to the Crown of England by force of the grant of the King of Portugal, and not further or otherwise, '(saving the allegiance due to the Crown of England, and its royal power and sovereignty over its subjects in and over the inhabitants of the port and island)', to have hold etc., the said Port and Island etc. 'unto them', the said Company, 'to the only use of them', the said Company, 'their successors and assigns for evermore, to be holden of us, our heirs and successors, as of the Manor of East Green which in the County of Kent, in free and Common Socage, and not in Capite, nor by Knight's service', at the rent of ten pounds yearly payable to the Crown.'

55. It may be noted that this charter reserved, as the treaty of 1661 had done, to'the inhabitants of the said Island' the free exercise of the Roman Catholic religion,''and further also that the said inhabitants, and other our subjects in the said Port and Island, shall and may peaceably and quietly have, hold, possess, and enjoy all their several and respective properties, privileges, and advantages whatsoever which they lawfully had or enjoyed, or ought to have had or enjoyed, at the time of the surrender of the said Port and Island to us as aforesaid, or at any time since, anything in these presents contained to the contrary notwithstanding.'

56. On the basis of the provisions of this Charter, the learned Advocate-General stated that the Crown had granted the Port and Island of Bombay to the London Company as it was then called as 'absolute Lords and Proprietors' thereof on a Socage tenure reserving an yearly rent of ten pounds and that the Crown had thereby retained the over-lordship in the nature of reversion over the Town and Island of Bombay in itself. The learned Advocate-General then invited our attention to the 'Law of Real Property' by Megarry, and Edition, for the purpose of showing as to what was really meant by Socage Tenure. At page 19 of that Book, the learned Author says as follows:

'This was the commonest form of socage tenure and ultimately became the commonest tenure of all. All free tenure was common socage unless proved to be one of the others, and it is defined not by what it is but by what it is not. Any type of service might be reserved, though generally it was some agricultural service which was fixed both as to nature and amount, e.g., so many days' ploughing each year. By the end of the fifteenth century most of these services had been commuted for money payments, often known as 'quit rents', for the tenant thereby went quit, or free, from his services'.

On the basis of this passage, the learned Advocate-General urged that the London Company to whom the Charter was granted held the Port and Island of Bombay in free and common socage on 'quit rent' basis in the sense that the Company had not to render any services to the Crown in consideration of the grant. Our attention was then invited to the first one of two fundamental doctrines in the Law of Real Property in England asenunciated by Megarry in his aforesaid Book at page 15 which is as follows:--

'(i) The doctrine of tenures: all land is held of the Crown, either directly or indirectly, in one or other of the various tenures;' The learned Advocate-General relied upon this doctrine to show that all land in the territory of the British Crown belonged to the Crown in the first instance and that the subject to the Crown will be holding such land, either directly or indirectly, only in one or the other of the various tenures. He also relied upon the second doctrine enunciated by Megarry in his said Book on the same page and that doctrine is as follows: --

'(ii) The doctrine of estates: a subject cannot own land, but can hold it as tenant for an estate, that is to say for some period of time.'

On the basis of this doctrine, the learned Advocate-General urged that the estate that was granted to the Company by the. Charter of 1668 as and by way of free and common socage was an estate in fee simple and such estate was always held under the Crown. He further urged that the interest which remained in the Crown after the grant was made to the Company was in the nature of a reversion which was such part of the grantor's interest as was not disposed of by his grant. The Advocate-General contended that for the sake of brevity it might be said that the lordship over the Port and Island of Bombay in the nature of an estate in fee simple was granted by the Crown to the London Company by the said Charter and that the over-lordship in the shape of reversion over the same was reserved by the Crown. This position, it may be noted, was not contested by Mr. Madon, the learned Counsel for the respondents. In support of the doctrine that no land is the subject of ownership but of tenure, the learned Advocate General cited paragraph 276 at page 207 of Halsbury's Laws of England, Vol. 32, 3rd Edition, which is as follows: --

'Technically land is not the subject of absolute ownership, but of tenure. According to the doctrines of the common law there is no land in England in the hands of a subject which is not held of some lord by some service and for some estate; and this tenure is either under the Sovereign directly, or under some mesne lord, or a succession of mesne lords, who, or the first of whom, holds of the Sovereign. Thus the Sovereign is Lord Paramount, either mediate or immediate, of all land within the realm. The tenure of land is based upon the assumption that it was originally granted as a 'feud' by the Sovereign to his immediate tenant on condition of certain services, and, where there has been subinfeudation, that the immediate tenant, in turn regranted it; and although for most purposes this system, known as the 'feudal system' has lost its practical importance., it still determines the form of property in land.'

The learned Advocate-General also referred us to paragraph- 364 at page 259 of the same Volume of Halsbury's Laws of England which deals with the nature of 'fee simple absolute'. That paragraph runs as follows:

'An estate, in fee simple approaches as near to absolute ownership as the system of tenure will allow; when absolute and in possession it is the only estate of 'freehold' which can now subsist atlaw.

Relying on this passage, the learned Advocate-General urged that what the London. Company had acquired by virtue of the Charter was an estate in fee simple absolute in the Port and Island of Bombay and the Company could not be said to be the absolute owner thereof in the sense that the Crown had parted with all its interests in respect thereof.

57. The learned Advocate-General also relied upon certain passages in Cheshire's Modern Real Property, 7th Edition, at page 27, under the heading 'the Doctrine of the Estate' and at pages 30 and 32 dealing with the features of the doctrine of the estate and the estate in fee simple. Under the heading 'the doctrine of the estate', the learned Author at page 27 says as follows: --

'Tenure signifies the relation between lord and tenant, and what it implies is that the person whom we should naturally call the owner does not own the land, but merely holds it as tenant of the Crown or of some other feudal superior. But then the question arises, what are the proprietary rights, if any, of the tenant? In statutes, in judicial decisions and in common speech he is always described as a 'landowner', but we may well ask what it is that he owns.'

The answer to this question is given by the learned Author at page 30 in the following words: --

'What, then, emerges so far, is that the land itself cannot be the subject-matter of ownership, though the person entitled to its seisin is fully protected. But is there nothing that such a person can be said to own? The answer made by English law is unique. The person entitled to seisin owns an abstract entity, called an estate, which is 'interposed between him and the land .....This estate entitles its owner to exercise proprietary rights over the land for the prescribed period, subject to observance of the tenurial duties, and it may be disposed of as freely as any other subject-matter of ownership. This doctrine, as will be explained later, is not confined to the case where a man is entitled to immediate seisin. If he is definitely entitled to it at some future time, he is equally the owner of an estate.' The learned Author then sets out at the bottom of page 30, two phenomena of great significance which emerged during the development of the doctrine of estate by the common law as follows: --'First, estates vary in size according to the time for which they are to endure. On this basis they are classified as estates of free hold and estates less than freehold.

Secondly, several different persons may simultaneously own estates in the same piece of land.' The learned. Author then explains at page 32 what an estate of freehold means. An estate is said to be freehold when the length of its duration is uncertain. This kind of estate is, however; divided into two classes, namely, 'free-holds of inheritance', i.e., estates which may devolve upon successors (heirs) and 'free-holds not of inheritance'. Again 'free-holds of inheritance' are shown to be of two classes (i) Estate in fee simple and (a) estate in fee tail, and 'free-holds not of inheritance' are also divided into two classes (1) estates for life, and (2) estate purature vie. The learned author has thus specified three classes of free-hold estate, (1) estate in fee simple, (2) estate in fee tail and (3) estate for life including the estate purature vie., The estate in fee simple is thereafter described, by the learned author on the same page in the following words:--

'The fee simple is the largest estate in point of duration, since, being one that is granted to a man and his heirs, it will last as long as the person entitled to it for the time being dies leaving an heir, and therefore it may last for ever in the sense that it may never pass to the Crown for want of an heir. The word 'fee' denotes its inheritability, and the word 'simple' indicates that it is inheritable by the general heirs of the owner for the time being whether they be ascendants, descendants or collateral'.

These passages were relied upon by the learned Advocate-General to explain to us the kind of estate that the London Company had acquired in the Port and Island of Bombay under the Charter of 1668 and to show the kinds of estate that the law of Real Property in England had recognised, one of such estates being an estate in fee simple. He urged that the same law applied also to the land situated within the Port and Island of Bombay and this law was incorporated in Conveyance of Land Act 31 of 1854 which came Into force on 16th December, 1854. The preamble of this Act which was relied upon by the learned Advocate-General in this behalf runs as follows:--

'Whe reason it is expedient in cases to which the English Law applies, to abolish real actions and also fines and common recoveries, and to simplify the modes of conveying land, .... According to the learned Advocate-General, the preamble of the Act as quoted above indicated that it was the English Law of Real Property which applied to the lands situated within the Port and Island of Bombay and that accordingly, when a conveyance was executed in relation to any such, land, by virtue of Section 16 of the said Act, such conveyance only conveyed an estate in fee simple. Section 16 of the Act runs as follows : -- 'It shall not be necessary in any deed relating to immovable property situate within the said territories (territories in the possession and under the Government of the East India Company) to be executed after the passing of this Act, to add words of limitation to heirs, when the intention is to give the absolute interest to a person and his heirs general; but a gift, grant, or other conveyance of immoveable property to, or in favour of any person, shall be taken to give him the entire and absolute interest in the nature of an estate in fee simple, unless such construction is rendered inadmissible by the other contents of the deed.' Section 18 of the Act makes it clear that 'nothing in the Act contained shall extend to any case to which the English. Law is not applicable'.

58. As observed above, the learned Advocate-General, in View of the aforesaid provisions of the Conveyance of Land Act, 1854 urged that even where the East India Company or for thatmatter, the Governor-General-in-Council, transferred any land within the Port and Island of Bombay to any one by a deed of conveyance, the estate that would be conveyed would only be an estate in fee simple and not absolute ownership and that accordingly, the conveyance which was executed by the Governor-General-in-Council inthe present case in favour of the respondents was one which only conveyed an estate in fee simple in the lands which were the subject matter of the conveyance to the respondents and that the paramount right in the lands continued with the Crown.

