1. Four points were urged on behalf of the petitioner before me. The first point was that the land has not been diverted by him to non-agricultural purposes, and in support of this contention he placed reliance upon the definitions of 'agriculture' and 'improvements' contained in the C.P. Tenancy Act, 1920. According to him, though this Act was passed subsequent to the Land Revenue Act, the definitions given therein should guide the Court in interpreting the provisions of the Land Revenue Act. The second point taken was that the rules under which the provision has been made do not apply to the field in question inasmuch as it was not Malik Makbuza land at the time of the last settlement. The third point was that Rule 3 of the rules framed under Section 106(5) of the C.P. Land Revenue Act with Section 104-A is ultra vires to the extent to which it conflicts with the provisions of Section 104-A. Finally it was said that there was no legal basis for assessing the land at 2 annas per square foot.
2. It is not necessary for me to deal with all these contentions except the second. Sub-rule (2) of Rule 1 is in the following terms:
They shall apply in respect of the revision of assessment undertaken during the currency of settlement in respect of Malik-makbuza lands assessed at settlement as agricultural lands and diverted to a non-agricultural purpose during its currency.
It seems to me clear that the intention was to apply those rules for assessment of lands which were held in Malik-Makbuza rights at the previous settlement and were assessed as agricultural lands. The contention of Shri Adhikari is that these rules applied to all lands which are at this date Malik-Makbuza lands provided they were assessed at the last settlement as agricultural lands. To my mind, that construction is not warranted by the language used. In the circumstances, I hold that the assessment made was without jurisdiction and quash it.
3. In passing I may add that the first contention of the petitioner derives support from the decision of the Division Bench in Gopalrao v. Anandi  N.L.J. 597, where the learned Judges have accepted the definition of 'agricultural' contained in the C.P. Tenancy Act for the purpose of interpreting the same word in the Berar Land Revenue Code.
4. The State of Bombay appealed under the Letters Patent.
5. This is an appeal under the Letters Patent preferred on behalf of the State of Bombay against the petitioner who had filed an application under Article 226 of the Constitution in this Court. The learned Judge before whom the application came up for hearing allowed the application and held that the order of assessment as revised by the revenue authorities was without jurisdiction and, therefore, could not be sustained.
6. The facts that led to this appeal are these. One Rama Kunbi and his son were the occupancy tenants of field No. 73 which originally admeasured 36.84-acres. On August 16, 1941, the present petitioner purchased from them an area of 10.50 acres out of field No. 73, and the area purchased by him came to be numbered as 73/2. There was then no assessment levied either upon the entire field No. 73 or upon the strip No. 73/2 purchased by the petitioner.
7. On March 5, 1943, the petitioner who was thus the holder of the occupancy tenancy land, made an application praying that he may be declared to be a malik-makbuza in respect of his holding. The Deputy Commissioner, before whom the application came up for hearing, declared the petitioner to be a malik-makbuza in regard to his holding, and under the provisions of Section 36-A of the C.P. Tenancy Act and the rules made thereunder fixed the land-revenue at Us. 14-8-0 payable for the petitioner's holding.
8. In December 1951, proceedings were started for the revision of the assessment levied on the land on the ground that the petitioner had diverted his holding to non-agricultural purposes. These proceedings appear to have been started under the provisions of Section 104-A of the C.P. Land Revenue Act, 1917. The assessment was revised and the land-revenue was assessed at Rs. 105 under the Diverted Lands Revision of Assessment Rules, 1952 (hereinafter referred to as the Assessment Rules). The petitioner thereafter appealed to the Deputy Commissioner and then to the Board of Revenue, but his appeals failed. Finally, as stated above, he approached this Court with an application under Article 226 of the Constitution for setting aside the order of revised assessment as passed by the revenue authorities.
9. The application came before Mr. Justice Mudholkar who held that the order of assessment as revised by the revenue authorities was without jurisdiction and accordingly he set aside the order passed in that behalf. The State has now come before us in appeal under the Letters Patent.
