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1937 Supreme(SC) 61
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACMILLAN, SIR SHADI LAL, AND SIR GEORGE RANKIN.
GOSWAMINI SHRI KAMALA VAHOOJI, MAHARAJ OF KUTCH MANDVI, BY HER ATTORNEY DHARAMDAS TRIBHOVANDAS - Appellant
Versus
COLLECTOR OF BOMBAY - Respondents
On appeal from the High Court at Bombay.
Decided On : June. 27. 1937.
Solicitors for appellant:T. L. Wilson & Co. Solicitor for respondent: Solicitor, India Office.
A prescriptive right to land revenue exemption cannot be claimed under regulations applicable only to the mofussil for land in the city. Additionally, a lost grant cannot be presumed to deprive the government of its prerogative power to tax property.
Headnote:(A) Bombay City Land Revenue Act, 1876 - Section 8 - Bombay Regulation XVII of 1827 - Chapter IX, Section 36 - Bombay Regulation XIX of 1827 - Prescriptive right to exemption from land revenue - Burden of proof - Whether a prescriptive right to hold land free from assessment can be claimed against the Government based on long-term non-payment - Whether a lost grant can be presumed to exempt property from taxation.
(B) Prescriptive Right - If a statute provides for a prescriptive right to exemption from land revenue based on a specific period of non-payment, such right must be established and preserved to limit the Government's right to assess. Where different regulations apply to the city (Presidency) and the mofussil, a regulation applicable only to the mofussil cannot be used to claim exemption for land situated within the city. If the regulation applicable to the city does not adopt the prescriptive right provisions of the mofussil regulation, no such statutory prescriptive title can be claimed.
(C) Lost Grant - While the law may presume the existence of a grant which has been lost to protect the enjoyment of a right immemorially enjoyed, such a presumption cannot be extended to conclude that the Crown has, by some lost grant, deprived itself of the prerogative power to tax the property of its subjects.
Facts of the case:
The spiritual head of a temple owned land which had not been assessed for land revenue from time immemorial. The government subsequently assessed the land under the relevant land revenue act. The owner challenged the assessment, claiming a prescriptive right to exemption based on long-term non-payment under specific regulations and the theory of a lost grant.
Findings of Court:
The court found that the regulation providing for prescriptive exemption applied only to the mofussil and not to the city. The regulation applicable to the city did not incorporate the prescriptive right provisions of the mofussil regulation. Furthermore, a lost grant cannot be presumed to waive the government's power to tax.
Issues: Whether the owner of the land had a right in limitation of the government's right to assess the land for revenue based on prescription or a presumed lost grant.
Ratio Decidendi: The burden of proof lies on the holder to show an established and preserved right to exemption. A prescriptive right under a regulation applicable to the mofussil does not extend to the city. A presumption of a lost grant is untenable when it seeks to deprive the Crown of its prerogative power to tax.
Result: Appeal dismissed.
Legal Category Hierarchy
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land revenue
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assessment
- exemption
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assessment
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property law
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land tenure
- prescriptive rights
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land tenure
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administrative law
- statutory interpretation
Judgement
Appeal (No. 48 of 1936) from a decree of the High Court (August 3, 1933) which reversed a decree of the Revenue Judge of Bombay (October 20, 1927).
The appellant was the spiritual head of the Hindu Vaishnava temple known as Mota Mandir at Cutch Mandvi, and as such was the owner of a piece of land situated at Bora Bazar Street, within the Fort of Bombay, measuring 881-51 square yards. On October 26, 1926, the Collector of Bombay, the present respondent, assessed the land with a revenue under s. 8 of the Bombay City Land Revenue Act, II. of 1876.
The main question in this appeal was whether there was a right on the part of the appellant, in limitation of the right of the Government, to possess the land free from assessment for land revenue. She contended (inter alia) that she was entitled to a statutory prescriptive right of exemption by virtue of the provisions of Bombay Regulation XVII. of 1827.
The facts and the relevant provisions of the Bombay Regulations appear from the judgment of the Judicial Committee.
The Revenue Judge held that the right of the Government to assess the land for the payment of land revenue was barred under Regulation XVII. of 1827.
On appeal, the High Court (Beaumont C.J. and Wadia J.) reversed the decision of the Revenue Judge, and held that Regulation XVII. of 1827 did not apply to the property in question.
1937. May 3, 4. Dunne K.C., Wattach and R. Parikh for the appellant. No question arises in respect of the title to the land it has never had a revenue assessed on it from the beginning of time, and it has been without any ground rent. The only questions are (a) whether, this being a tenure free from revenue from time immemorial, there is a presumption that the immunity originated in a grant which has been lost— on that point both the Courts below have found against the appellant, heading that it is not a case for presumption. (b) Whether under the relevant Regulation, which gave exemption after 60 years without payment [reduced by a subsequent Regulation to 30 years] the appellant had acquired a prescriptive right which was claimable against the Government. The Revenue Judge held that the appellant had proved that the land was held free of revenue during the necessary period to acquire prescriptive right. The High Court held that Regulation XVII. of 1827 was not one which applied to the Presidency, and therefore did not apply to the land in question. [Reference was made to Bombay Regulations I. of 1823 ; XVII. of 1827 ; XIX. of 1827 ; VI of 1833, and Bombay Act VII. of 1863.] The incorporation in Regulation XIX. of 1827 of the principles relating to the assessment of land revenue is sufficient for the appellants purposes, because Regulation XIX. admittedly applies to Bombay Presidency. By Regulation VI. of 1833 the period of 60 years was reduced to 30 years. Regulation VI. of 1833 was repealed by Bombay Act VII. of 1863. Where there is a prescriptive right an assessment cannot be fixed by the Collector at all. All that the High Court said was that the appellant could not get the benefit of Regulation XVII. in the City of Bombay. There is nothing to suggest that there is any distinction in the principles which would be applicable to the merits in claiming an exemption whether in Bombay or elsewhere. From the beginning of time up to 1926 the land has never paid a tax or rent of any sort or kind that is conceded. The Regulations were intended to secure the continuation of the rights protected by them. Even assuming that Regulation
XVII. of 1827 is not applicable proprio vigore to the Bombay Presidency, the principle of the section which is applicable under Regulation XIX. of 1827, and which contains the same words, covers the case of the appellant. There is nothing which excludes Regulation XVII. from the Presidency. In this case the prescriptive right has been obtained.
There does not appear to be any close authority on the question of a grant by Government remitting revenue. It is a quest
