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

2. The respondent owned three survey numbers at Jalgaon in the State of Bombay being Survey Nos.B, which, prior to the year 1911, were used and assessed as agricultural lands. In the year 1911, the respondent made an application under S. 65, Bombay Land Revenue Code, 1879 (Bombay Act V of 1879) (hereinafter referred to as the Code), to the Collector of Jalgaon for permission to divert the lands comprised in Survey Nos.from agricultural touse for the purpose of constructing thereon a structure in accordance with a plan submitted along with that application. In the year 1912, he made another similar application in respect of Survey No.Collector after referring the plans to the Municipality and obtaining their views, granted the necessary permission, onin respect of Survey Nos.A, and on 1st August, 1912, in respect of Survey No.for diversion of the lands in these three survey numbers touse in accordance with the plans so approved. The assessment of these survey numbers was thereupon revised by enhancing therate from Rs.to Rs. 20 per acre, under Section 48 of the Code and Rule 56(2) framed by the Government in exercise of the payers under S. 214 of the Code.3. Thereupon three sanads (Exs. 38, 39 and 40) were issued onby the collector in favour of the respondent under the said rules in respect of the three survey numbers specifying the enhanced assessment in respect of each of the survey numbers for a period of 50 years commencing from the date of the grant of the permission. Pursuant to the permission granted and in accordance with the plans approved, the respondent constructed buildings on the said survey numbers and had been paying the revised assessment.Survey Nos.were consolidated into one City Survey No. 2113 and Survey No.was changed into City Survey No. 2114. In the year 1941, the respondent wanted to build two more bungalows on City Survey No. 2113. He wanted also to dismantle the structures on City Survey No. 2114 and to set the land comprisedtherein in convenient plots for building purposes in accordance with the Municipal BuildingHe accordingly wrote two letters to the Collector datedone in respect of each of the two survey numbers, intimating his intention and added in each of the letters as followspresume that you have no. objection to this.The Collector thereupon intimated his reply to both the letters by one letter (Ex.2, as followsreference to your two applications ofon the subject noted above, I am to inform you that since the original order about the grant of permission laid down the condition that bungalows shall be built in accordance with the plan produced, Collectors permission is necessary to make any alteration or addition in the plan then alreadyview of this reply the respondent filed against the Province of Bombay the two suits out of which the present appeals arise for a declaration of his right and for an injunction, after issuing the requisite notices under S. 80 of the Civil Procedure Code. Appeal No. 9 arises out of the suit relating to Survey No. 2114 and the declaration asked for thereinthe plaintiff is at full liberty and has full right to demolish the buildings, bungalows,garage, privies, etc., standing on the property in suit and to divide the land into plots and to sell them for buildings being constructed thereon in accordance with the Municipaland that neither the defendant nor their officers are entitled to do any act prejudicial to the plaintiffs aforesaid rights.Appeal No. 10 arises out of the suit which relates to Survey No. 2113 and the declaration asked for thereinthe plaintiff is entitled to construct buildings on the said land in suit and to make additions and alterations therein in accordance with the municipaland that neither the defendant nor any of their officers have any authority in thistrial court decided against the plaintiffs contention and dismissed the suits and this dismissal was confirmed on appeals by the District Judge of East Khandesh at Jalgoan. On Second Appeals, however, the learned Judges of the Bombay High Court reversed the dismissal and granted the declarations asked for by the plaintiff in each of the two suits.

Reasoning: 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.