1. This appeal has been referred to a Division Bench by a Single Judge of this Court as it involves interpretation of some of the provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 (Bombay Act, No. LX of 1950) (hereinafter referred to as 'the Act' ). In both the Courts below a decree for injunction has been passed against the State of Maharashtra restraining them from executing a claim notice Exhibit 71 for the amount of Rs. 3,801.41 P. As the Courts below have held that the plaintiff-respondent is not liable to pay the amount, the State of Maharashtra has filed this second appeal for obtaining an adjudication that under the provisions of the Act as well as the Bombay Land Revenue Code, 1879 (hereinafter referred to as 'the Code'). which applies to all the resumed lands as a result of the implementation of the Act, In Madras in the position of the plaintiff would always be liable to pay the assessment. As this is a point of some importance, As this is a point of some importance, the appeal has been referred to the Division Bench.
2. The facts which must be noted for the purpose of understanding the dispute between the parties are these: Originally, plaintiff was admittedly the Inamdar of the Village Tilgaon in Thana District. For a few years after the Act came into force, the Revenue Department in the Thana District had no clear information at all about the nature of the grant in favour of the plaintiff. It is now undisputed that the grant in favour of the plaintiff's family was not a personal Inam but was a Paragana Inam. It is also undisputed that the village Tilgaon was an unsurveyed village till it was resumed under the Act. Under the Paragana Inam came to be abolished with effect from 1st May, 1951, as a result of the passing of the Act by the then State of Bombay. After about three years, the Mamlatdar Wada issued a letter (Ex. 58 ) dated 23rd January, 1954, informing the plaintiff that all his lands have been resumed by the State under the provisions of the Act and they are to be re-granted to him on condition that the plaintiff pays six times the assessment by way of occupancy price. This payment had got to be made on or before 30th April. 1954 and if this was not done he would be removed from the land. Within a couple of mothers thereafter. the Mamlatdar Wada, issued a notice (Ex. 52) dated 18th March, 1954, informing the plaintiff that he should not collect any revenue from the Khatedars direct as his personal Inam had been abolished from the 1st of August, 1953. This led to further correspondence in due course. There was lull for about 3 years or more and in 1957-58 considerable correspondence took place between the plaintiff on the one hand and the Mamlatdar and the Prant Officer on the other. The plaintiff pointed out to the Revenue Officers that his was not a personal Inam as was assumed in Ex. 52 but a Paragana Inam, not liable to render any service and as such, he was obliged to pay only six times the assessment by way of occupancy price. The further correspondence shows that the plaintiff never accepted the offer of regrant with conditions attached to it. As a result of this correspondence, the plaintiff by his letter (EX. 54) dated 26th November 1957, informed the Mamlatdar Wada that he had deposited an amount equivalent to six times the assessment, namely, Rs. 1,887.-.6-0 as also Rs. 489-9-0 by way of Munson as contemplated by the Code and thus credited in the Treasury a total mount of Rs. 2,373-15-0. This information was followed by a letter (Ex. 56) dated 9th February 1958 issued by the Prant Officer in favour of the plaintiff. The Prant Officer informed that the plaintiff. The Prant Officer informed that the plaintiff was a Paragana Watandar whose lands were resumed under Section 3 of the Act and the plaintiff having paid the occupancy price at six times the full assessment into the Wada Sub-Treasury as required by Section 4 of the Act, the lands mentioned in Column 3 of Schedule 'A' attached to the order were re-granted to the plaintiff who was the Watan-holder on new importable and inalienable tenure under Section 4 (1) and 4 (2) subject to three conditions. The first condition was that the grant shall be subject to the right of public, if any, that may be established under Section 4A of the Act. The second condition was that the right over the trees in the land regranted as mentioned in Column 3 of the Schedule 'A' attached to the Order is reserved with the Government. And the third condition was that an agreement in the prescribed form shall be executed by the grantee (the plaintiff) within a month from the date of receipt of the order with additional conditions of the order before the Mamlatdar Wada.
3. This order of the Prant Officer led to voluminous correspondence, during which the Mamlatdar realised that the village was formerly unsurveyed and as a result of fresh survey conducted the new assessment was fixed at a much higher rate than before. Since six times the full assessment was payable by the Inamdar and since the Mamlatdar felt that the new assessment of the plaintiff's land was Rs. 970-9-0, he sent a telegram dated 1st May, 1958, calling upon the plaintiff to state by wire or telegram whether he was willing to pay the differential occupancy price of Rs. 3,936-10-6, that is to say, the total occupancy price of Rs. 5,824-0-6 minus the payment of Rs. 1,887-6-0 as deposited by the plaintiff earlier. It may be very briefly noted that the plaintiff has never paid the difference which he was called upon to pay by Mamlatdar, nor has he every executed any agreement in favour of the State. The total payment made by the plaintiff is confined to Rs, 1,887-6-0, Which is six time the earlier Judi amount and not six times the full assessment of the land. The plaintiff all the while informed the Revenue Officer that he was not willing to accept the re-grant on terms and conditions proposed in Ex. 56. In fact, the plaintiff insisted upon three further conditions under which alone he would be willing to accept the re-grant. His first condition was that all the trees which in fact formed a forest must be re-granted to him and shall not be excluded from the grant. The second condition was that there were more lands of his ownership than shown in the Schedule 'A' and all of them must be included in the re-grant. His third condition was that after having prohibited the plaintiff from making any recoveries from the Khatedars as per Ex. 52 with effect the Khatedars as per Ex. 52 with effect from 1 st of April, 1953, the State Government effected recoveries through its Officer during the entire period of five years from 1-5-1951 to 31-4-1956 and therefore unless a clear account was rendered to him in regard to the recoveries made by the Government and credit given to the plaintiff for those recoveries, he would not be able to make payment. He however showed his readiness and willingness to pay whatever may be found due from him after the account is so rendered. The matter merely rested at this stage and there has been no actual re-grant as contemplated by the provisions of the Act as also the Rules made thereunder by the State.