10. Under Section 104-A of the C.P. Land Revenue Act, if any land is appropriated to a non-agricultural purpose since it was last assessed, the assessment is liable to be revised and the land-revenue assessed by the Deputy Commissioner with reference to the altered value of such land in accordance with the rules made under Section 106 of the Act. It is the case of the State that in the present case the assessment came to be revised and the land-revenue assessed in accordance with the Assessment Rules. The question, therefore, is whether these rules apply to the malik-makbuza holding in respect of which the land-revenue was fixed by the revenue officers under the provisions of Section 36-A of the C.P. Tenancy Act. It may be noted that the argument that was advanced before Mr. Justice Mudholkar was different from what has been submitted before us by the Special Government Pleader. Before Mr. Justice Mudholkar, if does not seem to have been disputed that the settlement referred to in the rules meant only the general settlement which was in the present case made some time in the year 1910 or 1911 under Chapter VI of the C.P. Land Revenue Act and it was not argued that it would also refer to any settlement which may have been arrived at in respect of any individual holding as in the present case. The argument is that if after the general settlement of the year 1910 there has been an occasion-and indeed there had been an occasion in the present case-for fixing the land-revenue in respect of a land which is liable to be assessed to land-revenue, the fixation of such land-revenue must mean, under the circumstances, settlement for the purpose of the rules under which a revision of assessment will have to be made. Now, the Special Government Pleader referred us to Clause (a) of Sub-section (1) of Section 106 of the C.P. Land Revenue Act. That section says that the Deputy Commissioner may, during the currency of a settlement, assess land-revenue on or in respect of lands which are liable to assessment, but have not been assessed, including plots of land the owners of which have been declared malik-makbuzas. It is true that Section 106 gives power to the Deputy Commissioner to assess land-revenue in respect of lands which are liable to assessment and which have not been assessed so far; and if we regard a malik-makbuza holding as a plot of land liable to assessment and as a land which has not been assessed till 1943, then what was done by the revenue officer in the year 1943 may be regarded as having been done in the exercise of the power under Clause (a) of Sub-section (1) of Section 106. But can such fixation of land-revenue be termed as an assessment of the malik-makbuza holding at settlement? It is true that such assessment was levied during the currency of the settlement under Chapter VI of the C.P. Land Revenue Act. Although the assessment came to be levied, or to use the words of Section 36-A of the C.P. Tenancy Act the land-revenue came to be fixed by the revenue officer, during the currency of the settlement, still the malik-makbuza holding could not be regarded as having; been assessed at settlement. Sub-rule (2) of Rule 1 of the Assessment Rules says:
They (rules) shall apply in respect of the revision of assessment undertaken during the currency of settlement in respect of Malik-makbuza lands assessed at settlement as agricultural lands and diverted to a non-agricultural purpose during its currency.
The Special Government Pleader says that the word 'settlement' in Sub-rule (2) cannot be given any special meaning so as to refer only to the settlement under Chapter VI of the C.P. Land Revenue Act at which malik-makbuza lands were assessed as agricultural lands in 1910 or 1911. According to his submission, the word 'settlement' is used in its ordinary, literal sense and whenever there is a fixation of land-revenue that fixation of land-revenue must be taken to mean settlement. If there was no definition of the term 'settlement' probably there was some force in the contention made on behalf of the State. There is a definition of the term 'settlement', which appears to be an exhaustive definition, in the C.P. Settlement Act, 1929. Section 2 of the said Act defines the term 'settlement' as follows:
A 'settlement' means the results of the series of operations in a local area regulated by this Act and Chapter VI of the Central Provinces Land Revenue Act, 1917; and the period during which such results are to be in force is called the 'term of the settlement'.
If this definition refers to the settlement as is made under Chapter VI of the C.P. Land Revenue Act, then we are of the view that the same meaning should be given to the words 'settlement' and 'at settlement' which are mentioned in the rule which we are now considering. The Special Government Pleader contended that Sub-rule (3) of Rule 1 stated that nothing contained in Chapter VI of the C.P. Land Revenue Act shall apply in respect of the revision of assessment on lands to which these rules apply. He also referred us to Sub-section (2) of Section 106 of the C.P. Land Revenue Act which says that the State Government may, in supersession or modification of the provisions of Chapter VI, make rules for the purpose of carrying into effect the provisions of this section. Even though Chapter VI of the Land Revenue Act is not to apply in respect of revision of assessment on lands to which the Assessment Rules apply, still it does not mean that the terra 'settlement' as used in that Chapter and as defined in the C.P. Settlement Act cannot be considered in construing Sub-rule (2) of Rule 1 of the Assessment Rules. It is true that the Government has been given the power under Sub-section (2) of Section 106 to frame such rules either in supersession or in modification of the provisions of Chapter VI, but in the absence of any definition of the term 'settlement' either in the C.P. Land Revenue Act or in the Assessment Rules, we think recourse must be had to the definition of 'settlement' as given in the C.P. Settlement Act, and the words 'settlement' or 'at settlement' occurring in Sub-rule (2) of Rule 1 of the Assessment Rules must be construed accordingly.
11. Further, the opening words of Section 106 of the C.P. Land Revenue Act mention the words 'during the currency of settlement'. The word 'settlement' occurring in Section 106 under Sub-section (2) of which the Assessment Rules are framed, must also be understood as meaning settlement under Chapter VI of the C.P. Land Revenue Act, apart from the definition of 'settlement' in the C.P. Settlement Act.
12. We, therefore, hold that the words 'settlement' and 'at settlement' pecurring in Sub-rule (2) of Rule 1 of the Assessment Rules must mean the settlement under Chapter VI of the C.P. Land Revenue Act. It is not disputed that the malik-makbuza holding in the present case had not been assessed at such settlement. If so, the Assessment Rules will not apply to such holding and the revision of assessment in accordance with such rules would be illegal. We, accordingly, confirm the judgment of Mr. Justice Mudholkar though for reasons which are slightly different from those which induced him to allow the application.
13. Accordingly, the letters patent appeal fails and must be dismissed with costs.