Province Of Bombay
v.
Hormusji Manekji
(Privy Council)
| 12-06-1947
Thankerton, J.
1. The appellant, in the first place, maintains that the jurisdiction of the civil courts over the subject-matter of this suit is excluded by Section 4(b) of the Bombay Revenue Jurisdiction Act, 1876, which, so far as material, provides as follows, 4. Subject to the exceptions hereinafter appearing, no Civil Court, shall exercise jurisdiction as to any of the following matters:
* * * *
(b) objections
to the amount or incidence of any assessment of land-revenue authorized by the Provincial Government, or
to the mode of assessment, or to the principle on which such assessment is fixed, or
to the validity or effect of the notification of survey or settlement, or of any notification determining the period of settlement;
* * * *
Provided that, if any person claim to hold wholly or partially exempt from payment of land revenue under:
(h) any enactment for the time being in force expressly creating an exemption not before existing in favour of an individual or of any class of persons, or expressly con firming such an exemption on the ground of its being shown in a public record, or of its having existed for a specified term of years, or
(i) an instrument or sanad given by or by the order of the Governor of Bombay in Council under Bombay Act No. II of 1863, Section 1, clause first, or Bombay Act No. VII of 1863, Section 2, clause first, or.
(j) any other written grant by the British Government expressly creating or confirming such exemption, or
(k) a judgment by a Court of law, or an adjudication duly passed by a competent officer under Bombay Regulation XVII of 1827, Chapter X or under Act No. XI of 1852, which declares the particular property in dispute to be exempt, such claim shall be cognisable in the Civil Courts.
2. The appellant maintains that the subject-matter of the present suit is an objection to the amount, incidence or mode of assessment of land revenue, within the meaning of Section 4(b), but Sir Cyril Radcliffe, on behalf of the appellant, rightly conceded that the civil courts have jurisdiction to determine a question as to excess of the statutory powers conferred by the Code. In the opinion of their Lordships, such a question is raised in the present case, in so far as the respondent maintains that, in so far as the order of the Governor in Council of April 11, 1930, may be held to cancel any of the agreements of 1906, 1915 or 1924, it was not within the powers conferred by Section 211 of the Code, under which the appellant sought to justify it. This aspect of the case does not appear to have been separately considered by any of the courts below, but, in the opinion of their Lordships, it should logically be first considered. Section 211 of the Code, so far as material, provides as follows:
211. The Governor in Council and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer, for the purpose of satisfying himself as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.
* * * *
If, in any case, it shall appear to the Governor in Council or to such officer aforesaid, that any decision or order or proceedings so called for should be modified, annulled, or reversed, he may pass such order thereon as he deems fit.
3. In order to appreciate the true nature of the agreements founded on by the respondent, it will be convenient to refer to certain sections of the Code (as amended down to 1913), namely, Sections 48, 65, 66 and 67, the material provisions of which are as follows:
48. (1) The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land:
(a) for the-purpose of agriculture,
(b) for the purpose of building, and
(c) for a purpose other than agriculture or building.
(2) Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the Governor in Council may prescribe....
(3) Where land held free of assessment on condition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment.
* * * *
65. An occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.
But, if any occupant wishes to use his holding or any part thereof for any other purpose the collectors permission shall in the first place be applied for by the occupant.
The collector, on receipt of such application,
(a) shall send to the applicant a written acknowledgment of its receipt, and
(b) may, after due inquiry, either grant or refuse the permission applied for:
Provided that, where the collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the collector sends, a written acknowledgment within seven days from the date of the receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application.
Unless the collector shall in particular instances other wise direct, no such application shall be recognized except it be made by the occupant.
When any such land is thus permitted to be used for any purpose unconnected with agriculture it shall be lawful for the collector, subject to the general orders of Government, to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of Section 48.
66. If any such land be so used without the permission of the collector being first obtained, or before the expiry of the period prescribed by Section 65, the occupant and any tenant, or other person holding under or through him, shall be liable to be summarily evicted by the collector from the land so used and from the entire field or survey number of which it may form a part, and the occupant shall also be liable to pay, in addition to the new assessment which may be leviable under the provisions of Section 48 for the period during which the said land has been so used, such fine as the collector may, subject to the general orders of Government, direct.
