1. This suit was by consent transferred from the Court of the Revenue Judge to the Original Side of the High Court. The main question is, whether the Government has the right increase the assessment of a certain class of land in the island of Bombay, or whether the holders, of whom the plaintiff is one, are only bound, as a condition of their tenure, to the annual pay-meat of a customary rent invariable in amount.
2. It must be borne in mind that this is not a mere question of landlord and tenant. The Government is the defendant, and the plaintiff sets up a right in derogation of the inherent right of the Sovereign to assess the land at his discretion Strict proof of the right set up must be given, whether the change be one of absolute ownership, revenue-free, or of fixity of tenure at a customary rent; and it must be borne in mind that no presumption is admissible against the Crown from mere lapse of time. Nullum tempus occurrit regi. It may- be, as suggested by Mr. Warden, and Mr. LeMesurier in the works referred to in the argument that the laud now in question was originally waste-land reclaimed from the sea, which the inhabitants were invited to cultivate. It may be that at first they paid no rent, and that subsequently they were only called upon to pay a very small rent, which has continued the same for very many years. But it does not follow from these facts that the Government has forfeited its right to enhance the assessment. The expenses incurred as well as the benefits conferred by Government increase with the progress and development of the community, and it is not only legal, but Politic and just, to increase assessments in accordance ' with the increased value of the land, so far as that increase is caused, not by the exertions of the holders, or the improvements made by them, but by the growth of general prosperity under the influences of good administration.
3. This principle, on which the case depends, is enunciated in Section 8 of Bombay Act, II of 1876, which on this point re-enacts Section 3 of Regulation XVII of 1827. It is as follows: 'When there is no right on the part of a superior holder in limitation of the right of Government to assess, the assessment shall be fixed at the discretion of the Collector, subject to the central of Government. When there is a right on the pert of a superior holder in limitation of the right of Government, in consequence of a specific limit to assessment having been established and preserved, the assessment shall not exceed such specific limit.'
4. This enactment has been explained in the following words by the late Chief Justice in what is known as the Kanara Land Case 12 Bom. H.C. R Appx., pp. 221,222: -' Our duty is a simple one, namely, to ascertain, whether there is a right on the part of the occupant' (the plaintiff in limitation of the right of Government in consequence of a specific ' limit to assessment having been established and preserved.' If there be such a right, Regulation XVII of 1827, Section iv Clause 2 from which, we have extracted the foregoing words, enacts that the assessment shall not exceed such specific limit.' The first clause of the same section enacted that 'when there is no right on the part of the occupant in limitation of the right of Government to assess, the assessment shall be fixed at the discretion of the Collector, subject to the control of Government' 'If there be no such specific limit to the right of Government to assess, it is perfectly clear that the Civil Courts have not any jurisdiction to interfere in the assessment which, when discretionary, is expressly placed, by the clause which, we have just read, in the hands of the Collector, subject to the control of Government; and thus, by an implication which is irresistible, excludes the interference of the Courts * * * *.'
Hence 'when a petition is presented to Government by a person deeming himself aggrieved by a decision of the Collector as to assessment, Government can deal with the matter as it may please, the discretion of the Collector being subject to that of Government; but a Civil Court can only entertain an action when the legal fight or title of the plaintiff to exemption or partial exemption from payment of revenue, in consequence of a specific limit to assessment having been established and preserved, is in jeopardy.
5. The facts of the case are as follows:
The plaintiff holds two plots of land at Parel, until recently numbered 15 and 61 in the Collector's books. It was proved that down to 1879 assessment was paid for many years on No 15 at the rate of Rs. 4-2-2, and on No. 61 at the rate of Rs. 12-2-6. No bills were produced of an earlier date than 1882, but the earliest date of payment is probably much anterior.
6. On the 31st of July, 1882, notice was given by the Collector of Bombay of an increased rate of assessment. This increesed rate was claimed, not only for the future, but also for the two previous years. The authority of the notice was derived from a Government Resolution of the 14th of August, 1879, which did not itself order any new rate, but only sanctioned the scheme for the reassessment submitted by the Collector of Bombay.
7. In the deed of conveyance of the 12th of December, 1833, this land is described as 'that percel of land and plantation of trees with the messuage or bungalow and out houses built fend standing thereon, together with a batty field adjoining thereto, situate at Parel, subject to the payment of foras to the East India Company' In the earliest rent-rolls put in (e.g., 1816 to 1836), the land is also described as foras. But after the passing of the Foras Land Act, 1851, the description changes. Thus in the bill for 1868 and 1869 it is 'described as toka foras, and in that for 1879' it is described as tolta only. No evidence was given of the meaning of this word toka. It was not, however, contended that its addition at all strengthened the plaintiff's case.
8. I will now trace briefly the history of this 'foras' tenure in the island of Bombay. We received the island from the Portuguese, as the dowry of the Infanta Catarina in 1661,' and before the Portuguese rule there is no evidence of any settled occupation. Outside the walls of the town it was scarcely more than rock and marsh, which became a group of islets every day at high tide. Even after we took over the island the whole land revenue was hardly more than 2,000 a year, to which Mahim, Parel and Sion combined, only contributed 800 (see Deputy Governor Gayer's Report to the Secretary of State, 1667 and Anderson's English in Western India, p. 66).
9. Any analogy drawn from the historical land tenures of India proper would be unsafe, and the land tenures-of Bombay must be treated on a separate footing.'
