1. The plaintiff in this appeal challenge the recovery of the non-agricultural assessment for their land for the period from July 31, 1963 to July 30, 1964 before the actual commencement of the non-agricultural case use of this land, as being against the provisions of Section 48 the Bombay Land Revenue Code. 1879 and on the ground that rule 86 (1) (a) of the Saurashtra Land Revenue Rules. in that connection was ultra vires Section 48 and Section 214 of the Code and also because it violated the guarantee of Article 14 of the Constitution, as, only in the Saurashtra area, the repugnant rule would continue in force. The plaintiff therefore, sought refund of the amount of Rs, 1,758.32 recovered from them under protest. There is no dispute a to the aforesaid amount, which was recovered from the plaintiff, because of the Saurashtra Rule 86 (1) (a). there is equally no dispute, that during this relevant period, the plaintiff had not started the non-agricultural user of the land although permission for such user had been granted by the order of the Deputy Collector dated November 13, 1962 as the plans etc, were not finalised. Both the Court have upheld the vires of this R. 86 (1) (a) and therefore the plaintiff have filed this appeal.
2. The Bombay Land Revenue Code. 1897 (hereinafter referred to as the Bombay Code) was applied to the Suarashtra area from September 9, 1948 with its rules. The original Bombay Rule 86 (1) (a) was in different terms, before its present amendments, and it has now been brought in conformity with Section 48. The present Rule 86 (1) (a) is as under:--
'Where permission to the use the land for any non-agricultural purpose is given under Section 65. the non-agricultural assessment upon such land shall be levied from the dav on which non-agricultural use beings'.
Under the un-amended rule, which had therefore become the Saurashtra rule, the position was as under:--
'The non-agricultural assessment shall ordinarily be levied from first day of the revenue year next succeeding the revenue year in which permission to use the land for non-agricultural purposes was give, provided that (1) when the use is temporary. the Collector may in his discretion levv it from the fist day of which or the commencement of the year in which the non-agricultural use beings'.
After the Saurashtra area merged in the Bombay State under the States Reorganisation Act 1956 the Bombay Land Revenue Code amended by Act No. 41 of 1959 and section 2(4) was added in the Bombay Code as under:--
'Save as otherwise provided by Chapter XA, it also extends to the Saurashtra area of the State of Bombay, subject of the modification specified in Suh. J. appended to this Act'.
In Schedule J Section 219(1) is added to the effect that-
'The Bombay Land Revenue Code, 1879 as applied to the Saurashtra area of the State of Bombay by the State of Saurashtra (Application of Central and Bombay Act ) Ordinance, 1948 is hereby repealed'.
The second proviso is as under:--
'Provided further, but subject to the preceding proviso, anything done or action taken including any rules all notices issued and all enquiries made under the Act so repealed shall be deemed to have been done or taken under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act'. Therefore. after the extension of the Bombay Code. because of the modification specified in Sch. J., in view of the second proviso to Section 219 (1) even though Saurashtra Code has been repealed, the rules made thereunder continued to remain in force. as if they were made under the corresponding provisions of the Bombay Code, until they were superseded by new rules made under the Bombay Code. Therefore, in the Saurashtra area the Saurashtra rules would continue in force, provided they could be deemed to have been made under the corresponding provisions of this Act. Even when the Saurashtra rules were made under Section 214, they could be made only, as provided in Section 214. Section 214 has continued to remain the same section. Therefore the material question is whether such a rule 86 (1) (a) could be enacted under Section 214. read with Section 48 of the Bombay Code. Section 214(1) enacts that--The State Government may by notification published in the Official Gazette, make rules not inconsistent with the provisions of this Act to carry out the purposes and objects and the for guidance of all person of matter connected with the enforcement of this Act or in cases not expressly provided for therein'.
Therefore the rule making power conferred on the State Government is only an ancillary power to make such rule which are not inconsistent with the provisions of the Act. The rules can be made to carry out the purposes and object of the Act and for the guidance of all persons din matters connected with the enforcement of the Act or in cases not expressly provided for therein. Therefore the rules can never widen the scope of the Act, as their sole purposes is to carry out the purposes and objects of the Act and not to frustrate the objects of the Act. If the Act is silent on the procedural matter, the rule can be enacted and, to that extent it can supplement the e provisions of the Act. if it is made with a view to carry out the purposes and object of the Act. However, if a tax is not provided by the Act, the rule making authority can never created such a tax liability because it would be exercising plenary powers. That is why Section 214(1) has provided an important fetter on the rule making authority that the rules enacted shall not be inconsistent with the provisions of the Act. then we turn to S. 48 of the Bombay Code. It in terms. provides in clause (1) that the land revenue livable on any land under the provisions of the Act shall be assessed or shall be deemed to have been assessed as the case may be with reference to the use of the land (a) for the purpose of agriculture, (b) for the purpose of building and (c) for a purpose other than agricultural or building. Under Section 48(2) where land assessed for se for any purpose is sued for any other purpose. the assessment under the provisions of this Act, upon the such land shall notwithstanding that the terms for which such assessment may have been fixed has not expired. be liable to be altered and fixed at different rate by such authority and fixed at subject to such rules as the State Government may prescribe in this behalf. Therefore under Section 48(1), every assessment is deemed to have been assessed with reference to the use of the land whether agricultural on non-agricultural. Section 48(2) permits alteration of the assessment and fixing it at a different rate as prescribed by the rules, only when the land assessed for use for any purposes is used for any other purpose. Therefore. the condition precedent of the exercise of the power is the change of the user. Therefore, until there is change of user S. 48(2) never created a liability to pay the altered assessment. Therefore. the right to levy the altered assessment only arises. when the condition precedent is satisfied that an alteration of the user has been made from one permitted purpose to another purpose. Therefore mere grant of permission does not authorise alteration of assessment until there is actual change of user. In Section 65, which provides for permission being granted for change of user from agricultural purposes to a non-agricultural purpose, the last paragraph provides that 'when any such land is thus permitted to be used for any purpose unconnected with agricultural it shall be lawful for the Collector. subject to the general order of the State Government to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of Section 48'. therefore. Section 65 enable the Collector to revise the assessment, provided it is leviable under Section 48. Therefore. the power of the Collector to fix the new assessment would depend upon the condition being satisfied that there was an actual change of user. therefore if the rule 86 (1) (a) provides for the tax liability. before even actual user is changed the rule would be in clear conflict with Section 48(2) of the Bombay Code. Such a rule code frustrate the salutary provisions of section 48(2) that the liability to pay revised assessment only arises when there is actual change of user.
