Case: Collector of Bombay Vs. Burjor Hormusji Poonegar &amp; Another

inasmuch the Collector had demanded the payment of assessment with retrospective effect. In our opinion, such a contention could not possibly be raised at all, because fixing and levying assessment is one thing and recovery of assessment is another. In the present case, the notices issued by the Collector to the respondents being 11 in number were all dated 29th June, 1943, and the tenor of all these notices was the same, except for the survey number and the amount of assessment. The form of these notices is as follows:-Re :- Assessment of old B. B. and C. I. Railway land at Sleater Road bearing C. S. No. ................. of Tardeo Dn. Plot No. ............Sir,With reference to the above, I have the honour to state that Government has been pleased to sanction the assessment of Rs. ............ p. a. on the land bearing C. S. No. ........................ of Tardeo Division with a guarantee period of 50 years from 1st April, 1938. I have therefore, assessed the above land accordingly.2. I now request you to pay into this office the assessment for five years (i.e., from 1st April, 1938 to 31st March, 1943) already due, at an early date.Your obedient servant,Collector of Bombay.It will appear from the form of this notice that it was addressed to the respondents under Section 9 of the Bombay City Land Revenue Act, 1876, for the purpose of intimating to them the amount of assessment that the Collector had fixed. Section 9 however, does not contemplate any notice of demand for payment of land revenue. That section only deals with the settlement of land revenue with the superior holder of the land, in the sense that the Collector has only to give an intimation of the assessment fixed by him in respect of any particular land to the superior holder thereof, so that the assessment may be binding on him. The second paragraph of the notice, however, refers to the demand for payment for the past five years. This may be regarded as a notice under Section 10 of the Act, the second paragraph whereof deals with a notice of demand for arrears of land revenue. In our opinion the notice with regard to fixing of land revenue is clearly severable from the notice demanding payment thereof for the past five years. So far as the latter notice is concerned, it might well be ignored by the respondents. But just because the respondents, were not liable to pay the assessment for the years 1938 to 1943, it would not mean that the assessment fixed by the Collector and intimated to the respondents by the first paragraph of the notice was invalid. The first paragraph of the notice undoubtedly intimates to the respondents the amount of assessment fixed by the Collector as from 1938 for a period of 50 years. That by itself, however, would not invalidate the assessment as such in so far as it was leviable as from the date of the notice. The period of 50 years, instead of being counted from 1938, would be calculated from the date of the notice; and the learned Advocate-General fairly conceded that that would be so. It may be noted that the statute does not require that the assessment should be fixed for any particular number of years. But we were told that it was just a matter of Government policy that the assessment should be fixed for a certain number of years, so that the holders of lands may have fixity of tenure for that period of year without any apprehension of the assessment being enhanced in the meantime. In these circumstances, we are not inclined to agree with the learned Revenue Judge that just because the Collector fixed the assessment with retrospective effect and demanded payment thereof from 1938, the entire assessment was invalid and ineffective or that the notices given by the Collector intimating to the respondents the amount of assessment that he had fixed were wholly invalid. On the contrary, in our opinion, the notices are, invalid only in so far as they demand payment of assessment for the period prior to the date thereof; for their future operation, they are perfectly valid. It may further be noted that if any payment has been made by the respondents in respect of any period prior to the date of the notices, the recovery of such assessment by the Government would be illegal and the amount so received by the Government would be liable to be refunded to the respondents. This position is made clear in a recent decision of the Supreme Court in Sales Tax Officer Banaras v. Kanhaiya Lal, AIR 1959 SC 135 in which it was observed that where it was once established that the payment, even though it be of a tax, had been made by the party labouring under a mistake of law, the party was entitled to recover the same and the party receiving the same was bound to repay or return it. No distinction could be made in respect of a tax liability on a plain reading of the terms of Section 72 of the Contract Act. To hold that a tax paid by mistake of law could not be recovered under Section 72 would be not to interpret the law but to make a law by adding some such words as "otherwise than by way of taxes" after the word "paid. Accordingly, the utmost that could be said about the validity or otherwise of the notices in question would be that the assessment fixed by the Collector was not invalid but that inasmuch as he had no right to demand payment of such assessment for any period prior to the date of the notice, the recovery made by him of any assessment for such period would be illegal and he would be liable to return the amount so recovered to the respondents. Except to this extent, the notices would, in our opinion, be perfectly valid and operative.