1. This is a second appeal from a decision of the District Judge of Thana. The question raised is whether in view of the character of the construction of the two godowns on the plaintiff-appellant's agricultural land in Bhilad, the latter has rendered himself liable for the payment of the full rates of non-agricultural assessment for the land on which they were erected, irrespective of the actual use to which they were put by him. The plaintiff alleged that although at the time of building those godowns he intended to let them out for storing grass to others, as there was no demand; for such godowns ever since he built them, he had stored in them his own grass cut from his own varkas fields in order eventually to export the same to the market for sale. It was expressly admitted that only the grass cut by the plaintiff from his own fields has always been stored by him in those godowns, and both the Courts below have held that the grass so stored belonged to the plaintiff and was not sold to any outsider. It seems that in 1921 the first godown was built with the express permission of the Collector upon an application stating that the intended use was unconnected with agriculture. The second godown was built in 1923, avowedly for the same purpose. Assessment was fixed at the maximum rates prevailing, namely, Rs. 60 per acre. In consequence of certain representation of the plaintiff, and the latter's unwillingness to sign an agreement in favour of the Collector in regard to the levy of altered assessment, the Deputy Collector offered a reduced rate of Rs. 20 per acre. Eventually in 1929, the plaintiff was diffident of his position and refused to pass an agreement to the Collector according to the Rules and Standing Orders of Government. The Collector notwithstanding that fact assessed the land by reference to its use, which he assumed was unconnected with agriculture. That assessment the plaintiff refused to pay, and he applied to the Collector in or about the year 1929 to reconsider his decision stating that the godowns were used exclusively by him for agricultural purpose only and that lesser rates should be levied. The plaintiff was willing to pay Rs. 12 per acre which was somewhat higher than the agricultural assessment (vide exhibit 29). No notice was taken of that representation. Therefore, the plaintiff filed this action against the Secretary of State for a declaration that the godowns had not been used for non-agricultural purpose, and that consequently the defendant was not competent to levy non-agricultural assessment on the property. He also prayed for a declaration that all orders passed in the matter for enhancement of assessment were illegal, and, in the alternative, that the defendant could at the most levy assessment at the rate of Rs. 12 to Rs. 18 per acre. There was an additional prayer for refund of the excess assessment recovered from him.
2. Both the Courts below have held that the two godowns could not be described as farm-buildings, nor could they be described as an improvement for the better cultivation of the land. The learned District Judge took the view that, although the godowns provided proper facilities for storing the produce derived from the plaintiff's land, they were not exempt under Section 65 of the Bombay Land Revenue Code, for among the exempted buildings were those which enabled the agriculturist to live on the land, and to keep his implements and cattle there, and which provided facilities for cultivating the land in a proper way, and that the structures in question were not essential or necessary to enable the agriculturist to better cultivate his lands. He, therefore, confirmed the decree of the trial Court dismissing the plaintiff's suit with costs. Against that decree the plaintiff has appealed.
3. It cannot be denied that the basis of assessment of land by Government under the Bombay Land Revenue Code is the use to which it is put by the owner or occupant. By erecting the two godowns on agricultural land, the utility of the land occupied by the godowns for actual cultivation necessarily ceased. But by mere cessation of cultivation it would not follow that the land was put to any other use unconnected with agriculture. That would depend on the question whether the cessation of cultivation was the result of its use for any other purpose. If it was so, the question would be whether that altered use was unconnected with agriculture within the meaning of Rule 80 in Chapter XIV of the Land Revenue Rules framed under Sections 213 and 214 of the Bombay Land Revenue Code and of the provisions of Section 48 of the Code. What use is unconnected with agriculture has to be determined by reference to Section 65 of the Land Revenue Code. That section says:
An occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.
4. Obviously, the use of the words 'farm-buildings, wells or tanks' does not exhaust but illustrates the kind of improvements intended by the legislature to entitle the owner to the benefit of lesser assessment. If the land is put to any use unconnected with agriculture, Section 48 of the Code would come into operation. The provisions of that section, which enable Government to alter the assessment, are as follows:
(1) The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land-
(a) for the purpose of agriculture,
(b) for the purpose of building, and
(c) for a purpose other than agriculture or building.
(2) Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the Provincial Government may prescribe in this behalf.
5. The determinative factor in the levy of altered assessment according to those provisions is the altered use to which the property is put. In my opinion, the mere intention to use property for a particular purpose, without its actual use for that purpose, will not enable Government to alter the agricultural assessment, which I understand is the lowest standard of assessment on property under the Land Revenue Code.
6. It is contended on behalf of Government, first, that the assessment was altered upon the plaintiff's own application to the effect that by building the godowns he was converting the land to a non-agricultural purpose, and, secondly, that the admitted use to which the godowns have been put is unconnected with agriculture as the godowns do not constitute any improvement for the better cultivation of the land. It seems to me that that argument is not well founded. If the term 'farm-building' in Section 65 is used in its ordinary sense, it might, I think, absorb within its meaning many kinds and classes of buildings such as store-houses for implements, manure, seed and farm produce. The godowns in question might fall under the last description. Although in point of outlay and stability the construction is more ambitious and expensive than the ordinary store-house to which the poor and backward Indian fanner is accustomed, the question is whether on that account alone the plaintiff should be penalised. There is authority of this Court which emphasises the principle that the character of the building or the amount of money spent upon its construction is immaterial in judging the purpose for which it is put eventually by the farmer. There the Court allowed wide interpretation to the term 'agriculture' as used in Section 48- see Bhau Mahadu v. Vithal Dattatraya I.L.R. (1919) 44 Bom. 609 In that connection the following observations appear in the judgment of the Chief Justice Sir Norman Macleod (p. 612):
The only ground on which the judgment can be supported would be that this, building was of such a substantial character that it was far too good to be used for agricultural purposes. But that is not the question. If it is put up for agricultural purposes, it does not matter how much the builder had spent on it.