* * *
67. Nothing in the last two preceding sections shall prevent the granting of the permission aforesaid on such terms or conditions as may be prescribed by the collector, subject to any rules made in this behalf by the Governor in Council.
4. The agreement of 1924 being admittedly out of the case, their Lordships will confine their attention to the agreements of 1906 and 1915. In both cases the respondent required to apply under Section 65 for permission to use agricultural land for a non-agricultural purpose, as in 1915 the respondent had acquired the adjoining Survey number. The permission in both cases was given under Section 67, the terms or conditions being embodied in an agreement, the subject of assessment being strictly defined by a plan showing the authorized buildings and the area assessed, and the assessment being one sum in respect of the unit of assessment in the condition as regards buildings prescribed by the contract. There was a limited power, where previously permitted by the collector, to appropriate for any purpose other than that for which permission was granted by the agreement, and for an enhanced assessment not exceeding a prescribed rate per hundred square yards, the total amount of the assessment being modified accordingly. Admittedly, the collector had a complete discretion as to the granting of any such further permission.
5. The 1906 agreement was clearly superseded by the 1915 agreement, for not only did it deal with a subject of assessment which had been altered as regards the authorized buildings, but the new subject of assessment-again in one sum-included part of Survey No. 150/A, the two areas being amalgamated. In other words, the previous unit of assessment under the 1906 agreement no longer existed. It remains to deal with the agreement of 1915, and it is crucial to consider the effect of the respondents unauthorized building as shown on the plan which accompanied the circle-inspectors report in June, 1926, and in the plan Exhibit 80, dated in 1929, and the respondents evidence. Their Lordships are bound to accept the statement of the District Judge that "the plaintiff himself admitted that he has put up structures on prohibited portions and has put structures in contravention of the agreements of 1906 and 1915." Wassoodew J., in the High Court, made the following decree: "For the reasons stated in the accompanying judgment, the Court grants a declaration to the plaintiff as prayed for in paragraph 2 (A) of the plaint, viz., that the Secretary of State is entitled to levy from him only non-agricultural assessment under the agreement of 13th February, 1915, on the land built upon out of Survey Nos. 149 and 150/A of Mouje Changispur alias Mithakhali in pursuance of that agreement. The Court grants an injunction that the full standard rate shall not be applied to the buildings erected by the plaintiff before 1920 under the terms of the agreement of 1915 and directs that Government hall refund to the plaintiff any sum either by way of altered assessment or penalty levied in excess of that stipulated in the agreement in respect to the buildings as they existed in 1920. The excess sum, if any, shall be determined in execution. As to buildings erected after 1920 the plaintiff is not entitled to any declaration, Government being entitled to levy such altered assessment as may be leviable in accordance with law." That decree was confirmed in the Letters Patent appeal. Their Lordships feel bound to express their difficulty in appreciating how such a decree can be reconciled with the established facts of the case, apart from the question whether it correctly states the legal position.
6. The agreement of 1924, and the permission thereby granted, being out of the case, it is correct to say that no permissions for alterations or extensions have been granted since those granted before, 1920. The plan annexed to the 1915 agreement has not been forthcoming, but the plan submitted by the respondent with his application on September 21, 1920, for permission for alterations on the factory shows the 1915 plan with the proposed alterations in red. It is Exhibit 20. A comparison of this plan with (1.) Exhibit 23, being the plan submitted by the respondent which was annexed to the abortive agreement of 1924, and (2.) Exhibit 80, a plan dated October 22, 1929, which the respondent accepted in his evidence on September 27, 1933, as showing the then state of the building, demonstrates beyond all question the very material changes that have been made by the respondent by demolition, reconstruction and extension on the unit of assessment, which was the subject-matter of the 1915 agreement. This is more than confirmed by the statement by the respondent, under cross-examination, as to his operations as shown by a comparison of Exhibit 23 and Exhibit 80. In short, it is impossible now to identify the buildings erected under the agreement of 1915.