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]45. It may be observed that some of the issues which were raised by the learned Revenue Judge in this case were almost identical with those raised and decided by the Supreme Court in Mistris Case, ((S) AIR 1955 SC 298  ). It was accordingly held by the learned Revenue Judge in this case, in our opinion quite rightly, that the respondents had not established a right in limitation of the right of the Government to assess, not had they established a specific limit to the Governments right to assess the lands in question within the meaning of Section 8 of the Bombay City Land Revenue Act, 1876. The questions that were hotly discussed before the learned Revenue Judge, however, were firstly, as to whether the respondents were not "Superior Holders" within the meaning of Section 3(4) of the Bombay City Land Revenue Act, 1876 and, therefore Sections 8 and 9 of the said Act were not applicable to them, and secondly, whether the notices issued by the appellant being retrospective were invalid and the assessments founded thereon were accordingly also invalid.In our opinion, the learned Revenue Judge should not have allowed this application for amendment of the plaint. It is obvious that the reliefs that the respondents had sought in the plaint as originally filed were based upon the footing that they were "Superior Holders". The same reliefs are now, sought to be obtained on the footing that they were not "Superior Holders". As the Supreme Court has pointed out, these pleas are obviously inconsistent with each other and we do not accept Mr. Madons contention that the plaintiff is always entitled to ask for any relief in any suit on thoroughly inconsistent pleas. (Vide Ma Shwe Mya v. Maung Mo Hnaung, 48 Ind App 214 : (AIR 1922 PC 249). On the mere ground, therefore, that the plea that was sought to be raised by the respondents by their amendment application was wholly inconsistent with the pleas already raised by them in the plaint as originally filed, the learned Revenue Judge, in our opinion, should have disallowed the respondents application for amendment. Secondly, it is obvious that the Government would be put to a very serious loss of revenue in the event of the respondents succeeding on this new plea. It would be losing the revenue for all the years at any rate from 1943 onwards up to the time they are compelled to amend the Bombay City Land Revenue Act so as to enable them to levy assessment upon these lands. If the amendment application had been made earlier, soon after the suit was filed, the learned Revenue Judge could have taken, up this case as well for disposal and in that event the suit could have been finally disposed of even by the Supreme Court in appeal just about the time when Mistris case, ((S) AIR 1955 SC 208) was decided. If the respondents on this plea had succeeded before the Supreme Court the Government would have seen their way to amend the Bombay City Land Revenue Act, 1876, suitably by about 1955 or 1956. In that case as also in the case of respondents losing on that plea, although the Government would have lost its revenue for about 12 or 13 years, they would not have lost the same for the subsequent years. For this reason also, the learned Judge should have disallowed the respondents application for amendment. On the ground of delay also, we are of the opinion that the learned Revenue Judge should have disallowed the respondents application for amendment. Unless the respondents thought that their suit would be decided in the same way as Mistris suit, there was no reason for them to wait for the disposal of their suit until Mistris case, ((S) AIR 1955 SC 298  ) was decided by the Supreme Court in 1955. If at all they wanted to raise a plea, which they sought to raise by the amendment application, we do not think they should have really waited until the decision of the Supreme Court in Mistris case, ((S) AIR 1955 SC 298  ) because, they knew very well that Mistris case, ((S) AIR 1955 SC 298  ) did not involve the question as to whether Mistri and others who had purchased the land from Government, just as the respondents had done in this case, were or were not "Superior Holders" within the meaning of Section 3(4) of the Bombay City Land Revenue Act, 1876. They should have really raised this plea by amending the plaint within a reasonable time after the filing of the suit. Besides, the Bombay City Land Revenue Act, 1876, by Section 17 requires such a suit to be filed within 30 days from the date when the decision of the Collector was made known to the respondents. This provision clearly shows the anxiety of the Legislature that revenue matters should be disposed of as expeditiously as possible. With the new plea that was allowed to be introduced by the amendment of the plaint, the suit can be said to have been filed more than 12 years after the assessment was fixed and accordingly, the very purpose for which Section 17 of that Act was designed can well be said to have been set at nought. Besides, it seems to us that in view of Section 17 of the said Act, the suit was clearly barred by time at the date of the application for amendment of the plaint. We, therefore, hold that the respondents application for amendment of the plaint in this case should not have been allowed by the learned Revenue Judge.51. Inasmuch as, however, the learneddid not content himself with his arguments only on this question of amendment, and invited us to give our decision also on the questions that were raised by the amended plaint, we do not think that we should dispose of this appeal only on thatwill appear from these provisions that all that belonged to the East India Company at the date of that Act was ordained to be held by that Company not for its own benefit, advantage or use but in trust for His Majesty, His Heirs and Successors for the service of the Government of India. The Port and Island of Bombay was one of the territories then in possession and under the Government of the East India Company and, as has been already observed, the kind of estate that the Company had in the Port and Island of Bombay was only an estate in fee simple. By virtue of these provisions, this estate in fee simple only was ordained to be held by the Company in trust for His Majesty, His Heirs and Successors for the service of the Government of India. It was not as if the estate which belonged to the East India Company was resumed by the Crown and the East India Company was thereafter ordained to hold in trust the Port and Island of Bombay for and on behalf of the Crown for the service of the Government of India. Accordingly, in our opinion, there was no merger of the interests of the Crown with those of the East India Company in the Port and Island of Bombay, under the Act of 1833 as contended for by Mr.again, it will be observed, all that had belonged to and was in the possession of the East India Company became vested in Her Majesty to be applied and disposed of for the purposes of the Government of India. There is, however, no specific provision anywhere in this Act to the effect that the paramount interest of the Crown in the Port and Island of Bombay had merged with the interest of the East