N.H. Bhatt, J.
1-6. xx xx xx
7. Coming to the first contention in respect of the two notifications, we find that the s ' aid notifications are liable to be struck down. The notification dated 26-8-1964 reads as follows:-
Saurashtra Government Gazette, 1954
Part V - Page 1956-57
Sub: - Application of R. 82 of the Bombay Land Revenue Rules, 1921 Rajkot, 26th August I954.
No. RD/11/4-A/6 (76):- In exercise of the powers conferred by Rule 82 of the Bombay Land Revenue Rules, 1921, as adapted and applied to the State of Saurashtra. Govt. is pleased to direct that the. said Rule shall be applied to all cities, towns and other areas which have a population of 20,000 and above and that the rate of non-agricultural assessment in such areas shall be as under:-
(1) areas having a population @O-0-5 per sq. yd. of 20000 and above but per annum less than 50000.
(2) Area having population 0-0-3 per sq. yd. of 50000 and above per annum.
2. Government is further pleased to direct that the said rates of non-agricultural assessment shall come into force with effect from 1st September 1954.
By order and in the name of the Rajpramukh of Saurashtra. Sd/ Banesinhji
Secretary to the Government of Saurashtra,
Revenue Department' .
The notification dated 4-11-l966 issued by, the Gujarat Government is only amendatory in character in so far as it replaces the words 'square yard' by the words 'square metre'. In a way it is not an independent notification. The notification dated 26-8-1954 issued by the Revenue Department of the then State of Saurashtra purported to be issued in exercise of the powers conferred by Rule 82 of the Bombay Land Revenue Rules as adapted for and applied to the State of Saurashtra. Said Rule 82 reads as follows: -
'82. In any area in which, on account of there being a keen demand for building sites or for any other special purpose the State Govt. may, by notification in the Official Gazette, direct that this rule shall be applied, the rate of non-agricultural assessment shall be determined in accordance with the, following provision and not under rule 81: -
I. The non-agricultural assessment shall ordinarily be a percentage an the full market value of the land as a building site.
II. In cases where this rule is applied on account of there being a demand for building sites, the market value of the land shall be estimated as far as possible on the basis of actual sales of unoccupied land for building purposes in the locality. . In cases where this rule is applied on account of the demand being for other special purposes, the market value shall be estimated as far as possible, on the basis of actual sales of unoccupied land of which the value is enhanced by the existence of the special demand.
III. & IV. xx xx xx xx'.
Even a casual glance at the above quoted text of R. 82 is sufficient to convince any one that for the purpose of deciding the rates under the said rule, the Government has to deal with different areas where there is a keen demand for building sites or where there is a keen demand for any other special purpose. If either of the conditions exists and the Government is satisfied about it, the Government by a notification in the official Gazette may direct that Rule 82 shall be applied and the rate of non-agricultural assessment shall be determined in accordance with the provisions of that Rule 82 and noi in accordance with the provisions of Rule 81. The provisions of Rule 82 are already quoted above. The bags that is permissible under cls. I and II is that N. A. assessment is ordinarily to be a percentage an the full market value of the land as a building site and where the rule in applied on the ground that there is a keen demand for building sites, the market value of the land is to be estimated, as far as possible, on the basis of actual sales of unoccupied land for the purpose of building in that locality and the next clause provides that value is to be estimated as far as possible on the basis of actual sales of un occupied land of which the value is enhanced by the existence of the special demand.
8. It is, therefore, evident that before the Govt. elects, to adopt Rule 82, the condition precedent is to examine the case area wise on the basis of a keen demand for building sites or a keen demand for any other special purpose and then a provision is to be made for assessing the value of the land and then fixing the N. A. assessment on the basis of percentage on the full market value of the land as a building site. The above quoted notification issued by the Saurashtra Government, however, does not take into account any such factor and it is evident that a uniform rate is prescribed for the lands situated in cities having 50,000 or more population and a uniform rate is prescribed for the areas having a population of 20,000. and above but less than 50,000. In other words, the Saurasthra region is divided into three categories: (1) inhabited places having population of less than 20,000; (2) places having population of 20,000 or more, but less than 50,000; and (3) having population of 50,000 and above. This is ex facie a different standard adopted for the purpose of levying N. A. assessment. It cannot be uniformly stated that all the places in the towns having 20,000 or more souls -but less than 50,000 would have a peculiar rate of demand for building sites nor could it be said that for cities having 50,000 or more population, there will be still more keen demand for building sites. Situations vary from place to place and from the very nature of things, there cannot be uniformity of demand either for building sites or for any other special purpose. The second objection to this notification is that it does not adopt any percentage on the full market value of the land as a building site. It adopts an arbitrary standard of 3 ps. per sq. yd per annum or 4 ps. per sq. yd per annum. It is, therefore, evident that what has been provided for in that notification of Saurashtra Government is not in accordance with the provisions of Rule 82 of the Land Revenue Rules, but it is something arbitrary and dehors those powers.