4. Against this background, the plaintiff received a notice Ex. 71 dated 3 rd June, 1959, from the Talathi of village Saja Kone under whose jurisdiction the village Tilgaon falls. In this notice the Talhathi informs the plaintiff that he was liable to pay assessment to Government for a period commencing from 1st May, 1951 (that is the day when the Act came into force) upto 31st July 1956, After the 1st of August 1956 as a result of the provisions of the Bombay Tenancy and Agricultural Lands Act the assessment is being directly recovered from the tenants on the land. During these five years, the plaintiff is informed of the old assessment as also the revised assessment after the survey. A table is furnished in the said notice which points out the annual assessment during the period, recoveries effected by the State and the balance due and recoverable by the State from the plaintiff. This balance is claimed at Rs, 3,801.41 P. The plaintiff at once replied to this notice by Ex. 72 dated 14th June, 1959 and pointed out from effecting recoveries but still a claim during the period he was so prohibition from making recoveries is also being fastened upon him. Instead of accepting the grievance of the plaintiff, the plaintiff was called upon by the Mamlatdar by a to pay the amount of Rs, 3,801.41 P. telegraphically. It is not necessary to refer to the entire correspondence and it would be sufficient to state that the plaintiff found that not only his grievances were not being redressed but the Revenue Officers were making preparations for issuing distress warrant for recovering the sum of Rs. 3.801.40 P. from him. As the plaintiff felt that he was not liable to pay this amount of Rs. 3,801.41 P. and as he apprehended that the Revenue Officers would be enforcing the recovery of that amount by a distress warrant he served a notice under S. 80 of the Civil Procedure Code (Ex. 48) dated 24th August, 1959, and thereafter, filed the present suit on 18th January 1960.
5. Briefly stated, the plaintiff alleges in the plaint that the was being treated as a re-grantee from the mere fact that he deposited six times the Judi amount and that two different claims were made against him - one for the differential occupancy price and the other for the assessment amount of the period 1.5.1951 to 31.7.1956. He points out that he was prevented from effecting recoveries after 1.8.1953 and he has not made any recoveries thereafter. He further points out that the State of Maharashtra must have made recoveries thereafter and no account is being rendered to him of the recoveries effected by the State. As the plaintiff has not complied with the formalities of the re-grant there is no legal and valid re-grant and the plaintiff therefore is not liable in the circumstances for paying anything to the State Government. The plaint gives an impression that the plaintiff mainly relies upon the absence of a legal re-grant for disowning any liability to pay though in the history of the litigation that preceded he has pointed out that he was restrained by the order of the Revenue Officers from making recoveries and that also constitutes a ground why he would not be liable to pay.
6. The written statement of the defendant Ex. 32 is not very clear as to how the plaintiff is being held responsible. It is alleged that the plaintiff tentatively paid Rs. 1,887-6-0 on 24th July, 1954 and therefore a further notice was issued to him calling upon him to pay the differential occupancy price. It is explained that the letter of the Prant Officer dated 9th February, 1958, Ex. 56 does not effect any grant. The re-grant under Section 4 of the Act is conditional upon the payment of occupancy price which is size times the full assessment and the execution by the plaintiff of a regular Kabulayat as prescribed. Until this happens there is no re-grant in favour of the plaintiff. It is hen pointed that the re-grant of the resumed lands is governed by Section 62 of the Code and Rule 58 of the Land Revenue Rules under the provisions of the Code. As a combined effect of these provisions, the Collector is competent not only to reserve rights regarding trees etc., while giving a re-grant but he is also entitled to recover the assessment. It is further pointed out that even though the certificate might have taken quite some time to issue, it is within the competence of the Collector to assess retrospectively the revenue payable on the lands according to the proviso to Section 52 of the Land Revenue Code inserted by amending Act No. 28 of 1956. It is therefore pointed out that the claim of the State is lawful and it is open to the State to resort to such ways and means as are permissible under the provisions of the Code. Therefore, the plaintiff is not entitled to the relief of injunction. It is also pointed out that this being a mere money claim, the plaintiff may pay the amount first and claim a refund, if he is not liable. That would be an adequate and alternative remedy available to the plaintiff and the discretionary relief of injunction should not be granted to the plaintiff.
