Judgment:
Lodha R.M., J.
1. By means of this writ petition filed under Article 226 of the Constitution of India, the petitioner prays that the Maharashtra Increase in Land Revenue and Special Assessment Act, 1974 and the Maharashtra Increase in Land Revenue and Special Assessment (Amendment) Act, 1986 do not apply to the petitioners non-agricultural land situated in Greater Bombay and in the alternative to declare Section 3 of the Maharashtra Increase in Land Revenue and Special Assessment Act, 1974 as unconstitutional, null and void and of no legal effect whatsoever. The petitioner also prays that the impugned notices dated 30-9-1986, 4-11-1988, 16-11-1987, 21-7-1988, 16-9-1988, 2-12-1988, 18-3-1989 (Exhibit 'A' to 'G') be quashed and set aside and the respondents be directed to refund the sum of Rs. 16,26,150/- to the petitioner.
2. The controversy arises in the facts and the circumstances, that we may indicate briefly.
The petitioner holds the land in the city of Mumbai at various places that in all admeasures 53,117.92 square metres. The said land is not used for agricultural purposes. In addition to the land which is held by the petitioner in the city of Mumbai, the petitioner also holds the land outside the city of Mumbai within the State of Maharashtra. The non-agricultural land held by the petitioner in the State of Maharashtra exceeds 8 hectares though each parcel of the land held by the petitioner is much less than 8 hectares. The land so held by the petitioner in the city of Mumbai is assessed to revenue under Section 8 of Inami and Special Tenure Abolition Act since 1971. The petitioner's case is that the assessment of the lands made under Section 8 of the Bombay City (Inami and Special Tenure) Abolition Act, 1969 is upto the year 2021.
3. By the notice dated 04.11.1987 the first respondent called upon the petitioner to submit the returns under the Maharashtra Increase of Land Revenue and Special Assessment Act, 1974 (for short 'Act of 1974') in respect of the non-agricultural land held by the petitioner situated in the city of Mumbai for increase of the land revenue under the said Act of 1974. It may be noticed here that the Act of 1974 was amended by the Maharashtra Tax Act (Amendment) Act, 1975 (for short, 'Act XVII of 1975') and thereafter by the Maharashtra Increase of Land Revenue and Special Assessment (Amendment) Act, 1986 (for short, 'Amendment Act of 1986'). On 16-11-1987 the respondent No. 1 issued further notice to the petitioner under Section 6-A of the Amendment Act of 1986 calling upon the petitioner to furnish returns for the years 1974 to 1986. The petitioner was also called upon by the said notice to show cause as to why action should not be taken against it for not filing the returns within the prescribed time. The petitioner by his letter dated 21-01-1988 furnished to the first respondent the returns in part first and second and also prayed for condonation of delay in filing the said returns. On the basis of the returns filed by the petitioner under Section 6 and section 6-A of the Act of 1974 read with the Amendment Act of 1986, in respect of the land in the city of Mumbai held by the petitioner, the assessment was made under the Act of 1974 as amended from time to time in each year effective from 1.8.1975 upto 31.7.1991. The statement of assessment so made by the first respondent was sent to the petitioner alongwith forwarding letter dated 21.07.1988. When the petitioner failed to make payment of the increase land revenue as per the assessment made by the first respondent, the first respondent raised the demand for recovery of due and unpaid land revenue amounting to Rs. 32,52,294/-. In partial discharge of the demand of increase land revenue, the petitioner made payment of Rs. 16,26, 150/- on 16.03.1989. For the remaining amount of Rs. 16,26,150/- the notice was sent to the petitioner by the respondent No. 2 on 18.3.1989. It was then that the petitioner approached this Court by filing the writ petition on 29.3.1989 and prayed for the reliefs as indicated above. In the absence of any interim order passed in favour of the petitioner, the petitioner is reported to have paid the unpaid due amount of increased land revenue.
4. The writ petition is opposed by the respondents. On behalf of the respondents, the two reply affidavits have been filed. The first affidavit is by Narendra Gopal Bhansali and the other by Mangesh Mohite. The stand of the respondents is that the Act of 1974 stood amended by the Act XVII of 1975 and by virtue thereof, the additional land revenue as per Section 3 of the Act of 1974 has to be levied on non-agricultural holdings and, therefore, the increase land revenue in respect of the holdings of the petitioner from 01.08.1975 till 01.07.1991 is proper and cannot be faulted. The respondents have asserted that it was obligatory upon the petitioner to furnish the returns for the years 1974 onwards as provided under the Act of 1974 read with the Act of 1986 and since the petitioner failed to file the return before 01.10.1986 as required under the Amendment Act of 1986, the petitioner was rightly called upon to file returns and in compliance thereof, the petitioner did file return. The respondents, thus, justified the demand of increased land revenue and recovery thereof.
