Thankerton, J. - (1.) THIS is an appeal from a judgment and decree of the High Court of Judicature at Bombay (N. J. Wadia and Sen JJ.) dated August 8, 1940, in a letters patent appeal, confirming a judgment and decree of a single Judge of that Court, Wassoodew J. dated April 11, 1938, in the exercise of appellate jurisdiction, whereby a decree of the District Judge, Ahmedabad, dated October 8, 1934, was set aside, and the respondent's suit was, for the main part, decreed. The decree of the District Judge had confirmed a decree of the 1st Class Sub-Judge of Ahmedabad, dated October 24,19.33, under which the respondent's suit was dismissed.
(2.) ON October 13, 1981, the respondent brought the present suit against the appellant praying for a declaration that the appellant was not entitled to recover from the respondent any assessment of certain land, of which the respondent was registered occupant, in excess of the amounts payable by him under agreements dated respectively July 25, 1900, February 18, 1915, and December 21, 1924, for repayment of Rs. 606-7-0 illegally levied from him in the years 1928 to 1981 inclusive, and for other relief. The Subordinate Judge and the District Judge held that the suit was barred Under Section 4 (b) of the Bombay Revenue Jurisdiction Act (X of 1876), and that the three agreements were cancelled by an order of the Governor in Council dated April 11, 1930, levying assessment at the full standard rate on the entire holding of the respondent as from 1927-1928, and that the Governor in Council was competent to pass such an order under Section 211 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879), hereinafter referred to as "the Code. " The High Court on second appeal and on the Letters Patent appeal reversed the decision of the lower Courts on both points of law, and held that the 1924 agreement was unenforceable and duly cancelled by the appellant, but held that the 1915 agreement was still enforceable as regards buildings erected before 1920, that the full standard rate should not be applied to such buildings, and that the appellant should refund to the respondent any altered assessment or penalty levied in excess of that stipulated in the agreement of 1915 in respect to buildings as they existed in 1920, the excess sum, if any, to be determined in execution.
(3.) THE respondent is the owner and registered occupant, of a plot of land measuring 7,744 square yards, being Survey No.149 of Mouje Changispur in the North Daskroi taluk of the Ahmedabad Collectorate within the Ahmedabad Municipality. THE plot had been used for agricultural purposes only up to 1904, in which year he erected an ice factory on part of it. He had applied to the Collector under Section 65 of the Code for permission to use the land for such a non-agricultural purpose, and permission was granted under Section 67 on terms which were subsequently embodied in a formal agreement dated July 25, 1906. For reasons that their Lordships will shortly explain, this agreement was superseded, and need not be further examined. In 1915 the respondent acquired Survey No.150/a lying immediately to the north of Survey No.149, for the purpose of extending his ice factory. He applied to the Collector for amalgamation of the two Survey Nos. and for permission to appropriate the amalgamated holding to non-agricultural purposes in accordance with a plan which shewed the buildings as proposed to be extended. A formal agreement embodying the permission and its conditions was executed between the Government through the Collector and the respondent on February 13, 1915, the material provisions of which are as follows: Now it is hereby agreed between the Secretary of State and the applicant that permission to appropriate to non-agricultural purposes the plot of land indicated by the letters ABCD on the said site plan (which plot of land is hereinafter referred to as 'the said plot of land') in the particular manner shewn in the said site plan, namely: (a) an area of 2,161 sq. yards indicated by a red colour and the letters EFGHJJKLMNO for the purpose of a pagi room, bungalow, godown, factory, boiler house, smithy, tank and quarters. (b) an area of 56 sq. yards indicated by a yellow colour and the letters H P Q for the purpose of a stable and latrines. (c) an area of 9,883 sq, yards indicated by the uncoloured portion of the said plot for the purpose of an open compound only shall be and is hereby granted subject to the provisions of the said Code, and rules and orders thereunder, and on the following special terms and conditions, namely: 1. The applicant in lieu of the present assessment leviable in respect of the said plot of land shall pay to Government without deduction on the first day of January in each and every year an annual assessment of Rs. 27 only during the fifty years commencing on the first day of August 1903, and ending on 31st day of July, 1953, and thereafter such revised assessment as may from time to time be fixed by the Collector under the said Code and rules and orders thereunder:. . . (3) The applicant is hereby prohibited under the last paragraph of Section 48 of the said Code, from appropriating, without the previous permission in writing of the Collector, any part of the said plot of land to any purpose other than that for which permission to appropriate it is herein-before granted to the applicant : Provided that: (i) nothing in the above shall be deemed to prohibit the applicant: (a) from erecting or constructing, without such previous permission, in the portion (c) (i. e. appropriated for the purpose of an open compound only) boundary walls not exceeding four feet in height, garden-fountains, uncovered steps and similar structures, not being projections from a building such as verandahs, balconies, eaves or shop-boards (b) from constructing, without such previous permission, wells or tanks in any part of such portion (c) that does not lie within a margin consisting of a strip 21 feet broad on the west and 10 feet on the other sides along and inside the perimeter of the said plot of land except as otherwise shewn on the plan ; (c) from appropriating, without such previous permission, to any non-agricultural purpose, other than that of a shop, a stable or a privy, to an extent not exceeding in total admeasurement 364 sq. yards, any part of such portion (c) that does not lie within the aforesaid margin ; and (ii) Where any such prohibited appropriation is permitted by the Collector, the applicant shall except in the case of an appropriation of any part of the land measuring 364 sq. yards and specified in Sub-clause (c) of proviso (i) above, be liable to pay from the date of the appropriation in respect of the land so appropriated such enhanced assessment not exceeding Rs. 3-9-10 per hundred sq. yards as the Collector may deem fit to impose, and in any such case the total amount payable under clause 1 of this agreement shall be modified accordingly. It may be added that, under Clause 5 of the agreement, the applicant undertook to erect and complete the buildings shewn in the plan within three years from the date of the agreement, and that, Under Clause 8, the Collector might, without prejudice to any other penalty to which the applicant might be liable under the provisions of the Code, or rules or orders thereunder, direct the removal or alteration of any building or structure erected contrary to Clause 3 or 5 of the agreement.;