7. On these pleadings and after going throughout the oral and documentary evidence, the learned trial Judge came to the conclusion that there has been no regrant in the present case as the conditions on which the re-grant was offered are not fulfilled by the plaintiff. It is held that the Collector may have a right to levy and recover assessment retrospectively and when the plaintiff really becomes a grantee at some future date, if may be possible for the State to effect recoveries; but at the time when the suit was instituted and was being heard, the plaintiff was not a re-grantee of the land and as such, no recovery could be effected against him. It is pointed out that when a claim is not due and recoverable, the resort to distress warrant would affect adversely the rights of the plaintiff and the suggestion of the defendant State that the plaintiff should in the first instance pay the amount and then claim a refund of it would not be in the circumstances either an adequate or alternative relief available to him. The learned trial Judge therefore issued an injunction within the ambit of his reasoning against the defendant - State.
8. The defendant-State went in appeal and the learned Assistant Judge, Thana, confirmed all the findings of fact recorded by the trial Court and also re-iterated the legal position that in the absence of a re-grant, the plaintiff could not be called upon to pay the amount demanded from him and if he is on the land, the Government might take any action if they feel that he is a trespasser or if he has recovered any amount from the tenants, then a suit for damages might lie but no land revenue could be paid by him in the absence of re-grant to the holder of the Watan land. Incidentally, it is observed that if the plaintiff was not agreeable to execute a Kabulayat except upon certain, it is not possible for the State to enforce a Kabulayat upon an unwilling plaintiff. Since the plaintiff is not the holder of the Watan land by regrant, he cannot be called upon to pay the arrears of land revenue and whatever may be the other rights vested in the State, the present amount of Rs. 3,80141 P. could not be enforced by distress against the plaintiff. Being aggrieved by the decree and judgment of the learned Assistant Judge, Thana the defendant-State has filed this second appeal.
9. Stated in brief, the argument on behalf of the defendant-State was that the plaintiff may not be a re-grantee but on a proper construction of the provisions of the Act and the Code, he is always liable to pay assessment to the State until evicted from the land. arrears of land revenue are infact due from these disputed lands and they could be levied and recovered retrospectively by the Collector. It is also argued that since the claim is due and bona fide and since the relief of injunction is a discretionary relief, the Court should not exercise the discretion in favour of the plaintiff as he may have alternative and adequate remedies to redress his grievance, it any, against the State. The reply of only he is not a re-grantee of the Watan lands but there is no liability at all on his part to pay the assessment during the entire transitory period of five years from 1.5.1951 to 30.4.1956. Alternatively, it is argued that the circumstances obtaining on the record clearly show that the plaintiff was prevented from effecting any recoveries from the Khatedars from 1.8.1953 onwards and he never effected any recoveries as such in obedience to the order of the Mamlatdar. The notice which is sought to be enforced against the plaintiff covers the entire period of 1.5.1951 to 31.7.1956 and as such at least a major portion of the claimed against the plaintiff. This therefore is a fit case according to the plaintiff, where the discretionary remedy of injunction should be granted to the plaintiff where a person tries to redress his grievance and the Revenue Authorities instead of taking cognisance of the grievance take up high-handed attitude and threaten to recover moneys by issuing distress warrant, it would be, according to the plaintiff a pre-eminently fit case where injunction should be granted. It is further argued that where two Courts have consistently exercised discretion in favour of the plaintiff, in the Second Appeal no circumstances are shown by the defendant why this Court should interfere with that exercise of discretion by the Courts below.
10. So far as the facts of this case are concerned, it appears to us that the decree for injunction would be required to be maintained upon an approach which is not to be found either in the arguments addressed to the Courts below or in the judgments of the Courts below. However, the circumstance which influence us to confirm the decree of injunction are already present on the record and are well-known to both the parties. However, as the claim involves the interpretation of some of the provisions of the Act and the Code, we would proceed to discuss the legal position where from it will be apparent that the said interpretation of the provisions of the Act and the Code as made by the Courts below are incorrect.
11. We would therefore point out in the first instance the legal consequences that follows as a result of the implementation of the provisions of the Act. Now there is no dispute before us that the plaintiff's watan was a Paragana watan for which no service was required to be rendered. This watan came to be extinguished with effect from the 1st day of May 1951, which was the appointed day under the Act. The effects of extinguishment have been pointed out in Section 3 of the Act. For our purposes, the relevant sub-section 93) of Section 3 provides: 'With effected of extinguishment have been pointed out in section 3 of the Act. notwithstanding anything contained in any law, usage, settlement grant, sanad or order subject to the provisions of section 4, all watan land is hereby resumed and shall be deemed to be subject to the payment if land revenue under the provisions of the Code and the rules made thereunder as if it were an unlamented land'. It may be noted that the word 'Code' has been defined by the Act to mean 'the Bombay Land Revenue Code, 1879'. The first and the most undisputed effect of section 3 would be that all watan lands covered by the plaintiff's watan stand resumed with effect from the 1st of May, 1951. The further consequence is that they shed their earlier character as watan lands and become unlamented the Code. However, it would be appropriate to know the provisions of Section 4 subject to which this effect is to take place. Section 4 91), which is relevant for our purposes is as follows:
'4. (1) A watan land resumed under the provisions of this Act shall subject to the provisions of Section 4-A be re-granted to the holder of the watan to which it appertained on payment of the occupancy price equal to twelve times of the amount of the full assessment of such land within five years from the date of the coming into force of this Act and the holder shall be deemed to be an occupant within the meaning of the Code in respect of such land and shall primarily be liable to pay land revenue to the State Government in accordance with the provisions of the Code and the rules made thereunder; all the provisions of the Code and rules relating to unlamented land shall, subject to the relating to unlamented land shall, subject to the provisions of this Act, apply to the said land:
Provide that in respect of the watan land which has not been assigned, towards the emoluments of the officiator, occupancy price equal to six times of the amount of the full assessment of such land shall be paid by the older of the land for its re-grant:
Provide further that if the holder fails to pay the occupancy price within the period of five years as provided in this section, he shall be deemed to be unauthorisedly occupying the land and shall be liable to be summarily ejected in accordance with the previsions of the Code'.