India Company therein, for being applied and disposed of for the purposes of the Government of India. Section 2 of that Act, however which has been quoted above, uses the word "India" and that would presumably include all the territories which constituted India as belonging to Her Majesty. For the purposes of the Government of India, it can well be said that thein regard to the Port and Island of Bombay which continued to remain in the Crown until the Act of 1858, merged with the interest of the East India Company therein and the Port and Island of Bombay formed one of the territories of India, which was thereafter to be governed by and in the name of Her Majesty. In our opinion, therefore, the Socage tenure on which the Port and Island of Bombay was granted to the London Company by the Charter of 1668 came to an end in 1858 and there was no question of anyin respect thereof continuing in the Crown thereafter. If we are right in this conclusion, we must negative the learned Advocate Generals contention that theover the Port and Island of Bombay continued in the Crown until by implication it devolved on the province of Bombay under the Government of India Act of 1935. The learned Advocate General conceded that there was no provision in the Act of 1935 transferring theof the Crown to the Provincial Government. According to him, however, the transfer of power to legislate about land and land revenue to the Province of Bombay contemplated by the Government of India Act of 1935, implied the transfer ofover the Port and Island of Bombay to the Provincial Government. He urged that as a matter of fact, as far back as 1861, the India Councils Act, 1861, which empowered the Government of India to make laws inter alia for land and land revenue, implied the transfer ofover the Port and Island of Bombay to the Government of Bombay. We are afraid however, we cannot accept this contention of the learned Advocate General. The transfer of power to legislate about land and land revenue, in our opinion, has no concern with theof the Crown in respect of any of the territories of India. Besides, there was nothing like Province of Bombay in 1861 when the India Councils Act was passed, nor was there any thing like the Province of Bombay when the Bombay City Land Revenue Act of 1876 was passed. It was conceded at the Bar that until the Government of India Act of 1935 came into force the Government of India was unitary and all the laws of the land were passed by the Government of India. Section 36 of the India Councils Act of 1861 empowered the Indian Government to make laws inter alia with reference to lands and land revenue, and it appears that it was by virtue of this power that the Bombay City Land Revenue Act of 1876 and the Bombay Land Revenue Code of 1879 were passed. We, therefore, hold that since the Act of 1858 to which we have referred, the entire interest of the Crown in the Port and Island of Bombay was held by the Government of India and that, there was no question ofdevolving upon the Provincial Government either under the India Councils Act, 1861, or under the Government of India Act of 1935.61. It may be observed that the question as regards the Socage tenure with reference to the Port and Island of Bombay was raised by the learned Advocate General for the purpose of showing that the lands held by the respondents in this case were really held by them under the Provincial Government inasmuch as theof the Crown in respect of the territories within the Port and Island of Bombay had devolved upon the Provincial Government at any rate on the passing of the Government of India Act of 1935. This argument was adopted by the learned Advocate General on the footing that the expression "a person having the highest title under the Provincial Government" as used in Section 3(4) of the Bombay City Land Revenue Act, 1876, was capable of being literally construed to mean that such person derived his title from and held it under the Provincial Government. As we have held, however, that there was no kind of subsistingas existed between the Crown and the East India Company after the Act of 1858, there was nothing to devolve upon the Provincial Government when the Government of India Act, 1935, was passed and, therefore, on the literal construction of the expression "a person having the highest title under the Provincial Government" as used in Section 3(4) of the Bombay City Land Revenue Act, 1876, it could not be said that the respondents held the lands in the suit under the Provincial Government.62. Assuming, however, that there was any such kind ofsubsisting in the Crown over the territories situated within the Port and Island of Bombay, until the Government of India Act, 1935, was passed, in the absence of any specific provision in that Act transferring thisto the Provincial Government, the Provincial Government could not be said to be the overlord of the lands in suit, so that the respondents could be said to hold the same "under the Provincial Government". Thein that event would continue to remain in the Crown and the utmost that may be said would be that the respondents held the lands only under the Crown.63. The position in this behalf would not, in our opinion be any different if the Central Government had in them the lordship as distinct fromover the lands in suit, as was alternatively contended by the learned Advocate General, in consequence of an estate in fee simple, which is the highest estate known to English law, having been created in favour of the respondents in respect of those lands by the conveyance dated 15th March 1938. There being admittedly no provision in the Government of India, Act, 1935, for transfer of such lordship to the Provincial Government, the respondents cannot be said to hold those lands "under the Provincialthere is no doubt that one of the prerogatives of the Crown is that it is the owner of the soil in respect of all the lands situated within its territories, and that the subjects can only have an estate in the lands and can never claim to be the absolute owners thereof. The other prerogative of the Crown is to assess lands in the hands of its subjects obviously because the Crown would not be able to run the Government of its territories except with the help of the land revenue that it might collect from its subjects.It was not disputed at the Bar that the lands in suit were originally granted on foras tenure. By the Foras Act No. VI of 1851 