1. The plaintiffs appellants filed Suit no. 396 of 1940 in the Court of the First Glass Subordinate Judge of Thana against the Province of Bombay seeking to obtain a declaration that the levy of non-agricultural assessment at full rate on the entire area of the plaintiffs' survey NOS. 219, 220 and 281 of Ghatkopar ad-measuring 14,883 square yards was illegal and that the proper amount of assessment leviable should be calculated on the area actually built upon by structures and that it should be levied at concession rates. The plaintiffs prayed for a refund of the amount of RS. 72-6-3 alleged to be wrongfully and illegally recovered 'from him and also prayed for an injunction restraining the defendant from charging or recovering anything more than RS. 74-13-0 per year as non-agricultural assessment.
2. The plaintiffs alleged that they were occupants of survey Nos. 219, 220 and 22l of Ghatkopar and that those lands were originally agricultural lands; that under the permission obtained from the Collector in June 1934 certain structures were put upon the land and later additional constructions were made; that the Collector ordered that non-agricultural assessment at concession rates should be charged on four times the area occupied by the structures; that it was assumed for the purposes of assessment that the area under the structures was 2,216 square yards; that in September 1936 the Collector permitted all the structures to be used as stables till 31st July 1938, but the assessment was directed to be levied at full rates on four times the area occupied by the structures which are then found on the lands; that by an order dated 23rd February 1939, the Collector declined to renew permission for the continuance of the stables and ordered that non-agricultural assessment at full rate be charged on the entire area of 14,883 square yards on all the survey numbers in which the structures stood scattered at different places; that the defendant demanded an amount of RS. 1,418 more which was an illegal demand; and hence the relief claimed.
3. The defendant by its written statement contended inter alia that permission was granted to build sheds for residential purposes and non-agricultural assessment at concession rates was levied on four times the area occupied by the sheds; that this permission was extended later up to 31st July 1938; and that during an inspection in July 1936, it was found that the plaintiffs had built in all about five structures and contrary to the permission given all of them were being used not for residential purposes but for stables, the user being unauthorised; that the Collector gave permission to continue the use of the structures as stables till 31st July 1938; that the Collector reviewed the whole position and passed an order on 23rd February 1939, under which he refused to grant permission to continue the stables and directed that non-agricultural assessment at full rate should be levied on the area of 2,216 square yards for the year 1935-36; that for the years 1936 to 1938 non-agricultural assessment at full rate on 9,000 square yards should be levied, and non-agricultural assessment at full rates should be levied on the entire area of the land of survey NOS. 219, 220 and 221 from 1st August 1938. The defendant further contended that the order of the Collector was intra vires and legal.
4. The learned trial Judge came to the conclusion that the order directing levy of non-agricultural assessment between 1936 and 1938 on 9,000 square yards being four times the area occupied by all the structures was legal, but he held that in so far as the order of the Collector directed levy of non-agricultural assessment on the entire area of the land survey NOS. 219 and 220 and 221 as from 1st August 1988 it was in excess of the authority of the Collector. The learned Judge accordingly declared that the Collector was entitled to levy assessment at full rate on an area of 9,000 square yards being four times the area covered by the structures. A consequential injunction was issued restraining the defendant from levying any amount in excess of the assessment which the plaintiffs were declared to be liable to pay under the operative part of the declaration. Against this decree, an appeal was preferred to the District Court at Thana. The defendant acquiesced in the decree of the trial Court in so far as it was against it. The learned District Judge dismissed the appeal of the plaintiffs with costs. The plaintiffs come in second appeal to this Court.
5. Mr. Murdeshwar, on behalf of the appellants, has contended that under the provisions of Section 48, Bombay Land Revenue Code, read with the provisions of Section 65 of that Code, an occupant of land is liable to pay non-agricultural assessment for that much area only as is actually used for non-agricultural purposes, i.e. is actually built over, and the Collector's order directing them to pay non-agricultural assessment for land not actually covered by the structures was ultra vires and illegal. Mr. Murdeshwar's argument is that the 'use of the land for the purpose of building' within the meaning of Section 48, Land Revenue Code, has to be judged by the area actually built upon and not on the incidental use which may be made for purposes of reasonable occupation of the building, and in so far as the Collector has directed the levy of assessment of non-agricultural assessment on an area larger than the area covered by the structures, that order is ultra vires. It is further argued that the buildings constructed by the plaintiffs on their lands having no compound wall, Rule 85, Bombay Land Revenue Rules, 1921, can have no operation and therefore the only governing statutory provision was contained in Section 48, Sub-sections (1) and (2), Bombay Land Revenue Code, 1879, under which the liability of the occupant must be limited to the area actually built upon.
