J. B. MEHTA, J. ( 1 ) THE plaintiffs in this appeal challenge the recovery of the non-agricultural assessment for their land for the period from July 31 1963 to July 30 1964 before the actual commencement of the nonagricultural use of this land as being against the provisions of sec. 48 of the Bombay Land Revenue Code 1879 and on the ground that rule 86 (1) (a) of the Saurashtra Land Revenue Rules in that connection was ultra vires sec. 48 and sec. 214 of the Code and also because it violated the guarantee of Article 14 of the Constitution as only in the Saurashtra area the repugnant rule would continue in force. The plaintiffs therefore sought refund of the amount of Rs. 1 758. 32 recovered from them under protest. There is no dispute as to the aforesaid amount which was recovered from the plaintiffs because of the Saurashtra rule 86 (1) (a ). There is equally no dispute that during this relevant period the plaintiffs had not started the non-agricultural user of the land although permission for such user had been granted by the order of the Deputy Collector dated November 13 1962 as the plans etc. were not finalised. Both the courts have upheld the vires of this rule 86 (1) (a) and therefore the plaintiffs have filed this appeal. ( 2 ) THE Bombay Land Revenue Code 1879 (hereinafter referred to as the Bombay Code) was applied to the Saurashtra area from September 9 1948 with its rules. The original Bombay rule 86 (1) (a) was in different terms before its present amendment and it has now been brought in conformity with sec. 48. The present rule 86 (1) (a) is as under :-WHERE permission to use the land for any non-agricultural purposes is given under sec. 65 the non-agricultural assessment upon such land shall be levied from the day on which non-agricultural use begins. 48. The present rule 86 (1) (a) is as under :-WHERE permission to use the land for any non-agricultural purposes is given under sec. 65 the non-agricultural assessment upon such land shall be levied from the day on which non-agricultural use begins. Under the un-amended rule which had therefore become the Saurashtra rule the position was as under :- the non-agricultural assessment shall ordinarily be levied from the first slay of the revenue year next succeeding the revenue year in which permission to use the land for non-agricultural purposes was given provided that (1) when the use is temporary the Collector may in his discretion levy it from the first day of which or the commencement of the year in which the non-agricultural use begins. After the Saurashtra area merged in the Bombay State under the States Re-organisation Act 1956 the Bombay Land Revenue Code was amended by Act No. 41 of 1959 and sec. 2 (4) was added in the Bombay Code as under :- save as otherwise provided by Chapter XA it also extendsto the Saurashtra area of the State of Bombay subject to the modifications specified in Schedule J appended to this Act. In Schedule J sec. 219 (1) is added to the effect that the Bombay Land Revenue Code 1879 as applied to the Saurashtra area of the State of Bombay by the State of Saurashtra (Application of Central and Bombay Acts) Ordinance 1948 is hereby repealed. The second proviso is as under :- provided further but subjeet to the preceding proviso anything done or action taken including any rule. . . . . all notices issued and all enquiries made under the Act so repealed shall be deemed to have been done or taken under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act. Therefore after the extention of the Bombay Code because of the modification specified in Schedule J in view of the second proviso to sec 219 (1) even though Saurashtra Code has been repealed the rules made thereunder continue to remain in force as if they were made under the corresponding provisions of the Bombay Code until they were superseded by new rules made under the Bombay Code. Therefore in the Saurashtra area the Saurashtra rules would continue in force provided they could be deemed to have been made under the corresponding provisions of this Act. Even when the Saurashtra rules were made under sec. 214 they could be made only as provided in sec. 214. Sec. 214 has continued to remain the same section. Therefore the material question is whether such a rule 86 (1) (a) could be enacted under sec. 214 read with sec. 48 of the Bombay Code Sec. 214 (1) enacts that the State Government may by notification published in the Official Gazette make rules not inconsistent with the provisions of this Act to carry out the purposes and objects and for the guidance of all persons in matters connected with the enforcement of this Act or in cases not expressly provided for therein. Therefore the rule making power conferred on the State Government is only an ancillary power to make such rules which are not inconsistent with the provisions of the Act. The rules can be made to carry out the purposes and objects of the Act and for the guidance of all persons in matters connected with the enforcement of the Act or in cases not expressly provided for therein. Therefore the rule can never widen the scope of the Act as their sole purpose is to carry out the purpose and objects of the Act and not to frustrate the objects of the Act. If the Act is silent on any procedural matter the rule can be enacted and to that extent it can supplement the provisions of the Act if it is made with a view to carry out the purposes and objects of the Act. However if a tax is not provided by the Act the rule making authority can never create such a tax liability because it would be exercising plenary powers. That is why sec. 214 (1) has provided an important fetter on the rule making authority hat the rules enacted shall not be inconsistent with the provisions of the Act. When we turn to sec. That is why sec. 214 (1) has provided an important fetter on the rule making authority hat the rules enacted shall not be inconsistent with the provisions of the Act. When we turn to sec. 48 of the Bombay Code it in terms provides in clause (1) that the land revenue leviable on any land under the provisions of the 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 (e) for a purpose other than agriculture or building. Under sec. 48 (2) where land assessed for use for any purpose is used for any other purpose the assesement under the provisions of this Act upon such land shall not withstanding that the term for which such assessment may have been fixed has sot expired be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf. Therefore under sec. 48 (1) every assessment is deemed to have been assessed with reference to the use of the land whether agricultural or non-agricultural. Sec. 48 (2) permits alteration of the assessment and fixing it at a different rate as prescribed by the rules only when the land assessed for use for any purpose is used for any other purpose. Therefore the condition precedent for the