the rights of the East India Company in all such lands were extinguished in favour of the persons who held the same as the immediateto the company save and except the rents that were severally payable in respect of such lands which were to continue to be payable and recoverable by distress or by any means by which land revenue in Bombay was then, recoverable under any Act or regulation and all rights of forfeiture and escheat for want of heirs or representatives, or on account of felonies committed, or otherwise. It will thus be seen that the lordship which was granted to the East India Company by the Crown over the Port and Island of Bombay was considerably curtailed in favour of the occupants of these lands situated in the Port and Island of Bombay and that the only rights which remained in the East India Company were those relating, to the recovery of the rent, escheat and forfeiture. It may be noted that this Act was apparently passed with a view to securing permanency of tenure to the occupants of the foras lands. By the Act of 1858, as already observed above, these rights of the East India Company were transferred to Her Majesty to be utilised for the purposes of the Government of India and theof the Crown in respect of these lands thereby became merged with the lordship of the East India Company and the only outstanding interests in those lands were those which had remained with the occupants of those lands. The lands in suit as well as several other lands belonging to the same tenure were, however, acquired by the Government for the use of B. B. and C. I. Railway during the periodWhatever rights the occupants of these lands had therein were thereupon extinguished and the Government which was then being carried on in the name of Her Majesty became the absolute owner of all those lands. The Supreme Court in Mistris case ((S) AIR 1955 SC 298  ) has pointed out that on the acquisition of these lands the provisions of Foras Act ceased to apply and there was no rent to be paid to the Government in respect of those lands, because the Government itself had acquired those lands. Besides, the Foras Act of 1851 was itself repealed in 1870. There was, of course, a provision made in the Repealing Act that whatever rights the Government of India, which had stepped into the shoes of the East India Company, had in respect of the lands governed by the Foras Act of 1851 were preserved and one of such rights was to recover the rents which were being paid to the East India Company and later to the Government of India in respect thereof. But this saving provision of the Repealing Act only applied to those lands which were not acquired by the Government (under the Land Acquisition Act. Inasmuch as, however, the lands in the suit were acquired by the Government for the use of the B. B. and C. I. Railway as stated above, the provision of the Repealing Act relating to the saving of the rights of the Crown did not apply to them, nor would that provision be revived in the event of the Government transferring any of those lands to any member of the public even by an outright sale. The Supreme Court has made this position abundantly clear in its judgment in Mistris case ((S) AIR 1955 SCare afraid, we cannot accept this contention. The prerogative right of the Crown to assess the lands within its territory was distributed between the Federal Government and the Provinces according as the lands were situated within the territories of the Federation or of Provinces. The Provincial Government accordingly had full and absolute power, in our opinion, to assess lands within its own territory even if such lands were held by His Majesty for Federal purposes. The wording of Section 154 in our judgment makes this position quite clear and it was not as if the provision was made as matter of any abundant caution as urged by the learned Counsel for the respondents. This position seems to have been made much clear by the proviso to Section 154 which says that if any property so vested in His Majesty was liable to any tax immediately before the commencement of Part III of that Act, it shall continue to be liable to such tax so long as that tax continued until any Dominion law provided to the contrary. The argument advanced by Mr. Madon that the property vested in His Majesty for the purposes of the Federation was always exempt from the Provincial tax, does not, therefore, appear to beobservations make it clear that the Provincial Legislature is supreme in its power to legislate in respect of any property situated within its territories irrespective of whether such property belongs to private individuals or is held by His Majesty for the purposes of the Federation. In case of property vested in or in the possession ofHis Majesty for the purposes of the Federation but situated in a province, it is only the Federal law which can provide exemption or protection from the operation of any Provincial legislation with respect thereto. But for such law, such property would be treated for the purposes of the Provincial legislation as if it was the property of a private individual in the same way as a property vested in His Majesty for the purposes of a province but situated outside the province would be regarded as if it was owned by a privateit seems to be clear that the provisions of Section 154 of the Government of India Act were not enacted as a matter of abundant caution as contended by Mr. Madon, the learned Counsel for the respondents. The provisions were necessary to be made in order to protect the property vested in His Majesty for the purposes of the Federation but situated in a Province from any taxing Statute that might be passed by the Provincial Legislature. As a matter of fact, in our opinion, Section 154 of the Government of India Act, 1935, plainly recognises the right of the Provincial Government to tax all lands situated within its territory through appropriate legislation corresponding to the prerogative right of the Crown to levy assessment upon lands situated within its territories. Accordingly, so long as the lands in suit were held by the Central Government after the Government of India Act, 1935, came into force, the Provincial Government could claim the same prerogative right of the Crown over these lands for the purposes of any land revenue that might be imposed by the Provincial Government upon thesewe remember that the lands in the City of Bombay were originally granted by