JUDGMENT
Sharad Manohar, J.
1 The question of law involved in these group of Appeals is a common question and the judgment in S.A. No. 382/79 will apply to all the appeals.
It is enough to State the facts in S.A. No. 382 of 1979, because the facts in all other appeals are similar, though the dates vary, without making any distinction on principle.
2. For the sake of convenience, I will refer to the parties as plaintiff and defendant.
The plot of land Survey No. 637, C.T.S. 4644 situate at Dhulia belongs to the plaintiff. As early as on 13/7/1916 Sanad was issued in favour of the plaintiff or her predecessor-in-title permitted her the N.A. user of the land. As per the Sanad, she was required to pay the assessment of Rs. 7-10-0 for the land and a guarantee was given that the said assessment will not be varied for a period of 50 years from 17-7-1917.
Thereafter, in the year 1949 there was a revision of the assessment of the lands in general. But from the very nature of things, the revision could have no application to the said land which was the subject matter of the Sanad issued on 13-7-1916 (which will be referred to hereafter as the “suit land”) and hence assessment went on being recovered from the plaintiff at the rate of 7-10-0 by the government. All the entries in the revenue records showed that the assessment levied on the land was 7-10-0 right till the date of the impugned notice. On 13-7-1966, the guarantee given by the Government for the fixed assessment of 7-10-0 came to an end. But the Revenue Record continued to show that the assessment was levied and collected at the rate of 7-10-0 add only that much amount was being recovered from the plaintiff right till 13-4-1972.
In the year 1970, there was once again the revision of the assessment. But in spite of the said revision, the amount of assessment continued to be recovered from the plaintiff at the rate of 7-10-0 till 13-4-1972.
On 13-4-1972, a notice was given to the plaintiff by the Talathi demanding a sum of Rs. 410.18 as difference in the amount of actual assessment claimed by the Government and the amount paid by the plaintiff. The period for which the difference was claimed was not mentioned. As to how much amount was levied upon the plaintiff was not mentioned. A blank demand for the amount was made mentioning that was the difference in the amount of assessment. Hence, the plaintiff filed the instant suit on 29-11-1972 for the declaration that the notice was illegal and unlawful and for an injunction restraining the defendant/Government from recovering the amount from the plaintiff.
3. The Government filed its written statement at Exh. 21 and raised various contentions in defence. But only the following contentions are pressed into service before me. They are:-
(a) that the suit was not competent because against the notice demanding the excess amount of assessment, an appeal was provided and, hence the Civil Court had no jurisdiction to entertain the suit;
(b) that the N.A. Assessment was revised firstly on 15-11-1949 and thereafter on 1-9-1970 and that as per the 1949 revision the assessment for the land was fixed at Rs. 47/- at the rate of 2-1-0 per hundred sq. yard and that as per the second revision which took place in 1970, the assessment was further raised to Rs. 94.80.
4. On these pleadings, issues were framed and evidence was led by the parties. The learned trial Judge negatived the defendant’s challenge to the Civil Court’s jurisdiction to entertain the suit. The Court held that the notice of demand for Rs. 410.18 as difference between the actual assessment and the assessment paid by the plaintiff was illegal and that the plaintiff was entitled to the declaration and injunction asked for. The plaintiff’s suit was, therefore, decreed by the trial Court.
In appeal, the said findings and decree have been confirmed by the District Court and the Appeal has been dismissed. Hence this Second Appeal to this Court.
5. As stated above, before me, once against the plea relating to competence of the Court to entertain the suit is reiterated. Contention before me was that against the notice of demand of Rs. 410.18, an appeal has been provided to the Collector and hence the suit was not maintainable.