59. In view of the aforesaid authorities, the learned Advocate-General urged that the London Company under the Charter of 1668 had really acquired an estate in fee simple in respect of the lands situated within the Port and Island of Bombay, that this estate was in the nature of a freehold and that the free hold reversion continued to vest in the Crown. The learned Advocate-General further contended that there was no merger of the interests of the Crown and those of the East India Company in the lands situated within the Port and Island of Bombay at any time and the interest of the Crown continued to be retained by it until it devolved upon the Provincial Government under the provisions of the Government of India Act, 1935. On the other hand, it was urged by Mr. Madon, the learned Counsel for the respondents that such merger was brought about by the Act of 1833 (See 3-4 William IV Ch. 85). The provisions of that Act on which Mr. Madon relied are as follows: --

'Be it therefore enacted by the King's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That from and after the Twenty-second day of April, One thousand eight hundred and thirty-four the Territorial Acquisitions and Revenue mentioned or referred to in the said Act of the Fifty-third year of His late Majesty King George the Third, together with the Port and Island of Bombay, and all other territories now in possession and under the Government of the said Company, except the Island of St. Helena, shall remain and continue under such Government until the thirtieth day of April one thousand eight hundred and fifty-four; and that all the lands and hereditaments, revenue, rents, and profits of the said Company, and all the stores merchandize. Chattels, Monies, Debts, and Real and Personal Estate whatsoever, except the said Island of St. Helena, and the Stores and Property thereon hereinafter mentioned subject to the Debts and, Liabilities now affecting the same respectively, and the benefit of all contracts, covenants and engagements, and all rights to fines, penalties, and forfeitures, & other Emoluments whatsoever, which the said Company shall be seised or possessed of or entitled unto on the said twenty-second day of April one thousand eight hundred and thirty-four, shall remain and be vested in and be held, received, and exercised respectively, according to the nature and quality,estate and interest of and in the same respectively, by the said Company, in trust for His Majesty, His Heirs and Successors, for the service ofthe Government of India, discharged of all claims of the said Company to any profits or advantage therefrom to their own use, except the dividend on their capital stock, secured to themes hereinafter is mentioned, subject to such power and authorities for the superintendence, direction and control over the acts operations and concerns of the said Company as nave been already made or provided by any Act or Acts of Parliament in that behalf, or are made or provided by this Act' It will appear from these provisions that all that belonged to the East India Company at the date of that Act was ordained to be held by that Company not for its own benefit, advantage or use but in trust for His Majesty, His Heirs and Successors for the service of the Government of India. The Port and Island of Bombay was one of the territories then in possession and under the Government of the East India Company and, as has been already observed, the kind of estate that the Company had in the Port and Island of Bombay was only an estate in fee simple. By virtue of these provisions, this estate in fee simple only was ordained to be held by the Company in trust for His Majesty, His Heirs and Successors for the service of the Government of India. It was not as if the estate which belonged to the East India Company was resumed by the Crown and the East India Company was thereafter ordained to hold in trust the Port and Island of Bombay for and on behalf of the Crown for the service of the Government of India. Accordingly, in our opinion, there was no merger of the interests of the Crown with those of the East India Company in the Port and Island of Bombay, under the Act of 1833 as contended for by Mr. Madon.

60. Mr. Madon then contended that at any rate by the Act of 1858 which removed the trusteeship of the East India Company with reference to the territories held by it in trust for His Majesty, His Heirs and Successors for the service of the Government of India, there was a complete merger of the interests of the East India Company with those of the Crown in the Port and Island of Bombay. Mr. Madon in support of this contention relied upon Section 2 and Section 39 of that Act. Section 2 provided that India shall be governed as from the date of that Act by and in the name of Her Majesty. That section runs as follows :

'India shall be governed by and in the nameof Her Majesty, and all Rights in relation to anyTerritories which might have been exercised by thesaid Company if this Act had not been passed shalland may be exercised by and in the name of HerMajesty as Rights incidental to the Government ofIndia; and all the Territorial and other Revenuesof or arising in India, and all Tributes and otherPayments in respect of any Territories which wouldhave been receivable by or in the Name of the saidCompany if this Act had not been passed, shall bereceived for and in the Name of Her Majesty, andshall be applied and disposed of for the Purposesof Government of India alone, subject to the Provisions of this Act.'

Section 39 of that Act provided for the transfer of property held by the East India Company at the date of the Act. That section runs as follows:

'All lands and Hereditam(sic)ts, Monies, Stores, Goods, Chattels, and other Real and Personal Estate of the said Company, subject to the Debts and Liabilities affecting the same respectively, and the Benefit of all Contracts, Covenants, and Engagements and all Eights to Fines, Penalties, and For-feitures, and all other Emoluments which the said Company shall be seised or possessed of, or entitled to at the Time of the Commencement of this Act, except the Capital Stock of the said Company and the Dividend thereon, shall become vested in Her Majesty to be applied and disposed of, subject to the Provisions of this Act for the Purposes of the Government of India.'

Here again, it will be observed, all that had belonged to and was in the possession of the East India Company became vested in Her Majesty to be applied and disposed of for the purposes of the Government of India. There is, however, no specific provision anywhere in this Act to the effect that the paramount interest of the Crown in the Port and Island of Bombay had merged with the interest of the East India Company therein, for being applied and disposed of for the purposes of the Government of India. Section 2 of that Act, however which has been quoted above, uses the word 'India' and that would presumably include all the territories which constituted India as belonging to Her Majesty. For the purposes of the Government of India, it can well be said that the over-lordship in regard to the Port and Island of Bombay which continued to remain in the Crown until the Act of 1858, merged with the interest of the East India Company therein and the Port and Island of Bombay formed one of the territories of India, which was thereafter to be governed by and in the name of Her Majesty. In our opinion, therefore, the Socage tenure on which the Port and Island of Bombay was granted to the London Company by the Chatter of 1668 came to an end in 1858 and there was no question of any over-lordship in respect thereof continuing in the Crown thereafter. If we are, right in this conclusion, we must negative the learned Advocate General's contention that the over-lordship over the Port and Island of Bombay continued in the Crown until by implication it devolved on the province of Bombay under the Government of India Act of 1935. The learned Advocate General conceded that there was no provision in the Act of 1935 transferring the over-lordship of the Crown to the Provincial Government. According to him, however, the transfer of power to legislate about land and land revenue to the Province of Bombay contemplated by the Government of India Act of 1935, implied the transfer of over-lordship over the Port and Island of Bombay to the Provincial Government. He urged that as a matter of fact, as far back as 1861, the India Councils Act, 1861, which empowered the Government of India to make laws inter alia for land and land revenue, implied the transfer of over-lordship over the Port and Island of Bombay to the Government of Bombay. We are afraid however, we cannot accept this contention of the learned Advocate General. The transfer of power to legislate about land and land revenue, in our opinion, has no concern with the over-lordship of the Crown in respect of any of the territories of India. Besides, there was nothing like Province of Bombay in 1861 whenthe India Councils Act was passed, nor was there anything like the Province of Bombay when the Bombay City Land Revenue Act of 1876 was passed. It was conceded at the Bar that until the Government of India Act of 1935 came into force the Government of India was unitary and all the laws of the land were passed by the Government of India. Section 36 of the India Councils Act of 1861 empowered the Indian Government to make laws inter alia with reference to lands and land revenue, and it appears that it was by virtue of this power that the Bombay City Land Revenue Act of 1876 and the Bombay Land Revenue Code of 1879 were passed. We, therefore, hold that since the Act of 1858 to which we have referred, the entire interest of the Crown in the Port and Island of Bombay was held by the Government of India and that, there was no question of over-lordship devolving upon the Provincial Government either under the India Councils Act, 1861, or under the Government of India Act of 1935.

61. It may be observed that the question as regards the Socage tenure with reference to the Port and Island of Bombay was raised by the learned Advocate General for the purpose of showing that the lands held by the respondents in this case were really held by them under the Provincial Government inasmuch as the over-lordship of the Crown in respect of the territories within the Port and Island of Bombay had devolved upon the Provincial Government at any rate on the passing of the Government of India Act of 1935. This argument was adopted by the learned Advocate General on the footing that the expression 'a person having the highest title under the Provincial Government' as used in Section 3(4) of the Bombay City Land Revenue Act, 1876, was capable of being literally construed to mean that such person derived his title from and held it under the Provincial Government. As we have held, however, that there was no kind of subsisting over-lordship as existed between the Crown and the East India Company after the Act of 1858, there was nothing to devolve upon the Provincial Government when the Government of India Act, 1935, was passed and, therefore, on the literal construction of the expression 'a person having the highest title under the Provincial Government' as used in Section 3 (4) of the Bombay City Land Revenue Act, 1876, it could not be said that the respondents held the lands in the suit under the Provincial Government.

62. Assuming, however, that there was any such kind of over-lordship subsisting in the Crown over the territories situated within the Port and Island of Bombay, until the Government of India Act, 1935, was passed, in the absence of any specific provision in that Act transferring this over-lordship to the Provincial Government, the Provincial Government could not be said to be the overlord of the lands in suit, so that the respondents could be said to hold the same 'under the Provincial Government'. The over-lordship in that event would continue to remain in the Crown and the utmost that may be said would be that the respondents held the lands only under the Crown.

63. The position in this behalf would not, in our opinion be any different if the Central Government had in them the lordship as distinct fromover-lordship over the lands in suit, as was alternatively contended by the learned Advocate General, in consequence of an estate in fee simple, which is the highest estate known to English law, having been created in favour of the respondents in respect of those lands by the conveyance dated 15th March 1938. There being admittedly no provision in the Government of India Act, 1935, for transfer of such lordship to the Provincial Government, the respondents cannot be said to hold those lands 'under the Provincial Government'.

64. The second line of argument that was advanced by the learned Advocate General was that it was the Crown which was the owner of all the lands and territories under its domain and that, therefore, irrespective of any tenure upon which such lands and territories in the Port and Island of Bombay might have been granted by the Crown to the London Company in 1668, it was prerogative right of the Crown to claim the ownership of all those lands and territories. Among the prerogatives of the Crown, one is that the Crown is the supreme owner of all the lands within its territories as stated at page 8 of the 5th edition of Medley's Constitution. Mukherjee on Indian Constitution also describes the several prerogatives of the Crown at page 356 and one of those prerogatives is said to be 'lordship of the soil'. Dandekar in his Law of Land Tenures, Vol. I, at page 564, says as follows :

'On reading the definition of the expression 'superior holder' in the Act (the Bombay City Land Revenue Act, 1876) certain points are suggested which may be noted down here. The use of the words 'highest title under the Government' suggests the assumption on the part of Government that the paramount title (fee simple) is vested only in Government, and that the subjects have merely a subordinate interest in their lands--have merely an estate in their lands. It may be said that this assumption on the part of Government is quite in keeping with the theory prevailing in British India that, generally speaking, the State is the owner of all land, and that, its holders are occupants.'