the Portuguese Government and recognised by the London Company and its successor the East India Company, and the East India Company itself had granted some other lands including those reclaimed from the sea to different persons on different tenures, such as pension and tax and Foras tenures, and that the occupants of lands despite the abolition of the tenures on which they were held continued to be liable to pay the same amount of rent or assessment to the Government as they were liable to pay under the terms of their respective tenure by reason of a saving provision made in the Statute abolishing the tenures, the reason underlying the last paragraph of Section 8, as quoted, would be better appreciated. It is an admitted fact that the lands in question, along with several others, were originally granted to the occupants on Foras tenure in consideration of certain amount of rent. Although the Foras Act, 1851, which extinguished thereversion of the East India Company in these lands except, of course, their right to the rents, escheat and forfeiture, as already observed in the earlier part of the judgment was abolished in 1870, the right of the Government to recover these rents as well as the liability of the occupants to pay those rents were preserved. In case of such lands, the occupants could plead and establish a limitation upon the right of the Provincial Government to levy assessment on the lands in their possession and urge that the Provincial Government was not entitled to levy any assessment higher than what they were already paying prior to the Act of 1935 or even prior to the abolition of Foras Act of 1851, in 1870 to the then Government. But where the lands, though originally granted on Foras tenure, ceased to be governed by that tenure by reason of the acquisition thereof by the Government, as in the present case, neither the Central Government nor any person deriving title thereto from the Central Government could contend that there was any limitation upon the right of the Provincial Government to levy assessment upon those lands. On a true construction of Section 8 of the Bombay City Land Revenue Act, 1876, therefore, we hold that the Collector has the power and duty to levy assessment for land revenue upon all the lands situated in the City of Bombay without reference to any superior holder, subject of course, to the right on the part of any superior holder in limitation of the right of the Provincial Government to assess in consequence of a specific limit to assessment having been established andmay, however, be observed that the same section further provides that in any case wherein the superior holder or the person in possession cannot be readily ascertained, the Collector shall give notice calling on all persons claiming the right of a superior holder in or over the said land or a right to the possession thereof to intimate such claim to the Collector at the Collectors office. It also provides that if no person asserts such right by intimation to the Collector at the Collectors office withindays from the date of such notice, the Collector may assess such land at his discretion and the superior holder and every person then or thereafter in possession of the land shall be liable accordingly. These provisions, in our opinion, show that the liability to assessment is attached to the land and the section only provides how the assessment is to be settled and recovered.In our opinion, the contention raised on behalf of the respondents that the Provincial Government had limited its rights to levy assessment from such superior holder, who held the highest title (to land) derived from the Provincial Government is not worthy of acceptance. As we have already held above, on a true construction of Section 8 of the Bombay City Land Revenue Act, 1876, the Collector has the power and duty to levy assessment for land revenue upon all the lands situated in the City of Bombay without reference to any superior holder, subject, of course, to the right of any superior holder in limitation of the right of the Provincial Government in consequence of a specific limit of assessment having been established and preserved. Further, the section postulates the existence of a superior holder in respect of every land liable to be assessed by the Collector, and it is the superior holder alone who is entitled to plead and establish a limitation of the right of the Provincial Government to assess either wholly or in part, in consequence of a specific limit to assessment preserved to him by some Statute or terms of the grant. It must be noted that no Provincial Government with autonomy of its own existed at the time when the Bombay City Land Revenue Act, 1876, was put on the Statute Book and, therefore, there was no question of the Provincial Government granting any lands in the City of Bombay to the subjects on any tenure or otherwise, nor was there any question of the Government of that day granting any such lands to the subjects on any tenure or otherwise. The lands in the City of Bombay were already granted to the subjects on different tenures, first by the Portuguese Government and later by the London Company and its successor the East India Company, and yet the expression "superior holder" was defined in Section 3(4) of the Bombay City Land Revenue Act as "a person having the highest title under the Government to any land in the City of Bombay". Accordingly, in order to give effect to the object and provisions of that Act and not to render then, nugatory, it must be held that the "superior holder" contemplated by that Act does not mean a person having the highest title (to land) derived from the Government or the Provincial Government, as if it was the owner of the land in fact and in law, and had granted it to some person on some tenure. It must, in our opinion, mean a person having the highest title to land among several claimants thereto, and for the purpose of payment of land revenue in respect of such land such person would hold the land "under the Government" or "under the Provincial Government" by virtue of its prerogative right to be the owner of all lands within itsthe light of these observations, it would be clear that so far as the assessment of any land in the City of Bombay to land revenue is concerned, a "superior holder" having the highest title thereto would be holding it from or under the Provincial Government and it is not necessary that such "superior