1. This is a second appeal by the plaintiff and it raises a short and interesting question of law. The land in suit is survey No. 46. It measures 6 acres and 17 gunthas and was assessed at Rs. 7-12-0 as land held for agricultural purposes. It came to the notice of the Revenue authorities that the whole of this land was being used for the purpose of holding a cattle market for 6 months on every Wednesday. That is why an enquiry was made and it was found that the land was being used for non-agricultural purposes. On that finding, the Prant Officer passed an order on September 27, 1943, directing that the holder should pay non-agricultural assessment on this land at the rate of Rs. 40-8-0 for 10 years past. This came to Ra. 405. The Prant Officer further directed that the holder should pay a fine of Rs. 202-8-0. This order was challenged by the holder by an appeal to the Collector, but the Collector confirmed the order passed by the Prant Officer and dismissed the appeal on January 31, 1944. In the present suit, the plaintiff claimed that the order passed by the Prant Officer and confirmed by the Collector was ultra vires and he asked for an injunction restraining the Province of Bombay from giving effect to the said order. This suit has failed in both the Courts below. That is how the plaintiff has come to this Court in second appeal.
2. On behalf of the plaintiff Mr. Lokur has contended that it was erroneous in law to have held that penalty could be imposed in respect of part of the land in any case. Mr. Lokur concedes that the finding recorded by the Courts below that the whole of this area was used for non-agricultural purposes cannot be challenged by him in second appeal. He also concedes that, with regard to a substantial part of this land with the exception of two gunthas, non-agricultural assessment was properly levied and penalty was properly imposed. But his argument is that the order passed by the Revenue authorities in respect of two gunthas of land which was pot kharab is illegal and ultra vires, and that is the short question of law which has to be considered in the present case.
3. Mr. Lokur's argument is that the section which authorises the imposition of penalty on a holder for unauthorised use of his holding does not apply to pot Kharab land at all. In dealing with this argument, it will be necessary to consider some material sections of the Land Revenue Code. Section 45 makes all land liable to pay assessment unless it is specially exempted under the provisions of any special contract with Government or any law for the time being in force. Section 48 deals with the manner of levying assessment and of making alteration in assessment. Sub-section (1) of Section 48 classifies the land into three groups : lands held for the purpose of agriculture, lands held for the purpose of building, and lands held for purposes other than agriculture or building. It is common ground that the land in suit was held for the purpose of agriculture and was assessed on that footing. Sub-section (2) of Section 48 deals with cases of land which are assessed for any of the purposes mentioned in Sub-section (1), but are found to be used for some other purpose, and in respect of such lands it is provided that by reason of altered use of the land a different assessment would be liable to be imposed on those lands. It is not disputed that, in regard to the substantial portion of the land in suit which was held for agricultural purposes, Revenue authorities would be entitled to levy assessment on non-agricultural basis and to impose penalty by reason of the fact that the use to which the land is put has not been got altered from that of agriculture to that of non-agriculture. But Mr. Lokur contends that the pot kharab land is not subject to the payment of any assessment, and, according to him, the provisions of Sections 65 and 66 of the Land Revenue Code would not apply to such pot Kharab land. Under Section 65, an occupant of land assessed or held for the purposes of agriculture is entitled by himself, his servants, agents or tenants to erect farm buildings, construct walls or tanks or to make other improvements thereon for the better cultivation of land or for their more convenient use for the above-said purpose. Then the section goes on to provide the procedure which is to be followed by the occupant if he wishes to apply his land to any other purpose, and then the section adds that, if the occupant of any holding uses his holding for a purpose other than that for which it has been assessed without obtaining the requisite permission, then he would be liable to be fined for such use in addition to the special assessment. Then follows Section 66. This section provides that, if any such land be so used without the permission of the Collector being first obtained, then the occupant and any tenant or other person holding under or through him shall be liable to be summarily evicted by the Collector and he will also be liable to pay the fine. Section 66 refers to 'any such land' and these words take us back to Section 65, Unless the pot Kharab portion of the plaintiff's land falls within Section 65, it would be difficult to apply the provisions of Section 66 to such a land. Mr. Lokur's case is that the pot Kharab portion of the land cannot be said to be a land which is assessed or held for the purpose of agriculture within the meaning of Section 65. I am unable to accept this argument. It is perfectly true that, while levying the agricultural assessment in respect of the plaintiff's land under the provisions of Section 48(1)(a), the Revenue authorities took into account the fact that a part of the land is pot