1. The facts necessary for the decision of the present ease may be briefly stated as follows.
2. The plaintiff purchased certain plot numbers in Survey No. 119 at Santa Cruz, and after his purchase he erected upon a portion of the total area a building covering 146 square yards. The exact area of the whole land need not necessarily be stated in the view which we take of the present case, but it may be said that it was very much larger than that, and that it was only a small portion that was covered by the building. That there was a previously existing structure used for agricultural purposes does not affect the present matter. It is conceded that the erection of this building was, so far as that portion of the land is concerned, a conversion of this agricultural holding to a non-agricultural purpose. Before the lower Court a question arose as to the altered assessment which in those circumstances might be levied under the provisions of a 48 of the Bombay Land Revenue Code. With that point we are not now concerned. It may, however, be remarked that the lower Court, relying upon what is now Rule 81 of the Rules under Section 214 of the Bombay Land Revenue Code and also Rule 85, held that the altered assessment could be levied upon the whole area and not merely upon the area occupied by the building. That point not being before us, we do not propose to express any opinion upon it, but speaking for myself, I must not be taken as acquiescing in the view taken by the lower Court.
3. What we are concerned with here is the fine which is admittedly payable by the respondent under the provisions of Section 66 of the Bombay Land Revenue Code. That section lays down, reading it with Section 65, that if any land assessed or held for purposes of agriculture be used without the permission of the Collector for any other purpose than that of agriculture, then the person so using the land shall be liable to be summarily evicted by the Collector from the land so used and from the entire survey number, and shall also be liable to pay in addition to the new assessment which may be leviable under the provisions of Section 48 such fine as the Collector, subject to the general orders of Government, may direct. Now, the meaning of the section seems clear enough in itself. It contemplates plainly a survey number and a portion of a survey number which has been diverted from an agricultural purpose to some other purpose, which indeed is the case here. But it does not say in terms that the penalty leviable under the section can be levied with reference to the whole of the survey number. In order to decide what penalty is applicable, hat is to say, with reference to what area it is to be calculated, we have to refer to Rule 100 of the existing rules under Section 214, And assuming that this field comes within Clause (1), as we are told it does, the maximum would be Rs. 1,250, and it is leviable ' per acre of the land actually used for any purpose unconnected with agriculture and at the same rates in proportion as to any fraction of an acre. Therefore, it would be in each case a question of fact to be determined, what area has been used for any purpose unconnected with agriculture. The facts as disclosed in the present case are that except for the area covered by the building, no use has been made of the rest of the land with the exception that occasionally vegetables are grown upon it. It is thus impossible to say that anything except the site has been diverted to a non-agricultural purpose. The fact that it has remained to a large extent unused for agriculture does not touch the matter, for the holder is not bound to cultivate the land. He can, if he likes, leave it uncultivated. Therefore for the purposes of Rule 100 considered in the light of the facts of this case, one would say that only the actual site is chargeable with fine. And that is the view which has been taken by the Court below.
4. But it has further been argued before us that we must have reference to Rule 101, that we must regard this as a building site, and for the purpose of understanding what is meant by building site, we must refer to the definition in Section 3, cl. 9, of the Bombay Land Revenue Code. That point was apparently never raised in the Court below, and whatever may be the definition in Section 3(9), it must necessarily be a question of fact in each case to decide what portion of the area falls within the term ' building site '. ' Building site' is there defined as a portion of land held for building purposes and it is said to include the open ground adjacent to any building erected thereupon. The word adjacent is extremely vague, and must necessarily be construed within reasonable limitations, And, in the absence of any inquiry directed to this point and of any evidence upon it, it would be impossible by the mere force of this definition to hold that the whole of this land should be regarded as a building site. Though we are not dealing with a penal statute in the strict sense of the word, nevertheless, this is in the nature of a penal statute, and there* fore must be strictly considered in favour of the subject. Bearing that in mind it is not established in this case that the whole of this area should be regarded as building site within the definition contained in Section 3(9), and therefore it is impossible to apply Rule 100 in the sense in which it is desired to apply it.