holder" must derive his highest title to the land from the Provincial Government on the basis of some tenure granted by the latter, before he can be made liable to the payment of land revenue in respect of suchare afraid, we cannot accept thiswill appear from this definition that the emphasis is not on the person from whom such land revenue is claimable but on the land or interest in or right exercisable over land held by or vested in someare afraid, there is no substance in this contention. The words "legally claimable" only refer to the method by which the assessment is fixed and claimed from the "superior holder". They do not, in our opinion, mean that it would be legally claimable only where the "superior holder" derived his title to land from the Provincialour opinion, this construction of the expression, "Under the Provincial Government" is repugnant to the object and spirit of the Act itself. It is also repugnant to the expression "highest title" used in the definition ofthat event it is difficult to conceive the propriety of the expression "highest title" as used in the definition ofThe expression "highest title", in our opinion, connotes a competition between several types of title or interest created in respect of the same land. As already observed above, it was conceded by Mr. Gupte that the Provincial Government could not possibly create more than one right in respect of the same land. How then is the expression "highest title" to be explained  It can only be explained on the footing that several kinds of estates may simultaneously exist in the same land and the "superior holder in respect of such land would be the person having the highest estate in thatit is true that the English law of property does not apply to this country ever since the enactment of the Transfer of Property Act in 1882, we do have different kinds of transfers of property with different kinds of rights accruing therefrom. Thus, A the owner of land may lease it out to B for a period of 99 years. He may also create a mortgage of that property in favour of C. It is open to him to create also a life estate in favour of D, and so on.All these different rights, as admitted by Mr. Gupte, could not possibly be created by the Provincial Government but they could only be created by a person who is the owner of that property and it is only when such rights are created in respect of the same land that the question of a person having the highest title to the land would arise for the purposes of land revenue.Accordingly, we are of the view that the contention raised by Mr. Gupte that there must be a subsisting relationship between the Provincial Government and the holder of the land and that some interest must continue to subsist in the Provincial Government in the land in order that the holder may be called "a superior holder having the highest title under the Provincial Government is not justified. As rightly contended by the learnedthe words "under the Provincial Government" were used in Section 3(4) of the Bombay City Land Revenue Act to emphasise the basic theory that all land within the Province belonged to the Provincialwas in the light of this principle that we have already observed in the earlier part of the judgment that the purpose of the Bombay City Land Revenue Act, 1876, would be completely frustrated if the assessment is to be levied only upon those lands in the City of Bombay to which title is directly derived from the Provincial Government, as in the case of a lease or as where it is granted, on somesection is followed by a proviso with which we are not concerned in this case. Item 21 referred to above enumerates the subjects in respect of which the Provincial Legislature has been empowered to legislate and one of these subjects is treasureour opinion, Section 174 referred to above does support the proposition that the Crown is not always one and indivisible, and that its powers and prerogatives could be distributed amongst several Government authorities. That section provides for the distribution of the Crowns prerogative of escheat both to the Dominion Government and the Provincial Government according as the property accruing by escheat or lapse or as bona vacantia for want of rightful owner was situated outside the Provinces or in ahave already held, and it was conceded by the learnedthat there was no provision in the Government of India Act, 1935, by which in case the English Law applied to the transaction in question the reversion that remained in the Central Government was transferred to the Provincial Government. We must, however, deal with the contention raised by Mr.Gupte, though contrary to his own pleading, that the Central Government up to the date of the conveyance in favour of the respondents was the absolute owner of the lands in suit in consequence of the merger of all the outstanding interests therein as far back as inn they were acquired for the purposes of the B. B. and C. I. Railway and this absolute ownership was transferred by the Central Government to the respondents by the conveyance of 1938 some time after the Government of India Act, 1935, had come intoour opinion, however, there is a clear fallacy in this contention. On 1st April, 1937, on which date the Government of India Act, 1935, came into force, the prerogative right of the sovereign over all the lands situated within a Province was transferred to the Provincial Government and, therefore, the Central Government began to hold the lands in question under the Provincial Government and that such lands became immediately liable to pay land revenue to the Provincial Government under the provisions of the Bombay City Land Revenue Act, 1876. Section 154 of the Government of India Act, however, specifically provided for an exemption of these lands from all taxes that might be imposed by any authority within a province and, therefore, the Central Government, though holding the lands under the Provincial Government as superior holders thereof within the meaning of Section 3(4) of the Bombay City Land Revenue Act, 1876, was not liable to pay any land revenue to the Provincial Government. The moment, however, these lands were acquired by the respondents under the conveyance executed by the Central Government in their favour in 1938, the lands were no longer exempt from payment of land revenue to the Provincial Government and the respondents, stepping as they did into the shoes of the Central