65. Then again, at page 575, the learned Author says as follows : --

'Liability to pay land revenue to Government is the normal condition of land in India. As in the mofussil so in the City itself every bit of land is liable to pay rent or assessment to Government. This principle is not plainly stated in the Land Revenue Act (Bombay) but is impliedly mentioned in Section 8 of the said Act. The said principle had been asserted throughout India and may be said to constitute the basis of the revenue policy of the Government. To assess land is spoken to be the inherent right of the Sovereign.'

66. Thus, there is no doubt that one of the prerogatives of the Crown is that it is the owner of the soil in respect of all the lands situated within its territories, and that the subjects can only have an estate in the lands and can never claim to be the absolute owners thereof. The other prerogative of the Crown is to assess lands in the hands of its subjects obviously because the Crown would not be able to run the Government of its territories except with the help of the land revenue that itmight collect from its subjects. The learned Counsel for the respondents did not contest that the Crown had these prerogatives, but he urged that the expression 'under the Provincial Government' as used in Section 3 (4) of the Bombay City Lands Revenue Act, 1876, had to be only literally construed and that, therefore, it was not proper to say that the respondents held the lands in suit under the Provincial Government on the basis of the prerogative of the Crown that it was the owner of all the lands. It was urged that in order that a per-son might be said to hold land under the Provincial Government, the Provincial Government must be the owner of the land both in fact and in law and such person must derive his title to that land from the Provincial Government as where the Provincial Government granted the land to him on some tenure.

67. It was not disputed at the Bar that lands in suit were originally granted on foras tenure. By the Foras Act No. VI of 1851 the rights of the East India Company in all such lands were extinguished in favour of the persons who held the same as the immediate rent-payers to the company save and except the rents that were severally payable in respect of such lands which were to continue to be payable and recoverable by distress or by any means by which land revenue in Bombay was then recoverable under any Act or regulation and all rights of forfeiture and escheat for want of heirs or representatives, or on account of felonies committed or otherwise. It will thus be seen that the lordship which was granted to the East India Company by the Crown over the Port and Island of Bombay was considerably curtailed in favour of the occupants of these lands situated in the Port and Island of Bombay and that the only rights which remain-ed in the East India Company were those relating to the recovery of the rent, escheat and forfeiture. It may be noted that this Act was apparently passed with a view to securing permanency of tenure to the occupants of the foras lands. By the Act of 1858, as already observed above, these rights of the East India Company were transferred to Her Majesty to be utilised for the purposes of the Government of India and the over-lordship of the Crown in respect of these lands thereby became merged with the lordship of the East India Company and the only outstanding interests in those lands were those which had remained with the occupants of those lands. The lands in suit as well as several other lands belonging to the same tenure were, however, acquired by the Government for the use of B. B. and C. I. Railway during the period 1864-66. Whatever rights the occupants of these lands had' therein were thereupon extinguished and the Government which was then being carried on in the name of Her Majesty became the absolute owner of all those lands. The Supreme Court in Mistri's case : [1955]1SCR1311 has pointed out that on the acquisition of these lands the provisions of Foras Act ceased to apply and there was no rent to be paid to the Government in respect of those lands because the Government itself had acquired those lands. Besides, the Foras Act of 1851 was itself repealed in 1870. There was, of course, a provision made in the Repealing Act that whatever rights the Government of India, which had steppedinto the shoes of the East India Company had in respect of the lands governed by the Forage Act of 1851 were preserved and one of such rights was to recover the rents which were being paid to the East India Company and later to the Governmentof India in respect thereof. But this saving provision of the Repealing Act only applied to thoselands which were not acquired by the (Governmentunder the Land Acquisition Act. Inasmuch as, however, the lands in the suit were acquired by theGovernment for the use of the B. B. and C. I. Railway as stated above, the provision of the Repealing Act relating to the saving of the rights ofthe Crown did not apply to them, nor would that provision be revived in the event of the Government transferring any of those lands to any member of the public even by an outright sale. The Supreme Court has made this position abundantlyclear in its judgment in Mistri's case : [1955]1SCR1311 .

68. Turning once again to the question of the devolution of the prerogative right of the Crown to be the owner of all the lands within its territoryand the prerogative right of the Crown to assess all lands, the learned Advocate-General contended thatthe right to assess lands was eventually transferred to the Provincial Government by the Governmentof India Act of 1935. In this connection, he invited our attention to Section 100 of that Act which runs follows : --

'(1) Notwithstanding anything in the two next succeeding Sub-sections, the Dominion Legislature has and a Provincial Legislature has not,power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the 'Federal Legislative List').

(2) Notwithstanding anything in the next succeeding Sub-section, the Dominion Legislature, and subject to the preceding Sub-section, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereafter called the 'Con-current Legislative List').

(3) Subject to the two preceding Sub-sectionsthe Provincial Legislature has, and the Dominion Legislature has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II in the said Schedule (hereinafter called the 'Provincial Legislative List').

According to these provisions the Legislative powers of the Crown were distributed between the Federation and the Provinces. The Provincial Legislature was given the exclusive power to legislate for the province or any part thereof on any of the matters enumerated in List II in the Seventh Schedule. Item 39 in this List is as follows : --

'Land Revenue, including the assessment andcollection of revenue, the maintenance of land re-cords, survey for revenue purposes and record ofrights, and alienation of revenue.'

By Adaptation of Laws Order, 1937, the words 'under the Government' occurring in Section 3(4) of the Bombay City Land Revenue Act, 1876, weresubstituted by the words 'under the ProvincialGovernment' and this amendment also came intoforce on 1st-April 1937 on which date the Government of India Act, 1933, came into force, with theresult that the Bombay City Land Revenue Act,1876, came to be regarded as having been passedby the Provincial Legislature of Bombay in exercise of its powers under Section 100 of the Government of India Act, 1935, quoted above. It wasurged by the learned. Advocate General that alongwith this power to legislate with regard to landrevenue, there devolved on the Provincial Government the prerogative right of the Crown with respect of its ownership over all the lands situated inthe province, that accordingly the Central Government which held the lands in suit on 1st April1937 held the same under the Provincial Government and further, that after these lands weretransferred by the Central Government to the respondents, the respondents started holding the saidlands under the Provincial Government for the purposes of the Bombay City Land Revenue Act, 1876.In support of this argument, the learned AdvocateGeneral invited our attention to Section 154 of theGovernment of India Act, 1935, which runs asfollows :--

'Property vested in His Majesty for purposes of the Government of the Dominion shall save in so far as any Dominion law may otherwise provide, be exempt from all taxes imposed by, or by any authority within a province or Acceding State;

Provided that, until any Dominion law otherwise provides, any property so vested which was immediately before the commencement of Part III of this Act liable, or treated as liable, to any such tax, shall, so long, as that tax continues, continueto be liable, or to be treated as liable, thereto.'

The learned Advocate General in the light of these provisions contended that the legislative power of the Provincial Legislature to levy assessment even upon the property vested in His Majesty for the purposes of the Government of the Dominion was recognized by Parliament and that, but for the exemption provided by Section 154 of the Government of India Act, 1935, all such property would be liable to be assessee in pursuance of the relevant legislation passed by the Provincial Legislature. On the other hand, it was contended by Mr. Madon, the learned Counsel for the respondents, that the provision contained in Section 154 was only made as a matter of abundant caution, for it was axiomatic that the property held by the Central Government could never be the subject-matter of assessment by any Provincial Government. It was further urged that a Government was not bound by any Statute much less a taxing Statute and that therefore, so long as the property was held by His Majesty for the purposes of the Government of the Dominion, it was not liable to be assessee to any tax by any Provincial Government in pursuance of any enactment passed by the Provincial Legislature. We are afraid, we cannot accept this contention. The prerogative right of the Crown to assess the lands within its territory was distributed between the Federal Government and the Provinces according as the lands were situated within the territories of the Federation or of Provinces. The Provincial Government accordingly had full and absolute power, in our opinion, to assess lands within its own territory even if such lands wereheld by His Majesty for Federal purposes. The wording of Section 154 in our judgment makes this position quite clear and it was not as if the provision was made as matter of any abundant caution as urged by the learned Counsel for the respondents. This position seems to have been made much clear by the proviso to Section 154 which says that if any property so vested in His Majestywas liable to any tax immediately before the commencement of Part III of that Act, it shall continue to be liable to such tax so long as that tax continued until any Dominion law provided to the contrary. The argument advanced by Mr. Madon thatthe property vested in His Majesty for the purposesof the Federation was always exempt from the Provincial tax, does not, therefore, appear to besound.

69. A reference in this connection may bemade to In the matter of Allocation of Lands and Buildings in a Chief Commissioner's Province . That was a reference made by His Excellency the GovernorGeneral under Section 213 of the Government of India Act, 1935, and one of the questions referred to for the opinion of the Federal Court was as follows : --

'Does Sub-section, (1) of Section 172 of theGovernment of India Act, 1935, and in particular clause (b) thereof, make provision for the allocation of lands and buildings situate in a Chief Commissioner's Province which, immediately before the commencement of Part III of the said Act, were vested in His Majesty for the purposes of the Government of India and were used either wholly or in part for purposes which thereafter became purposes of the Government of a Governor's Province, and, if so, in what manner ?'

The answer to this question was that Section 172(1)(b) did not make any provision for the allocationof such lands and buildings. While dealing withthis question Gwyer C. J. observed at page 30 (of FCR) : (at p. 18 of AIR) as follows :--

'We desire in conclusion to draw attention to entry No. 10 in List I of the Seventh Schedule and to entry No. 8 in List II. The entry in List 1gives the Central Legislature the power to legislatewith respect to work, lands and buildings vested in,or in the possession of, His Majesty for the purpose's of the Federation, but, as regards propertysituate in a province, subject always to Provincial legislation save in so far as a federal Law otherwiseprovides.'

