dedol-hf/india-case-legal-rag huggingface dataset:
Nos. 68 and 190 of 1942.
    H.D. Banaji (V. R. Desai, with him) for the appellants.
    M.C. Setalvad, Attorney-General for India (G. N.  Joshi,
with him) for the respondent.
    1951.  February 5. The judgment of the Court was  deliv-
ered by
         MAHAJAN  J.--This is an appeal from a  judgment  of
the High Court of Judicature at. Bombay modifying the decree
of  the trial court and decreeing partially the  plaintiff's
suit.  The appellants  are the legal
representatives  of the  original plaintiff Haji Ali
Mohamed Haji Cassum.     The State of Bombay is the
respondent.
    The  facts  giving  rise to  this  Controversy,  briefly
stated, are as follows ;--
35
268
    Village  Dahisar  originally formed part  of  the  Malad
Estate comprising in all eight villages. The said estate was
conveyed by the East India Company to two Dady brothers  for
valuable consideration by a deed of indenture dated the 25th
January,  1819.   By that conveyance all the  lands  in  the
eight villages were conveyed absolutely to the said purchas-
ers  and it was covenanted by the Company that the  purchas-
ers,  their  heirs and assigns shall peaceably  and  quietly
enjoy  the said villages and receive and take the rents  and
profits  thereof without any hindrance or interruption  from
the  said Company.  By a sale deed dated the 13th  December,
1900,  Haji Cassum, father of the plaintiff,  purchased  the
village  of Dahisar from its proprietors for a price of  Rs.
1,30,000  and after his death the plaintiff became the  pro-
prietor  thereof and as such received rents  and  assessment
from  the  tenants and holders of the lands in  the  village
according to the rights prevailing under the survey  settle-
ment  which  had taken place in the village about  the  year
1864-65.
    In the year 1879 the Bombay Land Revenue Code was enact-
ed.  Section 48 of the Code is in  these terms :--
"48.   (1) The land revenue leviable on any  land  under
the  provisions of this Act shall be assessed, or  shall  be
deemed  to  have  been assessed, as the case  may  be,  with
reference to the use of the land--
(a)  for the purpose of agriculture, (b) for the purpose  of
building, and
(c) for a purpose other than agriculture or building.
    (2) Where land assessed for use for any purpose is  used
for any other purpose, the assessment fixed under the provi-
sions of this Act upon such land shall, notwithstanding that
the  term for which such assessment may have been fixed  has
not expired, be liable to be altered and fixed at a  differ-
ent rate by such authority and subject to such rules as  the
Provincial     Government    may    prescribe    in     this
behalf  ................  "
269
    After  the Act came into force, the  Government  drafted
rules under the provisions of section 214 for  promulgation.
The  inamdars represented to the Government that  the  rules
should  be so framed as not to prejudice their rights  under
the  conveyances  executed by the Company in  their  favour.
The draft rules were promulgated by a notification issued on
the 5th June, 1907.  On that date, the Government adopted  a
resolution  ordering that the rules be promulgated and  also
giving an assurance to the inamdars to the following  effect
:-
    "Government  will,  however,  be prepared  to  amend  or
abrogate these rules if they are found to be detrimental  in
any material respects to the interests of the inamdars."
Rule 92 is one of the rules promulgated under the provisions
of the Act and it runs thus :-
    "When land assessed for purposes of agriculture only  is
subsequently used for any purpose unconnected with  agricul-
ture  the  assessment upon the land so  used  shall,  unless
otherwise  directed  by Government, be  altered  under  sub-
section  (2)  of section 48 by the collector  in  accordance
with rules 81 to 87 inclusive."
