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The Jayasingpore Oil Mills Co. (Private) Ltd. Vs. the Collector of Kolhapur - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 3193 of 1958
Judge
Reported in(1959)61BOMLR1322
AppellantThe Jayasingpore Oil Mills Co. (Private) Ltd.
RespondentThe Collector of Kolhapur
Excerpt:
kolhapur state (application of laws) order, 1949, clauses 3, 5, schedule part i-land revenue-rules, 1921; rules 87(a), 81(2) and (3)-whether vat hukum no. 14 of former kolhapur state good law after march 1, 1949, in areas which formed part of that state-revision of assessment whether absolutely banned by rule 87(a) before expiry of period; mentioned therein-whether obligatory on collector under rule 81(2) & (3) to give reasons where land assessed by him at maximum rate.;by virtue of the kolhapur state (application of laws) order, 1949, vat hukum no. 14 of july 4, 1891, issued by the maharaja of kolhapur is not a law in force in the areas forming part of the former kolhapur state after march 1, 1949.;under rule 87fa) of the land revenue rules, 1921, there is no absolute ban 'on.....tambe, j.1. the dispute relates to the validity of the assessment of land revenue of rs. 504-2-0 annually on 10 acres of the land in question, situate within the municipal limits of jayasingpore, district kolhapur. these ten acres form part of survey no. 439, admeasuring about 37 acres and 19 gunthas. in or about the year 1942, 15 acres out of this area was, by the order of the then kolhapur state, included in the town planning scheme and on this 15 acres of land, rs. 6-12-0 was assessed as non-agricultural assessment. out of these 15 acres sometime in the year 1945, the then kolhapur state granted ten acres of land to the petitioner for the purposes of its business of oil mill. the land revenue was proportionately apportioned and these ten acres were assessed to rs. 4-7-5. it is not in.....
Judgment:

Tambe, J.

1. The dispute relates to the validity of the assessment of land revenue of Rs. 504-2-0 annually on 10 acres of the land in question, situate within the municipal limits of Jayasingpore, District Kolhapur. These ten acres form part of survey No. 439, admeasuring about 37 acres and 19 gunthas. in or about the year 1942, 15 acres out of this area was, by the order of the then Kolhapur State, included in the Town Planning scheme and on this 15 acres of land, Rs. 6-12-0 was assessed as non-agricultural assessment. Out of these 15 acres sometime in the year 1945, the then Kolhapur State granted ten acres of land to the petitioner for the purposes of its business of oil mill. The land revenue was proportionately apportioned and these ten acres were assessed to Rs. 4-7-5. It is not in dispute that the petitioner from 1945 had been paying this amount as land revenue. It is a matter of history that on March 1, 1949, the Kolhapur State merged with the State of Bombay and the area, constituting the former Kolhapur State came under the jurisdiction of the Commissioner, Southern Division. On or about August 13, 1950, the Commissioner, Southern Division, issued a notification under Sub-rule (1) of Rule 81 of the Bombay Land Revenue Rules, whereunder Jayasingpore was classified as a first class village for the purpose of assessment of land revenue and for non-agricultural assessment, the maximum fixed was two pies per square yard. On or about July 17r 1951, the Collector then made an order whereunder he assessed the land revenue on the said ten acres of land of the petitioner at Rs. 504-2-0 annually, and further directed that the land revenue at this rate be recovered from the petitioner from the year 1945. Against this order, the petitioner took an appeal to the Bombay Revenue Tribunal. The appeal succeeded and the Revenue Tribunal held that the assessment was made without giving an opportunity to the petitioner to be heard. It further held that the order directing recovery of land revenue retrospectively from the year 1945 was bad. With these directions it remanded the case to the Collector for a fresh decision. After notice to the petitioner and giving him an opportunity to place his case before him, the Collector decided the matter afresh and by his order of May 11, 1957, reaffirmed the assessment made by him in his previous order. He, however, modified the order as regards the recovery of land revenue and directed that the same be recovered only from August 1, 1953. The petitioner again took an appeal against this order to the Revenue Tribunal, respondent No. 3 hereto, and the Tribunal dismissed it by its order dated June 26, 1958. Against this order the petitioner has approached this Court.