7. Further, their Lordships are unable to agree that the agreement of 1915 can survive the alterations which the respondent himself has made, and which are such that, in the opinion of their Lordships, he has so altered the subject of assessment, that the agreement of 1915 is not capable of being applied to it. Their Lordships can find no justification under the Code for splitting up the assessment which is on the land into two parts, applying to the same land, each part being calculated according to a different mode of assessment. Their Lordships are of opinion that the respondent, by his unauthorized alterations and extensions in 1920 and subsequent years has so altered the subject-matter of the 1915 agreement that it has become useless and unenforceable.
8. Having formed this view, their Lordships are clearly of opinion that the order, or resolution, of the Governor in Council dated April n, 1930, even if it impliedly treated the agreements as broken or cancelled, did no more than recognize the true position of the agreements in law, and was not ultra vires of the Governor in Council, acting under Section 211 of the Code. That question having been thus resolved, it is then necessary to consider whether the jurisdiction of the civil court as to any further question on the merits is excluded by Section 4(b) of the Bombay Revenue Jurisdiction Act, 1876. On this point Wassoodew J. says, "On the principal question it seems to me that Section 4(b) of the Revenue. Jurisdiction Act (X. of 1876) cannot operate as a bar to these proceedings. In effect the plaintiff has sought for a declaration that certain agreements between the parties as to the levy of assessment on his land were binding upon Government. He did not directly question the legality of the orders of Government on any other ground or, their power to levy full standard rates upon conversion of agricultural holding if the agreements did not operate as a bar. In terms he is asserting a right independently of the question of the legality of Governments right to recover altered assessment. Now such a suit could not he described as a suit objecting to the amount or incidence of any assessment of land revenue authorized by Government, or to the mode of assessment, or to the principle on which such assessment is fixed, within the meaning of Clause (b) of Section 4." The learned judge relied on two cases, Lakshman v. Govind (1903) I.L.R. 28 B. 74 and Damodar Mahadev Bhonde v. Kashinath Sadashiv (1923) A.I.R. (Bom.) 79. In the Letters Patent appeal, Sen J., in whose judgment N.J. Wadia J. concurred, quotes a passage from the judgment of Chandavarkar J. in Lakshmans case (1) as follows. "In one sense, no doubt, whenever an Inamdar sues an occupancy tenant to recover land revenue according to the survey rates and the tenant resists the claim on the ground that he has acquired a right as against the Inamdar to pay rent or revenue at a permanently fixed rate, he may be said to object to the amount or incidence of land revenue authorized by Government. But it is an objection which does not hit the amount of incidence directly; that is its indirect effect, which is not what the first head of Clause (b), having regard to its language, was intended to strike at. The objection must be to the amount or incidence of any assessment of land revenue itself and as such." Sen J. then proceeds, And his Lordship held in that case that an objection to come within the heads of Clause (b) of Section 4 must be an objection which reached them directly, i.e., an objection to them per se which admitted the liability to pay land revenue on the part of the objector but quarrelled with its amount or incidence or the validity and effect of the notification of survey settlement as by themselves objectionable, not because some other right affected them or made them inapplicable to the particular case. This reasoning was followed by Shah, Acting C.J., in his judgment in Damodar v. Kashinath (1922) 24 Bom. L.R. 1040. Both the cases might have come more appropriately under Section 5 of the Bombay Revenue Jurisdiction Act rather than under Section 4. But Section 5 is really an exception or a proviso to the provisions of Section 4." The learned judge was unable to distinguish the facts in the present case from those in Lakshmans case (I) and held that the reasoning adopted in Lakshmans case (I) applied to the present case, which therefore was not a suit of any of the descriptions to be found in Section 4(b) of the Bombay Revenue Jurisdiction Act.
9. The legal position of the agreements having been determined by their Lordships in relation to the question of ultra vires in a way which deprives the respondent of any reliance on them, the whole basis of the respondents suit has gone, but their Lordships feel bound to dissociate themselves from the narrow construction of Section 4(b) of the Bombay Revenue Jurisdiction Act of 1876 which has been adopted by the High Court in the present case, and expressed in the two cases referred to.
