Case: State of Bombay Vs. Mulji Jetha &amp; Company

were issued as also the prescribed form for the sanads. We have also been taken through the contents of the sanads actually issued in these cases as well as through the concurrent findings of the first appellate court and the High Court as regards the substance of the correspondence contained in Exs. 41 to 43.11. A forceful argument has been advanced to us with reference to all the above material, that the view taken by the learned Judges of the High Courts erroneous. It is unnecessary, however, to deal with the argument thus advanced since the appeals can be disposed of on a very short ground. For this purpose it is sufficient to notice Ss. 48, 65 and 67 as they stood prior to 1913, which admittedly applied to the present case in view of the fact that the permission was granted in the years 1911 and 1912.12. The relevant portions of these three Sections as they stood prior to their amendment in 1913 were as follows :"48. The land revenue liable under the provisions of this Act shall be chargeable-(a) upon land appropriated for purpose of agricultural ;(b) upon land appropriated for any purpose from which any other profit or advantage than that ordinarily acquired by agriculture is derived;(c) upon land appropriated for building sites.65. An occupant of land appropriated for purposes of agriculture is entitled by himself, his servants, tenants, agents or other legal representatives to erect farm buildings, construct wells or tanks or any other improvements thereon for the better cultivation of land or its more convenient occupation for the purposes aforesaid.If any occupant wishes to appropriate his holding or any part thereof to any other purpose, the Collectors permission shall in the first place be applied for by the registered occupant.The Collector, on receipt of such application,xxxx(b) may, after due inquiry, either grant or refuse the permission applied for.When any such land is thus appropriated to any purpose unconnected with agriculture, it shall be lawful for the Collector subject to the general orders of Government to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of S. 48.67. Nothing in the last two preceding Sections shall prevent the granting of the permission aforesaid in special cases on such terms or conditions as may be agreed on between Government and the registered occupant."13. Now, there is no. dispute that the permission that was granted by the Collector in the years 1911 and 1912 for diversion of the suit lands from agricultural use to non-agricultural use for building purposes related to the entirety of the area comprised within the suit survey numbers. All that is claimed on behalf of the State is that the permission was limited by the condition that the buildings to be erected were to be in accordance with the plans then approved and that any alteration thereof requires the further permission of the Collector or a mutual agreement in respect thereof. Admittedly the basis for this contention is S. 67 of the Code. As it then stood, this Section provided that nothing in S. 65 was to prevent the granting of permission in special cases on such terms or conditions as may @page-SC328 be agreed upon between the Government and the registered occupant. It is clear from this that the grant of permission under S. 65 may be subjected to conditions. But the imposing of such conditions is to be (1) in special cases, and (2) in such cases it is to be the result of an agreement between the Government and the registered occupant. What has been pleaded in these cases in paragraph 4 of the written-statement, as set out above, is an agreement, between the Collector, and the registered occupant and what the correspondence, Exs. 41 to 43, discloses is only an agreement, if any, between the Collector, and the registered occupant. There is no. pleading or proof that there was any agreement between the registered occupant and, the Government. Nor is there any indication that applications of the kind in this area had to be treated as special cases.14. Obviously "the Collector" is not the same as "the Government" nor have we been shown any rule framed by the Government which empowers the Collector to act on behalf of the Government with reference to S. 67. That the Collector is different from the Government under the Code is clear from Section 8 of the Code which shows that "the Government" shall appoint in each district an officer who shall be "the Collector" and who may exercise, throughout his district, all the powers and discharge all the duties imposed on a Collector by this Act. The learned Attorney-General could not contest this position. It is clear, therefore, that the State has not made out that there is any valid and legal condition attached to the permission granted by the Collector for the diversion of these lands from agricultural to building purposes. In this view of the matter there is no. reason to reverse the declarations granted in favour of the plaintiff -respondent by the High Court.15. It appears likely that in this litigation the content of S. 67 as it stood prior to 1913 was not noticed and that the defence on behalf of the State and the proof in pursuance thereof was based on S. 67 as it now stands which is as follows :"Nothing in the last two preceding Sections shall prevent the granting of the permission aforesaid on such terms or conditions as may be prescribed by the Collector, subject to any rule made in this behalf by the Government"16. The plea taken in paragraph 4 of the written statement does no. doubt indicate that it was realised that the condition was to be a matter of agreement but it does not seem to have been appreciated that the agreement was to be between the Government and the registered occupant and not between the Collector and the registered occupant.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]It is unnecessary, however, to deal with the argument thus advanced since the appeals can be disposed of on a very short ground. For this purpose it is sufficient to notice Ss. 48, 65 and 67 as they stood prior to 1913, which admittedly applied to the present case in view of the fact that the permission was granted in the years 1911 andthe basis for this contention is S. 67 of the Code. As it then stood, this Section provided that nothing in S. 65 was to prevent the granting of permission in special cases on such terms or conditions as maybe agreed upon between the Government and the registered occupant. It is clear from this that the grant of permission under S. 65 may be subjected to conditions. But the imposing of such conditions is to be (1) in special cases, and (2) in such cases it is to be the result of an agreement between the Government and the registered occupant. What has been pleaded in these cases in paragraph 4 of theas set out above, is an agreement, between the Collector,  and the registered occupant and what the correspondence, Exs. 41 to 43, discloses is only an agreement, if any, between the Collector, and the registered occupant. There is no. pleading or proof that there was any agreement between the registered occupant and, the Government. Nor is there any indication that applications of the kind in this area had to be treated as special cases.14. Obviously "the Collector" is not the same as "the Government" nor have we been shown any rule framed by the Government which empowers the Collector to act on behalf of the Government with reference to S. 67. That the Collector is different from the Government under the Code is clear from Section 8 of the Code which shows that "the Government" shall appoint in each district an officer who shall be "the Collector" and who may exercise, throughout his district, all the powers and discharge all the duties imposed on a Collector by this Act. The learnedcould not contest this position. It is clear, therefore, that the State has not made out that there is any valid and legal condition attached to the permission granted by the Collector for the diversion of these landsfrom agricultural tobuilding purposes. In this view of the matter there is no. reason to reverse the declarations granted in favour of the plaintiffrespondent by the High Court.The plea taken in paragraph 4 of the written statement does no. doubt indicate that it was realised that the condition was to be a matter of agreement but it does not seem to have been appreciated that the agreement was to be between the Government and the registered occupant and not between the Collector and the registered occupant.