JUDGMENT:- The short question arising in this petition under Art. 226 of the Constitution is the refundability of the money paid in pursuance of the order at Exh. - A and the legality of Exh.-B being a notice of demand threatening recovery by recourse to coercive measures permissible under the Maharashtra Land Revenue Code, 1966 (MLR Code).

2. Land measuring 1589.7 sq. metres forming part of C.T.S. No. 425/ 1 to 44 at Vile Parle, Taluka Andheri, Bombay Suburban District belongs to a Public Trust known as St. Francis Xavier Church situate at Vile Parle, Bombay. Petitioner is the sole Trustee of the said Trust. The impugned order at Exh.-A alleges that the Trust has converted the land which is agricultural to non-agricultural purposes without obtaining the previous permission of the Competent Authority under the MLR Code. This is said to have rendered the occupant liable to the penalties mentioned in S.45 of the Code together with the Rules framed thereunder. The order calls upon the Trust to pay a total sum of Rs.9,540/- representing the N.A. Assessment for the period 1-8-1962 to 31-7-1984. Para 8 of the order recites that the N.A. assessment shall be continued to be levied "till the unauthorised construction is demolished by the BMC or by the demolition squad of the Encroachment Department". The order was passed on 10th May 1984 and within two years came Exh.-B dated 10th March 1986 calling upon the petitioner to pay the aforementioned amount along with the penalty amounting to Rs. 963.20 ps. making a grand total of Rs. 10,303.20 ps. and this sum to be paid along with the notice cost of Rs. 3.50 ps. The petitioner made a representation against the same which representation is at Exh.-C. It was pointed out that the petitioner was called upon to pay N.A. assessment whereas the benefit had been taken by the squatters who had trespassed into the land and unauthorisedly put up structures thereon. The squatters were controlled and guided by slumlords operating in the area. Petitioner's predecessors had repeatedly requested the Collector, the Municipal Corporation and the Police to take necessary action for the demolition of the structures but to no avail. It was therefore unreasonable to penalise the petitioner. They could very well proceed against the slumlords/ occupants responsible for the unauthorised construction of the structures on the land. The representation appears to have had

no effect and for that reason, the petitioner has moved this Court.

3. In the petition exception is taken to Exhibits-A and 'B' on various grounds. First it is contended that S.45 is a denial of the equal protection of laws guaranteed by Art. 14 of the Constitution, in that it penalises the holder of the land for benefits enjoyed contrary to his wishes by encroachers against whom no action has been taken by the State and the Municipal authorities despite repeated complaints. Next, S. 45 of the MLR Code discriminates against holders of land situated in areas outside the city of Bombay which is in marked contrast to the position enjoyed by the holders of land in the city of Bombay u/S. 267 of the Code. Under the first section only the holders of the land can be proceeded against whereas the latter permits the Revenue Authorities to proceed also against the person actually in possession. S.45 is an unreasonable restriction upon the right to carry on an occupation or business guaranteed by Art. 19(l)(g) of the Constitution. The sum of Rs. 9540/- has been paid under protest and the same should be directed to be refunded. Respondents be prohibited from recovering any assessment and fine in future. A return is filed by the Additional Tahasildar on behalf of the respondents. The first contention is that the petitioner had no right to come to this Court without exhausting the remedies provided by the MLR Code and an appeal should have been filed against the order at Exh.-A and as that had not been done, the petitioner deserved to be dismissed in limine. There w

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