It may be noted that the words and expressions used in the Act are to have expressions used in the Act are to have the same meaning assigned to them in the Watan Act and in the Code, as the case may be notwithstanding the fact a that the provisions of the said Act or Code may not be applicable. This is the provision of sub-section (2) of Section 2 of the Act. The real meaning of sub-section (2) of Sec.2 will have to be found in the light of the meanings which are assigned to the various words and expressions used in the Watan Act and in the code. According to us, the effect of the first part of sub-Section (1) of Section 4 is that all the resumed watan land has got to be re-granted to the holder of the watan to which it appertained on payment of a certain occupancy price. Since the first proviso of sub-section (1) of Section 4 applies to the facts of the present case, the occupancy price payable by the plaintiff would be six times the assessment and not twelve times as noted in the substantive part of the sub-section. As the section was initially enacted a period of three years was provided for making payment of occupancy price but as Section 4 now stands, the period is five years from the date of the coming into force of the Act, namely, 1st May, 1951. Therefore, the second effect of Section 4 is that this payment of occupancy price is permitted to be made within a period of five years from the date of the coming into force of the Act. It is a matter of volition for the former Watandar whether to make payment of occupancy price within time and accept the re-grant or not to pay at all within the permitted period. The second part of sub-section (1) of Section 4 as also the second proviso to sub-sec, (1) deal with the consequence where payment is made or where payment is not made. It payment is made the holder of the watan shall be deemed to be an occupant within the meaning of the Code in respect of such land and shall primarily be liable to pay land revenue to the State Government in accordance with the provisions of the Code and the rules made there under : all the provisions of the Act, apply to the said land. It therefore the payment is made in terms of the offer made to the watandar by the State Government, which consists of a demand of a certain occupancy price and the execution of a Kabuliyat, the Watandar becomes an occupant of the land in terms of the provisions of the Code and naturally he becomes liable to all the consequences that may follows from being an occupant under the Code. There are provisions in the Act like Sections 4-A, 5 and others which attach certain conditions to such lands and those consequences are also to attach to the re-granted lands, in addition to their effect, we are not concerned in this litigation.
12. It may be that the plaintiff watandar was hesitant and ultimately failed to pay the occupancy price within the statutory period of five years. The consequences of failure to pay the occupancy price have been provided by the second proviso quoted above which says that the holder shall be deemed to be unauthorisedly occupying the land and shall be liable to be summarily ejected in accordance with the provisions of the Code. In other words, non-payment of occupancy price brings about the consequence of the former watandar being deemed to be an unauthorised occupant with the liability to be thrown out summarily from the land in accordance with the provisions of the Code. so far as the provisions of Section 3 and 4 of the Act are concerned, they merely point out how the land will change its character and how the watandar who was in possession of the land, would change his legal status. sub-section (3) of Section 3 particularly lays emphasis on the fact that all watan land which is resumed under the Act shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unlamented land. Section 45 of the Code declares that all land, whether applied to agricultural or other purposes, and wherever situate, is liable to the payment of land revenue to the Government according to the rules hereinafter enacted except such as may be wholly exempted under the provisions of any special contract with the Government or any law for the time being in force. It would be therefore clear that the moment the Act came into force and Section 3 began to operate, all the watan land was automatically resumed and became unlamented land liable to payment of land revenue under the provisions of Section 45 of the Code. so far as the land is concerned, undoubtedly therefore the liability to pay revenue or assessment arose the moment it came to be resumed as a result of the provisions of S. 3. We therefore do not see the existence of any period of item between the termination of the character of the land as watan land and the transformation of its character into an unlamented land when no assessment or revenue is payable. It may be that when Government keeps land in its own physical possession the land may still be liable to pay land revenue, though there may not be actual recovery of its, the person paying any receiving the land revenue being the same. it would therefore be necessary to find out whether the land which was resume under the provisions of the Act is actually taken by the State at all. In fact, before the lapsing of five years from the coming into operation of the Act, there is not only a total prohibition against the State from resuming physical possession of the land but on the contrary there is an obligation on the State to re-grant the land to the holder of the watan on the terms and conditions prescribed in sub-section (1) of Section 4 of the Act. If the holder of the watan declines to accept the re-grant and falls under the second proviso to sub-section (1) of Section 4 by ;apse of time, a right in the State arises to summarily evict him from the land. In other words the provisions of Sections 3 and 4 are implied provisions and therefore, there is a mere technical change in status of the former watandar and there is no physical displacement of the former-watandar. On the contrary, he is given some time to consider whether he wants the regrant of the land on full assessment from the State or whether he wants to decline the re-grant which the statute itself offers to him.