3. Mr. Chhava vehemently argued that the two provisions cannot be said to be inconsistent. The test of inconsistency or repugnancy is that both cannot stand together. When Section 48(2) creates list this additional tax liability after a condition precedent is satisfied and if rule provides a liability of a tax to arise when the condition precedent is not satisfied, it is obvious that there two provisions cannot such stand together. Therefore rule 86 (1) (a) which provided for the tax liability even from a date before the actual non-agricultural use beings is clearly inconsistent with State of M. P. AIR 1971 SC 517 at p. 520 . there Lordships, in terms, held that no tax could be imposed by any bye-law or rule or regulation unless the statue under which the subordinate legislation was mad especially authorised the imposition even if it was assumed that the poser to tax could be delegated to the executive. Their Lordships held that the basis of the statutory power conferred by the statute could not be transgressed by the rule-making authority. A rule making authority had not plenary power it had to act within the limits of the power granted to it.
4. Mr. Chhava vehemently argued that in any event when the Bombay Code was extend by the Legislature by amending Section 2(4). the Legislature had itself enacted that the extension was, subject to the modification specified in Schedule J. Therefore even after the Saurashtra Code was repealed along with its rules. this modification was the statutory modification. Therefore the second proviso in Section 219 (1) saved by the Saurashtra Rules. Mr. Chhava argued that the Legislature itself mast be make together. There is no substance in this connection of Mr. Chhava because the second proviso says that even though the Saurashtra Code was repealed whatever was done under the repealed Code was continued including the rules enacted by the deeming fiction that such rules were enacted under the corresponding provisions of this Act and shall continue in force accordingly until superseded by the new rules made under the Bombay Code. Therefore the legislative intention is obvious not to continue the rules, which were inconsistent with the provisions of the Code. Even when the Suarashtra Rule was adopted in Saurashtra. the rule was in violation of Section 48, which was extended to Saurashtra. The same defect was in the Bombay rule but tit has been amended to bring it in conformity with Section 48. Therefore, the Saurashtra Rule with is inconsistent with Section 48. can never continue in force.
5. Mr. Chhava next argued that in any event this was procedural provisions. when power was given to alter the purpose of use of the land. the liability could always be fastened reasonably from the date of the permission. In fact under the Saurashtra rule 86 (1) (a). power is given to alter the assessment from the first day of the revenue year next succeeding the revenues year in which permission to the use the land for non-agricultural purpose was given. This would not amount to a procedural provision but clearly a substantive law. In Bharat Barrel and Drum Mfg. Co. v. The Employees' State Insurance Corpn., AIR 1972 SC 1935 their Lordships held that, rule 17 framed by Bombay Government prescribing limitation for filing application under Section 75 was ultra vires Sec 96(1)(b) when the section enacted by the Legislature did not empower the Government to prescribe by rules a period of limitation for claim under Section 75. Their Lordship held that, such provisions affected substantive right and must therefore be dealt with the Legislature itself and was not to be inferred from the rule making power conferred by regulating the procedure unless that was specifically provided for. What the Legislature specifically provided for the conditions precedent on fulfilment of which the liability of altered assessment could arise and, therefore the altered assessment liability could arise only when there was actual change of user and not form a prior date. This is not an ancillary or incidental procedural provisions but clearly a tax liability, non envisaged by the Code itself. In that view of the matter rule 86 (1) (a) must be held to be contrary to Section 48(2) of held Bombay Code and must, therefore, be held to be illegal and ultra vires.
6. In that view of the matter the second contention raise by Mr. Dave. as to whether the guarantee of Article 14 was violated in this case or not would not require any consideration in this matter.
7. In the result. this appeal it allowed by setting aside the decree of both the Court and by decreeing the plaintiff's suit for the aforesaid amount of Rs. 1,758.32 illegally recovered from the plaintiff with a 6 per cent. interest from the date of the suit till realisation. The aforesaid payment shall be made by the State Government within a period of three months from to-day. The plaintiff's suit is, accordingly, decree with costs all throughout.
8. Appeal allowed.