-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 434/2008 Ramesh Vishwanath Upadhye and others - versus- The State of Maharashtra and others ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 27, 2009. Heard Advocate Shri V.R. Mundra, for appellants/original plaintiffs and learned A.G.P. for respondents. Advocate Shri Mundra, contends that since 1901 property is being used for residential purpose i.e. non-agricultural purpose. He relies upon the provisions of Berar Land Revenue Code, 1896 to state that the said provision contemplated only 2 types or categories i.e. agricultural and non-agricultural. According to him in 1901 when the plot was purchased it was already for residential purposes and as no third purpose like Commercial user was recognised then, there cannot be any reassessment of land revenue on suit plot after it was put to use as Mangal Karlaya by the plaintiffs in the year 1984. -2- He further states that the user and its change effected way back prior to 1901 is valid and remains valid and there cannot be any objection to it. He argues that the sub-categorization of said user[use other than agricultural purpose], by the subsequent enactments is therefore not applicable to the present appellants. He therefore, argues that the assessment then done as residential one remains valid and cannot be altered because the property is being put to commercial user. He relies upon judgment of this Court in the case of Government of Central Provinces and Berar .vrs. Ganeshdas Bhojraj (1946 NLJ 650) in support of his contentions. In the alternative it is contended that the provisions of Section 116 of the Maharashtra Land Revenue Code [prior to 2002], permitted enhancement only upto 6 times of land revenue and in the present case the enhancement is from Rs.4.57 to Rs.4120/-. He argues that this challenge in the background of Section 116 has not been considered by the Lower Appellate Court. Learned A.G.P. supports the impugned order and invites attention to the reasoning given by both the Courts. It is apparent that the property became subject to provisions of Maharashtra Land Revenue -3- Code after 1965 and the user as Mangal Karlaya is in 1984 i.e. after the Maharashtra Land Revenue Code came into force. Section 44 of the said Code therefore squarely becomes applicable and if the then current user was to be changed to any other user, the procedure prescribed therein should have been followed. The Commercial user from 1984 is not in dispute before this Court. It is apparent that even if it is presumed that the residential user was permitted, the residential user has been altered to commercial one, hence reassessment under Section 42[1] of the Maharashtra Land Revenue Code becomes necessary. The provisions of Berar Land Revenue Code, 1896 which contemplated only two users of land are not available to the plaintiffs after the land becomes subject to provisions of Maharashtra Land Revenue Code. In so far as the challenge to assessment at Rs.4120/- per year is concerned, there is no material on record to show that similar property put to use as mangal karlaya would have been assessed at some other rate or at lower amount. The argument of relevance between the amount of Rs. 4.57 and Rs. 4120/- is lost after coming into force of the Maharashtra Land Revenue Code and after the property is put to commercial user. The judgment on -4- which Advocate Shri Mundra has placed reliance is delivered before coming into force of the Maharashtra Land Revenue Code, and therefore, has no relevance in so far as the present matter is concerned. I therefore, do not any substantial question of law arising in the matter for determination. Second Appeal is thus dismissed. No cost. JUDGE Rgd.