13. What is the position of the former Watandar during this period of five years and what would be his legal status at the end of five years when he choose to pay the occupancy price and accepts the re-grant or when he chooses not to pay and declines to take the re-grant? According to Shri Shrikhande, the learned Counsel for respondent-plaintiff this is a sort of free period when no assessment is payable at all by the former Watandar. He is merely given time to think and accept or reject the regrant. The learned Counsel is partly right when he says that the State cannot compel the Watandar to make up his mind until the last day of the five years and cannot compel him to pay the occupancy price. he further adds that if a certain Watandar chooses to pay much earlier during these five years and also executes a Kabuliyat, even then though he gets the status of an occupant under the Code, the liability to pay assessment will arise only from 1.5.1956 and not earlier. Fro drawing such an inference about the liability or non-liability of the former Watandar we do not find any warrant in the provisions of Section 4 of the Act or in other provisions of the Act/ In our view, this is an interim period or an interregnum where the legal status of the former Watandar is kept in abeyance; but when the period of five years elapses and a certain even occurs, his status comes to be decided at once retrospectively for the entire period beginning from 1st May 1951. In other words, whether the operation of sub-section (1) of Section 4 of the Act together with its second proviso is prospective or retrospective is the main question which falls for consideration. Incidentally, it is also necessary to decide whether the liability to pay assessment or an equivalent amount by some other name, would arise from the first day after the resumption of the land by the State and if so whether a Watandar in the positions of the plaintiff could be held in law liable to pay assessment or an equivalent amount for the entire period from 1.5.1951 to 31.7.1956.
14. Mr. Shrikahnde's argument principally is that there is nothing in Section 4 (1) including the second proviso which provides for a retrospective determination of the nature of plaintiff's possession. We have already pointed out that the Legislature has declared in Section 3 (3) that all watan lands are resumed, but it has now here provided for immediate displacement of the Watandar from those lands. on the contrary, a period of three years which was subsequently extended to five years was allowed to the former Watandar to take a decision one way or the other. The necessary implication therefore is that during this period of five years the physical possession of the land as it was before remains undisturbed. Mr. Shrikhande does not want to quarrel with this part of the proposition, but what he says is that this period of five years is an absolute period, that during this period the possession of the former watandar is not unlawful but is like that of licensee in possession, that this decision has been taken ex parte by the Legislature without any consent of the Watandar and that the operative part of sub-section (1) of Section 4 dealing with the payment of occupancy price within five years thereafter indicates that the holder of the watan has to be deemed to be an occupancy of the land within the meaning of the Code in respect of such lands. Undoubtedly, the expression 'such land' refers to watan land and the holder is obviously the former holder of the watan. This deeming provision, according to Mr. Shrikhande, begins to operate only after five years, and from the termination of five years after the Act came into force the legal status of an occupant under the Code is ascribed to the former watandar. In the same manner, Mr. Shrikhande says that the second proviso to sub-section (1) of Section 4 contemplates a situation where the former watandar does not pay the occupancy price for five years. The consequence is that he is to be deemed to be unauthorisedly in occupation of the land and is made liable to be summarily evicted in accordance with the provisions of the Code. Shri Mr. Shrikhande particularly emphasises the provisions regarding the consequence to follows on non-payment of the occupancy price. he says that this circumstance create a liability in the watandar of being summarily ejected. Mr. Shrikhande then poses a question as to whether a summary ejection contemplated by the second proviso can ever be made retrospective and submits that it will always be prospective. If this is so and when the whole sub-section (1) of Section 4 deals both with the consequences of payment and non-payment of the occupancy price then the consequences there of must arise simultaneously. Accordingly to Mr. Shrikhande, it would not be legitimate to say that one consequence follows earlier and the other later.
