HEMATLAL MULJI LOHANA v. STATE — 1979 DIGILAW 13 (GUJ)

N. H. BHATT, J. ( 1 ) * * * * ( 2 ) COMING to the first contention in respect of the two notifications we find that said notifications are liable to be struck down. The notification dated 26-8-54 reads as follows:-"saurashtra Government Gazette 1954 part V page 1956-57 revenue Department. NOTIFICATION sub:- Application of Rule 82 of the Bombay Land Revenue Rules 1921 Rajkot 26 August 1954 no. RD/ii/4-A/6 (76 ). In exercise of the powers conferred by Rule 82 of the Bombay Land Revenue Rules 1921 as adapted and applied to the State of Saurashtra Govt. is pleased to direct that the said Rule shall be applied to all cities towns and other areas which have a population of 20000 and above and that the rate of non-agricultural assessment in such areas shall be as under:- (1) areas having a population of 20000 and above but less @0-0-3 per sq. than 50000 yd. per annum (2) Area having population of 50000 and above. 0-0-4 per sq. yd. per annum. 2 Government is further pleased to direct that the said rates of non-agricultural assessment shall come into force with affect from 1st September 1954. By order and in the name of the Rajpramukh of saurashtra sd/benesinhji:- secretary to the Government of Saurashtra revenue Department. The notification dated 4-11-68 issued by the Gujarat Government is only amendatory in character in character in so far as it replaces the word square yard by the words square metre. In a way it is not an independent notification. The notification dated 26-8-54 issued by the Revenue Department of the then State of Saurashtra purported to be issued in exercise of the powers conferred by Rules 82 of the Bombay Land Revenue Rules as adapted for and applied to the State of Saurashtra. Said Rule 82 reads as follows:-"82 In any area in which on account of there being a keen demand for building sites or for any other special purpose the State Govt. Said Rule 82 reads as follows:-"82 In any area in which on account of there being a keen demand for building sites or for any other special purpose the State Govt. may by notification in the Official Gazette direct that this rule shall be applied the rate of non-agricultural assessment shall be determined in accordance with the following provision and not under rule 81:- ( 3 ) THE non-agricultural assessment shall ordinarily be a percentage on the full market value of the land as a building site" ( 4 ) IN cases where this rule is applied on account of their being a demand for building sites the market value of the land shall be estimated as far as possible on the basis of actual sales of unoccupied land for building purposes in the locality. In cases where this rule is applied on account of the demand being for other special purposes the market value shall be estimated as far as possible on the basis of actual sales of unoccupied land of which the value is enhanced by the existence of the special dimand. III. xxx xxx xxx xxx iv. xxx xxx xxx xxx. Even a casual glance at the above-quoted text of Rule 82 is sufficient to convince anyone that for the purpose of deciding the rates under the said rule the Government has to deal with different areas where there is a keen demand for building sites or where there is a keen demand for any other special purpose. If either of the conditions exists and the Government is satisfied about it the Government by a notification in the official gazette may direct that Rule 82 shall be applied and the rate of non-agricultural assessment shall be determined in accordance with the provisions of that Rule 82 and not in accordance with the provisions of Rule 81 The provisions of Rule 82 are already quoted above. The basis that is permissible under clauses I and II is that N. A. assessment is ordinarily to be a percentage on the full market value of the land as a building site and where the rule is applied on the ground that there is a keen demand for building sites the market value of the land is to be estimated as far as possible on the basis of actual sales of unoccupied land for the purpose of building in that locality and the next clause provides that value is to be estimated as far as possible on the basis of actual sales of unoccupied land of which the value is enhanced by the existence of the special demand. ( 5 ) IT is therefore evident that before the Govt. elects to adopt Rule 82 the condition precedent is to examine the case areawise on the basis of a keen demand for building sites or a keen demand for any other special purpose and then a provision is to be made for assessing the value of the land and then fixing the N. A. assessment on the basis of percentage on the full market value of the land as a building site. The above-quoted notification issued by the Saurashtra Government however does not take into account any such factor and it is evident that a uniform rate is prescribed for the lands situated in cities having 50 0 or more population and the uniform rate is prescribed for the areas having a population of 20 0 and above but less than 50 0 In other words the Saurashtra region is divided into three categories:- (1) inhabited places having population of less than 20 0 (2) places having population of 20000 or more but less than 50 0 and (3) having population of 50 0 and above. This is ex-facie a different standard adopted for the purpose of levying NA. assessment. It cannot be uniformly stated that all the places in the towns having 20 0 or more souls but less than 50 0 would have a peculiar rate of demand for building sites nor could it be said that for cities having 50 0 or more population