Case: Collector Of Bombay Vs. Municipal Corporation Of The City Of Bombay And Others

is whether, on the facts of this case, the Respondent Corporation has succeeded in establishing in itself a right in limitation of the right of the Government to assess the land in consequence of a specific limit to assessment having been established and preserved. There is no dispute that by reason of the non-compliance with the statutory formalities the Government Resolution of 1865 is not an effectual grant passing title in the land to the respondent Corporation and is not also an enforceable contract. On the other hand, there is no doubt as to the existence of an intention on the part of the Government to make and on the part of the Corporation to take a grant of the land in terms of the Resolution of 1865 including an undertaking by the Government not to charge any rent. Both parties acted on the basis of that Resolution and the predecessor in title of the Respondent Corporation went into possession of the land in question pursuant to the Government Resolution of 1865 and, acting upon the said Resolution and the terms contained therein, the Respondent Corporation and its predecessor in title spent considerable sums of money in leveling the site and erecting and maintaining the market buildings and have been in possession of the land for over 70 years. What, in the circumstances was the legal position of the respondent Corporation and its predecessor in title in relation to the land in question? They were in possession of the land to which they had no legal title at all.13. Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an in severable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the Governments prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been a made to in. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily constitute a right in limitation of the Governments right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of S. 8 of the Bombay Act II [2] of 1876.It is true, as pointed out by the Privy Council in Kamalavahoojs Maharaj v. Collector of Bombay,(39 Bom. L. R. l046) (supra.) that the words of the section would appear to apply rather to the case of a limitation on the right to assess than to the case of a complete exemption from assessment but such a construction would not protect the case of total exemption which, as conceded in that very case, did in fact exist and were recognised and protected by virtue of the words of S. 8 of the Bombay Act II [2] of 1876. It has not been suggested before us that there are no cases of total exemption or that those cases are protected by any provision of law other than that of this very section. There is, therefore, no escape from the conclusion arrived at by the High Court, with which we concur, that the words of S. 8 would apply to a case where total exemption from assessment was granted. In other words, specific limit may be nil for the purposes of S. 8 of the Act.14. It was sought to be argued that even if the Government be precluded from enhancing the "rent" in view of the terms of the Government Resolution, it cannot be held to have disentitled itself from its prerogative right to assess "land revenue. This contention is sought to be founded on a distinction between "rent" and "land revenue." This contention, however, was not raised in the written statement and was not made the subject matter of any issue on which the parties went to trial and was never put forward before either of the Courts below. Indeed, in the letter of the Mayor of Bombay dated 22- 3-1939, to which reference has been made, it was clearly alleged that "the word "rent" was used in official documents with the greatest frequency with reference to, the land revenue leviable by the East India Company and later by the Government in the City of Bombay and in the Presidency " In the Governments reply dated 24-1-1940, also quoted above, this assertion was never repudiated or denied. In the premises, the appellant cannot be permitted at this stage to raise this contention founded on the supposed distinction, if any, between "rent" and "land revenue" and for the purpose of this case we must proceed on the basis that the word "rent" in the Government Resolution of 1865 was synonymous with or included "land revenue.”15.

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

Explanation:
1[ds]Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an in severable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the Governments prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been a made to in. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily constitute a right in limitation of the Governments right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of S. 8 of the Bombay Act II [2] ofis, therefore, no escape from the conclusion arrived at by the High Court, with which we concur, that the words of S. 8 would apply to a case where total exemption from assessment was granted. In other words, specific limit may be nil for the purposes of S. 8 of thecontention, however, was not raised in the written statement and was not made the subject matter of any issue on which the parties went to trial and was never put forward before either of the Courts below. Indeed, in the letter of the Mayor of Bombay dated 22- 3-1939, to which reference has been made, it was clearly alleged that "the word "rent" was used in official documents with the greatest frequency with reference to, the land revenue leviable by the East India Company and later by the Government in the City of Bombay and in the Presidency " In the Governments reply dated 24-1-1940, also quoted above, this assertion was never repudiated or denied. In the premises, the appellant cannot be permitted at this stage to raise this contention founded on the supposed distinction, if any, between "rent" and "land revenue" and for the purpose of this case we must proceed on the basis that the word "rent" in the Government Resolution of 1865 was synonymous with or included "land