15. We do no find any substance in this argument of Mr. Shrikhande. In our vie, the language of the substantive part of sub-section 91) of Section 4 together its provisos is clear enough to indicate that though the determination the nature of occupation is postponed to a future date as and when that determination takes place, it begins to operate retrospectively from the date when the Act became applicable. This is clear from the fact that while describing the consequences of payment or non-payment, similar language has been used by the Legislature. They have chosen the expression that the holder of the Watan is to be deemed to be either an occupant under the code or is to be deemed to be a person unauthorisedly in occupation of the land, if the consequences after payment or non-payment were to follows from that date, there was no need to use the expression 'deemed to be' which is an implied expression for indicating as to what status the occupation of the land by the Watandar during the interim period is to be clothed in. Since the occupation is a fact and since physical occupation of the land by the former watandar is not affected during the transitory period of five years, the only question that is to be decided is what is the nature of the former watandar's occupation. if the dormer watandar pays the occupancy price as laid down in Section 4 (1) he shall be deemed to be an occupant and if he does not pay the same he shall be as laid down in the second proviso to Section 4 (1) deemed to be unauthorisedly occupying the land. Thus, one the nature of occupation of the former watandar is determinate that shall be the nature of his occupation from the day the lands were resumed under Section 3 (3) of the Act. To us it appears to be clear that the expression 'the holder shall be deemed to be an occupant' occurring in Section 4 (1) of the Act clearly shows that the former Watandar holder, who was merely allowed to continue to occupy the land, is now being deemed to be an occupant for a period which has already elapsed without a decision begin taken as to be nature of his occupation. In the same manner, when the event of non-payment occurs and five years elapse, the Legislature again provides that 'he shall be deemed to be unauthorisedly occupying the land'. A person who was merely permitted to be on the land pending final decision regarding the nature of his occupation is now to be deemed to be unauthorisedly in occupation of the land all along and that is the terminology of the substantive provisions of the second proviso to sub-section (1) of Section 4. A resumed land which is an unlamented land can be either in the possession of the Government or in the possession of some one else and that some one else's possession could be either lawful or unlawful. It is difficult to imagine how the possession could be either lawful or unlawful. It is difficult to imagine how the possession of any citizen could be otherwise described. it will obviously be that for that period the occupation of the citizen, who is permitted to be on the land, is either lawful or unlawful as determined at a subsequent date.
16. Before we go to the provisions of the Code, we might point out that as the Legislature was contemplating the continuance of a former watandar on the land for some time beefier a final decision about the nature of his possession come s to be made, the Legislature also contemplated that such ex-watandar continuing on the land would be liable to pay land revenue. Sub-section (3) of Section 3 which declares that the land shall stand resumed subject to the provisions of Section 4 also says that the land 'shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unlamented land'. The obvious effect is that by the statutory declaration under Section 3 the land is declared resumed by the Government. Since this resumption is subject to the provision of section 4 and as the consequences of Section 4 have to take effect after the lapse of time of five years, the Watandar is continued on the land. However it is also declared that this resumed land is now unlamented land and is liable to pay assessment under the provisions of the Code. At this stage we might refer to the provisions of Section 45 of the Code. Section 45 of the Code provides that 'All land, whether applied to agricultural or other purposes, and wherever situate, is liable to the payment of land revenue to the Government according to the rules hereinafter enacted except such as may be wholly exempted under the provisions of any special contract with the Government or any law for the time being in force'. The Code has already declared all land as liable to pay land revenue to the State according to the rules made under the Code. This would have been the consequence of the former watan land which was resumed and on resumption acquired the character of unlamented land, even if there were no such provisions in the Act. But however the Legislature has amply made it clear by the latter part of sub-section (3) of Section 3 that all such resumed land is subject to the payment of land revenue, under the provisions of the Code and the rules made therefor. Undoubtedly, therefore, from the date of resumption, the resumed land has become liable to assessment. The only question to be determined is whether the former watandar like the plaintiff is also made liable to pay that assessment. That liability arises, according to us, as a natural consequence of the continuance of possession by the former watandar because of the provisions of the Land Revenue Code. The plaintiff in this case does not seem to have paid the occupancy price within the statutory period, whatever may be the reasons therefor. He would be deemed to be unauthorisedly occupying the land in view of the second proviso to sub-s 91) of S. 4. Can a person unauthorisedly occupying a resumed land be made liable to pay assessment? The answer seems to be obviously in the affirmative in view of Section 61 of the Code. Section 60 occurring in Chapter VI, entitled 'Of the Grant. Use and Relinquishment of unlamented Land', of the Code, provides that any person desirous of taking up occupied land which has not been alienated must, previously to entering upon occupation, obtain the permission in writing of the Mamlatdar or Mahalkari Section 61 of the Code says that any person who shall unauthorisedly enter upon occupation of any unoccupied land which has not been alienated, and any person who uses or occupies any such land to the use or occupation of which by reason of any of the provisions of the Act he is not entitled or has ceased to be entitled shall, if the land which he unauthorisedly occupies forms part of an assessed survey number, pay the assessment of the entire number for the whole period of his unauthorised occupation. It is therefore clear under deeming provision of Section 4 of the Act that in cases where there is no regrant but the plaintiff's physical occupation of the land is declared to be unauthorised, the plaintiff is obviously unauthorisedly occupying the unlamented land without there being in his favour any authority for it. Such a person clearly falls under Section 61 and is made liable to pay assessment for the whole period in the first instance and something more by way of penalty if the Collector so decides. Since the Legislature permitted some time to persons like the plaintiff either to accept or decline to accept the grant, it stand to reason that the Collector would claim form such watandars only assessment and nothing more under Section 61 for that period of occupation permitted by the Statute itself. This is to a case of a rank trespasser who invades the Government land but this is case of a person who is in lawful possession the character of whose possession is changed by the effect of a Stature. it is therefore reasonable that the claim against such persons in occupation would be only equal to the land assessment and not more. We have therefore no doubt that watandars in the position of the plaintiffs who have declined to become re-grantees would be liable to pay assessment of the entire survey numbers in their possession under the provisions of Section 61 of the Code.