Government as superior holders in respect of these lands, became liable to pay land revenue in respect of these lands to the Provincial Government. As Chandavarkar, J., observed in Vinayak s case, ILR 26 Bom 339 at p. 350 when the respondents acquired the lands from the Central Government they acquired them subject to the paramount right of the Provincial Government to assess them for the purposes of land revenue from time to time according to the exigencies of administration. It is undoubtedly true that in case of an outright sale of land a purchaser cannot be said to hold it under the vendor. The question in this case, however, is not whether the respondents held the lands under the Central Government as their vendor. Thequestion is whether they held the lands under the Provincial Government which had nothing whatever to do with the sale of the lands by the Central Government in theirwe have already observed, on the creation of autonomous Provinces in British India by the Government of India Act, 1935, sovereignty of the Crown over the territories constituting such provinces was transferred to the Provincial Governments and all lands situated within the territories of the Province began to be held by the respective owners thereof under the Provincial Government concerned. Even on the assumption that the English Law of Property applied to these lands after the commencement of the Government of India Act 1935, the Provincial Government being the Lord Paramount in respect of all the lands situated within its territories, the Central Government held the lands in suit on an etsate in fee simple and such an estate being freely transferable under the English Law, all that was possessed by the Central Government in these lands was transferred to the respondents by the conveyance executed by the Central Government in their favour in 1938 and the respondents, too, accordingly held the lands on an estate in fee simple under the Provincial Government. In either event, the respondents could not escape being held liable as superior holders having the highest title to the lands in question under the Provincial Government to pay land revenue in respect of these lands.81. We accordingly hold that the learned Revenue Judge, was in error in holding that the respondents were not "superior holders" within the meaning of the Bombay City Land Revenue Act, 1876,in respect of the lands purchased by them from the Central Government in 1938 and that, therefore, the Collector was not entitled to fix and levy any assessment upon those lands. In our opinion, the respondents are superior holders within the meaning of the Act and as such they are liable to pay land revenue to the Provincial Government in respect of the land held by them.82. It may be noted that in view of the decision of the Supreme Court in Mistris case, ((S) AIR 1955 SC 298  ) the respondents did not contend before us or before the learned Revenue Judge that they as "superior holders" had any right in limitation of the right of the Government to assess, as pleaded by them in their plaint. As already observed in an earlier part of the judgment, the conveyance in Mistris case, was in terms similar to those of the conveyance in favour of the respondents in this case; and it was urged on behalf of the plaintiff in that case that they had a right in limitation of the right of the Provincial Government to assess the lands in their possession because the Central Government, from which they had purchased the land was exempt from paying any land revenue to the Provincial Government in respect of those lands and accordingly, they themselves were also exempt from the payment of such revenue; and, alternatively, they were liable to pay only such assessment to the Provincial Government as was being paid to the East India Company and later to the Government of India by then holders of those lands under the terms of the Foras tenure prior to the acquisition thereof by the Central Government infor the purposes of B. B. and C. I. Railway. Both these contentions, though upheld by the learned Revenue Judge and the High Court on appeal, were rejected by the Supreme Court, and it was held that where there was an absolute sale by the Crown it did not necessarily import that the land was conveyedand that the Foras tenure became extinguished when the lands were acquired under the Land Acquisition proceedings and was incapable of coming back to life when the lands were sold to the respondents, and accordingly, the respondents could not claim a right to pay assessment only at the rate at which it was payable under the Foras Act. The contentions raised by the respondents in this case in their plaint were the same as were raised by the plaintiffs in Mistris case, ((S) AIR 1955 SC 298  ) as aforesaid; and it was in the fitness of things that the respondents in this case were advised not to raise those contentions before us in thiswould thus appear that all that was held on the question of the Collectors right to recover enhanced assessment retrospectively was that, in the absence of anything in the terms of the Government Resolution to show any intention to give retrospective effect to the new assessment, the Collector could not call upon the plaintiff to pay the assessment for the two preceding years and that, therefore, the plaintiff was entitled to the return of the excess amount that he had claimed. It is true that it was not contended by the plaintiff in that case that the notice fixing and levying enhanced assessment in that case retrospectively was wholly bad by reason of its being retrospective in operation and that what the plaintiff had claimed was the excess amount that he had paid for the two years. Nevertheless, it is clear from the decision of that case that wherever an assessment is made with retrospective effect the assessee would not be liable to pay the assessment for the years prior to the date of the notice; but that in itself would not be an adequate ground to render the whole notice invalid. The assessment fixed by the Collector would certainly be valid as from the date on which it was fixed with prospective operation. The learned Revenue Judge, however, felt the difficulty in taking this view of the notices in the present case, because if the Collector made an assessment in 1943 and calculated the value of the land (say Rs. 40 per square yard) but made the assessment retrospective from 1938, then one did not know whether he