A simple answer to the plea is that in the first place it is extremely doubtful whether an appeal would lie against the notice issued by the Talathi. The notice is illegal on the face of it for a number of reasons. But it is doubtful as to whether it is appealable. In the second place, even assuming that the appeal lay against the side notice, it is not incumbent upon the plaintiff to file the appeal at all. As will be presently pointed out the notice is illegal on the face of it and it is unconstitutional because it amounts to recovery of tax without the authority of law. Article 265 of the Constitution provides that no tax shall be levied or collected except by authority of law. As has been held by the Court below and as will be pointed out by me presently the notice in question is devoid of any authority of law. An un-constitutional order passed by any officer of the Government need not be appealed against, because the appellate authority with special and limited jurisdiction will not have the authority to decide whether its own acts or the acts of its subordinate are ultra vires the statute or the Constitution. The Civil Court’s jurisdiction in such cases to entertain a suit for declaration that the act is illegal and ultra vires the statute and/or the Constitution is always held to be quite competent.
6. This brings me to the merits of the plaintiff’s case. According to the plaintiff, when on 13th July, 1916 a guarantee was given of 50 years assessment at the rate of 7-10-0 for the suit land, the Collector had no power to vary the assessment or revise the same so far as the suit land was concerned till 13th July, 1966. According to him, the same assessment would continue until it was duly revised. No doubt there was a revision of the general assessment in the year 1970. But according to the plaintiff, the procedure necessary for the purpose of the revision of the assessment payable for the suit land was never followed with the result that the same old assessment continued so far as the suit land was concerned till the date of the suit and probably even thereafter. This is the reason why the plaintiff contends that the demand for assessment at the rate of Rs. 94.89 (which rate itself became known to the plaintiff only after the evidence was led by the defendant) is an illegal demand.
Mr. Patil, the learned Asstt. Government Pleader, however, contends that in the first place the revision of the assessment is governed not by the new code but by the old Bombay Land Revenue Code. According to him, there existed a difference between revision and recovery of assessment. He contends that may be because of the guarantee given by the Government in the year 1916, it was not open for the Collector to recover assessment exceeding 7-10-0 in connection with the suit land. But there was no impediment in the way of the Government in revising the assessment payable in respect of the plot until the guarantee period was over, contends Mr. Patil. The revised rate could not be recovered from the plaintiff so far as the guarantee period continued, but the moment the guarantee period came to an end, it was open for the Government to recover the assessment from the plaintiff as per the rates already revised.
7. For considering this entire question, it is necessary in the first instance to refer to certain provision of the old Bombay Land Revenue Code and the present Maharashtra Land Revenue Code.
The fixation of the assessment and the guarantee period in respect of the assessment was governed under the Bombay Land Revenue Code. 1879 (thereafter, the old Code) by section 52 thereof. That section gave the power to the Collector to fix the assessment and to fix the period for which the assessment would remain in force.
It would therefore, follow that until the period fixed by the Collector expired, the assessment fixed by the collector would remain in force and would not be subject to any revision by the Collector during that period.
Question would, however, arise as to what would happen if the period came to an end and there was no fresh fixation of the assessment by the Collector vis-a-vis the land in question. In the absence of any authority on this point it would have been unnecessary for me to examine the various provisions of the Bombay Land Revenue Code to ascertain the emergent position. But the question is no longer res integra. A Division Bench of this court has held in Ahmedabad Ginning and Manufacturing Co. Ltd. v. Secretary of State, A.I.R. 1937 Bombay P. 226 that-
“The assessments fixed at a survey settlement do not cease to operate at the expiry of the period of guarantee unless and until they are revised.”
In the instant case, the assessment was fixed vis-a-vis the suit land, on 13-7-1916 for a period of 50 years at the rate 7-10-0 and hence the assessment will continue not only till 13-7-1966 but even until the assessment is subsequently revised with reference to this particular suit of land.
But there is another principle laid down by the self-same authority. It is held there that the revised assessment cannot be levied retrospectively. This means that if there has been a revision for assessment in the year 1970, that revision would, at the most, be operative prospectively. So far as the assessment for the period between 1966 and 1970 was concerned, the assessment would continue at the rate of 7-10-0 only.