10. The first use of the term 'foras' occurs in the treaty made by Humphrey Cooke with the Portuguese authorities, in which it was provided that the inhabitants and landlords of Bombay should not be obliged to pay to England a higher foras than they used to pay to Portugal. That treaty, however, was entirely repudiated 'by England, and not even ratified by Portugal, and the terms of the surrender of the island are to be found in the 11th Article of the Treaty of the 23rd of June, 1661, by which absolute dominion and sovereignty of the port and island was given, with no reservations as regards rent ,or revenue.
11. The phrase foras is next used in Governor Aungier's Convention (12th of November, 1672), when security of tenure and perhaps fixity of assessment were apparently intended to be given to the possessors of lands in consideration of payment of 20,000 xeraphins per annum, which was to cover the quit-rent or foras they then paid. Here the meaning of foras is evidently rent of revenue. But, as Westropp, C. J., points out in Naoroji Beramji v. Rogers 4 Bom. H.C. R 40, O.C.J note h, 'the quit-rent in Governor Aungier's Convention, called foras, also bore the still older name of pension (pensao, pension), and since that convention has been chiefly known by the name of pension. It. was payable in re ect of the ancient settled and cultivated ground only.' Westropp, C. J., also says on the same page :' Subsequently the term foras was for the most part, though perhaps not quite exclusively, limited to the new salt batty ground reclaimed from the sea or other wastes ground lying outside the fort * * * * * * or to the quit-rent arising from that new salt Batty ground and outlying ground.'
12. Now, even as regards pension lands, which under Governor Aungier's Convention were apparently made free of enhancement, the assessment has been increased on three distinct occasions--1718, 1731, 1758 (see 'Warden's Land Tenures of Bombay p. 108). But, as regards the foras lands, in the sense of salt batty land, there is no contention that they were included in the Aungier Convention, as they were not then in existence-In Mr. LeMesurier's report upon them he says (p. 13):' The for as or salt batty lands were once covered by the sea. They were reclaimed in the early part of the last century, and at the expense of the Company'; and as regards the Aungier Convention he says (p. 16):' This agreement refers to lands which are known under the designation of fazendari lands paying pension and tax, and not to foras or salt batty lands.'
13. The Aungier Convention, therefore, whatever may be its binding force on the Government, does not include the lands which are the subject of the present suit. Indeed, the right of resumption, by the State, of these batty fields outside the fort received judicial recognition from the Recorder, Sir J. Mackintosh, in 1806 (see Warden, para. 16); and, again, the Revenue Judge on 16th May, 1843, affirmed the right of re-assessment as regards lands at Colaba.
14. Even if the equitable claim of long possession is recognized this recognition does not deprive the sovereign of his right to enhance the assessment when the land has permanently increased in value.
15. What I have really to consider is, whether any grant, contract, or law has emanated from Government conferring on these lands the right to a fixed and permanent rate of assessment. I have shown that the Aungier Convention does not cover this case.
16. It was next contended that such a right was given in 1851 by what is known as the Foras Land Act. Let me examine that contention. In the first place, that Act was regally a compromise between Government and certain landholders. (It is so described by Westropp, C. J., in Naoroji Beramji v. Rogers 4 Bom. H.C. R 60, O.C.J. It did not lay down any principles by which any class of land was exempted from further increase of assessment. In its preamble it clearly asserted the right of the Government to the freeholds of the lands specifically in question, and only as a matter of 'grace and favour' waived its rights in the lands included in the plan annexed. In the second place, it only applies to the lands contained in a map of plan annexed to the Act. The lands in question in the present suit were not included in that plan. It is doubtful whether even they are lands of the kind intended by the Act. They are described as foras toka or tokd in the later bills, and the description given in the conveyance of 1833 seems to show they are not salt batty lands. They were not, at any rate, included expressly in the Foras Land Act. Nor do I think they are included by implication. The Act merely waives certain rights of Government in respect 6f certain specified lands, and it cannot, in my opinion, be legally held to apply to any other lands even of the same character. To hold otherwise would be an infringement of the prerogative of the Crown, and the violation of the rule, laid down by Lord Stowell, 'that the prerogatives and rights and emoluments of the Crown being conferred upon it for great purposes and for the public use, it shall not be intended that such prerogatives, (rights, and,, emoluments are diminished by any grant beyond what such grant by necessary and unavoidable construction can take away.' (The Rebekah, 1 C. Rob., 227, 230.) No other proof of special grant was offered, and I think, therefore, the following principle, laid down in the Kanara case 13 Bom. H.C. R Appx. I, applies:' If there be no specific limit, either by grant, contract, or law, to the right of Government to assess land for the purpose of land revenue, the Civil Courts have no jurisdiction, under Bombay Regulation XVII of 1827, sees. 4 and 7, to entertain a suit to rectify the assessment made by the Collector or other competent revenue authority.'
17. I now come to the subordinate question, whether the plaintiff is liable to pay a new assessment before the Collector had fixed what it should be. In 1879 he was, no doubt, authorized to impose a new rate, but nothing was said as to the time from which it should date, and there was nothing in the authorization to give retrospective operation to the new assessment. Indeed, all that was done was to sanction a scheme for re-assessment. I think the Government sanction most be taken as prospective only, and as only sanctioning the new assessment from the time that it was actually made by the Collector. There is nothing in the language of the Government Resolution inconsistent with that interpretation, or to show any intention to give a retrospective effect to the new assessment. I think, therefore, the plaintiff is entitled to the return he claims.
18. As neither party is completely successful, each must pay his own costs.