2. Mr. Paranjape, learned Counsel for the petitioner, in the first instance contends that the petitioner has been paying the house tax and, therefore, this. land is exempted from payment of land revenue, under the Vat Hukum No. 14 of July 4, 1891, issued by the Maharaja of Kolhapur. The decision of this contention raised turns on the construction of the said Vat Hukum read together with certain provisions of the Notification issued on March 1, 1949, by the State of Bombay in pursuance of the powers conferred on it by the Extra-Provincial Jurisdiction Act of 1947. It would at this stage be convenient to refer to these provisions. It ia not in dispute that the Vat Hukum (No. 14 of July 4, 1891, Mulki Vat Hukum, Vol. II, p. 671) was issued by the Maharaja of Kolhapur. That being the position, it was a prevailing law at the time of the merger. On the language of the said Vat Hukum, it is clear that where the house tax was paid in respect of a particular land situated within the area of the municipality, recovery of land revenue in addition to the house tax was prohibited. If this Vat Hukum be still a good law governing the rights of the parties residing at Jayasingpore, then certainly the petitioner would be entitled to claim that he has been exempted from payment of land revenue, if he proves that he has been paying the house tax in respect of this land. The petitioner, however, has not placed any material before the authorities below as regards the extent of land relating to which the petitioner had been paying the house tax. Apart from it, in our opinion, this Vat Hukum is no more a law in force, on account of certain provisions of law to which we will presently advert. Section 4 of the Extra-Provincial Jurisdiction Act, 1947, provides that the Central Government may by notification in the official gazette, make such orders as may seem to it expedient for the effective exercise of any extra-provincial jurisdiction of the Central Government. It is not in dispute that this power vested in the Central Government has been delegated to the State of Bombay. In exercise of that power, the Government of Bombay issued a notification on March 1, 1949. That notification was amended by another notification issued on March 23, 1949, giving retrospective effect to the amendments effected. We are here concerned with Clauses 3 and 5 of the said Notification. Paragraph (1) of Clause 5 provides that save as expressly provided in this Order of all enactments in force in the Kolhapitr State or part thereof and corresponding to the enactments in force in the Province of Bombay and extended to the Kolhapur State under para. 3 and all notifications, schemes, rules, by-laws, vat-hukums and all orders by whatever name or description called under such enactment or having the force of law immediately before the appointed day shall stand repealed (appointed day being March 1, 1949). The effect of this provision, in our opinion, is that where any law in force in the State of Bombay is made applicable to the area formerly constituting the State of Kolhapur, then the corresponding provisions of law in force in the Kolhapur State covering the same subject stood repealed as and from March 1, 1949. Turning to the provisions of Clause (3)(1) of the said Notification, we find that all enactments specified in Parts I and II of the schedule and all notifications, orders, schemes, rules and by-laws issued, made or prescribed under such enactments and in force in the Province of Bombay immediately before the coming into force of this Order shall extend to and be in force in the Kolhapur State subject to any amendments to which the said enactments are for the time being generally subject in the Province of Bombay. It is then clear that if we find that any law, which was in force in the State of Bombay on March 1, 1949, was brought in force in the Kolhapur State under this Notification from the said date corresponding to the aforesaid Vat Hukums, the necessary consequence of these provisions would be that the Vat Hukum would stand repealed as and from March 1, 1949. It is the contention of Mr. Paranjape that there was no corresponding provision of law in force in the State of Bombay and, therefore, the Vat Hukum has not been repealed and is still a good law in force in the areas forming part of the former Kolhapur State. It is not possible for us to accept this contention of Mr. Paranjape. Referring again to the provisions of Vat Hukum, it is clear that it deals with the subject of exemption of liability of payment of land revenue on certain lands, which are made liable to pay the house tax. The subject, in short, is exemption from the liability of payment of land revenue. Now, when we turn to the first part of the Schedule of the Notification, we find that the Bombay Land Revenue Code, 1879, was made applicable to the areas forming part of the former Kolhapur State. It cannot be disputed, and, indeed, it is not disputed that certain provisions of the Land Revenue Code deal with assessment of the land to land revenue as well as exempting the land from payment of land revenue. That being the position, there cannot be any doubt that law corresponding to the provisions contained in the Vat Hukum No. 14 and which was in force in the Bombay State has been made applicable to the areas of the former Kolhapur State under the said notification. The Vat Hukum (No. 14) cannot, therefore, be held to be a good law in force in the Kolhapur State.

3. It is next contended by Mr. Paranjape that even assuming that the Vat Hukum is not the law in force in the Kolhapur State after March 1, 1949, it was in force when the aforesaid notification was brought into effect and, therefore, under the proviso to the first para, of Clause (5), all rights acquired under the law in force on the eve of March 1, 1949, are saved. The said proviso reads as follows:

Provided that the repeal by this Order of any such enactments, notifications, schemes, rules, bye-laws, or vat Hukums or orders shall not affect the validity, invalidity, effect, or consequence of anything already done or suffered or any right, title, obligation or liability already acquired, accrued or incurred or any remedy or proceeding in respect 'thereof, or any release or discharge of or from any debt, penalty, obligation liability, claim or demand, or any indemnity already granted or the proof of any past act or thing.