10. It is a familiar principle of statutory construction that where you find in the same section express exceptions from the operative part of the section, it may be assumed, unless it otherwise appears from the language employed, that these exceptions were necessary, as otherwise the subject-matter of the exceptions would have come within the operative provisions of the section. There are four exceptions in the proviso to Section 4, which are clearly general exceptions to the operative provisions of the section. If the construction adopted by Chandavarkar J. in Lakshmans case (1903) I.L.R. 28 B. 74 and adopted by the High Court in the present case be correct, these exceptions were unnecessary, and they are stronger instances for the application of that construction, for the respondents agreements are contracts fixing the amount of land revenue to be paid; they are neither matters of title to, nor matters of tenure of, the land. Neither the present respondent, nor the defendants in the two Inam cases, claimed to come within the proviso to Section 4, but Section 5 was held applicable in the Inam cases, and their Lordships express no opinion 4s to Section 5. Their Lordships are of opinion that, apart from the question of ultra vires, the respondents claim, as set out in the plaint, based on the agreements, did constitute objections to the amount or incidence of assessments authorized by Government within the meaning of Section 4(b) of the Bombay Revenue Jurisdiction Act, 1876, and that the jurisdiction of the civil court was thereby excluded.
11. Their Lordships will, accordingly, humbly advise His Majesty that the appeal should be allowed, that the judgments and decrees appealed from should be set aside, and that the suit should be dismissed. In accordance with the undertaking given, the appellant will pay the respondents costs of this appeal. The respondent will pay the appellants costs in all the courts in India.
1. The appellant, in the first place, maintains that the jurisdiction of the civil courts over the subject-matter of this suit is excluded by Section 4(b) of the Bombay Revenue Jurisdiction Act, 1876, which, so far as material, provides as follows, 4. Subject to the exceptions hereinafter appearing, no Civil Court, shall exercise jurisdiction as to any of the following matters:
* * * *
(b) objections
to the amount or incidence of any assessment of land-revenue authorized by the Provincial Government, or
to the mode of assessment, or to the principle on which such assessment is fixed, or
to the validity or effect of the notification of survey or settlement, or of any notification determining the period of settlement;
* * * *
Provided that, if any person claim to hold wholly or partially exempt from payment of land revenue under:
(h) any enactment for the time being in force expressly creating an exemption not before existing in favour of an individual or of any class of persons, or expressly con firming such an exemption on the ground of its being shown in a public record, or of its having existed for a specified term of years, or
(i) an instrument or sanad given by or by the order of the Governor of Bombay in Council under Bombay Act No. II of 1863, Section 1, clause first, or Bombay Act No. VII of 1863, Section 2, clause first, or.
(j) any other written grant by the British Government expressly creating or confirming such exemption, or
(k) a judgment by a Court of law, or an adjudication duly passed by a competent officer under Bombay Regulation XVII of 1827, Chapter X or under Act No. XI of 1852, which declares the particular property in dispute to be exempt, such claim shall be cognisable in the Civil Courts.
2. The appellant maintains that the subject-matter of the present suit is an objection to the amount, incidence or mode of assessment of land revenue, within the meaning of Section 4(b), but Sir Cyril Radcliffe, on behalf of the appellant, rightly conceded that the civil courts have jurisdiction to determine a question as to excess of the statutory powers conferred by the Code. In the opinion of their Lordships, such a question is raised in the present case, in so far as the respondent maintains that, in so far as the order of the Governor in Council of April 11, 1930, may be held to cancel any of the agreements of 1906, 1915 or 1924, it was not within the powers conferred by Section 211 of the Code, under which the appellant sought to justify it. This aspect of the case does not appear to have been separately considered by any of the courts below, but, in the opinion of their Lordships, it should logically be first considered. Section 211 of the Code, so far as material, provides as follows:
211. The Governor in Council and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer, for the purpose of satisfying himself as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.
* * * *
If, in any case, it shall appear to the Governor in Council or to such officer aforesaid, that any decision or order or proceedings so called for should be modified, annulled, or reversed, he may pass such order thereon as he deems fit.