    On  the  25th July, 1923, the  plaintiff  requested  the
Commissioner of Bombay, Suburban District, for a revision of
the  survey  of Dahisar village.  He executed  an  agreement
under  the  provisions  of section 216 of  the  Bombay  Land
Revenue Code and made a formal application in that behalf as
required  by  the Code and the rules  made  thereunder.  The
Commissioner  by  his  letter dated the  14th  March,  1925,
authorised the extension of the provisions of chapters 8 and
9  of the Land Revenue Code to the village in question.  The
plaintiff also deposited the necessary expenses required for
the  revision of the survey.  The revision was made  by  the
Superintendent of the Land Records who submitted his  report
to the Commissioner on the 15th December, 1926.  This report
was  sanctioned by Government.  The order   sanctioning  the
revised survey was communicated to the plaintiff on the 23rd
270
December, 1927.   Under  the  revised  survey the assessment
of  Rs.  4,217  on the village lands was  increased  to  Rs.
6,057-3-2, and the plaintiff from that date started recover-
ing  the increased assessment from the tenants of the  lands
in the village.
    At  the time of the revision of the survey it was  found
that  nine plots of land comprised in eleven  field  numbers
which  were  formerly agricultural had been built  upon  and
these  were being used for non-agricultural  purposes.   The
survey officer formed them into a separate group and  showed
them  as kharaba and no assessment, either  agricultural  or
non-agricultural,  was  levied on these nine plots  and  the
plaintiff  could  not therefore recover  any  assessment  in
respect of these plots after 1926. On the BOth April,  1934,
he  requested  the Collector  to   assess   non-agricultural
assessment on these plots.  This request was refused by  the
Collector on the 17th July, 1935, in these terms:--
    "With  reference to your letter dated 30-4-1934, I  have
the  honour  to state that I regret your request  cannot  be
granted."
    It  has to be observed that this refusal was in  contra-
vention  of the provisions of rule 92 which imposes  on  the
Collector  a  duty  to make alteration  in  the  assessment,
unless  he has been directed to the contrary by  Government.
It  was  not  denied that by the 17th July,  1935,  no  such
direction had been given to the Collector by Government.  If
the Collector had done his duty as enjoined by rule 92, this
lengthy  and  unnecessary litigation might  well  have  been
avoided.
    Against  the  order of the Collector the  plaintiff  ap-
pealed  to the Commissioner.  In his appeal he  pointed  out
that  certain additional lands in the village had been  con-
verted  to non-agricultural uses subsequent to the  revision
of  the survey in 1926. The Commissioner declined to  inter-
fere. This information was conveyed by the Collector to  the
counsel for the plaintiff on the 22nd May, 1937. Against the
Commissioner's  decision,  the  plaintiff  appealed  to  the
Governor in Council and
271
on  the 20th December, 1937, he received a copy of the  fol-
lowing  communication from  Government to  the  Commissioner
:--
    "The  undersigned presents  compliments to  the  Commis-
sioner, Northern Division, and with reference to his letter,
No. L.N.D. 3124, dated 20th April,     1936, on the  subject
noted  above,  is directed to invite his attention,  to  the
orders  issued in Government Resolution, No. s235/3a,  dated
8th  March, 1937,  and  to state  that  Government   confirm
the  action of the Collector, Bombay Suburban  District,  in
refusing the Khot's request for the levy of  nonagricultural
assessment in the village of Dahisar.
By order of the Governor in Council,
for Under Secretary to the Government of Bombay."
    In order to find out whether there was any resolution of
the  Government  as mentioned in  the  above  communication,
during  the pendency of the suit the plaintiff   issued  the
following  interrogatory to the Government of the  State  of
Bombay :--
    "When  was  the decision, not to assess the  lands  men-
tioned  in Schedule II of the plaint and other  lands  under
rule  92, referred to in para. 8 of their written  statement
arrived at by the Government ?
 Produce a copy of the said decision which may have  been
embodied in a Government resolution along with  the  opinion
of  the Government officers with which Government  may  have
concurred."
The  answer given on behalf of the State  Government  to
this question was as follows :--
    "(8)  Government  Memorandum, Revenue  Department,   No.
