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The Collector of Bombay Vs. Kamalavahooji Maharaj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 57 of 1928
Judge
Reported inAIR1934Bom162; (1934)36BOMLR297
AppellantThe Collector of Bombay
RespondentKamalavahooji Maharaj
DispositionAppeal allowed
Excerpt:
.....districts of the bombay presidency, and has no application to lands situate within the town and island of bombay.;the court presumes that a person entitled to property will assert his rights, and that if he has not asserted his rights for a long period of years, those rights have been granted away. the presumption, however, cannot be made in the case of government's right to levy a tax, which is a prerogative right. it cannot be presumed, therefore, that because government has not for many years assessed particular land, that land has been granted free from liability to assessment - - that right if vested in the crown is clearly a prerogative right, and if vested in some body claiming through the crown it may be a liberty or franchise, but is clearly in the nature of a prerogative..........that guru.2. the learned revenue judge in his judgment goes into the history of land tenure in the island of bombay, and it is not, i think, necessary to deal with that matter at any length. it seems that when the island of bombay was under the king of portugal tenures were mostly of a feudal nature, that is to say, the land was held in return for sevices to be rendered to the crown. in 1661 the island of bombay was transferred by the king of portugal 'to the king of england, and in 1669 by letters patent the king of england transferred the island with all his rights and powers in connection therewith to the east india company, and it is, i think, clear that the east india company thereby acquired the general right to assess lands to tax, that being a right which has always been.....
Judgment:

Beaumont, Kt., C.J.

1. This is an appeal by the Collector of Bombay from the decision of the Bombay Revenue Judge. The plaintiff filed a suit praying for a declaration that there is a right on the part of the plaintiff in limitation of the right of Government to possess and hold her land mentioned in the plaint free from assessment for land revenue, or in the alternative, that it may be declared that the said land is liable to be assessed as of pension and tax or quit and ground tenure. The plaintiff is the present spiritual head of a Hindu Vaishnava temple situate at Cutch-Mandvi and as such is the owner of a piece of land situate at Bora Bazaar Street within the Fort, which is the piece of land in question in suit. So far as the title is concerned, the earliest title deed is dated 1788 and is a conveyance to two persons; then the property seems to have descended to the daughter of one of those persons, who in 1828 devised the land to her spiritual guru and the plaintiff claims under that guru.

2. The learned Revenue Judge in his judgment goes into the history of land tenure in the island of Bombay, and it is not, I think, necessary to deal with that matter at any length. It seems that when the island of Bombay was under the King of Portugal tenures were mostly of a feudal nature, that is to say, the land was held in return for sevices to be rendered to the Crown. In 1661 the island of Bombay was transferred by the King of Portugal 'to the King of England, and in 1669 by Letters Patent the King of England transferred the island with all his rights and powers in connection therewith to the East India Company, and it is, I think, clear that the East India Company thereby acquired the general right to assess lands to tax, that being a right which has always been possessed by the governing power in India. After that transfer there seem to have been disputes between the Company and various holders of lands who claimed to have acquired their lands from the King of Portugal. In 1672 an agreement was come to between the Government of Bombay and those various subjects, which is known as 'the Aungier Convention'. The effect of that was that the title of the persons who claimed the lands within the island was admitted subject to their paying an annual sum of 20,000 Xerphins and the lands subject to that tax are now known as pension and tax lands. There is no evidence that the land in question in this suit is pension and tax land, and there is no suggestion that any part of pension and tax has ever been paid in respect of that land. I think that we must assume that the land in question originally belonged to the King of Portugal and passed to the East India Company. It appears from the Dickinson survey which was made in 1813 that this land at that date did not pay any tax because it is mentioned in the survey as ' paying no ground rent'.