3. In order to appreciate the true nature of the agreements founded on by the respondent, it will be convenient to refer to certain sections of the Code (as amended down to 1913), namely, Sections 48, 65, 66 and 67, the material provisions of which are as follows:
48. (1) The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land:
(a) for the-purpose of agriculture,
(b) for the purpose of building, and
(c) for a purpose other than agriculture or building.
(2) Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the Governor in Council may prescribe....
(3) Where land held free of assessment on condition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment.
* * * *
65. An occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.
But, if any occupant wishes to use his holding or any part thereof for any other purpose the collectors permission shall in the first place be applied for by the occupant.
The collector, on receipt of such application,
(a) shall send to the applicant a written acknowledgment of its receipt, and
(b) may, after due inquiry, either grant or refuse the permission applied for:
Provided that, where the collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the collector sends, a written acknowledgment within seven days from the date of the receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application.
Unless the collector shall in particular instances other wise direct, no such application shall be recognized except it be made by the occupant.
When any such land is thus permitted to be used for any purpose unconnected with agriculture it shall be lawful for the collector, subject to the general orders of Government, to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of Section 48.
66. If any such land be so used without the permission of the collector being first obtained, or before the expiry of the period prescribed by Section 65, the occupant and any tenant, or other person holding under or through him, shall be liable to be summarily evicted by the collector from the land so used and from the entire field or survey number of which it may form a part, and the occupant shall also be liable to pay, in addition to the new assessment which may be leviable under the provisions of Section 48 for the period during which the said land has been so used, such fine as the collector may, subject to the general orders of Government, direct.
* * *
67. Nothing in the last two preceding sections shall prevent the granting of the permission aforesaid on such terms or conditions as may be prescribed by the collector, subject to any rules made in this behalf by the Governor in Council.
4. The agreement of 1924 being admittedly out of the case, their Lordships will confine their attention to the agreements of 1906 and 1915. In both cases the respondent required to apply under Section 65 for permission to use agricultural land for a non-agricultural purpose, as in 1915 the respondent had acquired the adjoining Survey number. The permission in both cases was given under Section 67, the terms or conditions being embodied in an agreement, the subject of assessment being strictly defined by a plan showing the authorized buildings and the area assessed, and the assessment being one sum in respect of the unit of assessment in the condition as regards buildings prescribed by the contract. There was a limited power, where previously permitted by the collector, to appropriate for any purpose other than that for which permission was granted by the agreement, and for an enhanced assessment not exceeding a prescribed rate per hundred square yards, the total amount of the assessment being modified accordingly. Admittedly, the collector had a complete discretion as to the granting of any such further permission.
5. The 1906 agreement was clearly superseded by the 1915 agreement, for not only did it deal with a subject of assessment which had been altered as regards the authorized buildings, but the new subject of assessment-again in one sum-included part of Survey No. 150/A, the two areas being amalgamated. In other words, the previous unit of assessment under the 1906 agreement no longer existed. It remains to deal with the agreement of 1915, and it is crucial to consider the effect of the respondents unauthorized building as shown on the plan which accompanied the circle-inspectors report in June, 1926, and in the plan Exhibit 80, dated in 1929, and the respondents evidence. Their Lordships are bound to accept the statement of the District Judge that "the plaintiff himself admitted that he has put up structures on prohibited portions and has put structures in contravention of the agreements of 1906 and 1915." Wassoodew J., in the High Court, made the following decree: "For the reasons stated in the accompanying judgment, the Court grants a declaration to the plaintiff as prayed for in paragraph 2 (A) of the plaint, viz., that the Secretary of State is entitled to levy from him only non-agricultural assessment under the agreement of 13th February, 1915, on the land built upon out of Survey Nos. 149 and 150/A of Mouje Changispur alias Mithakhali in pursuance of that agreement. The Court grants an injunction that the full standard rate shall not be applied to the buildings erected by the plaintiff before 1920 under the terms of the agreement of 1915 and directs that Government hall refund to the plaintiff any sum either by way of altered assessment or penalty levied in excess of that stipulated in the agreement in respect to the buildings as they existed in 1920. The excess sum, if any, shall be determined in execution. As to buildings erected after 1920 the plaintiff is not entitled to any declaration, Government being entitled to levy such altered assessment as may be leviable in accordance with law." That decree was confirmed in the Letters Patent appeal. Their Lordships feel bound to express their difficulty in appreciating how such a decree can be reconciled with the established facts of the case, apart from the question whether it correctly states the legal position.