there will be still more keen demand for building sites. assessment. It cannot be uniformly stated that all the places in the towns having 20 0 or more souls but less than 50 0 would have a peculiar rate of demand for building sites nor could it be said that for cities having 50 0 or more population there will be still more keen demand for building sites. Situations vary from place to place and from the very nature of things there cannot be uniformity of demand either for building sites or for any other special purpose. The second objection to this notification is that it does not adopt any percentage on the full market value of the land as a building site. It adopts an arbitrary standard of 3 ps. per sq. yd. per annum or 4 ps. per sq yd. per annum. It is therefore evident that what has been provided for in that notification of Saurashtra Government is not in accordance with the provisions of Rule 82 of the Land Revenue Rules but it is something arbitrary and de hots those powers. ( 6 ) MR. J. R. Nanavati who appears for the State and the Collector however urged that it was open to the State Government and the Collector to view the urban areas with uniformity and he also urged that there was a notorious demand for building sites in such big cities. If such a blanket standard is adopted it would ex-facie be open to the charge of non-application of mind to the provisions of Rule 82. Rule 82 from the very nature of things contemplates that specified areas are to be taken into account for the purpose of application of Rule 82. Say for example Rajkot Jamnagar and Junagadh. We are told at the Bar that at the relevant time all these three cities had population of more than 50 0 It is absurd to suggest that all these three places can be clubbed together as a particular area for the purpose of invoking the powers of Rule 82 of the Land Revenue Rules. It is therefore not possible for us to subscribe to the submission of Mr. J. R. Nanavati that the State can adopt the population as the basis which in its turn should be presumed to be giving rise to the inference regarding the demand for building sites. It is therefore not possible for us to subscribe to the submission of Mr. J. R. Nanavati that the State can adopt the population as the basis which in its turn should be presumed to be giving rise to the inference regarding the demand for building sites. Despite there being population of 20 0 or more or as a matter of fact 50 0 or more the keenness of demand may vary from place to place. Even apart from this lacuna the adoption of a flat rate of 3 ps. or 4 ps. per sq yd. as is to be found in that impugned notification of the Saurashtra Government cannot be said to be a basis recognised by Rule 82. It is therefore evident that while issuing the said notification the Saurashtra Government had not before its mind the provisions of Rule 82 and that it had purported to lay down those arbitrary standards both of population and rate without any recourse to the provisions of Rule 82. The said notification therefore is to be held as ultra vires Rule 82 of the Land Revenue Rules as it was applicable to Saurashtra region and therefore it is liable to be struck down as illegal. ( 7 ) THE second contention that was raised in these petitions was regarding the demand of N. A. assessment from the date of the order granting permission for N. A. use. In this connection sec. 48 of the Land Revenue Code gives a clinching reply. It provides that the land revenue leviable on any land under the provisions of this Act is to be assessed with reference to the use of the land and sub-sec. (2) of sec. 48 specifically states that 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 be liable to be altered and fixed at a different rate. It is therefore evident that enhanced N. A. assessment is leviable only from the day the land is actually put to N. A. use and the said assessment cannot be levied from the day of the order. As a matter of fact the order that was passed in all the three cases reserved a liberty to the grantee to commence N. A. use at any time within six months from the date of the order. As a matter of fact the order that was passed in all the three cases reserved a liberty to the grantee to commence N. A. use at any time within six months from the date of the order. This means that even the order itself postulates the possibility of the land being put to N. A. use from a date subsequent to the day of the grant of permission. In this connection there is a judgment of J. B. Mehta J. as he then was in the case of Jorawarsinhji Himatsinhji Rana and Anr. v. Gujarat State and Ors 14 G. L. R. 156 In that case it was held very clearly that Rule 86 (1) (a) of the Saurashtra Revenue Rules which provided for the liability before even the actual use was changed would be in clear conflict with sec. 48 (2) of the Land Revenue Code and on that ground the rule was held inoperative. Mr. J. R. Nanavati however in this connection urged that the learned Single Judge of this Court had no authority at law to declare a statutory Rule ultra vires because as per the High Court Appellate Side Rules this power is conferred on the Division Bench of this court and not on the Single Judge. However we have no hesitation in arriving at the same conclusion on our independent assessment of the legal provisions. We therefore declare that Rule 86 (1) (a) of the Saurashtra Land Revenue Rules as adopted for the Saurashtra region was in violation of sec. 48 of the Land Revenue Code and it was therefore to that extent bad at law and hence inoperative. . . . . . . . . . . . . Petition partly allowed. .