Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1955 Supreme(SC) 10

SUPREME COURT OF INDIA
10th February 1955
BOSE, JAGANNADHA DAS, VENKATARAMA AYYAR AND SINHA JJ.
State of Bombay, Appellant
Versus
Mulji Jetha and Co., Respondent.
Civil Appeals Nos. 9 and 10 of 1953.
Advocates appeared
Mr. M. C. Setalvad, Attorney- General for India, (Messrs. Porus A. Mehta and P.G. Gokhale, Advocates with him), for Appellant; Messrs. R.J. Kolah and Rajinder Narain Advocates, for Respondent.

Advocates:
M.C.SETALVAD, P.G.COKHALE, PARAS A.MEHTA, R.J.KOLAG, RAJENDER NARAIN

A condition attached to a permission granted under S. 67 of the Land Revenue Code is valid only if it is agreed upon between the Government and the registered occupant.

Headnote:
LAND REVENUE CODE - Ss. 48, 65, 67 - Permission to divert land from agricultural to non-agricultural use - Condition attached to permission - Validity - Agreement between Government and registered occupant - Collector not empowered to act on behalf of Government.
Fact of the Case:

The respondent owned three survey numbers in Jalgaon, which were used and assessed as agricultural lands. In 1911 and 1912, the respondent obtained permission from the Collector to divert the lands to non-agricultural use for building purposes. The assessment of the lands was revised accordingly. In 1941, the respondent wanted to make alterations to the buildings and parcel out the land as building sites. The Collector refused permission, claiming that the original permission was subject to the condition that any alterations or additions required the Collector's permission. The respondent filed suits for a declaration of his right to make the alterations and additions without the Collector's permission.
Finding of the Court:

The High Court held that the Collector had no right to insist on his permission being taken for the alterations contemplated by the respondent. The State appealed to the Supreme Court.
Issues: Whether the permission granted by the Collector for the diversion of the lands from agricultural to building purposes was subject to the condition that any alterations or additions required the Collector's permission.
Ratio Decidendi: The Supreme Court held that the permission granted by the Collector was not subject to any valid and legal condition. The Court noted that S. 67 of the Land Revenue Code, which allowed for the imposition of conditions on the grant of permission, required that the conditions be agreed upon between the Government and the registered occupant. In this case, there was no agreement between the Government and the respondent, and the Collector was not empowered to act on behalf of the Government. Therefore, the condition imposed by the Collector was invalid.
Final Decision: The Supreme Court dismissed the appeals and upheld the declarations granted by the High Court in favor of the respondent.

Judgement

JAGANNADHADAS J. : These two are appeals on leave granted by the High Court of Bombay under Art. 133(1) (c) of the Constitution against its common judgment in Second Appeals Nos. 936 and 937 of 1947. The appellant in each of these appeals is the State of Bombay and the respondent is Mulji Jetha & Company.

The respondent owned three survey numbers at Jalgaon in the State of Bombay being Survey Nos. 253-A, 254-A, and 253-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. 253-A and 254-A from agricultural to non-agricultural use 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. 253-B.

The Collector after referring the plans to the Municipality and obtaining their views, granted the necessary permission, on 1-8-1911, in respect of Survey Nos. 253-A and 254-A, and on 1st August, 1912, in respect of Survey No. 253-B, for diversion of the lands in these three survey numbers to non-agricultural use in accordance with the plans so approved. The assessment of these survey numbers was thereupon revised by enhancing the pre-existing rate from Rs. 1-9-0 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.

Thereupon three sanads (Exs. 38, 39 and 40) were issued on 24-7-1914, by 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. 253-A and 254-A were consolidated into one City Survey No. 2113 and Survey No. 253-B 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 comprised therein in convenient plots for building purposes in accordance with the Municipal Building bye-laws. He accordingly wrote two letters to the Collector dated 7-11-1941, one in respect of each of the two survey numbers, intimating his intention and added in each of the letters as follows :

"We presume that you have no objection to this."

The Collector thereupon intimated his reply to both the letters by one letter (Ex. P-34) dated 11-2-1942, as follows :

"With reference to your two applications of 7-11-1941, on 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, Collector s permission is necessary to make any alteration or addition in the plan then already approved."

In view 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 therein is

"That the plaintiff is at full liberty and has full right to demolish the buildings, bungalows, out-houses, 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 Municipal Bye-laws, and that neither the defendant nor their officers

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Judicial Analysis