9. Mr. J. R. Nanavati who appears for the State and the Collector, however, urged that it was open to the State Government and the Collector to view the urban areas with uniformity and he also urged that there was notorious demand for building sites in such big cities. If such a blanket standard is adopted, it would ex facie be open to the charge of non-application of mind to the, provisions of Rule 82. Rule 82 from the very nature of things contemplates that specified areas are to be taken into account for the purpose of application of Rule 82. Say for example Rajkot, Jamnagar and Junagadh. We are told at the bar that at the relevant time all these three cities had population of more than 50,000. It is absurd to suggest that all these three places can be clubbed together as a particular area for the purpose of invoking the powers of Rule 82 of the Land Revenue Rules. It is, therefore, not possible for us to subscribe to the submission of Mr J. R. Nanavati. that the State can adopt the population as the basis which in its turn should be presumed to be giving rise to the inference regarding the demand for building sites. Despite there being population of 20,000 or more or as a matter of fact 50,000 or more, the keenness of demand may vary from place to place. Even apart from this lacuna, the adoption of a flat rate of 3 ps. or 4 ps. per sq. yd. as is to be found in that impugned notification of the Saurashtra Government cannot be said to be a basis recognised by Rule 82. It is, therefore, evident that while issuing the said notification, the Saurashtra Government had not before its mind the provisions of Rule 82 and that it had purported to lay down those arbitrary standards, both of population and rate, without any recourse to the provisions of R. 82. The said notification, therefore, is to be held as ultra vires Rule 82 of the Land Revenue Rules as it was applicable to Saurashtra region and, therefore. it in liable to be struck down as illegal.
10. The second contention that was raised in these petitions was regarding the demand of N. A. assessment from the date of the order granting permission for N. A. use. In this connection, Section 48 of the Land Revenue Code gives a clinching reply it provides that the land revenue leviable an any land under the provisions of this Act is to be assessed with reference to the use of the land and sub-section (2) of Section 48 specifically states that where land assessed for use for my purpose 'is used for any other purpose', the assessment fixed under the provisions of this Act upon such land shall be liable to be altered and fixed at a different rate. It is, therefore, evident that enhanced N. A. assessment is leviable only from the day the land is actually put to N. A. use and the said assessment cannot be levied from the day of the order. As a matter of fact, the order that was passed in all the three cases reserved a liberty to the grantee to commence N. A. use at any time within six months from the date of the order. This means that even the order itself postulates the possibility of the land being put to N. A. use from a date subsequent to the day of the grant of permission. In this connection. there is a judgment of J. B. Mehta J., as he then was, in the case of Jorawarsinhji Himatsinhji Rana v. Gujarat State, (1973) 14 Guj LR 156. In that case, it was held very clearly that Rule 86 (1) (a) of the Saurashtra Revenue Rules, which provided for the liability before even the actual use was changed would be in clear conflict with Section 48 (2) of the Land Revenue Code and on that ground the rule was held inoperative. Mr. J. R. Nanavati, however, in this connection urged that the learned Single Judge of this Court had no authority at law to declare a statutory Rule ultra vim because as per the High Court Appellate Side Rules, this power is conferred on the Division Bench of this court and not on the Single Judge. However, we have no hesitation in arriving at the same conclusion on our independent assessment of the legal provisions. We, therefore, declare that Rule 86 (1) (a) of ,the Saurashtra Land Revenue Rules an adopted for the Saurashtra region was, in violation of Section 48 of the Land Revenue Code and it was, therefore, to that extent bad at law and hence in operative.
11. Rule made absolute.