1. [His Lordship, after narrating the facts of the case and stating his conclusions on them, continued :] The further point remains as regards the amount. The issues as framed in the lower Court were not expressly directed against the area to which the fine is assessed but only to the amount of assessment. As regards the rate of assessment, the decision of the Collector under Section 61, Bombay Land Revenue Code, is conclusive. As regards the area, it appears that out of forty to sixty acres, of which the Qaucharan consists, the amount of fine has been assessed on fourteen acres fifteen gunthas. As to the actual area of the pits the evidence varies from four acres to about nine acres. The real question really is as to the area of unauthorized occupation. On the one hand, it need not be confined to the bare area of the pits, nor, on the other, can it be extended to the entire area of the survey number. Occupation in the sense of the amount of area which has deteriorated for purposes of cultivation or for quarrying is the area contemplated by the Act as being occupied. There is no evidence before us to show that this area is less than the area assessed. We agree on the whole on this part of the case with the conclusion of the lower Court.
2. In this view, strictly speaking, it is not necessary to consider the question of limitation under Article 14, It is argued for the-appellants that the action of the Collector in holding that the appellants had excavated was illegal and ultra vires and therefore in view of the current of decisions of this Court and particularly in view of the dictum of their Lordships of the Privy Council in a very recent case, Laxmanrao v. Shrinivas : (1927)29BOMLR1484 it is not necessary for the appellants to sue to set aside that action and that Article 14 has no application. Secondly, the suit is not in its express terms a suit to set aside the order, but Article 14 is a defence raised for the respondent that such a suit, if brought, would have been outside time. Thirdly, the current of decisions of this Court is consistently in favour of the subject and against deprivation of his remedy An order under Section 61 of the Bombay Land Revenue Code might be and was in these proceedings, as far as the District Deputy Collector's order went, actually made ex parte and might not have come to his knowledge for a very long period thereafter. For the respondent it is contended that the argument for the appellants in effect erases Article 14 from the statute book. It does not suffice for a party to complain of an order made by an officer under Section 61, Bombay Land Revenue Code, and to say that it is wrong, and therefore ultra vires and illegal, and thus to bring his suit out of the purview of Article 14. In view of our finding of fact, we do not propose to consider the question in the manner which would have been necessary if the finding had been in favour of the plaintiffs. It suffices to say that, on the authorities in regard to Article 14, the question is not merely one of form but also of substance. For instance, it does not suffice for an officer of Government to purport to act in his official capacity to bring his act or order within the purview of Article 14, or for the subject to allege that the act was wrong or to refrain from expressly asking the Court to set aside the order to take it out of the purview of the Article. If that act or order is illegal or ultra vires, it has been held by this Court that Article 14 has no application. We may refer to decisions such as the decision of Sir Lawrence Jenkins in Surannanna v. Secretary of State for India I.L.R (1900) Bom. 435, s.c. 2 Bom. L.R. 261, followed in Malkajeppa v. Secretary of State for India I.L.R (1911) Bom. 325, s.c. 14 Bom. L.R. 332, and Dhanji v. Secretary of State (1920) 23 Bom. L.R. 279, It is true that two decisions of Macleod C.J. appear to point to a stricter application of this section. But in regard to the first, Ganesh Shesho v. The Secretary of State for India I.L.R(1926) Bom. 451, s.c. 22 Bom. L.R. 212, we agree with the observations of Shah J. in Manibhai v. Nadiad City Municipality : (1926)28BOMLR1465 , 1478. The other decision (Shrinivas v. Secretary of state (1921) 24 Bom. L.R. 214, has been reversed by their Lordships of the Privy Council (Laxmanrao v. Shrinivas) referred to above. Similarly, as regards the suit, as pointed out in Surannanna v. Secretary of State, it might not be necessary to set aside the order and the cause of action might be dispossession, a very different thing. In the present case, as far as the suit goes, it is conceded that the amount has not been levied, and it is therefore difficult to see any other cause of action except the order of the Collector against which a declaration and injunction is sought. In substance, therefore, we are of opinion that the present suit is a suit to set aside the Collector's order of June 1923. As regards its legality, the appellants were not strangers, or, so to speak, arbitrarily chosen by the Collector as the object of his fine but were excavating in the immediate neighbourhood, and although an ex parte inquiry was made in the first instance, that order was brought to the knowledge of the appellants immediately. There was undoubtedly unauthorized excavation in what was admittedly Government land. We do not think that it can be said, as was said in Vasta v. Secretary of Stated (1920) 23 Bom. L.R. 238,, that the basic elements necessary for an order under Section 61 of the Bombay Land Revenue Code were wanting or that the Collector was acting ultra vires or illegally. We are, therefore, of opinion, if the point were to be decided, that the suit was barred under Article 14 of the Indian Limitation Act.
3. The appeal fails and is dismissed with costs.