These observations make it clear that the Provincial Legislature is supreme in its power to legislate in respect of any property situated within its territories irrespective of whether such property belongs to private individuals or is held by His Majesty for the purposes of the Federation. In case of property vested in or in the possession of His Majesty for the purposes of the Federation but situated in a province, it is only the Federal law which can provide exemption or protection from the operation of any Provincial legislation with respect thereto. But for such law, such property would be treated for the purposes of the Provincial legislation as if it was the property of a private individual in the same way as a property vested in His Majesty for the purposes of a province but situated.outside the province would be regarded as if it was owned by a private individual. Gwyer C. J. has made some observations in this connection in the aforesaid case at page 31 (of FCR) : (at p. 18 of AIR) which are as follows :--

'If by reason of any provisions of Section 173 or Section 173, lands or buildings are vested in His Majesty for the purposes of a Province outside the territorial limits of the Province, the rights of the Provincial Government over them are analogous to those of a private owner.'

Thus it seems to be clear that the provisions of Section 154 of the Government of India Act were not enacted as a matter of abundant caution as contended by Mr. Madon, the learned Counsel for the respondents. The provisions were necessary to be made in order to protect the property vested in His Majesty for the purposes of the Federation but situated in a Province from any taxing Statute that might be passed by the Provincial Legislature. As a matter of fact, in our opinion. Section 154 of the Government of India Act, 1935, plainly recognises the right of the Provincial Government to tax all lands situated within its territory through appropriate legislation corresponding to the prerogative right of the Crown to levy assessment upon lands situated within its territories. Accordingly, so long as the lauds in suit were held by the Central Government after the Government of India Act, 1935 came into force, the Provincial Government could claim the same prerogative right of the Crown over these lands for the purposes of any land revenue that might be imposed by the Provincial Government upon these lands.

70. Now, coming to the provisions of the Bombay City Land Revenue Act, 1876, it was urged by the learned Advocate General that Section 8 of that Act empowered the Collector to fix and levy assessment for land revenue presumably on all the lands situated within the City of Bombay, because it says : 'it shall be the duty of the Collector subject to the orders of the Provincial Government to fix and levy the assessment for land revenue.' He urged that the other two paragraphs of that section deal with the limitation of the right of the Provincial Government to assess. These two paragraphs are as follows : --

'When there is no right on the part of the superior holder in limitation of the right of the Provincial Government to assess, the assessment shall be fixed at the discretion of the Collector subject to the control of the Provincial Government.When there is a right on the part of the superior holder in limitation of the right of the Provincial Government, in consequence of a specific limit to assessment having been established and preserved the assessment shall not exceed such specific limit.'

According to the learned Advocate-General, these two paragraphs make it clear that except where there is any right on the part of the superior holder in limitation of the right of the Provincial Government to assess in consequence of a specific limit to assessment having been established and preserved, the Provincial Government had an unfettered right to levy assessment upon all the lands situated within the City of Bombay. He further urgedthat the reference; to the expression 'superior holder' in these two paragraphs did not really mean that the lands were to be assessee only in cases where the superior holder as defined in Section 3 (4) of the Act held the highest title thereto directly under the Provincial Government, as if the Provincial Government was the owner thereof in fact and in law and had by a deed of conveyance or otherwise transferred those lands to him. If we remember that the lands in the City of Bombay were originally granted by the Portuguese Government and recognised by the London Company and its successor the East India Company, and the East India Company itself had granted some other lands including those reclaimed from the sea to different persons on different tenures, such as pension-and-tax and Foras tenures, and that the occupants of lands despite the abolition of the tenures on which they were held continued to be liable to pay the same amount of rent or assessment to the Government as they were liable to pay under the terms of their respective tenure by reason of a saving provision made in the Statute abolishing the tenures, the reason underlying the last paragraph of Section 8, as quoted, would be better appreciated. It is an admitted fact that the lands in question, along with several others, were originally granted to the occupants on Foras tenure in consideration of certain amount of rent. Although the Foras Act, 1851, which extinguished the free-hold reversion of the East India Company in these lands except, of course, their right to the rents, escheat and forfeiture, as already observed in the earlier part of the judgment was abolished in 1870, the right of the Government to recover these rents as well as the liability of the occupants to pay those rents were preserved. In case of such lands, the occupants could plead and establish a limitation upon the right of the Provincial Government to levy assessment on the lands in their possession and urge that the Provincial Government was not entitled to levy any assessment higher than what they were already paying prior to the Act of 1935 or even prior to the abolition of Foras Act of 1851, in 1870 to the then Government. But where the lands, though, originally granted on Foras tenure, ceased to be governed by that tenure by reason of the acquisition thereof by the Government, as in the present case, neither the Central Government nor any person deriving title thereto from the Central Government could contend that there was any limitation upon the right of the Provincial Government to levy assessment upon those lands. On a true construction of Section 8 of the Bombay City Land Revenue Act, 1876, therefore, we hold that the Collector has the power and duty to levy assessment for land revenue upon all the lands situated in the City of Bombay without reference to any superior holder, subject of course, to the right on the part of any superior holder in limitation of the right of the Provincial Government to assess in consequence of a specific limit to assessment having been established and preserved.

71. It was, however, urged on behalf of the respondents that it was open to the Crown to put fetters upon its own prerogative to assess the land and that by the definition of 'superior holder' as given in Section 3 (4) of that Act, the ProvincialGovernment had limited its right to levy assessment only from such superior holder who held the highest title derived from the Provincial Government. In other words, it was urged that before the Provincial Government could levy any assessment on any land in the City of Bombay, it had to establish its ownership over that land in the legal sense of the term and not by virtue of any prerogative of the Crown, and then further to establish that it had transferred the lands to some person upon some tenure so that the said person could thereupon be said to have derived title from the Provincial Government, and consequently liable to assessment. In support of this argument, our attention was invited to Section 10 of the Act, which deals with liability for land revenue and it was urged that it was the superior holder who was primarily liable in person and property for the land revenue due upon the holding, and it was, only in his absence that the person actually in possession was so liable. Our attention was also invited to the provisions of Section 9 of the Act, and it was urged that the settlement of the assessment of each land to land revenue was to be made with none else but with the superior holder thereof and it was only when the superior holder was absent and! had left no authorised agent in Bombay or if there was a dispute as to who was entitled to be considered as a superior holder of the land that the settlement would be made with the person actually in possession of the land and the assessment so fixed would be binding upon the rightful superior holder of the land. It was further urged that under that section any payment made by the person in possession would be deemed to have been made or behalf of the superior holder. It may, however, be observed that the same section further provides that in any case wherein the superior holder or the person in possession cannot be readily ascertained the Collector shall give notice calling on all persons claiming the right of a superior holder in or over the said land or a right to the possession thereof to intimate such claim to the Collector at the Collector's office. It also provides that if no person asserts such right by intimation to the Collector at the Collector's office within twenty-one days from the date of such notice, the Collector may assess such land at his discretion and the superior holder and every person then or thereafter in possession of the land shall be liable accordingly. These provisions, in our opinion, show that the liability to assessment is attached to the land and the section only provides how the assessment is to be settled and recovered. The learned Advocate-General invited our attention to Section 13 of the Act, which provides for the action that the Collector might take in the event of default being made in the payment of land revenue. That Section inter alia provides as follows: --

'If the superior holder or person in possession, as the case may be, shall, for the space of twenty-one days after service of written notice of demand of payment, fail to discharge the revenue due, it shall be lawful for the Collector to levy the same by attachment and sale of such portion of the land! on which the revenue is due or of such portion of any other property, moveable or immoveable, o the defaulter, as may be required to satisfy the demand.If the sale of the defaulter's property shall not produce satisfaction of the demand, it shall be lawful for the Collector to cause him to be apprehended and confined in the civil jail under the rules in force at the Presidency for the confinement of debtors, for which purpose a certificate of demand under the Collector's signature sent with the defaulter shall be the Sheriff's sufficient warrant, equally with the usual legal process in ordinary cases of arrest in execution of judgment for debt'.

72. It was urged by the learned Advocate-General that if the right of the Provincial Government to assess land was only confined to a superior holder in the sense that such holder derived title only from the Provincial Government, it was unthinkable that some occupant of the land in case of default in payment of land revenue, should he liable to be apprehended and put in jail. According to him, this penal provision of the Act clearly indicated that the liability to pay land re-venue was not confined only to a superior holder in the sense contended for by the respondents. If the liability to pay land revenue was only confined to a person having the highest title to land derived from the Provincial Government, there could not possibly be any reason why the occupant of the land should be penalised for the default in payment of land revenue.

73. In our opinion, the contention raised on behalf of the respondents that the Provincial Government had limited its rights to levy assessment from such superior holder, who held the highest title (to land) derived from the Provincial Government is not worthy of acceptance. As we have already held above, on a true, construction of Section 8 of the Bombay City Land Revenue Act, 1876, the Collector has the power and duty to levy assessment for land revenue upon all the lands situated in the City of Bombay without reference to any superior holder, subject, of course, to the right of any superior holder in limitation of the right of the Provincial Government in consequence of a specific limit of assessment having been established and preserved. Further, the section postulates the existence of a superior holder in respect of every land liable to be assessee by the Collector, and it is the superior holder alone who is entitled to plead and establish a limitation of the right of the Provincial Government to assess either wholly of in part, in consequence of a specific limit to assessment preserved to him by some Statute or terms of the grant. It must be noted that no Provincial Government with autonomy of its own existed at the time when the Bombay City Land Revenue Act, 1876, was put on the Statute Book and, therefore, there was no question of the Provincial Government granting any lands in the City of Bombay to the subjects on any tenure or otherwise, nor was there any question of the Government of that day granting any such lands to the subjects on any tenure or otherwise. The lands in the City of Bombay were already granted to the subjects on different tenures, first by the Portuguese Government and later by the London Company and its successor the East India Company, and yet the expression 'superior holder' was defined in Section 3 (4) of the Bombay City land Revenue Act as 'a person having the highest title 'under theGovernment' to any land in the City of Bombay'. Accordingly, in order to give effect to the object and provisions of that Act and not to render them nugatory, it must be held that the 'superior holder' contemplated by that Act does not mean a person having the highest title (to land) derived from the Government or the Provincial Government, as if it was the owner of the land in fact and in law, and had granted it to some person on some tenure. It must, in our opinion, mean a person having the highest title to land among several claimants thereto, and for the purpose of payment of land revenue in respect of such land such person would hold the land 'under the Government' or 'under the Provincial Government' by virtue of its prerogative right to be the owner of all lands within its territory. The proposition that as far as the liability for the payment of land revenue is concerned, all land is held from or under the Government finds support from a recent unreported judgment of this Court in Appeal No. 50 of 1959 (Byramjee Jeejeebhoy Pvt., Ltd. v. State, of Bombay) decided on 23rd February 1961 affirmed in appeal by Supreme Court in Civil Appeal No. 560 of 1962 decided on 3-4-1963. Two questions that had arisen for determination in that appeal were, firstly, whether the Salsette Estates (Land Revenue Exemption Abolition) Act, 1951, was applicable to the plaintiffs' properties in the suit, and, secondly, if it was so applicable, whether the plaintiffs' case fell under Section 3 (3) and thus entitled them to the exemption as provided in the said section. While dealing with the contention raised by the Counsel for the plaintiffs that the expression 'estate held from the State Government' was wholly inappropriate in cases where the whole title to the estate had passed on to the grantee and could only appropriately apply to cases where title was still outstanding in the Government, Mr. Justice V.S. Desai observed as follows: --