5235-B/33, dated the 8th March, 1937, confirmed the  Collec-
tor's  action in refusing the proprietor's request  for  the
levy of non-agricultural assessment. ' '
    This  answer indicates that the Government acting  under
rule  92,  neither  adopted any resolution  nor  issued  any
notification giving any directions to the Collector contrary
to the provisions contained in that
272
rule.  All that it did was to confirm the Collector's  order
rejecting  the request of the plaintiff for making  the  as-
sessment of non-agricultural lands in the village.
    During  the interval between 1927-37 a large  number  of
plots  of  land mentioned in schedule II were  put  to  non-
agricultural uses by the tenants in possession of them and a
number of buildings were constructed thereupon.  The  plain-
tiff  having failed in persuading the Government to make  an
assessment  under  rule 92 of such lands, after  service  of
notice  under  section 80 of the Code  of  Civil  Procedure,
instituted  the present suit, (a) for a declaration that  he
was entitled to have nonagricultural assessment made on  all
lands in the village of Dahisar which were used or which may
thereafter  be  brought  into use for  purposes  other  than
agricultural,  and  (b)for an order that  the  Collector  of
Bombay,  Suburban  District, be directed  to  determine  the
amount of non-agricultural assessment on the lands mentioned
in  schedules  I and II of the plaint and to levy  the  same
under  clause 2 of  rule 96 and pay it to the plaintiff,  or
in  the  alternative,  to direct the defendant  to  issue  a
commission  to  the plaintiff under section 88 of  the  Land
Revenue Code.  Schedule I gave details of the nine plots  of
land  that  had  been converted  into  non-agricultural  use
before the survey of 1926, while schedule II gave details of
those lands which since 1926 up to the date of the suit  had
been  converted  to such use.  The  plaintiff  also  claimed
damages to the extent of Rs. 120 as compensation for loss of
agricultural  assessment for six years in respect  of  lands
mentioned  in schedule I and he claimed similar  damages  to
the  extent of Rs. 300 for loss of non-agricultural  assess-
ment in respect of the other lands.  He also claimed  future
damages and costs.
    The  suit  was  resisted by the State  Government  on  a
number  of  grounds.  It was contended that  it  was  barred
under  section  4 (c) of the Revenue  Jurisdiction  Act  and
under article 14 of the Indian Limitation Act. On the merits
it was pleaded that the action of the survey officer and the
Collector in refusing to levy non-agricultural assessment on
lands contained in the
273
two schedules was lawful and proper and that the civil court
could not question the discretion of the Government in  such
matters.
    The  trial Judge negatived all the technical  objections
raised  by  the defendant and on the merits  held  that  the
Collector's  action in refusing  to   levy   nonagricultural
assessment on the lands in question was wrongful. He, there-
fore,  granted  the declaration prayed  for.   He,  however,
refused  to give further relief to the plaintiff and  disal-
lowed the prayer for a direction for levying non-agricultur-
al  assessment on the lands given in the two  schedules  and
for paying it to the plaintiff. He observed that the Govern-
ment would be well advised if it levied such assessment  and
paid it to the plaintiff.
    Two  appeals  were taken to the High Court  against  the
decree  of the trial Judge. That Court modified this  decree
and  granted  a declaration to the  plaintiff  that  he  was
entitled to receive non-agricultural assessment on all lands
which  are and which may hereafter be used for  non-agricul-
tural  purposes.   It  ordered the defendant  to  levy  such
altered assessment on the lands mentioned in schedule I  and
decreed consequential damages to the plaintiff in respect to
these lands. As regards the lands in schedule II, the plain-
tiff's suit for a direction to assess and levy  non-agricul-
tural  assessment on them was dismissed.  The court  drew  a
distinction  between lands that had been converted  to  non-
agricultural  use before the survey of 1926 and those  which
had  since then been converted to such use. As  regards  the
former, it was held that the survey officer had  erroneously
declined to make non-agricultural assessment on those  lands
and  his  action was ultra vires.  Relief was given  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 the 15th
274
September, 1945. During the pendency of the application
the plaintiff died and his heirs and executors were implead-
ed as his legal representatives.  A certificate for leave to
appeal to the Privy Council was granted on the th  February,
1947, and the appeal preferred under the certificate is  now
before  us  for decision. 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  fur-
ther relief refused to the plaintiff in respect to the lands
mentioned in schedule II.  It was contended on behalf of the
appellant that under the terms of the conveyance dated  25th
January, 1819, and of the covenants 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  rule
92  which  would be contrary to these covenants  and  assur-
ances. 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 argued that as a matter  of  fact
Government never exercised its power under rule 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  con-
templated by the provisions of rule 92.