3. Mr. Vakeel has suggested that the English statutes of limitation have some bearing on the question at issue, but, in my opinion, that argument is untenable. Apart from the question of any express limitation on the rights of the Company, it seems to me that the only way that the plaintiff can put her case is to say that inasmuch as she or her predecessor-in-title have been in possession of this land since at any rate 1788, and inasmuch as no land revenue has been paid at any rate from 1813, we ought to presume a grant to the plaintiff or her predecessor-in-title free from liability to be assessed to land revenue. No authority has been cited in favour of such a presumption. No doubt the Court always presumes that a person entitled to property will assert his rights, and if it is shown that for a long period of years he has not asserted his rights, the Court will presume that those rights have been granted away. But, in my opinion, that presumption cannot be made in the case of Government's right to levy a tax. That right if vested in the Crown is clearly a prerogative right, and if vested in some body claiming through the Crown it may be a liberty or franchise, but is clearly in the nature of a prerogative right. Government are not bound to levy assessment every year on all the lands over which they have power to levy assessment. There may be very good reasons why Government for a long period think it undesirable to assess a particular piece of land, and I think that it would be altogether unreasonable to presume that because Government have not for many years assessed particular land therefore that land has been granted free from liability to assessment. In this particular case, Government may have taken the view that this land was used for charity, and that it was undesirable to assess it. But if subsequently the policy of Government, or the user of the land, changes, it would be unreasonable to hold that Government have lost their right to assess. I, therefore, agree with the learned Revenue Judge that apart from the question of express limitation the plaintiff's case must fail

4. The learned Revenue Judge has, however, held that under Regulation XVII of 1827 there was an express provision exempting lands from the payment of land revenue if no payment had been made for sixty years. The first answer made by the Advocate General to that is that Regulation XVII of 1827 applied only to the moffusil and not to the city of Bombay. In 1827 a considerable number of Regulations were passed-all on January 1,-and it is necessary to read them together. The first Regulation is entitled 'A regulation for forming into a regular Code all Rules that may be enacted for the internal Government of the Territories subordinate to the Presidency of Bombay.' That Regulation, I take it, would apply to all the territories subordinate to the Government of Bombay and that general regulation repeals all the previous regulations. Then Regulation II deals with the constitution of Courts of Civil Justice, and the only material provision in that regulation is Section XVI and Appendix (E). Section XVI provides : that there shall be a Judge in each zillah, who shall preside over the Court of Adawlut and have general control over the establishment annexed thereto, and the zillahs at present established under the Presidency of Bombay are as specified in Appendix (E). When one looks at Appendix (E) one finds various zillahs described in respect of the various moffusil districts, and then the last one is headed 'The Presidency' and the Court referred to under that heading is the Court exercising revenue jurisdiction of the Island of Bombay and its adjacent dependencies. So that, in that Regulation zillahs include the Revenue Court, and 'The Presidency' seems to be used as meaning the island of Bombay. The next material Regulation is Regulation XVII, and one has to determine whether that Regulation applies only to our moffusil or to the moffusil and the island of Bombay. It is headed 'A regulation for the territories subordinate to Bombay, prescribing Rules for the assessment and realization of the land revenue and so forth.'The expression' territories subordinate to Bombay ' taken by itself would, I think, include the ' Island'. The Regulation deals with zillahs, but that expression might include the island Court as in Regulation II. In Regulation XVII, Chapter IX, Section XXXVI, it is provided:

Whenever land has been enjoyed without payment of public revenue, for more than sixty (60) years, in succession, by any person, his heirs or others deriving right from him/such enjoyment shall be considered as sufficient title to the exemption.

5. The question is whether that provision applies to the island of Bombay. Now there seems to be nothing in Regulation XVII which expressly excludes the island of Bombay, and, as I have said, the title by itself would include the Island. But, on the other hand, there is nothing in the Regulation which expressly deals with the island, and when one comes to the Appendices they do not seem to cover the island. Appendix A contains a list of tenures recognised by the custom of the country. All the tenures referred to there are moffusil tenures, and not tenures applicable to the city of Bombay. Then the form of notice in Appendix B seems appropriate to moffusil, and not to the city of Bombay. In Appendix C there is a list of officers who, under former Governments, had power to confer grants exempting lands wholly or partially from the payment of public revenue and the list does not include the King of Portugal from whom the island of Bombay was acquired. There is, therefore, some internal evidence to show that the Regulation does not include the island of Bombay, but I am disposed to think that there is not sufficient evidence in the Regulation itself to exclude the island of Bombay. We next come to Regulation XIX, and as I have said, all these Regulations, which were passed on the same day, must be read together. This is intituled 'A regulation for the Presidency, prescribing rules for the assessment and collection of the land revenue.' It is, I think, clear that throughout that Regulation 'the Presidency' means island of Bombay. The first section provides that there shall be a Collector of Bombay for the purpose of collecting the land revenue of the Presidency. That clearly refers to the Collector of the city of Bombay. Then the Regulation provides how the revenue is to be collected and so forth. In the 3rd section it is provided:

The land revenue of the Presidency shall be assessed and levied by the Collector and his assistants, according to the principles laid down in Regulation XVII, A. D. 1827, Section III, the three first Clauses of Section IV, Section V and the first Clause of Section VI.

