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 That agreement was superseded, and need not be further examined.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

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"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