5. We heard Ms. Paranjape, the learned Counsel for the petitioner and Mr. R.M. Kadam, the learned Advocate General at quite some length.
6. The learned Counsel for the petitioner raised four contentions, (one) That the provisions of Act of 1974 as originally enacted applied only to the agricultural lands both for the purposes of Section 3 and Section 4 of the said Act. The subsequent amendments by the Act XVII of 1975, the method of calculation of levy under Section 3 was substituted by replacing the earlier basis of amount of land revenue and substituting it with the basis of the size of the holding. The scope and application of the said Act as originally enacted did not extend to non-agricultural lands even after the 1975 amendment. That the Act of 1974 is fiscal statute and needs to be construed strictly and that if the legislature intended to include non-agricultural lands under the Act of 1974, it could have said so in clear and unambiguous terms. The reliance was placed on the decision of the Supreme Court in the case of Krishi Utpadan Mandi Samiti v. Pili Bhit, Pant Nagar Beej Ltd., : (2004)1SCC391 . (two) That even if it be assumed that the Act of 1974 is applicable to non-agricultural holding, the scope of levy, if applied to inami and special tenure non agricultural lands in the city of Mumbai, would be in direct and self evident conflict with the provisions of Section 8 of the Bombay City (Inami & Special Tenures) Abolition Act, 1969 (for short, 'the Act of 1969'). The contention is that the provisions of Section 8 of the Act of 1969 debar the State from levy by full assessment on such lands until 40 years. If Section 3 of the Act of 1974 is extended to such lands, it would enable the State to increase such assessment even before the expiry of 40 years. In that event, the provisions of Section 8 of the Act 1969 would be rendered nugatory. That such conflict can be resolved by interpreting Section 3 of the Act of 1974 as being restricted to agricultural lands alone or in any event as being inapplicable to the lands dealt with under the Act of 1969. The following judgments were relied upon viz. (1) Municipal Council Palai v. T.J. Joseph, : [1964]2SCR87 , (2) Tata Power Co. Ltd. v. Collector Bombay City, : 2002(2)BomCR349 , (3) Chandra Mohan v. State of U.P., A.I.R. 1966 S.C. 1987, (4) Life Insurance Corporation of India v. Commissioner of Income Tax, Bombay, 1966 (7) S.C.C. 524 and (5) Raghbir v. State of Harayana, : 1981CriLJ1497 . (three) That the impugned demand notices are retrospective and hence illegal. That such retrospective demand is not sanctioned by the Act of 1974 as it contemplates a separate assessment for each year. The demand notice can only operate prospectively for future assessment from the date of notice and not with retrospective effect. The reliance was placed on the decision of this Court in the case of Collector of Bombay v. Purjor Hormusji, : AIR1964Bom7 . (four) That in any case the impugned notice is beyond the scope of Section 3 of the Act of 1974 in as much as it seeks to impose a tax by aggregating the petitioner's entire non agricultural lands in the State of Maharashtra and then proceeding to assess the petitioner's non agricultural lands in the city of Bombay although in the city of Bombay each individual holding is less that 1 hectare and even the aggregate holding is approximately 5.3 hectares. That the Act of 1974 uses two expressions 'holdings' and 'holding' in various places and the expression 'holding' in Section 3 refers to only one single parcel of land enclosed by one set of boundaries that would attract the levy only if it exceeds 8 hectares.
7. The learned Advocate General, on the other hand, submitted that the Act of 1974 stood amended in the year 1975 by the Act No. XVII of 1975 and thereby the applicability of the Act of 1974 did not remain restricted to the agricultural land. He submitted that there is no conflict in the Act of 1969 and the Act of 1974 and the statutory representation made by the legislature in the Act of 1969 could always be varied, modified or amended by the subsequent legislation. That there is no challenge to the legislative competence of the State Legislature in enacting the Act of 1974 as amended from time-to-time and, therefore, the contention of reading down the provisions of Act of 1974 has no meaning. The learned Advocate General would submit that the demand is not retrospective but is prospective. The increased land revenue under the Act of 1974 is leviable from 01.08.1975 and that is what has been done in the demand. The learned Advocate General argued that under Section 3 the expression 'holding' means the aggregate of all lands held by the holder. He, thus, justified the demand and prayed for dismissal of the writ petition. Re : (one)
8. It is true that initially when the Act of 1974 was enacted, it was intended to provide for increase in the land revenue in respect of the agricultural lands. It is clear from the preamble of the Act of 1974 which provides thus :