6. The argument that only the area actually built upon is liable for non-agricultural assessment seems to be unjustified on the words of Section 48, Land Revenue Code. Sub-section (1) of Section 48, Land Revenue Code, provides :
'The land revenue leviable on any land under the provisions of the Act shall be assessed, or shall be deemed to 'have been assessed, as the case may be, with reference to the use of land (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building.'
Now this section imposes a liability and states that that liability shall be deemed to be imposed whether or not it was actually imposed by the State, and the sole test of the extent of the liability is the user of the land. Unfortunately the section does not say what the expression 'the land' connotes. It is not clear from the provisions of Section 48 whether the expression 'the land' or ''any land' as used in that section was intended to refer to a unit of land such as a survey number or a pot survey number recognized by the revenue authorities. Nor does the section say that the liability to assessment shall be judged by reference to user of land for a building or for agriculture or otherwise than for agriculture or building. The expression used in all three sub-clauses of Section 48, Land Revenue Code is 'for the purpose of agriculture', 'for the purpose of building' and 'for a purpose other than agriculture or building'; and it is obvious that these expressions have a very much larger connotation than the connotation of the expression 'for a building' or 'for agriculture' or 'otherwise than for agriculture or building'. Also the Legislature has not indicated in the section how the assessment shall be deemed to be imposed in the case of piece of land part of which is used for one purpose and the rest for another. It is however clear that under the terms of Section 48, Land Revenue Code, assessment shall be deemed to have been imposed according to the purpose for which the land is used; and in the case of land used for the purpose of construction it cannot be said that the area actually covered by a building is alone used 'for the purpose of building.' The expression 'land used for the purpose of building' refers to all laud covered by a structure, as well as land either necessary or required for occupation or use of the structure for the purpose for which it is intended. As it would be impossible to use a structure without using some area of land surrounding it, such surrounding land which renders the enjoyment possible or comfortable would be deemed to be included in the land which is used for the purpose of building- It appears that in the present case the Collector passed the order which is impugned, on the basis that the land necessary or required for use of a structure is the area of the entire holding on which the structure is constructed. The lower Courts have not accepted that basis and have held that for calculation of the non-agricultural assessment, an area four times the area built over should be accepted as the area required for the purpose of building. The estimate of the additional land required for use of land for building appears to have been influenced by the provisions of the Land Revenue Rules which prescribe that ordinarily an area exceeding one-fourth of the total holding will not be permitted to be covered by structures. The lower Courts assumed that where a building is constructed, additional area of land three times the area of the land actually covered by the structures would be required for the beneficial use of the building, and it is on that basis that they partially upheld the order of the Collector directing the payment of non-agricultural assessment. If the non-agricultural assessment can be levied with reference to land not actually covered by buildings, the order of the lower Courts which adopted the estimate of a total requirement of four times the area of land actually covered by structures, as being land used for the purpose of building and levied non-agricultural assessment is not erroneous. The plaintiffs have not been able to establish to the satisfaction of the Courts below that an area less than 9,000 square yards could be said to be required with reference to the use of land for building. Under Section 65, Land Revenue Code, it is lawful for the Collector, subject to the general orders of the Provincial Government, to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of Section 48, and that assessment has got to be imposed with reference to the user as actually contemplated under Section 48. The Collector had therefore authority under Sections 65 and 48, Land Revenue Code to impose a new assessment in view of the alteration of user.