7. Mr. Justice Heaton (as he then was) has also observed as follows (pp. 613-614):
It is not shown in the judgments, it is not even suggested, that this substantial structure which the defendant put up was put up not in order that he might live there and conduct his agricultural work from there, but for some other purpose of profit.
8. It is too late in the day to suggest that a strong or substantial store-house or a godown is unnecessary for facilitating farm operations and the protection of agricultural produce, and I think the suggestion that, apart from the use, the substantial character of those godowns alters their character as farm-buildings is unreasonable. The test applied by the Courts below in judging the character of the buildings is the direct and immediate effect of the use of those buildings on actual cultivation or farm operations, apart from their potential or ultimate value to the farmer in the cultivation of his land. The Land Revenue Code not only imposes a pecuniary burden on the subject, but restricts the use and enjoyment of his property. Such a statute must always be regarded as subject to the rule of strict construction. The proprietor is therefore entitled to ask the Court to construe it in his favour. If cultivation merely implies ploughing, sowing, tilling and reaping, without more, it might be said that any improvement directly connected with those acts alone is permitted by the statute. I find from Anderson's Land Revenue Rules that dairy-farming has been allowed by Government to be regarded as part of agricultural use of land, and 90 also cane crushing and gul boiling : (see pages 78 and 79, Ed. in 1921, printed under Government Resolution). That view follows the language of Rule 80 in Chapter XIV of the Land Revenue Rules of 1921. It says:
Where unalienated land assessed or held for purposes of agriculture only is subsequently used for any purpose unconnected with agriculture, the assessment upon the land so used shall...be altered under Sub-section (2) of Section 48 and such alteration shall be made by the Collector in accordance with the following rules.
9. The words 'used for any purpose unconnected with agriculture' are significant and indicate the intention of Government. In my opinion, the phrase 'make any other improvements thereon for the better cultivation of the land' in Section 65 ought not to receive a narrow construction limited to some object directly connected with agricultural operations or the act of production merely. Any improvement which conduces to profitable husbandry and facilitates the marketing of agricultural produce would, in my opinion, be included within the class of improvements protected by Section 65. That would include the provision for store-houses made by an agriculturist for the protection of his agricultural produce until it leaves his farm. Thus, if grass as agricultural produce is cut, pressed, baled and stored in a godown with the object of eventually selling it when the market improves and it is profitable to sell the produce, the construction of such a godown which facilitates the object in question would be protected. The farmer produces his crops in order to sell the same and thus to provide the means to carry on further cultivation, that is, in other words, the business of farming or cultivation. I was referred to the case of Hoddell v. Parker  2 K.B. 323 decided by reference to the provisions of Section 9, Sub-section (2), of the Locomotives Acts, 1898. That case is clearly distinguishable on the facts. There a threshing engine was let out on hire by the appellants to a farmer to thresh wheat and to haul the wheat, when threshed, in trucks to a mill to be ground. There was no evidence as to whether it was to be returned to the farm when ground. The trucks were the property of the owners of the threshing engine, and it was held that the engine, when being used for hauling the wheat to the mill, was not being used for an agricultural purpose. Here the facts are entirely different. The act of cutting and removal of the grass to a safe place in the farm itself must be regarded as necessary and innocent, being part of farm operations. That safe place is provided by the godowns in question erected on the farm. If the erection of those godowns is the gravamen of the charge, the plaintiff must be acquitted of the charge on the facts stated and admitted. The basis upon which the altered assessment has been levied fails, for notwithstanding the original intention to subject the property to non-agricultural use it has never been so used.
10. The other argument urged on behalf of Government is that inasmuch as the plaintiff has accepted the legality of the altered assessment he cannot, by mere proof that he has not actually used the property according to his original intention, claim reduced rate of assessment. That argument, as I have pointed out above, is not in accordance with the principle governing the imposition of altered assessment. My attention has been directed to Rule 91 of the Land Revenue Rules to the following effect:
When any holding, which has been assessed or of which the assessment has been altered for any non-agricultural use, is used for agriculture only, the Collector may, on the application of the holder, remove the non-agricultural assessment and impose either the old agricultural assessment, if any, and if the settlement period has not expired; or may impose in other cases a new agricultural assessment equivalent to that imposed on other similar agricultural lands in the vicinity.
11. It is difficult to say what act amounts to 'assessing' land. The mere fixing of assessment rightly or wrongly, if it implies assessing land, Rule 91 might come into operation, and I think the plaintiff would have then to proceed under that rule as a matter of formality. But, I think, that the expression 'any holding which has been assessed' implies 'legally assessed.' When therefore the basis for altered assessment fails, the levy of altered assessment would be illegal. The plaintiff is, therefore, granted a declaration that he has not used the godowns in question for any purpose other than agriculture, and that so long as they are not so used, the land is not liable to altered assessment under the provisions of the Code at a different rate by such authority as prescribed in Section 48. The plaintiff is also allowed the consequential relief prayed for. Accordingly, this appeal is allowed, and the lower Courts' decrees are set aside, with costs throughout.