Kharab and in a sense it may be true that infixing the amount of assessment on the land as a whole the fact that part of the land is pot kharab would be regarded as relevant. But nevertheless, when assessment is levied, it is levied in respect of the whole of the field including the pot kharab, so that the field survey No. 46 of which the plaintiff is in possession must as a whole be regarded as land assessed or held for the purpose of agriculture by the plaintiff who is its occupant. If that be the true position, I do not see how even in respect of the pot kharab land the plaintiff can escape the imposition of penalty under Section 66. Mr. Lokur himself has fairly invited my attention to Rule 75 of the rules framed under the Bombay Land Revenue Code. Under this rule, land which is included as unarable (pot kharab) is divided into two categories. The first category covers land which is classed as unfit for agriculture at the time of survey, including the farm buildings or threshing floors of the holder. Sub-rule (2) of Rule 75 provides that, in respect of pot kharab lands falling under Clause (a) of Sub-rule (1), even if the occupant brings them under cultivation at any time, no additional assessment shall be charged therefor. In other words, it would not be open to the Revenue authorities to charge additional assessment to the occupant of a land on the ground that, whereas a part of the land was shown as pot kharab at the time of the assessment, subsequent to the assessment the pot kharab has been brought under cultivation. This rule emphasizes the fact that, when assessment is levied on the holding of the occupant, it is levied on the holding as a whole, and the fact that in levying the assessment and determining the amount of assessment the Revenue authorities take into account the fact that part of the land is unarable does not alter the position that the assessment so levied is in respect of the whole of the holding and not the holding minus the pot kharab. The presence of unarable land merely helps to reduce to some extent the amount of the assessment which is fixed for the land as a whole. But the land as a whole is assessed and the land as a whole must obviously include a part, though it may be pot kharab. Therefore, in my opinion, the contention that Section 66 does not apply to the two gunthas in the plaintiff's land which is pot kharab cannot be sustained.
4. In support of his argument Mr. Lokur has invited my attention to a decision of this Court in Rasulkhan v. The Secretary of State : AIR1915Bom72 . In this case, Heaton and Shah JJ. had to deal with the validity of an order passed by the District Deputy Collector that the building and the wood kept on a certain piece of land should be removed forthwith and the land should be forfeited. This land was assessed in 1871 and was entered into Revenue registers as waste land. The contention of the occupant was that the order for pulling down the structure and for removing the wood as well as directing the eviction of the occupant was ultra vires inasmuch as Sections 65 and 66 did not apply to that land. This argument was upheld and the order was held to be ultra vires. Mr. Lokur says that the decision in this case should apply to the penalty imposed in respect of the pot kharab in the plaintiff's land. I do not think that this argument is well-founded. In the case in which Heaton and Shah JJ. considered the effect of the provisions of Sections 65 and 66 of the Land Revenue Code, it was established on the evidence that the plaintiffs who were in lawful occupation of the land for several years were in such occupation as persons entitled to be in charge of the graveyard which existed on the land. The land no doubt was shown in the revenue record as waste land, but the evidence of its user indicated that the land must have been assigned for the purpose of a graveyard under Section 38 of the Land Revenue Code. No doubt, no documentary evidence was forthcoming in support of this view and Heaton J. remarked that in their ignorance it would be profitless to conjecture. But in considering the validity of the order made under Section 66, the learned Judge had to bear in mind the fact that the land had never been assessed nor was it shown to have been used for the purpose of agriculture. In fact, it was shown to have been always used for the purpose of graveyard. The inference, therefore, was irresistible that the land was wholly exempt from assessment. In any event, it is perfectly clear from the observations made by Mr. Justice Heaton that this land had never been assessed and had never been held for the purpose of agriculture. In such a case, it would obviously be inappropriate to apply the provisions of Section 65 or Section 66. This land could not have been described as held by an occupant for the purpose of agriculture, nor was it assessed for the purpose of agriculture. In fact, that is exactly how Mr. Justice Shah has dealt with this matter when he observed that in the case before him the plaintiffs could not be regarded as occupants of the land within the meaning of the Code and their rights could not be held to be limited to the agricultural use of the land. Therefore, in my opinion, the decision in Rasullkhan's case can be of no assistance to Mr. Lokur in view of the fact that it is not disputed that the whole of survey No. 46 measuring 6 acres and 17 gunthas is a part of the plaintiff's holding and that this land is held by him for the purpose of agriculture.
5. If the point of law raised by Mr. Lokur fails, then it must follow that the decision of the Courts below is right. The appeal accordingly fails and must be dismissed with costs.