It is the contention of Mr. Paranjape that the petitioner was entitled from exemption from assessment of ten acres of land to the land revenue under the Vat Hukum. This right he had acquired prior to the coming into force of the said notification. Under the aforesaid proviso, this right is saved to him. No doubt, if the petitioner had acquired that right the said provisions save it to him. The question is, whether it has been shown to us that the petitioner had acquired any such right under the said Vat Hukum. As already stated, the right conferred by the Vat Hukum is that, when the house tax is paid in respect of any land, that land is exempted from payment of land revenue. The notification was brought into force on March 1, 1949. It is not in dispute that at the time these ten acres of land was granted to the petitioner, it was an open land and the petitioner was paying Rs. 4-7-5 as land revenue in respect of that land. It has not been shown by the petitioner that on the eve of March 1, 1949, there has been any construction on that land or that the petitioner had been paying any house tax in respect of that land. In other words, no foundation, in fact, has been laid by the petitioner to hold that any right had been acquired by the petitioner under the Vat Hukmn No. 14, on which reliance is placed by Mr. Paranjape. The contention of Mr. Paranjape must,, therefore, fail.

4. It is next contended by Mr. Paranjape that the Collector was in error in acquired another right and that right was to pay the land revenue at Rs. 4-7-5 for a period of thirty years and before the expiry of that period that assessment cannot be enhanced. Reliance is placed by Mr. Paranjape in this respect on Rule 87 of the rules framed under the Bombay Revenue Code. Clause (a) of Rule 87 of the Bombay Revenue Rules provides that the period for which the non-agricultural assessment is to be fixed shall ordinarily be 30 years except in the Bombay Suburban District where on account of its special conditions the period shall ordinarily be 50 years. It is the contention of Mr. Paranjape that the provisions of the Land Revenue Code had been adopted by the Kolhapur State and the law in force in the Kolhapur State was in identical terms, only substituting State of Kolhapur for State of Bombay. Even assuming it to be so, again there is no foundation, in fact, laid by the petitioner. It has not been shown when the land in question had been first assessed on non-agricultural basis. It has also not been shown that the assessment made by the Collector by his order of May 11, 1957, was prior to the expiry of 30 years. It is, therefore,, not possible for us to decide the contention of Mr. Paranjape as raised by him. A part from it, suffice it to say that on the language of this rule, there is not absolute ban on revising the assessment once made before the expiry of the period of 30 years. All that it provides is that assessment shall ordinarily be not revised. In our opinion, there is no absolute right as such acquired by the petitioner under this rule. This contention of Mr. Paranjape, therefore, must fail.

5. It is next contended by Mr. Paranjape that even assuming that it was open to the Collector to assess the lands to payment of land revenue, the Collector was in error in assessing the entire land for non-agricultural purpose. The entire land was not put to non-agricultural use. Indeed, this is a question of fact and the fact found by the fact finding authority is that the entire land was being used for non-agricultural purpose. This contention, therefore, in our opinion, has very little substance.

6. It is next contended by Mr. Paranjape that the Collector was in error in directing that the land revenue be recovered from August 1, 1953. This contention again has very little merit. It is to be noted that the assessment was made as early as on July 17, 1951. Proceedings naturally had been started prior to that date. The second order has been made only on remand after reconsideration of facts as directed by the Tribunal. In these circumstances, there is no assessment of land revenue retrospectively. It is contended by Mr. Paranjape that the Collector had levied the land revenue at the maximum rate without assigning any reasons. The Collector was bound to assign reasons showing that the case was made out for assessing the said land revenue on the particular land. Reliance is placed in this respect on Sub-rule (2) of Rule 81 of the Rules. This contention also, in our opinion, has no force. If Sub-rules (2) and (3) of Rule 81 are read together, it would be seen that they require the Collector to give reasons only if he assessed the land revenue higher than the maximum rate fixed. So long as the assessment is upto the limit of the highest rate fixed, it is not obligatory on the Collector to give his reasons thereof. Apart from it, even assuming that there is any lacuna in the order of the Collector, inasmuch as he has not given reasons for assessing the land to the land revenue at the maximum rate, in our opinion, no injustice has been caused to the petitioner on that account. The Revenue Tribunal had given him an opportunity to say his say as to why the land revenue should not be levied at the maximum rate and the petitioner has not been able to make out any case before the Tribunal in this respect. That being the position, in our opinion, no interference at the hands of this Court on this ground is called for. In the result, for the reasons stated above, the petition must fail. The rule is, therefore, discharged with costs.


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