'WHEREAS it is expedient to provide for an increase of land revenue to be levied on the aggregate amount of the ordinary land revenue and the local cess levied in respect of agricultural lands in the State; and also an increase of land revenue to be levied on the amount of special assessment levied on agricultural lands under the Maharashtra Education (Cess) Act, 1962; and for matters connected with the purposes aforesaid;'
In the original Act, Section 2(1)(a) defined 'amount of total land revenue' to mean the aggregate of the amounts of ordinary land revenue and of the local cess (if any) payable by a person per annum in respect of agricultural land. Original Section 3 of the Act of 1974 provided for levy and collection of the increase in the land revenue from 1.8.1974 in respect of the amount of total revenue as defined in Section 2(1)(a). In other words, originally the Act of 1974 was restricted to increase of land revenue in respect of the agricultural lands. However, by the Act XVII of 1975, the Act of 1974 was amended. In the long title for the words 'to be levied on the aggregate amount of ordinary land revenue and the local cess levied in respect of agricultural lands in the State', the words 'on certain holdings in the State' was substituted. Section 2(l)(a) was altogether deleted. Thus, the definition of amount of total land revenue which meant the aggregate of the amount of ordinary land revenue and of the local cess payable by any person per annum in respect of the agricultural land was deleted. Section 3 as was originally enacted in the Act of 1974 was substituted by the Act XVII of 1975 as follows :
'3. Levy and collection of increase in land revenue. Subject to the provisions of this Act, on and from the 1st day of August, 1975, for the purpose of raising additional resources needed for implementing the Employment Guarantee Scheme of the State of Maharashtra, the amount of land revenue payable by a holder in respect of his holding shall be increased at the following rate, that is to say - Where a holding consists Rate of increaseof land equal to -(1) 8 hectares or more 50 per centum of land revbut less than 12 hectares. enue payable in respect ofsuch holding,(2) 12 hectares or more 100 per centum of the landrevenue payable in respect of such holding.'
9. Thus, after the amendment of the Act of 1974 by the Act XVII of 1975, the applicability of the Act of 1974 did not remain confined to the land revenue payable in respect of the agricultural lands. By amendment in the preamble, the deletion of Section 2(1)(a) and the substitution of Section 3, inter alia, the legislative intent is clear that its applicability was not confined to the land revenue payable in respect of the lands subjected to agricultural purposes. The Act of 1974 was amended by the Act XVII of 1975 for increase of the land revenue in respect of the agricultural lands as well as non agricultural lands. The objective for such amendment was to mobilise additional resources. Having surveyed the Act of 1974 as amended by the Act XVII of 1975, we are unable to find that its applicability is confined to the agricultural lands. If the argument of the learned Counsel for the petitioner that despite amendment by the Act XVII of 1975 the Act of 1974 was confined to the agricultural lands is accepted, that would mean giving no effect to the amendments, which in our opinion cannot be done.
10. By removal of the expression 'agricultural land' in the title as well by deletion of Section 2(1)(a) in the definition clause as well as by substitution of Section 3, the applicability of the Act of 1974 for increase of land revenue is extended to the lands other than the lands subjected to agricultural purposes.
11. It is not in dispute that the land revenue is payable under the Maharashtra Land Revenue Code for the land used for agricultural purposes as well as for the non agricultural purposes. The objective of the Act of 1974 as amended by the Act XVII of 1975 is to mobilise additional resources for Education and Employment Schemes by increase in the land revenue in respect of certain holdings used for agricultural as well as non agricultural purposes. We have, therefore, no hesitation in concluding that the Act of 1974 as amended by the Act XVII of 1975 provides for levy and collection of increase in land revenue in respect of certain holdings, be it agricultural land or non-agricultural land.
Re ; (two)
12. What was urged before us was that if the provisions of the Act of 1974 is applied to Inami and Special Tenure Abolition Act, 1969 in the city of Bombay, it would be in direct and self evident conflict with the provisions of Section 8 of the Act of 1969 in as much as the provisions of Section 8 of the Act of 1969 debar the State from levy of full assessment on such lands until 40 years and if Section 3 of the Act of 1974 as amended by the Act XVII of 1975 is extended to such lands, it would enable the State to increase such assessments before the expiry of 40 years. It was urged that by such extension of the Act of 1974, the provisions of Section 8 of the Act of 1969 would be rendered meaningless and the statutory guarantee in Section 8 would be affected. The suggestion by the learned Counsel for the petitioner was that the conflict may be resolved by giving effect to the provisions of both statutes and by restricting the applicability of Section 3 of the Act of 1974 to the agricultural lands only.