'The further submission of Mr. Mehta that the expression 'estate held from the State Government' is wholly inappropriate in cases where the whole title to the estate, has passed on to the grantee and can only appropriately apply to cases where title is still outstanding in the Government is also not correct. So far as the liability to the payment of land revenue is concerned, all land is held from the Government and any exemption in respect of the said liability can be only in pursuance of an agreement relating to the said exemption. In the context of the liability to payment of land revenue the expression 'estate held from the State Government' will be an appropriate expression to be used in case of all estates and not only in respect of such estates only the title to which vests in the Government. The contention of Mr. Mehta, that by the expression used by the legislature estates transferred absolutely to the ownership of the grantee are, not intended to be included cannot, therefore, be accepted.'

In the light of these, observations, it would be clear that so far as the assessment of any land in the City of Bombay to land revenue is concerned, a 'superior holder' having the highest title thereto would be holding it from or under the Provincial Government and it is not necessary that such 'superior holder' must derive his highest title to the land from the Provincial Government on thebasis of some tenure granted by the latter, before he can be made liable to the payment of land revenue in respect of such land.

74. It was also contended on behalf of the respondents that the settlement of the land revenue had to be done by the Collector with a 'superior holder' under Section 9 of the Bombay City Land Revenue Act, 1876, and that, therefore, it was fallacious to urge that the liability to pay land revenue attached to the land and not to the superior holder. We are afraid, we cannot accept this contention. As far back as 1902, this Court had an occasion to deal with the construction of Sections 8 and 9 of this Act in Vinayak v. Collector of Bombay, ILR 26 Bom 339. It was there contended on behalf of the appellants that Section 9 of the Act required the Collector to make the settlement with the 'superior holder', that is, to hold a discussion with him as an indispensable preliminary to the exercise of the discretionary power given to the Collector by Section 8, and that if the Collector omitted to hold that discussion and summarily gave notice of enhancement, the omission was fatal to his action and invalidated his proceeding. Chandavarkar, J., while dealing with this contention, observed at p. 352 of the report as follows: --

'No doubt Section 9 is rather obscurely worded; but words 'the settlement shall be made with the superior holder' which occur in it, read by the light of the context, seem to me to signify no more than this, that the Collector shall fix the assessment by bringing it to the notice of the person presumably, owning the land, and, therefore, liable to pay it. Section 8 arms the Collector with the discretionary power of fixing the assessment. When he fixes it in the exercise of that power, he makes a settlement of the land revenue. But then, to make the settlement binding on the land, it must be brought to the knowledge of the person owning the land, for it is he who has primarily to pay it. Therefore, Section 9 provides that the Collector shall make the settlement with the 'superior holder', if ho can be found, i.e., he must give him notice of it so as to make the settlement binding on the land, and, if he cannot be found, with the person in possession, etc. The real import of the section lies in the word 'superior holder', not in the word 'settlement'. The settlement is made under Section 8, and Section 9 points out the person to whose consciousness the settlement made under the previous section must be brought before it can be legally operative.'

Jenkins, C. J., too, expressed the same opinion at page 348 of the Report in the following words: --

'These two sections appear to me to negative the idea that the expression 'settlement of assessment' has the force for which the plaintiff contends; I think it means no more than that when the settlement is fixed, the fact shall be communicated to the superior holder'.

In that case, the plaintiff had in 1884 acquired certain waste land from the collector of Bombay, who granted it on the plaintiff's agreement to pay ground rent at one pie per square yard per annum. In the year 1899, the Collector enhanced the assessment or ground rent on the land to eight pies per square yard. The plaintiff protested against the enhancement and brought a suit against theCollector, contending that the enhancement was illegal, firstly, because he had acquired the land on a permanent tenure at a fixed assessment and, secondly, because there had been no 'settlement' with him as required by Section 9 of Bombay Act II of 1876, inasmuch as he had received no prior notice from the Collector of the intention to enhance the assessment. It was held in appeal that there was no evidence in the case to show 'that the assessment had been permanently fixed and that the words 'settlement of assessment' in Section 9 of that Act did not by themselves imply the necessity of prior notice to the 'superior holder' before the assessment was enhanced, and accordingly, the enhancement made by the Collector was not illegal. It may be observed that the grant that was made to the plaintiff in that case was really an estate of inheritance because, as long as the grantee, and after him, his heirs or assigns, paid the land revenue demanded from them, they could not be ousted. With reference to the liability of such land for the payment of land revenue, it was observed by Chandavarkar, J., at p. 350 as follows:--

'Now, when a person acquires a land from the Crown, he acquires it subject to the paramount right of the Crown to assess it for the purpose of revenue from time to time according to the exigencies of administration, unless by the grant the Crown has exempted the land from the liability. If it is not so exempted, the liability remains.' These observations of Chandavarkar, J., throwconsiderable light upon the question which we haveto decide in this case. It is true that the landsin suit were acquired by the respondents from theCentral Government in 1938 by way of an outrightsale. But it will appear from the terms of theconveyance by which they were so acquired thatno exemption from land revenue was provided forin respect of those lands. On the contrary, thereis a specific provision in the conveyance that therespondents shall be liable to pay all rents, taxes,assessment, etc., which may be levied upon thelands by any Government or local authority. Accordingly, it may safely be said that although theCentral Government was exempt from paying anyland revenue to the Provincial Government by reason of the provisions of Section 154 of the Government of India Act, 1935, the respondents immediately on acquisition of those lands from theCentral Government became liable to pay the landrevenue to the Provincial Government; and itcould not possibly be contended that they were notso liable because they were not 'superior holders'in the sense that they did not derive title to thelands' 'from the Provincial Government'. For thepurpose of land revenue, they are superior holders having the highest title to lands 'under theProvincial Government'.

75. A reference may be made to the definition of 'land revenue' as given in Section 3 (2)of the Bombay City Land Revenue Act, 1876, toshow that all the lands in the City of Bombay areliable to assessment and not only those title towhich has been directly derived from the Provincial Government. That Sub-section runs as follows : --

'The words 'land revenue' signify any sum of money legally claimable by the Provincial Government from any person on account of any land,or interest in or right exercisable over, land heldby or vested in him under whatever designationsuch sum may be payable.'

It will appear from this definition that the emphasis 'is not on the person from whom such land revenue is claimable but on the land or interest in or right exercisable over land held by of vested in some person. It was, however, contended on behalf of the respondents that the sum of money comprising the land revenue must be legally claimable by the Provincial Government and that it could be so claimable only from a 'superior holder' who would be having the highest title to land derived from the Provincial Government. We are afraid, there is no substance in this contention. The words 'legally claimable' only refer to the method by which the assessment is fixed and claimed from the 'superior holder'. They do not in out opinion, mean that it would be legally claimable only where the 'superior holder' derived his title to land from the Provincial Government. It was, further, contended on behalf of the respondents that the words 'under the Provincial Government' indicated' that there must be a subsisting relationship between the Provincial Government and the holder of the land, as, for example, of lessor and lessee, and that there could be no such relationship in case of an outright sale by the Government because the word 'under' indicated some subsisting interest in the Government. It was further urged that if all the lands within the Province of Bombay belonged to the Province on the theory that the Crown was the owner of all lands within its territories, the words 'under the Provincial Government' as used in Section 3 (4) of the Bombay City Land Revenue Act, 1876, would be redundant. Dealing with the first argument that the words 'under the Provincial Government' indicated a subsisting relationship between the Provincial Government and the holder, it was conceded by Mr. Gupte, who, though appearing in another appeal for one of the lessees from the respondents in this case, was allowed to argue the question as regards the construction of Section 3 (4) of the Act, that the only case which he could conceive of in which there would be subsisting relationship between the Provincial Government and the holder of a land would be the case in which the land was granted by the Provincial Government on a lease or some tenure, and he urged that it would be only in that case that the Collector would be entitled to levy assessment on the land. In our opinion, this construction of the expression, 'Under the Provincial Government' is repugnant to the object and spirit of the Act itself. It is also repugnant to the expression 'highest title'' used in the definition of 'superior-holder'. According to Mr. Gupte, the only title that the Provincial Government could create in any, land in the City of Bombay would be one of a lessee or of a tenure-holder. In that event it is difficult to conceive the propriety of the expression 'highest title' as used in the definition of 'superior-holder'. The expression 'highest title', in our opinion, connotes a competition between several types of title, or interest created in respect of the same land. As already observed above, it was conceded by Mr. Gupte that the Provincial Government could not possibly createmore than one right in respect of the same land. How then is the expression 'highest title' to be explained? It can only be explained on the footing that Several kinds of estates may simultaneously exist in the same land and the 'superior holder in respect of such land would be the person having the highest estate in that land. Under the English law, the highest estate that a person can ever have in land is an estate in fee simple absolute. But such person can Create several other estates in the same land by an act inter vivos.' This position is made clear in the following passage from Megarry's Law of Real Property, second edition at page 40:--

'At common law it can in general be said that only two distinct legal rights can exist at the same time in chattels, namely, possession and ownership. If A lends his watch to B, the ownership of the watch remains vested in A, while B has possession of it. But in the case of land, a large number of legal rights could and still can exist at the same time. Thus the position of Blackface in 1920 might have been that A was entitled to the land for 'life, B to a life estate in remainder (i.e., after A's death), and C to the fee simple remainder. At the same time, D might own a lease for 99 years, subject to a sub-lease in favour of E for 21 years, and the land might be subject to a mortgage in favour of F, a rent charge in favour of G, easement such as rights of way in favour of H, J, and K, and so on indefinitely. Before 1926 all these estates and interests could exist as legal rights, and most, but not all, can exist as legal rights today.