9. Even a cursory perusal of the authority will show that the various provisions of the Bombay Land Revenue Code have been examined by this Court and only thereafter this decision has been arrived at. The decision has stood the test of time for the last more than 40 years. Moreover, it will be seen that the same principle is to be found in the provisions of section 120 of the Maharashtra Land Revenue Code, 1966 (thereafter the Present Land Revenue Code). That section provides that until the period of revision fixed under the earlier order has expired, the amount of assessment shall be payable as per the rates fixed, but the same rate shall remain in force after the expiration of the guarantee until there has been a revision of assessment made in accordance with law. It would, therefore, follow that the assessment of 7-10-0 would continue till the next revision.
Mr. Patil contended that section 120 of the present Code would not apply, because the guarantee period ended on 13-7-1966, whereas the present Code came into force only later on. Mr. Patil is right on this point. But the simple answer to his plea is to be found in the judgement of the Division Bench referred to above, which shows that the law was not different under the Old Land Revenue Code from the one under the present Land Revenue Code.
10. This brings me to the question as to whether the Government has power to levy assessment on the suit land, at least prospectively as per the so-called revised assessment of the year 1970 and answer to this question will turn upon the further question as to whether there has been a revision of assessment in the year 1970 vis-a-vis the suit land. Mr. Patil’s contention is that the revision made in the year 1970 would have application to the suit land as well. According to him, even the revision in the year 1949 would have application to the suit land. He contends that in the year 1949 the assessment payable for the suit land was Rs. 47.10. According to him, the assessment could be revised in 1970 to Rs. 47.10. According to him, the assessment could be revised in 1970 to Rs. 47.10×6, but the Collector had chosen to limit it to Rs. 47.10×2 only. According to him, the general revision made by the Collector which was made known to the public by the public Notification is applicable to the suit land as well
11. The argument involves several follows. The argument that the 1949 revision had application to the suit land is ex facie fallacious. There was a guarantee given to the plaintiff that the assessment would continue for the period of 50 years. Implicit in the guarantee is the assurance that there shall be no revision of the assessment for a period of 50 years so far as the suit land was concerned. The revision made in 1949 could therefore, have no application to the suit land.
This position is clear also from the fact that this is how the Revenue Authorities have approached this question. The revenue Records consistently show that till the year 1966, in any event, there was no revision of assessment shown so far as the suit land was concerned and the suit continued to be subjected to the assessment of 7-10-0 only. This would not have been so if the revision made in the year 1949 was applicable to the suit land.
12. The next argument of Mr. Patil is equally fallacious. His contention is that when in the year 1970 there was a revision of assessment, that revision applied to the suit land as well.
The fallacy in this reasoning will be clear if we look are the scheme of the code providing for the revision of assessment.
Under section 110 read with section 113 of the present Land Revenue Code, the Collector is required to fix the standard rate of non-agricultural assessment. This fixation of standard rate is in fact a part of the process of revision. Section 114 provides for the rate of assessment in the urban areas and the assessment is to be fixed with reference to the standard rate. Section 115 contemplates cases of revision of the assessment and it provided that at the time of the revision at the stated periods enjoined by section 116, the Revision shall not exceed 2 times the previous assessment in the case of the N.A. use for residential purposes and shall not exceed 6 times the assessment in the case of N.A. use for other that the residential purposes.
The most important section is the aforesaid section 120, which runs as follows :-
“The non-agricultural assessment fixed on lands and in force in any part of the state immediately before the commencement of this code shall be deemed to have been fixed under the provisions of this chapter and shall, notwithstanding anything contained in this Chapter, be deemed to continue to remain in force during the whole of the period for which the assessment was fixed and thereafter, until such assessment is received under the provisions of this Chapter.”
But what is to be noted is that this is only a part of the process of fixation or revision of assessment. As per the scheme of the present Code, the assessment is to be made in a two-fold manner:-
(a) Assessment with relation to the lands in general; and
(b) Assessment with relation to the individual plot.