6. The agreement of 1924, and the permission thereby granted, being out of the case, it is correct to say that no permissions for alterations or extensions have been granted since those granted before, 1920. The plan annexed to the 1915 agreement has not been forthcoming, but the plan submitted by the respondent with his application on September 21, 1920, for permission for alterations on the factory shows the 1915 plan with the proposed alterations in red. It is Exhibit 20. A comparison of this plan with (1.) Exhibit 23, being the plan submitted by the respondent which was annexed to the abortive agreement of 1924, and (2.) Exhibit 80, a plan dated October 22, 1929, which the respondent accepted in his evidence on September 27, 1933, as showing the then state of the building, demonstrates beyond all question the very material changes that have been made by the respondent by demolition, reconstruction and extension on the unit of assessment, which was the subject-matter of the 1915 agreement. This is more than confirmed by the statement by the respondent, under cross-examination, as to his operations as shown by a comparison of Exhibit 23 and Exhibit 80. In short, it is impossible now to identify the buildings erected under the agreement of 1915.
7. Further, their Lordships are unable to agree that the agreement of 1915 can survive the alterations which the respondent himself has made, and which are such that, in the opinion of their Lordships, he has so altered the subject of assessment, that the agreement of 1915 is not capable of being applied to it. Their Lordships can find no justification under the Code for splitting up the assessment which is on the land into two parts, applying to the same land, each part being calculated according to a different mode of assessment. Their Lordships are of opinion that the respondent, by his unauthorized alterations and extensions in 1920 and subsequent years has so altered the subject-matter of the 1915 agreement that it has become useless and unenforceable.
8. Having formed this view, their Lordships are clearly of opinion that the order, or resolution, of the Governor in Council dated April n, 1930, even if it impliedly treated the agreements as broken or cancelled, did no more than recognize the true position of the agreements in law, and was not ultra vires of the Governor in Council, acting under Section 211 of the Code. That question having been thus resolved, it is then necessary to consider whether the jurisdiction of the civil court as to any further question on the merits is excluded by Section 4(b) of the Bombay Revenue Jurisdiction Act, 1876. On this point Wassoodew J. says, "On the principal question it seems to me that Section 4(b) of the Revenue. Jurisdiction Act (X. of 1876) cannot operate as a bar to these proceedings. In effect the plaintiff has sought for a declaration that certain agreements between the parties as to the levy of assessment on his land were binding upon Government. He did not directly question the legality of the orders of Government on any other ground or, their power to levy full standard rates upon conversion of agricultural holding if the agreements did not operate as a bar. In terms he is asserting a right independently of the question of the legality of Governments right to recover altered assessment. Now such a suit could not he described as a suit objecting to the amount or incidence of any assessment of land revenue authorized by Government, or to the mode of assessment, or to the principle on which such assessment is fixed, within the meaning of Clause (b) of Section 4." The learned judge relied on two cases, Lakshman v. Govind (1903) I.L.R. 28 B. 74 and Damodar Mahadev Bhonde v. Kashinath Sadashiv (1923) A.I.R. (Bom.) 79. In the Letters Patent appeal, Sen J., in whose judgment N.J. Wadia J. concurred, quotes a passage from the judgment of Chandavarkar J. in Lakshmans case (1) as follows. "In one sense, no doubt, whenever an Inamdar sues an occupancy tenant to recover land revenue according to the survey rates and the tenant resists the claim on the ground that he has acquired a right as against the Inamdar to pay rent or revenue at a permanently fixed rate, he may be said to object to the amount or incidence of land revenue authorized by Government. But it is an objection which does not hit the amount of incidence directly; that is its indirect effect, which is not what the first head of Clause (b), having regard to its language, was intended to strike at. The objection must be to the amount or incidence of any assessment of land revenue itself and as such." Sen J. then proceeds, And his Lordship held in that case that an objection to come within the heads of Clause (b) of Section 4 must be an objection which reached them directly, i.e., an objection to them per se which admitted the liability to pay land revenue on the part of the objector but quarrelled with its amount or incidence or the validity and effect of the notification of survey settlement as by themselves objectionable, not because some other right affected them or made them inapplicable to the particular case. This reasoning was followed by Shah, Acting C.J., in his judgment in Damodar v. Kashinath (1922) 24 Bom. L.R. 1040. Both the cases might have come more appropriately under Section 5 of the Bombay Revenue Jurisdiction Act rather than under Section 4. But Section 5 is really an exception or a proviso to the provisions of Section 4." The learned judge was unable to distinguish the facts in the present case from those in Lakshmans case (I) and held that the reasoning adopted in Lakshmans case (I) applied to the present case, which therefore was not a suit of any of the descriptions to be found in Section 4(b) of the Bombay Revenue Jurisdiction Act.
