1951 Supreme(SC) 10

SUPREME COURT OF INDIA
5th February 1951
FAZL ALI, MAHAJAN, B.K. MUKHERJEA, AND CHANDRASEKHARA AIYAR, JJ.
Mrs. Fatma Haji Ali Mohammad Hajee and others -- Appelllants
Versus
The State of Bombay.
Appea1 No. 28 of 1950.
Advocates appeared
Shri H D. Banaji, Senior Advocate, (Shri V. E. Desai, Advocate with him ) instructed by Shri K. J. Kale, Agent- for Applts ; M C. Setalvad, Attorney-General for India (Shri G. N. Joshi, Advocate, with him ) instructed by Shri P. A. Mehta, Agent - for the State of Bombay.

Headnote:Statutory liability.

       Held: 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. Bombay Land Revenue Code, 1879, S. 48- Rule 92 of the Rules framed under the Code-Agricultural land used for other purposes-Collectors duty to alter assessment unless otherwise directed by Government-meaning of-Mere confirmation of Collectors order refusing to assess does not amount to such direction-Right to re•assessment.

       Section 48 of the Bombay Land Revenue Code provides:

       "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 the purpose other than agriculture or building.

       Where land assessed for use for any purpose is used for a~y other purpose, the assessment fixed under the provisions 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 different rate by such authority and subject to such rules as the Provincial Government may prescribe in this

       behalf "

       Rules 92 of the rules promulgated under the provisions of the said Act is to the following effect:

       "When land assessed for purposes of agriculture only is subse_ quently used for any purpose unconnected with agriculture 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".

       The plaintiff having failed in persuading the Government, on refusal by the Collector, to make an assessment under rule 92 of non.agricultural land, after service of notice under section 80 of the Code of Civil procedure brought a suit, (a) for a declaration that he was entitled to have non-agricultural 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. The trial court granted the declaration prayed for but refused to give further relief to the plaintiff. On appeal the High Court granted a declaration to the plaintiff that he was entitled to receive non-agricultural assessment on all lands which are and whirh may hereafter be used for non-agricultural 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 of these lands. As regards the lands in schedule II, the plaintiffs suit for a declaration to assess and levy non-agricultural assessment on them was dismissed, a distinction having been made between lands that hac! been converted to nonagricultural use before the survey of 1926 and those which had since then beftn converted to such use. Regarding 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. There was further appeal to the Supreme Court.

       Held (allowing the appeal); (I) The rule imposes an imperative duty on the Collector to alter the assessment. The power which has been given to the Government to give directions to the Collector not to act in accordance with the imperative provisions of the rule has to be exercised in clear and unambiguous terms as it affects ch il rights of the person concerned and the decision that the power has becn exercis~d must be notified in the usual manner.

       (2) The Government did not pass any resolution or issue any directions to that effect but merely confirmed on appeal an order of the Collector rejecting an application to assess non-agricultural assessment on agricultural lands which had been used for building purposes. Such confirmation of the Collectors order by the Government did not amount to a direction to act otherwise within the meaning of rule 92 and the applicant was entitled to have the assessment on the lands altered under S. 48 (2) of the Code in accordance with rr. 81 to 87 as laid down in r. 92.