It may thus be said that in the case of as chattel, ownership will be absolute ownership: it is either owned outright by one person (or several persons jointly or in common with each other) or it is not owned at all. In the case of land, however, the law in theory knows no absolute ownership. The land is held in tenure of the Crown or of a subject. It may so be held for various different estates, i.e., for a greater or less period of time. In popular speech one may refer to X's ownership of Blackacre; but technically, one should speak of X holding Blackface in fee simple or for a term of years, and subject perhaps to easements, mortgages, and the like, which give other people limited rights of property in the land. Land law therefore, has to concern itself with many varieties of qualified ownership.'

Although it is true that the English law of property does not apply to this country ever since the enactment of the Transfer of Property Act in 1882, we do have different kinds of transfers of property with different kinds of rights accruing therefrom. Thus, A the owner of land may lease it out to B for a period of 99 years. He may also create a mortgage of that property in favour of C. It is open to him to create also a life estate in favour of D, and so on. All these different rights, as admitted by Mr. Gupte, could not possibly be created by the Provincial Government but they could only be created by a person who is the owner of that property and it is only when such rights are created in respect of the same land that the question of a person having the highest title to the land would arise for the purposes of land revenue. Accordingly, we are of the view that the contentionraised by Mr. Gupte that there must be a subsistingrelationship between the Provincial Government andthe holder of the land and that some interest mustcontinue to subsist in the Provincial Governmentin the land in order that the holder may be called 'a superior holder having the highest title underthe Provincial Government' is not justified. Asrightly contended by the learned Advocate-General, the words 'under the Provincial Government'were used in Section 3 (4) of the Bombay CityLand Revenue Act to emphasise the basic theorythat all land within the Province belonged to theProvincial Government.

76. As regards the second argument that if all the lands in the Province belonged to the Provincial Government, the words 'under the Provincial Government' were redundant, the learned Advocate-General urged that those words were used in that sub-section with a view to leaving nothing for implication and also to exclude Government lands from assessment. He further urged that it was not as if the Legislature never used expressions in Statutes which were superfluous in theircharacter and import. According to him, Legislatures have been known to use expressions in a Statute ex abundanti cautela with a view to remove any possible apprehension with regard to the true construction of the Statute. In this connection, he invited our attention to a passage fromCraies on Statute Law, fifth Edition, at pages 199-200, which is as follows.-

'Sometimes a term is defined in an interpretation clause merely ex abundanti cautela - that is to say, to prevent the possibility of some common law incident relating to that term escaping notice. Thus in Wakefield Local Board of Healthv. West Riding, etc., Rly., (1865) 1 QB 84 it appeared that by Section 3 of the Railways Clauses Consolidation Act, 1845, the term 'justiceof the peace' is defined as 'justice of the peaceacting for the ...... place where the matterrequiring the cognisance of a justice shall arise, andwho shall not be interested in the matter'. It was therefore argued that by this definition jurisdiction was altogether taken away from a justicewho was interested in the matter, and that thisobjection could not be waived. But it was held that the latter words of the definition were merely declaratory of the common law, and were onlyadded ex abundanti cautela 'in the apprehension' as Cockburn, C. J., said 'that justices, if not warned of what the law is, might act although interested. Had it been intended to render an interested justice absolutely incompetent, notwithstanding that both parties might waive the objection, a positive enactment to this effect would have been inserted.'

77. The Advocate-General also cited a passage from the judgment of Stephen, J., in Re, Castioni, (1891) 1 QB 149 at p. 167 to show that expressions, though not absolutely necessary for the purposes of the Statute, are sometimes used there-in with a view to prevent people from misunderstanding the provisions of the Statute. That passage is as follows: --

'I think that my late friend Mr. Mill made a mistake upon the subject, probably because hewas not accustomed to use language with thatdegree of precision which is essential to everyonewho has ever had, as I have had on many occasions, to draft Acts of Parliament, which, althoughthey may be easy to understand, people, continually try to misunderstand, and in which therefore,it is not enough to attain to a degree of precisionwhich a person leading in good faith can understand, but it is necessary to attain if possible to adegree of precision which a person reading in badfaith cannot misunderstand. It is all the betterif he cannot pretend to misunderstand it.' Reference was also made by the learned Advocate-General to a passage in Commissioner for Specialpurposes of Income Tax v. Pemsel, (1891) AC 531for the purpose of showing that purpose of the Act must always be takeninto account while construing the Act. It was inthe light of this principle that we have already ob-served in the earlier part of the judgment that thepurpose of the Bombay City Land Revenue Act,1876, would be completely frustrated if the assessment is to be levied only upon those lands in theCity of Bombay to which title is directly derivedfrom the Provincial Government, as in the case ofa lease or as where it is granted on some tenure.

78. The proposition that the same expression used in different Statutes need not necessarily have the same meaning but the meaning of such expression would depend upon the context and setting of such Statutes is laid down by the Supreme Court in M.P.V. Sunderaramier and Co. v. State of Andhra Pradesh : [1958]1SCR1422 . In that case it was contended that the same provision expressed in ipsissima verba could not have one meaning in Article 286 (1) (a) and quite a different one in Section 22 of the Andhra (Madras) General Sales Tax Act, 1939; and that on the construction put by the Supreme Court on the Explanation to Article 286 (1) (a), the Explanation to Section 22 of the Andhra (Madras) Act must be interpreted as prohibiting States other than Andhra from taxing sales under which' goods were delivered for consumption outside those States, even though property passed inside them, and not as authorising the State of Andhra to tax sales in which goods were delivered therein for consumption, even though property in the goods passed outside that State. In answering this contention, Venkatarama Aiyer, J., observed that the error in that argument lay in that it focussed attention exclusively on the terms in which the Explanations were couched in Article 286 (1) (a) and in Section 22, arid completely overlooked the fundamental difference in the context and setting .of those two enactments. At page 1446 (of SCR) : (at p, 486 of AIR) His Lordship observed as follows:--

'In its context and setting, therefore, the Explanation to Section 22 must mean that it authorises the State of Madras to impose a tax on Bales falling within its purview. Thus, while in the context of Article 286 (1) (a) the Explanation thereto could be construed as purely negative In character though positive in form, it cannot be so construed in its setting in Section 22 of the Madras Act, where it must have a positive content.' These observations of Venkatarama Aiyar, J., furnish, in our opinion, adequate answer to the contention raised on behalf of the respondents in this case that the word 'under' as used in Section 3 (4) of the Bombay City Land Revenue Act, 1876, must be construed to mean, irrespective of the context and setting in which it has been used, in its literal sense as defined in Oxford Dictionary Vol. IX, at page 121, under letter 'U' as meaning 'with reference to derivative rights' or 'as a tenant'. We need hardly repeat that this meaning, cannot possibly be assigned to the expression 'under' as used in reference to the definition of 'superior holder' in the Bombay City Land Revenue Act, 1876; for, by assigning that meaning to that expression the very purpose of the Act would be frustrated and there would probably be no land in the City of Bombay which would be liable to be assessee to land revenue.

79. The question was then raised by the learned Counsel for the respondents that there wasno provision in the Government of India Act,935, which endowed the Provincial Governmentwith sovereign right of the Crown over all thelands situated within the territory of such Government and that, therefore, no other meaning couldtoe assigned to the expression 'under the Provincial Government' as used in connection with thedefinition of 'superior holder' in the Bombay CityLand Revenue Act, 1876, than the one contendedfor by the respondents. The learned Advocate-general in answer to this contention invited ourattention to Section 174 of the Government ofIndia Act, 1935, and Item 21 in List II of theSeventh Schedule to that Act and urged thatthough escheat and treasure trove formed the subject matter of the prerogatives of the Crown, thoseprerogatives were transferred to the ProvincialGovernment by Virtue of Section 174 in the firstcase and Item 21 in List II of the Seventh Schedule in the second case. Section 174 of that Actprovides as follows: --

'Subject as hereinafter provided, any property in India accruing, to His Majesty By escheat or lapse, of as bona vacantia for want of a rightful owner shall, if it is property situate in a province, vest in His Majesty for the purposes of the Government of that Province, and shall in any other case vest in His Majesty for the purposes of theGovernment of the Dominion.'

the section is followed by a proviso with which we are not concerned in this case. Item 21 referred to above enumerates the subjects in respect of which the Provincial Legislature has been empowered to legislate and one of these subjects istreasure trove. It was urged by the learned Advocate-General that these, provisions really indicated that the prerogative rights of the Crown with regard to escheat and treasure trove were transferred to the Provincial Government. It was also urged that it was fallacious to contend that the Crown was one and indivisible and that the prerogatives of theCrown could well be distributed, so far as this country was concerned, among the Central Government as also the Provincial Governments. In our opinion, Section 174 referred to above does support the proposition that the Crown is not always one and indivisible, and that its powers and prerogatives could be distributed amongst several Government authorities. That section provides forthe distribution of the Crown's prerogative of escheat both to the Dominion Government and the Provincial Government according as the property accruing by escheat or lapse or as bona vacantia for want of rightful owner was situated outside the Provinces or in a Province. A reference may be made in this connection also to Attorney-General of Ontario v. Mercer, (1883) 8 AC 767, in which the Privy Council held that lands in Canada escheated to the Crown for defect of heirs belonged to tile province in which they were situated, and not to the Dominion. In that case, on 28th of September, 1878, the appellant filed an information on) behalf of the Crown to recover from the respondent and others possession of certain piece of land in the city of Toronto in the province of Ontario, being part of the real estate of Andrew F. Mercer, who died intestate on 13th of June, 1871, and without leaving any heirs or next of kin. The respondent demurred thereto for want of equity. The first Court held in favour of the appellant that the land had escheated to the Crown for the benefit of the province. The Dominion Government appealed in the name of the respondent and it was agreed between the two Governments that the appeal should be limited to the question whether the Government of Canada or that of Ontario was entitled to lands situated in the province of Ontario and escheated to the Crown for want of heirs. The Supreme Court by a majority reversed the judgments of the Courts below and dismissed the information. The reasons stated shortly were that escheat was not a reversionary right but a fiscal prerogative; that the feudal system had never existed in Canada; that the privileges of the provinces were surrendered as a preliminary to the Confederation effected by the British North America Act, 1867; that by that Act all duties and revenues were transferred to the Dominion and to be appropriated to the public service of Canada; and that the Act did not confer on the Government or Legislature of Ontario any right to receive or dispose of the revenue arising from escheated estates situate in the province. The appellant took a further appeal to the Privy Council against the decision of the Supreme Court. On a construction of the relevant sections of the British North America Act, 1867, the Privy Council came to the conclusion that the escheat in question belonged to the province of Ontario in view of the fact that the land was situated in the province of Ontario. This decision of the Privy Council was obviously based upon the theory that the prerogative right of the Crown to escheat could be distributed among the Dominion and the Provinces in a country where the Provinces were granted autonomy in regard to their government. It may be observed that the Government of India Act, 1935, was based upon the aforesaid Canadian Statute, and it was held by Gwyer, C. J., in Subrahmanyan Chettiar v. Muttuswami Goundan that the principles laid down by the Judicial Committee in decisions interpreting the provisions of the British North America Act, distributing legislative power between the Dominion and the Provincial Parliaments may be accepted as a guide for the interpretation of Section 100 of the Constitution Act and the Lists inSchedule VII of that Act. Accordingly, it must be held that the Crown is not one and indivisible in the Sense that its prerogatives can only be held by the Dominion Government in case of a Dominion and not by the Provinces which have been carved out from such Dominion and granted provincial autonomy by an Act of Parliament. It must further, be held that inasmuch as the prerogative right of the Crown to escheat arises out of its prerogative right of ownership over all too lands situated within its territories, the latter prerogative necessarily devolves upon the Provincial Government, so that lands situated within the territory of a Province could be Said to be held by their occupants from or under the Provincial Government for the purposes of land revenue.