6. Now it is obvious that that provision is wholly inconsistent with the theory that Regulation XVII itself applies to the island of Bombay. If the Regulation applied, there would be no necessity to provide that the Collector was to levy assessment on the principles laid down in Regulation XVII. The second clause of Section IV of Regulation XVII, which is one of those incorporated in Regulation XIX, provides:

When there is a right on the part of the occupant in limitation of the right of Government, in consequence of a specific limit to assessment having been established and preserved, the assessment shall not exceed such specific limit.

7. Regulation XIX contains no provision such as is contained in Regulation XVII exempting land from liability to assessment if such exemption has been enjoyed for sixty years. Mr. Vakeel has argued that we must read into Regulation XIX such a provision because that is one of the methods of proving that the land is held in limitation of the right of Government. But, in my opinion, that argument in untenable. I think that all that Regulation XIX provides is that the assessment is to be levied on the principles laid down in (amongst other sections) Section IV of Regulation XVII, and that it does not incorporate the method of proving the right of the owner of the land to hold in limitation of the right of Government. It seems to me, reading those two Regulations together, that Regulation XVII must be limited to the moffusil districts and that Regulation XIX deals with land within the island of Bombay, and that as Regulation XIX contains no provision that sixty years' enjoyment of the land free from the payment of tax is to be sufficient evidence of exemption from liability, we cannot read such a provision into the Regulation. The subsequent history of the matter supports that view. The material provisions of Regulation XVII were repealed by Act VII of 1863 which contains a fresh provision as to limitation in respect of land which had been held free from assessment for more than sixty years, although that Act was limited to land held on recognised tenure, and there is no evidence that the land in question in this case is held as on any recognised tenure. Then the rest of Regulation XVII was repealed by the Land Revenue Code of 1879 which deals with moffusil lands, and Regulation XIX was repealed by the Bombay City Land Revenue Act of 1876, which deals only with land within the City of Bombay. So that Government apparently treated Regulation XVII as applying to moffusil land, and Regulation XIX as applying to the city of Bombay. We are not of course bound by the view which Government took as to the effect of the Regulations, but, for the reasons I have given, I think that the view Government took is the right view and that Regulation XVII does not apply to land in the city of Bombay. On that ground, I think, we must differ from the judgment of the learned Revenue Judge.

8. The Advocate General took a second point which does not arise having regard to the view I take of Regulation XVII, but I will notice it. That point is that Section XXXVI of Regulation XVII only provides that whenever land has been enjoyed without payment of public revenue for more than sixty years in succession such enjoyment shall be considered as sufficient title to the exemption, and does not provide that the owner of such land shall be entitled to hold it free from liability to assessment. So that the section deals only with the method of proof of exemption. Consequently the Advocate General says that when that Regulation was repealed it became of no use to the plaintiff. The plaintiff's answer is that repeal of a statute never affects rights acquired under it. That, no doubt, is so, and I should agree with the contention of the plaintiff on that point if the effect of the Regulation was to provide that sixty years' enjoyment was to confer an indefeasible right to the land free from the liability to tax. But I am disposed to think that the Advocate General is right when he says that these provisions merely deal with evidence necessary to prove exemption, and that as soon as the Regulation containing those provisions was repealed the plaintiff ceased to be at liberty to rely on that particular privilege. However, it is not necessary definitely to decide that point because I think the true view is that Regulation XVII does not apply to land in the city of Bombay.

9. For these reasons the appeal is allowed and the suit is dismissed with costs.

N. J. Wadia J.

10. I agree.

11. The plaintiff's claim to exemption from liability to assessment is based solely on the ground that at least from 1813 onwards the land has never been assessed. The fact that it has not been so assessed is not disputed. It is well established that the ruling power in India has always been entitled to a share of the produce of land in the shape of land revenue and this has not been disputed by the plaintiff.

12. The plaintiff's contention, however, is two-fold. It is argued, in the first place, that the right to levy assessment is a prerogative of the Sovereign and that when Bombay was transferred by the Crown to the East India Company by the Charter of 1668 this prerogative right of the Sovereign did not and could not pass to the Company. It is also argued in the alternative that even if it is held that this prerogative right passed to the Company, the city of Bombay was governed by the English law and that the right of the Company to assess had been lost through its not having been exercised for over sixty years. I do not think that there is any force in either contention.

