1. In this case an issue was sent for a finding by the lower Court. The issue was whether the order of the Collector dated June 20, 1933, was illegal and ultra vires. The lower Court has, after taking evidence, returned the issue with the finding that the order was not illegal and ultra vires. If that finding is correct, the plaintiff's suit would be barred by limitation under Article 14 of the Indian Limitation Act. That is common ground. The only question is whether the finding of the lower Court is correct.
2. The plaintiff's case was that the Government had wrongly issued a notice under Section 66 of the Bombay Land Revenue Code for levying enhanced non-agricultural assessment on the whole area of his land, viz. 14 acres and 14 gunthas, plus a fine of Rs. 50. It appears from the evidence, and it is conceded also, that out of this total area an area of 7 acres and 8 gunthas was used by the plaintiff for non-agricultural purposes. His case, however, was that the remaining area of 7 acres and 6 gunthas was used for agricultural purposes, and that therefore the Government had no power to charge enhanced non-agricultural assessment for the whole of the area, and in any case, it had no power to levy it retrospectively from 1928 up till 1933 when the order was made. The plaintiff paid under protest the enhanced assessment for the eight years from 1928 to 1936, and this suit was filed to recover back the amount so paid under protest. The only question that now survives is whether the Collector's order to levy non-agricultural assessment on the whole of the land and that too for the whole period from 1928 to 1936 is valid. The determination of that question depends upon the evidence which has been led after remand. That evidence consists of two revenue servants examined on behalf of the Government and one ex-circle inspector who has been examined on behalf of the plaintiff. The lower Court has placed reliance upon the evidence of Chimanlal Gopallal, Exh. 73, who is a surveyor. He has deposed that he visited the land in dispute in 1928, and that although it was used for agricultural purposes before, he found that from 1928 onwards the land was occupied partly by a chawl, partly by a dhobi ghat, and the remaining open land was used for drying clothes and for the passage of waste water. He accordingly made a report in December 1929 to the Collector, which is Ex. 75. In the report he has stated that clothes were being dried in the open space measuring 12 acres and 16 gunthas apart from the land occupied by the dhobi ghat. As against that the plaintiff relies on the deposition of the ex-circle inspector, exh. 67, and the plan alleged to have been prepared by him in April 1928 in which it is alleged that the land, which was used for non-agricultural purposes, was demarcated from the rest of the land used for agricultural purposes. The plan, however, by itself does not throw any light on that question. It appears to have been sent to the Municipality, and at the most it shows the proposed manner in which the land was sought to be used. Witness Chimanlal says that he did not see any hedge between the two plots of the land and that the land was promiscuously used for drying clothes or the passage of waste water. We do not see any reason to disbelieve this witness especially as he made his report as early as in 1929. We have no doubt, therefore, that practically the whole of the land has been used for non agricultural purposes.
3. Mr. Thakor, however, contended that in any case the Government has no power to levy altered and enhanced non-agricultural assessment retrospectively, i.e. for the period of five years from 1928 to 1933 when the order was made, and he has relied upon a decision of this Court in Ahmedabad Ginning and . v. Secretary of State (1936) 39 Bom. L.R. 266, which follows a previous decision of our Court in Shapurji Jivanji v. The Collector of Bombay I.L.R. (1885) 9 Bom. 483. The facts of that case, however, were entirely different from those of the present case. In that case the Commissioner had made an order directing the Collector to take steps to revise the non-agricultural assessment of the lands under Sections 48 and 52 of the Bombay Land Revenue Code. No notice seems to have been given under Section 66, and on those facts it was held that the Government had no power under the provisions of Section 48 itself to levy non-agricultural assessment with retrospective effect. In Shapurji Jivanji v. The Collector of Bombay I.L.R. (1885) 9 Bom. 483 also it appears that the case fell under Section 48 and not under Section 66. It may be at once conceded that if the case falls under Section 48, the Government would have no power to levy non-agricultural assessment with retrospective effect. But there is no doubt, in our opinion, that if the case is governed by Section 66, as the present case admittedly is, the Government has the power to levy not only a fine but also new assessment which may be leviable under the provisions of Section 48 for the period during which the land has been used for non-agricultural purposes. That is expressly provided for in Section 66. Besides, Rule 86(b) of the rules framed under the Bombay Land Revenue Code also provides that where no permission was given the altered assessment levied for non-agricultural use shall always be levied from the first day of the revenue year in which the use commenced. There is no doubt, therefore, that the intention of the Legislature was that in a case where the land was converted to non-agricultural use without previous permission and which, therefore, falls under the provisions of Section 66, the Government is entitled not only to levy a fine but also the enhanced non-agricultural assessment for the whole of the period during which it has been so used. Section 65, which provides for the use of land for non-agricultural purposes with permission, also provides for a fine but not for retrospective payment clearly because the land is not so used at the time when the permission is sought. Where land is used without permission, Government must have the power, and it indeed has, to levy non-agricultural assessment for the period during which it has been so used. Mr. Thakor, however, contends that all that the Government can do is to levy a fine even in such cases and the amount of that fine may cover the amount of the enhanced non-agricultural assessment. But the express words of the section are: that this new assessment for the period during which it has been so used is to be levied over and above the fine imposed. In fact, this is an additional penalty. We, therefore, hold that under Section 66, which governs the present case, the Government has power to levy altered assessment for the period of five years between 1928 and 1933.
4. I may refer here to an unreported decision of Mr. Justice Chagla in Government of the Province of Bombay v. Borough Municipality of Ahmedabad (1944) Second Appeal No.764 of 1942. It has been relied upon on behalf of the appellant, but that decision has no application to the facts of this case. That case fell under the provisions of Section 45 of the Bombay Land Revenue Code and not under Section 48 or Section 66, and therefore no argument seems to have been advanced there regarding the provisions of Section 66.
5. The result is that the suit is barred by limitation under Article 14 of the Indian Limitation Act and fails also on the merits. The appeal is, therefore, dismissed with costs.