17. In the instance case, the claims made out by the Talhathi in Ex. 71 only relates to assessment for the requisite period and nothing more. We are therefore of the view that a watandar who has declined to take the re-grant of the land is liable to pay assessment for the entire period beginning from 1st May, 1951. Shri Shrikhande tried to argue before us that the Legislature was conscious that it was depriving the watandars of their long-standing vested rights and it was a also conscious that a majority of the watandars may accept re-grant by paying six or twelve times the assessment, as the case may be, by ways of occupancy price. There may be some who would not want a regrant. taking into account the fact that occupancy price either at six times or twelve times would be sufficient compensation to the State for the period of five years during which the former Watandars were allowed to retain possession of watan lands, a sort of concession argues Mr. Shrikhande, is made to the former watandars by not charging them assessment. Mr. Shrikhande says that the Act contemplates compensation being given to the watandars whose watans were abolished in addition to the express provision for compensation made elsewhere. This appears to be, according to Mr. Shrikhande, additional compensation proposed to be given to the watandars by the Legislature in an indirect manner. our discussion of the provisions of the Code and more particularly, the provision of Section 45 and 61 make it clear that the liability of the land to assessment is always there, irrespective of the fact whether the person in occupation of the land occupies it lawfully or unlawfully. The provisions of Section 3 and 4 of the Act were definitely not meant for considering ht equestrian of compensation to the watandars. They deal with the consequences that must follows format the fact of resumption and the offer of alternative right to the watandars if they are inclined to accept the offer. If it not the function of Section 3 and 4 of the Act to consider the question of compensation, nor does it seem to be the place for considering that subject tin the scheme of the Act. Moreover, since the deeming provisions of Section 4 retrospectively decide the nature of possession and give it a legal character for the entire period, the consequences of payment of assessment would be the direct result format the determination of the status of the occupant. We do not find any substance in the argument of Mr. Shrikhande that non-payment of assessment during the transitory period is pensation to the watandars.
18. Mr. Shrikhande referred during the course of his arguments to some of the observations in Maxwell on the Interpretation of Statute regarding strict construction of taxing statutes. Those are well-known principles and obviously in the absence of clear provisions the Court would always lean in favour of a citizen and not make him liable to pay any tax unless clearly imposed. However, the discussion of the provisions of the Code which we have already made shows that the Code lays down in unmistakable terms the liability of the land to pay assessment and also the liability of a person in occupation, whether lawful or unlawful, to pay that assessment. Since from the day of resumption of land this liability under the Code is made to a rise by the latter part of sub-section (3) of Section 3 of the Act, this is a case where the liability has been expressly indicated and the courts are not required to strain the language of the statute for imposing the tax or liability upon the citizen.
19. One of the points urged on behalf of the respondent-plaintiff against the claim for assessment was that not only assessment is being claim retrospectively but even the levy of full assessment is being made retrospectively. The watan village was an unsurveyed village before the Act came into force and survey of the village was undertaken only after the coming into force of the Act for determining the full assessment of the land. That determination took place sometime in 1958. But however full assessment at the revised rates is being levied retrospectively form 1.5.1951. This is being styled by Mr. Shrikhande as an unlawful and highhanded act of the State. However the provisions of Section 52 of the Code came to be amended by sub-section (1) of Section 3 of the Amending Act No. 28 of 1956 by adding a second proviso to sub-section (1) of Section 52 of the Code. Under this proviso, it is now laid down that where any land which was wholly or partially exempt from payment of land revenue has ceased to be so exempt, it shall be lawful for the Collector to fix the assessment of the amount to be paid as land revenue on such land with effect from the date on which such land ceased to be so exempt or any subsequent date as he may deem fit. as all watan land by reason of resumption assumed the character of unlamented lands liable to pay assessment and as in some villages some such lands were unsurveyed, it was necessary to conduct a survey of those lands before assessment could be determined, the Legislature provided that from the day the earlier exemption from payment of land revenue ceased, it would be lawful for the Collector to levy full assessment on such lands. since survey of lands is bound to take some item, the legislature left it tot the discretion of the Collector either to levy such full assessment from the date when the exemption from payment of land revenue ceased on from a later date. In the present case, the Collector has chosen to levy full assessment from the 1st May, 1951. To us it therefore appears that the levying of full assessment retrospectively was legal and valid under the second provisory to sub-section (1) of Section 52 of the Code.
20. The last point which the learned Assistant Government Pleader urged before us for the first item was that from very order of a Revenue Officer an appeal or revision lay to his superior officer under Section 203 of the Code. Plaintiff has not taken advantage of the remedy but has straightway rushed to the Court. For this reason, the learned Government, Pleader wants us not to confirm the decree of injunction passed by the Courts below. We may assume that some proceedings could have been taken under the Code either by way of an appeal or a revisions but there are obvious reasons why this argument cannot be entertained at this stage. firstly, this was never the defense taken up by the State in its written statement, now was nay such argument made ever before. The second reason which more particularly compels us not to accept this argument is that the attitude of the Revenue Officers as seen from the correspondence shows that they preferred to harass the ex-watandar thinking that this was the surer remedy to recover the dues rather than recover its from the tenants who were in actual possession of the land. In any case, there is no provisions of law that without approaching the Revenue Officers one cannot come to Court.