7. But Mr. Murdeshwar on behalf of the appellants relies upon a decision of this Court in Mahmadbhai v. Secretary of State : AIR1917Bom57 , where it appears that an occupant was permitted to convert his land in the year 1872 before the passing of the Bombay Land Revenue Code of 1879 for the purpose of establishing a brick-kiln. After the Bombay Land Revenue Code came into operation in 1879, at a revision survey, which took place in 1889, the land was assessed as agricultural land. Between the years 1897 and 1901 the plaintiff erected substantial buildings on a portion of the land and the Collector levied non-agricultural assessment on the entire piece of land. The occupant filed a suit contending that the whole of the additional assessment sought to be levied was ultra vires and prayed for a refund of the amount. It appears that in that case originally the whole piece of land was used for the purposes of brick-kilns and the revenue authorities appeared to have assumed that that was agricultural use, and on that footing the land at the revision survey was assessed as land used for the purpose of agriculture. It was some time between the year 1897 and 1901 that the occupant constructed chawls on about 597 square yards. The total area of the land in that case was 17 gunthas, that is, roughly 2,050 square yards out of which only 522 square yards of land continued to be used for the purposes of kilns after the structures were put up by the occupant. The chawl buildings were constructed on 597 square yards and the remaining portion appears to have been kept open as being required for the purpose of building. That area was roughly about 940 square yards of land. In the course of his judgment Beaman J. observed (p. 28) :
'I have only to add that the building sites do not cover the entire area of the land and it is only upon so much of it as is proved to have thus been converted to uses within the meaning of clause (a) of Section 48 that the enhanced assessment can be levied.'
Now this observation does not mean that Beaman J. was of the opinion that it is only with respect to the land which is covered by the buildings that there was a liability to pay non-agricultural assessment, because the next sentence in the judgment makes it clear that the non-agricultural assessment was held to be good in respect of the entire area excepting the 522 square yards which continued to be used as a brick-kiln. Beaman J. observed (p. 28):
'I therefore am of opinion that this appeal fails except in respect of so much land as has not been covered by the buildings. That is shown to be 522 sq. yards and there must be a proportionate deduction of the assessment which can be worked out in framing the decree.'
8. That makes it abundantly clear that even though the structures actually covered an area of 597 square yards, the Court directed that the occupant who was the plaintiff in that suit was liable to pay non-agricultural assessment in respect of a total area exceeding 1,500 square yards which was the land not used for brick-kilns. The case in Mahmadbhai v. Secretary of State for India 20 Bom. L. R. 22 : : AIR1917Bom57 , therefore, is no authority for the proposition that only that much area as is covered by a structure is liable to non-agricultural assessment on conversion of use.
9. Reliance was also placed upon the case in Secretary of State v. Abdul Husen 29 Bom. L. R. 1850 : A. I. R 1927 Bom. 601. But that is a case which does not help the appellants. In that case, the main point that was decided was whether a fine can be levied in respect of the entire area of a piece of land even though a portion of it is covered by a building, and a Division Bench of this Court consisting of Sir Amberson Marten C. J., and Crump J. held that it is only on the area that was covered by the building that a building fine could be levied, and not on the area of the entire holding. In this case we are not concerned with the building fine. The observations at p. 1351 in the judgment of Crump J. are all obiter, and even as obiter he has not expressed any definite opinion in support of the submissions made by Mr. Murdeshwar. Neither of the two cases support the argument of Mr. Murdeshwar, and I am unable to accept the contention of Mi. Murdeshwar that his clients are liable to pay only the non-agricultural assessment as calculated on the basis of the actual area occupied by the building. His further argument that Rule 85, Bombay Land Revenue Rules, 1921, cannot have any application need not be considered in any detail. The learned trial Judge has not upheld the order of the Collector in so far as he directed the payment of non-agricultural assessment on the entire area of the three survey numbers. It must however be observed that it is difficult to understand what the expression 'within the compound of the building' in Rule 85, Land Revenue Rules means. The expression 'compound' is not equivalent to the expression 'compound wall', as otherwise the rule would apply only to a very limited class of cases in which there is a compound wall built round a building; and if the expression 'compound' is not used in the sense of a 'compound wall', it is difficult to imagine what would constitute a 'compound of the building' and as to who was to judge what the compound of a building is, in the absence of any demarcation where the compound of the building would end. However, in the present case, it is unnecessary to examine that argument, as in my view the order of the Collector levying non-agricultural assessment on four times the area on which structures were actually constructed (on the footing that four times the area is the minimum piece of land on which the area under the structures could have been permitted to be used for building purposes, is not shown to be ultra vires or illegal.
10. In that view of the case, this appeal must fail and is dismissed with costs.