considered Rs. 40 per square yard to be a reasonable price in 1938 or 1943. It was mainly upon this consideration that the learned Revenue Judge felt inclined to hold that the notices were not good enough even for their prospective operation and they were wholly void. In our opinion, the learned Revenue Judge fell into an error in relying upon the aforesaid consideration for the purpose of discarding the notices as wholly invalid. It is certainly true that the prices of land in 1938 in the City of Bombay were very much lower than those in 1943 when the Second World War was on. Nevertheless, no injustice would result to the respondents so long as they were liable to pay the assessment as from the date of the notices. If the Collector had fixed the assessment on the basis of the value of the lands in 1938, the respondents would be paying very much less as and by way of land revenue than what would have been legitimately due from them on the basis of the value in 1943. If the Collector had taken the value of the land in 1943, the respondents, would not be liable to pay the assessment fixed on such value for any period prior to the date of the notice and they would be paying just the amount of revenue which would be legitimately due from them on the basis of the value of the land in 1943. In our opinion, therefore, the learned Revenue Judge was not right in holding that the notices (Exhibit K) in the case could not be operative evenmay be observed that in this case also it was not contended by the plaintiff that the notice fixing and levying the assessment was wholly void inasmuch the Collector had demanded the payment of assessment with retrospective effect. In our opinion, such a contention could not possibly be raised at all, because fixing and levying assessment is one thing and recovery of assessment is another. In the present case, the notices issued by the Collector to the respondents being 11 in number were all dated 29th June, 1943, and the tenor of all these notices was the same, except for the survey number and the amount ofwill appear from the form of this notice that it was addressed to the respondents under Section 9 of the Bombay City Land Revenue Act, 1876, for the purpose of intimating to them the amount of assessment that the Collector had fixed. Section 9 however, does not contemplate any notice of demand for payment of land revenue. That section only deals with the settlement of land revenue with the superior holder of the land, in the sense that the Collector has only to give an intimation of the assessment fixed by him in respect of any particular land to the superior holder thereof, so that the assessment may be binding on him. The second paragraph of the notice, however, refers to the demand for payment for the past five years. This may be regarded as a notice under Section 10 of the Act, the second paragraph whereof deals with a notice of demand for arrears of land revenue. In our opinion the notice with regard to fixing of land revenue is clearly severable from the notice demanding payment thereof for the past five years. So far as the latter notice is concerned, it might well be ignored by the respondents. But just because the respondents, were not liable to pay the assessment for the years 1938 to 1943, it would not mean that the assessment fixed by the Collector and intimated to the respondents by the first paragraph of the notice was invalid. The first paragraph of the notice undoubtedly intimates to the respondents the amount of assessment fixed by the Collector as from 1938 for a period of 50 years. That by itself, however, would not invalidate the assessment as such in so far as it was leviable as from the date of the notice. The period of 50 years, instead of being counted from 1938, would be calculated from the date of the notice; and the learnedfairly conceded that that would be so. It may be noted that the statute does not require that the assessment should be fixed for any particular number of years. But we were told that it was just a matter of Government policy that the assessment should be fixed for a certain number of years, so that the holders of lands may have fixity of tenure for that period of year without any apprehension of the assessment being enhanced in the meantime. In these circumstances, we are not inclined to agree with the learned Revenue Judge that just because the Collector fixed the assessment with retrospective effect and demanded payment thereof from 1938, the entire assessment was invalid and ineffective or that the notices given by the Collector intimating to the respondents the amount of assessment that he had fixed were wholly invalid. On the contrary, in our opinion, the notices are, invalid only in so far as they demand payment of assessment for the period prior to the date thereof; for their future operation, they are perfectly valid. It may further be noted that if any payment has been made by the respondents in respect of any period prior to the date of the notices, the recovery of such assessment by the Government would be illegal and the amount so received by the Government would be liable to be refunded to the respondents. This position is made clear in a recent decision of the Supreme Court in Sales Tax Officer Banaras v. Kanhaiya Lal, AIR 1959 SC 135   in which it was observed that where it was once established that the payment, even though it be of a tax, had been made by the party labouring under a mistake of law, the party was entitled to recover the same and the party receiving the same was bound to repay or return it. No distinction could be made in respect of a tax liability on a plain reading of the terms of Section 72 of the Contract Act. To hold that a tax paid by mistake of law could not be recovered under Section 72 would be not to interpret the law but to make a law by adding some such words as "otherwise than by way of taxes" after the word "paid. Accordingly, the utmost that could be said about the validity or otherwise of the notices in question would be that the assessment fixed by the Collector was not invalid but that inasmuch as he had no right to demand payment of such assessment for any period prior to the date of the notice, the recovery made by him of any assessment for such period would be illegal and he would be liable to return the amount so recovered to the respondents. Except to this extent, the notices would, in our opinion, be perfectly valid and operative.