   Having  considered this case in all its aspects, we  have
reached  the  decision that the High Court's  decision  have
in  so far as it refused relief to the plaintiff in  respect
to  the lands mentioned in schedule II should  be  reversed.
Rule 92 cited in the earlier part of this judgment in imper-
ative terms directs the Collector to alter the assessment in
case  agricultural lands are Converted  to  non-agricultural
use.  The Collector has
275
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  de-
clined to accede to the request of the plaintiff he acted in
contravention  of the clear provisions of the rule,  because
admittedly at that time no "directions to the contrary"  had
been  given to him by the Government.  There was no  resolu-
tion of the Government in existence and no notification  had
been  issued under the provisions of rule 92  directing  the
Collector  not to make an alteration in the assessment  when
required  to  do so.  The Commissioner,  in  dismissing  the
plaintiff's appeal, also contravened the provisions of  rule
92.   When the matter went up in appeal to the  Governor  in
Council, no decision was taken under the provisions of  rule
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  Gov-
ernment  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  rule  92
Dismissal  by the Government of the plaintiff's  appeal  and
affirmation  by  it of an erroneous order of  the  Collector
could  not be held to amount to action under the  provisions
of  rule  92.   In these circumstances,  the  plaintiff  was
clearly  entitled  to  further relief in  respect  to  lands
mentioned  in schedule II and a direction should  have  been
issued to the State Government for making altered assessment
on non-agricultural lands and levy it on them and pay it  to
the plaintiff.
36
276
    Mr.  Joshi contended that the true effect of the  provi-
sions  contained in section 48 (2) and rule 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 obligato-
ry  on the Government to make it and that the court  had  no
jurisdiction to interfere with the discretion of the Govern-
ment  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 unnecessary  to
express  an  opinion as to the precise scope  of  the  power
conferred on Government by the language of rule 92.
    The  plaintiff's learned counsel very properly  did  not
press his appeal in respect to the claim of damages concern-
ing lands mentioned in schedule II. Plaintiff's suit to that
extent fails.
    For  the reasons given above the appeal is  allowed  and
the plaintiff's suit is decreed with costs except in  regard
to  the claim for damages in respect to the lands  mentioned
in schedule II. The defendant is directed to make an assess-
ment on lands mentioned in schedule II in the same way as in
respect  of the lands mentioned in schedule I and  levy  the
same and pay it to the plaintiff.
                                         Appeal allowed.
Agent for the appellants: K.J. Kale.
Agent for the respondent: P.A. Mehta.
277
PETITIONER:
RAI BRIJ RAJ KRISHNA AND ANOTHER
        Vs.
RESPONDENT:
S.K. SHAW AND BROTHERS.
DATE OF JUDGMENT:
02/02/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  115            1951 SCR  145
 CITATOR INFO :
 F          1957 SC 521  (10)
 R          1959 SC 492  (20)
 RF         1962 SC1621  (87)
 D          1963 SC 120  (12)
 R          1965 SC 111  (13)
D          1970 SC1193  (8)
 D          1974 SC 818  (15,17)
 D          1979 SC1745  (10,11,15,16)
 R          1989 SC1110  (15)
ACT:
    Bihar  Buildings (Lease, Rent and Eviction) Control  Act
(III of 1947), s.11--Order of Controller for eviction on the
ground   of   non-payment  of  rent--Suit   to   set   aside
order--Jurisdiction of civil court--Question  whether  there
was  non-payment--Finality of Controller's decision.