13. According to the Charter by which the town and island of Bombay were transferred to the Company, the King transferred to the London Company.

All the rights, profits, territories and appurtenances thereof whatsoever, and all singular royalties, revenues, rents, customs, castles, forts, buildings, fortifications, privileges, franchises, pre-eminences and hereditaments whatsoever, etc., in as large a manner as the Crown of England enjoyed or ought to enjoy them under the grant of the King of Portugal in the treaty of 1661 and not further or otherwise.

14. The 9th article of the Covenant of Aungier also provided that

All royalties, rights, privileges, immunities, which did formerly belong to the Crown of Portugal of Foros and royal rents of what nature or condition soever, they shall be saved as of right they belong to the Honourable Company.

15. It would appear, therefore, that the full right of sovereignty over the town and island of Bombay had been transferred to the Company including the royal prerogative to a share in the produce of the land. No satisfactory authority has been cited to us to show that the right of the ruling power in India to assess land can be lost by mere non-user. The analogy from the English law as regards acquisition of rights against the Crown by prescription would not apply in India, and in any case English statutes passed after 1668, the date of the Charter to the Company, would not apply to Bombay. The case for the plaintiff must, therefore, be decided by the Indian law applicable to the Presidency. The plaintiff relies in that case on Regulation XVII of 1827 which, it is contended, applies to the city of Bombay also. But the language of that Regulation leaves in my mind no doubt that it was not intended to apply to the city of Bombay, and that the legislature did not intend it to apply appears from the fact that on the very date on which that Regulation was passed another Regulation, XIX of 1827, was enacted to provide specially for the City of Bombay. There is nothing in any of the sections of Regulation XVII which deals specifically with the city of Bombay, and the Appendix to that Regulation appears to make it clear that there was no intention to apply the Regulation to the city of Bombay. It has been argued that even if Regulation XVII as a whole does not apply to the city of Bombay, certain sections of it have been made applicable to the city by the third section of Regulation XIX of 1827, which provides that the land revenue of the city shall be assessed and levied according to the principles laid down under Section III, the three first clauses of Section IV, Section V and the first clause of Section VI of Regulation XVII. It is further argued that the provisions of Sections XXXV and XXXVI of Regulation XVII must by implication be held to be also incorporated in Regulation XIX of 1827 as they lay down the principles on which the revenue is to be assessed. In the first place Sections XXXV and XXXVI do not, in my opinion, deal with the principles on which the land revenue is to be assessed. They deal only with the methods by which parties may prove their claim to exemption. If it had been the intention of the legislature that Sections XXXV and XXXVI should apply to the. city of Bombay also, those sections would have been expressly referred to in Section III of Regulation XIX. Even if Regulation XVII were held to apply to the city of Bombay Sections XXXV and XXXVI would not, in my opinion, help the plaintiff. The only part of Section XXXV which the plaintiff could avail herself of is the second clause, but the benefit of that clause has been restricted to lands held under some tenure recognised by the custom of the country. It has been admitted that the plaintiff does not hold her land under any of the recognised tenures under which land in the city of Bombay is held. It may also be mentioned that Appendix A to Regulation XVII, which specifies the tenures which are to be considered as recognised by the custom of the country, does not include any of the Bombay tenures. The benefit of Section XXXVI of Regulation XVII could have been claimed by the plaintiff only so long as that Regulation was in force. That Regulation was repealed by Bombay Act VII of 1863 and the plaintiff's case must be governed by the present law dealing with Bombay city, viz., the Bombay City Land Revenue Act of 1876 which has no provision corresponding to Section XXXVI of Regulation XVII of 1827. The fact that Regulation XVII of 1827 was repealed by the Bombay Land Revenue Code V of 1879 and not by the Bombay City Land Revenue Act of 1876, though not in itself sufficient to prove conclusively that Regulation XVII of 1827 did not apply to Bombay city, at least, lends strong corroboration to the view taken by us that Regulation XVII of 1827 did not apply to Bombay city. The plaintiff has set up a claim in derogation of the right of the Sovereign power to assess lands and strict proof of such claim is necessary. She has failed to discharge this burden. The appeal filed must, therefore, in my opinion, be allowed.


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