Case: Fatma Haji All Mohammad Haji &amp; Others Vs. State of Bombay

to the plaintiff regarding those lands as prayed for. As regards the latter, it was held that it was within the discretion of the Government to order an alteration of the assessment on such lands and this discretion could not be questioned in a Court of law. The plaintiff being dissatisfied with this part of the decision made an application for leave to appeal to the Privy Council on 15th September 1945. During the pendency of the application the plaintiff died and his heirs and executors were impleaded as his legal representatives. A certificate for leave to appeal to the Privy Council was granted on 10th February 1947 and the appeal preferred under the certificate is now before us for decision.18. There is no controversy in this appeal as regards the reliefs that have been given to the plaintiff by the High Court. The appeal concerns the further relief refused to the plaintiff in respect to the lands mentioned in Sch. II. It is contended on behalf of the appellant that under the terms of the conveyance dated 25th January 1819 and of the convenience contained therein it was not open to the Government or the Collector to refuse the alteration of the assessment claimed by the plaintiff and that the Government could not give any direction under R. 92 which would be contrary to these covenants and assurances. It was said that the Government was bound to use its power to levy assessment as trustee for the transferee, and that the exercise of this power could not be arbitrarily refused by it. It was urged that the Government Resolution dated 5th June 1907 clearly indicated that the rules framed under the Land Revenue Code were not intended to affect adversely the owners of alienated lands and the Collector was bound to make an assessment as required by the plaintiff. Lastly, it was urged that as a matter of fact Government never exercised its power under R. 92 and never gave a direction to the Collector to a contrary effect and that the mere affirmation of the erroneous order of the Collector by Government did not amount to a direction contemplated by the provisions of R. 92.19. Having considered this case in all its aspects, we have reached the decision that the High Courts decision in so far as it refused relief to the plaintiff in respect to the lands mentioned in Sch. II should be reversed. Rule 92 cited in the earlier part of this judgment in imperative terms directs the Collector to alter the assessment in case agricultural lands are converted to non-agricultural use. The Collector has no option in the matter and as soon as an application is made to him he should proceed to make an assessment and levy it on the non-agricultural lands. When the Collector declined to accede to the request of the plaintiff he clearly acted in contravention of the clear provisions of the rule, because admittedly at that time no "directions to the contrary" had been gived to him by the Government. There was no resolution of the Government in existence and no notification had been issued under the provisions of R. 92 directing the Collector not to make an alteration in the assessment when required to do so. The Commissioner, in dismissing the plaintiffs appeal, also contravened the provisions of R. 92. When the matter went up in appeal to the Governor in Council, no decision was taken under the provisions of R. 92. The High Court, assumed that the confirmation of the action of the Collector by the Government amounted to a direction by the Government to the contrary in respect of the lands in question.20. We are unable to agree with this conclusion. When Government has been given the power to give directions to the Collector not to act in accordance with the imperative provisions of a rule which enjoin upon him to make the altered assessment, that power has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public. It was conceded by Mr. Joshi that no such decision was taken by Government and no direction was issued by Government under R.99. Dismissal by the Government of the plaintiffs appeal and affirmation by it of an erroneous order of the Collector could not be hold to amount to action under the provisions of R. 92. In these circumstances, the plaintiff was clearly entitled to further relief in respect to lands mentioned in Sch. 9 and a direction should have been issued of the State Government for making altered assessment on non-agricultural land and levy it on them and pay it to the plaintiff.21. Mr. Joshi contended that the true effect of the provisions contained in S. 48 (2) and R. 92 was that the Government was not bound to levy altered assessment on lands converted to non-agricultural use, that the section merely provided that the persons in possession of land were liable for such assessment but it did not say that it was obligatory on the Government to make it and that the Court had no jurisdiction to interfere with the discretion of the Government in the matter. We think that when a liability is imposed by a statute, that liability cannot be defeated by the exercise of any discretion by Government or by making rules which may negative that liability, but it is not necessary in this case to finally decide the point as the appeal stands decided otherwise. It is also not necessary to express an opinion as to the precise scope of the power conferred on Government by the language of R. 92.22. The plaintiffs learned counsel very properly did not press his appeal in respect in the claim of damages concerning lands mentioned in Sch.2. Plaintiffs suit to that extent fails.23.

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

Explanation:
1[ds]Having considered this case in all its aspects, we have reached the decision that the High Courts decision in so far as it refused relief to the plaintiff in respect to the lands mentioned in Sch. II should be reversed. Rule 92 cited in the earlier part of this judgment in imperative terms directs the Collector to alter the assessment in case agricultural lands are converted to non-agricultural use. The Collector has no option in the matter and as soon as an application is made to him he should proceed to make an assessment and levy it on the non-agricultural lands. When the Collector declined to accede to the request of the plaintiff he clearly acted in contravention of the clear provisions of the rule, because admittedly at that time no "directions to the contrary" had been gived to him by the Government. There was no resolution of the Government in existence and no notification had been issued under the provisions of R. 92 directing the Collector not to make an alteration in the assessment when required to do so. The Commissioner, in dismissing the plaintiffs appeal, also contravened the provisions of R.When the matter went up in appeal to the Governor in Council, no decision was taken under the provisions of R. 92. The High Court, assumed that the confirmation of the action of the Collector by the Government amounted to a direction by the Government to the contrary in respect of the lands in question.We are unable to agree with this conclusion. When Government has been given the power to give directions to the Collector not to act in accordance with the imperative provisions of a rule which enjoin upon him to make the altered assessment, that power has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to theby the Government of the plaintiffs appeal and affirmation by it of an erroneous order of the Collector could not be hold to amount to action under the provisions of R. 92. In these circumstances, the plaintiff was clearly entitled to further relief in respect to lands mentioned in Sch. 9 and a direction should have been issued of the State Government for making altered assessment on non-agricultural land and levy it on them and pay it to the plaintiff.The plaintiffs learned counsel very properly did not press his appeal in respect in the claim of damages concerning lands mentioned in Sch.2. Plaintiffs suit to that extent fails.