HEADNOTE:
    Section  11  of  the Bihar Buildings  (Lease,  Rent  and
Eviction)  Control Act, 1947, has entrusted  the  Controller
with  a  jurisdiction, which includes  the  jurisdiction  to
determine  whether there is non-payment of rent or  not,  as
well  as  the jurisdiction, on finding that  there  is  non-
payment of rent, to order eviction of a tenant.   Therefore,
even if a Controller has wrongly decided the question wheth-
er  there has been non-payment of rent, his order for  evic-
tion  on the ground that there has been non-payment of  rent
cannot be questioned in a civil court.
    Queen  v. Commissioners for Special Purposes  of  Income
Tax  (21  O.B.D. 313) and Colonial Bank  of  Australasia  v.
Willan (L.R.
P.C. 417) relied on.
146
JUDGMENT:
    CIVIL  APPELLATE JURISDICTION:  Appeal from  a  judgment
and  decree of the Patna High Court dated 25th March,  1949,
in  A.S. 2280 of 1948 reversing an appellate _decree of  the
Subordinate Judge in Suit No. 62 of 1948.
    Baldev  Sahay  (T. K. Prasad, with him) for  the  appel-
lant.
    N.C. Chatterjee (H.J. Umrigar, withhim) for the respond-
ent.
    1951.  February 2. The judgment of the Court was  deliv-
ered by
    FAZL  ALL  J.--This  is an appeal from  a  judgment  and
decree  of the High Court of Judicature at  Patna  reversing
the appellate decree of a Subordinate Judge in a suit insti-
tuted by the respondents.  The facts of the case are briefly
these.  The respondents have been in occupation as a monthly
tenant  of  several  blocks of  premises  belonging  to  the
appellants at a monthly rental of Rs. 112.  The rent for the
months  of  March, April and May, 1942, having  fallen  into
arrears,  they remitted it along with the rent for June,  on
28th June, 1947, by means of two cheques.  As the appellants
did  not  accept the cheques, on 4th August, 1947,  the  re-
spondents  remitted the amount subsequently by postal  money
order.  On  12th August, 1947, the  appellants,  maintaining
that  there was non-payment of rent -and hence the  respond-
ents were liable to be evicted, under section 1-1 (1) (a) of
the Bihar Buildings (Lease, Rent and Eviction) Control  Act,
1947 (Bihar Act III of 1947), applied to the House  Control-
ler  for the eviction of the respondents from the  premises.
Section 11 (1) (a) of the Act runs as follows :--
"Notwithstanding anything contained in any agreement or  law
to the contrary and subject to the provisions of section 12,
where  a tenant is in possession of any building,  he  shall
not be liable to be evicted therefrom, whether in  execution
of a decree or otherwise, except--
147
     (a)  in the case of a month to month tenant,  for  non-
payment of rent or breach of the conditions of the  tenancy,
or for subletting the building or any portion thereof  with-
out the consent of the landlord, or if he is an employee  of
the  landlord occupying the building as an employee, on  his
ceasing to be in such employment ;"
     On  30th  August, 1947, the  respondents,  whose  money
order  had in the meantime been returned by the  appellants,
deposited the rent up to the month of June in the Office  of
the  House  Controller. Notwithstanding  this  deposit,  the
House  Controller  passed  an order on  the  both  November,
directing the eviction of the respondents by 10th May, 1948,
and holding that they had made themselves liable to eviction
by  reason' of non-payment of rent. The order of  the  House
Controller  was upheld by the Commissioner on appeal on  the
27th  April, 1948, and thereupon the respondents  filed  the
present  suit in the Patna Munsif's Court for a  declaration
that  the order of the ContrOller dated the  10th  November,
1947, was illegal, ultra vires and without jurisdiction. The