exercise of the power is the change of the user. Therefore until there is change of user sec. 48 (2) never creates a liability to pay the altered assessment. Therefore the right to levy the altered assessment only arises when the condition precedent is satisfied that an alteration of the user has been made from one permitted purpose to another purpose. Therefore mere grant of permission does not authorise alteration of assessment until there is actual change of user. In sec. Therefore the right to levy the altered assessment only arises when the condition precedent is satisfied that an alteration of the user has been made from one permitted purpose to another purpose. Therefore mere grant of permission does not authorise alteration of assessment until there is actual change of user. In sec. 65 which provides for permission being granted for change of user from agricultural purpose to a non-agricultural purpose the last paragraph provides that 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 order of the State Government to require the payment of a fine in addition to any new assessment which may be levible under the provisions of sec. 48. Therefore sec. 65 enables the Collector to revise the assessment provided it is leviable under sec. 48. Therefore the power of the Collector to fix the new assessment would depend upon the condition being satisfied that there was an actual change of user. Therefore if the rule 86 (1) (a) provides for the tax liability before even actual user is changed the rule would be in clear conflict with sec. 48 (2) of the Bombay Code. Such a rule would frustrate the salutary provisions of sec. 48 (2) that the liability to pay revised assessment only arises when there is actual change of user. ( 3 ) MR. Chhaya vehemently argued that the two provisions cannot be said to be inconsistent. The test of inconsistency or repugnancy is that both cannot stand together. When sec. 48 (2) creates this additional tax liability after a condition precedent is satisfied and if rule provides a liabiliy of tax to arise when the condition precedent is not satisfied it is obvious that these two provisions cannot stand together. Therefore rule 86 (1) (a) which provides for the tax liability even from a date before the actual non-agricultural use begins is clearly inconsistent with sec. 48 (2 ). In B. C. Banerjee v. State of M. P. A. I. R. 1971 S. C. 517-at p. 520 their Lordships in terms held that no tax could be imposed by any bye-law or rule or regulation unless the statute under which the subordinate legislation was made specially authorised the imposition even if it was assumed that the power to tax could be delegated to the executive. Their Lordships held that the basis of the statutory power conferred by the statute could not be transgressed by the rule-making authority. A Rule-making authority had no plenary power granted to it. ( 4 ) M. Chhaya vehemently argued that in any event when the Bombay Code was extended by the Legislature by amending sec. 2 (4) the Legislature had itself enacted that the extension was subject to the modifications specified in Schedule J. Therefore even after the Saurashtra Code was repealed along with its rules this modification was the statutory modification. Therefore the second proviso in sec. 219 (1) saved the Saurashtra rules. Mr. Chhaya argued that the Legislature itself in the present case had enacted this rule and therefore both the Code and rules must be taken together. There is no substance in this contention of Mr. Chhaya because the second proviso says that even though the Saurashtra Code was repealed whatever was done under the repealed Code was continued including the rules enacted by the deeming fiction that such rules were enacted under the corresponding provisions of this Act and shall eontinue in force accordingly until superseded by the new rules made under the Bombay Code. Therefore the legislative intention is obvious not to continue the rules which were inconsistent with the provisions of the Code. Even when the Saurashtra rule was adopted in Saurashtra the rule was in violation of sec. 48 which was extended to Saurashtra. The same defect was in the Bombay rule but it has been amended to bring it in conformity with sec. 48. Therefore the Saurashtra rule which is inconsistent with sec. 48 can never continue in force. ( 5 ) MR. Chhaya next argued that in any event this was a procedural provision when power was given to alter the purpose of use of the land the liability could always be fastened reasonably from the date of the permission. In fact under the Saurashtra rule 86 (1) (a) power is given to alter the assessment from the first day of the revenue year next succeeding the revenue year in which permission to use the land for non-agricultural purpose was given. This would not amount to a procedural provision but clearly a substantive law. In Bharat Barrel and Drum Mfg. Co. v. The Employees Estate Insurance Corpo. This would not amount to a procedural provision but clearly a substantive law. In Bharat Barrel and Drum Mfg. Co. v. The Employees Estate Insurance Corpo. A. I. R. 1972 S. C. 1935 their Lordships held that rule 17 framed by Bombay Government prescribing limitation for filing application under sec. 75 was ultra vires sec. 96 (1) (b) when the section enacted by the Legislature did not empower the Government to prescribe by rules a period of limitation for claim under sec. 75. Their Lordships held that is such a provision affected substantive rights and must therefore be dealt with by the Legislature itself and was not to be inferred from the rule making power conferred by regulating the procedure unless that was specifically provided for. What the Legislature specifically provided for was the condition precedent on fulfilment of which the liability for altered assessment could arise and therefore the altered assessment liability could arise only when there was actual change of user and not from a prior date. This is not an ancillary or incidental procedural provision but clearly a tax liability not envisaged by the Code itself. In that view of the matter rule 86 (1) (a) must be held to be contrary to sec. 48 (2) of the Bombay Code and must therefore be held to be illegal and ultra vires. ( 6 ) IN that view of the matter the second contention raised by Mr. Dave as to whether the guarantee of Article 14 was violated in this case or not would not require any consideration in this matter. ( 7 ) IN the result this appeal is allowed by setting aside the decree of both the courts and by decreeing the plaintiffs suit for the aforesaid amount of Rs. 1 758. 32 illegally recovered from the plaintiffs with 6 per cent interest from the date of the suit till realisation. The aforesaid payment shall be made by the State Government within a period of three months from to-day. The plaintiffs suit is accordingly decreed with costs all throughout. .