21. Our above discussion will make it clear that both the Courts below were wrong in thinking that unless there is a re-grant, there is no liability to pay assessment. In spite of the fact that the reasons given by the Courts below are erroneous, we are inclined to uphold the decree of injunction in this case. Our reason for upholding the decree of injunction stems from the peculiar facts and circumstances of this case. We have gone through the entire correspondence conducted by the plaintiff with Revenue Officers which is available in the form of Exhibits in the case. We find in the first instance that the Revenue Officers of Thana District were not at all aware about the real nature of the Inam. They initially thought that this was a personal Inam and not a Paragana Watan. Personal Inams were abolition Act, 1952 (Act No. 42 of 1953) with effect from the 1st of August, 1953. Thinking that the plaintiff's watan fell under the provisions of that Act, the order Ex. 52 dated 18th March 1954, came to be issued against the plaintiff by the Mamlatdar. Wada, District Thana, Under this order the plaintiff was informed that his personal Inam was abolished with effect from the 1st of October, 1953, regarding the villages Tilgaon and Kambre and he should call at the Mamlatdar's Office on 28th March 1954, at 11 a.m. sharp with village record sin his possession for handing them over to the village officers concerned. He was further informed that he shall not collect any revenue form the Khatedars direct. This order was construed by the plaintiff and has in fact actually operated, as a sort of prohibition against the plaintiff from recovering any duress from the Khastedars, namely, the tenants in cultivation. The judgments of the Courts below show that it was not begin disputed by the State that the plaintiff did not and could not recover any income from the village form 1st August 1953. After a protracted correspondence, it was realised that the Inam was a Paragana Inam and not a personal Inam. however, in spite of plaintiff's pointed and repeated reminders no steps were taken by the Revenue Officers, till the issuance of notice Exhibit 71 dated 3rd June 1959, for withdrawing the prohibition imposed on him by the order Exhibit 52. a peculiar situation that developed is that the plaintiff could not recover anything form the village from 1.8.1953 to 31.7.1956 but still a claim for assessment for that period was included in the demand notice Exhibit 71 dated 3.6.1959 issued against him. It was s statutory right of the plaintiff to be in possession of the watan lands for a period of five years from the appointed day under the Act. Even if the Watandar were not to pay the occupancy price, he could not be evicted summarily before the termination of the period of five years. The second proviso to sub-section 91) of Section 4, which we have exhaustively dealt with above, gives to the State the right of summary eviction only after the deeming provisions relating to unauthorised occupation begins to operate and not before. It may be that the Revenue Department had no clear record then in regard to the nature of the grant in favour of the plaintiff and this might have been responsible for the passing the order Ex. 52. However , it can be said that it was clearly unlawful and arbitrary to pass such orders. The liability to pay assessment by a reason unauthorisedly occupying the land arises under Section 61 of the Code, because he occupies and takes income thereof or is in a position to take income thereof. The effect of the prohibitory order issued at Ex. 52 is that the plaintiff, is prevented as if from occupying the land from 1st August, 1953, because he is prohibited from recovering any income thereof. The justification for the right of the State to recover assessment from a person in unauthorised occupation is that fact of possession by the occupier which enables him to take income thereof; whether he actually takes the income thereof or not may not be a matter of any consequence. But the fact that he could take income of the land or the fact that he was in a position to take income thereof makes him liable to pay assessment. The effect of the order Ex. 52 is almost the same as if he was physically evicted from the land. The appellant State Government in this case is, in a sense, evicting a person and still claiming assessment from him though that person is not in effective possession of the land as contemplated by Section 61 of the Code. When these provisions were discussed the learned Assistant Government Pleader for the State said that the claim in Ex. 71 also covers a period up to 1.8.1953 and why should the state be prevented from recover in the duress for a period earlier to that. this kind of posture is now taken up only for the purpose of argument and the learned Assistant Government Pleader was not able to state whether his instructions were that the notice Ex. 71 would be withdrawn and appropriate action would be taken for the period before 1.8.1953. So far as the contemplate foundation of the Revenue Officers is concerned, there is a demand fro the whole amount up to 31st July, 1956, and preparation was made for enforcing that whole demand by distress proceedings. It is this threat which is the foundation of the cause of action in the present case. Where amount is not due as can be seen clearly from the record of this case, at least for a longer period, it would not be fair for the State Government to take up the position that the plaintiff may pay the whole amount and thereafter claim refund. The consequences of distress warrant are well known. The plaintiff is a respectable citizen and a former watandar of the village. His chattel and immovable property could not be attached and sold by distress warrant when a part of the claim at least is obviously not due from. it is this action of the State which we find must be prevented by an order of injunction otherwise the plaintiff would be left with no adequate alternative remedy.
22. We may also make it clear that the purpose of present litigation was to point out that the notice Ex. 71 as is issued in this case is unlawful and any action thereunder is restrained by an order of injunction. If the respective parties have any other rights and duties apart from this notice Ex. 71, the limited injunction which is being confirmed in this case is neither a complete charter to the plaintiff not to pay nor is a total prohibition against the State from resorting to lawful ways and means for recovering anything which may be legitimately, if at all, due to it.
23. This being our view, the appeal fails and is dismissed with costs.
24. Appeal dismissed.