5. A further point has been raised as regards the question of penalty. Section 148 is invoked. It is said that the case falls within that section, and the Collector, therefore, may impose as a penalty such amount as has been fixed from time to time under the orders of the Governor in Council. We may take it that the maximum penalty is one-fourth of the land revenue overdue. That is the result of the orders of Government to which we have been referred, and is indeed a matter of common knowledge among those who are familiar with revenue law, but before Section 148 can be invoked it is necessary that it should precisely apply to the facts of the present case. Section 148 deals with failure to pay instalments of land revenue within the prescribed time, and referring back to Section 146 where these land revenue instalments are introduced, for the first time in the Act so far as I am aware, it is perfectly clear that what is meant by instalments of land revenue are those instalments of the total land revenue payable for the year which have to be paid at dates fixed from time to time by Government. So far as I understand the matter, Section 148 has no bearing whatever upon the question now before us. We are dealing hero with a fine leviable under the provisions of Section 66, and I fail to see how that can be regarded in the light of an instalment of land revenue within the meaning of Section 146. That being so, Section 148 has no application to this case, and the further citation of Section 187 becomes meaningless for that section merely provides cue procedure by which monies leviable under the provisions of the chapter can be recovered. Unless this penalty is so leviable Section 187 does not apply to it.
6. Those are the only two points that have been argued before us, and we think that upon both the points the decision arrived at by the lower Court is correct, and ought to be affirmed, and this appeal ought to be dismissed with costs.
Amberson Marten, Kt., C.J.
7. I agree. The memorandum of appeal shows that in any event the plaintiff was entitled to be repaid Rs. 473-1-6. That was because the Collector's notices were based on an erroneous area, viz., 3,146 square yards whereas the correct area was 2,043 square yards.
8. As regards the increased assessment which the lower Court has found to be leviable, there has been no appeal by the defendant, and I respectfully agree with what my brother Crump has said that under those circumstances it must not be taken that we acquiesce in the correctness of the decision on that point by the learned Judge.
9. Next, turning to the question of fine, in my opinion the words 'any such land' in Section 66 must be given the same meaning as the same words 'any such land' in the concluding paragraph of Section 65. That takes us back to the second paragraph of Section 65, viz., 'his holding or any part thereof '. Consequently, as I read Section 66, it applies to the holding or such part thereof as has been used for non-agricultural purposes. User is therefore the test whether for the whole land or only a part. This construction of Section 66 is borne out by the provision that the Collector may eject from 'the land so used,' and also from the entire holding or survey number of which that particular portion forms part. On that construction I think the Collector had no power in law to impose the fine that he purported to do in the present case, for only a portion of the land was used for non-agricultural purpose, and not the whole.
10. I wish to add this. Speaking for myself I fully appreciate the importance of preventing the holders of Government land who have got that land on certain conditions, e. g., as agricultural land, from turning that land or any portion of it into land for nonagricultural purposes. But the penalty given by the Act must be fairly construed. Before us, the contention of the Government Pleader went to this extent, (if I understood it correctly), viz,, that supposing there was a farm of 10(sic) acres which according to him would form one 'holding', and supposing a small summer-house or bathing hut or some other small non-agricultural building was put up on a few square yards of that farm, that would nevertheless result in an increased assessment for the whole 100 acres, and also in a liability to ejectment from the whole and in a liability to pay fine and penalty upon the whole. In my opinion that is not the true construction of the Act, although I quite appreciate that a tenant can be forced by proper means to keep his contract or be ejected, just as would be the case in an ordinary case of landlord and tenant where a tenant broke certain covenants of the lease, subject of course to the power of the Court to relieve from the forfeiture on certain equitable grounds.
11. As regards the penalty I entirely agree with my learned brother that that also is not leviable. Section 66 provides in effect penalties for a defaulting tenant. In my judgment it was never intended by Section 148 to pile penalty on the top of penalty in that indirect way, I agree that Section 148 has no application on the present case.
12. I concur, therefore, that this appeal should be dismissed with costs.