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1947 Supreme(SC) 35
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD DU PARCQ AND SIR MADHAVAN NAIR.
PROVINCE OF BOMBAY - Appellant
Versus
HORMUSJI MANEKJI - Respondents
On Appeal from the High Court at Bombay.
Decided On : June 12, 1947.
Solicitor for appellant:Solicitor, India Office. Solicitors for respondent: Cassavetti Coutas & Co.
A claim based on an agreement to fix land revenue assessment is an objection to the amount or incidence of assessment, barring civil court jurisdiction. Furthermore, unauthorized material alterations to the subject of such an agreement render it unenforceable, allowing the government to revise the assessment.
Headnote:(A) Revenue Jurisdiction Act - Section 4(b) - Land Revenue Code - Sections 48, 65, 66, 67, and 211 - Jurisdiction of Civil Courts - Assessment of land revenue - Non-agricultural use - Where a suit is brought to declare that the government is not entitled to recover land revenue assessment in excess of amounts stipulated in agreements, such a claim constitutes an objection to the amount or incidence of assessment authorized by the government - The jurisdiction of the civil court is thereby excluded under Section 4(b) of the Revenue Jurisdiction Act, unless the claim falls within specific statutory exceptions. (Paras 24-31)
(B) Land Revenue Code - Section 211 - Revision power of the government - The power to call for and examine records to satisfy oneself as to the legality or propriety of a decision includes the authority to annul or modify orders when the underlying basis for a concessional assessment, such as an agreement, has become unenforceable due to the assessee's own actions. (Paras 18-21)
(C) Contractual Agreements for Assessment - Enforceability - Where an occupant of land obtains permission for non-agricultural use subject to a fixed assessment based on a specific plan, and subsequently carries out material alterations, demolitions, and extensions without permission, the subject matter of the agreement is so fundamentally altered that the agreement becomes useless and unenforceable. (Paras 16-17)
(D) Statutory Construction - Provisos - Where a section contains express exceptions from the operative part, it is presumed that these exceptions were necessary because the subject matter of the exceptions would otherwise have come within the operative provisions of the section. (Para 28)
Facts of the case:
The respondent obtained permission to use agricultural land for non-agricultural purposes (an ice factory) under agreements that fixed the annual assessment. Over time, the respondent carried out material alterations, demolitions, and extensions to the buildings without obtaining the required permissions from the revenue authorities. Following a report of unauthorized erections, the government cancelled previous proceedings and ordered the levy of non-agricultural assessment at the full standard rate. The respondent filed a suit for a declaration that the government was not entitled to recover assessments in excess of the amounts stipulated in the original agreements and sought a refund of excess levies.
Findings of Court:
The court found that the respondent's unauthorized alterations and extensions had so fundamentally changed the subject matter of the agreement that it was no longer capable of being applied and had become unenforceable. Consequently, the government's order to levy the full standard rate was not ultra vires. Furthermore, the court found that the suit was an objection to the amount of assessment, which is barred from the jurisdiction of civil courts.
Issues: (1) Whether the jurisdiction of the civil court was excluded by Section 4(b) of the Revenue Jurisdiction Act; (2) Whether the government's order to levy full assessment under Section 211 of the Land Revenue Code was ultra vires as it effectively cancelled existing agreements.
Ratio Decidendi: The court ruled that when an assessee materially alters the buildings that formed the basis of a fixed-assessment agreement without permission, the agreement ceases to be applicable. The government's power of revision allows it to recognize this position and adjust the assessment. Regarding jurisdiction, any claim seeking to limit the amount of land revenue based on a contract is an objection to the amount or incidence of assessment, which is expressly barred from civil court jurisdiction.
Result: Appeal allowed; judgments and decrees appealed from set aside; suit dismissed.
Legal Category Hierarchy
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administrative law
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land revenue
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assessment
- non-agricultural use
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assessment
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land revenue
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practice and procedure
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jurisdiction
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civil court jurisdiction
- statutory bar
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civil court jurisdiction
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jurisdiction
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contract law
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enforceability
- unauthorized alterations
-
enforceability
Judgement
Appeal (No. 102 of 1945) from a judgment and decree of the High Court (August 8, 1940), in a Letters Patent appeal, confirming a judgment and decree of a single judge of that court (Wassoodew J.) (April 11, 1938), in the exercise of appellate jurisdiction, whereby a decree of the District Judge, Ahmedabad (October 8, 1934), was set aside and the respondents suit was, for the main part, decreed. The decree of the District Judge had confirmed a decree of the First Class Subordinate Judge of Ahmedabad (October 24, 1933), under which the respondents suit was dismissed.
The following facts are taken from the judgment of the Judicial Committee. On October 13, 1931, the respondent brought the present suit against the appellant praying for a declaration that the appellant was not entitled to recover from the respondent any assessment of certain land, of which the respondent was registered occupant, in excess of the amounts payable by him under agreements dated respectively July 25, 1906, February 13, 1915, and December 21, 1924, for repayment of Rs. 606-7-0 illegally levied from him in the years 1928 to 1931 inclusive, and for other relief.
The respondent was the owner and registered occupant of a plot of land measuring 7,744 square yards, being Survey No. 149 of Mouje Changispur in the North Daskroi taluk of the Ahmedabad Collectorate within the Ahmedabad Municipality. The plot had been used for agricultural purposes only up to 1904, in which year he erected an ice factory on part of it. He had applied to the collector under s. 65 of the Code for permission to use the land for such a non-agricultural purpose, and permission was granted under s. 67 on terms which were subsequently embodied in a formal agreement dated July 25, 1906. That agreement was superseded, and need not be further examined.
In 1915 the respondent acquired Survey No. 150/A lying immediately to the north of Survey No. 149, for the purpose of extending his ice factory. He applied to the collector for amalgamation of the two Survey Nos. and for permission to appropriate the amalgamated holding to non-agricultural purposes in accordance with a plan which showed the buildings as proposed to be extended. A formal agreement embodying the permission and its conditions was executed between the Government through the collector and the respondent on February 13, 1915, the material provisions of which were as follows—
"Now it is hereby agreed between the Secretary of State and the applicant that permission to appropriate to non-agricultural purposes the plot of land indicated by the letters A B C D on the said site plan (which plot of land is hereinafter referred to as the said plot of land) in the particular manner shewn in the said site plan, namely—
“(a) an area of 2,161 sq. yards indicated by a red colour and the letters EFGHIJKLMNO for the purpose of a pagi room, bungalow, godown, factory, boiler house, smithy, tank and quarters.
"(b) an area of 56 sq. yards indicated by a yellow colour and the letters H P Q for the purpose of a stable and latrines.
"(c) an area of 9,883 sq. yards indicated by the uncoloured portion of the said plot for the purpose of an open compound only.
“shall be and is hereby granted subject to the provisions of the said Code, and rules and orders thereunder, and on the following special terms and conditions, namely—
"I. The applicant in lieu of the present assessment leviable in respect of the said plot of land shall pay to Government without deduction on the first day of January in each and every year an annual assessment of Rs. 27 only during the fifty years commencing on the first day of August, 1903, and ending on the 31st day of July, 1953, and thereafter such revised assessment as may from time to time be fixed by the collector under the said Code and rules and orders thereunder
* * * *
"3. The applicant is hereby prohibited under the last paragraph of s. 48 of the said Code from appropriating, without the previous permission in wri