80. A good deal of controversy was raised before us on the question as to whether the English Law of Real Property applied to the sale of the lands in suit by the Central Government to the respondents in this case, so that what passed to the respondents under the conveyance of 1938 was only an estate in fee simple absolute. The respondents by the amendment of their plaint pleaded that the conveyance in their favour was governed by Section 16 of the Conveyance of Land Act, 1854. and that what was conveyed to them in the lands in suit was only an estate in fee simple absolute free from all assessment of land revenue. On the other hand, it was contended by the appellant in his supplementary written statement that that section did not apply to the conveyance in question, and that what was conveyed to the respondents by the Central Government were all the rights of ownership which the Central Government possessed in those lands in consequence of the acquisition thereof in 1864-66. At the hearing of this appeal, however, Mr. Gupte on behalf of the respondents contended that the English Law of Real Property did not apply to the conveyance in question and that the respondents had become absolute owners of the lands in suit by virtue of the conveyance passed in their favour by the Central Government. He urged that consequent upon this conveyance no interest at all remained in the Central Government which could devolve on the Provincial Government, so that the respondents could be said to hold the lands under the Provincial Government. The learned Advocate-General on his part urged that the English Law of Real Property did apply to the transaction in question, that the respondents only acquired an estate in fee simple in the lands in question by the conveyance passed in their favour, that the Central Government had retained the free-hold reversion to themselves and that that reversion had devolved upon the Provincial Government and that, accordingly, the respondents could well be said to be having the highest title to the lands in question under the Provincial Government. We have already held, and it was conceded by the learned Advocate-General, that there was no provision in the Government of India Act, 1935, by which in case the English Law applied to the transaction in question the reversion that remained in the Central Government was transferred to the Provincial Government. We must, however, deal with the contention raised by Mr. Gupte, though contrary to his own pleading, that the Central Government up to the date of the conveyance in favour of the respondents was the absolute owner of the lands in suit in consequence of the merger of all the outstanding interests therein as far back as in 1864-66 when they were acquired for the purposes of the B. B. and C. I. Railway and this absolute ownership was transferred by the Central Government to the respondents by the conveyance of 1938 some time after the Government of India Act, 1935, had come into force. It was contended that inasmuch as, despite the fact that the Government of India Act, 1935, came into force on 1st April, 1937, the Central Government continued as the absolute owner of the lands in suit, the Central Government could not be said to hold those lands under the Provincial Government even for the purposes of land revenue on the assumption that the lands in the hands of the Central Government were liable to pay such revenue. It was accordingly urged that the respondents were likewise absolute owners of those lands and they, too, were not liable to pay any assessment to the Provincial Government. In our opinion, however, there is a clear fallacy in this contention. On 1st April, 1937, on which date the Government of India Act, 1935. came into force, the prerogative right of the sovereign over all the lands situated within a Province was transferred to the Provincial Government and, therefore, the Central Government began to hold the lands in question under the Provincial Government and that such lands became immediately liable to pay land revenue to the Provincial Government under the provisions of the Bombay City Land Revenue Act, 1876. Section 154 of the Government of India Act, however, specifically provided for an exemption of these lands from all taxes that might be imposed by any authority within a province and, therefore, the Central Government, though holding the lands under the Provincial Government as superior holders thereof within the meaning of Section 3 (4) of the Bombay City Land Revenue Act, 1876, was not liable to pay any land revenue to the Provincial Government. The moment, however, these lands were acquired by the respondents under the conveyance executed by the Central Government in their favour in 1938, the lands were no longer exempt from payment of land revenue to the Provincial Government and the respondents, stepping as they did into the shoes of the Central Government as superior holders in respect of these lands, became liable to pay land revenue in respect of these lands to the Provincial Government. As Chandavarkar, J., observed in Vinayak's case, ILR 26 Bom 339 at p. 350 when the respondents acquired the lands from the Central Government they acquired them subject to the paramount right of the Provincial Government to assess them for the purposes of land revenue from time to time according to the exigencies of administration. It is undoubtedly true that in case of an outright sale of land a purchaser cannot be said to hold it under the vendor. The question in this case, however, is not whether the respondents held the lands under the Central Government as their vendor The question is whether they held the lands under the Provincial Government which had nothing whatever to do with the sale of the lands by the Central Government in their favour.

As we have already observed, on the creation of autonomous Provinces in British India by the Government of India Act, 1935, sovereignty of the Crown over the territories constituting such provinces was transferred to the Provincial Governments and all lands situated within the territories of the Province began to be held by the respective owners thereof under the Provincial Government concerned. Even on the assumption that the English Law of Property applied to these lands after the commencement of the Government of India Act 1935, the Provincial Government being the Lord Paramount in respect of all the lands situated within its territories, the Central Government held the lands in suit on an estate in fee simple and such an estate being freely transferable under the English Law, all that was possessed by the Central Government in these lands was transferred to the respondents by the conveyance executed by the Central Government in their favour in 1938 and the respondents, too, accordingly held the lands on an estate in fee simple under the Provincial Government. In either event, the respondents could not escape being held liable as superior holders having the highest title to the lands in question under the Provincial Government to pay land revenue in respect of these lands.

81. We accordingly hold that the learned Revenue Judge, was in error in holding that the respondents were not 'superior holders' within the meaning of the Bombay City Land Revenue Act, 1876, in respect of the lands purchased by them from the Central Government in 1938 and that, therefore, the Collector was not entitled to fix and levy any assessment upon those lands. In our opinion, the respondents are superior holders within the meaning of the Act and as such they are liable to pay land revenue to the Provincial Government in respect of the land held by them.

82. It may be noted that in view of the decision of the Supreme Court in Mistri's case, : [1955]1SCR1311 the respondents did not contend before us or before the learned Revenue Judge that they as 'superior holders' had any right in limitation of the right of the Government to assess, as pleaded by them in their plaint. As already observed in an earlier part of the judgment, the conveyance in Mistri's case, was in terms similar to those of the conveyance in favour of the respondents in this case; and it was urged on behalf of the plaintiff in that case that they had a right in limitation of the right of the Provincial Government to assess the lands in their possession because the Central Government, from which they had purchased the land was exempt from paying any land revenue to the Provincial Government in respect of those lands and accordingly, they themselves were also exempt from the payment of such revenue; and, alternatively, they were liable to pay only such assessment to the Provincial, Government as was being paid to the East India Company and later to the Government of India by then holders of those lands under the terms of the Foras tenure prior to the acquisition thereof by the Central Government in 1864-66 for the purposes of B. B. and C. I. Railway. Both these contentions, though upheld by the learned Revenue Judge and the High Court on appeal, were rejected by the Supreme Court,and it was held that where there was an absolute sale by the Crown it did not necessarily import that the land was conveyed revenue-free and that the Foras tenure became extinguished when the lands were acquired under the Land Acquisition proceedings and was incapable of coming back to life when the lands were sold to the respondents, and accordingly, the respondents could not claim a right to pay assessment only at the rate at which it was payable under the Foras Act. The contentions raised by the respondents in this case in their plaint were the same as were raised by the plaintiffs in Mistri's case : [1955]1SCR1311 as aforesaid; and it was in the fitness of things that the respondents in this case were advised not to raise those contentions before us in this appeal.

83. The next point that was argued by the learned Advocate-General before us was that the learned Revenue Judge was in error in holding that the notices issued by the Collector under Section 8 of the Act to the respondents purporting to levy assessment and seeking to recover assessment for five years were invalid because of their being retrospective. It appears from the judgment of the learned Revenue Judge that it was conceded by the learned Counsel for the appellant that the assessment could not be levied retrospectively, but it was contended that the notices for that reason were not wholly bad and the assessment was not invalid. It was urged that the appellant, might not be able to recover the assessment for the period of five years from 1st April, 1938, upto the date of the notices (Exhibit K), namely, 29th June, 1943. It was, however, pointed out that the 50 years' period for which the assessment appeared to have been fixed by the notices commenced from 1st April, 1938, would nevertheless stand though the appellant, might not be able to recover the assessment for the first 5 years. On the other hand, it was contended by the learned Counsel for the respondents before the learned Revenue Judge that the notices were wholly bad because the determination of the period for which the assessment was fixed was left vague, in the sense that if the Collector could not start levying assessment from 1st April, 1938, then it was not clear as to from what date the period of 50 years would begin. On these contentions, the learned Revenue Judge thought that the better opinion was that the notices were invalid because the Collector had no power under Section 8 to give retrospective effect to an assessment. In support of his so thinking he relied upon certain observations of Scott, J., in Shapurji Jivanji v. Collector of Bombay, ILR 9 Bom 483, which were to the effect that a new assessment could not be levied with retrospective operation, that such an assessment could be prospective only and applicable from the time that if was actually made by the Collector. The learned Advocate-General contended that on the facts in Shapurji's case ILR 9 Bom 483, it was clear that no declaration was sought by the plaintiff that the notice fixing and levying the assessment with retrospective effect was wholly had on account of the fact that it was retrospective in operation. In that case, the plaintiff was the holder of certain land in the Island of Bombay called foras or Foras token land. He and his predecessors-in title had held the said land for upwards of sixty years and had paid a certain fixed assessment to Government. On 31st July, 1882, the Collector of Bombay claiming to act under powers conferred by Bombay Act II of 1876 and under the order and with the sanction of Government Contained in a Government Resolution, dated 14th August, 1879, gave notice to the plaintiff that the assessment payable in respect of the said lands was enhanced. He claimed the increased rent not merely for the future, but also for two previous years (1879-80 and 1880-81) subsequently to the date of the Government Resolution of 14th August 1879. The plaintiff paid under protest, for the said two years, the sum of Rs. 442-8-2 in excess of his previous assessment, and then sued to recover that amount from the defendant. The plaintiff prayed by his plaint for a declaration that there was