13. The contention hardly impresses us. It is not in dispute that Entry 45 of List II of Schedule seven of the Constitution of India makes the State legislature competent to enact law in respect of the of land revenue including the assessment and collection of revenue, maintenance of land records, survey for revenue purposes and records of rights and collection of revenue. Entry 45 of List II of Schedule seven is a source for enactment of the Maharashtra Land Revenue Code, 1965 the Bombay City (Inami and Special Tenure) Abolition Act, 1969 and so also the Maharashtra Increase of Land Revenue and Special Assessment Act, 1974. It is true that Section 8 of the Act of 1969 provides for assessment of lands held on inami or special tenure before appointed day, 15 particularly sub-section (7) thereof provides that the assessment fixed according to the provisions of the Section in respect of inami or special tenure lands shall remain in force for the period of 50 years from the appointed day or the period of guarantee. The competence to vary alter or modify the period of guarantee is not in dispute nor the competence of the State legislature in enacting the Act of 1974 is in dispute. By enacting the law such as the Act of 1974 which is within the competence of the State Legislature, if the period of guarantee as provided in Sub-section (a) of Section 7 in the Act of 1969 is affected it does not stand to reason that the Act of 1974 must be read down. The State Legislature was in know of the existence of the Act of 1969 at the time of enactment of the Act of 1974 as amended by the Act XVII of 1975 and in exercise of its legislative power enacted the Act of 1974 and amended it by the Act XVII of 1975. The Act of 1974 is ambiguous and clear and when its applicability is not restricted to agricultural land as canvassed and its operation extends to the holding of non agricultural lands exceeding the area provided therein on which the land revenue is payable, any guarantee given in the Act of 1969 cannot freeze the operation of the Act of 1974 as amended by the Act XVII of 1975. When the statutory provision enacted by the competent legislature is clear and unambiguous it must be applied as it is. The principle of 'reading down' the legislative enactment has been evolved to save a provision from the vice of unconstitutionality and is never intended to be applied to restrict the full effect of the statutory provision enacted by the competent legislature when such provision does not suffer from the vice of unconstitutionality. The constitutionality of the Act of 1974 as amended by the Act XVII of 1975 was not put in issue by the learned Counsel for the petitioner during the course of arguments, though one of the prayers to that effect has been made in the alternative in the writ petitioner. In other words, the learned Counsel for the petitioner did not press prayer (b) of the writ petition.
14. It is not necessary to discuss the judgments viz., Municipal Council Paled (supra), Tata Power Co. Ltd. (supra), Chandra Mohan (supra), Life Insurance Corporation of India (supra) and Raghbir (supra), relied upon by the learned Counsel for the petitioner, as we find that the said judgments are of no assistance in deciding the controversy in hand regarding giving effect to the provisions of the Act of 1974 as amended by the Act XVII of 1975.
Re : (three)
15. Though the learned Counsel for the petitioner contended that the impugned demand is retrospective and is not sanctioned by the Act of 1974, we are unable to accept her contention. The Act of 1974 was amended by the Act XVII of 1975. Under Section 3 thereof the increased land revenue is leviable from 01.08.1975. The impugned demand relates to the period on and from 01.08.1975. As a matter of fact the petitioner failed to file the returns which it ought to have since the year 1975. The Act of 1974 as amended the Act XVII of 1975 was further amended by the Act of 1986 and the petitioner was called upon to file the returns within the time extended by the Amendment Act of 1986. The petitioner did file the returns on 21.01.1986 and then the demand has been raised by the impugned notices in the month of July, 1988. The aforesaid facts clearly indicate that the demand is not retrospective. The statement of demand which is annexed at Exhibit '2' along with the reply affidavit dated 06.06.1989 upon which reliance was placed by the learned counsel for the petitioner itself shows that the demand is for the period from 01.08.1975 and onwards. We, therefore, hold that the impugned demand is not retrospective and reject the petitioner's contention. Re : (four)
16. The last contention of the learned Counsel for the petitioner was that under Section 3 each individual holding must be 8 hectares or more, but none of the petitioner's non-agricultural lands in the city of Bombay exceeds 8 hectares and, therefore, Section 3 is not attracted.
17. The aforesaid contention is noted to be rejected. Section 3 of the Act of 1974 as amended by the Act XVII of 1975 provides that the amount of land revenue payable by a holder in respect of the holding shall be increased at the rate provided therein in the case of the holding consisting of the land 8 hectares or more but less than 12 hectares and 12 hectares or more. Obviously, therefore, Section 3 is applicable to certain holding i.e., the minimum holding has to be 12 hectares. The expression 'holding' in Section 3 refers to the total land held by such person and not one single parcel of land enclosed by one set of boundaries as was sought to canvassed. The expressions 'holding' and 'holdings' in the Act of 1974 as amended by the Act XVII of 1975 do not have different meaning and mean total land held by such person. If the argument advanced by the learned Counsel for the petitioner is accepted, it may happen that a holder having 50 hectares of land comprising of 50 separate parcels of land shall not be liable to the increased land revenue while another holder holding one parcel of land admeasuring 12 hectares of land shall have to pay increased land revenue under the Act of 1974. This may result in absurd situation. We reject this contention of the learned Counsel for the petitioner as well.
18. In conclusion, we find no merit in the writ petition. It is dismissed with no order as to costs.