The fixation of the assessment of the general lands and the revision thereof is governed by said sections 110,113,114,115,116 and 120 etc. But the is Collector’s function does not come to an end by fixing general standard rate of assessment. The provisions for fixation of assessment in Chapter VII of the present code provides only for the maxima and minima. There has got to be assessment for every individual plot and the procedure for that is provided by the Rules framed under the present Code, viz. The Maharashtra Land Revenue (Conversion of use of the Land and Non-Agricultural Assessment) Rules, 1969. The Rule material for our purpose is Rule 18, which runs as follows:-
“18. Fixation of non-agricultural assessment on individual plots:-
“The actual assessment on individual plots in each block shall be fixed by the Collector on the basis of the standard rate for the time being in force in that block, having regard to the specific non-agricultural purpose for which the land is used as provided in sub-section (1) of section 114; subject to the reduction of increase of 25 per cent as provided in sub-section (3) thereof. In fixing such actual assessment, the amount of assessment shall be rounded off to the nearest multiple of ten, less than five paise being disregarded, and five paise and more being regarded as ten paise.”
This latter procedure has not been followed by the collector or by any other revenue authority at all, which results in the fact that there has been no valid and lawful revision of the assessment so far as the plaintiff’s plot is concerned in the year 1970 and hence it follows that the old assessment of 7-10-0 would continue until there has been a lawful revision. The 1970 revision is not lawful revision in the sense that it has no application to the suit land which is the individual plot belonging to the plaintiff.
13. But Mr. Patil contended that there was an assessment made by the Collector with reference to the present individual plot, viz. The suit land. This question calls for examinations of evidence on this point. The evidence led by the government itself show that there was no assessment of the individual plot as such as in the year 1970. In this connection, Mr. Agrawal invited my attention to the evidence given by the City Survey officer Shri Harchand Fulchand Thorat, who is examined on behalf of the Government in most of the suits. This is what the officer has stated in the very 1st Para of his deposition:
“After publications of the Notification, the new rate of assessment is to be applicable to each of the zones. N.A assessment is not revised in individual case but in the case of zone as such.”
This means that the requirement of Rule 18 has not been compiled with at all.
But that apart, there is no evidence whatsoever that the Collector had applied mind at any time to the fixation of the assessment of the suit plot at all. Mr. Patil was unable to invite my attention to any document from the record showing that the Collector had in fact applied his mind to the question of the assessment of the plaintiff’s individual plot, viz. The suit land. Mr. Patil tried to rely upon some entries in the 7/12 Extract produced on behalf of the Government. He invited my attention to Exh. 32 wherein the assessment of the suit land is shown to be Rs. 94.80. But the points that this assessment is from the year 1973 onwards and obviously this is after the impugned notice issued by the Talathi. The Talathis issued the notice in the year 1972 and made the entry in the 7/12 Extract accordingly One illegality cannot be corrected by another illegality. Reliance upon 7/12 Extract (Exh. 32) is, therefore, mis-placed.
14. Mr. Patil also relied upon the Extract of the Property Register wherein it was shown that in the year 1966-67 the assessment for this particular plot was initially Rs. 7.62 and later on it is shown to be Rs. 47.37 in Paranthesis and subsequently it is shown Rs. 94.80 for the period between 1-8-1970 to 31-7-1985. Mr. Patil was, however, not able to satisfy me as to when this entry was made. Moreover, he was unable to say as to as to how this amount of Rs. 47.37 was arrived at. That apart, the entry made in the Property Register would not show that the Collector had fixed the assessment by strict compliance with the requirement of Rule 18 of the above mentioned Land Revenue Rules.
15. Having regard to all these facts, it must be held that no evidence is led on behalf of the Government to prove that in fact there was a due valid and lawful revision of assessment made by or on behalf of the Collector vis-a-vis the suit land in the year 1970 or at any date thereafter till the data of the suit. Hence it follows that the impugned notice given by the Talathi is wholly illegal. It purports to levy and collect tax without the authority of law and, as such, it is ultra vires Article 265 of the constitution. The judgement and decree passed by the lower Court, therefore cannot be cavilled at.
16. So far as Second Appeal No. 855 of 1979 is concerned, the guarantee period came to an end on 31st July, 1968. On that date, the present Land Revenue Code had already come into operation and hence the provisions of section 120 thereof would apply with all the vigour.
All the Second Appeals, therefore, fall and the same are hereby dismissed with costs.