'a right on the part of the plaintiff in limitation of the right of Government, in consequence of a specific limit to assessment having been established and preserved, in respect of the said lands, to possess and hold the same at the rent or assessment hitherto paid by the plaintiff; and that the Collector of Bombay had no right to increase the plaintiff's rent or assessment beyond such specific limit; and that the defendant should be ordered to repay to the plaintiff the said sum of Rs. 442-8-2'. It was held by Scott, J., that no grant, contract or law emanating from Government being proved to have emanated from Government conferring on the lands in question a right to a fixed and permanent rate of assessment, the assessment on these lands was liable to enhancement, and that the plaintiff was only liable to the enhanced rate of assessment from the time at which it was actually made by the Collector, and that he (the plaintiff) was, therefore, entitled to be repaid the sum sued for. It would thus appear that all that was held on the question of the Collector's right to recover enhanced assessment retrospectively was that, in the absence of anything in the terms of the Government Resolution to show any intention to give retrospective effect to the new assessment, the Collector could not call upon the plaintiff to pay the assessment for the two preceding years and that, therefore, the plaintiff was entitled to the return of the excess amount that he had claimed. It is true that it was not contended by the plaintiff in that case that the notice fixing and levying enhanced assessment in that case retrospectively was wholly bad by reason of its being retrospective in operation and that what the plaintiff had claimed was the excess amount that he had paid for the two years. Nevertheless, it is clear from the decision of that case that wherever an assessment is made with retrospective effect the assessee would not be liable to pay the assessment for the years prior to the date of the notice; but that in itself would not be an adequate ground to render the whole notice invalid. The assessment fixed by the Collector would certainly be valid as from the date on which it was fixed with prospective operation. The learned Revenue Judge, however, felt . the difficulty in taking this view of the notices in the present case, because if the Collector made an assessment in 1943 and calculated the value of the land (say Rs. 40 per square yard) but made theassessment retrospective from 1938, then one did not know whether he considered Rs. 40 per square yard to be a reasonable price in 1938 or 1943. It was mainly upon this consideration that the learned Revenue Judge felt inclined to bold that the notices were not good enough even for their prospective operation and they were wholly void. In our opinion, the learned . Revenue Judge fell into an error in relying upon the aforesaid consideration for the purpose of discarding the notices as wholly invalid. It is certainly true that the prices of land in 1938 in the City of Bombay were very much lower than those in 1943 when the Second World War was on. Nevertheless, no injustice would result to the respondents so long as they were liable to pay the assessment as from, the date of the notices. If the Collector had fixed the assessment on the basis of the value of the lands in 1938, the respondents would be paying very much less as and by way of land revenue than what would have been legitimately due from them on the basis of the value in 1943. If the Collector had taken the value of the land in 1943, the respondents, would not be liable to pay the assessment fixed on such value for any period prior to the date of the notice and they would be paying just the amount of revenue which would be legitimately due from them on the basis of the value of the land in 1943. In our opinion, therefore, the learned Revenue Judge was not right in holding that the notices (Exhibit K) in the case could not be operative even prospectively.

84. A reference may also be made in this connection to Ahmedabad Ginning and . v. Secretary of State, 39 Bom LR 266 : AIR 1937 Bom 226. In that case, the Collector had fixed an enhanced rate of assessment and sought to levy it retrospectively. The plaintiff contested the Collector's right to levy any assessment with retrospective effect. Following the decision in Shapurji's case ILR 9 Bom 483 it was held that the Collector had no right to fix and levy assessment with retrospective effect and that the plaintiff was. entitled to the refund of the whole of the amount recovered in respect of the period prior to the fixing of the assessment. While dealing with this question, Broomfield, J., observed at page 273 (of Bom LR) : (at p. 230 of AIR) as follows: --

'But the appellant challenges the right of Government to recover altered assessment retrospectively in respect of any of the lands. The Collector's order fixing the new assessments was passed in June, 1927. They have been recovered for the years 1925-26, 1926-27 and 1927-28. It is contended, and I think rightly, that there is no right of recovery for the first two years. As I have said already in another connection, the assessments fixed at the first revision continued in force until revised, that is until June, 1927. No authority has been referred to in support of the Collector's power to levy revised assessments retrospectively. On the other hand ILR 9 Bom 483 is against it.

The plaintiff, therefore, is entitled to the refund of the whole amount recovered in respect of the years 1925-26 and 1926-27, and to the refund of the amount recovered for 1927-28 in respect ofthe lands converted on February 2, 1863, February 14, 1877, August 17, 1877 ..... 1883,March 14, 1883, November 29, 1886, April 4,1887 and May 27, 1888, that is the first eight plotsin the Appended Statement 'A'. He' is alsoentitled to interest on this amount at six percent.'

It may be observed that in this case also it was not contended by the plaintiff that the notice fixing and levying the assessment was wholly void inasmuch the Collector had demanded the payment of assessment with retrospective effect. iN our opinion, such a contention could not possibly be raised at all, because fixing and levying assessment is one thing and recovery of assessment is another. In the present case, the notices issued by the Collector to the respondents being II in number were all dated 29th June, 1943, and the tenor of all these notices was the same, except for the survey number and the amount of assessment. The form of these notices is as follows:-

Re:-- Assessment of old B. B. and C. I. Railway land at Sleater Road bearing C. S. No. ..... of Tardeo Dn. Plot No. .....

Sir,

With reference to the above, I have the honour to state that Government has been pleased to sanction the assessment of Rs. ..... p. a.on the land bearing C. S. No. ..... of Tardeo Division with a guarantee period of 50 years from 1st April, 1938. I have therefore, assessee the above land accordingly.

2. I now request you to pay into this office the assessment for five years (i.e., from 1st April, 1938 to 31st March, 1943) already due, at an early date.

Your obedient servant. Collector of Bombay.

It will appear from the form of this notice that it was addressed to the respondents under Section 9 of the Bombay City Land Revenue Act, 1876, for the purpose of intimating to them the amount of assessment that the Collector had fixed. Section 9 however, does not contemplate any notice of demand for payment of land revenue. That section only deals with the settlement of land revenue with the superior holder of the land, in the sense that the Collector has only to give an intimation of the assessment fixed by him in respect of any particular land to the superior holder there of, so that the assessment may be binding on him. The second paragraph of the notice, however, refers to the demand for payment for the past five years. This may be regarded as a notice under Section 10 of the Act, the second paragraph whereof deals with a notice of demand for arrears of land revenue. In our opinion the notice with regard to fixing of land revenue is clearly severable from the notice demanding payment thereof for the past five years. So far as the latter notice is concerned, it might well be ignored by the respondents. But just because the respondents were not liable to pay the assessment for the years 1938 to 1943, it would not mean that the assessment fixed by the Col-lector and intimated in the respondents by the first paragraph of the notice was invalid. The first paragraph of the notice undoubtedly intimates to the respondents the amount of assessment fixedby the Collector as from 1938 for a period of 50 years. That by itself, however, would not invalidate the assessment as such in so far as it was leviable as from the date of the notice. The period of 50 years, instead of being counted from 1938, would be calculated from the date of the notice; and the learned Advocate-General fairly conceded that that would be so. It may be noted that the statute does not require that the assessment should be fixed for any particular number of yeara. But we were told that it was just a matter of Government policy that the assessment should be fixed for a certain number of years, so that the holders of lands may have a fixity of tenure for that period of year without any apprehension of the assessment being enhanced in the meantime. In these circumstances, we are not inclined to agree with the learned Revenue Judge that just, because the Collector fixed the assessment with retrospective effect and demanded payment thereof from 1938, the entire assessment was invalid and ineffective or that the notices given by the Collector intimating to the respondents the amount of assessment that he had fixed were wholly invalid. On the contrary, in our opinion, the notices are, invalid only in so far as they demand payment of assessment for the period prior to the date thereof; for their future operation, they are perfectly valid. It may further be noted that if any payment has been made by the respondents in respect of any period prior to the date of the notices, the recovery of such assessment by the Government would be illegal and the amount so received by the Government would be liable to be refunded to the respondents. This position is made clear in a recent decision of the Supreme Court in Sales Tax Officer Banaras v. Kanhaiya Lal : [1959]1SCR1350 in which it was observed that where it was once established that the payment, even though it be of a tax, had been made by the party labouring under a mistake of law, the party was entitled to recover the same and the party receiving the same was bound to repay or return it. No distinction could be made in respect of a tax liability on a plain reading of the terms of Section 73 of the Contract Act. To hold that a tax paid by mistake of law could not be recovered under Section 72 would be not to interpret the law but to make a law by adding some such words as 'otherwise than by way of taxes'' after the word 'paid'. Accordingly, the utmost that could be said about the validity or otherwise of the notices in question would be that the assessment fixed by the Collector was not invalid but that inasmuch as he had no right to demand payment of such assessment for any period prior to the date of the notice, the recovery made by him of any assessment for such period would be illegal and he would be liable to return the amount so recovered to the respondents. Except to this extent, the notices would, in our opinion, be perfectly valid and operative.

85. In the result, the appeal is partly allowed, the decree passed by the learned Revenue Judge in terms of prayers (c), (d) and (f) of the plaint is set aside and there will be a decree only in terms of prayer (e) of the plaint.

86. The respondents shall pay the costs of the suit and the appeal on the basis adopted by thelearned Revenue Judge and specified in his judgment in this case.

87. Appeal partly allowed.


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