9. The legal position of the agreements having been determined by their Lordships in relation to the question of ultra vires in a way which deprives the respondent of any reliance on them, the whole basis of the respondents suit has gone, but their Lordships feel bound to dissociate themselves from the narrow construction of Section 4(b) of the Bombay Revenue Jurisdiction Act of 1876 which has been adopted by the High Court in the present case, and expressed in the two cases referred to.
10. It is a familiar principle of statutory construction that where you find in the same section express exceptions from the operative part of the section, it may be assumed, unless it otherwise appears from the language employed, that these exceptions were necessary, as otherwise the subject-matter of the exceptions would have come within the operative provisions of the section. There are four exceptions in the proviso to Section 4, which are clearly general exceptions to the operative provisions of the section. If the construction adopted by Chandavarkar J. in Lakshmans case (1903) I.L.R. 28 B. 74 and adopted by the High Court in the present case be correct, these exceptions were unnecessary, and they are stronger instances for the application of that construction, for the respondents agreements are contracts fixing the amount of land revenue to be paid; they are neither matters of title to, nor matters of tenure of, the land. Neither the present respondent, nor the defendants in the two Inam cases, claimed to come within the proviso to Section 4, but Section 5 was held applicable in the Inam cases, and their Lordships express no opinion 4s to Section 5. Their Lordships are of opinion that, apart from the question of ultra vires, the respondents claim, as set out in the plaint, based on the agreements, did constitute objections to the amount or incidence of assessments authorized by Government within the meaning of Section 4(b) of the Bombay Revenue Jurisdiction Act, 1876, and that the jurisdiction of the civil court was thereby excluded.
11. Their Lordships will, accordingly, humbly advise His Majesty that the appeal should be allowed, that the judgments and decrees appealed from should be set aside, and that the suit should be dismissed. In accordance with the undertaking given, the appellant will pay the respondents costs of this appeal. The respondent will pay the appellants costs in all the courts in India.
Advocates List
For Petitioner
- Shekhar Naphade
- Mahesh Agrawal
- Tarun Dua
For Respondent
- S. Vani
- B. Sunita Rao
- Sushil Kumar Pathak
Bench List
BARON THANKERTON
HERBERT DU PARCQ
MADHAVAN NAIR
JJ.
Eq Citation
1948 (50) BomLR 524
(1947) L.R. 74 I.A. 103
(1948) 1 MLJ 134
74 M.I.A. 103
AIR 1947 PC 200
LQ/PC/1947/38
HeadNote
Limitation Act, 1963 — S. 28 — Exclusion of jurisdiction of civil court — Objection to amount or incidence of assessment of land revenue authorized by Government — When does it amount to — In present case, respondent's claim based on agreements constituted objections to amount or incidence of assessment of land revenue authorized by Government — Hence, jurisdiction of civil court excluded — Bombay Revenue Jurisdiction Act, 1876 — S. 4(b) — Interpretation of.
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